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OBENDORFER v. GITANO GROUP

November 30, 1993

CHRISTINE OBENDORFER and DARIN PORTNEY, individuals, PLAINTIFFS,
v.
THE GITANO GROUP, INC., a New York Corporation and HORATIO SAN MARTIN, an individual, DEFENDANTS.



The opinion of the court was delivered by: JOHN C. LIFLAND

 LIFLAND, District Judge

 Presently before the Court is defendants' motion to dismiss the third, fourth and fifth counts of the Complaint pursuant to Fed. R. Civ. P. 12(b)(6), and to dismiss the sixth count of the Complaint pursuant to Fed. R. Civ. P. 12(b)(6) and 12(b)(1). Plaintiffs oppose the motion.

 BACKGROUND

 This action arises out of an employer-employee relationship. (Complaint PP 2, 7-10). Plaintiff Christine Obendorfer ("Obendorfer") was employed by The Gitano Group Inc. ("Gitano"). Between October 1991 and February 1992 she was a junior accountant and reported to Horatio San Martin ("San Martin"). (Complaint, P 9). Plaintiffs allege that on numerous occasions during that time period San Martin told Obendorfer that "women belong in the kitchen" and "women are inferior" and made other degrading comments based on her gender. (Complaint, P 10). Plaintiffs also allege that in around February 1992, San Martin told Obendorfer that her prospective fiance, Darin Portney ("Portney"), a lawyer, was a "cheat" and a "liar like all other lawyers," and that Portney was "cheating" on her and therefore should not be trusted. (Complaint, P 11).

 Subsequently, Obendorfer filed a Complaint with Linda Klein ("Klein") at Gitano's Human Resources Department and was informed that San Martin was given a "final notice" about his conduct. (Complaint, P 12). Obendorfer alleges that through Klein, Gitano warranted that San Martin's conduct would stop. Obendorfer alleges that despite the warning San Martin continued to engage in unwelcome and unlawful conduct against her. (Complaint, P 12).

 In late February 1992, Obendorfer was transferred to the Tax department, which consisted of two employees. The purpose of the transfer was to separate her from San Martin. (Complaint, P 13). Obendorfer alleges that the transfer to the tax department, with little or no prospect of advancement, was motivated by a desire "to be rid of her." (Complaint, P 15).

 Obendorfer alleges that following the transfer San Martin with increasing frequency "continued to assert his physical presence" in her view, unnecessarily repeatedly visited her new work area, and attempted to initiate unwanted conversations. Obendorfer claims that these visits were contrary to Gitano's assurances that she would find a comfortable work place in the Tax Department. (Complaint, P 14). In or about May 1992 Obendorfer resigned. (Complaint, P 15). Obendorfer alleges that she was constructively terminated by defendants' conduct. (Complaint, P 15).

 The Complaint alleges six causes of action. Counts one and two allege sexual harassment and sexual discrimination in violation of Title VII and the New Jersey Law Against Discrimination. Count three alleges that Gitano breached an oral contract with Obendorfer. Count four alleges an intentional infliction of emotional distress claim against Gitano and San Martin. Count five alleges that San Martin tortiously interfered with the employment contract between Gitano and Obendorfer. In Count six, Portney alleges a cause of action against San Martin for slander. Defendants move to dismiss the third, fourth, fifth, and sixth counts.

 DISCUSSION

 A motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) may be granted only if, accepting all well pleaded allegations in the complaint as true, and viewing them in the light most favorable to plaintiff, plaintiff is not entitled to relief. Bartholomew v. Fischl, 782 F.2d 1148, 1152 (3d Cir. 1986); Angelastro v. Prudential-Bache Securities, Inc., 764 F.2d 939, 944 (3d Cir.), cert. denied, 474 U.S. 935, 88 L. Ed. 2d 274, 106 S. Ct. 267 (1985). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974). In setting forth a valid claim, a party is required only to plead "a short plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a).

 Count Three - Breach of Employment Agreement. Obendorfer alleges that "at the time she was hired by Gitano, the parties entered into an oral agreement for employment with express or implied covenants of good faith and fair dealing in their respective responsibility." (Complaint, P 26). The Complaint alleges that "Obendorfer's obligations consisted of her availability, willingness to work, job-related performance and the like, [and] Gitano . . . owed a duty to Obendorfer and other employees to maintain a work place free of supervisory abuse and hostility, and to discourage discrimination or harassment on the basis of sex, as provided by law." (Complaint, P 26).

 Gitano moves to dismiss Obendorfer's claim that Gitano breached an oral employment contract because the Complaint fails to set forth the specific terms of the alleged oral contract and fails to set forth adequate consideration to support the alleged oral contract.

 Employment contracts for an indefinite duration create an at-will employment relationship. e.g., Fregara v. Jet Aviation Business Jets, 764 F. Supp. 940 (D.N.J. 1991). The leading case in New Jersey on permanent employment 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 ...

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