working without a contract may not be discharged for failing "to perform an act that would require a violation of a clear mandate of public policy." In Pierce, the Supreme Court of New Jersey expressed its concern for the professional who in an at-will employment setting was told to perform an act clearly violative of some statutory law, administrative rule, judicial decision, or code of professional conduct. Seeking to encourage professionals not to succumb to employment pressure, the Court determined that an employer may not discharge an at-will employee for acting pursuant to the clear mandate of public policy. Significantly, however, the Supreme Court emphasized that "unless an employee at-will identifies a specific expression of public policy, he may be discharged with or without cause." Id. Thus, Pierce should not be viewed as a back door for gaining more protection than otherwise available to an at-will employee.
In arguing that Abex terminated plaintiff contrary to the New Jersey public policy of encouraging job security, plaintiff has sought to enter this back door so firmly shut by Pierce. If this court were to adopt plaintiff's argument it would effectively mean that any termination of an at-will employee could be challenged thus contradicting the decision of the Supreme Court of New Jersey which allows employers the right to fire an employee for any reason or no reason. See Woolley, supra, 99 N.J. at 309. Furthermore, in this case plaintiff was not fired for refusing to perform some task because of some sense of higher obligation. Plaintiff was terminated because Abex determined it needed to make cutbacks in the number of employees in plaintiff's department. That decision may have been unfortunate and its timing may have worked a hardship on plaintiff, but that decision is not the type which may be challenged under Pierce. In light of this discussion, defendant is entitled to summary judgment on counts one, two, and five of the Pretrial Order.
Defendant also moves for summary judgment on plaintiff's negligence claim (count three) arguing that there is no cause of action in New Jersey for negligent discharge. This argument fails to address plaintiff's claim which is not that plaintiff was negligently discharged but that plaintiff was negligently misled about her job security causing her "physical and emotional harm and damage." Pretrial order at 29.
The gravamen of a negligence claim is the breach of a legal duty owed by the defendant to the plaintiff where that breach is the proximate cause of the plaintiff's injuries. Fortugno Realty Co. v. Schiavone-Bonomo Corp., 39 N.J. 382, 393, 189 A.2d 7 (1963); McIntosh v. Milano, 168 N.J.Super. 466, 480-481, 403 A.2d 500 (Law Div. 1979); See also Iafelice v. Luchs, 206 N.J.Super. 103, 110, 501 A.2d 1040 (Law Div. 1985) (quoting Fortugno as good law). It has often been said that whether a duty exists is ultimately a question of fairness involving consideration of the relationship of the parties, the nature of the risk, and the public interest in the proposed solution. Further, public policy considerations play a major role in the determination of whether a legal duty exists. Luchs, supra, 206 N.J.Super. at 110 citing Swidryk v. Saint Michael's Medical Center, 201 N.J.Super. 601, 606, 493 A.2d 641 (Law Div. 1985).
In the normal at-will employment relationship it is self-evident that an employer has only a minimal duty of care to his employees. As noted above, oral assurances regarding job security will not be sufficient to create an implied promise or contract. See Savarese, supra. It would be a mere technical distinction that would allow an at-will employee barred under contract law from asserting a breach of contractual duty to successfully plead that there was a breach of a tort duty of care. New Jersey law frowns on causes of action grounded in technical distinctions and rather looks to the underlying claim "to achieve substantial justice." Swidryk, supra, 201 N.J. Super. at 603. For instance, in Swidryk a doctor was sued in tort for negligently supervising the intern and resident program. The plaintiff also alleged that the doctor breached an implied contractual duty to provide the plaintiff suitable medical experience. The Law Division of the Superior Court summarily dismissed the contract claim finding it was consumed within the tort claim. Id.
