The opinion of the court was delivered by: Politan, District Judge.
This matter comes before the court on defendants' motion for
the entry of summary judgment dismissing all seven counts of
plaintiff's complaint. I heard oral argument on February 25,
1991 and reserved decision. For the reasons outlined herein,
defendants' motion is GRANTED.
Plaintiff, Ronald Fregara ("Fregara"), instituted this
action by filing a seven count complaint on September 8, 1989.
Fregara alleges in the first through fourth counts that Jet
Aviation Business Jets, Inc. ("Jet") and its agents Richard
Kunert and Edward Baillif ("plaintiff's former supervisors")
breached oral and written contracts of employment, including
an oral contract for lifetime employment, when Fregara's
employment as an aircraft maintenance coordinator was
terminated by Jet on or about August 29, 1988.
In his fifth count, Fregara contends that defendants
negligently discharged him by breaching a "covenant of good
faith and fair dealing". In his sixth count, Fregara alleges
that the individual defendants Kunert and Baillif "acting as
individuals for their own purposes, entered into a conspiracy"
to harass, threaten and ultimately discharge him. Finally, in
his seventh count, Fregara maintains that the defendants
intentionally inflicted emotional distress upon him.
Jet is engaged in the business of managing corporate
aircraft, including supplying flight and administrative
personnel, as was its predecessor, Executive Air Fleet
("EAF"). EAF hired Fregara on or about November 21, 1981 as a
maintenance coordinator. Fregara was responsible for the
maintenance, record keeping and budgets for a group of
aircraft managed by EAF. The actual hands-on maintenance of
the aircraft was largely performed by contractors, under
Fregara's guidance and direction. Fregara was one of
ten maintenance coordinators employed by EAF.
Fregara alleges that he was employed pursuant to an "oral
contract". He maintains that the contract was established by
the oral representations of management for a career
opportunity and continuous employment. Fregara also testified
at his deposition that he was given an employee handbook when
he was hired in November of 1981. (See Fregara deposition I at
p. 24).*fn1 Defendant EAF apparently published and
distributed an employee handbook to all new employees,
including the plaintiff. Plaintiff contends that the handbook
outlined EAF's personnel policies, including its policy of
terminating employees "for just cause only". In sum, plaintiff
maintains that the employee handbook/manual forms the basis of
a contract of employment. Plaintiff also argues that the
employee handbook established company policies and practices
concerning employment and career expectations as well as the
covenant of good faith and fair dealing.*fn2 Defendant
asserts that the company handbook was rescinded by Executive
Air Fleet late in 1983. (See Cash deposition at pp. 126-127).
Roberta A. Cash, Jet's Vice President of Human Resources,
testified that, after EAF withdrew the handbook, it was no
longer distributed to newly hired employees. (Cash deposition
at p. 129). Thus, defendant contends that from 1983 until the
termination of plaintiff's employment in August 1988, there
was no handbook or written company policy addressing the issue
of job security. (Cash deposition at pp. 126-130). Plaintiff
disputes whether the company handbook was ever "officially
rescinded" by EAF in 1983. In support of this contention,
plaintiff emphasizes the fact that defendant never produced a
disclaimer or notice evidencing that the handbook was
rescinded by the company. Fregara contends that the
"rescinding memo" could not be located because one was never
In early 1986, there was a reorganization of the maintenance
department at EAF. Richard Kunert became manager of base
maintenance and Ed Baillif, who had been a maintenance
coordinator, was promoted to senior coordinator and acted as
Fregara's direct supervisor. On March 13, 1987, Kunert gave
Fregara a "letter of counselling" detailing several
performance problems which Kunert and Baillif observed in his
work. Fregara acknowledged these problems at his deposition:
Q. . . . before you received this document, had
you discussed any of the matters that are
described in the document with either Rich Kunert
or Ed Baillif?
A. No. The only thing we might have discussed was
the insubordination action towards supervisors.
