17129, at *13 (E.D. Pa. Nov. 28, 1994)("The language of Title VII does not prohibit discrimination on the basis of handicap or disability."). Accordingly, we must grant summary judgment to the defendants to the extent that Count II states a claim based on pregnancy disability discrimination under Title VII.
6. Punitive Damages
The defendants also seek summary judgment with respect to the separate claims set forth for punitive damages under Title VII, the PHRA, and the NJLAD. The defendants contend, as they did in their motion to dismiss, that the requests for punitive damages are incidental to the substantive claims and therefore should not be set forth in separate claims. In Brennan I, we noted that the "defendants have not provided the Court with any reason why a separate claim for punitive damages cannot be pled under PHRA and NJLAD, or Title VII." Brennan, 850 F. Supp. at 347. Thus, we allowed the claims to stand as pleaded. The defendants now argue that such an arrangement will prejudice the defendants in that it suggests to a jury that Ms. Brennan has some sort of entitlement to punitive damages. It seems, however, that a simple jury instruction can address the defendants' concerns. Accordingly, we reject the defendants' contention.
The defendants also argue that we should grant them summary judgment with respect to the punitive damages claims because Ms. Brennan has failed to adduce sufficient evidence on which a jury could base such an award. Punitive damages are available under the PHRA, the NJLAD and Title VII "if the complaining party demonstrates that the respondent engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual." 42 U.S.C. § 1981a(b)(1); Weiss v. Parker Hannifan Corp., 747 F. Supp. 1118, 1135 (D. N.J. 1990); SHV Coal, Inc. v. Continental Grain Co., 526 Pa. 489, 587 A.2d 702, 704 (1991). As we noted above, there is sufficient evidence on the record from which a jury could infer that the defendants discharged Ms. Brennan while she was on maternity leave in an unlawful attempt to purge its workforce of working mothers. This evidence provides a basis for the conclusion that the defendants acted with the requisite mental state. Accordingly, Ms. Brennan's claim for punitive damages will survive this motion.
D. Pendent Claims
1. Choice of Law Concerns
The Court now turns to the choice of law issues presented by the case in an effort to define the scope of law under which Penn-Del may be liable. As we noted above, Ms. Brennan, in Counts V through XI of her amended complaint, has set forth a variety of claims under the contract, tort, and statutory discrimination law of both Pennsylvania and New Jersey. The evidence relevant to this issue suggests that while Ms. Brennan resided in New Jersey, she was employed in Pennsylvania and worked there almost exclusively. The evidence further reveals that Ms. Brennan signed an employment contract which provided that the agreement was to be governed by the law of New Jersey. In light of this evidence, Ms. Brennan concedes that her statutory discrimination claims and her claims arising in tort should be governed by Pennsylvania law, and that New Jersey law should govern her claims sounding in contract. As a result, we will award summary judgment to the defendants as to Counts V and VII to the extent that those counts contain claims set forth under the New Jersey law; and we will grant summary judgment to the defendants to the extent that Counts VIII and X are set forth under Pennsylvania law. Further, summary judgment is awarded to the defendants as to Counts VI and XI.
2. Timeliness of the PHRA Claims
We now consider the defendants' argument, which we addressed in Brennan I, that Ms. Brennan's PHRA claims must be dismissed because they were not filed with the PHRC within 180 days of the acts of alleged discrimination, as required by § 959(h) of the PHRA.
The record indicates that the claims were filed on January 7, 1992, 182 days after Ms. Brennan's termination. In Brennan I, we noted that the PHRA provided for equitable tolling, and that tolling is appropriate in cases where the plaintiff has timely asserted her rights in the wrong forum. Brennan I, 850 F. Supp. at 340; see Kocian v. Getty Refining & Marketing Co., 707 F.2d 748, 753 (3d Cir.)(equitable tolling appropriate if (1) the defendant has actively mislead the plaintiff, (2) the plaintiff has been prevented from asserting his rights, or (3) if plaintiff has timely asserted his rights in the wrong forum), cert. denied, 464 U.S. 852, 104 S. Ct. 164, 78 L. Ed. 2d 150 (1983).
The record here reflects that Ms. Brennan filed her claim with the EEOC on October 6, 1992. Ms. Brennan indicated that the matter was to be filed with the PHRC. Pursuant to the workshare agreement, Ms. Brennan reasonably expected that the claim would be cross-filed with the PHRC, and was so assured by EEOC personnel. For reasons beyond Ms. Brennan's control, however, the cross-filing did not occur; and Ms. Brennan personally filed the claim with the PHRC on January 7, 1993, two days after the expiration of the 180 day period. Under these circumstances, we decline to dismiss the PHRA claims on these technical grounds. Accordingly, Ms. Brennan's PHRA claims will survive this argument in favor of summary judgment.
3. Breach of Covenant Claims
The defendants next argue that they are entitled to summary judgment as to Counts VIII and X of the amended complaint, in which Ms. Brennan states claims for breach of an implied covenant to discharge for cause and breach of covenant of good faith and fair dealing, respectively. The defendants contend that such claims are preempted by the PHRA or the NJLAD, and in the alternative, they assert that neither claim is cognizable since Ms. Brennan was indisputably an employee at will. We addressed both arguments in Brennan I. First, with respect to Count VIII, we noted that Ms. Brennan's claim was based not on discrimination, but on the defendants' violation of their own policy regarding discharge. Thus, we held that the claim was not barred by the PHRA. Brennan I, 850 F. Supp. at 345. Similarly, we held that Count X was not barred by the PHRA in that the claim was not predicated on discrimination. Id. For similar reasons, because the claims are based not on discrimination but instead arise under contract theory, we now conclude that neither claim is preempted by the NJLAD. On the other hand, we noted that neither claim could be brought in the context of the at-will employment relationship. Id. at 346. Thus, we concluded that Ms. Brennan could maintain these claims only if she could set forth sufficient evidence to prove that the parties intended to overcome the presumption that Ms. Brennan was an at-will employee. Id.
