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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 and accurate. To that end, the application provides:

By my signature and initials placed below, I promise that I have personally completed this application. I declare under penalty of perjury that the information provided in this employment application (and the accompanying resume, if applicable) is true and complete, and I understand that any false information or significant omissions may disqualify me from further consideration for employment and may be justification for my dismissal from employment if discovered at a later date. I understand that any job offer is conditional, based upon the satisfactory review of my qualifications including any and all background or drug screening which may be required.

Finally, the application states, "Thank you for completing this application. You will be informed of a final decision once the entire interview process is completed, which includes a complete background check. Thank you for your interest in Red Bull North America, Inc."

In addition to the employment application, plaintiff completed a disclosure and authorization to obtain information form which provided that a background investigation would be conducted and that any offer of employment was conditioned upon satisfactory results from that investigation. Specifically, the disclosure and authorization provides:

In connection with my suitability for employment with Red Bull North America, Inc. . . . or if employed, I understand that prior to or at any time after my employment commences a consumer report may be requested for employment purposes from InfoLink Screening Services, Inc. . . . from public records including; but not limited to, Social Security number, motor vehicle operation history/driving records, workers' compensation information and criminal history to the extent permitted by law from various local, state, and federal agencies. . . . .

I understand that any consumer report or investigative consumer report requested will be used strictly for employment purposes as defined under §603(h) and authorized under §604(a)(3)(B) of the Fair Credit Reporting Act, as a report to be used for the purpose of evaluation for employment . . . . In addition, I understand that any offer of employment . . . will be conditional upon the receipt of satisfactory information as required by the subscriber, and that to be considered for employment . . . I must authorize procurement of such report(s).

According to plaintiff, Albert informed her that the employment application was "for administrative purposes only." Also according to plaintiff, days after accepting defendant's offer and resigning her position with her former employer, Albert advised plaintiff of a temporary company-wide hiring freeze, and plaintiff would have the position as soon as the freeze ended. Subsequently, Albert informed plaintiff that something had come up relative to her background investigation and rescinded the offer of employment. Plaintiff later learned that defendant's decision was based upon numerous infractions reported on her motor vehicle record, including a suspension for non-payment of automobile insurance, three speeding infractions and two summonses for unsafe operation of a motor vehicle.

In Count One of her complaint, plaintiff contended that defendant's agents extended an offer of employment to her on at least two occasions that constituted a clear and definite promise with an expectation that plaintiff would rely on it. Moreover, she relied on that offer to her detriment. Therefore, defendant is estopped from withholding the offer. In Count Two of her complaint, plaintiff alleged that defendant's agents tortiously interfered with her employment. Finally, in Count Three, plaintiff alleged that defendant's conduct constituted fraud. She sought compensatory and punitive damages.

In its motion to dismiss, Red Bull urged that plaintiff's allegations in her complaint were completely at variance with earlier sworn statements in her employment application and this variance warranted dismissal of her complaint. In addition, Red Bull emphasized that any offer extended to plaintiff was a conditional offer of an at-will position that could be revoked at any time for any reason.

The motion judge, citing the inconsistencies between plaintiff's employment application and her certification submitted in opposition to defendant's motion for summary judgment, invoked the "sham affidavit doctrine" and granted defendant's motion. In ruling on the motion, the judge determined that:

The plaintiff signed a document, not only signed a document, but attested to the accuracy of the document. She signed it under penalty of perjury, and our courts are leaning toward enforcement of those documents. One cannot . . . casually cast aside representations, oral or written, in the course of litigation simply because it is convenient to do so.

The [sham affidavit] doctrine may apply where a party to a judicial proceeding asserts a position that contradicts the position briefly taken in administrative proceedings. It's not exactly the same situation, but we have a party who in writing, under oath, waives any prior oral understandings, somewhat similar to, I suppose, a real estate transaction where when you go to settlement all prior discussions are merged into the deed, and you can't come back later and say, well, wait a minute, the buyer or the seller promised to do this or that, whatever. If it's not on the settlement sheet, it's done, and that's similar here. Now, that she brings this lawsuit, now she takes the position inconsistent with the position she took under oath. In reliance upon that inconsistent position, she relies upon her own testimony.

I don't see how I can ignore the written document in favor of the plaintiff's statements. I recognize her motion for summary judgment. I must assume as correct the position of the facts set forth by the party opposing the motion. However, that general rule of law does not require me to ignore that which is indisputable and it's indisputable that she signed this document.

And to quote from [Maietta v. United Parcel Service, 749 F. Supp. 1344 (D.N.J. 1990), aff'd 932 F.2d 960 (3d Cir. 1991)], a party may not create an issue of material fact to prevent summary judgment by submitting an affidavit of a witness . . . which contradicts that witness's prior sworn testimony.

And again, while it's not a deposition, it is a prior statement under oath and she cannot be permitted to contradict her own statement at this point. So, [defendant's] motion for summary judgment will be granted.

Our discussion of this appeal must commence with the standard applicable to motions to dismiss. Defendant's motion accompanied its answer. Obviously, no discovery had been conducted. A motion to dismiss for failure to state a claim requires a searching inquiry of the complaint and a generous or liberal consideration of the allegations of the complaint to determine if a cause of action can be gleaned from the pleading.

Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989).

