Petition for Writ of Certiorari — Jordan v. SmithKline Beecham, Inc.
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Supreme Cou
~ rt, U.S.
FILED
98 80 sus 993
No. 98- OFFICE OF THE CLERK
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1998
J. ST. GIRARD JORDAN,
Petitioner,
V.
SMITHKLINE BEECHAM, INC..,
Respondent.
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Petition for Writ of Certiorari
to the United States Court of Appeals
for the Third Circuit
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PETER GOLDBERGER
Counsel of Record
ANNA M. DURBIN
PAMELA A. WILK
50 Rittenhouse Place
Ardmore, PA 19003-2276
(610) 649-8200
Attorneys for Petitioner
July 1998
PUBLISHER’S NOTE:
E FOLLOWING PAGE WAS UNAVAILABLE FOR FILMING:
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TABLE OF CONTENTS
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PETITION
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REASONS FOR GRANTING THE WRIT
The decision of the court of appeals upholding
summary judgment on the statute of limitations
defense, allowing isolated and ambiguous
comments of a plaintiff in his deposition to
defeat his right to trial on the facts underlying
application of the "discovery rule," conflicts with
this Court’s cases on summary judgment and the
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INDEX TO APPENDIX
A. Memorandum Opinion of the Court of Appeals
B. Memorandum Opinion of the District Court
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TABLE OF AUTHORITIES
CASES
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ... 9
Byers v. Burleson, 713 F.2d 856 (D.C.Cir. 1983) ......... 12
Cambridge Plating Co. v. Napco, Inc.,
991 F.2d 21 (1st Cir. ME doris chek slabiceck shal enices 13
Celotex Corp. v. Catrett, 477 U.S. S21 (1986) .........0000: 10
Foster v. Johns-Manville Sales Corp.,
787 F.2d 390 (8th Cir. WOE Wat dirduclack,, 13
Goodman v. Lukens Steel Co., 482 U.S. 656 CEPT) vases, 9
Jordan v. SmithKline Beecham, Inc. 958 F.Supp. 1012,
70 Empl.Prac.Dec. 144,735 (E.D.Pa. 1997) .......... 1
Matsushita Electric Industrial Co. v. Zenith Radio Corp.,
WTS WI SPU AAOMR i en ih 9
Maughan v. SW Servicing, Inc.,
758 F.2d 1381 (10th Cir. coe, SO EES 12
Oubre v. Entergy Operations, inc., $22 U.S. ~,
139 L.Ed.2d 849, 118 S.Ct. 838 EWI E visistcsrshccosnis 5
Rose v. A.C.& S., Inc., 796 F.2d 294 (9th Cir. 1986) ... 13
Sellars v. Perry, 80 F.3d 243 Fem Ce: PO oc cesseises 12
United States v. Kubrick, 444 U.S. 111 (1979)... 8
Urie v. Thompson, 337 U.S. 163 i Bee 8
STATUTES AND RULES:
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PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
J. ST. GIRARD JORDAN respectfully petitions
this Court for a writ of certiorari to review the judgment
and memorandum of the United States Court of Appeals
for the Third Circuit affirming the summary judgment
which terminated his race discrimination complaint
against respondent, his former employer.
OPINIONS BELOW
The Opinion of the Court of Appeals is not
published, nor has a notation of it yet appeared in a
Table of Unpublished Decisions. A copy is attached as
Appendix A. The district court’s opinion is published at
958 F.Supp. 1012, 70 Empl.Prac.Dec. 144,735 (E.D.Pa.
1997) (Buckwalter, J.); a copy is Appendix B.
JURISDICTION
The judgment of the United States Court of
Appeals for the Third Circuit was filed and entered on
February 4, 1998. Appx. A. No petition for rehearing
was filed. On April 28, 1998, Justice Souter granted peti-
tioner’s timely application for an extension of time to file
this petition to and including July 3, 1998, a Court
holiday. No. A-811. This petition is timely filed on or
before the first business day thereafter. Rules 13.1, 13.5,
30.1 (1997 rev.); 28 U.S.C. § 2101(c). Petitioner invokes
this Court’s jurisdiction under 28 U.S.C. § 1254(1).
sh
FEDERAL STATUTE AND RULE INVOLVED
Section 2000e-S of title 42, United States Code,
provides, in pertinent part:
(e) Time for filing charges; ... A charge under
this section shall be filed within one hundred and
eighty days after the alleged unlawful employ-
ment practice occurred ... except that in a case of
unlawful employment practice with respect to
which the person aggrieved has initially
instituted proceedings with a State or local
agency with authority to grant or seek relief from
such practice or to institute criminal proceedings
with respect thereto upon receiving notice
thereof, such charge shall be filed by or on
behalf of the person aggrieved within three
hundred days after the alleged unlawful employ-
ment practice occurred ....
(f) Civil action by Commission ... or person
aggrieved; preconditions; procedure ... (1)... Ifa
charge filed with the Commission pursuant to
subsection (b) is dismissed by the Commission or
if within one hundred and eighty days from the
filing of such charge or the expiration of any
period of reference [to a state or local agency],
..., Whichever is later, the Commission has not
filed a civil action ... or ... has not entered into a
conciliation agreement to which the person
aggrieved is a party, the Commission ... shall so
notify the person aggrieved and within ninety
days after the giving of such notice a civil action
may be brought against the respondent named in
the charge ... by the person claiming to be
aggrieved ....
Rule 56 of the Federal Rules of Civil Procedure
provides, in pertinent part:
(b) For Defending Party. A party against whom
a claim ... is asserted ... may, at any time, move
with or without supporting affidavits for a
summary judgment in the party’s favor as to all
or any part thereof.
(c) Motion and Proceedings Thereon. ... The
judgment sought shall be rendered forthwith if
the pleadings, depositions, answers to interroga-
tories, and admissions on file, together with the
affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.
** * *
(e) Form of Affidavits; Further Testimony;
Defense Required. ... When a motion for
summary judgment is made and supported as
provided in this rule, an adverse party may not
rest upon the mere allegations or denials of the
adverse party’s pleadings, but the adverse party’s
response, by affidavits or as otherwise provided
in this rule, must set forth specific facts showing
that there is a genuine issue for trial. If the
adverse party does not so respond, summary
judgment, if appropriate, shall be entered
against the adverse party.
STATEMENT OF THE CASE
Petitioner Jordan, a former professional employee of
respondent SmithKline, filed a contract action against
respondent in a Pennsylvania state court. Petitioner later
amended his complaint to include claims of race discrim-
ination under Title VII and the Civil Rights Act of 1866,
which he averred he had only recently uncovered through
discovery in the contract case. The Third Circuit
affirmed the district court’s grant of summary judgment
to respondent on the civil rights claims on statute of
limitations grounds, holding that petitioner should have
discovered the alleged discrimination sooner.
The Course of Proceedings. Petitioner Jordan
brought suit against respondent SmithKline in July 1993
in a Pennsylvania state court. Based on diversity jurisdic-
tion, the action was removed to federal court, remanded,
then removed again. As finally amended, the complaint
set forth claims under Title VII, 42 U.S.C. § 2000e et
seq., the Civil Rights Act of 1866, 42 U.S.C. § 1981, and
various state law causes of action. An African-American
attorney who was formerly employed by respondent as an
assistant general counsel on the corporate staff, he
alleged race discrimination and other unfairness in
relation to the company’s handling of a "Voluntary
Reduction in Force" in 1988-89. The federal claims were
added to the complaint in 1995.
The district court held that a general release,
including a covenant not to sue, signed in connection
with his acceptance of the VRIF was applicable and
binding. App. B11-16. Additionally, the district court
held that two counts failed to make out valid contract
claims under Pennsylvania law, App. B16-20, and that the
balance, including the federal civil rights claims, were
barred by the applicable statutes of limitations. App.
B20-25. The court of appeals affirmed on the latter
basis, without reaching the question of whether the
release applied. App. A4-A10.!
Statement of Facts. Petitioner Jordan, an African-
American, was employed as an attorney with respondent
SmithKline from 1974 until 1989. He rose to the level of
general counsel of the Animal Health and Consumer
Product business groups, and then to be an assistant
general counsel on the corporate staff. Anticipating
reorganization and a possible merger (which later
ensued) respondent in November 1988 offered
employees at petitioner’s level the opportunity to partici-
pate in a Voluntary Reduction in Force ("VRIF") in
exchange for certain benefits; in early December, 1988,
the deadline for responses to the VRIF offer, petitioner
accepted. His last day of work was to be in July 1989.
In January 1989, SmithKline granted additional stock
options to employees who had rejected the VRIF or who
had rescinded their acceptances. Later that month,
respondent's Board resolved that employees who had
declined the VRIF or who rescinded their acceptances
! This Court should not consider denying certiorari on the
basis that in any event the release would end the case.
The district court’s 1997 opinion on that issue is
inconsistent with this Court’s recent decision in Oubre v.
Entergy Operations, Inc., 522 US. --, 139 L.Ed.2d 849,
118 S.Ct. 838 (1998). See App. B6-B7, B11-16 (discussing
failure to tender back benefits received). If the judgment
is reversed on the statute of limitations issue, a remand
will be necessary to allow the court of appeals to address
the enforceability of the release, an issue it did not reach.
>
would still be eligible for the enhanced severance
package if the anticipated merger occurred and their
positions were terminated in the ensuing 24 months.
This resolution was not publicized to affected employees
at the time, however.
In April 1989 respondent’s CEO circulated a memo-
randum, addressed to "All Corporate Staff" (a category
that would have included petitioner), announcing the
substance of the January Board resolution. In his
complaint, petitioner denied knowing of the Board
resolution-or having seen the memorandum. At his
deposition he testified that he could not recall having
seen the memorandum at the time and that he did not
know of the Board resolution. He also stated, however,
that if the memorandum was, in fact circulated to all
corporate staff, he "should have seen it." In the same
passage of the deposition, petitioner commented that if
someone else in his position said the April memorandum
was circulated or posted, he would accept that as a fact.