The other things speak for themselves, call out
different incidents which I agree happened, more
or less incidents that happened, but I think it
was generated mainly by the last item.
(Plaintiff's deposition I at p. 49).
As a result of the incidents detailed in the March 13, 1987
letter of counselling, Fregara was suspended for a day with
pay and was enrolled in a two month program of supervisory
counselling in an effort to improve his performance. Fregara
acknowledged this counselling program by countersigning a
memorandum. (See Exhibit 6 of plaintiff's deposition
transcript). Defendant contends that, notwithstanding this
counselling program, plaintiff's performance continued to
On June 30, 1987, Fregara allegedly violated company
policies and FAA regulations by releasing an aircraft for
flight notwithstanding an eliminated warning light. A document
entitled Minimum Equipment List ("MEL") exists for each type
of aircraft. The MEL which is filed
with FAA, lists all of the items which may be inoperable on an
aircraft without requiring that the aircraft be grounded for
repairs. (Plaintiff's deposition I at p. 68).*fn3 Although
Fregara concedes that the warning light is not listed on the
aircraft's MEL, Fregara nonetheless released the aircraft for
flight. (Plaintiff's deposition I at pp. 68-69). Subsequently,
the flight was stopped in mid-take-off by Kunert, who directed
Fregara to determine and repair the problem. (Plaintiff's
deposition I at pp. 61-62). As a result of this incident,
Fregara was given a three day suspension without pay and was
placed on another six months probation. This probationary
period also involved additional supervisory counselling.
(Plaintiff's deposition I at p. 64).
Defendant contends that, on December 31, 1987, Fregara
allowed an uninsured pilot, who was inspecting an aircraft for
a prospective purchaser, to taxi the aircraft. Fregara was
apparently reprimanded for this violation of company rules and
warning letter was placed in his file.
In May 1988, Fregara received his evaluation for the period
of November 1986 to November 1987. In previous years, Fregara
had received his evaluations soon after the end of the period
under evaluation. On this occasion, Fregara asked for and was
given an "addendum" which evaluated his performance from
November 1987 until the delivery of the evaluation.
Both the evaluation and the addendum reflected management's
poor opinion of Fregara's performance. Notwithstanding the
prior warnings and disciplinary actions, Fregara testified
that he was surprised that EAF felt he was performing poorly.
(Plaintiff's deposition I at p. 91). Fregara discussed his
poor evaluation with several management officials but they
refused to change the evaluation.*fn4
Fregara's 1988 evaluation, prepared by Kunert, concluded
with the following comments:
Therefore, in light of your last year's
performance, I must inform you that you are on a
six month performance evaluation commencing
5/19/88. Every thirty days there will be a review
of your performance by your supervisor and
myself. A written record of these reviews will be
compiled. If during this review period your
actions in any way jeopardize the safety and/or
the business integrity of the EAF/client
relationship, you will be subject to immediate
Fregara's employment with EAF was finally terminated on
August 29, 1988. Fregara was discharged in part because he
refused to sign (i.e., to acknowledge receipt of) a memorandum
dated July 27, 1988 which reflected the topics discussed at
the second of the six counselling sessions established in the
1988 evaluation. (Plaintiff's deposition I at p. 110). Fregara
stated at his deposition that, when Kunert asked him to sign
the memo, he refused and the ensuing discussion "got pretty
loud . . .". (Plaintiff's deposition I at p. 113).
During this same time period, Kunert also learned that at a
recent aircraft inspection, Fregara had "signed off" on
several items (i.e., certified the flight worthiness of the
aircraft) when the inspecting mechanic had determined that
repairs were necessary. Fregara allegedly violated company
policy by "signing off" on these items without either having
the repair done or documenting the reasons why he believed the
repair was not necessary. (Plaintiff's deposition
I at pp. 125-126; Exhibit 15 thereto).
