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Gilbert v. Durand Glass Manufacturing Co.

Decided: July 17, 1992.


On appeal from the Superior Court, Law Division, Cumberland County.

O'Brien, Havey and Braithwaite. The opinion of the court was delivered by Havey, J.A.D.


The opinion of the court was delivered by


In this employment wrongful discharge action, defendant Durand Glass Manufacturing Company, Inc. (Durand) appeals from a $150,000 judgment entered on a jury verdict in favor of plaintiff. Durand also challenges the award to plaintiff of prejudgment interest in the amount of $31,633.04. The gravamen of plaintiff's complaint was that Durand had terminated her in violation of its oral policy to give employees a verbal and successive written warnings before termination. Durand argues that plaintiff, an at-will employee, failed as a matter of law to establish a prima facie case of wrongful discharge because: (1) the Woolley*fn1 doctrine applies only to a written company policy concerning termination of employment, and not to verbal policies, and (2) plaintiff failed to prove by convincing evidence that a clear and definite oral promise, conveyed to her,

was made by Durand not to terminate her without warning. Durand also contends that the trial Judge erred in awarding prejudgment interest. We affirm the judgment, but reverse the prejudgment interest award.

Plaintiff began working for Durand in August 1982 as a glassware quality inspector. Her responsibilities involved inspecting the glass work as it came from the "hot end" to the "cold end" of the plant. It is undisputed that during her employment there was no written policy regarding warning notices prior to termination. For example, Durand's written "Rules of Conduct" did not establish a warning procedure. However, plaintiff testified that she was privy to many conversations during her employment in her foreman's office whereby employees would be told "[t]his is your first warning, this is your second warning." She also stated that her supervisor, John Johns, told her that the only cause for "immediate discharge" was insubordination.

Moreover, Ronald Lipscomb, a cold-end supervisor, testified that sometime in 1982 the cold-end supervisors met to discuss problems concerning absenteeism. A policy was subsequently implemented whereby offending employees would receive an initial verbal warning and three successive written warnings. The procedure was to be utilized in the cold end, but Lipscomb was under the impression that "eventually it would be on a plant-wide basis." He also stated that the policy was extended to other infractions besides absenteeism. Although the policy was finalized, the final step of discharge was "not carved in stone" in that discharge was left to the discretion of the department head and supervisor involved. Lipscomb also explained that there were exceptions to the warning procedure. People who were newly hired who did not work out, employees who were insubordinate or possessed firearms or engaged in drinking alcoholic beverages could be terminated without the requisite warning. Lipscomb was of the belief that he was otherwise not authorized to discharge an employee without adhering to the warning policy. The warning notice form

devised at the meeting was revised by the personnel office and the forms were distributed by it to supervisors who requested them.

Joanne Simpkins, who worked for Durand for eight years, also testified that sometime in 1983 all employees in her crew were advised by their foreman of the warning policy. According to Simpkins, plaintiff was the only person she knew who was discharged without receiving any warning. Edward Dzierwinski, a shift supervisor, corroborated the existence of a "write-up system" which started in early 1983. The purpose of the "system" was to warn employees about wrongdoing so they could correct it. He and other supervisors used the warning notices, but he acknowledged it was possible that some supervisors did not.

Plaintiff submitted personnel records memorializing 18 different instances in which the formal warning procedure was utilized between 1983 and 1988 for a variety of offenses in different departments, including damage to equipment, failing to wear safety glasses, absenteeism, poor job performance, irresponsible behavior, improper labeling and smoking.

Joyce Marshall, assistant to the personnel director, testified that she knew of no written policy regarding warning notices for discipline. However, she admitted that Durand's personnel files contained "quite a few" warnings, both verbal and written. She stated that a "large number" of management personnel utilized the warning system. In 1987, Marshall wrote a letter to an employee explaining this procedure. She also gave an example of an unemployment compensation form on which she indicated that a terminated employee was "on the final written warning." Another unemployment form, declining benefits, noted that the applicant "had one verbal and two written warnings" prior to discharge.

Martin Bush, the personnel director, also admitted to the existence of the warning policy. In 1983, he wrote a letter to a company manager regarding ...

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