App. A3.
Petitioner left respondent’s employment in J uly 1989.
He soon began a period of consulting with respondent,
but the consultancy was terminated eight months later. -
App. B7. Petitioner filed his original civil summons in
State court four years later, on J uly 12, 1993; he amended
it to add the federal civil rights claims at issue here in
December 1995, within the required 90 days after
receiving the right to sue from the Pennsylvania Human
Relations Commission, to which he had complained
within 300 days of the date when he contended he
discovered the factual basis for his discrimination claims
-- during discovery on the contract issues, in February
1995, when he first saw the January 1989 Board resolu-
’
PS ee Re
tion, which allowed those privy to it to receive all the
VRIF benefits, and also to receive additional stock
options, without resigning.
Statement of Lower Court Jurisdiction Under
Rule 14.1(g)(ii). The district court’s jurisdiction was
properly invoked in this case under 28 U.S.C. §§ 1331,
1332(a)(1), 1343(a)(4), 1367(a), and 42 U.S.C. § 2000e-
5(f)(3), in that the complain‘, as amended, alleged
federal civil causes of action arising under federal
statutes providing for civil rights, including Title VII, and
state law claims arising out of the same core of operative
facts, between citizens of different states, valued at more
than $75,000. The jurisdiction of the court below rested
upon 28 U.S.C. § 1291 and was timely invoked by Notice
of Appeal filed within 30 days after entry of the summary
judgment. Fed.R.App.P. 4(a).
REASONS FOR GRANTING THE WRIT
The decision of the court of appeals upholding summary
judgment on the statute of limitations defense, allowing
isolated and ambiguous comments of a plaintiff in his
deposition to defeat his right to trial on the facts
underlying the application of the "discovery rule,"
conflicts with this Court’s cases on summary judgment
and the decisions of other circuits.
This Court should grant certiorari in this case to
establish a civil rights plaintiff's right to trial on disputed
facts underlying his or her assertion of the "discovery
rule," which defers accrual of a statute of limitations until
the injured party knew or reasonably should have known
a
of the injury.” Here, petitioner did not know he had been
injured until he knew persons of other races had been
treated better than he in connection with the 1988-89
VRIF.* In contravention of this Court’s cases and in
conflict with the decisions of other circuits, the Court
below deprived him of his right to trial on the question
whether he knew or should have known of that fact more
than 300 days before he brought his Title VII complaint
before the local human relations agency, 42 U.S.C.
§ 2000e-5(e),4 or more than two years before he sued
* See generally United States v. Kubrick, 444 U.S. 111
(1979); Urie v. Thompson, 337 U.S. 163, 168-71 (1949).
> That petitioner, a relatively high-ranking corporate
lawyer, was treated rather well -- a fact that respondents
repeatedly emphasized below and which both courts
below found occasion to imply in their opinions -- in no
way undermines his case. He was entitled to complain if
he had a basis for believing that others -- particularly,
similarly situated white corporate employees -- were
treated better.
* Both the district court and the court of appeals
misstated the statute of limitations for Title VII claims.
See App. A8, B20. It is not the complainant’s lawsuit that
must be brought within 180 days (or 300 days if a local
agency is involved) but rather the administrative charge of
discrimination. 42 U.S.C. § 2000e-S(e). The lawsuit must
be filed within 90 days of issuance of the "right to sue"
letter indicating that the agency has either dismissed the
complaint, or has been unable to conciliate it, or has been
unable to process it within the allowed time. Id. § 2000e-
5(f)(1); see Statute and Rule Involved.
-8. ; |
under 42 U.S.C. § 1981.
[t was respondent’s burden, in moving for summary
judgment on an affirmative defense, to show "that there
[wa]s no genuine issue as to any material fact and that
the moving party [wa]s entitled to a judgment as a matter
of law." Fed.R.Civ.P. 56(c); see Statute and Rule
Involved. The court below did not suggest any overriding
statutory policy reasons, nor could any be imagined, why
summary judgment opponents in civil rights actions
should be held to any special or greater burden than to
advance some evidence on which the factfinder might
rely to find in the complainant’s favor on the discovery
rule issue. Compare Anderson v. Liberty Lobby, Inc.,
477 U.S. 242 (1986) (heightened duty of plaintiff under
Rule 56(e)° where substantive law imposes burden of
proof by clear and convincing evidence); Matsushita
Electric Industrial Co. v. Zenith Radio Corp., 475 U.S.
574, 588-98 (1986) (identifying special considerations
where issue is existence of antitrust conspiracy). Rather,
this is an example of the ordinary case, where a legiti-
mate jury issue could be established merely by pointing
* See Goodman v. Lukens Steel Co., 482 U.S. 656 (1987)
(determining statute of limitations for § 1981 action
under Pennsylvania law). The same error in granting
summary judgment wrongly precluded him from proving
Count III of his complaint, charging a breach of the
covenant of good faith and fair dealing, which under state
law carried a four-year statute, App. A6-A7, and Count
VI, under Pennsylvania’s Human Relations Act, 43
Pa.Stat. § 955(a).
© See Statute and Rule Involved.
-9.
to evidence that a factfinder might credit as sufficient to
meet the plaintiff's burden by a preponderance. See
Celotex Corp. v. Catrett, 477 U.S. 321 (1986).
The court of appeals in this case, like the district
court, focused on the existence of statements in peti-
tioner’s deposition that could be understood by a fact-
finder as unhelpful to his position on the "discovery rule."
See App. A3. But petitioner did not concede respon-
dent’s case; his statements were not fatal admissions. He
testified that he did not remember having seen the April
1989 memorandum summarizing the January 1989 Board
resolution. Id. No one testified that petitioner had seen
it or eveu that it had been sent to him. Other witnesses
testified at depositions either that the memorandum had
been generally circulated or that they, themselves, had
received copies of it at the time. A factfinder might have
concluded from this testimony that petitioner, too, had
received the memorandum in 1989 and therefore "should
have" read and understood it. But the factfinder would
not be bound to draw this conclusion.
The finder of fact might instead conclude that peti-
tioner’s modestly-phrased statement of lack of recollec-
tion was sufficient proof that he had not been sent a copy
of the memorandum when others had, and that discov-
ering this was the essential evidence from which he first
"should have known" that respondent's allocation of
discretionary benefits to its corporate staff was tainted by
racial discrimination.
Petitioner’s theory was not that the April 1989
memorandum contained a "smoking gun" admission of
respondent's discriminatory conduct, but rather that his
discovery of the memorandum within material turned
over as a result of a request for document disclosure led
-10-
him to realize that the offer made in the memorandum
had been extended to others and not to him, because he
was not given a copy of the memo at the time. This, he
contended, was when he first "knew" or "should have
known" that he had been discriminated against on the
basis of race.’
Both courts below made much of petitioner’s deposi-
tion testimony to the effect that if the April 1989 memo-
randum was distributed to all corporate staff then he
"should have seen it." But a factfinder could as easily
have understood this comment as petitioner’s way of
saying that he believed the memorandum had not been
distributed to everyone, but rather only to a favored
group, because he hadn’t seen it at the time. Since he
had not seen it, and if it had been universally distributed
he should have seen it, then it followed that the memo-
randum had not been circulated to everyone.
Likewise, petitioner’s comment that "if someone said
they [i.e., respondent] did either one [i.e., either post or
circulate the April 1989 memorandum], I would accept
that" should not have been given the least favorable
interpretation to himself -- as some kind of offer to
dismiss his case if the other side could produce a single
contrary witness -- but rather as a generous-spirited
suggestion that any of his former colleagues who said
they had seen the memorandum were no doubt telling
’ That he earlier suspected racial discrimination at
SmithKline, or even that he complained about it, App.
B24 & n.13, does not prove that petitioner "should have
known" that he was not given the same notice of favorable
economic opportunities in 1989 as other comparable
corporate staff.
es
the truth. But that statement also cannot logically lead to
a conclusion that no rational factfinder could find for
petitioner on the discovery rule. To the contrary, the
summary judgment record was sufficient to find that peti-
tioner neither knew nor should have known until 1995
that he had been treated differently from others in 1988-
89 on account of race, based on his own testimony that he
did not believe he had seen the April 1989 memorandum,
i.e., that the document and its contents had been invidi-
ously kept from him when he "should" have "seen it," that
is, when it should have been distributed to him, too.
Other circuits have been far more favorable to
plaintiffs than the court below when reviewing summary
judgments granted on statute of limitations grounds, over
assertion of the "discovery rule." For example, in Sellars
v. Perry, 80 F.3d 243 (7th Cir. 1996), the court reversed
the grant of summary judgment on limitations grounds in
a § 1983 case, where there was no evidence that the
plaintiff in fact even knew he had been terminated; the
court remanded for further factual development on
whether he should have known.
Similarly, in non-civil rights contexts, many circuits
have found the "should have known" aspect of the
discovery rule a particularly poor candidate for summary
judgment. The District of Columbia Circuit (with then-
Judge Scalia on the panel) carefully reviewed the
standard for summary judgment on a "discovery rule"
issue that threatened to undo the plaintiff's legal
malpractice case, finding the issue a complex one
factually, on which reasonable minds could differ. Byers
vy. Burleson, 713 F.2d 856 (D.C.Cir. 1983).
