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Martinez v. Excellent Education for Everyone

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 20, 2008

DIANTHE MARTINEZ, PLAINTIFF-APPELLANT,
v.
EXCELLENT EDUCATION FOR EVERYONE, PETER DENTON, DAN GABY, JOINTLY, SEVERALLY, INDIVIDUALLY AND IN THE ALTERNATIVE, DEFENDANTS-RESPONDENTS.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-3626-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 24, 2008

Before Judges Parrillo, Lihotz and Messano.

Plaintiff Dianthe Martinez appeals from the summary judgment dismissal of her employment discrimination complaint against defendants Excellent Education for Everyone (E3), Peter Denton and Dan Gaby, and from the subsequent order denying her motion for reconsideration. We affirm.

We view the facts in a light most favorable to plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Plaintiff, an African-American female, began working at E3, a start-up non-profit entity*fn1 involved in public education reform, in late 2000. The goal of E3's founder, Peter Denton, was to "build an organization capable of changing the law in New Jersey" by "build[ing] a grassroots understanding of school choice and grassroots support for it." To that end, E3's Executive Director, Dan Gaby, assumed full personnel responsibility with hiring and firing authority and determined employee compensation. Gaby also "had sole authority over the budgeting process and was responsible for determining the feasibility of opening and closing E3 offices."

Plaintiff was recruited by E3's outside consultant, Donald Bernard, for her "high energy," "relationship with the democratic party" and community-based organizations, access to minority communities, and a track record working in public education. Originally offered the position of Director of Field Operations, plaintiff asked to assume the additional responsibility of Director of Administration since it was not yet filled. Although highly unusual for one person to hold these dual positions, Denton and Gaby reluctantly agreed on a trial basis, to "see how it worked out." Plaintiff received a letter confirming this offer at an annual salary of $60,000 on December 19, 2000,*fn2 and she accepted.

When plaintiff began working at E3, it was still in its start-up phase and the only full-time consultants/employees were plaintiff and Gaby, housed in a Trenton office. Plaintiff's primary responsibility initially was to "help them start up the organization and get more grounded in the community[,]" and to establish a Newark headquarters.

The Newark headquarters opened around June 2001, and after moving there, plaintiff's primary duties focused on administration of the office and control over the direction of field operations. At the time, she received a raise to $66,000. Throughout that year, plaintiff's office administration duties remained consistent and included: overseeing day-to-day finances; preparing purchase orders; writing checks for daily expenses; bank reconciliation; reviewing employee benefits such as health plans; and collecting information from the consultants for reimbursement for their expenses and submitting same for payment. Meanwhile, Denton's office oversaw the overall budget, as well as approval for larger expenditures.

By the end of 2001, E3 had grown dramatically. Due to E3's growth and status as a non-profit, in December 2001, E3 hired an outside accountant, Moore Stephens, to perform an audit. This happened to coincide with an Executive Committee meeting in late 2001, convened to strategize, draft a budget, and identify problem areas in the organization. As part of their findings, the outside auditors recommended a reorganization of staff financial responsibilities to better comply with accounting standards. Specifically, in a January 15, 2002 memo memorializing the initial audit findings, Kathy Clayton of Moore Stephens noted that there was "no segregation of duties within the accounting functions"; recommended the hiring of a second employee to handle duties of cash disbursements and receipts; and advised that "[a] manager would provide oversight by approving bills to be paid and reconciling the bank account." In early January 2002, a reorganization meeting was held to address the audit's initial findings, further examine reorganizing the company's structure, and explore the need to hire more people. As a result, an Organizational Committee was formed, comprised of Denton, Gaby, plaintiff, and four others.

