The opinion of the court was delivered by: Bissell, District Judge.
Plaintiff, Susan Mardini, filed the Complaint in this matter in
the Superior Court of New Jersey on May 27, 1999 against
defendant Viking Freight, Inc. ("Viking") and Thomas Borg.*fn1
Viking removed the matter to this Court on July 23, 1999, based
upon diversity jurisdiction. The motion before this Court is a
motion to dismiss six of the seven counts alleged in the
Complaint. Plaintiff has alleged a violation of the New Jersey
Law Against Discrimination, N.J.S.A. 10:5-1 et seq. ("LAD").
Defendant's motion to dismiss does not include the plaintiff's
The six claims at issue here include a breach of an employment
contract, a breach of the implied covenant of good faith and fair
dealing contained within the employment contract, a common law
wrongful discharge claim, intentional infliction of emotional
distress, fraud, and negligent supervision of employees. This
Court has jurisdiction pursuant to 28 U.S.C. § 1332.
Ms. Mardini was hired by Viking on November 12, 1992 to handle
the accounts of Viking's recent acquisitions, regional trucking
carriers Coles Express, Inc. ("Coles") and Spartan Express, Inc.
("Spartan"). (Compl. at 2). Plaintiff was discharged on February
10, 1999. (Id. at 13).
Plaintiff claims that Viking instituted and enacted policies
and practices of unlawful and systematic exclusion of and
discrimination of the plaintiff. (Id. at 4). Plaintiff claims
that Viking: (a) hired plaintiff at a lower rank and pay than
male employees; (b) failed to give plaintiff comparable raises;
(c) failed to promote plaintiff at the same rate as comparably
qualified males; (d) paid plaintiff lower wages than comparable
male employees; (e) failed to equalize conditions of employment
for plaintiff, with respect to the quality and quantity of
accounts; (f) provided plaintiff with either poor performing
accounts or accounts which had terminated their relationship with
Viking, while allowing Ms. Mardini's male counterparts access to
the prime accounts; (g) took accounts from Ms. Mardini to
accommodate male employees, but did not do the same for the
plaintiff; (h) adopted unreasonable standards of employment and
advancement designed to discriminate in favor of men; and (I)
unlawfully terminated plaintiff in favor of retaining men who
were comparably trained and less qualified with less tenure than
the plaintiff. (Id. at 4, 5).
In the first count of plaintiff's Complaint, she alleges a
cause of action for discrimination. She states that male
co-workers were given accounts located in plaintiff's territory
which were more convenient to her than to them. (Id. at 6).
Plaintiff was given the "left over" accounts and the less
desirable accounts to work with, and the preferred accounts were
given to male employees. However, plaintiff was successful in her
work even though she had to work with the "left over" accounts.
(Id.) She was also subject to disparate treatment when Jude
Reardon, a male co-worker, was given fifty per cent of
plaintiff's accounts. (Id.) Reardon was considered a poor
producer and was slated for termination. (Id. at 7). Instead of
terminating him, management hired him as a Corporate Accounts
Director and he was given half of plaintiff's accounts. (Id.)
None of the male Corporate Account Directors suffered any
diminution in their account base as plaintiff did. (Id.)
In 1996, two employees left Viking. (Id. at 8). Their
accounts were given to Reardon and another male employee and none
were given to plaintiff. (Id.) Reardon still had one-half of
plaintiff's accounts. (Id.) Plaintiff complained about this
disparity but nothing was done to remedy it. (Id.)
Plaintiff requested that her supervisor, Mr. Borg, review the
accounts and redistribute them to bring about parity. (Id. at
9). Instead, another employee was let go and his accounts were
given to Reardon as well. (Id.) As a result of these actions,
Reardon, who had less seniority than plaintiff, was generating
sales three times those of plaintiff. (Id.) Plaintiff again
requested a redistribution but Borg did not react. (Id. at 10).
In February 1998, plaintiff formalized her request for
equalization of the accounts in a memo to Borg. (Id.) In June
1998, this topic was discussed at a territory review meeting in
Chicago with Borg and Mike Marcum. Plaintiff wrote a memo to
Marcum and Marcum indicated that Borg would review the situation.
Borg never responded. (Id.)
Plaintiff's second cause of action alleges a breach of contract
claim. In support of this claim plaintiff claims that defendants
represented to plaintiff, "in various writings, including, but
not limited to, personnel policies and procedure manuals,
retirement and profit-sharing plan and employee guidelines, that
her employment relationship with Viking, would be based upon good
faith, that Plaintiff would be treated fairly and equitably,
would be judged on the basis of individual merit and ability, and
would receive just compensation for the services rendered to
Viking." (Id. at 15). Plaintiff claims that she performed all
of her duties in accordance with her employment contract, yet
Viking wrongfully discharged her. (Id. at 15-16).
The employment handbook on which plaintiff relies stated that:
The contents of this employee handbook are solely
intended to provide guidance and understanding of the
benefit plans and policies of Viking Freight System,
Inc. These benefits and policies in no way constitute
an employee contract. Details and specific
information are available in the governing documents.
Any questions can be referred to your Supervisor or
the Personnel Department.
(Defendant's Exh. B at 70).
Plaintiff's third cause of action alleges a breach of an
implied covenant of good faith and fair dealing. (Compl. at 17).
This action is based on the employment agreement, which plaintiff
claims created a covenant of good faith and fair dealing. The
defendant breached this, plaintiff claims, by (a)
discriminatorily refusing to judge plaintiff on the basis of
merit; (b) refusing to give her equal opportunity for
advancement; (c) failing and refusing to reconsider plaintiff's
merit and ability for promotion or transfer; (d) failing to give
any consideration to plaintiff's long-term record of employment
service; (e) terminating plaintiff in favor of retaining less
qualified and less experienced male workers. (Id. at 17-18).
The fourth cause of action is a wrongful discharge claim,
stating that for the reasons already set forth, plaintiff is
entitled to damages for wrongful discharge. (Id. at 19-20).
Plaintiff's fifth cause of action is for intentional infliction
of emotional distress. The sixth cause of action alleges fraud,
deceit and misrepresentation. Plaintiff alleges that the
defendants made material misrepresentations of the fact that
plaintiff was to be judged upon the basis of merit and ability.
(Id. at 22). Finally, the seventh cause of action alleges
negligent supervision of employees. Plaintiff claims that the
defendants owed a duty to plaintiff to insure that her
supervisors treated plaintiff in a fair and equitable manner ...