In Maughan v. SW Servicing, Inc., 758 F.2d 1381
(10th Cir. 1985), the same principles required reversal of
<3.
watt a
a summary judgment on statute of limitations grounds,
where the issue was when the plaintiff's should have
known of a potential causal link between their family
members’ leukemia deaths and the defendant’s uranium
plant. Accord, Rose v. A.C.& S., Inc., 796 F.2d 294, 296-
98 (9th Cir. 1986) (summary judgment inappropriate on
question of when widow should have known asbestos that
caused husband’s death was unreasonably dangerous);
Foster v. Johns-Manville Sales Corp., 787 F.2d 390 (8th
Cir. 1986) (summary judgment inappropriate on question
of when widow should have known husband’s death was
caused by defendant’s asbestos). See also Cambridge
Plating Co. v. Napco, Inc., 991 F.2d 21, 26-30 (1st Cir.
1993) (business dispute over functioning of waste-water
plant; discussing "could have known" standard vs. "should
have known" for discovery rule; summary judgment
reversed).
The decisions of the courts below in petitioner
Jordan’s case are inconsistent with this Court’s guidance
and with the decisions of the other Circuits. This Court
should grant certiorari to clarify that standard for
summary judgment, and to resolve the conflict between
the ruling below and those of other circuits leaving to
factfinders the ultimately issue of what a plaintiff "should
have known" and when he "should have known" it.
<f%..
CONCLUSION
For the foregoing reasons, petitioner J. ST.
GIRARD JORDAN prays that this Court grant his
petition for a writ of certiorari to review the judgment
and opinion of the United States Court of Appeals for
the Third Circuit and remand to that court to consider
reinstating his complaint against respondent.
Respectfully submitted,
By: PETER GOLDBERGER
Counsel of Record
ANNA M. DURBIN
PAMELA A. WILK
50 Rittenhouse Place
Ardmore, PA 19003-2276
(610) 649-8200
Attorneys for Petitioner
July 6, 1998.
-14-
APPENDIX A
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 97-1273
J. ST. GIRARD JORDAN,
Appellant
¥,
SMITHKLINE BEECHAM, INC.
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 95-cv-05705)
District Judge: Hon. Ronald L. Buckwalter
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 20, 1998
Before: SLOVITER, Chief Judge,”
LEWIS and GARTH, Circuit Judges
* Judge Sloviter was Chief J udge of the Court of Appeals
for the Third Circuit at the time this appeal was
submitted. Judge Sloviter completed her term as Chief
Judge on January 31, 1998. —
(Filed FEB 04 1998)
MEMORANDUM OPINION
SLOVITER, Chief Judge.
Before us is the appeal of plaintiff Jack St. Girard
Jordan from the order granting summary judgment to his
former employer, SmithKline Beecham, Inc., on
[*2ordan’s complaint alleging employment discrimina-
tion and several state law claims. The relevant facts are
fully set forth in the district court’s opinion, which is
reported at 958 F.Supp. 1012 (E.D.Pa. 1997), and thus
we describe them only briefly.
I.
Jordan, an African American, had worked as an
attorney for SmithKline from 1974 until 1989. In 1988,
he accepted SmithKline’s offer to participate in a
“Voluntary Reduction in Force" ("VRIF") which offered
enhanced severance benefits provided the employee
signed a general release, signed up for the program by
December 7, 1988, and agreed to continue working for
up to one year at SmithKline’s request. Following
Jordan’s last day of employment in July, 1989, he
received the promised severance pay and benefits. He
also laier received a merit bonus for $23,300 for the
seven months he worked in 1989.
In January of 1989, the SmithKline Board of
Directors passed a resolution that those employees who
had not accepted the VRIF or who had accepted and
then revoked it would still be eligible for the VRIF
benefits in the event of a "change of control" and involun-
aa ce is paalll
tary termination during the next 24 months. Jordan
testified at his deposition that he understood that he
could revoke his acceptance of the VRIF package. App.
at 52-55. According to SmithKline, the company circu-
lated a memorandum on April 6, 1989, authored by
Henry Wendt, SmithKline’s Chief Executive Officer at
the time, to "All Corporate Staff Employees," (a group
which would include Jordan) summarizing the substance
of the January resolution. App. at 183, 246. Jordan
contends that he does not [*3]recall seeing the memo and
that he was unaware of its contents. At his deposition,
Jordan testified:
A: I don’t recall seeing [the memo dated
April 6th, 1989], but it [sic] went to all corpo-
rate staff employees, I should have seen it.
Q: Do you have any reason to believe, one
way or the other, that this document did not
go to all corporate staff employees?
A: No. Often times the policy was to or
procedure, I should say, was posted on the
Board, it may have been posted or it may have
gone out, but if someone said they did either
one, I would accept that.
App. at 91.
In January of 1989, SmithKline granted stock
options to those management level employees who had
not accepted the VRIF or who had revoked their accept-
ance. Jordan, who had accepted the VRIF and had not
revoked his acceptance, was not granted those options.
On July 12, 1993, Jordan began his state court
action which, ultimately, following removal to federal
court based on diversity jurisdiction and several amend-
ments, alleged in Count I, a claim for the cash value of
the January 1989 stock option grant; Count II, a claim for
an additional bonus amount for his work in 1989; Count
III, a claim for Breach of the Covenant of Good Faith
and Fair Dealing; Count IV, a claim for violation of Title
VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et
seq.; Count V, a claim for violation of the Civil Rights
Act of 1[8]66, 42 U.S.C. § 1981; Count VI, a claim for
violation of the Pennsylvania Human Relations Act, 43
Pa. Stat. Ann. § 955(a); Count VII, a claim for Negligent
Misrepresentation. The last five claims were [*4]added
in December of 1995.
In granting summary judgment for SmithKline,
the district court held that the release that Jordan signed
as part of the VRIF program was valid and applicable.
Much of the argument on this appeal was directed to that
ground. However, we do not reach that issue because
other bases, also relied on by the district court, support
the court’s judgment.
II.
a. Count I
Count I of Jordan’s complaint alleging that he was
wrongfully excluded from the J anuary 1989 stock option
grant assumes entitlement because Jordan had received
stock options several times during his employment
‘pursuant to SmithKline’s published policies," and
SmithKline communicated its policy to award stock
option grants through its "Prospectus" and other notices
to employees.
In granting summary judgment on this count, the
district court relied on the decision of the Pennsylvania
Supreme Court in Morosetti v. Louisiana Land and
Exploration Co., 522 Pa. 492 (1989), where the Court
held that former employees did not have a contractual
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right to severance benefits, even though the employer
may have had a "policy" of granting such benefits in the
past. In this case, Jordan only alleged that he was
granted stock options in the past and that the company
had a "policy" of granting stock options. As the district
court noted, the documents that are available in the
record regarding the company’s policy on granting stock
options specifically preserve the [*S]company’s discretion
to select the employees to receive the options and to
determine the number of shares to be distributed. 958
F.Supp. at 1021-22. The district court did not err in
holding that SmithKline was entitled to summary
judgment on this count.
b. Count II
In Count II, Jordan seeks an additional bonus.
Jordan alleges that the bonus of $23,300 SmithKline paid
him for the seven months that he worked in 1989 "repre-
sented less that [sic] 50% of the amount Piaintiff should
have received for employees in the same management
level," even though "[w]hen bonuses were declared they
were to be equal for all employees of the same manage-
ment level." App. at 12.
The district court held that under the principles
set out in Morosetti, Jordan had not put forth any
evidence showing that he had a binding contract with
SmithKline to be paid a certain bonus. As with Count I,
SmithKline was entitled to summary judgment on this
count.
ce. Count III
Count III of Jordan’s complaint alleges that
SmithKline breached its covenant of good faith and fair
dealing with him by 1) not informing him of the January
1989 Board resolution during a period of contractual
negotiations concerning his employment and 2) by failing
to “fulfill the reasonable and justified expectations of the
Plaintiff that all information would be made available to
him during the period of negotiations concerning his
separation." App. at 12-13.
The district court found that this claim was barred
by the statute of [*6] limitations. The limitations period
for a claim of-breach of the covenant of good faith and
fair dealing is four years, the period governing breaches
of contract. See Engstrom v. John Nuveen & Co.. 668
F.Supp. 953, 958 (E.D.Pa. 1987) (breach of good faith
and fair dealing claim treated as contract claim); 42
Pa.C.S.A. § 5525. The alleged wrong would have
occurred before December 8, 1988, or at the latest, given
Jordan’s ability to revoke before leaving, J uly of 1989.
As those events took place over 6 to 7 years before
Jordan filed his amended complaint in federal court in
December 1995, which first raised this claim, Count III is
not within the limitations period.
For this claim and the remainder of his claims,
Jordan attempts to invoke the "discovery rule" to argue
that the statute of limitations has not run. Jordan argues
that he first "discovered" the basis for his claims, the
January 1989 Board Resolution, in February of 1995
when he was conducting discovery on his state law claims
and thus that is when the statute of limitations began to
run.
In Oshiver v. Levin, Fishbein, Sedran & Berman,
38 F.3d 1380 (3d Cir. 1994), we reviewed the parameters
of the discovery rule. We stated, "A claim accrues in a
federal cause of action as soon as a potential claimant is
aware, or should be aware, of the existence of and
source of an injury .... Thus, the ‘polestar’ of the
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discovery rule is not the plaintiff's actual knowledge of
injury, but rather whether the knowledge was known
[sic], or through the exercise of reasonable diligence,
knowable to the plaintiff." Id. at 1386 (citations omitted).
SmithKline introduced evidence that Wendt’s
. April 6, 1989 memorandum [*7]addressed to all corpo-
rate staff employees was distributed on or about that
date. Jordan himself conceded that "it may have been
posted or it may have gone out, but if someone said they
did either one, I would accept that." App. at 91. The
district court appropriately discounted the employee who
signed the one supporting affidavit in which he averred
that he also did not see the memorandum because he was
not employed at SmithKline at the time the April 1989
memorandum was distributed.
