Opinion
Civil No. 02-1698 (JRT/RLE)
March 17, 2004
William J. Mavity, MAVITY ASSOCIATES, MN, for plaintiff
Julie Anne Fleming-Wolfe, FLEMING-WOLFE LAW OFFICE, St. Paul, MN, for defendant
MEMORANDUM OPINION AND ORDER
Plaintiff William Rabe, the former Fire Chief for the City of Bemidji, brought this lawsuit alleging discrimination in employment in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq.; unlawful retaliation and reprisal for opposing practices forbidden by the ADEA in violation of 29 U.S.C. § 623(d); breach of contract and promissory estoppel; and negligent infliction of emotional distress. Defendant, the City of Bemidji ("the City"), has moved for summary judgment, arguing that the termination was legal, and that plaintiff's claims lack evidentiary support. Plaintiff opposes the motion for summary judgment and also moves to strike portions of a transcript from a City of Bemidji Merit Board Hearing regarding plaintiff's claim. For the reasons discussed below, the Court grants in part defendant's motion to dismiss plaintiff's breach of contract, promissory estoppel, and negligent infliction of emotional distress claims. In all other respects, the City's motion is denied. As discussed below, the Court grants plaintiff's motion to strike the transcript of the Merit Board Hearing.
BACKGROUND
Plaintiff was the Fire Chief for the City from 1992 until his employment was terminated on October 15, 2001. Before serving as the Fire Chief, plaintiff had worked and volunteered as a fire fighter (and for a time as volunteer fire chief) since 1965. Plaintiff was 56 years old when he was fired and he had planned to work for at least another two to three years.
The City faced significant financial pressure in 2001, due primarily to the legislature's imposition of a tax levy limit made worse by deferred infrastructure and equipment improvements, and a depleted reserve account. The City began to look for ways to cut costs, without drastically impacting essential services. Personnel costs constituted a significant portion of the City's public safety budget, and the public safety budget, in turn, made up almost half of the total expenditures for the City. The City suggests that this made the fire department, funded principally from public safety budget, a logical place to look to cut costs. The City proposed three options for reducing the cost of running the fire department. One option was eliminating a fire fighter position. The City suggests that "everyone" agreed that eliminating a fire fighter position was not a viable option for safety reasons. A second option was to accept the early retirement of a fire fighter stationed at the airport, which the City suggests would not have saved enough money. The final option, which the City chose, was to eliminate the position of Fire Chief, and discharge plaintiff. The City suggests that the option of eliminating the position of Fire Chief would result in the smallest impact on the fire department's provision of emergency medical services, in part because plaintiff was not an Emergency Medical Technician ("EMT"), and a growing part of the fire department's calls relate to requests for medical assistance.
The decision to eliminate plaintiff's position was made on September 4, 2001, and City staff was directed to discuss the terms of separation with those employees whose positions had been eliminated. Plaintiff understood that his position was eliminated, and discussed putting together the best severance package possible. The City initially offered to continue paying plaintiff's health insurance premiums, and to add plaintiff's wife to the coverage. On September 18, 2001, plaintiff received a "Notice of Intent to Terminate," drafted by the City Manager. Plaintiff refused to sign the Notice, which identified the City's offer of terms and conditions of his separation. Plaintiff refused to sign the Notice because he wanted to appeal his dismissal, and he indicated at the time he refused to sign that he thought age was playing a role in the decision. Because plaintiff did not accept the City's offer, as set out in the Notice, the City Manager recommended that the offer be withdrawn, and the City Council rescinded the offer as set out in the Notice.
The City states that after the position of Fire Chief was eliminated, a new position of Fire Captain was created to "oversee the day-to-day operation of the Fire Department." (Def. Brief at 7.) The City also attempted to save costs in other ways, such as by reducing overtime, and other staffing decisions. Plaintiff has offered evidence that the position of "Fire Captain" is identical to the eliminated Fire Chief position. The position of Fire Captain was available only to then-current city employees. Plaintiff applied for the position, but his application was not considered because he was not a current city employee. Instead, a younger fire fighter was promoted.
