applies to employees whose employment is governed by an employee handbook or manual. "Absent a clear and prominent disclaimer, an implied promise contained in an employment manual that an employee will be fired only for cause may be enforceable against an employer even when the employment is for an indefinite term and would otherwise be terminable at will." Id.
Mr. Barone does not allege either a public policy claim or that Gardner Asphalt's Personnel Policy Manual constitutes an implied employment contract. However, even if Mr. Barone had made an implied contract claim, there is express disclaimer language in the Manual which provides otherwise. Under Policy 103:1 of the Manual, entitled "Employment-at-Will", it states that it is "the policy of the company that all employees who do not have a written employment agreement are employed at the will of the company for an indefinite period. Employees may resign from the company after prior notice and may be terminated by the company at any time, for any reason, and with or without notice." Latoff Certif., Ex. M.
Mr. Barone admitted signing an "Acknowledgment", stating that he had received this Manual. Latoff Certif., Ex. L. In addition, Mr. Barone's wrongful discharge claim is especially inappropriate given that, during his deposition, he conceded that, at least until December 13, 1994, he had been employed at-will.
Mr. Barone's claim for wrongful discharge, based on the writing of December 13, 1994, entitled "Conditions of Employment", (hereinafter, the "Memorandum"), also must fail. Nowhere in this Memorandum does it state (a) that it is an employment contract; (b) that compliance with these requirements will guarantee employment for any specific duration; (c) that Mr. Barone is anything more than an at-will employee; or (d) that there is a promise of employment for a determinate amount of time or that there is any restriction placed on Gardner Asphalt's ability to terminate Mr. Barone. In short, nothing in this Memorandum alters Mr. Barone's status as an at-will employee.
In addition, there is no merit to Mr. Barone's suggestion that his colloquy with Mr. Bell -- i.e., Mr. Barone's question to Mr. Bell about whether "Tampa" (the national office) had approved the Memorandum, and Mr. Bell's response that it was approved -- is proof that the Gardner Asphalt intended the Memorandum to be some sort of an employment contract. In short, Mr. Barone fails to refute defendant's evidence, demonstrating that there was never an employment contract, express or implied, between Mr. Barone and Gardner Asphalt.
Plaintiff has failed to create a genuine issue as to a material fact; therefore, his wrongful discharge claim against defendant Gardner Asphalt is dismissed.
Age Discrimination Claim
To sustain a claim for age discrimination, a plaintiff must proceed under the shifting burdens analysis first enunciated by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973).
Under the shifting burdens analysis, a plaintiff must first establish a prima facie case of discrimination. Id.; see also O'Connor v. Consolidated Caterers Corp., U.S. , 134 L. Ed. 2d 433, 116 S. Ct. 1307, 1310 (1996); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506, 125 L. Ed. 2d 407, 113 S. Ct. 2742 (1993); Turner v. Schering-Plough Corp., 901 F.2d 335, 341 (3d Cir. 1990); Maxfield, 766 F.2d at 791; E.E.O.C., 829 F. Supp. at 1449; Goodman v. London Metals Exchange, Inc., 86 N.J. 19, 31, 429 A.2d 341 (1981).
A prima facie case of age discrimination is demonstrated where the plaintiff demonstrates that he or she (1) is a member of a protected class (i.e., at least 40 years of age); (2) was performing his job in a satisfactory manner; (3) was discharged despite being qualified; and (4) was ultimately replaced by a person sufficiently younger with equal or inferior qualifications.
Turner, 901 F.2d at 342; Maxfield, 766 F.2d at 791-92; E.E.O.C., 829 F. Supp. at 1449. "Establishment of the prima facie case gives rise to a [rebuttable] presumption that the employer unlawfully discriminated against the applicant." Goodman, 86 N.J. at 31 (citing International Brotherhood of Teamsters v. United States, 431 U.S. at 358).
If the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant-employer to articulate a legitimate, nondiscriminatory reason for the employee's termination.
Turner, 901 F.2d at 342; E.E.O.C., 829 F. Supp. at 1449; Goodman, 86 N.J. at 31. Defendant's burden here is one of production, not persuasion, and therefore the defendant need only introduce evidence of "reasons for its actions which, if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause of the employment action." Hicks, 509 U.S. at 507.
If the defendant-employer meets its burden, neither the presumption nor the McDonnell Douglas framework are relevant, and "the burden shifts back to plaintiff to prove by a preponderance of the evidence that defendant's stated reasons were a pretext for discrimination, i.e., that the reasons were false and that discrimination (here, on the ground of age) was the real reason." E.E.O.C., 829 F. Supp. at 1449; Goodman, 86 N.J. at 32. Thus, in sum, it is important to note that although the McDonnell Douglas analysis initially shifts the burden of production to the defendant, "the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Hicks, 509 U.S. at 507.