Inasmuch as there is no evidence that the April
1989 memorandum summarizing the January 1989 Board
Resolution had not been distributed as SmithKline
contends, and Jordan conceded that if it were he "should
have seen" it, under Oshiver’s "reasonable diligence"
standard, Jordan should have been aware of the memo-
randum in April of 1989. Thus, the statute of limitations
still acts as a bar to Jordan’s claims, since over six years
passed between the time that he filed his complaint in
1995 and the time that he "should have seen" the April
1989 memorandum summarizing the January 1989 Board
Resolution.
Nor are we persuaded to invoke the equitable
tolling doctrine, as Jordan seeks. The principal situations
for invocation of the equitable tolling doctrine are 1)
where the defendant has actively misled the plaintiff
respecting the plaintiff's cause of action; 2) where the
plaintiff in some extraordinary way has been prevented
from asserting his or her rights; or 3) where the plaintiff
has timely asserted his or her rights mistakenly in the
wrong forum. See Oshiver, 38 F.3d at 1387. This
doctrine is not applicable here, as there is no evidence
that SmithKline actively attempted to mislead
[*8 Jordan, and we affirm on the basis of the Statutory .
bar.
d. Count IV
Much of the discussion in the preceding section is
also applicable to the judgment on the other counts
disposed of on the basis of the statute of limitations. In
Count IV, Jordan alleges that SmithKline’s actions
constituted racial discrimination under Title VII because
it failed to inform him that he could revoke his accept-
ance of the VRIF without losing his eligibility for
enhanced benefits. The district court found that Jordan’s
Title VII claims were barred by the applicable statute of
limitations.
Title VII requires that a plaintiff file suit either
within 180 days of the alleged discrimination or, if the
plaintiff files first with a state or local agency, within 300
days. 42 U.S.C. § 2000e-5(e). The alleged discrimination
on which the failure to disclose claim is based took place
in 1988 when Jordan was negotiating his VRIF package
or, at the latest, in 1989 when the Board issued its resolu-
tion. Jordan did not file his administrative charges until
August of 1995, and thus the district court did not err in
holding the failure to disclose claim barred by the statute
of limitations.
Jordan also appears to assert a constructive
discharge claim, which is based on action which would
have taken place in 1988 when he was negotiating his
VRIF or when his employment was terminated in 1989.
-A8-
The constructive discharge claim began to accrue when
Jordan learned of his actual injury, which would have
been when his employment at SmithKline ended in July
of 1989. In Oshiver, which presented a comparable issue
regarding the termination of a female attorney, we held
that the statute [*9]began to run in April of 1990 when
the plaintiff was discharged and told that there was not
enough work to support her position, rather than in April
of 1991 when she learned that a male employee had been
hired to replace her. We stated that the fact that
"Oshiver may have been deceived regarding the
underlying motive behind her discharge is irrelevant for
the purposes of the discovery rule." Oshiver, 38 F.3d at
1391.
Although we note that Jordan made references to
racial discrimination at SmithKline in letters that Jordan
wrote to SmithKline officials in attempting to secure the
stock options, App. at 247-53, and this evidence may
belie his contention that he only recently "discovered" the
basis for his race discrimination claims, we need go no
further than our discussion above in affirming the
summary judgment on this claim.
e. Count V
The statute of limitations similarly bars Count V
of Jordan’s complaint which asserts discrimination under
the Civil Rights Act of 1[8]66, 42 U.S.C. § 1981, by
alleging that SmithKline interfered with his rights to
make and enforce contracts and his right to "full and
equal benefit of all laws." The district court found that
this claim also was barred by the applicable statute of
limitations.
The statute of limitations period for actions under
§ 1981 is two years after the date of the discrimination.
See Goodman v. Lukens Steel Co., 482 U.S. 656, 662
(1987). As the relevant events took place in 1988 and
1989, the limitations period had passed by the time the
§ 1981 count was added.
{*10]}f. Count VI
In Count VI, Jordan alleges discrimination in
violation of the Pennsylvania Human Relations Act
(PHRA), 43 Pa. Stat. Ann. § 955(a). The statute of limit-
ations under the PHRA is 180 days from the date of the
alleged discrimination. Oshiver, 38 F.3d at 1385.
Because the alleged discrimination here took place in
1988 and 1989, these claims, like Jordan’s Title VII
claims, are barred. Our earlier rejection of Jordan’s
effort to use the discovery rule is also applicable here.
g. Count VII
Count VII of Jordan’s complaint alleges negligent
misrepresentation on the basis of SmithKline’s "non-
communication of employment opportunities." The
statute of limitations governing this claim is two years.
Aamco Transmissions, Inc. v. Harris, 759 F.Supp. 1141,
1144 (E.D.Pa. 1991); 42 Pa.C.S.A. § 5524. The district
court found that this count also was barred by the appli-
cable statute of limitations, and we agree for the reasons
set forth above.
III.
For the foregoing reasons, we will affirm the
district court’s grant of summary judgment on all of
Jordan’s claims.
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APPENDIX B
958 F.Supp. 1012
(70 Empl. Prac. Dec. 1 44,735)
J. St. Girard JORDAN, Plaintiff,
v.
SMITHKLINE BEECHAM, INC., Defendant.
Civil Action No. 95-5705.
United States District Court,
E.D. Pennsylvania.
April 3, 1997
*1015 Richard L. Gerson, Willan F. Joseph,
Philadelphia, PA, for Plaintiff.
M. Frances Ryan, Frederick G. Herold, Dechart, Price
& Rhoads, Philadelphia, PA, for Defendant.
MEMORANDUM
BUCKWALTER, District Judge.
I. INTRODUCTION
Plaintiff J. St. Girard Jordan ("Plaintiff") has brought
this action against SmithKline Beecham, Inc.
("SmithKline") alleging discrimination and other claims
related to his employment with SmithKline.
Currently before the Court is defendant SmithKline’s
Motion for Summary Judgment and the response of
Plaintiff thereto. For the following reasons, SmithKline’s
motion will be granted.
Il. STATEMENT OF FACTS!
A. Plaintiff's Work History
Plaintiff first joined SmithKline in 1963. Deposition
of J. St. Girard Jordan ("Jordan Dep.") at 11. In 1970,
Plaintiff left SmithKline in order to attend law school.
Jordan Dep. at 12. Plaintiff returned to SmithKline in
1974 and worked as an attorney in SmithKline’s Law
Department until 1989, when he resigned under the
terms of an enhanced separation package.
During Plaintiffs career at SmithKline, he was
promoted a number of times. Jordan Dep. at 15-18.
Plaintiff became General Counsel for the Animal Health
and Consumer Product business groups and, by 1986, he
became Assistant General Counsel for the corporation.
Jordan Dep. at 18. Plaintiff *1016 received steady salary
increases and periodic merit bonuses, so that by 1988-89
he was earning $104,507.00 per year. See SmithKline
Beecham’s Motion for Summary Judgment ("Smith-
Kline’s Motion") at Exhibit ("Ex.") A-1. Plaintiff also
received significant stock option grants between 1979 and
1988, that due to increases in stock prices, had a value of
approximately $500,000 after they vested and he
exercised them. Jordan Dep. at 64-67.
B. The December 1988 VRIF
In 1988 SmithKline underwent a reorganization.
Jordan Dep. at 96. In addition, rumors circulated during
' The following facts are based on the evidence of record
viewed in the light most favorable to Plaintiff as the
nonmoving party, as required when considering a motion
for summary judgment. See Sempier v. Johnson &
Higgins, 45 F.3d 724, 727 (3d Cir.), cert. denied, 515 U.S.
1159, 115 S.Ct. 2611, 132 L.Ed.2d 854 (1995).
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this same time period regarding the possibility of a
merger with a British company.” SmithKline’s Motion at
Exhibit A, P 9; Jordan Dep. at 96, 108-112. The
reorganization and the likelihood of a merger caused
uncertainty among SmithKline’s executives and
employees about job security, since it appeared that the
company would have to change or eliminate positions.
Id.
In late 1988, SmithKline decided to offer employees
in certain business groups the chance to voluntarily
resign in exchange for enhanced severance benefits so
that the company would have to fire fewer people,
making the anticipated reorganization and/or merger
smoother. The voluntary resignation program was titled
"Voluntary Reduction in Force" ("VRIF"). SmithKline’s
Motion at Ex. A, P 2; Jordan Dep. at 97-99. pe:
In November 1988, the Chief Executive Officer of
SmithKline sent a letter to employees from selected
business groups, including Jordan’s group, offering a
VRIF opportunity. The VRIF package included the
following terms:
1. The employee had to sign a general release in
order to receive the benefits;
2. The employee had to sign up for the VRIF
program by December 7, 1988;
3. The employee had to work until the comple-
tion of the assignment as specified by the
Company, up to one year;
4. If a long-term employee (like Jordan)
complied with the terms of the program, he or
she would receive:
2 A merger between SmithKline Beckman and Beecham
was finally announced in April 1989.
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(a) Enhanced severance benefits
(b) Enhanced pension benefits
(c) A 6-month extension of medical and
dental benefits
(d) Pay for 1989 vacation and personal days.
See SmithKline’s Motion at Exs..A-2, A-3 and A-4.
Plaintiff decided to accept the VRIF package on
December 7 or 8, 1988, with his last day of work to be in
July 1989. Jordan Dep. at 107-110, 115. Plaintiff testified
that he liked the company and that the decision to resign
was a very difficult one that was motivated primarily by
uncertainty concerning whether his position would
survive the reorganization and/or the expected merger.
Jordan Dep. at 135-38.
C. The January 1989 Stock Option Grant
In January 1989, after Jordan declared his decision
to resign under the VRIF program, SmithKline granted
stock options to designated management level employees
who had either decided to remain with the company or
had rescinded their acceptances of the VRIF package.
