However, plaintiff asserts that said transfer was a guise to retaliate, harass, and discriminate against him by causing financial, physical, and mental hardship. Plaintiff posits that in retaliation for the EEOC complaint, he was denied an opportunity to apply for a promotion to acting assistant resident engineer.
Furthermore, plaintiff alleges that he was denied a promotion to the position of assistant resident engineer at LaGuardia on the basis of race. Rather, on April 15, 1992, Dan Hartigan, a caucasian male, was promoted to the position. Plaintiff asserts that he was clearly better qualified for the position since he holds a New York State license and has attained a Master's Degree. Plaintiff, however, only notified his supervisor of his Master's Degree in June of 1992. Hartigan was subsequently made permanent assistant resident engineer.
In September of 1992, plaintiff wrote several letters to his supervisor and the executive director regarding the lack of African-American employees in middle and upper management. Plaintiff's supervisor, Jack Erhard, allegedly advised plaintiff that his EEOC complaint would adversely affect his chance of being promoted. In the same month, two more caucasian male employees, allegedly less qualified than plaintiff, were promoted to assistant resident engineer. Again, on November 18, 1992, plaintiff filed a complaint of race discrimination with the EEOC. On March 3, 1993, an African-American male was hired from outside the company to the position of assistant resident engineer.
Plaintiff asserts that he received a low performance rating in September of 1993, in retaliation for his earlier complaints and because of his race. Another finding of probable cause was made by the EEOC. In July and December of 1993, plaintiff was allegedly threatened and told to "watch his back" because his supervisors would be "watching him." Finally, plaintiff states that on December 30, 1993, he again received a disproportionately low merit increase. Subsequently, plaintiff requested an explanation for said salary increase, but received no response.
Plaintiff filed a Complaint in this Court February 7, 1994, alleging that the Port Authority discriminated against him on the basis of race and in retaliation for his filing complaints with the EEOC. On March 4, 1994, plaintiff was transferred to the Port Authority Trans-Hudson Railroad ("PATH"), which plaintiff alleges was in retaliation for his filing this suit. On March 21, 1994, the First Amended Complaint was filed to include this alleged retaliation.
A Second Amended Complaint was filed on May 13, 1994, to include as evidence of retaliation a confrontation between plaintiff and his supervisor, Ronald Gumann. Subsequently, plaintiff attended numerous meetings with his supervisors in relation to his job performance and work load. During his last performance evaluation, plaintiff stated that he was questioned about his ethnic origin and native language. Thereafter, the Third and present Amended Complaint was filed on October 3, 1995. The instant motion followed.
I. Standard of Review
When a court decides a 12(b)(6) motion, all allegations in the complaint must be taken as true and viewed in the light most favorable to the non-movant. Gomez v. Toledo, 446 U.S. 635, 636 n.3, 64 L. Ed. 2d 572, 100 S. Ct. 1920 (1980); Robb v. City of Philadelphia, 733 F.2d 286, 290 (3d Cir. 1984). When, after viewing the allegations in the complaint in this beneficent light, it appears beyond doubt that no relief could be granted under any set of facts which could prove consistent with the allegations, a court shall dismiss a complaint for failure to state a claim. Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984); Zynn v. O'Donnell, 688 F.2d 940, 941 (3d Cir. 1982).
II. Implied Covenant of Good Faith and Fair Dealing
The second Count of plaintiff's Complaint contains the allegation that defendant breached its duty of good faith and fair dealing to plaintiff. The New Jersey Supreme Court has held that there is an implied covenant of good faith and fair dealing in every contract. Onderdonk v. Presbyterian Homes of N.J., 85 N.J. 171, 182, 425 A.2d 1057 (1981); Bak-A-Lum v. Alcoa Bldg. Prod., 69 N.J. 123, 129-30, 351 A.2d 349 (1976); Association Group Life, Inc. v. Catholic War Veterans of U.S., 61 N.J. 150, 293 A.2d 382 (1972); Palisades Properties, Inc. v. Brunetti, 44 N.J. 117, 130, 207 A.2d 522 (1965). As a corollary to that proposition, the Court commented that it is reasonable to imply that neither party to a contract shall injure the right of the other to receive the fruits of the agreement. Onderdonk, 85 N.J. at 182 (citations omitted). A cognizable cause of action for breach of the implied duty of good faith and fair dealing in the employment context exists where the employer attempts to deprive the employee of the benefits of the employment agreement without an honest belief that good cause for discharge is in fact present.