Defendant alleges that plaintiff's continued failure to
properly perform his duties, together with his refusal to
acknowledge the poor level of his performance and his failure
to benefit from counselling, led to its decision to discharge
the plaintiff. On August 29, 1988, Charlie Beaton, the
Director of Maintenance, terminated plaintiff's employment.
The termination letter given to Fregara provides, in pertinent
Over the eighteen months your supervisor and your
manager have evaluated your performance as
insufficient to meet the requirements of a
maintenance coordinator. They have worked closely
with you monitoring your performance; attempting
repeatedly to bring your performance up to an
acceptable level. However, it has become apparent
that you have not put forth the effort necessary
to correct the problems of the last eighteen
months. The excess of time spent by your
supervisor and manager diverts their attention to
the ongoing business. After careful review I have
determined that you cannot or will not improve
your performance and, I cannot support a
continued drain on the energies of the
supervisory staff of this department. Therefore,
based on your inability to perform to Jet
Aviation Executive Air Fleet's standards it has
become necessary to terminate your position
effective August 29, 1988.
(See Exhibit 16 to plaintiff's deposition transcript).
Summary judgment is appropriate where "the pleadings,
depositions, answers to interrogatories and admissions on
file, together with affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(c). The movant bears the initial burden of
demonstrating the absence of a genuine issue of material fact.
Adickes v. S.H. Kress and Co., 398 U.S. 144, 157, 90 S.Ct.
1598, 1608, 26 L.Ed.2d 142 (1970). In testing whether the
movant has met this burden, the court must resolve all
ambiguities against the movant. Lopez v. S.B. Thomas, Inc.,
831 F.2d 1184, 1187 (2d Cir. 1987) (citing United States v.
Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d
176 (1962)). The movant may discharge the burden by
demonstrating to the court that there is an absence of evidence
to support the non-moving party's case. Celotex Corp. v.
Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265
(1986). The non-moving party then has the burden of
demonstrating "specific facts showing that there is a genuine
issue for trial." Fed.R.Civ.P. 56(e). The non-movant must "do
more that simply show that there is some metaphysical doubt as
to the material facts." Matshuhita Electric Industrial Co. v.
Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 1356, 89
L.Ed.2d 538 (1986). Speculation, conclusory allegations and
mere denials are not enough to raise genuine issues of fact.
ORAL CONTRACT OF EMPLOYMENT
Fregara alleges, in his first and third counts, that he had
an enforceable oral contract of employment with the defendant.
The leading case in New Jersey on "life-time contracts" is
Savarese v. Pyrene Manufacturing Co., 9 N.J. 595, 89 A.2d 237
(1952). Savarese establishes the general rule as follows:
. . in the absence of additional express or
implied stipulations as to duration, a contract
for permanent employment, for life employment or
for other terms purporting permanent employment,
where the employee furnishes no consideration
additional to the services incident to the
employment, amounts to an indefinite general
hiring terminable at the will of either party,
and therefore, a discharge without cause does not
constitute a breach of such contract justifying
recovery of money damages therefore.
As Savarese demonstrates, there has been a marked reluctance by
the courts to enforce this type of contract, mainly because the
obligations it contains are primarily one-sided:
Agreements of this nature have not been upheld
except where it most convincingly appears it was
the intent of the parties to enter into such long
range commitments and they must be clearly,
specifically and definitely expressed. Only then
is it grudgingly conceded that not all such
contracts are `so vague and indefinite as to time
as to be void and unenforceable because of
uncertainty or indefiniteness.'
Id. at 601, 89 A.2d 237 (quoting 56 C.J.S., Master and Servant,
§ 6, P. 70; 1 Williston on Contracts, § 39 P. 110; 135 A.L.R.
646, et seq.).
