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BRUNNER v. ABEX CORP.

November 26, 1986

Anne Brunner, Plaintiff
v.
Abex Corporation, Defendant



The opinion of the court was delivered by: BARRY

 Plaintiff Anne Brunner filed this complaint on August 1, 1985 against her former employer, Abex Corporation, alleging that her termination from employment in November, 1983 breached an implied agreement of employment as well as an implied obligation of good faith and fair dealing. Plaintiff also included in her complaint allegations of negligence and violations of the public policy of New Jersey. A final pretrial order was entered on September 26, 1986. The case is now before this court on defendant's motion for summary judgment.

 In a motion for summary judgment the court must view the facts in the light most favorable to the non-moving party and should only grant the motion if, after assuming all disputed facts in favor of the party opposing the motion, the moving party is entitled to judgment as a matter of law. Bushman v. Halm, 798 F.2d 651, 656, 657 (3d Cir. 1986). Viewing the case in the light most favorable to plaintiff, the facts may be summarized as follows.

 Plaintiff was hired by Abex as a Traffic Analyst commencing on October 9, 1981, and worked in the Transportation Department at Abex's offices in New York City. It is uncontroverted that plaintiff was "an excellent employee". May 29, 1984 Letter from R.C. McArthur [plaintiff's immediate supervisor] to John Juliana attached at Tab 12 of September 19, 1986 Affidavit of John K. Bennett. From approximately 1973 to 1983 plaintiff lived in a rent-controlled apartment in Bronxville, New York. Deposition of Anne Brunner attached at Tab 4 of October 8, 1986 Affidavit of Mary E. McTernan. When plaintiff joined Abex she was given a company personnel manual. The first page of this manual consisted of a letter from Abex's president which in relevant part stated that "Abex's broad program of employee's benefits which are outlined in this book will assist in providing security and protection for your family during your working years and beyond into retirement." Attached at Tab 16 to Bennett Aff.

 On June 23, 1983, Abex announced that it was moving its Corporate Headquarters to Stamford, Connecticut and its Transportation Department to Mahwah, New Jersey. Pretrial Order, Stipulation of Facts at 2. Abex's employees, including plaintiff, were provided three options: (1) leaving Abex rather than following Abex to the new location, (2) maintaining their positions at Abex and commuting from New York, or (3) maintaining their positions at Abex and receiving relocation assistance to move closer to Abex's new offices. Pretrial Order, Stipulation of Facts at 2. On June 23, 1983 the President of Abex sent a letter to all New York office employees announcing the move. This letter stated in relevant part:

 
Personally, I view this move as a positive step for our company. At the same time, I appreciate the hardships it will create. We will do everything we can to minimize these adversities, including special assistance programs for employees who relocate and those who don't.
 
We want to fully understand the impact of this move on each of you. Tomorrow, you will meet with your Vice President and departmental managers in smaller, more open meetings. They will be as open and candid as possible, and I hope you will be, too. . . . Almost everyone faces some kind of change because of this, so we need to understand and help each other as much as possible.

 June 23, 1983 Letter to all New York Office Employees attached at Tab 29 to McTernan Aff. Also on that same day Abex provided plaintiff with a memorandum entitled Summary of Employee Assistance Programs which stated at the outset that "while the details of some of these programs are yet to be worked out, Abex is committed to one thing -- doing the best we can to help our employees through this transition." Tab 29 Attached to McTernan Aff.

 Plaintiff elected to follow her job to Mahwah, New Jersey when her department was relocated on August 1, 1983; Pretrial Order, Stipulation of Facts at 3. *fn1" She decided to try commuting to Mahwah from her home in Bronxville and then, depending on how difficult she found the commute, to reach a final decision as to whether to relocate to New Jersey. Brunner Deposition at 78 attached at Tab 37 to McTernan Aff. On October 10, 1983 plaintiff informed her immediate supervisor, Robert McArthur, of her decision to move to New Jersey. She received $ 1,154.75 to cover the actual moving expenses and $ 2,500 for miscellaneous expenses associated with the move. Pretrial Order, Stipulation of Facts at 3. Plaintiff moved on November 14, 1983. She took four vacation days off from work to facilitate the move. Brunner Dep. at 117 attached at Tab 52 to McTernan Aff. On November 18, 1983 plaintiff called McArthur to request one additional day off and was informed that her job had been eliminated and that she was being terminated. Brunner Deposition at 119 attached at Tab 55 to McTernan Aff. During this telephone conversation, McArthur told plaintiff that he had just heard the news. Id.

 It appears from the record that this news was not completely "new" to McArthur. In preparing the budget for his department prior to June 23, 1983 when Abex announced its decision to move, McArthur developed a budget with four or five different models some of which projected cutbacks in positions within the department to two including the elimination of plaintiff's position. McArthur Dep. at 76 attached at Tab 28 to McTernan Aff. McArthur explained in his deposition that he presented these various models in an effort to convince his superior, Arvind Paranjpe, that it would not be feasible to cut the department back from seven employees to two as Paranjpe was considering. McArthur Dep. at 78 attached at Tab 17 to November 10, 1986 Supplemental Affidavit of John K. Bennett. McArthur assumed that he had convinced Paranjpe to maintain a staff of five which included plaintiff's position because he did not hear anything further about the cutbacks from Paranjpe. Id. McArthur did not learn until November 17, 1983 that his department would in fact be cut back to two employees plus a shared secretary. McArthur Dep. at 45 attached at Tab 18 to Bennett Supplemental Aff. and Paranjpe Dep. at 44 attached at Tab 21 to Bennett Supplemental Aff.

 During this same time period plaintiff claims that she was concerned about her job security and repeatedly asked McArthur if her job was in fact secure. Brunner Dep at 87, 89, 92, 93, & 99 attached at Tabs 39, 41-45 to McTernan Aff. McArthur recalls plaintiff asking him if there were lay offs coming which he understood to be the same as asking if her job was secure. McArthur Dep at 53 & 74 attached at Tabs 46 & 47 to McTernan Aff.


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