SmithKline’s Motion at Ex. A, PP 7-8. Consistent with
this policy, SmithKline did not offer the stock option
grant to Plaintiff or to any other employee who had
accepted the VRIF package. Id.
D. The January 1989 Board Resolution
In late January 1989, the SmithKline Board of Direc-
tors passed a resolution which stated that the Corporate
staff employees who had not taken the VRIF package or
revoke their acceptances of it, would still be eligible for
the enhanced VRIF separation package if there was a
"change in control" of the corporation and their positions
were involuntarily terminated during the following 24
months. See SmithKline’s Motion at Ex. A-10. The
3
resolution did not guarantee that any position would
remain after the merger; in fact, it addressed what would
happen to *1017 severance benefits if the company had
to eliminate positions.
When it became clear in early April 1989 that a
change was imminent, Henry Wendt, the Chief Executive
Officer, circulated a memorandum to "All Corporate
Staff Employees" (of which Jordan was one) which
announced the substance of this resolution--namely that
they (the corporate staff) would be entitled to the
enhanced severance package if their jobs were eliminated
within 24 months from January 25, 1989. See Smith-
Kline’s Motion at Ex. A, PP 10-11; Ex. A-11; Ex. B, P 6;
and Exhibit C, P 4. Plaintiff testified that he does not
recall having seen this memorandum "but if it went to all
corporate staff employees, I should have seen it." Jordan
Dep. at 347. Plaintiff also testified that he had no reason
to believe that this document did not go to all corporate
staff employees and stated that "[o]ften times the policy
was to or procedure, I should say, was posted on the
Board, it may have been posted or it may have gone out,
but if someone said that they did either one, I would
accept that." Jordan Dep. at 347.
_ Avery limited number of SmithKline employees,
who like Plaintiff, took the VRIF package in December
1988, later decided to revoke their resignations.
SmithKline’s Motion at Ex. A, P 5. Plaintiff testified that
he understood that he could have revoked his VRIF
election and that he had discussions with his supervisors
about it. Jordan Dep. 144-51. He decided not to revoke
his acceptance, however, because he did not receive
assurances that his position would survive a reorganiza-
tion or a potential merger and he was concerned that he
-BS-
would lose the VRIF benefits. Jordan Dep. at 151-52.
Plaintiff remained as a SmithKline employee until July
14, 1989, at which point his resignation became effective.
E. The Release
Pursuant to his VRIF election, Plaintiff Signed a
general release which contained a covenant not to sue.?
See SmithKline’s Motion at Ex. A-5. During Plaintiff's
exit interview with Sheila McDowell on or about June 14,
1989, Plaintiff acknowledged that he had signed the
release and that he had completed his agreed-upon term
of employment so that he was eligible for the enhanced
severance package. See SmithKline’s Motion at Exs. B-4
and B-S. The severance election form, which plaintiff
signed during this interview, informed those who resigned
voluntarily: "You will not receive severance pay if you do
not execute the General Release form." SmithKline’s
Motion at B-5; Jordan Dep. at 163-64. Plaintiff testified
that he understood that he was obligated to "sign and
7 In the general release, Plaintiff agreed to release and
discharge:
SmithKline Beckman Corporation, its ...
Successors ... from all claims and/or causes of
action, known or unknown, which I may have or
claim to have against the Company arising from
or during my employment or as a result of the
termination of my employment, and I hereby
agree not to sue the Company on any such claim
or cause of action. This release includes but is
not limited to claims arising under federal, state
or local laws prohibiting employment
discrimination ....
EEE MOE oT eee
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return the General Release form and work until the
conclusion of [his] assignment" in order to receive the
benefits. Jordan Dep. at 180.
F. SmithKline’s Payments to Plaintiff
Following his last day of employment in July 1989,
Plaintiff received $172,437 in severance pay plus back
vacation pay, an enhanced pension program, continued
medical benefits and all of the other promised
components of the VRIF package. Jordan Dep. at 118-
119; SmithKline’s Motion at Ex. A, P 12. To this date,
Plaintiff has never offered to refund the corporation for
the enhanced severance benefits he received.
SmithKline’ Motion at Ex. A, P 12.
In addition, Plaintiff negotiated a 2 1/2 year consul-
ting arrangement and stayed on as a consultant for the
SmithKline Consumer Product Division. Jordan Rep. at
14°, . 18-24. Pursuant to this consultant’s agreement,
Plainuff was to earn $2,550 per week for 25 1/2 hours of
work or approximately $132,600 per year. Jordan Dep. at
223-24. In early 1990, approximately eight months into
Plaintiff's consulting arrangement, SmithKline underwent
another reorganization and had to terminate Plaintiff's
agreement. Jordan *1018 Dep. at 229-30. Although
Plaintiff stopped working for SmithKline at that time, he
later received a final payment in 1990 of $137,222 under
this agreement. Jordan Dep. at 231-33. That same year,
SmithKline also gave Plaintiff a bonus of $23,300 for the
seven and a half months he worked at the company in
1989. SmithKline’s Motion at Ex. A, P 13.
As set forth above, between December 1988 (when
Plaintiff announced his decision to resign) and the
middle of 1990 (when Plaintiff's consulting agreement
ended), Plaintiff received the following compensation
from SmithKline:
-B7-
* Seven and a half months worth of his annuclized
salary of over $104,507 for his seven and a half
month period of employment in 1989
* Severance pay of $172,437
* Continued medical and dental payments, payment
for unused vacation days and eligibility for
enhanced pension benefits
* A $23,300 bonus for his seven and a half months
work in 1989
* $2,550 per week for the approximately eight
- months that he worked under the consulting
agreement
* $137,222 in payment when SmithKline terminated
his consulting agreement
After he resigned, Plaintiff also exercised his
accumulated stock options and received approximately
$500,000 more. Jordan Dep. at 64-67.
G. Procedural History and Plaintiff's Current Claims
On July 12, 1993, approximately four and one half
years after the January 1989 stock option grant, Plaintiff
filed a Praecipe for a Writ of Summons in the Philadel-
phia Court of Common Pleas. SmithKline’s Motion at
Ex. D. Plaintiff's Civil Cover Sheet indicated that he
would file a contract claim worth more than $50,000.
The parties eventually removed the case to this
Court based on diversity of jurisdiction. Subsequently,
Plaintiff filed a Complaint which contained two counts.
SmithKline’s Motion at Ex. E. In Count I, Plaintiff stated
that SmithKline should have included him in the stock
option grant in 1989 and he sought cash value of this
grant. In Count II, Plaintiff alleged that the bonus he
received for his seven and one half months of work in
1989 was less than he should have received and he sought
payment of more money to make up for an unspecified
alleged shortfall.
This case was later remanded to the Court of
Common Pleas due to a jurisdictional defect. After a
passage of time, Plaintiff hired another attorney and
notified counsel for SmithKline in August 1995 that
Plaintiff had decided to amend his complaint to add a
federal race discrimination charge and other similar
claims. SmithKline then removed the case to this Court
again, this time on the basis of the proposed new federal
statutory claims.
Shortly before filing the Amended Complaint,
Plaintiff filed a charge of race discrimination with the
Equal Employment Opportunity Commission ("EEOC")
and the Pennsylvania Human Relations Commission
("PHRC"). See SmithKline’s Motion at Exs. F and G.
His charge read, in its entirety, as follows:
I am the victim of racial discrimination by my
former employer, SmithKline Beecham, Inc.
("SmithKline").
On or about February 13, 1995, I learned that
SmithKline favored similarly situated white
employees over me with regard to the terms
and conditions of my employment. Specifically,
SmithKline in 1989 discriminated against me
with regard to a separation package that the
company offered.
White employees were given favorable treat-
ment and offered the opportunity to revoke
acceptance of a separation package to retain
their jobs and if terminated within 24 months to
retain entitlement to the enhanced separation
package. I was not given the opportunity and
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thereby discriminated against and suffered
detrimentally with respect to the terms and
conditions of my employment.
SmithKline’s Motion at Ex. F.
After the case was removed to this Court, Plaintiff
moved for leave to amend his complaint to add his new
claims. On December *1019 21, 1995, Plaintiff filed his
Amended Complaint, which contains the following
claims:
Count I: The original stock option claim
Count II; The original bonus claim
Count III: A claim for breach of the covenant of
good faith and fair dealing with respect to "negoti-
ations" concerning Plaintiff's employment and
termination, based on SmithKline’s purported
failure to inform Plaintiff of the January 1989
board resolution extending VRIF eligibility.
Count IV; A Title VII claim for race discrimination,
including a claim that Plaintiff was constructively
discharged, based on SmithKline’s purported
failure to inform Plaintiff of the January 1989
board resolution extending VRIF eligibility.
Count V: A race discrimination charge under 42
U.S.C. § 1981 based on the same claim.
Count VI: A race discrimination charge under the
Pennsylvania Human Relations Act based on the
same claim.
Count VII; A claim for negligent misrepresentation
due to a "non- communication" of information by
SmithKline, again based on the company’s
purported failure to inform Plaintiff of the
January 1989 board resolution extending VRIF
eligibility.
-B10-
Si) ge ee a a.
Ow ee ee
Defendant SmithKline responded with an Amended
Answer, as well as two similar Counterclaims. Smith-
Kline’s Counterclaims allege that Plaintiff violated the
terms of the general release he executed in order to
receive his VRIF benefits and breached the covenant not
to sue contained in the release when he filed the instant
lawsuit.
III. DISCUSSION
A. Summary Judgment Standard
Summary judgment is appropriate only when the
admissible evidence fails to demonstrate a dispute of
material fact and the moving party is entitled to judgment
as a matter of law. Sempier v. Johnson & Higgins, 45 F.3d
724, 728 (3d Cir.), cert. denied, 515 U.S. 1159, 115 S.Ct.
