Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

FREGARA v. JET AVIATION BUSINESS JETS

May 28, 1991

RONALD FREGARA, PLAINTIFF,
v.
JET AVIATION BUSINESS JETS AND AGENTS RICHARD KUNERT AND EDWARD BAILLIF, DEFENDANTS.



The opinion of the court was delivered by: Politan, District Judge.

  OPINION AND ORDER

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 approximately 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 issued.

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 decline.

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
  termination.

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 part:

  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.

Id. at 600-601, 89 A.2d 237.

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
  for —
  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 deposition testimony:

  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
  mentioned.

Q. What did he say?

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 employment.

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.

Id. (emphasis supplied).

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?

A. No, no.

  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 an employee.

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.

In this case, the limited opportunity for advancement was part and parcel of the job offer. In contrast to the employer in Greene, defendant EAF had the unfettered discretion to offer plaintiff a job with little or no opportunity for advancement since plaintiff possessed no independent right to be promoted nor, for that matter, to be considered for promotion. In short, under Fregara's theory of consideration, the defendant would have received no benefit and Fregara would have suffered no detriment given the terms of the alleged oral contract.

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
  promise.

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?

(3) DISCHARGE.

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
  ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.