The opinion of the court was delivered by: Jerome B. Simandle United States District Judge
On November 20, 2001, two newspapers ran articles which stated that plaintiff Steven Wiegand was operating a "mail order neo-Nazi skinhead music company" and that he was a "personal friend and supporter" of Katja Lane, the purported wife of Aryan Nation leader David Lane. Plaintiff immediately brought the articles to the attention of his supervisor at the Texaco gas station where he had worked without incident since 1994, which was operated by defendants Motiva Enterprises and Starstaff, Inc. The defendants' resulting investigation uncovered that plaintiff was operating a website which plaintiff admits "sells underground music and records" that are "racist and/or offensive to some people," such as swastika flags, music advertised as "the most popular and funniest Nigger-hatin' songs ever written" and t-shirts with sayings like "Skinheads" and "Blue-Eyed Devil." Defendants then told plaintiff that his employment was terminated because his operation of the website violated the company's "core value" of "respect for all people."
Plaintiff filed the present lawsuit on May 28, 2002, raising claims solely under New Jersey law, asserting (1) that defendants wrongfully terminated him because they discharged him "in violation of a clear mandate of public policy," namely his exercise of his Constitutional right to free speech, (2) that defendants breached a provision in his employee handbook when they fired him, and (3) that defendants are liable for damages under a theory of promissory estoppel because he relied on a statement from his supervisor regarding future employment. Presently before the Court are the parties' cross-motions for summary judgment as to all claims. The Court finds that summary judgment must be granted in favor of defendants as to Counts I and II because (1) defendants did not violate a clear mandate of public policy when they terminated plaintiff's employment because of his commercial hate speech, and (2) defendants are not liable for breach of contract based on the employee handbook because it clearly provided that it did not create a contractual relationship between the parties. The Court further finds that summary judgment must be denied as to the promissory estoppel claim in Count III because questions of fact remain about whether plaintiff reasonably relied on a promise for continued employment.
A. Plaintiff's Employment with Defendants
On August 4, 1994, defendant Starstaff hired plaintiff Steven Wiegand to work as a clerk for defendant Motiva Enterprises in the convenience store at a Texaco gasoline station in Maple Shade, New Jersey. (Otero Aff., Ex. B, Wiegand Vol. I Dep. at 31:18-22.) Plaintiff received a Starstaff Employee Handbook and, on August 4, 1994, signed to indicate his agreement the terms of the handbook and with his status as an at-will employee. (Otero Aff., Ex. U.) *fn1 Plaintiff had a "good" employment record and was promoted to assistant store manager and then to store manager by October 1996. (Defs.' Facts ¶8; Pl.'s Facts ¶¶2-4; Otero Aff., Ex. G, Jantorno Dep. at 7:12-22; id., Ex. H, Sanders Dep. at 7:14-21; Pl.'s Ex. D, Winfrey Dep. at 16:12-13.) In July 2001, defendants issued a revised handbook, called the SORO *fn2 Employee Resource Guide, which again indicated the at-will status of plaintiff's employment. (Otero Aff., Ex. C.) *fn3 The July 2001 Guide also included certain guidelines for "the behavior expected of every employee." (Otero Aff., Ex. C at 2.) Employees were informed that defendants were "committed to the highest principle of ethics and conduct" so that all employees were required to "value and respect all people, demonstrate integrity, focus on customers, aspire to excellence and act for the greater whole," and "respect all applicable laws and avoid situations in which their personal interest conflicts with the interest of the Company." (Id. at 2, 29). *fn4 In a separate "Code of Conduct" referenced within the handbook, defendants provided that "disciplinary action, including discharge, may be taken . . . against employees who authorize or participate in actions which violate the law, the Code of Conduct or Company policy statements in such a manner as to impugn or seriously embarrass the Company or other employees publicly." (Otero Aff., Ex. D at 4.)
