Employers remain free to terminate at-will employees like Kelly for a
good reason, bad reason or no reason at all. Clark v. Modern Group Ltd.,
9 F.3d 321, 327 (3d Cir. 1993). In Clark, the Third Circuit held that an
at-will employee cannot recover for a common-law retaliatory discharge
resulting from "a disagreement with management about the legality of a
proposed course of action unless the action . . . actually violates the
law." Id. at 328. It is not sufficient that the employee merely believed
the practice to be illegal. See id. at 328-332.
The evidence established that there are serious and widespread concerns
about the illegality of the practice to which Kelly objected. Such
concerns do not establish that the practice is in fact illegal, however.
Nor was there other evidence persuasively presented to this effect.
Thus, under Clark Kelly cannot recover for retaliatory discharge on the
basis of his objection to the policy.
As to Kelly's claim of breach of implied contract, which is the subject
of Count V, Kelly entered into a Manager's Agreement with Provident which
expressly states that the Agreement may be terminated by either party
"for any reason . . . with or without cause." However, Kelly claims that
an implied contract arose from Hansen's probationary letter to Kelly
dated February 2, 1999, which stated that "[Y]ou must be at 40% of your
life quota, or $220,000, by June 30th. Your net growth must stand at plus
2 as of June 30th. I would also hope to see a nuetral [sic] BMF, or at
minimum, a significant reduction in the negative carry-forward. If you
are unable to meet these objectives, it is likely that your office will
be considered for consolidation and the distinct possibility exists that
your position as an agency manager will be eliminated. . . . Obviously,
you will also be held accountable for your annual 1999 quotas."
Kelly met his June 30, 1999 goals. He testified that he believed that
this would guarantee him treatment equal to that afforded other
managers, not that this accomplishment would guarantee him employment in
the following year.
To overcome the express at-will Manager's contract there must be "an
express contract between the parties or an implied in-fact contract plus
additional consideration passing from the employee to the employer from
which the court can infer the parties intended to overcome the at-will
presumption." Permenter v. Crown Cork & Seal Co., 38 F. Supp.2d 372, 377
(E.D.Pa. 1999) (citation, punctuation omitted).
The probationary letter does not overcome the express at-will
employment contract Kelly entered into with Provident. The fact that
Provident management congratulated Kelly twice on his performance in 1999
in the months prior to terminating him also does not create a contract
for continued employment. Neither does the long-term nature of his
employment, nor any expectations arising therefrom. See Buckwalter v. ICI
Explosives USA, Inc., No. 96-CV-4795, 1998 WL 54355, at *9 (E.D.Pa. Jan.
1, 1998) (rejecting plaintiff's argument that working adequately for four
years under the assumption that he would be promoted constituted
additional consideration overcoming at-will contract).
Even assuming that the February 2, 1999 letter constituted an express
or implied contract of guaranteed employment, the letter expressly
stipulated that Kelly was expected not only to meet his June 30th goals
but also his year end 1999 quotas, a condition which Kelly did not meet.
AND NOW, this 11th day of July, 2002, judgment is entered on the claims
FAVOR of the defendants, Provident Mutual Life Insurance Company and
the Retirement Pension Plan for Certain Home Office, Managerial and Other
Employees of Provident Mutual, and AGAINST the plaintiff, Thomas Kelly.