The opinion of the court was delivered by: ELAINE E. BUCKLO, District Judge
MEMORANDUM OPINION AND ORDER
In 1992, plaintiff Michael Mastrogiovanni began working for
defendant Sony Music Entertainment, Inc. ("Sony"), a foreign
corporation with its principal place of business in New York, at
Sony Discos in Miami, Florida. That location closed in 1999, and
Mr. Mastrogiovanni was relocated to Sony's facility in
Bolingbrook, Illinois, where he became Warehouse Returns Manager.
His immediate supervisor was Paul White, Director of the National
Return Center; Mr. White reported to the highest-ranking Sony
official at the Bolingbrook facility, Patrick Van Blaricom, the
Senior Director Warehousing Distribution. On May 1, 2003, Mr.
Mastrogiovanni left work at approximately 4:40 p.m. through a
door marked Post B. Employees were not supposed to exit via Post
B after 4:30 p.m. Mr. Van Blaricom decided to terminate Mr.
Mastrogiovanni's employment as a result of this violation, and he
was fired on May 7, 2003. Mr. Mastrogiovanni then filed the
instant suit against Sony, alleging breach of contract and
reckless infliction of emotional distress. Sony successfully moved to dismiss the emotional distress claim
for failure to state a claim and now moves for summary judgment
on the breach of contract claim. I grant the motion.
The essence of Mr. Mastrogiovanni's theory is that statements
in the employee manual Sony issued to him and the admitted
policies of Sony executives created a contract establishing Mr.
Mastrogiovanni's right to "progressive discipline" if he violated
company rules. In other words, severe infractions such as
stealing would be punished more harshly than minor ones such as
tardiness. Summarily dismissing him for the de minimis
infraction of exiting through a door ten minutes too late, he
argues, was a violation of that contract.
On a motion for summary judgment, I evaluate the admissible
evidence in the light most favorable to the non-moving party and
grant the motion only if the evidence shows that there is no
genuine issue of material fact. Bennett v. Roberts,
295 F.3d 687, 694 (7th Cir. 2002). The presence or absence of a contract
is a question of law for the court to decide. See Habighurst v.
Edlong Corp., 568 N.E.2d 226, 229 (Ill.App. Ct. 1991).
Statements in employee handbooks may create enforceable
contractual rights where traditional contract elements are
present. Duldulao v. St. Mary of Nazareth Hospital,
505 N.E.2d 314, 318 (Ill. 1987). First, the text of the statement must be
clear enough that an employee would reasonably believe that an
offer had been made. Second, the statement must be distributed to the employee in such a manner
that the employee is made aware of its contents and reasonably
believes an offer has been made. Third, the employee must accept
the offer by beginning or continuing to work after learning of
the statement. Id. In order to meet this standard, the language
in the document must be "phrased in an unequivocal mandatory
manner" and it cannot be disclaimed by other policy statements.
Weiss v. N.Y. Life Ins. Co., No. 94-C7023, 1995 U.S. Dist.
LEXIS 3179, at *6-7 (N.D. Ill. Mar. 13, 1995) (Aspen, J.). A
number of courts have found contracts based on statements in
employee manuals under this standard. See Duldulao,
505 N.E.2d at 316 (finding a contract where the handbook distinguished
between "probationary" and "permanent" employees and stated that
the latter could be terminated only with "proper notice and
investigation"); Robinson v. McKinley Cmty. Servs., Inc.,
19 F.3d 359, 361-62 (7th Cir. 1994) (finding a contract where an
employer's offer letter and manual referred to "tenure" and
"permanent employment" and outlined a procedure for suspending
that status for cause prior to termination); Vajda v. Arthur
Andersen & Co., 624 N.E.2d 1343, 1345 (Ill.App. Ct. 1993)
(finding a contract where a partner of the employer firm admitted
to a company policy of requiring good cause for discharge, as
described in a procedural manual).
The parties disagree as to which version of the Sony handbook
had been provided to Mr. Mastrogiovanni. Sony claims that every version of the handbook contained a prominent disclaimer stating
that the handbook is not a contract. Mr. Mastrogiovanni insists
that the only version of the handbook provided to him contained
no disclaimer. I need not consider this factual conflict,
however, because I find that the handbook language was too vague
to constitute an enforceable contract even in the absence of a
disclaimer. The employee handbooks which were held to create
contractual rights in the cases Mr. Mastrogiovanni relies on,
such as Duldulao and Mitchell v. Jewel Food Stores, Inc.,
568 N.E.2d 827 (Ill. 1990), uniformly include mandatory language.
See Duldulao, 505 N.E.2d at 317 ("`Permanent employees are
never dismissed without prior written admonitions'"); Mitchell,
568 N.E.2d at 828 ("[S]uch employee shall not be suspended,
discharged, or otherwise disciplined without just cause'").
Sony's manual, in contrast, states that progressive procedures
"should be followed," that a written warning "should be issued,"
etc. Such "should" statements are not enforceable promises, as
statements that supervisors "must" or are "required" to use
progressive discipline might be; the language is suggestive
rather than mandatory. Boulay v. Impell Corp., 939 F.2d 480,
482 (7th Cir. 1991) (finding no contract where an employee
manual provided that termination "should" occur only when
corrective counseling has failed); Weiss, 1995 U.S. Dist. LEXIS 3179, at *8 (applying Boulay). Sony's motion for summary
judgment on the breach of contract claim is granted.
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