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United States District Court, N.D. Illinois, Eastern Division

November 2, 2004.


The opinion of the court was delivered by: ELAINE E. BUCKLO, District Judge


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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