The opinion of the court was delivered by: GREENAWAY
JOSEPH A. GREENAWAY, JR., District Judge,
This matter comes before the Court on the motion for summary judgment of Hannoch Weisman, attorneys for Gardner Asphalt Corporation ("Gardner Asphalt").
Defendant Gardner Asphalt is in the business of manufacturing and wholesaling products for use in the roofing industry. Plaintiff John Barone worked for Gardner Asphalt from approximately March 1986 until December 9, 1994. Mr. Barone's Complaint alleges that his former employer, Gardner Asphalt, wrongfully terminated his employment in breach of an alleged employment contract (Count One), discharged him solely because of his age (Count Two), owed him a bonus based on his performance from September 1, 1993 through August 31, 1994 (Count Three) and owed him compensation for fifteen days of vacation time accrued but never taken (Count Four).
The following facts are relevant to Mr. Barone's claims against Gardner Asphalt: In approximately March 1986, Mr. Barone received an offer from Mr. Raymond Hyer, Chairman of the Board and Chief Executive Officer of Gardner Asphalt, as an at will employee.
Mr. Barone accepted the position. There is no evidence in the record to suggest that either party discussed a specific term of employment or that the parties executed or contemplated executing an employment contract.
There is also no evidence that any representative of Gardner Asphalt made any statements that Mr. Barone could only be terminated for cause. In addition, Mr. Barone admitted at his deposition that at least until December 13, 1994, Gardner Asphalt employed him as an at-will employee.
Initially, Mr. Barone worked directly for Mr. Hyer in the Emulsion Products Division and performed a variety of jobs. After approximately two years, Mr. Barone became more involved in sales and moved from the Emulsion Products Division to the main payroll of Gardner Asphalt. In 1990, Mr. Barone received a promotion to regional sales manager. As regional sales manager, Mr. Barone's main responsibility focused on increasing business for Gardner Asphalt.
Beginning in the late 1980s and continuing through the 1990s, the building industry, and thus the roofing products market, was depressed.
Indeed, Mr. Barone admitted that the building roofing material market was in dire straits prior to his termination: at his deposition, sworn to on February 9, 1996, he testified that "the building roofing materials market was totally depressed, oh, God, for the last three or four years . . ." Barone Dep. at 127, 20-22; see also Latoff Certif., Ex. D, at 127.
At the annual conference for regional sales managers held in January 1994, top management, acknowledging that action was necessary to combat the depressed market, directed its regional managers to develop a long-term strategic plan to increase sales. The regional managers also received instructions to contact the existing customer base to reinforce relations, to foster the dedication of the sales force and to write a job description for the district managers, as soon as possible. Mr. Barone failed to comply with these directives. Mr. Hyer also continued to receive complaints from customers, his sales force and other top managers of Gardner Asphalt that Mr. Barone failed to respond to their messages, to call the national office, or to inquire about the problems that needed his immediate attention. In addition, Mr. Barone failed to submit schedules, sales receipts and expense reports in a timely manner. In October 1994, approximately two months prior to Mr. Barone's termination on December 19, 1994, Gardner Asphalt lost the Channel, United Asphalt, and Seaboard Supply Co. accounts. These northeast regional customers, for which Mr. Barone had direct responsibility, constituted the vast majority of the northeast region's business.
Indeed, Mr. Barone had failed to develop any new customers over the last two years of his employment. Hyer Certif. P 30.
Gardner Asphalt believed that Mr. Barone (1) performed his job unsatisfactorily, (2) caused the loss of the Channel and other accounts and (3) brought about a general decline in the profitability of the northeast region. As a result, Mr. Hyer, along with Edwin Plemons, Chief Operations Officer, and Michael A. Bell, Vice President of National Sales, decided to terminate Mr. Barone.
On December 13, 1994, Mr. Bell met with Mr. Barone at the Kearney, New Jersey office. In preparation for this meeting, Mr. Bell spelled out Mr. Barone's deficiencies in a memorandum to Mr. Barone, entitled "Re: Conditions of Employment", (hereinafter, the "Memorandum"). This Memorandum states in its entirety:
As the Vice President of National Sales for Gardner Asphalt Corp., it is my responsibility to ensure timely communications to and from the field sales force; prompt T & E expense reporting; and organized growth of our product sales into all segments of our target markets. In this vein, you are required to comply with the following procedures.
. You are to check your voice mail a minimum of three times daily, no later than the following times: 9:00 AM; 1:00 PM and 3:30 PM.
. During these calls you are to check with Tami Watson to determine if you are needed to answer any questions or resolve any problems in your area of responsibility.
. All matters requiring your input, action or attention are to be handled immediately without delay.
. Expense reports are to be completed and on my desk no later than seven (7) working days after the week ending date.
. Any entertainment expenses exceeding $ 50.00 must be approved by me in advance.
. A formal business plan outlining Target Accounts by sales person, dollar volume, lost business and a strategic plan on how to grow our business in a planned and organized manner in ...