Based on the audit, several positions were proposed for bifurcation in the 2002 budget, including plaintiff's; specifically, it was recommended that her dual positions as Director of Field Operations and of Administration be separated, budgeted at a salary of $72,000 per position. When plaintiff first learned of the proposed reorganization, she advised Gaby in a January 2, 2002 memo that any attempt to separate her positions would "force [her] resignation," believing the division tantamount to a demotion. Two days later, on January 4, 2002, plaintiff sent a memo to Denton accusing him of "unfair employment practices" and suggesting racism in the decision in that Gaby and Henry Levari, another member of the Organizational Committee, were white males and the only ones scheduled for raises in the proposed 2002 budget. She requested a raise to $100,000. That same day, she sent another memo to Denton, retracting her previous statement about Levari's raise, attributing it to the stress over splitting her job, which provoked "guarded outrage."

Denton responded in a January 7, 2002 memo reminding plaintiff that hers was the only budgeted pay increase, which she later acknowledged, and further explaining the need for bifurcating her job:

When you were hired you asked to be responsible for both field operations and administration. Dan and I had significant concerns about combining these two jobs, as they are substantially different in responsibilities and activities. I am not familiar with any organization that has its administrative responsibilities coupled with a line management position (other than the organization's chief executive). You asked for both responsibilities and we felt that since E3 was a new organization we would try that approach and see how it worked out. E3 has grown dramatically over the last 12 months. Dan and I would be remiss if we did not review existing reporting relationships, staff responsibilities and insure they are appropriate given past and expected future growth of the organization. We will of course continue that evaluation.

That same day, Gaby requested of plaintiff, by memo, certain financial records in response to the auditor's concerns and asked her to stop writing checks. Plaintiff refused to comply, responding by memo of same date that she would turn over certain documentation for the 2001 audit, but would retain the unused checks and continue to use them to do Newark office business. During the ensuing discussions, Gaby repeatedly told plaintiff he did not want her to resign; that no one in the organization considered the reorganization of her duties a demotion; and that such a decision was motivated by accounting principles alone. Indeed, plaintiff herself acknowledged Gaby "was trying hard to resolve this." In fact, Gaby asked Bernard to act as an intermediary and try to reach a solution.

Attempts to negotiate a compromise failed, however. During negotiations, Gaby suggested a middle ground: that plaintiff remain as Director of Administration and Field Operations, but hand over financial responsibilities to E3's outside accountant, who would act as controller. Plaintiff refused to compromise and "made it clear that she would not accept any changes in her job duties." On March 12, 2002, she wrote to Gaby:

As I stated in my previous memos I am unwilling to accept any changes in my job duties and titles that essentially represent a demotion.

I respectfully and lovingly submit that I have to stand by my principles and therefore will not accept any changes. Furthermore, I understand your position and I say to you that you have to do what you have to and we will see what happens.

On March 25, 2002, Moore Stevens issued its final audit findings to the E3 Board of Directors. Among the "reportable conditions" believed to be a "material weakness" were deficiencies in the operation of internal controls:

There is absolutely no segregation of duties in the financial process. Under no circumstances should the approval, expenditure, disbursement, receipt and reporting of transactions be handled by the same individual. A proper internal control system provides for checks and balances through the segregation of these functions to several individuals and for timely reporting to management and the governing body.

Shortly thereafter, on March 27, 2002, Gaby once again requested plaintiff turn over all blank checks and bank statements for the checking account, directing her not to write checks on the account with the exception of checks for expenses for a particular business trip. Plaintiff responded that same day by memo, claiming that Gaby's memo and conversation the day before "were the first time [he] indicated these instructions to [her]" and again labeled the directives "unfair practices." Gaby responded by memo of April 1, 2002, in which he reiterated an explanation of the audit's findings and the need to have more oversight of the company's checking account, noting that generally accepted accounting practices prohibit the same person from making such financial decisions.

Plaintiff brought a claim of discrimination before the Board of Directors. At the April 10, 2002 meeting, which plaintiff attended, the Board unanimously voted, with one abstention, to hire Moore Stevens as consultant to E3 to handle E3's financial matters. Shortly thereafter, Gaby asked plaintiff once more to accept the reorganization. When she refused, Gaby told her that she was terminated, which was confirmed in a letter dated April 17, 2002.

