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February 8, 1995


Appeal from the Circuit Court of Cook County. Honorable Patrick E. McGann, Judge Presiding.

The Honorable Justice Cerda delivered the opinion of the court: Greiman, P.j., and Tully, J., Concur.

The opinion of the court was delivered by: Cerda

JUSTICE CERDA delivered the opinion of the court:

After plaintiff, June Krecek, a probationary police officer, was terminated without a hearing, she filed an administrative review complaint and later a complaint for retaliatory discharge, wrongful discharge, and breach of contract against defendants, Board of Police Commissioners of La Grange Park, Illinois, John Dunlop, individually and as La Grange Park Chief of Police, and Board members George Sasso, Gilbert Lilly, and Joseph Abraham. The trial court granted defendants' section 2-619 motion to dismiss. (735 ILCS 5/2-619 (West 1992).) On appeal, plaintiff asserts that (1) her termination violated her employment contract with the police department; and (2) her retaliatory discharge and wrongful discharge claims are not time-barred.

On October 8, 1990, plaintiff began training as a probationary police office with the La Grange police Department. After successfully completing the training program, she began active duty as a probationary police officer on December 17, 1990. Her probationary period was scheduled to end on October 8, 1991. On March 30, 1991, plaintiff suffered back and knee injuries in an automobile accident while on duty. As a result, she was placed on medical leave during which time she received workers' compensation pay.

On September 6, 1991, Chief Dunlop received a notice from the department's insurance carrier that Dr. David Spencer had examined plaintiff and determined that she was physically able to return to work. Based on that recommendation, Dunlop contacted plaintiff and instructed her to return to active duty on September 9, 1991. Dunlop told plaintiff that the department's insurance carrier had determined that she was fit for duty and that they were stopping her disability payments based on the doctor's findings. After plaintiff told Dunlop that she was scheduled to receive medical treatment on September 9, 1991, Dunlop ordered her to return to duty on September 10, 1991.

Plaintiff neither appeared for work on September 10, 1991, nor notified Dunlop or the police department that she would be absent. According to plaintiff's amended complaint, her physician would not release her to return to work as of September 15, 1991, and advised her that she should not return to work for another month.

On September 11, 1991, Dunlop met with Timothy Schuenke, the Village Manager, and received approval to recommend termination of plaintiff. Dunlop and Schuenke then recommended to the Board of police Commissioners that plaintiff be terminated due to her failure to obey an order to return to active duty. On September 12, 1991, the board voted to terminate plaintiff and she was notified.

On October 17, 1991, plaintiff filed a complaint for administrative review in which she claimed she was denied due process of law because she did not receive a hearing or a right to confront the evidence against her before being terminated. After hearing arguments, the trial court dismissed the complaint with prejudice on June 5, 1992. The trial court ruled that a probationary officer is subject to dismissal without a hearing or being notified of any reason. Since there had been no administrative hearing, the court held that administrative review was not proper.

Plaintiff did not appeal. Instead, on October 27, 1992, she filed a complaint claiming retaliatory discharge, wrongful discharge, and a breach of contract. Defendants then filed a section 2-619 motion to dismiss (735 ILCS 5/2-619 (West 1992)) claiming that (1) plaintiff's retaliatory discharge and wrongful discharge claims are time-barred by a one-year statute of limitations; and (2) the breach of contract claim should be dismissed because plaintiff had no employment contract at the time she was terminated. The trial court granted the motion to dismiss.

As a preliminary matter, we note that plaintiff's claims are not barred by res judicata because her prior administrative review claim was based solely on whether she had the right to a hearing before termination and did not involve the same issues as are in this appeal.

Plaintiff's first argument on appeal is that her termination violated her employment contract with the police department. Plaintiff contends that her employment contract with the police department consisted of the Rules and Regulations of the La Grange Park police Department (Department Rules), the Rules of the Board of Police Commissioners (Commissioners Rules), and the La Grange Park Police Department Policy and Procedure Manual (Department Manual).

To support her position, plaintiff relies on Duldulao v. St. Mary of Nazareth Hospital Center (1987), 115 Ill. 2d 482, 490, 505 N.E.2d 314, 106 Ill. Dec. 8, which held that the hospital's employee handbook constituted an employment contract. Duldulao established a three-prong test for determining whether an employee handbook constitutes an employment contract: (1) the language of the policy statement must contain a promise clear enough that an employee would reasonably believe that an offer has been made; (2) the statement must be disseminated to the employee in such a manner that the employee is aware of its contents and reasonably believes it to be an offer; and (3) the employee must accept the offer by commencing or continuing to work after learning of the policy statement. ( Duldulao, 115 Ill. 2d at 490, 505 N.E.2d 314.) When all three conditions are met, an employee's continued work constitutes consideration for the promises contained in the handbook, and a valid contract is formed under traditional principles. Duldulao, 115 Ill. 2d at 490, 505 N.E.2d 314.

Plaintiff argues that the three prongs of Duldulao were met in her case: (1) the Commissioners' Rules, section 7-1, made an offer by requiring that "all officers and members of the police Department shall observe and obey all rules and orders of the Board," and member is defined as "any employee of the department," making no distinction between probationary police officers and nonprobationary police officers; (2) the Department Rules, Commissioners' Rules, and Department Manual were disseminated to each department member, who was required to familiarize herself or himself with them and to comply with them; ...

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