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Herring v. Prince Macaroni of New Jersey Inc.

argued: June 4, 1986.

LYNWOOD J.R. HERRING, APPELLANT
v.
PRINCE MACARONI OF NEW JERSEY, INC., APPELLEE



On Appeal from the United States District Court for the District of New Jersey, D.C. Civ. No. 84-3680.

Author: Higginbotham

Before: ADAMS, WEIS and HIGGINBOTHAM, Circuit Judges.

Opinion OF THE COURT

A. LEON HIGGINBOTHAM, JR., Circuit Judge.

This is an appeal from a final judgment of the district court for Prince Macaroni of New Jersey, Inc. ("Prince"), dismissing the complaint of appellant Lynwood J.R. Herring. For the reasons that follow, we will reverse the judgment of the district court and remand for further proceedings.

I.

On March 8, 1983, appellant was injured in the course of his employment with Prince. Shortly thereafter, he began receiving worker's compensation benefits. Appellant alleges that on July 12, 1984, his doctor notified Prince that he could return to work as of August 1, 1984. On July 16, 1984, however, Prince sent appellant a telegram informing him that he had been discharged.

Throughout the period of his employment with Prince, appellant was a member of the Prince Employees' Union, and his relationship with Prince was governed by a series of collective bargaining agreements that provided that Prince could discharge employees for "just and proper cause." The collective bargaining agreement that came into effect on August 1, 1983 also provided that:

An employee's seniority shall terminate and he shall no longer be considered an employee upon . . .

Absence of 12 consecutive months in the case of an industrial illness or accident arising out of or in the course of employment with employer herein.

Prince relied on this provision in discharging appellant. Appellant, however, brought this diversity suit alleging that he had been wrongfully discharged in retaliation for filing a worker's compensation claim, in violation of N.J. Stat. Ann. § 34:15-39.1 (Supp. 1986).*fn1

It shall be unlawful for any employer or his duly authorized agent to discharge or in any other manner discriminate against an employee as to his employment because such employee has claimed or attempted to claim workmen's compensation benefits from such employer, or because he has testified, or is about to testify, in any proceeding under the chapter to which this act is a supplement.

Appellant's complaint also contained counts alleging violations of N.J. Stat. Ann. § 34:15-44 (1959), a provision limited by its terms to public employees, as well as federal constitutional claims. Appellant later conceded that as a nonpublic employee the New Jersey statute did not apply to him, and that there was no state action involved. Accordingly, these additional counts were dismissed.

That statute does not, by its terms, create a private cause of action for damages. For that appellant relied on the newly recognized New Jersey common law cause of action for wrongful discharge in violation of public policy. See Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 417 A.2d 505 (1980). The district court predicted, however, that if presented with the question, the Supreme Court of New Jersey would hold that employees, like appellant, who are covered by collective bargaining agreements containing "just cause" clauses, do not enjoy the common law right of action. The court went on to hold that appellant could not now proceed under § 301 of the Labor-Management Relations Act, because he had not ...


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