Under New Jersey law, the traditional rule is that an at-will employee may be discharged at any time, for any reason or for no reason at all. Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 536 A.2d 237, 238 (1988). Generally, an employment contract running for an indefinite term is presumed to be terminable at-will. Maietta v. United Parcel Serv., Inc., 749 F. Supp. 1344, 1360 (D. N.J. 1990), aff'd without op., 932 F.2d 960 (3d Cir. 1991). In some circumstances, however, language in an employment manual can create an implied promise to terminate only for just cause that may be enforceable against the employer, even when the relationship would otherwise be terminable at will. Witkowski v. Thomas J. Lipton, Inc., 136 N.J. 385, 643 A.2d 546, 550 (1994)(citing Woolley v. Hoffman Larouche, 99 N.J. 284, 491 A.2d 1257, modified, 101 N.J. 10, 499 A.2d 515 (1985)); Nicosia v. Wakefern Food Corp., 136 N.J. 401, 643 A.2d 554, 557 (1994)(citation omitted). Thus, Ms. Brennan argues that Penn-Del's Employee Resolution Process ("ERP") operated to change her employment status from that of an at-will employee to one who would be discharged only for cause. The ERP provides, in pertinent part, as follows:
The [ERP] is established to assure that all employees are accorded fair and honest treatment in all aspects of his or her employment. The intent is to provide employees with a method by which they may obtain full review decisions concerning problems or complaints arising from the application of company policy or rules, in order to avoid any arbitrary actions.
The issue thus presented is whether the ERP conferred upon Ms. Brennan the right to be discharged only in accordance with the ERP's terms. The Supreme Court of New Jersey has recently set forth the considerations to be applied in resolving such questions, noting that "the key consideration in determining whether an employment manual gives rise to contractual obligations is the reasonable expectations of the employees." Witkowski, 643 A.2d at 550. Since, under New Jersey law, the question of whether Ms. Brennan could reasonably have expected that the ERP created an implied modification to the employment contract is one for the jury to decide, id. at 553, our present task is to determine whether an issue of fact has been raised regarding the existence of the modification.
As New Jersey's highest court has held, the factors relevant to the issue relate to the specific provisions and the circumstances surrounding its publication and distribution. Id. at 550; Nicosia, 643 A.2d at 557. Thus, if an expression of policy receives wide distribution within the company, then it could give rise to an implied contract if it contains an express or implied promise regarding the terms and conditions of employment. Witkowski, 643 A.2d at 550 (citing Gilbert v. Durand Glass Mfg. Co., 258 N.J. Super. 320, 609 A.2d 517 (App. Div. 1992)); Nicosia, 643 A.2d at 558. Moreover, courts in New Jersey will examine the degree to which the provisions relating to job security and termination are specific and definitive, such that a jury could conclude the employer intended the provisions to be enforceable. Witkowski, 643 A.2d at 552.
Applying these principles to the matter at hand, it is clear that Ms. Brennan has created an issue of fact as to whether the ERP modified the employment contract to provide for termination for cause. First, while the parties have provided no information regarding the extent to which the ERP was distributed, we note that it was addressed to "All Employees," raising the inference that Penn-Del intended for it to be read and considered by all of the employees. We further note that Penn-Del intended for the ERP to supplement the company's employee manual. Finally, we note that the policy sets forth a three-step procedure under which an employee can discuss incidents which could lead to adverse employment actions, including termination. The stated goal of the ERP is "to avoid any arbitrary actions," which can be construed as indicative of management's intent to terminate its employees only for cause. Thus, under these circumstances, we cannot say that there is no dispute as to whether the ERP operated to alter Ms. Brennan's employment status. Accordingly, we must deny Penn-Del's summary judgment motion as it applies to Counts VIII and X of the amended complaint.
III. SUMMARY AND CONCLUSION
For the reasons stated above, the defendants' motion for summary judgment will be granted as to Defendants NTD and Bell Atlantic. As for Defendant Penn-Del, the motion for summary judgment will be granted as to Counts III, VI, and XI of the amended complaint. Further, summary judgment will be awarded to Penn-Del as follows: (1) to the extent Count II purports to state a claim for pregnancy disability discrimination, (2) to the extent Counts V and VII contain claims for relief under New Jersey law, and (3) to the extent Counts VIII and X contain claims for relief under Pennsylvania law. In all other respects, however, the defendants' motion for summary judgment will be denied.
An appropriate order follows.
AND NOW, this 7th day of April, 1995, upon consideration of Defendants' Motion for Summary Judgment, and the response thereto, it is hereby ORDERED, for reasons set forth in the preceding memorandum, that:
1. Defendant Bell Atlantic Enterprises International's Motion for Summary Judgment is GRANTED;
2. Defendant National Telephone Directory Corporation's Motion for Summary Judgment is GRANTED; and
3. Defendant Penn-Del Directory Corporation's Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART as follows:
a. The Motion for Summary Judgment is GRANTED as to Counts III, VI, and XI of the Amended Complaint;
b. The Motion for Summary Judgment is GRANTED to the extent Count II purports to state a claim for pregnancy disability discrimination;