In Shebar v. Sanyo Business Systems Corp., 111 N.J. 276,
544 A.2d 377 (1988), the Supreme Court of New Jersey distinguished
a promise to discharge only for cause from a life-time
contract. Id. at 287, 544 A.2d 377. "The [former] protects the
employee only from arbitrary termination" while the latter
protects an employee from any termination. Id. (emphasis
supplied). In order to determine the type of contract the
parties intended, a court must closely examine the terms of the
contract and the surrounding circumstances. Id. To the extent
that Fregara alleges a promise of discharge only for cause, his
breach of contract claim must be analyzed by those contractual
principles that apply when the claim is one that an oral
employment contract exists. Id. at 288, 544 A.2d 377. See,
e.g., Shiddell v. Electro Rust-Proofing Corp., 34 N.J. Super. 278,
112 A.2d 290 (App. Div. 1954).
Where such long range employment contracts are sued upon,
the intention of the parties to make such a contract must be
clearly, specifically and definitely expressed, and the intent
of the parties may be ascertained from the language employed,
from all attending circumstances, and from the presence or
absence of consideration from the employee additional to the
services incident to his employment. See, e.g. Shiddell v.
Electro Rust-Proofing Corp., supra, 34 N.J. Super. at 289,
112 A.2d 290; Shebar, supra, 111 N.J. at 288-290, 544 A.2d 377.
Additionally, in order to be enforceable, the terms of such a
contract must be sufficiently clear and capable of judicial
interpretation. Shebar, supra, 111 N.J. at 290, 544 A.2d 377.
Given these well established legal principles, the initial
question for the court is whether the alleged agreement was
"clearly, specifically and definitely expressed." Savarese v.
Pyrene Manufacturing Co., 9 N.J. 595, 600-601, 89 A.2d 237
(1952); Shiddell, supra, 34 N.J. Super. at 289, 112 A.2d 290.
The second question is whether it was supported by
"consideration additional to the services incident to the
employment. . . ." Ibid. For the reasons outlined below, both
questions must be answered in the negative.
Fregara asserts that the terms of the agreement were well
defined. His own deposition testimony, however, belies that
notion. In support of his allegation, Fregara offers only his
"impression" that such a contract existed. (See plaintiff's
deposition I at p. 23). Indeed, at his deposition, Fregara
could not identify any specific oral promises of job security
or lifetime employment that he allegedly received from the
defendant. In fact, plaintiff testified that his "oral
contract" had no specific terms. (See plaintiff's deposition
I at p. 18).
Fregara explained the basis for his allegation that he was
employed pursuant to an oral contract as follows:
A. I got the impression when I was hired as long
as I performed my job satisfactorily, I was there
for — you know. They told me as far as promotions,
as far as moving up the ladder because it was a
small company at the time and I was limited; and I
told them I was satisfied being a coordinator, and
I liked working with aircraft, and I wasn't looking
Q. You said something about your impression. What
was your impression?
A. They told me that as long as I performed my
job, that I have a job there. . . . That was the
gist of the conversation at the time.
Q. Do you remember the conversation?
A. Well, not verbatim, no.
Fregara further described this alleged oral contract in his
Q. I am looking to understand from you the terms
of the contract that you claim existed?
A. This is an oral contract so as such there
couldn't be any specific terms.
Q. What was said by any of these individuals at
the time you were hired that gives you the
impression that this oral contract existed?
A. Well, I said before what John Crawford
A. He wished me luck in my career at EAF.
(See plaintiff's deposition II at pp. 18-19).
Fregara's deposition testimony clearly demonstrates that the
alleged oral agreement lacks the degree of clarity and
specificity requisite for enforcement. The rights accepted and
the obligations imposed were never clearly and unequivocally
expressed in the contract. The language which Fregara relies
upon in support of his assertion that an oral contract existed
is not even strong enough to suggest that an offer or promise
of employment was ever made, much less that the terms were
"clearly, specifically and definitely expressed." Savarese v.
