are surprised plaintiff himself has not recognized the awkwardness of this position.
Since defendants, however, have not moved for summary judgment on this aspect of plaintiff's retaliation claim, we do not grant them relief at this time. We invite defendants to file a formal motion on this single remaining claim of retaliation.
C. Denial of Facilities and Training
Plaintiff's claim of disparate treatment in defendants' provision of facilities and training incorrectly assumes similar situation. Schoen's position is one of temporary Senior Accountant. The employees against whom he compares himself are in permanent jobs. Defendants' denial to Schoen of certain facilities
and training offered
these permanent employees therefore does not represent disparate treatment of employees who are similarly situated.
The fact that it was defendants who placed Schoen in this temporary position does not enable plaintiff to overcome the defects of his prima facie case. As discussed above, we find no evidence of age discrimination in Schoen's reassignment. Defendants therefore are not attempting to "piggyback one discriminatory act upon another." Pl. Opp. at 22. Plaintiff may indeed suffer the degradation of menial tasks, but his unique position over many years indicates that he has accepted these hazards. Having failed to establish a prima facie case of actionable retaliation, plaintiff is not entitled to summary judgment on this third claim.
III. Breach of Contract
Plaintiff's breach of contract claim includes two allegations. First, in Count III of his complaint, plaintiff charges defendants with breaching their guaranty of lifetime employment with no reduction in salary. Second, in his motion for summary judgment, plaintiff claims defendants breached their employment contract with him by failing to follow their own disciplinary procedures.
A. Lifetime Employment Without Salary Reduction
The only issue here is whether defendants were obligated by contract to maintain Schoen's salary. Schoen has never left defendants' service. Thus, his claim that defendants breached a promise to provide lifetime employment fails to state a claim upon which relief can be granted.
The record further reveals no evidence of a contract prohibiting defendants from reducing Schoen's salary. In general we must assume that the parties intended an ordinary business contract, unless the parties express a contrary intent. See Littell v. Evening Star Newspaper Co., 73 App. D.C. 409, 120 F.2d 36, 37 (D.C. Cir. 1941). Schoen admits that he had no written contract of employment but was hired into an ordinary at-will relationship. See Def. Statement of Material Facts, para. 1. The only written statement by defendants on the issue of salary reductions not only fails to proscribe but even permits such action. See CUG Community Guidelines, Def. Ex. 16, at 34; Def. Memo. at 47 & n. 9.
Plaintiff's reliance on the resolution adopted by the CUG Board is misplaced. On November 4, 1983, four members of the Board passed a resolution to maintain the salaries of CUG employees who are removed. However, this Board meeting lacked a quorum. Since CUG is a Delaware corporation, a majority of the total number of directors makes up a quorum. Del. Corp. Law Ann. § 141(b)(1984); CUG By-Laws, Def. Ex. 19, at 8. On November 4, 1983, there were twelve authorized directors of CUG, Hopkins Dep. at 103, of whom only five were present at the meeting. This lack of a quorum renders the resolution that was passed void and of no force and effect. See Belle Isle Corp. v. MacBean, 29 Del. Ch. 261, 49 A.2d 5, 9 (1946); Mecleary v. John S. Mecleary, Inc., 13 Del. Ch. 329, 119 A. 557, 559 (1923).
Plaintiff has not shown that the November 4, 1983 resolution, although itself void, was merely confirming a policy that already existed. Plaintiff emphasizes the October 24, 1983 report of Charmaine Carter that "long standing CUG policy" guaranteed salary maintenance. See Pl. Ex 19. This memorandum, which cites no written statement but reflects Carter's personal opinion, hardly demonstrates CUG policy.
B. Disciplinary Procedures
Defendants' argument that the standard disciplinary procedures do not apply to Schoen's demotion oversimplifies the actions against Schoen. Plaintiff claims, and defendants do not dispute, that defendants frequently acted in an informal fashion and failed to follow the disciplinary procedures set out in the CUG Community Guidelines. The Guidelines provide for a series of notices and a probationary period before an employee is terminated. The fact that these procedures apply only to terminations does not alone excuse defendants' bypassing them. To be sure, the end result of plaintiff's career transition was demotion -- reassignment to the position of Senior Accountant. Yet this ultimate outcome cannot erase the nine months, from the November 1983 meeting with Gibbons and Clark to the August 1984 Hopkins memorandum that for the first time offered the possibility of another position within the company, during which Schoen was under an obligation to seek another job since there was "no place" for him at CUG. Schoen Aff. at para. 9. Had Schoen found other employment, defendants would have terminated him without following the requisite procedures. They should not be allowed to benefit from the fortuity that Schoen remained at CUG until they decided to demote him instead.