On April 16, 2004, plaintiff filed a nine-count complaint against defendants, alleging gender discrimination in violation of the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, breach of contract, and wrongful termination, among other claims, arising out of her employment with E3. After defendants answered, discovery endured for over two years, with multiple extensions and rescheduled trial dates.*fn3 After August 2006, no additional requests were made to extend discovery until November 2006 when counsel for both parties executed a consent order purporting to extend discovery to February 24, 2007. However, plaintiff failed to file the order until after she received defendant's December 28, 2006 summary judgment motion, returnable January 19, 2007. In the interim, on January 2, 2007, the trial court entered its own consent order setting February 16, 2007 as the discovery end date, but vacated that order two days later, carrying the request to extend discovery to the summary judgment motion return date of January 19, 2007. Claiming some confusion, plaintiff did not submit opposition to the summary judgment motion and, by agreement of the parties, the motion was carried to February 16, 2007, to allow plaintiff an opportunity to oppose the application.

No written opposition was ever submitted by plaintiff, whose counsel simply stated at the February 16, 2007 oral argument that he had "prepared something for the court." Counsel's excuse this time was that a transcript of Bernard's deposition, finally taken on February 2, 2007, after being adjourned twice since August 7, 2006, was not yet ready. Although then given the opportunity to explain what the Bernard deposition transcript might contribute to plaintiff's prima facie case of discrimination, counsel failed to identify any specific evidence. Following argument, the judge, considering the motion unopposed, granted summary judgment dismissing plaintiff's complaint and denied the request for yet another discovery extension for want of good cause. Plaintiff's subsequent motion for reconsideration was also denied.*fn4

On appeal, plaintiff raises the following issues:

I. THE PLAINTIFF WAS DENIED DUE PROCESS BECAUSE SHE WAS NOT PERMITTED TO PRESENT EVIDENCE RELEVANT TO OPPOSING SUMMARY JUDGMENT.

II. PLAINTIFF'S CLAIMS CONCERN[] MATTERS OF GREAT PUBLIC INTEREST THAT SHOULD NOT BE DEFEATED BY MATTERS UNRELATED TO SUCH CONCERNS.

III. THE JUDGE ABUSED HIS DISCRETION BY USING THE BEHAVIOR OF THE PLAINTIFF[']S ATTORNEY AS GROUNDS TO DENY THE PLAINTIFF [THE OPPORTUNITY] TO OPPOSE SUMMARY JUDGMENT.

IV. THE JUDGE ABUSED HIS DISCRETION BY FAILING TO EVALUATE WHETHER OR NOT THE PLAINTIFF PROVIDED REASONABLE GROUNDS FOR RECONSIDERATION.

A. THE PLAINTIFF SHOWED THAT THERE WAS GOOD CAUSE FOR THE DELAY IN FILING HER OPPOSITION TO THE DEFENDA[N]T'S MOTION WHICH THE TRIAL JUDGE IGNORED.

B. THE JUDGE DID NOT ADHERE TO THE GUIDELINES OUTLINED BY CASE LAW AND NEW JERSEY COURT RULES FOR GRANTING A MOTION FOR SUMMARY JUDGMENT.

V. THE JUDGE ABUSED HIS DISCRETION BY REFUSING TO ALLOW A PLAINTIFF ALLEGING DISCRIMINATION IN VIOLATION OF NJ LAD TO SHOW THAT SHE MET HER PRIMA FACIE BURDEN.

VI. THE PLAINTIFF PROVIDED PROOF OF A BREACH OF CONTRACT THAT THE JUDGE IGNORED.

A. THE DE[]FENDANTS BREACHED THE COVENANT OF GOOD FAITH AND FAIR DEALING IMPLIED IN EVERY CONTRACT.

B. PLAINTIFF PROVIDED SUFFICIENT EVIDENCE TO SHOW THAT SHE WAS INDUCED TO LEAVE HER FORMER JOB BY REPRESENTATION OF THE DEFENDANTS.

