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PROUTY v. AMTRAK

October 6, 1983

COL. L. FLETCHER PROUTY, Plaintiff
v.
NATIONAL RAILROAD PASSENGER CORPORATION, Defendant



The opinion of the court was delivered by: GREEN

 This matter is before the Court on defendant's motion for partial summary judgment or dismissal, plaintiff's opposition thereto, defendant's reply, the declaration of Alex Langston submitted by plaintiff on October 5, 1983, and the entire record herein. For the reasons stated below, the Court grants defendant's motion for partial summary judgment with regard to plaintiff's claims for breach of contract, for negligence, and under the District of Columbia Human Rights Act, D.C. Code §§ 1-2501 et seq., and grants defendant's motion to dismiss plaintiff's request for compensatory and punitive damages under the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. ("ADEA").

 FINDINGS OF FACT *fn1"

 In February 1972, plaintiff Col. L. Fletcher Prouty was hired by defendant National Railroad Passenger Corporation ("Amtrak") as Manager, Government and Military Marketing. The parties never executed a document specifying that plaintiff would be employed by Amtrak until he retired at the age of sixty-five.

 In August 1975, plaintiff held the position of Special Assistant to the Vice President for Public Affairs. Plaintiff did not sign a written contract for this position. Deposition of L. Fletcher Prouty at 171 ("Prouty Deposition").

 As of August 1975, plaintiff believed that defendant Amtrak had promised him a promotion to Assistant Vice President. Id. at 175. However, during the summer of 1975, plaintiff did not sign any documents reflecting his entitlement to a salary or position at the Assistant Vice President level. Id. at 175-76. The parties did not execute any documents setting forth the terms of plaintiff's alleged promotion to Assistant Vice President. Moreover, plaintiff knew in 1975 that he could not use the title of Assistant Vice President on his business cards. Id. at 195. He also knew that he had not received a salary increase in connection with this alleged August 1975 promotion. Id. at 188-91.

 Plaintiff was not prohibited from reviewing his personnel and salary records through May 1976 and was aware of this fact. Id. at 252-54. Plaintiff also knew that he could examine his personnel and salary records in 1978. Id. at 297-98.

 In 1975, plaintiff became aware that Amtrak was working with Hay & Associates on an employee salary and compensation plan. Id. at 256. Plaintiff never made a formal inquiry into his rating under the Hay system in 1976 and 1977, although he was aware of a corporate policy in effect at that time making this information available. Id. at 288.

 Not later than the last few days of July or the first week of August 1979, plaintiff discovered that his Hay point rating was "0675." Id. at 268, 323, 325-26.

 From August 1975 until August 1979, plaintiff never sought to review his personnel files, his records in the public affairs department, or his records in the budget department. Id. at 252-53, 292-93, 297-98.

 Plaintiff did not write any letters or memoranda of complaint to Amtrak's Personnel Department about his failure to receive his expected promotion in August 1975, his failure to receive a salary increase in conjunction with this promotion, or about the fact that he had not received the official title of Assistant Vice President, until August 14, 1979. Id. at 255, 297, 335-36.

 On May 28, 1981, plaintiff was discharged from Amtrak. He has not worked for defendant since that time.

 On August 12, 1982, he filed the instant complaint.

 CONCLUSIONS OF LAW

 A. Plaintiff's Contract Claims

 Plaintiff's breach of contract claim is premised on plaintiff's allegations "that during the period that the contract was in force, primarily 1975 and beyond, he was treated unfairly and not in accordance with the contractual agreement he had with Amtrak, in the areas of compensation, evaluation, and promotion." Plaintiff's Opposition to Defendant's Motion for Partial Summary Judgment or Dismissal at 15 ("Plaintiff's Opposition"). Defendant asserts that no actionable contract exists in this case.

 Amtrak contends that plaintiff's contract claims are barred by the District of Columbia Statute of Frauds, D.C. Code § 28-3502 (1981). According to defendant, plaintiff never identified any writing signed by defendant dealing with the length of plaintiff's employment or promising him employment until he reached the age of sixty-five. In addition, plaintiff never identified any document offering him a position as Assistant Vice President. Plaintiff argues, however, that the contract was evidenced by a written instrument, i.e., a Form 35 Personnel and Payroll Notice, which Amtrak prepared and executed on February 25, 1972. Memorandum Exhibit C attached to Defendant's Motion for Partial Summary Judgment or Dismissal. Form 35 includes the following information: (1) plaintiff's name, address, social security number, and other identifying information; (2) the date of hire and the date available to report to work; (3) the position title and annual rate of pay; and (4) plaintiff's education and military background.

 The District of Columbia Statute of Frauds provides in pertinent part:

 
An action may not be brought . . . to charge a person . . . upon an agreement that is not to be performed within one year from the making thereof, unless the agreement upon which the action is brought, or a memorandum or note thereof, is in writing, which need not state the consideration and signed by the party to be charged therewith or a person authorized by him.

 D.C. Code § 28-3502 (1981). The alleged contract at issue in this case was not to be performed within one year from the making thereof. Therefore, in order to bring an action pursuant to this contract, "the agreement upon which the action is brought, or a memorandum or note thereof" would have to be in writing. Id.

 Plaintiff cites Farrow v. Cahill, 214 U.S. App. D.C. 24, 663 F.2d 201 (D.C. Cir. 1980) for the proposition that although a contract contemplating long-term employment does require a writing, the writing does not have to be the contract itself but can be another writing confirming the oral agreement. In Farrow, two Washington attorneys appealed the district court's decision to enforce a written agreement that they had reached with an Oakland, California law firm, their former employer, to buy that firm's Washington branch office. Id. at 202. A detailed "Memorandum Agreement" was drawn up which provided that the two Washington attorneys would take over the Washington practice and would pay the law firm a percentage of their gross receipts for a term of years. Id. at 203 n.3, 204. The United States Court of Appeals for the District of Columbia found that the "Memorandum Agreement" satisfied the Statute of Frauds. Id. at 210. The court emphasized that the statute does not require the contract itself to be in writing as long as the existence of a contract on the terms contained in the written document is independently proved. Id.

 In the instant case, plaintiff argues that Form 35 "clearly stated all of the basic terms of the agreement he and Harold Graham [the department head at Amtrak] had previously reached, including the duties Prouty was to perform, the date of his employ, and his rate of pay." Plaintiff's Opposition at 11. The Court finds this form insufficient to satisfy the Statute of Frauds. Plaintiff alleges that he was not treated in accordance with the contractual agreement he had with Amtrak, primarily during the period 1975-1981, in the areas of compensation, evaluation, and promotion. Id. at 15. Form 35 was prepared and executed on February 25, 1972. It is silent on the issues of promotion and evaluation and, in the area of compensation, only indicates plaintiff's annual salary. Moreover, the form does not indicate the existence of a long-term contract but at most, the existence of an employment contract terminable at will. It is simply the type of form that new employees typically are required to fill out when they accept a position with a new company. Because plaintiff's breach of contract claim arises out of ...


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