Once matters outside the pleadings are presented to the court in support of or in opposition to the motion to dismiss, the motion must be treated as one for summary judgment. R. 4:6-2. That is, the motion judge must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Here, the application of the "sham affidavit doctrine" foreclosed the indulgent view required of a motion to dismiss and prevented the motion judge from viewing the evidential materials in the light most favorable to plaintiff as required in the summary judgment context.

The "sham affidavit doctrine" allows a judge to disregard "an offsetting affidavit that is submitted in opposition to a motion for summary judgment when the affidavit contradicts the affiant's prior deposition testimony." Shelcusky v. Garjulio, 172 N.J. 185, 194 (2002). While the Court considered the application of the doctrine in the summary judgment context, the motion was filed following the close of discovery. Id. at 192.

The plaintiff and others had been deposed and expert reports had been generated and exchanged. Id. at 188-91. When deposed, the plaintiff, a forklift operator, testified that he did not know what kind of product he loaded but became aware that there were explosive materials at the facility. Id. at 189. In opposition to the defendant's motion, the plaintiff submitted a certification that reiterated his deposition testimony. Id. at 192. Following entry of summary judgment in the defendant's favor, the plaintiff filed two motions for reconsideration. Id. at 192-93. In support of his second motion for reconsideration, the plaintiff filed a certification in which he refuted his earlier testimony and certification. Id. at 193.

While the Court approved the use of the sham affidavit doctrine in the summary judgment context, the Court cautioned that it cannot be used "mechanistically." Id. at 201. Rather, the doctrine requires a court to evaluate whether a true issue of material fact remains in the case notwithstanding an affiant's earlier deposition testimony. . . . Critical to its appropriate use are its limitations. Courts should not reject alleged sham affidavits where the contradiction is reasonably explained, where an affidavit does not contradict patently and sharply the earlier deposition testimony, or where confusion or lack of clarity existed at the time of the deposition questioning and the affidavit reasonably clarifies the affiant's earlier statement.

[Id. at 201-02 (internal citations omitted).]

It is noteworthy that in Shelcusky, the Court held that the sham affidavit doctrine was improperly applied to preclude consideration of the plaintiff's second motion for reconsideration because his "deposition testimony and initial certification were not inconsistent with his subsequent certification" and the "plaintiff had a plausible explanation for any perceived inconsistency." Id. at 202.

Here, the application of the sham affidavit doctrine was misplaced for several reasons. First, no discovery had been undertaken. Second, the certification submitted in support of plaintiff's motion for summary judgment and in opposition to defendant's motion to dismiss was entirely consistent with the facts set forth in her complaint and provided context for the authorizations and representations contained in the later executed application for employment. Third, application of the sham affidavit doctrine focused the attention of the motion judge on the later aspects of the employment recruitment process and completely foreclosed any consideration of the facts preceding the submission of the application for employment. This constricted view of the facts of the case created the totally unsupported fiction that plaintiff submitted an unsolicited application for employment to defendant and resigned her current employment with no expectation of future employment.

Nevertheless, we affirm the order dismissing the complaint. See Isko v. Planning Bd. of Livingston, 51 N.J. 162, 175 (1968) (we affirm judgments, not reasons). It is undisputed that plaintiff received an offer of employment for at-will employment. Defendant could have rescinded the offer any time before commencement of employment and could have terminated her employment at any time once she commenced her job duties. Wade v. Kessler Inst., 172 N.J. 327, 338 (2002); Witkowski v. Thomas J. Lipton, Inc., 136 N.J. 385, 398 (1994). She does not contest the ability of her prospective employer to conduct a background check, including an examination of her motor vehicle record. She does not contest the findings reported to defendant. Although defendant did not require a reason to rescind the offer of employment, plaintiff's driving record contained infractions that would cause any reasonable employer to question the wisdom of entrusting a company vehicle to plaintiff.

In this context, we are satisfied that plaintiff did not submit a claim upon which relief could be granted because, even viewing the facts in the light most favorable to her, she has not established that she incurred a detriment of a definite and substantial nature in reliance on the promise of employment. She was not induced to relocate, surrender her home in another state, obtain housing in this state, and contract with movers as in Peck v. Imedia, Inc., 293 N.J. Super. 151, 158, 167-68 (App. Div.), certif. denied, 147 N.J. 262 (1996). Plaintiff has not shown sufficient facts to overcome the general rule that "'the mere detriment furnished by an employee in leaving one position and taking another does not constitute sufficient consideration'" to create a "'contract of permanent employment or one terminable only for cause.'" Id. at 165 (quoting Tracy A. Bateman, Annotation, Employer's State-Law Liability for Withdrawing, or Substantially Altering, Job Offer for Indefinite Period Before Employee Actually Commences Employment, 1 A.L.R. 5th 401, 408 (1992)).

Plaintiff has also not created a genuine issue of material fact that she had a protectable right giving rise to a reasonable expectation of economic advantage as required to establish a claim for tortious interference with prospective economic advantage. Printing Mart, supra, 116 N.J. at 751-52. She also has failed to establish that defendant communicated to plaintiff a material misrepresentation of a presently existing fact made with knowledge of its falsity and with the intention that plaintiff would rely on it to her detriment. See Jewish Ctr. of Sussex County v. Whale, 86 N.J. 619, 624 (1981); Weil v. Express Container Corp., 360 N.J. Super. 599, 612-13 (App. Div. 2003). In addition, her pleading fails to set forth with particularity and specificity the elements of legal or equitable fraud. Levinson v. D'Alfonso & Stein, 320 N.J. Super. 312, 315 (App. Div. 1999).



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