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O'Donnell v. Hennessey

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 8, 2010

MARCIE O'DONNELL, PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
v.
MARY HENNESSEY, A/K/A SISTER MARY JOHN, INDIVIDUALLY AND AS MOTHER SUPERIOR OF THE HANDMAIDS OF MARY IMMACULATE, INC.; HANDMAIDS OF MARY IMMACULATE, INC.; AND THE BLUE ARMY, USA, INC., N/K/A THE BLUE ARMY OF OUR LADY OF FATIMA, USA, INC., DEFENDANTS-RESPONDENTS/CROSS-APPELLANTS, AND 101 FOUNDATION, INC., DEFENDANT.
ANNETTE STANKAVISH, PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
v.
MARY HENNESSEY, A/K/A SISTER MARY JOHN, INDIVIDUALLY AND AS MOTHER SUPERIOR OF THE HANDMAIDS OF MARY IMMACULATE, INC.; HANDMAIDS OF MARY IMMACULATE, INC.; AND THE BLUE ARMY, USA, INC., N/K/A THE BLUE ARMY OF OUR LADY OF FATIMA, USA, INC., DEFENDANTS-RESPONDENTS/ CROSS-APPELLANTS, AND 101 FOUNDATION, INC., DEFENDANT.

On appeal from Superior Court of New Jersey, Law Division, Warren County, Nos. L-133-05 and L-134-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 27, 2009

Before Judges Wefing, Messano and LeWinn.

Annette Stankavish and Marcie O'Donnell filed separate complaints alleging intentional interference with contractual relations; fraud; violations of the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -12 ("CEPA"); wrongful termination; conspiracy; and breach of the covenant of good faith and fair dealing. Plaintiff Stankavish also included a count for defamation. The trial court consolidated these complaints. Plaintiffs appeal from a trial court order granting summary judgment to defendants. After reviewing the record in light of the contentions advanced on appeal, we affirm.

I.

Defendant The Blue Army, USA, Inc. ("Blue Army") is a nonprofit Roman Catholic religious corporation which was founded to spread the message of prayer and repentance delivered by Mary in an apparition in Fatima, Portugal in 1917. It is governed by a national board of trustees, but it operates under the general supervision of the Bishop of the Diocese of Metuchen. Monsignor Leonard Pivonka was president of the Blue Army's board of trustees from 2002 to 2004. Its executive director was Reverend Ladis J. Cizik, who reported to the board of trustees through Monsignor Pivonka. As part of its ministry, the Blue Army owns and operates the Blue Shrine in Washington, New Jersey. As another part of its ministry, the Blue Army organizes and runs pilgrimages for the faithful to various religious shrines in Europe, such as the one at Fatima.

Defendant Handmaids of Mary Immaculate, Inc. is a private organization of lay women and defendant Mary Hennessey is the mother superior of defendant Handmaids.*fn1 The Handmaids would assist at the shrine in Washington, greet those who would come to visit, explain the history of Fatima and provide music for the religious services. They assisted with the publication of a magazine for the Blue Army and, for a period of time, they also ran the gift shop at the Blue Shrine. The constitution of the Handmaids was approved by the Bishop of the Diocese of Metuchen. The Handmaids lived on the grounds of the shrine in a building referred to as "Holy House."

Both plaintiffs were employed by the Blue Army. Plaintiff Stankavish began as a part-time bookkeeper in 1988 and eventually became the business manager for the Blue Army. Plaintiff O'Donnell started working for the Blue Army in 1999; she managed the Blue Army tours. Neither plaintiff had an employment contract. They last worked for the Blue Army in March 2003, and they filed suit in August 2005.

The financial situation of the Blue Army deteriorated, particularly after the events of September 11, 2001. The number of people interested in taking a pilgrimage to Europe declined dramatically and, as a consequence, so did the revenue of the Blue Army. Plaintiff O'Donnell estimated that there had been approximately a 40% drop in tour business and revenue. Father Cizik and Bishop Pivonka, together with Hennessey, decided that the staff and operations of the Blue Army should be reorganized to save money in light of this decline.

Plaintiff Stankavish testified in her deposition that a general meeting of all employees of the Blue Army was held, at which the employees were told that reorganization was required. After that general meeting, there was a meeting for each individual employee, at which the particular changes for that employee were outlined. Stankavish said she was called into a meeting with Cizik, Pivonka and Hennessey and given a copy of a new employee manual and a job description. She was told she had to sign the manual within twenty-four hours and that if she did not, she would not be permitted to return to work. Although there was no change in her job description, she was also told that her hours were being reduced so that she would work on a part-time basis. Whereas previously she had been a salaried employee earning $60,000 per year, she was to be a part-time employee working 25 hours a week for $18 per hour. She was also informed, however, that her health insurance coverage would remain in place despite the change to part-time status. She left the meeting, did not sign the manual and did not return to work. She never compared the prior employee manual with the one that had been given to her at this meeting to determine the nature of the changes in the manual, if any.

