On appeal from Superior Court of New Jersey, Law Division, Camden County.
Approved for Publication December 16, 1996.
Before Judges King, Conley and Loftus. The opinion of the court was delivered by Conley, J.A.D.
The opinion of the court was delivered by: Conley
The opinion of the court was delivered by
In December 1989, plaintiff was fired from his job as foreman by defendant Joseph Savage, the plant manager of the Georgia-Pacific paper mill in Delair, New Jersey *fn1 in which plaintiff worked. In 1990, plaintiff filed a Law Division action which included allegations that his termination was racially motivated in violation of the Law Against Discrimination, N.J.S.A. 10:5-1 to 42 (LAD), and that his termination was in violation of a company policy manual (a Woolley *fn2 common law wrongful discharge claim). In October 1993, summary judgment was granted defendants on the Woolley cause of action. *fn3 In January 1993, and pursuant to a mutual agreement that was expressly without prejudice as to all issues in the litigation, plaintiff was reemployed by Georgia-Pacific, but in an entirely different position and without supervisory responsibilities. Counsel then unsuccessfully sought "interim" counsel fees. Thereafter, following a nine-day jury trial, the jury concluded, in response to the first interrogatory on the verdict sheet, that plaintiff had not satisfied his initial burden under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668 (1973) (McDonnell Douglas), that is he had not proven by a preponderance of the evidence "that he was performing his job at a level which satisfied defendant's reasonable expectations." *fn4 The jury, therefore, did not proceed to the next two steps in the analysis, that is whether defendant "has articulated or advanced any legitimate nondiscriminatory business reason for its decision to terminate plaintiff" and, if yes, whether "plaintiff has proved that defendants' legitimate business reason was a pretext for discrimination." Pursuant to the "no cause" verdict, the complaint was dismissed.
We have, ourselves, read the entire transcript of the trial. While it is not, of course, our function to second-guess the jury, suffice it to say that we are not at all surprised by the verdict. The evidence in support of the jury's Conclusion that plaintiff simply was not performing his job satisfactorily is, to put it mildly, overwhelming. To be sure, there is no evidence to suggest that the production that plaintiff was able to get from his crews was anything but satisfactory and, perhaps, even superior. Moreover, through his over fifteen years as a foreman, plaintiff continued to receive the positive evaluations that were needed for his annual pay raises. The evidence, however, from Savage, crew members (African-American and Caucasian alike), and the union representative revealed a supervisor whose sole concern was production to the total disregard of the safety of his crew members and contrary to the expressed policies and expectations of management.
Between 1984-89 numerous grievances were filed against plaintiff reflecting his mistreatment of the employees and lack of safety concerns. Many of the grievances were filed in the last two years of plaintiff's employment and during a time when, the jury could have concluded, Georgia-Pacific's safety concerns for its employees had become increasingly important and of which plaintiff was fully aware. In response to this evidence, plaintiff simply considered his management style as "unorthodox" and asserted that none of the grievances had been substantial nor did he suffer any adverse consequences. He admitted, however, that he had been told that management believed he did not demonstrate sufficient concern for the safety of the employees and had been told that his use of abusive and profane language must stop and that he must demonstrate more concern for and tolerance of his employees. There was no evidence of any similar problem with the other foremen.
On December 9, 1989, an employee in plaintiff's crew, George Klapach, slipped on a ladder and fell. There was sufficient evidence for the jury to have concluded that plaintiff knew the employee was hurt but, despite the repeated counseling, ignored the accident for four hours between midnight and four in the morning, finally sending the injured employee to the hospital. Savage testified that although plaintiff did nothing to cause Klapach's injury, he ignored his back injury for a substantial period of time and this incident constituted the "last straw." The determination to fire plaintiff was made on December 11, 1989.
On appeal, plaintiff raises the following contentions:
SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED ON THE WOOLLEY CLAIM BECAUSE THE PURPORTED DISCLAIMER WAS MANIFESTLY INADEQUATE.
A NEW TRIAL SHOULD BE GRANTED ON THE LAD CLAIM BECAUSE THE JURY WAS MISINSTRUCTED ON WHAT PLAINTIFF MUST PROVE.
POINT III. THE LOWER COURT'S EVIDENTIAL RULINGS IMPROPERLY PREVENTED PLAINTIFF FROM DEMONSTRATING THAT HIS TERMINATION WAS PART AND PARCEL OF A RACIST CORPORATE CULTURE AT GEORGIA-PACIFIC.
BY SIGNING THE JOINT FINAL PRETRIAL ORDER, DEFENDANTS CONSENTED TO THE MODIFICATIONS IN PLAINTIFF'S PLEADINGS AND THEY WERE NOT AT RISK OF SURPRISE ON THE NON-PROMOTION CLAIM.
