the Statement is not so straightforward "that no one could reasonably have thought [the manual] was intended to create legally binding obligations." Id. at 299. Nicosia, 136 N.J. at 413.
b. implied contract
Defendants argue further that even should the disclaimers be found ineffective, they are entitled to summary judgment as to plaintiff's first claim because no jury could find that Sellitto had a reasonable expectation that the progressive discipline provisions of the Manual and Handbook applied to him.
In Witkowski, supra, decided on the same day as Nicosia, the New Jersey Supreme Court considered an employee's claim that an employment manual created an implied contract under Woolley. The trial court had granted summary judgment in favor of the employer, but the Supreme Court reversed, reiterating that "under Woolley, the basic test for determining whether a contract of employment can be implied turns on the reasonable expectations of employees." Witkowski, 136 N.J. at 136.
As here, the job security provisions of the employment manual at issue in Witkowski were detailed and comprehensive, and the employer had distributed the manual widely. Thus material issues of fact arose as to the reasonable expectations of employees and the existence of an implied contract, issues which could not be decided on a motion for summary judgment. See Witkowski, 136 N.J. at 399 (recognizing difficulty of deciding Woolley claims at summary judgment stage).
Defendants' motion for summary judgment is denied as to plaintiff's claim for a breach of the implied contract of employment, which is an issue of material fact to be determined at trial.
2. Breach of covenant of good faith and fair dealing
The second count of the Complaint asserts that Airtron's failure to provide plaintiff a performance evaluation in March 1991 violated the implied covenant of good faith and fair dealing. In his brief, plaintiff seeks to expand this count to encompass Airtron's failure to honor its progressive discipline procedures as described in the Handbook and Manual and its failure to support some of plaintiff's management initiatives.
Defendants contend first that because there is no contract there can be no covenant; second, that even should an implied contract be found to exist, because the performance evaluations of all employees were postponed, the covenant as to Sellitto was not breached; third, Airtron's alleged failure to support plaintiff's management initiatives breached no covenant; and fourth, Airtron's failure to honor its progressive discipline procedures would violate express terms of the employment contract, therefore breaching the implied contract, not the implied covenant.
The New Jersey Supreme Court has recognized an implied covenant of good faith and fair dealing in every contract. Onderdonk v. Presbyterian Homes of New Jersey, 85 N.J. 171, 182, 425 A.2d 1057 (1981); Bak-A-Lum Corp. of America v. Alcoa Building Products, Inc., 69 N.J. 123, 129-130, 351 A.2d 349 (1976). "Terms will be implied in a contract where the parties must have intended them because they are necessary to give business efficacy to the contract as written." New Jersey Bank v. Palladino, 77 N.J. 33, 46, 389 A.2d 454 (1978). See Marini v. Ireland, 56 N.J. 130, 265 A.2d 526 (1970) (intent of parties is of "primary importance" in determining what covenants are implied). In the absence of a contract, there is no implied covenant of good faith and fair dealing. Noye v. Hoffmann-La Roche, Inc., 238 N.J. Super. 430, 570 A.2d 12 (App. Div. 1990), certif. denied, 122 N.J. 146, 584 A.2d 218 (1990).
Defendants are correct that their failure to follow the progressive discipline procedures of the Handbook and Manual would violate express, not implied, terms of an employment contract, if a jury finds such contract exists.
In opposition to the instant motion, plaintiff offers no facts showing the intention of the parties regarding the scheduling of performance evaluations or support for management initiatives. There is thus no material issue of fact. F.R.Civ.Proc. 56(e).
As a matter of law, in the absence of proof that the parties intended to contract for a performance evaluation in March 1991 or for Airtron's support of plaintiff's management initiatives, there can be no breach of an implied covenant of good faith and fair dealing. See Fregara v. Jet Aviation, 764 F. Supp. at 954, n. 8 (noting that New Jersey does not recognize cause of action for "negligent evaluation").
Defendant is granted summary judgment as to plaintiff's claim of breach of an implied covenant of good faith and fair dealing.
3. Negligent or intentional infliction of emotional distress
The third count of the Complaint contends that Airtron acted "to demoralize and discourage" plaintiff, and that upon the loss of his job Sellitto suffered extreme emotional anguish. Defendants argue that plaintiff has not established the elements of negligent or intentional infliction of emotional distress. For the reasons stated below, summary judgment is granted in favor of defendant.