Plaintiff states that for several years before his termination, plaintiff was repeatedly asked about his retirement plans, and he was encouraged to retire. Plaintiff also has provided evidence that the "plan" the City enacted to save money achieved less savings than one of the rejected plans. Specifically, plaintiff says laying off fire fighter Sathers (who avers that he volunteered to retire early) would have achieved greater budget savings for the City. Plaintiff also notes that another employee who complained of age discrimination also had his offer to continue health insurance premiums rescinded. Further, plaintiff complains that Bemidji City Code, Sec. 2.55, which requires removal based on seniority and length of employment, was not followed. Similarly, plaintiff suggests that he is entitled to health insurance under "the Rule of 80" — plaintiff understood that the Rule of 80 guaranteed continued health benefits to any City employee whose age and years of service equal 80. The City counters that the Rule of 80 applies only to retiring employees.
Plaintiff appealed the termination decision to the Merit Board, and his appeal was denied.
ANALYSIS
I. ADEAThe ADEA makes it unlawful for an employer to discharge or otherwise discriminate against an individual with regard to compensation and other terms and conditions of employment on the basis of age. 29 U.S.C. § 623(a)(1). Persons forty years of age or older are protected by the ADEA. 29 U.S.C. § 631.
Under the traditional McDonnell Douglas burden-shifting analysis, as applied to the ADEA, plaintiff must first establish a prima facie case, which creates a legal presumption of unlawful discrimination. Chambers v. Metropolitan Property Casualty Ins. Co., 351 F.3d 848, 855 (8th Cir. 2003); Ryther v. KARE 11, 108 F.3d 832, 836 (8th Cir. 1997) (en banc). Once plaintiff establishes a prima facie case, the burden of production shifts to the City to articulate a legitimate nondiscriminatory reason for terminating plaintiff's employment. Chambers, 351 F.3d at 855. If the City proffers such a reason, the presumption of discrimination drops out. Plaintiff must then present evidence sufficient to raise a question of material fact as to whether the City's proffered reason was pretextual and to create a reasonable inference that age was a determinative factor in the adverse employment decision. Id. at 856; Hindman v. Transkrit Corp., 145 F.3d 986, 991 (8th Cir. 1998). Plaintiff's prima facie case, along with sufficient evidence that the City's proffered reason is pretextual, may permit a jury to find for plaintiff and permit his ADEA claim to survive summary judgment. Ryther, 108 F.3d at 837.
The parties' briefing does not address whether the burden-shifting analysis of McDonnell Douglas has been modified by the recent Supreme Court decision in Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003). At oral argument, counsel for the plaintiff suggested that Desert Palace eliminates the third step of the McDonnell Douglas test. No court in this district has addressed the impact of Desert Palace on ADEA claims. The Eighth Circuit continues to analyze ADEA claims under the McDonnell Douglas three-step. See, e.g., Hitt v. Harsco Corp., 2004 WL 178107 *2-3 (8th Cir. Jan. 30, 2004) (noting that parties agreed that McDonnell Douglas should apply); Chambers v. Metropolitan Prop. Casualty Ins. Co., 351 F.3d 848, 855-56 (8th Cir. 2003) (applying McDonnell Douglas without comment on Desert Palace).
In "reduction in force" cases, the Eighth Circuit often sets forth the elements of a prima facie ADEA case as follows: The plaintiff must establish that (1) he is a member of a protected class; (2) he is qualified for the position; (3) he was discharged; (4) there is some additional evi dence that age was a factor in the termination. Chambers, 351 F.3d at 855; Herrero v. St. Louis Univ. Hosp., 109 F.3d 481, 483-84 (8th Cir. 1997). "`A plaintiff may meet this last requirement by presenting `circumstantial' evidence (such as statements and practices that suggest a preference for younger employees).'" Chambers, 351 F.3d at 856 (quoting Hanebrink v. Brown Shoe Co., 110 F.3d 644, 646 (8th Cir. 1997)).
The parties agree that plaintiff has established he is 40 years or older; he was qualified for the job; and he was discharged. Defendant disputes that plaintiff has offered evidence that age was a factor in the decision to terminate him. Defendant specifically argues that plaintiff cannot establish that after his termination, the position remained open, or that there is any additional evidence that age was a factor in his termination.
In support of his argument that age discrimination played a role in the City's decision, plaintiff offers evidence that the Fire Captain position was "identical in every essential detail" to the "eliminated" position of Fire Chief. This evidence is offered in the form of an affidavit from Robert Tell, who had been the Director of Public Safety from 1992 to January 1, 2001. Tell had been plaintiff's supervisor. Tell created the position of Fire Chief and had written the job description for that position. The City argues that this evidence is insufficient to create a dispute of material fact, because Tell is no longer a City employee. The City's criticism properly impacts the weight, but not admissibility, of the evidence, and raises a factual dispute that cannot be determined on this record.