When Stankavish first began her employment for the Blue Army, she worked on the grounds of the shrine in Washington. At some point, the business office was relocated to an annex in Stewartville, and she moved there. Part of her responsibility was to account for the donations received from visitors to the shrine. She said in her deposition that once she moved to the annex she encountered increasing difficulty in getting the donations that had been left in the care of the Handmaids. She said sometimes she would receive checks that had been dated months earlier. She agreed in her deposition that she was not accusing the Handmaidens of pocketing any of the money donated to the Blue Army.

In or around October 2002, the task of counting the donations was switched back to the main grounds of the shrine, and Stankavish was no longer involved in it. It was handled by other employees of the Blue Army and the Handmaids. Stankavish said other changes occurred at around the same time. The combination on the safe was changed, and she was removed as a signatory on Blue Army checks. She said she was also instructed to no longer send the Blue Army's financial statements to the archdiocesan office. She said Father Cizik's demeanor towards her changed and that he became, in her words, "nasty." She also said that Father Cizik told her to take all of her vacation shortly after the turn of the year and that he told her to instruct him in all her job functions before she left on vacation. Her response to the latter was to refuse. She described this exchange in the following manner in her deposition:

Yeah. Before I left for vacation he told me -- he came in my office and he told me that I was to teach him everything. I said, I wasn't hired -- I said I am not a teacher. He said yes, you were a teacher. I said I wasn't hired here to be a teacher; I was hired to be a bookkeeper. I am not teaching you anything.

He got up, and again I thought he was going to smack me. This came first. He walked out and he said to me, you had better sit there and reflect on what you are saying. I started laughing at him. He walked out and slammed the door.

Asked why she did not want to teach Father Civik as he had asked, she responded, "Why would I want to show somebody everything I know when he treated me so mean? How stupid do you think I am?"

Stankavish also said in her deposition that she had been told that defendant Hennessey and the Handmaids had developed a plan to get rid of the long-time employees of the Blue Army and that she was included in the list of employees to be removed. She was told this was part of an effort by the Handmaids to have more control over the operations of the Blue Army. She made no effort to determine the truth of these statements but assumed the Handmaids were attempting to get control of the funds generated by the Blue Army. She also said that other Blue Army employees told her that members of the Handmaids, and specifically defendant Hennessey, were telling other employees that Stankavish had been stealing money from the Handmaids. She said she believed that all of the changes that had occurred were the result of the Handmaids wanting more control and that the Handmaids had told Father Cizik to fire her. She said this was common knowledge among Blue Army employees.

Employees of the Blue Army had to fill out time sheets to allocate their time to the various projects on which they worked. Although the Handmaids were not employees of the Blue Army, they received a small stipend for the services they performed. They did not, however, have to fill in time sheets. Father Cizik would tell Stankavish how to allocate the time of the Handmaids. Stankavish objected to this practice, because she said it was not possible to know if costs were being allocated correctly.

Plaintiff O'Donnell said she started on a part-time basis with the Blue Army tours, working fifteen hours a week and being paid in the range of $11 or $12 an hour. After about two months, she was asked to work forty hours a week. By the time her employment ended, she was earning $17 per hour. Two members of the Handmaids worked in the tour office, but as time went by O'Donnell became concerned that they were not working the hours they were supposed to and that their time sheets were not accurate. She said she complained about these inaccuracies and told the two women she would no longer sign their sheets. Eventually, she was told the Handmaids no longer had to fill in time sheets.

She also said in her deposition that the two Handmaids who were supposed to work on tour business would use a large portion of their time speaking to people around the country in order to get particular individuals selected to serve on the board of the Blue Army.

O'Donnell also described a change in work procedures around the fall of 2002. Prior to that date, she would appear before the board at its quarterly meetings to report on the tour business. That, however, changed; she no longer appeared before the board, and Father Cizik took over that reporting duty. She repeated the belief of Stankavish that all of these changes were the work of the Handmaids. As with Stankavish, she had no direct evidence to support that belief.

O'Donnell in her deposition also described being given a new employee manual by Monsignor Pivonka, Father Cizik and defendant Hennessey and being told she had to sign the manual. She returned it the following day, signed. She had, however, appended words to the effect, "pending review by my attorney." This, however, was not satisfactory, and she was not permitted to resume her work.

Plaintiffs filed their amended complaints in August 2005. Shortly thereafter, the trial court dismissed their claims for breach of the implied covenant of good faith and fair dealing and for violation of CEPA. In August 2007, two years after plaintiffs filed their complaints, the trial court entered a case management order directing that all discovery had to be completed by October 31, 2007, and setting a trial date of January 28, 2008. In November 2007, defendant Blue Army moved for summary judgment, and the remaining defendants moved for summary judgment shortly thereafter. Each motion was accompanied by a statement of material facts, certifications, supporting documents and portions of the deposition testimony of the plaintiffs.