THIS LITIGATION WAS THE CATALYST FOR PLAINTIFF'S RETURN AFTER FOUR YEARS TO EMPLOYMENT WITH GEORGIA-PACIFIC, AND THEREFORE PLAINTIFF IS ENTITLED TO AN ATTORNEY FEE AWARD.
In considering these contentions, we have not only carefully read all of the briefs, but, as we have previously said, have independently read the entire transcript. We are convinced, preliminarily, that Judge Greene comprehensively and cogently considered all of the issues and objections raised and supported all of the trial rulings required by this trial with more than adequate findings and Conclusions. And he did so in light of the applicable law, including the then very recently decided Rendine v. Pantzer, 276 N.J. Super. 398, 427-28, 648 A.2d 223 (App. Div. 1994), aff'd, 141 N.J. 292, 661 A.2d 1202 (1995). We are utterly convinced that the trial Judge's evidential rules complained of in point III are unassailable. We are also convinced that there is no basis for us to interfere with his discretionary ruling as to the proverbial "eve-of-trial" application to amend plaintiff's complaint to include a claim of discrimination arising from an alleged failure to promote that occurred some four years before plaintiff's termination. In so concluding, we acknowledge plaintiff's assertion that defendants were aware of this very separate cause of action by virtue of the inclusion of the claim in plaintiff's proposed listing of claims in the federal pretrial order. *fn5 But: 1) that pretrial order was never filed since the matter was returned to the trial court; 2) defendants did not acknowledge anywhere in their submissions in connection with that proposed order that that separate cause of action was, indeed, part of the litigation; and 3) plaintiff never, thereafter and upon return to the state court, sought to amend his pleadings. Accordingly, under these circumstances, we cannot fault the trial Judge's exercise of discretion. We then address the contentions in points I, II and V. We do so in that order.
Putting aside his reliance upon certain company manuals, plaintiff was an at-will employee, that is he could be fired with or without cause. E.g. English v. College of Medicine & Dentistry, 73 N.J. 20, 23, 372 A.2d 295 (1977). Although we have drawn some exceptions to that principle, Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 417 A.2d 505 (1980), the discretion of a private employer to hire at-will remains viable. Witkowski v. Thomas J. Lipton, Inc., 136 N.J. 385, 397-99, 643 A.2d 546 (1994). See Bernard v. IMI Systems, Inc., 131 N.J. 91, 106, 618 A.2d 338 (1993) ("Today, both employers and employees commonly and reasonably expect employment to be at-will, unless specifically stated in explicit, contractual terms." (Emphasis added)).
Ordinarily, an express employment contract serves to create an other than at-will employment relationship. In Woolley v. Hoffman-La Roche, Inc., (supra) , 99 N.J. 284, the Supreme Court considered whether and under what circumstances a company employee manual will create certain employment protections even in the face of an otherwise at-will employment relationship. Under Woolley, if a discharged employee can demonstrate that a company manual was widely distributed and contained job security and disciplinary procedures that an employee reasonably could consider as establishing reciprocal rights and obligations, and the employee in reliance thereof continues employment, the company manual may be considered an implied contract of employment and the employee entitled to rely upon the protections contained therein. Id. at 309. But the Court also observed that the mere distribution of a company manual governing terms and conditions of employment does not, ipso facto, create such a contract.
There is no absolute test by which a company manual can be measured to determine if it has established an implied contract. Witkowski v. Thomas J. Lipton, Inc., (supra) , 136 N.J. at 392. The focus of the inquiry is the reasonable expectation of the employee, ibid. (citing Woolley, (supra) 99 N.J. at 297-98), and encompasses consideration of "both the manual's specific provisions, and the context of its preparation and distributions." Id. at 392-93 (citing Woolley, (supra) , 99 N.J. at 299).
We have no quarrel here with the "context of the . . . preparation and distribution" of the manuals at issue. See Nicosia v. Wakefern Food Corp., 136 N.J. 401, 408, 643 A.2d 554 (1994) (even though manual was distributed to only 10% of the workforce and limited to supervisory personnel, the manual met the "widely distributed" factor). Compare Kane v. Milikowsky, 224 N.J. Super. 613, 541 A.2d 233 (App. Div. 1988).
In addition to its distribution, however, the contents of the manual must be such as to create a reasonable expectation of job security. See, for example, Radwan v. Beecham Labs., 850 F.2d 147, 149 (3d Cir. 1988) (no implied contract created where termination policy that provided dismissal for cause included the language "may include, but is not limited to" examples listed); Catalane v. Gilian Instrument Corp., 271 N.J. Super. 476, 494-95, 638 A.2d 1341 (App. Div.), certif. denied, 136 N.J. 298 (1994) (manual which insured "open communication" through access to the company president, but which did not discuss termination or dismissal procedures, could not reasonably create an expectation of a contract). Compare Schwartz v. Leasametric, Inc., 224 N.J. Super. 21, 31, 539 A.2d 744 (App. Div. 1988) (employment manual with termination policy ...