Tell's opinion is bolstered by the affidavit of Kristi Miller, the vice-chair of the Rural Fire Association, who avers that she was told that the Rural Fire Association would be getting the same services and assistance from the new Fire Captain as it had received from the Fire Chief. See Kult v. Deluxe Corp., No. 00-CV-2525, 2002 WL 826412, at *3 (D. Minn. Apr. 26, 2002) (denying summary judgment on ADEA claim where within one year of a reduction-in-force employer created new position substantially similar to plaintiff's and hired a person 15 years younger).
Plaintiff also challenges the City's claim that it could save the most money with the least impact on services by eliminating his position. Defendant characterizes this argument as inviting the Court to "second-guess personnel decisions." (Def. Brief at 5.) The Court can, however, discount pretextual reasons offered for a termination decision. In fact, an ADEA plaintiff can meet his or her burden by showing that a purported rationale for an adverse employment decision is dubious. At this preliminary stage of the proceedings, it is fair to say that plaintiff has "come forward with evidence that raises questions `as to the believability, not the propriety, of [the City's] purported reasons for discharging [plaintiff]." Peters v. Beaulieu, 2002 WL 1949751 (D. Minn. Aug. 12, 2002) (quoting Gaworski v. ITT Commercial Fin. Corp., 17 F.3d 1104, 1108 (8th Cir. 1994)).
In addition, because plaintiff has raised a genuine question as to whether he was terminated as part of a legitimate reduction in force ("RIF"), plaintiff need not satisfy the additional showing required in RIF cases. See Peters, 2002 WL 1949751 at *3 (holding that because plaintiff's raised a genuine question as to the legitimacy of the RIF, the "additional showing requirement should not apply, at least at this preliminary [summary judgment] stage of the litigation."). Because this additional element is not required, plaintiff has met his prima facie burden. In particular, plaintiff has submitted evidence that defendant's purported reason for termination is false, and that he was replaced by a younger worker which supports an inference of age discrimination. Plaintiff is not required to produce evidence in addition to his prima facie case and pretext. See Raddatz v. Standard Register Co., 31 F. Supp.2d 1155, 1159 (D. Minn. 1999) (quoting Rothmeier v. Investment Advisers, Inc., 85 F.3d 1328, 1334 (8th Cir. 1996) ("In some cases the overall strength of the prima facie case in conjunction with evidence of pretext will be sufficient to permit a finding of intentional discrimination."); see also Kempcke v. Monsanto Co., 132 F.3d 442, 447 (8th Cir. 1998) ("Age discrimination may be proved indirectly by showing that the employer's profferred explanation is unworthy of credence and a pretext for intentional discrimination.").
II. Retaliation
The ADEA provides that it is "unlawful for an employer to discriminate against any of his employees . . . because such individual . . . has opposed any practice made unlawful by this section, or . . . participated in any manner in an investigation, proceeding, or litigation under this chapter." 29 U.S.C. § 623(d).
Plaintiff asserts that he engaged in statutorily protected activity by making his complaint of age discrimination to the City Manager, and that the Council's reaction — stripping him of the $405 per month health insurance benefit — amounted to illegal retaliation. Defendant does not dispute that plaintiff had a right to complain about what he believed to be age discrimination, but argues that plaintiff was not entitled to the health insurance benefit because he was not retiring, and that the offer of health insurance was contingent on plaintiff's acceptance of the terms of the Termination Notice. As defendant succinctly puts it, "The City cannot be held liable for retaliation for withdrawing the terms of an offer that was refused." (Def. Reply Brief at 7.)
To establish a prima facie case of retaliation, a plaintiff must show that he participated in a protected activity, that the employer took an adverse employment action against him, and that a causal connection exists between the two. Calder v. TCI Cablevision of Missouri, Inc., 298 F.3d 723, 731 (8th Cir. 2002) (citing Herrero v. St. Louis Univ. Hosp., 109 F.3d 481, 485 (8th Cir. 1997)); West v. Marion Merrell Dow, Inc., 54 F.3d 493, 496-97 (8th Cir. 1995).