(A)

Plaintiff's principal argument is that she was denied due process by being precluded from presenting evidence in opposition to the summary judgment motion and by being penalized for her counsel's neglectful conduct. The core of her complaint is that the transcript of the Bernard deposition was critical to establishing her prima facie case of discrimination, to rebutting as pretextual the non-discriminatory reason offered by defendants, and thus, to defeating their summary judgment motion. We disagree. Plaintiff was afforded ample notice and an opportunity to respond and be heard.

The right to due process requires adequate notice to parties and an opportunity to be heard in a meaningful manner. Rivera v. Bd. of Review, 127 N.J. 578, 583 (1992). "To make such process adequate the state must provide 'notice and an opportunity for hearing appropriate to the nature of the case.' . . . The touchstone of adequate process is not abstract principle but the needs of the particular situation." Ibid. (quoting Mullane v. Central Hanover B. & T. Co., 339 U.S. 306, 313, 70 S.Ct. 652, 656, 94 L.Ed. 865, 873 (1950)).

It cannot be disputed that plaintiff had adequate notice of defendants' summary judgment motion originally returnable on January 19, 2007. Equally clear is that plaintiff chose not to submit any opposition by the return date. Nor did she submit opposition after the judge adjourned the matter for two motion cycles to February 16, 2007, specifically "to afford plaintiff time to prepare and submit opposition to same."

We find plaintiff's excuse for this lapse inadequate, as did the trial judge, who engaged in the following colloquy with plaintiff's counsel at the February 16, 2007 hearing on the summary judgment motion:

THE COURT: -- let me ask you something, it's real simple, simple question. Today, February 16th, 2007, do you have a responding brief or anything?

MR. SMITH: Well, Judge, I mean I brought something for the Court, but it does not include Mr. Bernard's dep.

THE COURT: Well why not, you've had a week to incorporate it?

. . . I mean we're not talking about days of typewriters, we're talking about, you know, everybody does their work on computers, I mean how much does it take to add in a paragraph, two paragraphs, three paragraphs, whatever to that? That's my point.

Indeed, the flimsiness of this excuse for twice not filing opposition becomes even more evident when one considers the circumstances surrounding the timing of Bernard's deposition. As noted, discovery in this matter ensued for over two years by virtue of multiple extensions, until the court-imposed deadline of August 16, 2006. Throughout this time, Bernard remained a central figure, having recruited plaintiff for the job in the first instance, subsequently working for E3 as a consultant, and finally acting as the liaison between plaintiff and defendants in the ongoing dispute over the division of her responsibilities. Yet, despite his seemingly critical role and the passage of so much time, Bernard was belatedly scheduled for deposition on August 7, 2006, only one week before expiration of the final court-approved discovery extension. Even though the witness' deposition did not actually occur until February 7, 2007, it was still over one week before the February 16, 2007 return date on defendant's summary judgment motion. Thus, although Bernard's deposition occurred well beyond the officially-sanctioned discovery end-date, the judge afforded plaintiff's counsel the opportunity at the February 16, 2007 hearing to present both written and oral argument, including information from Bernard's deposition, in opposition to defendants' summary judgment application. In other words, counsel could have presented any relevant evidence culled from the Bernard deposition, which he admittedly did not do. In fact, even when specifically asked what the Bernard transcript might add, counsel was unable to identify any specific evidence that advanced plaintiff's discrimination and other related claims, despite his earlier assertion that such deposition was "critical" to plaintiff's prima facie case.

As part of its ruling on February 16, 2007, the court denied plaintiff's motion for yet another discovery extension. Given the numerous extensions already granted, collectively affording ample time within which to have conducted all discovery and have completed depositions, we find no abuse of discretion in the trial judge's ruling. See Janssen v. Fairleigh Dickinson Univ., 198 N.J. Super. 190, 193-94 (App. Div. 1985). Moreover, the ruling had no practical -- much less prejudicial -- effect on plaintiff. By the return date of the summary judgment motion, plaintiff had already conducted the deposition of Bernard and the information elicited therefrom was available to her. Under the circumstances, plaintiff was afforded sufficient notice and opportunity to be heard in opposition to defendants' summary judgment motion; therefore, she suffered no deprivation of due process.

