exists with respect to whether these procedures and warnings did
apply to an employee in Robertson's position.
Although Counts IV and XI and Counts VII and XIV are similar as
noted above, because Counts IV and XI contain allegations of a
contract of continuous nature which are barred by the parol
evidence rule, Stauffer's motion for summary judgment with
respect to those counts is granted and the court dismisses those
counts. Stauffer's motion is denied, however, with respect to
Counts VII and XIV because of the issue of material fact
The court turns now to Counts V and VII. In those counts
Robertson pleads that his contract contained an implied in law
covenant that defendants would deal with him in his employment
relationship with them in good faith and in a fair manner. Such a
covenant is not generally recognized under Minnesota law. Wild
v. Rarig, 302 Minn. 419, 234 N.W.2d 775, 790 (1975).
Even if this court would construe such a clause as an implied
term of good cause before termination, Robertson is in no better
position. First, implied terms of good cause come up only in the
context of at will contracts. Again, Robertson did not have such
a contract. Second, assuming arguendo that Robertson's contract
could be construed as an at will contract, Minnesota courts have
not imposed such an implied covenant upon at will contracts.
Bakker v. Metropolitan Pediatric P.A., 355 N.W.2d 330, 331
(Minn.App. 1984). Counts V and VII are, therefore dismissed.
Finally, in Counts VI and XIII, Robertson alleges a violation
of the federal Age Discrimination in Employment Act (ADEA),
29 U.S.C. § 621 et seq. He contends that he, at age forty-six
(46), was discharged and replaced with one or more younger men,
less than forty (40) years of age, who performed his duties.
The ultimate burden on a plaintiff in an age discrimination
case is to prove that he was discharged because of his age. La
Montagne v. American Convenience Products, Inc., 750 F.2d 1405,
1409 (7th Cir. 1984). Initially, the plaintiff must prove a
prima facie case of age discrimination by showing (1) the
employee is within the protected age group (40-70); (2) the
employee was discharged; (3) the employee was qualified to do the
job; and (4) the employee was replaced. Tice v. Lampert Yards,
Inc., 761 F.2d 1210, 1212 (7th Cir. 1985).
Having carefully reviewed the record in this case, this court
finds that Robertson does not establish a prima facie case
under the ADEA in that there is no evidence of a discharge here.
Although Robertson was relieved of his duties on October 5, 1981,
he continued to receive full benefits and salary by Stauffer
through September 22, 1982, the point at which his two year
contract expired. Although Robertson seeks recovery for salary
and benefits beyond the expired two (2) year term, the original
contract evidencing a two (2) year term is controlling absent
allegations of mistake or fraud. Thus, Counts VI and XIII are
Accordingly, it is the order of this court that defendants'
motion for partial summary judgment be, and is hereby, denied in
part and granted in part. Defendants' motion is GRANTED with
respect to Counts I, IV, V, VI, VIII, XI, XII, XIII and these
counts are DISMISSED; defendants' motion with respect to Counts
II, VII, IX and XIV is DENIED. SO ORDERED.