2611, 132 L.Ed.2d 854 (1995). When the moving party
(here, SmithKline) does not bear the burden of persua-
sion at trial, the moving party must show that the
nonmoving party’s (here, J. St. Girard Jordan) evidence
is insufficient to carry its burden of persuasion at trial.
Id.; Celotex Corp. v. Catrett, 477 U.S. 317, 323- 25, 106
S.Ct. 2548, 2552-54, 91 L.Ed.2d 265 (1986). Thereafter,
the nonmoving party creates a genuine issue of material
fact if sufficient evidence is provided to allow a
reasonable jury to find for him at trial. Anderson v.
Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91
L.Ed.2d 202 (1986).
B. Argument
1. The Release
[1] As discussed earlier, Plaintiff signed a release
that contained a covenant not to sue on December 7,
1988 in order to be eligible to receive the VRIF package.
Plaintiff also reaffirmed the release in the severance
election form that he signed in his exit interview in June
1989.
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As a threshold issue, SmithKline asserts that Plain-
tiff's claims are barred solely on the basis of this release
because (1) Plaintiff ratified the release by not returning
the consideration he received and (2) Plaintiff has not
identified any misrepresentation on which he bases his
claims of fraud. In response, Plaintiff argues that this
release does not bar his claims because (1) certain causes
of action accrued and were discovered after the release
was signed and (2) SmithKline made material
misrepresentations to secure the release. I agree with
SmithKline’s arguments and adopt them as follows.
[2] A long line of Pennsylvania cases hold that a
release covers only those matters which may be fairly said
to have been within the contemplation of the parties
when the release was given. Restifo v. McDonald, 426 Pa.
5, 230 A.2d 199, 201 (1967) (citations omitted). There-
fore, as Plaintiff correctly argues, the general words of
the release "will not be construed as to bar the enforce-
ment of a claim which has not accrued at the date of the
release." Jd.
[3][4] However, a party cannot evade the clear
language of the release by contending *1020 that he did
not subjectively intend to release the claim in question.
Buttermore v. Aliquippa Hosp., 522 Pa. 325, 561 A.2d 733,
735 (1989). Likewise, where a release includes unknown
claims, a party cannot avoid its effect by arguing that he
did not know of the matter in question when he signed
the release. Jd.; See also Emery v. Mackiewicz, 429 Pa.
322, 240 A.2d 68, 70 (1968) (release of unknown claims
bars claims of injuries which were discovered after the
execution of the release).
In this case, Plaintiff's claims arose out of his
employment or the termination of his employment,
-B12-
. OSI LSA NI i aN Apion ox.
Be SG ot we le 2. bs ee
3
subjects specifically covered in the Plaintiff's general
release. Additionally, Plaintiff signed the severance
election form, thereby reaffirming his intent to release all
claims in exchange for payment of enhanced severance in
the amount of $172,437. This reaffirmation of his release
clearly occurred. after all of the events which form the
basis of the suit that Plaintiff now seeks to assert.
[5] Plaintiff next contends that the release is void
because it was induced by fraud. However, Plaintiff
completely ignores the argument that a claimant may not
seek to invalidate a release based on purported fraud
where he failed to return to the other party the consider-
ation he received for the release. Plaintiff's failure to do
so constitutes ratification of the release. See Blistein v.
St. John’s College, 74 F.3d 1459, 1466-67 (4th Cir.1996)
(plaintiff who released all claims arising from termination
of employment was barred from pursuing claim because
he ratified the release by retaining the severance benefits
after he discovered the purported basis for voiding the
release)*; Blakeney v. Lomas Info. Sys., Inc., 65 F.3d 482,
485 (Sth Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct.
1042, 134 L.Ed.2d 189 (1996) (same); Ponzoni v. Kraft
* In Blistein, the plaintiff had not even signed the release
form which his employer had requested that he sign. 74
F.3d at 1464. The court still found an implied release
because the employee had clearly elected to participate
in the voluntary retirement program in exchange for
valuable benefits and had failed to return the benefits
before bringing suit. Jd. at 1466-67.
> In Blakeney, the court refused to permit a plaintiff who
had released all claims "growing out of any legal
restrictions on the company’s right to terminate its
-B13-
General Foods, 774 F.Supp. 299, 316 (D.N.J 1991), aff'd,
968 F.2d 14 (3d Cir.1992) (same).
(6}[7}[8] More fundamentally, Plaintiff has stil] not
identified the misrepresentation upon which he bases his
claim of fraud. In order to state a prima facie case of
fraud, a plaintiff must show 3
(1) a representation; (2) which is material to the
transaction at hand; (3) made falsely, with
knowledge of its falsity or recklessness as to
whether it is true or false; (4) with the intent of
misleading another into relying upon it; (5) justi-
fiable reliance on the misrepresentation; and (6)
the resulting injury was proximately caused by
the reliance.
Gibbs v. Ernst, 538 Pa. 193, 647 A.2d 882, 889 (1994).
The misrepresentation must be "a misrepresentation of a
past or present material fact"--"a prediction of a future
event is not a misrepresentation." BMB Assocs. v.
Ortwein, 1994 WL 314330, at *4 (E.D.Pa. June 29, 1994),
aff'd, 60 F.3d 813 (3d Cir.1995).
In this case, it appears that Plaintiff has only alleged
the "non-communication" of the possibility of a future
(continued)
employees" to bring a claim based on the company’s
failure to rehire the plaintiff after he had executed the
release. 65 F.3d at 484. The court held that such a claim
is not a "future claim," but rather is simply an attempt to
revive a claim the plaintiff was paid to release. Jd. at 485.
Since the claim arose out of the termination, it was
barred by the release which the plaintiff had ratified by
refusing to return the consideration that the company
had paid. Id.
-B14-
bitte ie
Se Te eee ae SN ee eT ee
event--the possibility that in January 1989 the Board
would decide to pass a resolution that changed the VRIF
rules for certain employees who had not yet accepted the
VRIF package or who had elected it and then revoked
the election. Plaintiff has offered no evidence that
anyone in the Company knew on December 8, 1988 when
Plaintiff first signed the release that the Board would
pass a resolution in Januaiy 1929.
Plaintiff, however, contends that this board resolu-
tion may not have been a future event because Smith-
Kline may have contemplated *1021 allowing certain
employees to revoke their VRIF acceptances before
December 7, 1989 and therefore misled Plaintiff into
signing the release by representing that he would lose the
enhanced benefits. In making this argument, Plaintiff
ignores the evidence that, in a memorandum dated April
6, 1989, SmithKline informed "All Corporate Staff
Employees" of the very facts which Plaintiff claims that
the company concealed from him. As Plaintiff re-
affirmed his general release after this disclosure, he
cannot sustain the claim that the Court should invalidate
the release due to fraudulent concealment.®
® In his deposition, Plaintiff states that he does not recall
having seen this memorandum "but [as] it went to all
corporate staff employees, I should have seen it." Jordan
Dep. at 347. Plaintiff also testified that he had no reason
to believe that this document did not go to all corporate
staff employees and stated that "[o]ften times the policy
was to or procedure, I should say, was posted on the
Board, it may have been posted or it may have gone out,
but if someone said that they did either one, I would
accept that." Jd.
-B1S-
Although SmithKline is entitled to summary
judgment solely on the basis of the release, I will address
Plaintiff's additional claims.
2. Count I--Contractual Right to the January 1989
Stock Option Grant
[9] In Count I of the Amended Complaint, Plaintiff
alleges a breach of contract claim as he contends that
SmithKline should have included him in the January
1989 stock option grant. SmithKline argues that (1)
Plaintiff's claims are barred by the statute of limitations
and (2) Plaintiff cannot prove that he had a contract
which required SmithKline to issue any stock options to
Plaintiff. As I agree that SmithKline retained the
authority to determine which of its employees would
receive stock options, I conclude that Plaintiff did not
have a contractual right to the 1989 stock option grant.’
[10] In order to prove an enforceable contract in
which an employer grants a specific benefit to an
employee, the employee must prove that the employer
communicated an intentional offer with definite terms,
that the employer intended to be bound by the offer and
that the employer made the offer to induce the employee
to accept or continue employment with the company.
Morosetti v. Louisiana Land and Exploration Co., 522 Pa.
492, 564 A.2d 151, 152 (1989).
In Morosetti, the Pennsylvania Supreme Court held
that employees did not have a contractual right to
severance pay despite the fact that the company had a
policy of granting it. The court held that it was insuffi-
” As I will reach a decision on the merits, I will not
address SmithKline’s statute of limitations argument in
this instance.
-B16-
eas. ee ee
cient for an employee to show that the employer
occasionally granted these benefits or even that the
employer had a policy awarding these benefits to all
employees. Morosetti, 564 A.2d at 152-53. In support of
its conclusion, the court reasoned that
It is basic contract law that one cannot suppose,
believe, suspect, imagine or hope that an offer
has been made.... Nor can one be bound
because they are contemplating making an offer,
or that they would or should have or that
someday they might.
A company may indeed have a policy upon
which they intend to act, given certain circum-
stances or events, but unless they communicate
that policy as part of a definite offer of employ-
ment they are free to change as events may
require.
Id.
As in Morosetti, Plaintiff has only alleged that
SmithKline had a program for stock option grants and
that SmithKline had granted Plaintiff stock options in the
past. Amended Complaint at PP 13-15. Plaintiff does
not contend that anybody ever promised to grant him the
January 1989 stock option grant; rather he only claims
that he was among the employees of the corporation who
were eligible to receive stock option grants. Amended
Complaint at P 14.
