On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-8585-00.
Before Judges Havey, Wells and Payne.
The opinion of the court was delivered by: Wells, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted - March 10, 2003
Defendant, Di Giorgio Corporation, appeals from an order denying its application for attorneys' fees under the Frivolous Claims Statute, N.J.S.A. 2A:15-59.1, and its analog in the Rules of Court, Rule 1:4-8. Di Giorgio's application for fees followed the dismissal of plaintiff Jeanne Savona's lawsuit for wrongful termination of employment on motion for summary judgment. *fn1 We reverse and remand for more specific findings and conclusions.
The facts are these. Jeanne Savona was hired by Di Giorgio in July 1998 as a routing clerk. The hiring paperwork, including the job application form and the Employee Handbook, bore unmistakable evidence in plain and simple English that Savona was an "at will" employee; that the Handbook was not a contract of employment; that employees were subject, without limitation, to disciplinary action up to and including termination; and that even single instances of certain conduct, such as fighting, horseplay or disorderly conduct, might result in termination. The Handbook also contained a provision relating to an orientation period. We cite it in full:
The first three (3) months of employment is the Orientation Period. During this time the employee is evaluated to determine his ability to adequately perform his job duties and for the employee to see how he fits within the Company. At the end of this time period the employee will generally receive a formal or informal performance appraisal. All employees, whether full-time or part- time, working during this period are entitled to limited benefits as set forth in this booklet and in the individual plan documents. Upon successful completion of this period, employees are entitled to the benefits as set forth in the particular policies of this Handbook unless the time periods for certain benefits specify otherwise.
Completion of the Orientation Period in no way entitles employees to employment of any fixed duration. All employees are "at-will" and can be terminated at any time, including during the orientation period, for any reason or no reason at all except as prohibited by law.
In October 1999, Savona was transferred to an office position. There she became friends with a co-employee, Kathy Alberti, and the two often joked together. However, on one occasion in January 2000, Alberti came into Savona's cubicle with a spray bottle of Windex to clean up some marker on the desk, but instead began spraying Savona's back and clothing. When Savona stood up from her chair and turned around, Alberti sprayed Windex in Savona's face and eye.
The next day, a meeting was held with supervisors, and both women were told in no uncertain terms that further incidents of like kind would result in their termination. A memorandum of the discussion was prepared and presented on January 18 for each of them to read and sign. Alberti signed it but Savona refused, disagreeing with the memo's characterization of her conduct. A heated argument broke out between the two women during the meeting. According to Savona, Alberti threatened her. As a result, Savona left the premises never to return. She was fired on January 19, 2000.
In May 2000, Savona's counsel wrote Di Giorgio a letter asserting that Di Giorgio had violated several provisions of the Handbook and that it permitted a hostile working environment. Counsel asked that the letter be turned over to Di Giorgio's attorney to "determine whether or not these issues can be resolved." Di Giorgio's attorney returned a letter quoting the bold lettered employment-at-will clause in the Handbook. Di Giorgio's counsel also cited two cases, Nicosia v. Wakefern Food Corp., 136 N.J. 401 (1994) and Woolley v. Hoffmann-La Roche, Inc., 99 N.J. 284, modified, 101 N.J. 10 (1985), for the proposition that an employer may avoid creating an implied contract by including a provision in a Handbook in a very prominent place stating that the employer continues to have absolute power to fire anyone with or without cause. Counsel further warned in the letter that Di Giorgio would "seek fees and costs associated with defending against any baseless claim."
Nonetheless, Savona filed suit in November 2000. The complaint alleged that Di Giorgio breached several of the provisions of the Handbook relating to promotion of safety, prohibiting horseplay and fighting, and the misuse of company equipment. She also alleged that Di Gregorio wrongfully terminated her. Additionally, the complaint set forth two causes of action against Alberti. Di Giorgio answered and discovery ensued.
On September 5, 2001, after the close of discovery and before any motions were filed, Di Giorgio's counsel sent a two and one-half page letter to Savona's attorney that cited the Frivolous Claims Statute and the analogous court rule, asserted the complaint was frivolous, and demanded that the complaint be withdrawn with prejudice. The letter cited case law and provisions of the Handbook and claimed that the lawsuit had no basis in law or fact. Suffice it to say, Savona did not dismiss the suit, and the parties proceeded into motion practice, including a motion by Di Giorgio for summary judgment heard on December 7, 2001. The judge, relying on Woolley and our decision in Jackson v. Georgia-Pacific Corp., 296 N. J. Super. 1 (App. Div.), certif. denied, 149 N.J. 141 (1996), granted the motion. In answer to Savona's contention that the Handbook's orientation provision created an implied contract or a reasonable expectation of employment, the judge cited the provision quoted above, supra, pp. 2-3, and stated:
This provision cannot be interpreted to lead an employee to reasonably believe that he or she would be anything other than an at will employee following ...