The Court must determine whether rescinding the offer for continued health care benefits constitutes an "adverse employment action." There seems to be no question the offer was rescinded because plaintiff refused to take the severance package he was offered, so the "causal" element is met. Further, there is no dispute that opposing an allegedly unlawful termination satisfies the "protected activity" element. See Kempcke v. Monsanto Co., 132 F.3d 442, 445 (8th Cir. 1998) (noting that "Protected activity includes opposing any practice made unlawful by the ADEA, § 623(d). Employer conduct that an employee opposes need not in fact be unlawful. Rather, the employee must demonstrate a good faith, reasonable belief that the underlying challenged action violated the law.") (internal citations and quotations omitted).
Courts generally agree that employment decisions involving such things as granting leave, discharge, promotion, and compensation suffice as discrimination. See, e.g., Montandon v. Farmland Indus., Inc., 116 F.3d 355, 359 (8th Cir. 1997). In this case, however, plaintiff's health insurance benefits were not taken away — it was only the offer that was taken away. He was not otherwise entitled to the health benefits. Nonetheless, at least one court has explicitly held that an employer's "withdrawal of its severance package offer, even assuming [employer] had no obligation to provide it, was adverse action." Paquin v. Fed. Nat'l Mortgage Assoc., 119 F.3d 23, 32 (D.C. Cir. 1997). In Paquin, the plaintiff was informed that his employment was to be terminated; he was offered a severance agreement, valued at approximately $600,000, and was told to review it with his lawyer. Id. at 26. The proposed severance agreement included a waiver of any legal claims. Id. After reviewing the severance offer, Paquin's lawyer wrote a letter to the employer, Fannie Mae, stating that Paquin believed his age played a role in Fannie Mac's decision to terminate him and requesting a severance package worth in excess of $4 million. Id. In return Paquin offered to sign a release. Id. Although the parties engaged in negotiations Fannie Mae ultimately refused to alter the terms of the original offer. Id. Paquin filed a charge of unlawful termination and retaliation with the EEOC, and that same day Fannie Mae sent a letter to Paquin stating that, because he had not accepted the now-expired offer, Paquin had been terminated effective close of business on March 16th without severance benefits. Id. The Court held that the withdrawal of the severance package was an adverse action. Id. at 32 ("An employer's withdrawal of a voluntary benefit, however, may constitute adverse action. . . . Fannie Mae's withdrawal of its severance package offer, even assuming Fannie Mae had no obligation to provide it, was adverse action."). See also Corneveaux v. Cuna Mut. Ins. Group, 76 F.3d 1498, 1507 (10th Cir. 1996) (concluding that a former employee established an adverse action under ADEA's anti-retaliation provision when she had to "go through several hoops in order to obtain her severance benefits").
The Court is aware plaintiff argues that the "Rule of 80" entitled him to continued health insurance. The Court is not convinced, however, that the Rule of 80 applies to employees who were terminated, as opposed to retiring.
The withdrawal of the offer of health insurance in this case is nearly identical to the situation faced by the Paquin court. The withdrawal amounts to an adverse employment action, that was causally related to plaintiff's protected activity of stating that he opposed his termination, and would appeal. The City is therefore not entitled to summary judgment on plaintiff's retaliation claim.
III. Breach of Contract
Plaintiff alleges that the personnel policies and city codes disseminated to him and other employees, contained detailed provisions which prohibited mandatory or forced retirement prior to age 70. Plaintiff also alleges that the policies and codes guaranteed retirees insurance benefits of $405 per month.
As a rule, Minnesota follows the "at-will" doctrine of employment law. That is, an "employer can summarily dismiss an employee for any reason or no reason, and the employee is under no obligation to remain on the job." Audette v. Northeast State Bank, 436 N.W.2d 125, 126 (Minn.Ct.App. 1989) (citation omitted). Minnesota, however, recognizes that "at-will" employment may be modified by an employer's policy manual or handbook. Id.
"[A]n employee handbook may constitute terms of an employment contract if (1) the terms are definite in form; (2) the terms are communicated to the employee; (3) the offer is accepted by the employee; and (4) consideration is given." Feges v. Perkins Restaurants, Inc., 483 N.W.2d 701, 707 (Minn. 1992) (citing Pine River State Bank v. Mettille, 333 N.W.2d 622, 626-27 (Minn. 1983)). Whether the terms contained in an employee handbook personnel policy constitute an offer for a unilateral employment contract is to be "determined by the outward manifestations of the parties, not by their subjective intentions." Pine River State Bank, 333 N.W.2d at 626 (citation omitted).