Pyrene Manufacturing Co., supra, 9 N.J. at 600-601,
89 A.2d 237.*fn6 No specific promise of life-time employment or job
security was ever made to Fregara. Moreover, Fregara cannot
point to any language which addresses the specific terms of the
alleged oral contract (i.e., wages, hours, job
responsibilities, definition of "just cause for termination",
etc.). The only possible foundation for a contract was
Fregara's testimony that John Crawford (the Vice President of
Maintenance) "wished me luck in my career at EAF . . . [and]
[t]hey told me that as long as I performed my job, that I have
a job there. . . ." These words, however, do not comport with
the precision and clarity required by the law. The former
statement is more in the nature of a friendly expression to
someone beginning a new job, while the latter is nothing more
than a colloquial expression of confidence in a new employee.
These words can in no way be translated into a promise of
Fregara's "impression" that he had an oral contract
providing for job security, completely unsupported by the
record, does not provide a basis for avoiding summary
judgment. As the court noted in Carney v. Dexter Shoe Co.,
701 F. Supp. 1093, 1103 (D.N.J. 1988):
A long-term employment commitment is only
enforceable if there is proof of a precise
agreement and a long-term commitment is supported
by consideration from the employee in addition to
the employee's continued work.
Fregara's deposition testimony demonstrates not only the
absence of a precise agreement, but also the absence of
consideration to support such an agreement. Specifically,
Fregara testified at his deposition:
Q. Did you at any time negotiate for a contract?
Q. Did you offer or give EAF consideration beyond
coming to work and performing your duties to the
best of your ability?
A. No, other than performing my duties, what I
was hired to do.
(See plaintiff's deposition II at pp. 17-18).
Even assuming arguendo that Fregara could establish that
there was an oral offer of job security with precise terms, his
alleged oral contract must fail for lack of consideration. See
Woolley v. Hoffman La Roche, Inc., 99 N.J. 284, 293, 301 n. 8,
491 A.2d 1257 (1985), modified, 101 N.J. 10, 499 A.2d 515
(1985); Shebar, supra, 111 N.J. at 287-88, 544 A.2d 377;
Shidell v. Electro Rust-Proofing Corp., 34 N.J. Super. 278,
289, 112 A.2d 290 (App. Div. 1954) (to create enforceable
employment contract, employee must give "consideration
additional to the services incident to his employment"). At
oral argument, on February 25, 1991, plaintiff asserted that he
agreed to give up his right to be promoted or the prospect for
promotion as additional consideration in return for the oral
promise of job security. When questioned at his deposition
about this additional consideration, Fregara replied:
A. At that time when they offered the job to me
after going back for the second time, John
Crawford said before the interview, you know, the
probability of you getting promoted to a hirer
[position] is not very good because of the fact
of your age and also the fact that there's quite
a few people here . . . not that many positions
available on top and the people that have been
here longer than you naturally get in those
positions. So I recognized that fact and said I
would be happen to be a coordinator and on that
basis I was offered the job. I was wished luck by
John Crawford who was Vice President of
Maintenance in the job and hoped everything would
go well in my career.
The essential requirement of consideration is a bargained
for exchange of promises or performance that may consist of an
act, or forbearance, or the creation, modification, or
destruction of a legal relation. See Restatement 2d of
Contracts, § 71 (1981). Fregara's deposition testimony
demonstrates that there was no bargained for exchange of
promises or performance but rather, that these were the terms
and conditions of employment (i.e., a job offer with little or
no opportunity for advancement). Fregara suffered no detriment
because he had no right to be promoted. Moreover, the defendant
employer received no benefit as it had no obligation to promote
In support of his argument that foregoing his right to be
promoted constituted additional consideration, Fregara relies
heavily on Greene v. Oliver Realty Co., 363 Pa. Super. 534,
526 A.2d 1192 (1987). In Greene, the Pennsylvania Superior Court
upheld an employer's promise of lifetime employment in exchange
for an employee's agreement to work at a rate below the union
scale. The Greene case is distinguishable from the facts of
this case for two reasons. First, in Greene, there was a
specific promise of life-time employment. In this case, Fregara
has failed to establish an essential element of an oral
contract for employment, namely, a specific promise or offer of
job security. Secondly, in Greene, the employee had an
independent right to receive union wages as soon as he began
his employment. The employer in Greene was not free to impose
wages below the union standard as a condition of employment
without an employee's consent. When the employee accepted a job
for life in exchange for his agreement to work below union
wages, he accepted terms and conditions of employment which
deviated from those guaranteed him by a contract between his
employer and the union. Clearly, the employer in Greene
received a benefit since it would be obligated to pay the
employee the higher union wages absent his agreement to forego
that legal right.
