parties must have engaged in "a bargain in which there [was] a manifestation of mutual assent to the exchange and a consideration." Restatement (Second) of Contracts, § 17(1) (1981). For the parties to have manifested their mutual assent, they must have exchanged promises. See id. at § 18. The Restatement defines a promise as "a manifestation of intention to act or refrain from acting in a specified way, so made as to justify a promisee in understanding that a commitment has been made." Id. at § 2(1).
In analyzing Mr. Russell's claim of oral contract, the Court must determine whether Mr. Russell was "justified" in understanding that Mayor Barry was making a legally enforceable promise by stating to a crowd of SEH employees that all temporaries would be made permanent. To do so, the Court must look at the context of the mayor's statement. See Ottenberg v. Ottenberg, 194 F. Supp. 98, 105 (D.D.C. 1961) ("the ascertainment of the intent of the parties is gathered from the language of the contract and the attendant circumstances at the time of entering the contract") (citations omitted); Choctaw Nation v. United States, 128 Ct. Cl. 195, 121 F. Supp. 206, 211 (1954) ("It is the duty of the court . . . to look not only at the language employed, but to the subject-matter and the surrounding circumstances." (quoting Choctaw Nation v. United States, 91 Ct. Cl. 320, 369-70 (Cl. Ct. 1940), cert. denied, 312 U.S. 695, 61 S. Ct. 730, 85 L. Ed. 1130 (1941)). The Court must also determine what a reasonable person would understand the mayor to have meant under the circumstances. See S. Williston, Williston on Contracts § 21 (3d ed. 1957). Mayor Barry's statement was not made to Mr. Russell alone, it was made to "several hundred St. Elizabeths Hospital employees," see Plaintiff's Opposition, Exhibit 1, at 1. The statement, in the Court's opinion, was in the nature of a campaign promise, which would not have been interpreted by most listeners as creating a legally binding contract. Mr. Russell has presented no evidence of any personal representations by the mayor that his specific appointment would be converted to permanent status. The Court thus finds that not only was it unreasonable for Mr. Russell to believe that Mayor Barry had made a legally enforceable promise, but also that Mr. Russell had reason to know that the mayor would not intend for his statement to be legally binding. The Court is well aware that a party need not intend to be legally bound in order for a promise to be enforceable, see Restatement § 21; however, if parties attach different meanings to a statement, neither will be bound by the other's interpretation unless one of them knows or has reason to know of the other's meaning. See id. at § 201. In this case, because Mr. Russell had reason to know that Mayor Barry would not intend for his statement to create a binding contract, there could be no mutual assent and no contract. Accordingly, the Court grants defendants' motion for summary judgment on Count VI.
E. Plaintiff's Claim of Intentional Infliction of Emotional Distress
In Count VII of his amended complaint, Mr. Russell alleges that defendants' actions have been "intentional and calculated to cause both pecuniary damages and emotional distress." Amended Complaint at 7. The defendants claim that, as a matter of law, this allegation falls "woefully short" of establishing a cause of action for this tort. Defendants' Memorandum at 27. The Court agrees.
To succeed in proving intentional infliction of emotional distress in the District of Columbia, a plaintiff must show "'(1) "extreme and outrageous" conduct on the part of the defendant which (2) intentionally or recklessly (3) causes the plaintiff "severe emotional distress."'" District of Columbia, et al. v. Patricia Joan Thompson, 570 A.2d 277, 289-90 (D.C. 1990) (quoting Sere v. Group Hospitalization, Inc., 443 A.2d 33, 37 (D.C.) (quoting Restatement (Second) of Torts § 46 (1965)), cert. denied, 459 U.S. 912, 74 L. Ed. 2d 176, 103 S. Ct. 221 (1982)). The standard is very high, applying only to "acts '"so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency."'" Id. at 25 (quoting Jackson v. District of Columbia, 412 A.2d 948, 957 (D.C. 1980) (quoting Restatement (Second) of Torts § 46 comment d)). To determine whether a defendant's conduct is "outrageous," a court must consider "the nature of the activity." Id.
According to plaintiff's opposition, Mr. Russell did not know that his employment was temporary and was not told he could do something to retain his employment once he was notified of his impending termination. The record indicates, however, that each of Mr. Russell's "Personnel Action" statements clearly stated the temporary or term nature of his appointment. When hired in 1987 by the federal government, Mr. Russell's personnel action form stated that the appointment would expire on September 30, 1987. When hired by the District on October 1, 1987, Mr. Russell's personnel action form clearly stated "Temporary Appointment" and the box for "Employment Type" was marked with a "3," indicating "Full-Time Temp." When rehired by the District on October 1, 1988, Mr. Russell's personnel action form stated "Conv To Term Appt" and indicated in the "Remarks" box that it was a "Term Appointment Exp 10/25/89." The Court thus finds it difficult to believe that Mr. Russell did not know his employment was limited in duration.
Mr. Russell also argues that he was not told how to retain his employment. Defendants, however, allege that Mr. Russell's supervisor informed Mr. Russell in the spring of 1989 that all future term employment would be by competition and that his term would expire if he did not apply for a position that would soon be listed in a vacancy announcement. It is undisputed that Mr. Russell became aware of, and applied for, the position of firefighter prior to his termination date. Thus, this Court holds that as a matter of law, even if defendants failed to personally inform Mr. Russell that his employment was temporary and that he should apply for a fire fighter vacancy, this would not rise to the level of "extreme and outrageous" conduct to establish a claim of intentional infliction of emotional distress. Therefore, defendant's motion for summary judgment on Count VII of the amended complaint is granted.
Having carefully reviewed the record in this case, the Court, construing the facts in the light most favorable to Mr. Russell, holds that Mr. Russell has stated a claim for relief under 42 U.S.C. § 1981 for racial discrimination and under 42 U.S.C. § 1983 for retaliation. With respect to these claims there are genuine issues of material facts in dispute that require the Court to deny defendants' motion for summary judgment on these claims. The Court further holds that Mr. Russell has not stated a claim under 42 U.S.C. § 1981 for retaliation, nor has he stated claims for violation of the Mental Health Services Act, breach of contract, and intentional infliction of emotional distress. Accordingly, the Court grants defendants' motion for summary judgment with respect to these counts of Mr. Russell's amended complaint.
ORDER - September 25, 1990, Filed
In accordance with the memorandum opinion issued herewith and for the reasons stated therein, it is this 24th day of September, 1990,
ORDERED that Defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment is DENIED with respect to Counts II and IV of Plaintiff's Amended Complaint and GRANTED with respect to Counts III, V, VI, and VII of Plaintiff's Amended Complaint; and it is
FURTHER ORDERED that Defendants' Motion for a Protective Order is DENIED as moot.