B. The Newspaper Articles
Sometime in 1999, plaintiff told his immediate supervisor, Motiva sales consultant Charles Sanders, that "he sold CDs and flags on the Internet" and that "some were not mainstream." (Otero Aff., Ex. H, Sanders Dep. at 10:5-18.) Sanders testified that he was "not really sure what" plaintiff meant by "not mainstream," but that he never looked into it because he was concerned about plaintiff's work at the station and "didn't care" about what plaintiff was doing in his free time. (Id. at 10:19-12:13:3.) *fn5
Sanders' interest in plaintiff's side business changed, though, on November 20, 2001, when plaintiff called Sanders "very upset saying that there was . . . an article printed about him . . . He wanted to know was he going to be fired for this or what would happen to him." (Otero Aff., Ex. H, Sanders Dep. at 15:16-22.) The article entitled "Racist Business Moves to Maple Shade" appeared in the Courier-Post and the Burlington County Times, and reported that a "white supremacist publishing and Internet operation based in northern Idaho" called "14 Word Press" had been sold to "Steve Wiegand in Maple Shade." (Otero Aff., Ex. F; Pl.'s Ex. F.) According to the articles, Katja Lane, purported to be the wife of Aryan Nation leader David Lane, had operated the 14 Word Press site to allow "David Lane to propagandize and recruit new racists while behind bars for life in the nation's most secure federal penitentiary," but could no longer handle the work involved. (Id.) The articles explained that she decided to turn over the business to plaintiff because "[h]e has been a personal friend and supporter for many years, as well as successfully running his own music distribution company." (Id.) Plaintiff's company, called Micetrap Distribution, was described by the article as a "mail order neo-Nazi skinhead music company" that is "among the top 10 distributors of hate music [and] which frequently attracts young recruits to the racist movement." (Id.) The articles did not make any reference to plaintiff's employment at Texaco. (Id.) *fn6
Sanders said that plaintiff was clearly concerned about the articles and asked him, "Am I going to get fired or is there anything I can do?" (Otero Aff., Ex. H, Sanders Dep. at 15:24-16:2.) Sanders testified that he told plaintiff that he did not know what would happen, and that he needed to talk about it with Joseph Jantorno, sales manager for New Jersey and Pennsylvania SOROs. (Id. at 16:3-5.)
Sanders called plaintiff "within the next day or two" and told him that it would not hurt, and "might help if he got [the business] out of his name." (Id. at 16:3-5; Otero Aff., Ex. B, Wiegand Vol I Dep. at 84:20-85:11.) Plaintiff asserts that Sanders actually promised him that he would not be fired if he (1) prevented any other articles from printing, (2) took the 14 Word Press business out of his name, and (3) complied with the company's internal investigation. (Pl.'s Ex. H, Wiegand Cert. ¶12.) Sanders testified that plaintiff at "first said he couldn't [take it out of his name] because he had sunk too much money into it," but that he called back a "day or two later . . . and said that he decided he was going to take it out of his name because his mother was being harassed . . . for what he was doing." (Id. at 16:5-10.) Plaintiff dissolved his registration of the 14 Word Press name and sent the remaining 14 Word Press inventory "to a guy in California named John Something," because he thought that Sanders meant that "as long as I got [14 Word Press] out of my name" and "no more articles were printed . . . everything would be fine [and] I would go back to work." (Otero Aff., Ex. B, Wiegand Vol. I Dep. at 85:16-86:3; 116:1-9.)
Meanwhile, Sanders had called sales manager Jantorno to tell him that there was an article in the newspaper "about Steve being involved with some type of, I will call it white supremist group." (Otero Aff., Ex. G, Jantorno Dep. at 4:15-5:7, 21:9-10; id., Ex. H, Sanders Dep. at 17:2-10.) Jantorno testified that his first question was whether "he's actually the principle" of the company and "deeply involved," rather than "a friend or [just] fooling around with it." (Id., Ex. G, Jantorno Dep. at 23:1-13.) Jantorno thought that "if he's a principle in the company we are going to have a problem . . . if not, he's going to have to explain himself and why he's in the company." (Id.) He thought that "[if] he was a principle in that type of company . . . and did distribute the type of material as described to me, it would fly in the face of what this company in this country is all about." (Id. at 24:13-18.)