Finally, plaintiff argues that he accepted a position
whereby he gave up all opportunity to advance and that he is
entitled to rely on the representations of an employer under
the doctrine of promissory estoppel. As such, Fregara
maintains that the alleged oral promise of job security must
be enforced. The definition of promissory estoppel is set
forth in Restatement 2d of Contracts, § 90(1) (1977):
A promise which the promisor should reasonably
expect to induce action or forbearance on the
part of the promisee and which does induce such
action or forbearance is binding, if injustice
can be avoided only by enforcement of the
A key element in the theory of promissory estoppel is that
the promisee must suffer some detriment in reliance on the
promise. In this case, Fregara cannot establish that he
suffered any detriment. Fregara was unemployed at the time he
accepted his position with the defendant. Fregara did not
forego any other job offers as there were none. Quite simply,
all that Fregara gave up was his right to be unemployed. As
such, Fregara cannot establish the existence of an enforceable
oral contract of employment. Accordingly, summary judgment is
GRANTED in favor of the defendants on the first and third
counts of plaintiff's complaint.
BREACH OF IMPLIED CONTRACT IN EMPLOYEE HANDBOOK
Plaintiff contends that the employee handbook, published and
distributed by the defendant, formed the basis of a contract
which provided the plaintiff with job security. Defendant
maintains that the handbook did not contain any enforceable
promises of job security. It is well established that, in the
absence of a clear and prominent disclaimer, an implied
promise in an employee handbook that an employee will be
terminated only for cause may be enforceable against an
employer when the employment would otherwise be terminable at
will. Woolley v. Hoffman La Roche, Inc., 99 N.J. 284, 285,
491 A.2d 1257, modified, 101 N.J. 10, 499 A.2d 515 (1985). In
Woolley, the Hoffman La Roche manual was held to provide a
contractually enforceable promise of job security because of
its stated policy "to retain . . . the services of all
employees who perform their duties efficiently and
effectively", 99 N.J. at 310, 491 A.2d 1257, and to discharge
them only for specific, enumerated offenses. Woolley, 99 N.J.
at 287, 297, 300, 491 A.2d 1257. It was that policy, so
expressly stated, that "provide[d] for job security." Woolley,
99 N.J. at 297, 491 A.2d 1257.
Plaintiff points to the following provisions of the EAF
handbook in support of his assertion that there was an implied
promise to discharge employees only for cause:
DOES MY EMPLOYMENT REQUIRE A PROBATIONARY PERIOD?
You are considered to be in a probationary or
orientation period for your first twelve months
of employment or of assignment to any new
position. During this time, you will become
acquainted with the company and your job
responsibilities under the guidance of your
department head and fellow employees. At the end
of this period, your performance will be reviewed
by your department head and a determination will
be made concerning your continued employment
as a regular employee. During the probationary
period, you are subject to termination without
recourse to the grievance procedures afforded
herein to regular employees. (Emphasis supplied).
FOR WHAT REASONS MAY MY EMPLOYMENT BE TERMINATED?
WHAT IS A DISCHARGEABLE OFFENSE?
The following offenses are examples of events which
could result in immediate discharge. (Emphasis in
original). However, it should be recognized that
this is a partial list of offenses. (1) Safety
related failures which could have endangered
persons or property; (2) Theft of goods or
services; (3) Conviction of a crime; (4) Written or