The Supreme Court of New Jersey reached a similar result in Spring Motors Distributors v. Ford Motor Co., 98 N.J. 555, 489 A.2d 660 (1985), when it held that a commercial buyer seeking damages for economic loss resulting from the purchase of defective goods was limited to recovery under the Uniform Commercial Code and could not recover under either strict liability or negligence theories. In describing the demarcation of duties under tort and contract law the Spring Motors court explained that
The purpose of a tort duty of care is to protect society's interest in freedom from harm, i.e., the duty arises from policy considerations formed without reference to any agreement between the parties. A contractual duty, by comparison, arises from society's interest in the performance of promises. Generally speaking, tort principles, such as negligence, are better suited for resolving claims involving physical injury, particularly those arising out of an accident. Contract principles, on the other hand, are generally more appropriate for determining claims for consequential damage that the parties have, or could have, addressed in their agreement. 98 N.J. at 579-580. (emphasis supplied)
There is simply no basis for finding a tort duty of care relating to job assurances in the at-will employment relationship. To do so would contradict the whole premise of the at-will employment doctrine as explicated by the Supreme Court of New Jersey.
Of course in this case, plaintiff points not only to oral assurances but also to the June 23, 1983 communications from Abex and argues that these communications evidence the voluntary assumption by Abex of a duty not to mislead employees about their job security. Assuming that these communications could create some additional duty that does not normally attach to the at-will employment relationship and that the breach of this duty could give rise to a tort cause of action, I still find that these two communications did not create a duty not to mislead employees about job security. These two communications do not once mention job security but only the type of aid Abex would provide its employees to adapt to their new work location. They neither establish a contract between the parties nor take their relationship outside of the at-will employment doctrine. To state the matter differently, after June 23 Abex may have been liable for inducing employees to remain by offering them benefits such as relocation funds which it did not have or did not intend to provide, but Abex retained the absolute right to fire an employee for whatever reason or for no reason. By offering to aid employees upon the relocation of its offices, Abex made no commitments, either explicit or implicit, that its employees had more job security. Accordingly, plaintiff's claim that Abex negligently misled her about her job security must fail.
Plaintiff's remaining claim that defendant's actions constitute intentional infliction of emotional harm is similarly without merit. While only one New Jersey court, Hume v. Bayer, 178 N.J.Super. 310, 428 A.2d 966 (Law Div. 1981), has approved this cause of action, the United States Court of Appeals for the Third Circuit has found that it is reasonable to assume that the Supreme Court of New Jersey would similarly approve if it were to be called upon to do so. Polito v. Continental Casualty Co., 689 F.2d 457, 464 (3d Cir. 1982). Despite the paucity of cases within New Jersey on this subject, the Third Circuit, in reviewing cases arising out of Pennsylvania and the Virgin Islands, both of which like New Jersey follow § 46 of the Restatement, Torts 2d, has had occasion to explain the elements of this tort. Essential to a cause of action is that the intentional conduct be extreme and outrageous and cause severe emotional distress, "so severe that reasonable persons would not be expected to endure it." Heywood v. Cruzan Motors, Inc., 792 F.2d 367, 372 (3d Cir. 1986) (citation omitted) (applying Virgin Island law); Wisniewski v. Johns-Manville Corp., 759 F.2d 271 (3d Cir. 1985) (applying Pennsylvania law).
Defendant has directed the court's attention to Cautilli v. GAF Corp., 531 F. Supp. 71, 74 (E.D. Pa. 1982), which involved the claim of a disgruntled employee who alleged he was intentionally induced into committing himself to continued employment while the employer knew that the employee might be required to relocate his home. Comparing the potential harm in that case to the harm in cases in which courts found that a plaintiff had stated a claim, the Hon. Edward R. Becker, then a district court judge, found that the harm before him
pales before the extreme outrage of withholding a dead child's body from its parents [ see Papieves v. Lawrence, 437 Pa. 373, 263 A.2d 118 (1970)], a surgeon's knowingly misrepresenting the severity of a child's medical condition to its parents [ see Hume, supra ], or a physician's knowingly supplying newspaper reporters with false information that a football player was suffering from a grave, possibly fatal, illness [ see Chuy v. Philadelphia Eagles Football Club, 431 F. Supp. 254 (E.D.Pa. 1977), aff'd en banc, 595 F.2d 1265 (3d Cir. 1979)]. Id.