Defendants' failure to follow required procedures, however, does not represent actionable breach of contract. The key focus is on the parties' intent at the time of contract. See Hodge v. Evans Financial Corp., 228 U.S. App. D.C. 161, 707 F.2d 1566, 1568 (D.C. Cir. 1983); Littell, 120 F.2d at 37. While policy statements or personnel guidelines may reach the level of contractual obligation, see Greene v. Howard University, 134 U.S. App. D.C. 81, 412 F.2d 1128, 1133 n.4 (D.C. Cir. 1969); Washington Welfare Association, Inc. v. Wheeler, 496 A.2d 613, 615 (D.C. 1985), these procedures were not bargained for at any time and were not a part of Schoen's employment contract when he was hired. They were unilaterally adopted by CUG twelve years later. Although some courts have held that personnel policies adopted after the hiring may modify the terms of the initial contract, see Barger v. General Electric Co., 599 F. Supp. 1154 (W.D. Va. 1984), no District of Columbia court has so held, and we do not believe that Schoen offered the consideration necessary to make binding for his benefit the additional promises contained in the Guidelines. See Murray v. Lichtman, 119 U.S. App. D.C. 250, 339 F.2d 749 (D.C. Cir. 1964) (promise to perform pre-existing duties not sufficient consideration for agreement to alter obligation). We conclude that since the guidelines did not exist at the time of Schoen's original employment contract, they do not bind defendants in their dealings with Schoen. And in the absence of a contractual obligation to follow their own disciplinary procedures, defendants could not have breached their contract with Schoen. Similarly, Schoen's lack of any contractual rights to full salary or disciplinary procedures dooms his claim of intentional interference with contract. We grant summary judgment for defendants on Counts III and IV.
IV. Intentional Infliction of Emotional Distress
Plaintiff fails to support the elements of his claim for intentional infliction of emotional distress. In the District of Columbia, it is settled that this tort consists of "(1) 'extreme and outrageous' conduct on the part of the defendant which (2) intentionally or recklessly (3) causes the plaintiff 'severe emotional distress.'" Sere v. Group Hospitalization, Inc., 443 A.2d 33, 37 (D.C. 1982) (quoting Restatement (Second) of Torts § 46 (1965)). Plaintiff cannot master the first requirement.
We find that defendants' actions, while perhaps somewhat insensitive and unfair, do not approach the level of "extreme and outrageous" conduct. As defendants note, adverse actions taken against an employee by an employer do not necessarily constitute "extreme and outrageous" behavior. See, e.g., Shewmaker v. Minchew, 504 F. Supp. 156, 163 (D.D.C. 1980)(no intentional infliction of emotional distress in demotion and harassment); Waldon v. Covington, 415 A.2d 1070, 1077-78 (D.C. 1980) (no intentional infliction of emotional distress in university's harassment of professor). Plaintiff's citation to cases where proof of racial or sexual harassment may create a prima facie case of intentional infliction, see Pl. Opp. at 51-52, does not aid him. As we discussed above, plaintiff has failed to prove discriminatory harassment. Furthermore, the actions of which plaintiff complains -- breach of confidentiality, dismissal without prior disciplinary procedures, "an unbroken string of humiliations and attempts to force Plaintiff Schoen to resign" Pl. Opp. at 53-55 -- simply do not satisfy the standard for liability. The tort of intentional infliction of emotional distress requires "conduct that goes 'beyond all possible bounds of decency and [is] regarded as atrocious and utterly intolerable in a civilized community." Waldon, 415 A.2d at 1076 (quoting Restatement (Second) of Torts § 46, comment d). While we do not necessarily commend defendants' treatment of Schoen, we cannot conclude that their actions amount, if anything, to more than "mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities" -- to which liability does not extend. 415 A.2d at 1076. We grant summary judgment for defendants on this count.
