"bumps" were changed shortly before the reduction-in-force and (2) that defendant should have more vigorously explored alternative job opportunities for plaintiff. In light of the undisputed circumstances of Firestone's closing of its Washington office, Firestone's option to discharge plaintiff at will, the undisputed efforts which defendant did make to locate alternative employment for plaintiff, and the fact that defendant both paid for the outplacement seminar and kept the D.C. office open for an extra month, plaintiff's proffers are insufficient to sustain a separate claim of breach of any covenant to act fairly and in good faith. Evidence of such an obligation and defendant's actions related thereto will, however, be admissible to inform the claim that defendant violated plaintiff's right to due consideration of his service credits.
The Court has not overlooked plaintiff's claims based on Firestone's alleged tort liabilities. These claims are without merit.
With respect to plaintiff's tort claim of wrongful or "abusive" discharge, defendant correctly notes that the District of Columbia jurisdictions have not recognized a tort action for such discharge. See Weaver v. Gross, 605 F. Supp. 210, 216 (D.D.C. 1985); Ivy v. Army Times Publishing Co., 428 A.2d 831 (D.C. App. 1981). Even if such an action were cognizable in this jurisdiction, plaintiff's attempt to bring such a claim to the jury must fail for the same reasons that plaintiff will not be permitted to argue a separate claim of breach of a covenant to act in good faith. Plaintiff's challenge to particular aspects of the manner rather than the fact of the discharge is largely subsumed in his claim (informed by the alleged covenant to act fairly and in good faith) that defendant breached a contractual duty to consider service credits in making transfer or termination decisions.
Regarding plaintiff's claim based on intentional infliction of emotional distress, even if that claim is not pre-empted by the D.C. Workman's Compensation laws, the undisputed facts reveal no basis for submitting that claim to the jury. Plaintiff has failed to demonstrate an ability to satisfy the heavy burden borne by one seeking damages for the intentional infliction of emotional distress; reasonable men could not conclude upon examination of the undisputed facts that defendant's conduct was "wanton, outrageous in the extreme, or especially calculated to cause serious mental distress." Sztan v. Seilers Corporation, 608 F. Supp. 344, 346 (D.D.C. 1985) (citation omitted).
Defendants also correctly note that plaintiff's claim of grossly negligent conduct is barred by the D.C. Workman's Compensation laws; even if it were not, it is insufficient on the undisputed facts to go to the jury. Plaintiff himself has conceded that he was treated "professionally," and it is not disputed that defendant made efforts to locate alternative positions for plaintiff and to ease the stress of his termination by, inter alia, postponing the date of termination and sending him to an outplacement seminar. These uncontested facts do not present the type of situation in which a tort claim of "gross negligence resulting in extreme emotional distress" can be sustained. Compare Saunders v. Air Florida, Inc., 558 F. Supp. 1233, 1236 (D.D.C. 1983). Plaintiff's citation of dicta from Chesapeake & Potomac Tel Co. v. Clay, 90 U.S. App. D.C. 206, 194 F.2d 888, 890 (D.C. Cir. 1952) for the proposition that he may recover for emotional distress wrought by financial loss is not persuasive, given the more recent expressions of the parameters of the tort action. See, e.g., Saunders, supra.
For all of the above reasons, the accompanying order will dismiss all of plaintiff's claims except that which alleges breach of a contractual obligation to give "due consideration" to plaintiff's service credits in the course of decisions on transfer or termination.
For the reasons stated in an accompanying Memorandum and in consideration of the parties' pleadings and the entire record herein, it is this 20th day of February, 1986, hereby
ORDERED: that defendant's motion for leave to file amended answer should be, and hereby is, GRANTED; and it is further
ORDERED: that defendant's motion to dismiss, or, in the alternative for summary judgment, should be, and hereby is, GRANTED IN PART and DENIED IN PART; and it is further
ORDERED: that Counts IV, V, VI, and VII of plaintiff's complaint should be and hereby are, DISMISSED; leaving the claim in Count VIII that defendant breached a duty to give due consideration to plaintiff's service credits to be addressed at the trial scheduled to commence March 3, 1986, at 9:30 A.M. in Courtroom No. 3, U.S. Courthouse, Washington D.C.; and it is further
ORDERED: that counsel shall attend a supplemental pretrial conference at 2:00 P.M. on February 21, 1986 in chambers.