See Noye v. Hoffmann-La Roche, Inc., 238 N.J. Super. 430, 570 A.2d 12 (App. Div. 1990), certif. denied, 122 N.J. 146 (1990); see also Nolan v. Control Data Corp., 243 N.J. Super. 420, 579 A.2d 1252 (App. Div. 1990).
In the absence of a contract, there is no implied covenant of good faith and fair dealing under New Jersey law. See Noye, 238 N.J. Super. at 433. However, an implied obligation of good faith is applicable to those aspects of the employer-employee relationship which are governed by some contractual terms, even if the employment is characterized as being "at-will." Nolan, 243 N.J. Super. at 429. The contractual understanding upon which plaintiff bases his claim for breach of the implied covenant of good faith and fair dealing is the Woolley contract evidenced by pamphlets and manuals disseminated by defendant. See Woolley v. Hoffmann-La Roche, Inc., 99 N.J. 284, 491 A.2d 1257, modified, 101 N.J. 10, 499 A.2d 515 (1985).
The basic principle of Woolley is that "when an employer of a substantial number of employees circulates a manual that, when fairly read, provides that certain benefits are an incident of the employment (including, especially, job security provisions) the judiciary . . . should construe [it] in accordance with the reasonable expectations of the employees." Id. at 297-98 (citation omitted). The court was careful to note, however, that the contract arising from the manual does not protect the employer against any termination; rather, the implied promise is to safeguard the employee only from arbitrary termination. 99 N.J. 284 at 300. In order to proffer a plausible Woolley claim, plaintiff is required to bring to the Court's attention some provision or language within the manual or handbook which guarantees that he will not be terminated except for good cause.
Plaintiff asserts that the Port Authority's pamphlet entitled The Port Authority Way: A Guide to Ethical Standards, another pamphlet entitled Performance Planning and Review Program, and a document entitled Statement of Stanley Bresenoff, Executive Director The Port Authority of New York and New Jersey October 9, 1992 formed part of the purported contract of employment.
Even if true, however, policy statements cannot as a matter of law create a contractual obligation and abrogate the employment at-will doctrine. Tripodi v. Johnson & Johnson, 877 F. Supp. 233, 238 (D.N.J. 1995). A policy manual and statements of corporate officers must contain more than mere statements of company policy or goals. Id. at 239; Catalane v. Gilian Instrument Corp., 271 N.J. Super. 476, 495, 638 A.2d 1341 (App. Div.), certif. denied, 136 N.J. 298 (1994).
Plaintiff's claim of an implied contractual understanding pursuant to Woolley is misplaced. The Port Authority's policy manuals do not address termination, but are mere statements of corporate policy. These broad and general corporate assertions do not change an at-will employment situation into a contract. Because I have found no actionable claim under the Woolley doctrine, there is no contract upon which to base a claim for breach of the implied covenant of good faith and fair dealing. Accordingly, Count two of plaintiff's Complaint is hereby DISMISSED.
III. Intentional Infliction of Emotional Distress
In the third and fourth Counts of the Complaint, plaintiff alleges that defendant intentionally inflicted emotional distress upon him. The New Jersey Supreme Court has recognized a cause of action for the intentional infliction of emotional distress. Buckley v. Trenton Sav. Fund Soc'y, 111 N.J. 355, 366, 544 A.2d 857 (1988). In order to succeed under such a claim, plaintiff must prove: (1) defendant acted intentionally or recklessly (intending both to do the act and to produce the emotional distress); (2) defendant's conduct was so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency and be regarded as atrocious and utterly intolerable in a civilized community; (3) defendant's actions were the proximate cause of plaintiff's emotional distress; and (4) the emotional distress suffered by plaintiff was so severe that no reasonable person could be expected to endure it. Id. See also Restatement (Second) of Torts, § 46.
The courts have recognized the difficulty of establishing such a claim in an employment related dispute. One court, applying New Jersey law, dismissed the plaintiff's intentional infliction of emotional distress claim, holding:
We do not believe that [New Jersey] courts would extend this tort to cover an employment contract dispute . . . . To the contrary, application of this tort must be restricted to instances of extreme and outrageous conduct; indeed, the limited scope of the tort tolerates many kinds of unjust, unfair and unkind conduct.
Cautilli v. GAF Corp., 531 F. Supp. 71, 74 (E.D. Pa. 1982). Indeed, the Third Circuit has observed:
That it is extremely rare to find conduct in an employment context that will rise to the level of outrageousness necessary to provide a basis for recovery for the tort of intentional infliction of emotional distress . . . . In the context of a dismissal, it has been noted that 'while loss of employment is unfortunate and unquestionably causes hardship, it is a common event' and cannot provide a basis for recovery for intentional infliction of emotional distress.