(B)

Although the trial judge considered defendants' summary judgment motion essentially unopposed,*fn5 his decision dismissing plaintiff's complaint was based on the lack of evidence -- including Bernard's deposition -- giving rise to a genuine issue of material fact from which a jury may reasonably find discrimination.*fn6 Thus, we are satisfied the grant of summary judgment in favor of defendants was proper.

Employment discrimination claims are difficult to establish because they require proof of unlawful intent. Zive v. Stanley Roberts, Inc., 182 N.J. 436, 446 (2005); see also Peper v. Princeton Univ. Bd. of Trustees, 77 N.J. 55, 80 (1978) ("Acts of unlawful employment discrimination are more difficult to prove than are any other proscribed acts of discrimination."). In recognizing this difficulty, the United States Supreme Court articulated a burden-shifting methodology in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed. 2d 668 (1973), later adopted in New Jersey, that allows a plaintiff to show a case through circumstantial evidence. Zive, supra, 182 N.J. at 447. This methodology requires a plaintiff to show a prima facie case of discrimination creating an inference of discrimination, at which point the burden shifts to the defendant to prove a legitimate, non-discriminatory reason for the action, after which the burden shifts back to the plaintiff to prove by a preponderance of evidence that the employer's articulated reason was a pretext for discrimination and not the true reason for the employer's decision. Id. at 449.

In McDonnell Douglas, the Supreme Court considered employment discrimination in a hiring context, and accordingly New Jersey courts adjusted "elements of the prima facie case to account for differences in a discharge situation." Zive, supra, 182 N.J. at 450. In a discharge case, a plaintiff's prima facie case must show: (1) the employee was in a protected group; (2) the employee performed his job at a level that met his employer's legitimate expectations; (3) the employee was nevertheless fired; and (4) the employer sought someone to perform the same work after he left. Ibid.

"All that is necessary [in an employment discrimination case involving a firing, at the prima facie stage] is that a plaintiff produce evidence showing that she was actually performing the job prior to the termination. . . . That is not a heavy burden nor was it meant to be." Id. at 454-55. While this is a relatively light burden, the existence of a strong policy against employment discrimination in New Jersey does not affect the normal rule that the burden of proof by a preponderance of the evidence is with the complaining party. Jackson v. Concord Co., 54 N.J. 113, 119 (1969); see also Jones v. Coll. of Med. & Dent. of N.J., Rutgers, 155 N.J. Super. 232, 238 (App. Div.), certif. denied, 77 N.J. 482 (1978).

If a plaintiff satisfies her initial burden, the employer must then show a legitimate, non-discriminatory reason for the termination. Id. at 455. That is, the plaintiff will: not qualify for a jury trial unless he or she can "point to some evidence, direct or circumstantial, from which a factfinder could reasonably either (1) disbelieve the employer's articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action." . . . If it is clear that that obligation cannot be met, defendants will prevail at summary judgment.

We note, incidentally, that although a plaintiff's acknowledgment of performance deficiencies does not factor into the second prong of the prima facie case, it will generally lighten the employer's burden on the second phase and render more difficult plaintiff's ability to prove pretext.

[Id. at 455-56 (quoting Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994).]

If the plaintiff proves the defendant's reasons are pretext, "causation and damages are all that remain." Id. at 458.

The LAD "does not prevent the termination or change of employment of any person who 'is unable to perform adequately the duties of employment, nor [does it] preclude discrimination among individuals on the basis of competence, performance, conduct, or any other reasonable standards.'" Id. at 446 (quoting N.J.S.A. 10:5-2.1). That is, the LAD "acknowledges the authority of employers to manage their own businesses." Ibid.

