On appeal from the Superior Court, Law Division, Middlesex County.
Before Judges Michels, Skillman and Kestin.
The opinion of the court was delivered by
Alleging wrongful discharge from their employment and subsequent interference with their employment opportunities, plaintiffs filed an eleven-count amended complaint seeking relief on the basis of the New Jersey Constitution, under the Law Against Discrimination (LAD or Act), N.J.S.A. 10:5-1 et. seq., and pursuant to various common law causes of action. On defendants' R. 4:6-2(e) motion to dismiss all counts but the eighth, which alleged age discrimination in respect of plaintiffs Ellen Chapman and Craig, the trial court dismissed counts one through six of the amended complaint. The dismissed counts asserted retaliatory discharge in violation of N.J.S.A. 10:5-12d and, alternatively, in violation of public policy and as an unconstitutional deprivation of property; breach of employment contract; breach of implied covenant of good faith and fair dealing; and fraudulent misrepresentation. We granted the motion of plaintiffs Craig, Ellen Chapman, Denino and Marsillo for leave to appeal as to the dismissal of counts one through five, i.e., all except fraudulent misrepresentation.
Defendants contend that the trial court's rulings dismissing counts one through five of the amended complaint should be governed by summary judgment standards because both parties, in arguing their respective positions on defendants' motion to dismiss relied on matter outside the pleadings. It is clear, however, that the trial court's Disposition of the retaliatory discharge claim based on statutory, public policy and constitutional grounds was addressed only to the pleadings. We agree, nevertheless, that in dismissing plaintiffs' claims for breach of contract (counts four and five), the trial court properly treated the motion as one for summary judgment.
In evaluating the trial court's R. 4:6-2(e) dismissal of the retaliatory discharge claim, i.e., for failure to state a claim upon
which relief can be granted, we must confine ourselves narrowly to the issues appropriate to such a consideration, and take as true for the purposes of the motion plaintiffs' factual allegations contained in the amended complaint as fairly elaborated upon in the motion papers. Rieder v. State Dep't of Transp., 221 N.J. Super. 547, 552, 535 A.2d 512 (App. Div. 1987) ("A complaint should not be dismissed under this rule where a cause of action is suggested by the facts and a theory of actionability may be articulated by way of amendment.").
Plaintiffs were employees of Suburban Cablevision, Inc. (Suburban) in its door-to-door sales department (department) until the department was eliminated in August 1989. In March 1988, plaintiff Susan Chapman, a supervisor in the department, had filed a gender and handicapped employment discrimination suit against Suburban in federal court. Plaintiffs allege that, after the suit was filed, Suburban's management began to treat all the plaintiffs adversarially, and that changes were made in the department and in Suburban's policies which were designed to harass plaintiffs and retaliate against them because Susan Chapman had filed her suit. Plaintiffs allege further that as the federal litigation progressed, management's animosity toward the department's staff grew.
On July 14, 1989, defendant DeJoy, president of Suburban, announced to plaintiffs and other department employees that the department was to be closed on August 18 because door-to-door sales were no longer an effective or economically sensible means of promoting cable television subscriptions. A severance package was presented; and all department employees were invited to apply for other jobs in the company for which, they were told, they would be given preference. When some of the plaintiffs looked further into the reemployment offer, they discovered that the jobs available paid lower salaries and no commission. Also, plaintiffs allege, they were given to believe that, simply by applying for an available position, those affected would relinquish their claim to the severance package. Each of the plaintiffs elected to take the severance package and their employment with Suburban
was terminated as of August 18, 1989.*fn1 Plaintiffs allege further, that notwithstanding the reasons given for elimination of the department, Suburban reinstituted door-to-door sales activities eighteen months later through a contract with ...