New Jersey courts follow the definition of the Restatement (2d) of Torts, § 46 (1965) for the intentional infliction of emotional distress. Buckley v. Trenton Savings Fund Soc., 111 N.J. 355, 544 A.2d 857 (1988). To prevail, a plaintiff must prove "intentional and outrageous conduct by defendant,
proximate cause, and distress that is severe."
Id. at 366, relying. on M. Minzer, Damages in Tort Actions, vol. I, § 6.12 at 6-22 (1987). The act must be "'so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.'" Id. at 366, quoting Restatement, supra, § 46, comment d.
Plaintiff has offered no evidence indicating that the circumstances of his discharge rise to the level of intentional and outrageous conduct. Even assuming that plaintiff was discharged in breach of an implied contract providing for progressive discipline, on the facts presented to this court, no jury could reasonably find that such conduct is "beyond all possible bounds of decency," "atrocious," and "utterly intolerable in a civilized community." Id. See Cox v. Keystone Carbon Co., 861 F.2d 390, 395 (3d Cir. 1988), ("it is extremely rare to find conduct in the employment context which will rise to the level of outrageousness necessary to provide a basis for recovery"); Cautilli v. G.A.F. Corp., 531 F. Supp. 71 (E.D.Pa. 1982) (denying summary judgment under New Jersey law for intentional infliction of emotional distress in employment context).
Nor has plaintiff demonstrated severe distress resulting from defendant's conduct. The Complaint alleges that plaintiff suffers "loss of sleep, inability to concentrate, loss of appetite, anxiety, nervousness, depression and other assorted debilitating physical and emotional ailments." In response to defendant's interrogatory regarding the factual basis for his claim, plaintiff failed to elaborate: "The emotional, physical and financial impact on my family and me has been enormous and severe." See Fregara, 764 F. Supp. at 957; Buckley, 111 N.J. at 369. This evidence is insufficient as a matter of law to establish mental distress that "was so severe no reasonable could be expected to endure it." Id. at 368.
The elements for proof of negligent infliction of emotional distress in New Jersey are
(1) the death or serious physical injury of another caused by defendant's negligence; (2) a marital or intimate, familial relationship between plaintiff and the injured person; (3) observation of the death or injury at the scene of the accident; and (4) resulting severe emotional distress.
Portee v. Jaffee, 84 N.J. 88, 101, 417 A.2d 521 (1980). See Carey v. Lovett, 132 N.J. 44, 56, 622 A.2d 1279 (1993). The circumstances surrounding plaintiff's discharge do not satisfy the elements of negligent infliction of emotional distress.
While the New Jersey courts have occasionally upheld a claim for negligent infliction of emotional distress beyond the circumstances outlined in Portee, see e.g. Strachan v. John F. Kennedy Memorial Hospital, 109 N.J. 523, 538 A.2d 346 (1988) (recognizing parents' suffering resulting from hospital's negligent mishandling of son's corpse); Giardina v. Bennett, 111 N.J. 412, 545 A.2d 139 (1988) (parents may recover damages for emotional distress from still birth caused by medical malpractice), "a constant concern about the genuineness of the claim," Buckley, 111 N.J. at 365, has pervaded judicial analysis. Here, the circumstances of plaintiff's discharge do not merit an extension of the Portee standard.
The court grants defendants summary judgment as to plaintiff's claims for negligent or intentional infliction of emotional distress and breach of an implied covenant of good faith and fair dealing. The court denies summary judgment as to the sufficiency of the disclaimers and the existence of an implied contract for employment.
H. LEE SAROKIN
U.S. DISTRICT JUDGE
Date: September 13, 1994
This matter having come before the court upon the motion of defendants Litton Systems, Inc., et al. for summary judgment dismissing all claims against them; and the court having considered the submissions of the parties and the arguments of counsel; and for the reasons expressed in the accompanying opinion; and for good cause shown,
IT IS this 13, day of September 1994, hereby
ORDERED that the motion of defendants Litton Systems, Inc., et al. for summary judgment dismissing all claims against them be and is hereby granted as to the claim for breach of an implied covenant of good faith and fair dealing and as to the claim for intentional or negligent infliction of emotional distress; and it is further
ORDERED that the motion of defendants Litton Systems, Inc., et al. for summary judgment dismissing all claims against them be and hereby is denied as to the claim for breach of an implied contract of employment.
H. LEE SAROKIN
U.S. DISTRICT JUDGE