Moreover, the documents governing SmithKline’s
stock option program provide that the company retained
the discretion at all times to select the persons to receive
the options and to determine the number of shares to be
distributed. See SmithKline at Ex. A, PP 6-8; Ex. A-6 at 3
(May 20, 1997 *1022 Prospectus); Ex. A-8 at 1 (Incentive
-B17-
Compensation Plan). Thus, as Plaintiff has no
contractual right to the grant, his claim fails.8
3. Count II--Contractual Right to a Larger Bonus
In Count II of the Amended Complaint, Plaintiff
a alleges that SmithKline "paid Plaintiff a bonus in 1990
which represented less that [sic] 50% of the amount
Plaintiff should have received for employees in the same
management level." Amended Complaint at P 29.9
® SmithKline also argues that Plaintiff was ineligible for
the stock option grant for the additional reason thata
grantee could not exercise this stock option grant unless
he or she remained with the company for a year or more
and that Plaintiff would be leaving before this time
expired. See SmithKline’s Motion at Ex. A-7, D000534.
Plaintiff counters that SmithKline should have included
him in the stock option grant because the corporation
later accelerated the exercise date as part of the
Beecham merger. As such, Plaintiff concludes that
SmithKline could not exclude him on the basis that only
employees who planned to remain with the company for
a year or more were eligible.
Plaintiff's argument fails because the exercise date is
irrelevant. Here, SmithKline retained the discretion to
determine which employees would receive stock options.
See SmithKline’s Motion at Ex. A, PP 6-8; Ex. A-6 at zx
Ex. A-8 at 1. As stock options served to provide
incentive for future performance, SmithKline had the
right to offer them only to employees who either revoked
their VRIF acceptances or who elected to remain with
the company. See SmithKline’s Motion at Ex. A, P 8.
9 In 1990, Plaintiff received $23,300 for his seven and a
half months of employment before his resignation on July |
-B18-
I
er al ae aor es
SmithKline argues that Plaintiff cannot prove a right to a
larger bonus as (1) the level of bonuses was within the
company’s discretion and (2) SmithKline never promised
Plaintiff a particular bonus.
As discussed above, the burden falls upon the
employee to prove a definite offer to pay an additional
benefit. Morosetti, 564 A.2d at 152-53. In this case,
Plaintiff testified that the level of bonuses for individual
employees was within the discretion of the corporation. !°
Since Plaintiff admits that he had no contract for
(continued)
14, 1989.
10 Tn particular, Plaintiff stated that "the very nature of
bonuses is with discretion. I mean, bonus is something
that’s not guaranteed, that’s the very nature of the
bonus." Jordan Dep. at 62-63. Plaintiff then testified as
follows:
Q: Did anyone at SmithKline ever promise you
either orally or in writing, that you would get a
bonus at a certain level for services rendered in
1989?
A: Not to my knowledge, no. No, I mean, it’s
accepted, as a matter of general operating policy
since I’ve been there, that if the corporation met
certain levels of profitability, they paid bonuses.
Now, no one went around and told individuals
that you were going to get that bonus because it
was an accepted policy of the corporation year in
year out. No one tapped me on the shoulder and
said, Jack, you’re getting a bonus next year.’
Jordan Dep. at 63.
-B19-
payment of a bonus at any particular level for service
rendered in 1989, I conclude that SmithKline is also
entitled to judgment on Count II of the Amended
Complaint.
4. Race Discrimination Claims
Plaintiff asserts race discrimination claims under .
Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§§ 2000e et seg. (Count IV), under 42 U.S.C. § 1981
(Count V) and under the Pennsylvania Human Relations
Act, 43 Pa.S.A. § 955(a) (Count VI).
Again, SmithKline’s attack on Plaintiff's allegations
is two-pronged. First, SmithKline contends that Plaintiff
did not promptly file his claims with the EEOC and
therefore his charges are time-barred. Second, Smith-
Kline argues that Plaintiff has adduced no evidence that
the company’s decision was pretextual. Plaintiff disputes
the alleged untimeliness and further suggests that he was
not informed of the opportunity to revoke his VRIF
acceptance due to his race.
I agree with SmithKline that Plaintiff did not file his
claims within the time period allotted under the statute
of limitations and that Plaintiff has not provided any
evidence of discrimination.
a. Statute of Limitations
[11] Under Title VII, a plaintiff may bring suit within
180 days of the alleged discrimination; however, if the
plaintiff initially filed a complaint with a state or local
agency with the authority to adjudicate the claim, he or
she is allotted 300 days from the date of the alleged
discrimination within which to file a charge of employ-
ment discrimination *1023 with the EEOC. 42 U.S.C.
-B20-
§ 2000e-5(e).!
[12}[13][14][15] In order to extend this time period in
which to file charges of discrimination, a plaintiff may
invoke the discovery rule.!* Under the discovery rule, a
11 42 U.S.C. § 2000e-5(e) states in the pertinent part:
A charge under this section shall be filed within
; one hundred and eighty days after the alleged
i unlawful employment practice occurred ...
7 except that in a case of unlawful employment
practice with respect to which the person
aggrieved has initially instituted proceedings
with a State or local agency with authority to
. grant or seek relief from such practice or to
institute criminal proceedings with respect —
: thereto upon receiving notice thereof, such
! charge shall be filed by or on behalf of the
person aggrieved within three hundred days after
the alleged unlawful employment practice
occurred ....
12 A plaintiff may also employ equitable tolling to extend
this deadline. Equitable tolling functions to stop the
statute of limitations from running where the claim’s
: accrual date has already passed. Oshiver v. Levin,
| Fishbein, Sedran & Berman, 38 F.3d 1380, 1387 (3d
Cir.1994). Equitable tolling is appropriate in three
principle although not exclusive situations: (1) where the
defendant has actively misled the plaintiff respecting the
plaintiff's cause of action; (2) where the plaintiff in some
extraordinary way has been prevented from asserting his
or her rights; or (3) where the plaintiff has asserted his or
her rights mistakenly in the wrong forum. /d. (citations
-B21-
Sisal ee.
;
iil
plaintiff may toll the time limit for filing a charge until he
"has discovered, or, by exercising reasonable diligence,
should have discovered (1) that he or she has been
injured, and (2) that the injury has been caused by
another party’s conduct." Oshiver v. Levin, Fishbein,
Sedran & Berman, 38 F.3d 1380, 1386 (3d Cir.1994)
(emphasis added).
[16][17] The awareness which is at issue under the
discovery rule is the plaintiff's awareness or constructive
awareness of his "actual injury," not the awareness that
this injury constitutes a legal wrong. Jd. at 1386. In order
to take advantage of the discovery rule, the plaintiff must
"take reasonable measures to uncover the existence of an
injury." Jd. at 1390.
In Oshiver, the defendant (a law firm) dismissed
plaintiff (an attorney) on April 10, 1990 with the explana-
tion that the firm did not have sufficient work to sustain
her position. Jd. at 1384. On May 21, 1991 ata hearing
to secure unemployment compensation, plaintiff
discovered that the firm had instead hired a male
attorney to assume her former duties. id. at 1385. The
district court granted defendant’s motion to dismiss,
holding that plaintiff's claims were time-barred as the
statutory limitations period had begun to run on the day
that the firm dismissed her. Jd.
On appeal, the Third Circuit ruled that the discovery
rule does not preserve a claim where the claimant knew
of her injury (the fact that she was no longer employed)
(continued)
omitted). As Plaintiff does not assert that SmithKline
engaged in any of the above delay tactics, I will not apply
the equitable tolling doctrine in this case.
-B22-
a
..
1
4
4
2
e
but she did not discover some of the alleged evidence
(the fact that the firm had replaced her with a male
attorney) until it was too late to file a claim. Oshiver, 38
F.3d at 1391. if
in this case, Plaintiff contends that he did not
discover that he had a legal claim against SmithKline
until February 1995, when, as part of the discovery in this
case, he received a copy of the January 1989 Board Reso-
lution which caused him to believe that other SmithKline
corporate staff employees were treated differently from
Plaintiff in the administration of the VRIF program when
they were informed of its 24 month extension. However,
Plaintiff has not identified any injury which he first
discovered in 1995. The only thing that Plaintiff claims to
have discovered is the purported evidence of his claim of
discrimination, ie., the January 1989 Board minutes.
The injuries Plaintiff is claiming in this suit are (1) the
fact that he did not receive certain stock options and
(2) the fact that he is no longer employed by SmithKline.
Plaintiff does not dispute that he knew of those facts
much more than 300 days before he filed his administra-
tive charges.
Moreover, it is undisputed that SmithKline commun-
icated the substance of the January 1989 board resolution
to all corporate staff on April 6, 1989, in a memorandum
which Plaintiff testified he "should be seen." See Jordan
*1024 Dep. at 347-48; SmithKline’s Motion at Ex. A-11,
(April 6, 1989 Memorandum); Ex. A, PP 10-11; Ex. B, PP
6-7; Ex. C, P 4. Even if Plaintiff did not, in fact, see the
April 6, 1989 memo, he cannot dispute that if he had
exercised the reasonable diligence required by the
discovery rule he should have seen it when it was circu-
lated to all corporate staff.
-B23-
Finally, as a general matter, it is clear from Plaintiff's
own correspondence that Plaintiff cannot possibly claim
that a race discrimination suit never entered his mind
before 1995. In Plaintiff's letters to SmithKline in May
and June 1992, he complained about race discrimination
at SmithKline and the alleged "special, private arrange-
ments" whereby executives purportedly received more
favorable treatment in the administration of the VRIF
program.'* See SmithKline’s Motion at Exs, A-14 and A-
15. Yet he did not pursue such claims for several years
after he wrote those letters.
Plaintiff's second and related basis for his race
discrimination claims, his alleged constructive discharge,
is also untimely for the same reasons set forth above.