It appears that plaintiff's theory is that he had a contract for employment until he turned 70 years old, premised on the City's "detailed provisions against mandatory and/or forced retirement of City employees prior to the age of 70." (Compl. ¶ 39.) The City's personnel policy indicates that "Every appointed employee of the city shall automatically be retired upon reaching the age of 70." ( See Aff. of William J. Mavity in Opp'n to Def's Mot. for Summ. J., Ex. 12, "Bemidji Personnel Policy Resolution #3174," § 18, subd. 1.) Although this section sets out a mandatory retirement age of 70, it simply cannot be deemed a guarantee that every employee hired will not be laid off or terminated until he or she reaches the age of 70. The City clearly reserved such a right, as set out in section 16 "Lay-Offs", which clearly authorizes the City to lay off employees when funds are short. ( See Id. at Ex. 12 § 16 ("After at least two weeks notice to the employee, the City Manager may lay off any employee whenever such action is necessary because of shortage of work or funds, the abolition of a position, or changes in organization."))
Plaintiff has not demonstrated that the City personnel policies constituted a contract, and defendant is entitled to summary judgment on the breach of contract claim.
The City construes plaintiff's contract claim slightly differently, and understands plaintiff as arguing that the notice of termination letter dated September 18, 2001 created an enforceable contract. This argument, too, would fail, as plaintiff did not accept the offer contained in the September 18, 2001 letter.
IV. Promissory Estoppel
Plaintiff's promissory estoppel claim is premised on the "Rule of 80," the personnel policy, and other city code provisions. Plaintiff claims that the City should have reasonably expected that promising health insurance benefits after the employee's age and years of service reached 80 would induce plaintiff to remain a City employee. Plaintiff argues that this is especially true for a long-term City employee who is in his late fifties.
To state an actionable claim for promissory estoppel, a plaintiff must establish that (1) a clear and definite promise exists; (2) the promisor intended to induce reliance, and the promisee in fact relied to her detriment; and (3) the promise must be enforced to prevent injustice. Martens v. Minnesota Mining Mfg. Co., 616 N.W.2d 732, 746 (Minn. 2000). Promissory estoppel implies a contract in law where no contract exists in fact. See Frey v. Ramsey County Cmty. Human Servs., 517 N.W.2d 591, 601-02 (Minn.Ct.App. 1994) (holding that presence of a "contract" between employer and employee precludes promissory estoppel claim). Whether an implied contract exists is a question of law. Hunt v. IBM Mid Am. Employees Fed. Credit Union, 384 N.W.2d 853, 856 (Minn. 1986).
Plaintiff has not offered evidence from which a rationale fact finder could determine that the City made a clear and definite promise. Although there is probably no real dispute that the Rule of 80 amounts to an employee benefit that was intended to induce employees to continue to work for the City, the Rule of 80 clearly states that it applies only to retiring employees. The City did not promise, in anything that plaintiff has produced, to retain any employee whose age and years of service equaled 80 or to provide health insurance to employees who satisfied the Rule of 80 even if that employee was terminated instead of retiring. See Corum v. Farm Credit Services, 628 F. Supp. 707, 716 (D. Minn. 1986) (noting that any promise plaintiff pointed out was only implied and did not estop the employer from terminating appellant's employment).
For the above reasons, defendant is entitled to summary judgment on plaintiff's promissory estoppel claim.
V. Negligent Infliction of Emotional Distress
Although plaintiff does not address his negligent infliction of emotional distress claim in his response to defendant's motion for summary judgment, counsel represented during oral argument that this claim has not been abandoned. The Court therefore addresses the claim.
"To establish a claim for negligent infliction of emotional distress, a plaintiff must show that she was within a zone of danger of physical impact, reasonably feared for her safety, and suffered severe emotional distress with accompanying physical manifestations." Wall v. Fairview Hosp. Healthcare Servs., 584 N.W.2d 395, 408 (Minn. 1998)); see, e.g., Navarre v. S. Washington County Sch., 633 N.W.2d 40 (Minn.Ct.App. 2001), aff'd in part, rev'd in part, and remanded, 652 N.W.2d 9 (Minn. 2002). The Minnesota Supreme Court has limited the "zone of danger" to "actual physical danger caused by the defendant's negligence." Wall, 584 N.W.2d at 408 (stating concerns about unintended and unreasonable results) (citing Langeland v. Farmers State Bank of Trimont, 319 N.W.2d 26, 31 (Minn. 1982)). "In other words, a plaintiff presents a valid claim when she experiences a reasonable anxiety, with physical symptoms, `from being in a situation where it was abundantly clear that plaintiff was in grave personal peril for some specifically defined period of time. Fortune smiled and the imminent calamity did not occur.'" Id. (quoting K.A.C. v. Benson, 527 N.W.2d 553, 558 (Minn. 1995).
