performance is a credible and supported reason for his termination, which plaintiff has not adequately controverted. Plaintiff asserts that the Chamber's financial position was not as severe as defendant claims; that during this time the Chamber engaged in an extensive construction project without borrowing funds, Lesher Dep. at 23-24; Plaintiff Exh. 11, that membership increased, Lesher Dep. at 33, Plaintiff Exh. 13 p. 4; and that the Chamber had a large sum in its investment fund. Plaintiff Exh. 15. However, the Court finds that plaintiff has not effectively discredited the Chamber's assertion that it was experiencing financial difficulties, as is amply supported by defendant's exhibits and testimony about the financial picture and overall cost-cutting measures taken to meet the problem. For example, the investment fund actually decreased substantially from several years before, Lesher Tr. at 8, and plaintiff's expert accountant failed to consider the Chamber's fiscal concerns. Seay Tr. at 106-08. Finally, the Chamber was prohibited from financing its capital improvements by borrowing. The Court does not sit to judge the wisdom of a corporation's business decisions. Stacey v. Allied Stores Corp., 247 U.S. App. D.C. 285, 768 F.2d 402, 408 (D.C. Cir. 1985). The ADEA was not intended as a vehicle for judicial review of business decisions such as how the Chamber should have allocated its resources. See Parcinski, 673 F.2d at 37; Kephart, 630 F.2d at 1223.
The Court views in a like manner the Chamber's decision to hire Shonerd a short time after plaintiff's termination. The Court already has concluded that the two positions were not comparable. Selected hires were made where needed, Kraus Aff. at para. 11, and due to a resignation the Special Publications Department was barren. The Chamber did not seek only younger people for the position; people over 40 were interviewed as well. Stauffer Tr. at 265.
Plaintiff has not submitted any other evidence tending to show that age played a role in the Chamber's decision, including any statistical pattern of age discrimination or any other alleged instance of age discrimination. Therefore, the Court finds that plaintiff has not supported his burden of showing by a preponderance of the evidence that the defendant's reasons were pretextual and that age was a determining factor in the decision to terminate plaintiff. Accordingly, summary judgment is granted for defendant on plaintiff's ADEA claim.
The Court also grants summary judgment for defendant on plaintiff's breach of contract and breach of an implied covenant of good faith and fair dealing claims.
The law of the District of Columbia is that "contracts . . . for no definite period are terminable at the will of either party with no ensuing liability on the part of either." Pfeffer v. Ernst, 82 A.2d 763, 764 (D.C. 1951). See also Taylor v. Greenway Restaurant, Inc., 173 A.2d 211, 211 (D.C. 1961). The assumption underlying a terminable at will contract is that "even though they speak in terms of permanent employment the parties have in mind merely the ordinary business contract for a continuing employment terminable at will of either party." Sullivan v. Heritage Foundation, 399 A.2d 856, 860 (D.C. 1979) (quoting Littell v. Evening Star Newspaper Co., 73 App. D.C. 409, 120 F.2d 36, 37 (D.C. Cir. 1941). Such an assumption, however, is incorrect where there is evidence of the parties' intent to contract otherwise. Hodge v. Evans Financial Corp., 228 U.S. App. D.C. 161, 707 F.2d 1566, 1569 (D.C. Cir. 1983); Littell, 120 F.2d at 37. The Hodge court stated: "In order to discern the parties' intent, the court should look at such factors as the express terms of the contract, evidence of surrounding circumstances, or the existence of additional consideration." 707 F.2d at 1569. It is a basic principle of contract law that the intent of the parties must be determined from both sides and there has been "no meeting of the minds where only one party intends a certain element." See Banze v. American International Exports, Inc., 454 A.2d 816, 817 (D.C. 1983).
Both parties agree that plaintiff's contract was for no definite length of time. Plaintiff argues, however, that the contract was not an at will contract, but instead was one that could be terminated only for just cause. Plaintiff argues that, upon beginning employment with defendant in 1965, he was given a 60-day "get acquainted" period. Plaintiff Exh. 17. Plaintiff also relies on a 1977 pamphlet referring to a Chamber policy to promote from within, whenever possible, Plaintiff Exh. 8, and an undated policy paper which stated that in the event of a reduction in force an employee would be transferred to another position, commensurate with his qualifications, if such was available. Plaintiff Exh. 16. Plaintiff also testifies that an oral statement was made to him at the time of his employment that after the get-acquainted period he would become a permanent member of the staff and would only be let go for cause. Smith Aff. para. 16.