Here, even considering Bernard's deposition, we are satisfied that plaintiff has failed to make a prima facie case under the LAD, but even if she had, the articulated legitimate non-discriminatory reasons for the termination have not been rebutted with any evidence of pretext. In the first place, as to racial discrimination, plaintiff never raised race as a reason for her termination below, and cannot do so now. See Winterberg v. Lupo, 300 N.J. Super. 125, 134 (App. Div. 1997). In count seven of her complaint alleging discrimination, plaintiff did not refer to her race as a reason for termination, but rather, exclusively to her status as a woman and that a male filled her position thereafter. But even if properly raised in her complaint, plaintiff conceded in her deposition that she did not suffer any adverse employment actions on account of her race:

Q: Do you have any personal knowledge that their decision to split up your position into two was because you're African American?

A: Personal knowledge, no. . . . .

Q: Do you believe there was conduct -- Was there any conduct on behalf of your employers, which I would take to be Peter Denton or Dan Gaby, that you felt they had made that decision to split your position based on your being African American?

A: More so a woman I would probably say than African American. I felt like I was infringing upon the good old boys network.

Q: So you felt that -- did you see conduct in the office where men were treated more favorably than women?

A: Yes.

Q: And what was this type of conduct?

A: Well, as I pointed out in some of my memos, even as it related to how Henry Levari was allowed to do business separately from other individuals. He was the only other white male. His reporting process was different, et cetera, as I pointed out in my memos.

Plaintiff also stated in deposition that about half of the individuals working at E3 were African-American.

Bernard's testimony adds nothing other than personal belief to plaintiff's much-belated claim of racial discrimination. In this regard, Bernard testified that he believed Gaby's and Denton's conduct was discriminatory because plaintiff was terminated by two white men when the Board of Directors directed them to seek some kind of compromise to keep plaintiff involved in discussions regarding her position at E3. However, bare conclusions or opinions without factual support will not defeat summary judgment. Pressler, Current N.J. Court Rules, comment 2.2 on R. 4:46-2 (citing Brae Asset Fund, L.P. v. Newman, 327 N.J. Super. 129, 134 (App. Div. 1999) and Fargas v. Gorham, 276 N.J. Super. 135 (Law Div. 1994) ("[S]elf-serving assertions alone will not create a question of material fact sufficient to defeat a summary judgment motion.")).

Plaintiff's gender discrimination claim fares no better, and counsel even implied at oral argument on the motion that without Bernard's testimony, plaintiff did not establish a prima facie case. In our view, even considering Bernard's deposition, plaintiff has simply failed to meet the second and fourth prongs of the McDonnell-Douglas test.

As to the second prong, plaintiff, clearly a member of the protected class as a woman, failed to show that she performed her job at a level that met defendants' legitimate expectations.

It is undisputed that plaintiff resisted the recommendation of outside auditors, based on generally accepted accounting principles, to segregate the accounting function of her job, responding instead that any effort to bifurcate her position would "strip me of my oversight of these critical areas to E3's success and force my resignation." She admits to a "guarded outrage" that "affected [her] careful review of th[e] [salary] issue." Worse, yet, plaintiff defied corporate orders that she stop writing checks in response to the auditors' express concerns, insisting instead that she would retain unused checks and continue using them for the Newark office's business. Despite her inflexibility, defendants persisted, by plaintiff's own admission, in trying to reach an accommodation on the restructuring of her responsibilities. Plaintiff, however, rejected any such compromise, even when the Board of Directors ultimately determined to allocate the financial functions of plaintiff's job to its outside auditors. Of course, this left defendants no choice but to terminate plaintiff. Undeniably, this was a legitimate, non-discriminatory reason for discharge, which plaintiff has simply failed to rebut with any competent evidence. The record also admits of no genuine issue of material fact that plaintiff failed to perform her job to defendants' legitimate expectations.

Equally clear is plaintiff's failure to meet the fourth prong. E3 eventually bifurcated plaintiff's job, replacing her with another woman and a Caucasian male.

