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Romano v. Brown & Williamson Tobacco Corp.

October 23, 1995


On appeal from the Superior Court of New Jersey, Law Division, Middlesex County.

Approved for Publication October 23, 1995.

The opinion of the court was delivered by Shebell, P.j.a.d.

The opinion of the court was delivered by: Shebell

The opinion of the court was delivered by SHEBELL, P.J.A.D.

Plaintiff, John L. Romano, Jr., appeals the dismissal on summary judgment of his complaint filed on August 21, 1992 against Brown & Williamson Tobacco Corporation, his former employer, alleging: Count I: retaliatory discharge; Count II: unlawful employment discrimination based upon marital status; Count III: breach of employment contract to terminate for cause; Count IV: breach of an implied covenant of good faith and fair dealing; Count V: violation of a clear mandate of public policy by his having been discharged based upon his marital status; Count VI: negligent infliction of emotional distress; Count VII: spoliation of evidence/negligent supervision; Count VIII: punitive damages for willful, deliberate and intentional conduct. Defendant's counterclaims, alleging breach of the duty of loyalty, legal and equitable, intentional and negligent misrepresentation, and concealment and interference with a prospective economic advantage, remained viable after the dismissal of plaintiff's complaint. We granted leave to permit interlocutory review of the summary judgment orders terminating plaintiff's claims.

In 1981, during a business conference, plaintiff witnessed an incident in which a supervisor of Brown & Williamson allegedly sexually harassed Nancy Anderson, a fellow employee. Anderson filed a complaint with the company, which was investigated. The files pertaining to the investigation allegedly have been lost. An interview with plaintiff, which is pertinent to this action, was part of the lost investigation file.

In 1985, Anderson was fired, allegedly due to poor job performance. Thereafter, she filed a lawsuit against Brown & Williamson alleging several incidents of sexual harassment, including the one that plaintiff had witnessed. Plaintiff was interviewed on behalf of his employer on several occasions while suit was pending as he was a critical witness for the company. Betty Foley, defendant's in-house counsel interviewed plaintiff in 1986, 1990, and twice in 1991. In October 1991, three weeks prior to the trial, outside defense trial counsel interviewed plaintiff and then contacted Foley, because of the discrepancy between plaintiff's statement to him and what Foley had related plaintiff would say. Thereafter, Foley accused plaintiff of changing his testimony to an account of the incident that was more favorable to Anderson.

Plaintiff maintained then, as he does now, that his version has never changed. Foley, however, asserts that plaintiff had always given an account that limited the severity of the incident until 1991, when she claims that plaintiff then added that Anderson's supervisor had pulled open the top of Anderson's dress and plunged his nose in. Foley never wrote any notes or memos of plaintiff's statements. The original investigation file had a written account of plaintiff's version that Foley reviewed once or twice for about a minute each time. According to Foley, plaintiff's "changed" testimony and the climate of public sentiment following the Clarence Thomas confirmation hearings motivated her to recommend that the company settle the Anderson litigation. Plaintiff never testified during that action. On the second day of trial, the company settled for an undisclosed amount. Defendant claims the settlement was greater than it would have been were it not for plaintiff's changed version of the incident.

Anderson received her settlement check on November 1, 1991. On November 27, 1991, she and plaintiff were married. They had been friends while they both were employed by the defendant, had remained friendly after Anderson's discharge, and began dating in 1986 or 1987. They became engaged in 1989, plaintiff gave her a ring in 1990, and they married in 1991. Plaintiff asserts that the two have never spoken about the case, except when he told her that he might be called as a witness, and that Anderson has never disclosed the amount of settlement to him.

Throughout the courtship, plaintiff did not refer to Anderson by name at work, but rather as his "ladyfriend" and later on as "Julie," which he thought to be her middle name. Plaintiff chose not to disclose this relationship to defendant, despite the feeling that he might get in trouble for not telling. In February of 1992, amid rumors that plaintiff had married Anderson, defendant conducted an investigation.

Plaintiff was terminated on February 13, 1992, after 28 years of service. The company gave the following reason for the discharge:

Despite the fact that you were a material witness with respect to a substantial claim by Ms. Anderson against the Company, you failed to disclose the fact that you were engaged to be married to Ms. Anderson. Instead, you took steps to conceal your relationship with Ms. Anderson from Brown & Williamson, including misrepresenting your relationship to your supervisors. Less than one month after Brown & Williamson paid a substantial financial settlement to Ms. Anderson, you and she were married. Again, you concealed the fact that the woman whom you married was in fact Ms. Anderson ...

Your conduct in failing to disclose and concealing your relationship with Ms. Anderson and making false statements to your supervisors breached your duties as a Brown & Williamson employee, constituted a conflict of interest and violated Brown & Williamson's Standards of Business Conduct. For this reason, your employment has been terminated.

I will also note that the settlement of Ms. Anderson's claim was based largely on account of the incident between Ms. Anderson and her supervisor. I understand that your recollection of this incident changed substantially in favor of Ms. Anderson as trial approached. It is also my understanding that had you not concealed your relationship with Ms. Anderson and changed your account of the incident substantially in her favor, Brown & ...

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