For the reasons set forth in the Court's discussions about plaintiff's inability to present the prima facie case requirement that he was qualified, the Court also finds that plaintiff was terminated for just cause. However, the Court also finds that even without this just cause no breach of contract action could lie because the contract for employment was an "at will" contract and not a contract for permanent employment. The Chamber brochures, which have not been distributed for some time, and which were not given to plaintiff upon his transfer into his last position, Kraus Aff. at para. 26, Smith Tr. at 139-40, do not create a contract that was terminable other than at will. See Paice v. Maryland Racing Commission, 539 F. Supp. 458, 461 (D. Md. 1982); Rogers v. International Business Machines Corp., 500 F. Supp. 867, 869 (W.D. Pa. 1980) ("Reliance on the vague and conclusory statements contained in the material of record is insufficient as a matter of law to establish a specific term of employment.") Additionally, the oral statement plaintiff alleges was made to him in 1965 also does not create other than an at-will contract. See Paice, 539 F. Supp. at 461 ("Nor is the court persuaded that the alleged representations made to plaintiff when he was initially hired [in 1959] as to the anticipated duration of his employment . . . create a reasonable inference that there was a mutually expressed understanding that in 1981 plaintiff would not be terminated without cause.") See also Prouty v. National Railroad Passenger Corp., 572 F. Supp. 200 (D.D.C. 1983).
Finally, the reduction-in-force/transfer policy statement, which is undated (precluding the Court from determining whether it might apply to the time period in question), does not give plaintiff a cause of action, assuming arguendo that it did constitute a policy in force at the time of the termination. The Chamber's documented dissatisfaction with plaintiff's performance provides sufficient justification for defendant's lack of consideration of transfer possibilities, even assuming another job was available that would have been appropriate.
Summary judgment for defendant also is granted on plaintiff's alleged tort claim for breach of an implied covenant of good faith and fair dealing. The law of the District of Columbia is stated in Ivy v. Army Times Publishing Co., No. 8018-77, Mem. Op. at 3, petition for rehearing en banc denied, 428 A.2d 831 (D.C. 1981), in which the District of Columbia Court of Appeals held: "While some jurisdictions have recognized a cause of action for wrongful discharge in tort, and in contract, this jurisdiction allows an employment contract of indefinite duration to be terminated for any reason at the wish of either party. There is no evidence that appellant's oral contract was for a fixed period; it could therefore have been terminated at will by appellees without incurring liability." Id., Mem. Op. at 3 (citations omitted).
Plaintiff argues that the decision in Eller v. Houston's Restaurants, Inc., 35 F.E.P. 1801 (D.D.C. 1984), directs a different result. However, in Eller, the Court found there were genuine issues of material fact in dispute as to whether the employment contract was terminable at will rather than only for cause and so declined to grant summary judgment on the wrongful discharge claims. Id. at 1802. This Court previously has found that plaintiff's employment contract was for no fixed period, nor was it one for permanent employment; summary judgment must be granted to defendant on this claim.
For the reasons set forth above, the Court grants defendant's motion for summary judgment in its entirety. An appropriate Order to such effect accompanies this Memorandum Opinion.
Stanley S. Harris, United States District Judge
[EDITOR'S NOTE: The following court-provided text does not appear at this cite in 645 F. Supp.]
This matter is before the Court on defendant's motion for summary judgment on plaintiff's claim that his termination violated the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq., and plaintiff's claims of breach of contract and breach of an implied covenant of good faith and fair dealing. Upon careful consideration of the pleadings, exhibits and the entire record, for the reasons set forth in the accompanying Memorandum Opinion the Court concludes that there is no genuine issue of material fact in dispute and that defendant is entitled to judgment as a matter of law. Accordingly, it hereby is
ORDERED, that defendant's motion for summary judgment is granted in its entirety. The case is dismissed with prejudice.
Stanley S. Harris, United States District Judge.