V. Promissory Estoppel
Plaintiff contends that the doctrine of promissory estoppel should bar defendants from reneging on their promise of lifetime employment with no salary reduction. In order to establish a claim for promissory estoppel, plaintiff must show that defendants made a promise (1) which they expected or should have reasonably expected would induce action of a definite and substantial character by Schoen, (2) which in fact induced such action, and (3) in circumstances requiring enforcement of the promise to avoid injustice. Oates v. Teamsters Affiliates Pension Plan, 482 F. Supp. 481 (D.D.C. 1979). Plaintiff is still employed and, more importantly, cannot show that defendants made any promise not to reduce his salary. As we have discussed, CUG never adopted such a policy. Without a formal declaration of corporate policy, CUG cannot be said to have promised anything.
The only "promise" of salary maintenance came too late. On November 4, 1983 the Board, acting without a quorum, resolved not to cut the salaries of demoted employees. Even if we accept plaintiff's argument that the frequent lack of a quorum estops defendants from claiming reliance on this resolution was unreasonable, Schoen could not have relied to his detriment on this promise. Several weeks earlier defendants had removed the last of Schoen's responsibilities and had told him to seek alternative employment. Effectively terminated at this point, Schoen could not claim he relied on a subsequent promise of no salary reduction.
VI. Fraud and Misrepresentation
We grant summary judgment for defendants on plaintiff's claim of fraud and misrepresentation for the same reasons that we grant summary judgment on the promissory estoppel claim. Without a stated policy of maintaining employee's salaries, and without evidence of any such representations to Schoen, plaintiff has not offered a scintilla of evidence of fraud on the part of defendants.
VII. Breach of the Implied Covenant of Fair Dealing
Finally, we grant defendants' motion for summary judgment on plaintiff's claim that defendants breached the implied covenant of fair dealing. While a minority of jurisdictions recognize this cause of action, see, e.g., Cancellier v. Federated Department Stores, 672 F.2d 1312, 1318 (9th Cir. 1982), cert. denied, 459 U.S. 859, 74 L. Ed. 2d 113, 103 S. Ct. 131 (1982) (applying California law); Mitford v. DeLasala, 666 P.2d 1000 (Alaska 1983); Fortune v. National Cash Register Co., 373 Mass. 96, 364 N.E. 2d 1251 (1977), the District of Columbia has never joined this group. The facts of this case do not convince us to introduce a new cause of action as yet unrecognized in this jurisdiction, particularly where defendants were free to terminate at any time their at-will employment contract with Schoen.
We do not doubt that defendants' actions have caused Schoen hurt, embarrassment and financial loss. Our role, however, is to award relief only where such injuries derive from unlawful conduct. With the exception of the second part of the retaliation claim, defendants have demonstrated the absence of any liability. We therefore grant summary judgment for defendants on all but that aspect of the retaliation count involving Schoen's removal as Secretary of the Board.
An order consistent with the foregoing has been entered this day.
Upon consideration of plaintiff's motion for summary judgment on Counts III and IX of the complaint and defendants' motion for summary judgment on all counts, the briefs and the record herein, and, for reasons set out in the accompanying memorandum opinion, finding with respect to Counts I through VIII and that portion of the claim in Count IX relating to the removal of plaintiff as Administrator of the Pension Plan and denial of facilities and training that there is no genuine issue as to any material fact and that defendants are entitled to judgment as a matter of law, it is by the court this 6th day of June, 1986,
ORDERED that with respect to Counts I through VIII and that portion of Count IX relating to the removal of plaintiff as Administrator of the Pension Plan and to denial of facilities and training, defendants' motion is granted and summary judgment shall be entered in favor of defendants, and it is
ORDERED that plaintiff's motions for summary judgment on Counts III and IX are denied, and it is
FURTHER ORDERED that with respect to plaintiff's claim of retaliation in his failure to be re-elected as Secretary of the Board of Trustees, defendants shall, within 30 days of the date of this order, file a motion for summary judgment, to which plaintiff shall have 10 days to respond.