The discovery rule cannot toll the time limit for filing a
charge because the Plaintiff's purported injury
(discharge) occurred with his full knowledge by July
1989, when he resigned from SmithKline. See Oshiver,
38 F.3d at 1386.
13 Specifically, on May 11, 1992, Plaintiff claimed that:
Not to receive this value due would constitute a
double economic impact for me. It is an obvious
fact that African Americans (and in many
instances, women) have not received anything
approaching the level of advancement and
income for equal service, time and contribution.
SmithKline’s Motion at Ex. A-14.
Plaintiff also stated that there was a "blatant case" for
race discrimination should one be interested and that the
“implications of race ... discrimination" were his
"motivating force" because "the structural bias permeates
all levels." SmithKline’s Motion at Ex. A-15.
-B24-
CE i IO LDN TED SPOR COA iti Ns aie bh
[18] Plaintiff's additional race discrimination claims
in Count V (under 42 U.S.C. § 1981) and Count VI
(under the Pennsylvania Human Relations Act) fail as
well. The statute of limitations under 42 U.S.C. § 1981 in
federal court in Pennsylvania is two years from the date
of the alleged discrimination. Goodman v. Lukens Steel
Co., 482 U.S. 656, 662, 107 S.Ct. 2617, 2621-22, 96
L.Ed.2d 572 (1987). Plaintiff did not assert a § 1981
claim until 1995, over six years after the alleged
discrimination and after Plaintiff knew or should have
known of the substance of the board resolution.
Therefore, his § 1981 claim is barred by the statute of
limitations, as well.
[19][20] The time limit for filing a charge under the
Pennsylvania Human Relations Act ("PHRA") is 180
days after the occurrence of the alleged unlawful employ-
ment practice. Oshiver, 38 F.3d at 1385. Plaintiff did not
file a charge with the PHRC within 180 days of the
alleged employment practice or within 180 days of the
date he knew or should have known of the substance of
the Board Resolution. As such, the PHRA claim in
Count VI is also time-barred.
b. Merits
Even though Plaintiff's race discrimination claims
are untimely, I will address his substantive arguments.
[21] Plaintiff's race discrimination claims are based
on Plaintiff's allegations that SmithKline purposely did
not inform him of the Board’s January 1989 resolution
because of his race. Plaintiff contends that he has estab-
lished his prima facie case because (1) he is black, (2) his
job qualifications were undisputed, (3) he was treated
less favorably than white employees and (4) others
similarly situated were not subject to the same adverse
-B25-
action. In response, SmithKline asserts that it did not
treat white employees more favorably than black and that
it informed all corporate staff of the January 1989 resolu-
tion when it circulated the April 6, 1989 memorandum.
[22] When the defendant offers a legitimate reason
for its employment action, the plaintiff generally must
submit evidence which: (1) casts sufficient doubt upon
each of the legitimate reasons proffered by the defendant
so that a factfinder could reasonably concluded that each
reason was a fabrication *1025 or (2) allows the fact-
finder to infer that discrimination was more likely than
not a motivating or determinative cause of the adverse
employment action. Fuentes v. Perskie, 32 F.3d 759, 762
(3d Cir.1994).
In this case, the only evidence that Plaintiff has
provided to support his claim that SmithKline only
informed white employees of the substance of the
January 1989 board resolution is the Affidavit of
Matthew D. Clayton, Esq., a former SmithKline
employee. See Plaintiff's Motion in Opposition to
Defendant’s Motion for Summary Judgment ("Plaintiff's
Motion") at Ex. B. This employee, who states that he did
not receive the April 6, 1989 memorandum, also avers
that his employment with SmithKline terminated in
February 1989. Id. Since he was not employed at the
company when SmithKline issued this memorandum, it is
not surprising that he did not receive it. As such, his
testimony is irrelevant.
On the contrary, one of the employees, who specifi-
cally recalls receiving the April 1989 memorandum, is
African American. See SmithKline’s Motion at Ex. C, PP
4-5. Even more compelling is the fact that Plaintiff
-B26-
5 Bias i att Bees
himself does not even deny that the information set forth
in the memorandum was sent to all corporate staff.
[23][24][25] Plaintiff's related claim of constructive
discharge fails as well. Constructive discharge may exist
where an employer knowingly permitted conditions of
such intolerable discrimination that a reasonable person
would feel compelled to resign. Spangle v. Valley Forge
Sewer Auth., 839 F.2d 171, 173 (3d Cir.1988); Gray v.
York Newspapers, Inc., 957 F.2d 1070, 1079 (3d Cir.1992).
However, an employee can still maintain a constructive
discharge claim even if an employer treats him or her in a
“civil, businesslike, gentlemanly fashion;" verbal or
physical harassment is not a necessary element. EEOC v.
Hay Assocs., 545 F.Supp. 1064, 1087 (E.D.Pa.1982).
Here, Plaintiff argues that the fact that SmithKline
allegedly kept certain information from him created an
intolerable workplace. Yet, he has only testified that he
had "great affection" for the company and that he wanted
to continue his work. Jordan Dep. at 136, 138, 414, 416.
In light of these comments and the fact that Plaintiff does
not assert that his working conditions were unpleasant or
difficult but merely that SmithKline kept information
from him, I will dismiss Plaintiff's constructive discharge
claim, as well.
(26][27] Finally, Plaintiffs claim under 42 U.S.C.
§ 1981 (Count V) is also meritless for all the above
14 Plaintiff testified that he had no reason to believe that
this document did not go to all corporate staff employees
and he specifically stated that "[o]ften times the policy
was to or procedure, I should say, was posted on the
Board, it may have been posted or it may have gone out,
but if someone said they did either one, I would accept
that." Jordan Dep. 347
-B27-
reasons and because Plaintiff has not alleged discrimina-
tion prohibited by § 1981. The Civil Rights Act of 1991
amendments to § 1981 are not applicable to conduct
which occurred before November 21, 1991. Rivers v.
Roadway Exp., Inc., 511 U.S. 298, 301-03, 114 S.Ct. 15 10,
1514, 128 L.Ed.2d 274 (1994). Claims previous to this
date are governed by Patterson v. McLean Credit Union,
491 U.S. 164, 185-86, 109 S.Ct. 2363, 2377-78, 105
L.Ed.2d 132 (1989). Under Patterson, § 1981 only applies
to claims based on certain hiring or promotion decisions.
Id. As Plaintiff has not alleged a hiring or promotion
claim, I will grant summary judgment for SmithKline.
5. Remaining State Law Claims
In Count III of the Amended Complaint, Plaintiff
states a cause of action for the breach of the covenant of
good faith and fair dealing based on SmithKline’s alleged
failure to provide Plaintiff with notice of the January 25,
1989 board resolution and to otherwise ensure that "all
information was available to him" during the course of
the negotiations leading up to the signing of Plaintiff's
general release on December 8, 1988. Amended
Complaint at PP 31-32; Jordan Dep. at 391. In Count
VII, Plaintiff asserts a claim of misrepresentation based
on the same alleged failure to provide information.
Amended Complaint at P 44. I will grant summary
judgment for SmithKline on these Counts, as well.
*1026 a. Statute of Limitations
[28][29] A claim for breach of good faith and fair
dealing should be treated as a breach of contract claim.
Engstrom v. John Nuveen & Co., Inc., 668 F.Supp. 953,
958 (E.D.Pa.1987) (claim purporting to be based ona
breach of good faith and fair dealing in an at-will employ-
ment relationship is analyzed as a breach of contract
-B28-
claim). The statute of limitations governing a breach of
contract claim is four years. See 42 Pa.C.S.A. § 5525.
Count III is therefore time-barred, since the alleged
breach occurred prior to December 8, 1988, but Plaintiff
did not assert the claim in Count III until he filed his
Amended Complaint in December 1995, seven years
later.
|30] Count VII, is governed by the two year statute of
limitations for negligence. See 42 Pa.C.S.A. § 5524;
AAMCO Transmissions, Inc. v. Harris, 759 F.Supp. 1141,
1144 (E.D.Pa.1991). Since the alleged negligence
occurred in 1988, this claim is also untimely. Moreover,
even if the "discovery rule" applied, this claim would be
untimely because Plaintiff is aware, or should have been
aware of the existence of the board resolution by April 6,
1989, when SmithKline distributed the memorandum
describing the substance of the resolution.
b. Merits
[31]}|32] Plaintiff bases his allegations in Count III on
SmithKline’s alleged failure to provide Plaintiff with
notice of the January 25, 1989 board resolution. In order
to state a claim for breach of good faith and fair dealing,
a party must plead facts which would give rise to a
contractual obligation to provide information, such as
offer, acceptance or consideration. See Engstrom, 668
F.Supp. at 957-58; Garvey v. National Grange Mut. Ins.
Co., 1995 WL 461228, at *1 (E.D.Pa. Aug.2, 1995) (duty
to act in good faith and deal fairly arises from the
contract itself).
In this case, SmithKline had no obligation to inform
its employees of future plans 0. resolutions of its Board
of Directors. Moreover, it did take these measures by
posting the April 6, 1989 memorandum.
-B29-
[33][34] In order to state a claim for negligent
misrepresentation, the plaintiff must allege a misrepre-
sentation of material fact, among other elements. Gibbs
v. Ernst, 538 Pa. 193, 647 A.2d 882, 890 (1994). In Count
VII, Plaintiff has alleged nothing more than a “non-
communication" of information. Therefore he has failed
to allege an essential element of his claim. Additionally,
the information that Plaintiff claims that SmithKline
concealed from him was published in the April 6, 1989
memorandum.
IV. COUNTERCLAIM
Based on the foregoing analysis, it is clear that
plaintiff violated the terms and conditions of the release
by breaching the covenant not to sue the defendant. The
issue of damages cannot be resolved by the present
summary judgment motion.
V. CONCLUSION
For the above reasons, SmithKline’s Motion for
Summary Judgment is granted in its entirety.
-B30-
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.