As with the claim of race discrimination, Bernard's testimony adds nothing to establish plaintiff's prima facie case. Bernard opined that plaintiff's termination showed a "pattern of the organization having dismissed [a total of three] black women that were in administrative positions," each of whom were "independent minded" and "outspoken." This is nothing more than subjective belief or opinion, similar to plaintiff's perception that she was "infringing upon the good old boys network," which simply does not qualify as competent evidence sufficient to defeat a summary judgment motion. See Brae Asset Fund, supra, 327 N.J. Super. at 134. In any event, Bernard admitted there were women, other than the three he referred to, who remained involved in the company either as consultants or Board members, a fact confirmed by plaintiff herself who stated in her deposition that at the time of her discharge, all of the employees in the office were women, and the Newark office overall had more women as consultants and upper-level executives.

In sum, plaintiff was afforded adequate opportunity to oppose defendants' summary judgment motion. We are satisfied the lack of opposition was due neither to counsel neglect nor any deprivation of due process, but rather to the utter lack of evidence establishing any genuine issue of material fact worthy of defeating the requested relief.

(C)

Plaintiff also contends it was error to have dismissed her breach of contract and related claims. Again, we disagree.

Plaintiff's breach of contract and wrongful termination claims are governed by well-settled law. An at-will employee can "be fired with or without cause" at the employer's discretion. Jackson v. Georgia-Pacific Corp., 296 N.J. Super. 1, 11 (App. Div. 1996), certif. denied, 149 N.J. 141 (1997). "In New Jersey, an employer may fire an employee for good reason, bad reason, or no reason at all under the employment-at-will doctrine." Witkowski v. Thomas J. Lipton, 136 N.J. 385, 397 (1994). However, an employer cannot fire an at-will employee for discriminatory reasons or if doing so is against a clearly-stated public policy mandate. Id. at 398.

"[B]oth employers and employees commonly and reasonably expect employment to be at-will, unless specifically stated in explicit, contractual terms." Bernard v. IMI Sys., 131 N.J. 91, 106 (1993). "Employees realize that the specification of salary merely determines the method of payment and not the time of employment. A salary or benefit package stated in annual terms does not, standing alone, entitle an employee to year-to-year employment." Ibid.

To be sure, under certain circumstances, a company employee manual will create certain employment protections even in the face of an otherwise at-will employment relationship. Woolley v. Hoffman-La Roche, Inc., 99 N.J. 284, 309 (1985). In Jackson, we further explained:

Under Woolley, if a discharged employee can demonstrate that a company manual was widely distributed and contained job security and disciplinary procedures that an employee reasonably could consider as establishing reciprocal rights and obligations, and the employee in reliance thereof continues employment, the company manual may be considered an implied contract of employment and the employee entitled to rely upon the protections contained therein.

[296 N.J. Super. at 11-12.]

Here, plaintiff points to no written agreement or employment manual from which an employment contract could be implied. Contrary to her blanket assertions, there is no proof of any material misrepresentation that induced her to accept employment with defendants. Rather, the undisputed proof is that plaintiff negotiated her job functions to which defendants reluctantly agreed on a trial basis. When corporate growth dictated modification of those functions to incorporate sound, generally accepted accounting principles recommended by outside auditors, plaintiff balked and refused to comply with legitimate employer demands. Although not required, her termination was for cause, and no discriminatory reasons appear in this record.

Plaintiff's other related claims were also properly dismissed on summary judgment. Her arguments regarding expense reimbursement and wrongful termination while on medical leave fail because, as to the former, plaintiff admitted those costs were reimbursed, and as to the latter, she was not on disability when terminated, but simply working from home with pay while recovering from her gallbladder surgery. Furthermore, her claims for breach of the implied covenant of good faith and fair dealing and of an implied contract, like her claim of race discrimination, were never raised below.

(D)

We deem plaintiff's remaining claims to be of insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.


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