Jantorno asked Sanders to talk to plaintiff again to verify whether "any part of the article that was mentioned [was] true." (Id. at 27:12-14.) Sanders called Jantorno a "day or two later" and confirmed that plaintiff was deeply involved in the business. (Otero Aff., Ex. G, Jantorno Dep. at 27:15-29:4.) Jantorno said that "we can't have that [hate material] associated with either our brand, Texaco or Shell" and instructed Sanders to "relieve Steve of duty while we do an investigation." (Id. at 29:8-25.) Sanders then told plaintiff that he would be "relieved of duty with pay pending an investigation." (Id. at 30:1-16; Otero Aff., Ex. H, Sanders Dep. at 18:1-8.)
Sanders and Jantorno then called Rick Riggs, in the security group associated with Motiva, and told him to "get to the bottom of this problem one way or the other." (Otero Aff., Ex. G, Jantorno Dep. at 33:18-25.) Riggs interviewed plaintiff and Sanders and accessed and viewed what plaintiff acknowledged was his website. (Id., Ex. J, Riggs Cert. ¶6; id., Ex. G, Jantorno Dep. at 35:6-20.) On December 4, 2001, Riggs submitted a confidential investigative report to defendants, in which he reported that plaintiff "was in fact selling white supremacist materials" including "some pretty offensive stuff." (Id., Ex. J, Riggs Cert. ¶6; id., Ex. G, Jantorno Dep. at 35:6-20.) *fn7
Plaintiff's website is called "Micetrap Distribution" and is touted as the place to get "quality Pro-White products with the best service available and at the lowest prices." (Otero Aff., Ex. K.) *fn8 The site promises satisfaction that is "188% guaranteed," *fn9 (id. at 9), sells swastika flags, Nazi paraphernalia, t-shirts with sayings like "Blue Eyed Devil," "Aggravated Assault," and "Mice Trap Records," and music albums, including "The White Race Will Prevail," "Keep the Hate Alive," and others that are "blatantly hate-filled and nasty as humanly possible," (Otero Aff., Exs. K-Q.) Lyrics are included for certain songs, including "Nigger Hatin' Me" and "The New Racism," which lambaste African Americans and refer to Adolf Hitler as "the closest we ever got to a fucking god." (Id., Exs. O, P.)
Plaintiff is pictured on the website modeling a "Mice Trap Records" t-shirt. (Id., Ex. Q at 5.) The photo was taken in front of a holocaust memorial in Cherry Hill, New Jersey, but plaintiff testified that he chose the background for "no real reason." (Otero Aff., Ex. B, Wiegand Vol. II Dep. at 82:3-83:14.) Plaintiff is also referred to in the site's web forum; one comment congratulates "Steve" on his acquisition of 14 Word Press, stating that "the fact that Katja chose you speaks volumes about your character and commitment." (Otero Aff., Ex. K at 1.)
The Micetrap Distribution site includes the following disclaimer:
Micetrap Distribution has quickly established itself as one of
the most reliable, fastest and lowest priced sources for
underground music, videos, books and flags in the world.
Although some of the items available on this site contain
violent or "racist" themes, Micetrap Distribution is merely
supplying a service and in no way condones illegal activities
or the "acting out" of the lyrics contained on these compact
discs. The album and song titles, artwork, pictures and
lyrics are the intellectual properties of the various bands
and do not necessarily represent the personal views of
All materials are completely legal in the United States and it
is entirely your choice as to whether or not you want to
purchase them. If you are offended or opposed to anything
contained on my website, close your browser immediately.
Simply put, these items are made available for those who seek
them. Rather than attacking ideologies and legal merchandise,
I suggest that my opponents refocus their attention onto real