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Sercia v. Red Bull North America

March 16, 2009


On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-4591-07.

Per curiam.


Argued: December 17, 2008

Before Judges Cuff and Baxter.

Plaintiff Sarah Sercia appeals from an order dismissing in its entirety her complaint against her prospective employer. In doing so, the motion judge relied on the "sham affidavit doctrine." Although we disapprove of the use of that doctrine in this case, we affirm.

The undisputed facts and the facts viewed in the most favorable light to plaintiff are as follows:

In early April 2007, Paul Albert, an employee of defendant Red Bull North America, Inc. (Red Bull) contacted plaintiff regarding a job opening as a Red Bull on-premises manager for the Philadelphia market. At the time, plaintiff was employed as a beverage marketing professional. On April 25, 2007, plaintiff met with Albert to the discuss the position. Plaintiff asserts that during their meeting, Albert suggested that plaintiff would make an excellent Red Bull employee. At the conclusion of the meeting, Albert requested that plaintiff meet again with him and a senior Red Bull employee to further discuss the position.

On April 27, 2007, plaintiff met with Albert and Rory Ahearn, a senior Red Bull employee. According to plaintiff, at some point during the meeting, she was asked if she would like to accept the position. In response, plaintiff conditionally accepted the offer but indicated that she wished to give appropriate notice to her current employer. She specifically requested that neither Albert nor Ahearn contact her employer until she did so. However, approximately thirty minutes after the meeting, plaintiff received a telephone call from Albert who informed her that he had spoken to Darren Matik, a principal with plaintiff's employer, and advised him of Red Bull's employment offer to plaintiff. Plaintiff inquired why Albert ignored her request not to notify her employer, to which he responded that he wanted plaintiff to start working for Red Bull as soon as possible.

During the next workday, plaintiff's employer asked her about Albert's phone call and presented her with an ultimatum to decide by the following day whether she was going to accept defendant's offer. Thereafter, plaintiff contacted Albert, who reaffirmed the offer and certain specifics, including a base salary of $48,000, a 20% commission bonus, use of a company vehicle, laptop computer and cell phone, and an unspecified amount of money to set up a home office. That same day, April 30, 2007, plaintiff accepted defendant's offer and resigned her position with her current employer based upon the terms relayed by Albert. Thereafter, on May 2, 2007, plaintiff completed an application for employment and executed a disclosure and authorization to obtain information.

The employment application completed by plaintiff explicitly authorizes defendant to obtain pertinent information from various third parties to properly evaluate plaintiff's credentials. Specifically, the application initialed and signed by plaintiff provides, in relevant part:

I voluntarily and knowingly authorize any present or past employer or supervisor, educational institution, administrator, law enforcement agency, state, local, or federal agency, credit bureau, collection agency, private business, military branch or the national personnel records center, personal reference, and/or any other persons to give records or information they may have concerning my criminal history, motor vehicle history, educational history, license history, employment history (including character, earnings, and reasons for termination), or any other information requested by the company deemed pertinent to my employment.

In addition, the application states:

[N]othing contained in this application, or conveyed during any interview which may be granted, or during my employment if hired, is intended to create an employment contract between me and the company. In addition, I understand and agree that if you employ me, in consideration of my employment, my employment will be at-will, for no definite or determinable period of time, and may, regardless of the date of payment of my wages or salary, be terminated at any time, for any reason or for no reason at all, with or without prior notice, at the option of the company or me. I understand and agree that no promises or representations contrary to the foregoing are binding on the company unless made in writing and signed by me and an authorized officer of the company. I promise that I have not relied, and will not rely, on any oral or written statements to the contrary. I understand and agree that this is the entire agreement between me and the company regarding the term of my employment and replaces any other oral or written agreement or understanding.

Further, the application informs the applicant that by signing and initialing the application, she is attesting under penalty of perjury that the information and representations contained therein are true ...

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