A plaintiff who was not in the zone of danger might be able to bring a negligent infliction of emotional distress claim if the plaintiff can prove that there was a "direct violation of his rights, such as defamation, malicious prosecution, or other willful, wanton or malicious conduct." Bohdan v. Alltool Mfg. Co., 411 N.W.2d 902, 907 (Minn.Ct.App. 1987). But see Meyer v. Tenvoorde Motor Co., 714 F. Supp. 991, 995 (D. Minn. 1989) (declining to follow Bohdan because "[t]he holding in Bohdan that there is an exception to the "zone of danger" rule is directly at odds with the Minnesota Supreme Court's refusal, in Stadler [v. Cross, 295 N.W.2d 552, 553 (Minn. 1980)], to relax the `zone of danger' requirement. The court in Bohdan based its finding of an exception on two cases, neither of which address negligent infliction of emotional distress. Further, there is no basis for this exception in the Restatement (Second) of Torts or in the decisional law of other states."). To the extent a statutory violation can substitute for the "zone of danger," at least one court has held that "[g]iven that the exception to the zone of danger rule has only been applied in this district to defamation and discrimination cases, the court declines to extend the cause of action to claims based on alleged violations of the FMLA." Neppl v. Signature Flight Support Corp., 234 F. Supp.2d 1016, 1025(D. Minn. 2002).
Even assuming that a "direct violation of rights" can substitute for the "zone of danger" requirement — which the Court finds a dubious proposition — plaintiff has not come forward with evidence of physical manifestations of the emotional distress, as is required by the third element. Plaintiff does not dispute this characterization of the record. Because plaintiff has not pointed to evidence satisfying an essential element of the claim of negligent infliction of emotional distress, defendant is entitled to summary judgment on this claim.
VI. Merit Board Hearing Transcript
Plaintiff moves to strike the submitted portions of the transcript of the Merit Board Hearing conducted on February 22, 2002 in Bemidji that is attached to the Affidavit of Julie-Fleming-Wolfe. Prior to the hearing, plaintiff requested that witnesses be sworn in before testifying at the hearing. The Merit Board chose not to put witnesses under oath.
Defendant has offered the transcript from the Merit Board Hearing as support for its motion for summary judgment. There is no question that many of the propositions for which defendant cites the transcript are offered for their truth. Defendant has also offered deposition testimony in support of the motion for summary judgment; plaintiff does not challenge the deposition testimony. Plaintiff complains that "Defendant violates Rule 56(e) when it alternates between sworn and non-sworn testimony, claiming support from both, and choosing that which best serves its purpose to try and show that there are no genuine issues of material fact." (Pl's Mot. to Strike at 3.) Defendant acknowledges that the testimony at the hearing was not sworn, but argues that the hearing has other "indicia of reliability." Defendant requests that if the Court grants the motion to strike the transcript, the City be allowed to present affidavits from the City officials and employees who testified, attesting to the truth and accuracy of the transcript, and to their testimony.
The merit hearing transcript is inadmissible hearsay, and the Court has not considered its contents in ruling on this summary judgment motion. Because the transcript from the Merit Board Hearing constitutes inadmissible hearsay, plaintiff's motion to strike the transcript will be granted.
This case will be placed on the Court's next trial calendar.
ORDER
Based upon the foregoing, the submissions of the parties, the arguments of counsel and the entire file and proceedings herein, IT IS HEREBY ORDERED that:
1. Defendant's motion for summary judgment [Docket No. 14] is GRANTED in part and DENIED in part as follows:
a. Defendant's motion is GRANTED as to Counts III (breach of contract), IV (promissory estoppel), V (negligent infliction of emotional distress).
b. Counts III, IV, and V of plaintiff's complaint are DISMISSED WITH PREJUDICE.
c. Defendant's motion is DENIED in all other respects.
2. Plaintiff's motion to strike [Docket No. 19] is GRANTED. The Clerk is instructed to remove from the file Exhibits 1, 3, 4 and 5 attached to the Affidavit of Julie-Fleming-Wolfe [Docket No. 16] and return those exhibits to defendant.