In this case, Mr. Barone clearly can establish the first two elements of his prima facie case of age discrimination: that he is a member of a protected class (older than 40) and that Gardner Asphalt discharged him. However, Mr. Barone cannot prove the other two elements of his prima facie case: that he was performing his job at Gardner Asphalt satisfactorily and that he was replaced by someone younger with equal or inferior qualifications. There is substantial evidence in the record regarding Mr. Barone's substandard performance at Gardner Asphalt. In addition, after Mr. Barone's termination, Mr. Bell, who was already Vice President of National Sales at Gardner Asphalt, assumed responsibility for sales in the northeast, i.e., Mr. Barone's job. Ultimately, the northeast region was merged with portions of the Midwest to form a new region. Eventually, the regional manager, who had been residing in Pittsburgh, took over this redefined area, which required new and different duties. Although Gardner Asphalt admits that this regional manager was 43 years old, and therefore younger than Mr. Barone, Gardner Asphalt believed that the new manager's skills and motivation were superior to those of Mr. Barone.
However, assuming arguendo that Mr. Barone established a prima facie case of age discrimination, Gardner Asphalt has still introduced substantial evidence which, if believed by the trier of fact, would support a finding that Mr. Barone lost his job because of his substandard performance, including the decrease in business in the northeast region. Moreover, once Gardner Asphalt articulates a legitimate and nondiscriminatory reason for the termination, the burden shifts back to Mr. Barone not only to rebut Gardner Asphalt's evidence but also to adduce evidence which shows that discrimination was more likely than not to have been a motivating or determinative cause of his termination. See E.E.O.C., 829 F. Supp. at 1449; Goodman, 86 N.J. at 32. Mr. Barone has not met this burden. Indeed, during his deposition Mr. Barone admitted that, subsequent to his termination, he never told anyone that he believed he was discriminated against on account of his age and that no one had made any comments about his age during his employment at Gardner Asphalt.
Mr. Barone's claim of age discrimination against defendant Gardner Asphalt is therefore dismissed.
Mr. Barone alleges that he is due a bonus in the amount of $ 7,200 based on his performance at Gardner Asphalt during their 1993-94 fiscal year. Gardner Asphalt claims that the reason it did not give Mr. Barone a bonus is that the bonus program was a discretionary program paid to employees who significantly contribute to an increase in the sales of Gardner Asphalt. However, Mr. Barone's evidence indicates that he may be entitled to a bonus from Gardner Asphalt for his sales efforts in the 1993-94 fiscal year. First, the Gardner Asphalt "Intercompany Memos" from David Robertson, dated January 19, 1994 and February 1, 1994 clearly indicate that the bonus program at Gardner Asphalt was not discretionary and indeed was nothing more than a straight mathematical calculation based on an individual's quota sales. See Barone Certif., Ex. 3 and Latoff Certif., Ex. P. In addition, the Certification from Richard Thurston, who was Mr. Barone's contact at Channel, provides evidence that Mr. Barone contributed to increased sales at Gardner Asphalt during their 1993-94 fiscal year. Specifically, Mr. Thurston states that "because of Mr. Barone's efforts for Gardner Asphalt, which resulted in a annual sales increase of approximately 35% for 1993, Gardner Asphalt was recognized by Channel Home Centers as 'vendor of the year.'"
In sum, the Court will not dismiss Mr. Barone's bonus claim against Gardner Asphalt because on this issue Mr. Barone has presented evidence that creates a genuine issue as to a material fact.
Mr. Barone also claims that he was entitled to compensation for fifteen days of vacation that he never took in 1994. However, Gardner Asphalt provides evidence which demonstrates that Mr. Barone was entitled to thirteen days of vacation during 1994 and that Mr. Barone took all thirteen days. In addition, Mr. Barone admitted at his deposition that he took thirteen days of vacation in 1994.
In sum, Mr. Barone fails to set forth any facts that create a genuine issue as to a material fact in support of his vacation claim.
Accordingly, for the reasons stated above, defendant Gardner Asphalt's motion for summary judgment is hereby granted as to Counts One, Two and Four of the Complaint and denied as to Count Three of the Complaint.
JOSEPH A. GREENAWAY, JR., U.S.D.J.
Dated: February 20, 1997
JOSEPH A. GREENAWAY, JR., District Judge,
This matter having been opened to the Court by Hannoch Weisman, attorneys for Gardner Asphalt Corporation ("Gardner Asphalt"), and the Court having considered the submissions of the parties, and good cause appearing,
IT IS on this 20th day of February, 1997,
ORDERED that defendant Gardner Asphalt's motion for summary judgment, pursuant to Fed. R. Civ. P. 56(c), for an Order of dismissal of the Complaint is hereby granted as to Counts One, Two and Four of the Complaint and denied as to Count Three of the Complaint;
IT IS FURTHER ORDERED that all parties shall appear before this Court for a pre-trial conference on March 4, 1997, at 10:30 a.m., in Courtroom 4C, United States District Court, Martin Luther King, Jr., Courthouse, Newark, New Jersey.
JOSEPH A. GREENAWAY, JR., U.S.D.J.