Plaintiffs did not file opposition to these motions. Rather, on January 24, 2008, a week before defendants' motions were scheduled to be heard, and well beyond the discovery end date, plaintiffs filed a motion to compel the production of certain documents plaintiffs had requested during the deposition of defendant Hennessey. Her attorney had not produced the documents and had not filed a motion seeking a ruling with respect to her claim of privilege but had simply forwarded the documents to the trial court for its in camera review. After hearing argument, the trial court granted summary judgment to all defendants.

Plaintiff thereafter filed a motion for reconsideration, again seeking production of those documents. In connection with that motion, plaintiffs' counsel did file certifications from two individuals previously associated with the Blue Army that the Handmaids sought greater control over the Blue Army and, as part of that, also sought the dismissal of certain Blue Army employees, including plaintiffs. The trial court denied this motion, and this appeal followed.

II.

We turn first to plaintiffs' claims against defendant Blue Army. Plaintiffs argue that the trial court erred in dismissing their claims of wrongful discharge under Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58 (1980). The plaintiff in Pierce was a medical doctor who worked for Ortho Pharmaceutical as the Director of Medical Research/Therapeutics. Id. at 62.

She objected to her employer's decision to pursue the development of a particular drug, believing that its use of saccharin posed an unnecessary risk. Id. at 62-63. She expressed her views to her supervisor and was removed from that project. Id. at 63. After meeting with him to discuss what other projects were available for her to work on, she concluded she was being demoted, although her salary was unaffected.

Ibid. She considered her position untenable and submitted her resignation; she then sued for wrongful termination, contending that the defendant had demanded she follow a course of conduct that violated her Hippocratic oath as a physician. Id. at 64.

The Supreme Court upheld the trial court's grant of summary judgment to the defendant employer. Id. at 65. The Court held that employers are free to terminate an at-will employment relationship with or without cause so long as that discharge is not contrary to "a clear mandate of public policy." Id. at 72 (citing c.f. Vasquez v. Glassboro Servs., Inc., 83 N.J. 86 (1980)). It noted, however, that "an employee should not have the right to prevent his or her employer from pursuing its business because the employee perceives that a particular business decision violates the employee's personal morals...." Ibid.

The Court identified the following sources to determine whether a particular discharge may be deemed to be contrary to a clear mandate of public policy: "legislation; administrative rules, regulations or decisions; and judicial decisions." Ibid. It also recognized that in certain limited situations, a profession's code of conduct could bear on the question. Ibid. After examining the undisputed facts, the Court concluded that under the indulgent standard of Rule 4:46-2, the most that could be said was that "the controversy at Ortho involved a difference in medical opinions." Id. at 75.

An employee does not have a right to continued employment when he or she refuses to conduct research simply because it would contravene his or her personal morals. An employee at will who refuses to work for an employer in answer to a call of conscience should recognize that other employees and their employer might heed a different call.... In sum, an employer may discharge an employee who refuses to work unless the refusal is based on a clear mandate of public policy. [Ibid.]

In MacDougall v. Weichert, the Supreme Court ruled that a real estate salesman who was discharged because his vote as a member of the municipal council displeased an important client of the firm could sue for wrongful discharge because New Jersey statutes stated "a clear mandate of public policy that serves to protect an employee from the threat or infliction of unlawful harm that is intended to influence his or her official action as an elected legislative representative." 144 N.J. 380, 403 (1996). Examples of later cases applying the Pierce doctrine are Tartaglia v. UBS PaineWebber Inc., 197 N.J. 81 (2008) (attorney could have cause of action for wrongful discharge if employer directed an action that would violate the Rules of Professional Conduct); Hennessey v. Coastal Eagle Point Oil Co., 129 N.J. 81 (1992) (employee discharged for failing a random urine screen did not have a cause of action for wrongful discharge); Swan v. Boardwalk Regency Corp., 407 N.J. Super. 108 (App. Div. 2009) (discharge of employee who worked in surveillance for utilizing surveillance camera to zoom in on female anatomy did not violate a clear mandate of public policy).

An employer remains free to terminate an at-will employee who engages in grousing or complaining about matters falling short of a "clear mandate of public policy" or who otherwise interferes with the ordinary operation of the workplace by expressions of personal views on matters of no real substance. Baseless complaints or expressions of purely personal views about the meaning of public policies will not meet the test for a "clear mandate" regardless of the manner or mode in which they are voiced. [Tartaglia, supra, 197 N.J. at 109.]

The burden is on the employee to identify a specific expression of public policy that has been violated by his or her discharge. MacDougall, supra, 144 N.J. at 391. "[T]he sources and parameters of public policy are not susceptible to hard and fast rules...," Mehlman v. Mobil Oil Corp., 153 N.J. 163, 187 (1998), and the burden is on the judiciary to "define the cause of action in case-by-case determinations." Pierce, supra, 84 N.J. at 72.

Identifying a mandate of public policy is a question of law. Warthen v. Toms River Cmty. Mem'l Hosp., 199 N.J. Super. 18, 24 (App. Div.), certif. denied, 101 N.J. 255 (1985). Where an employee fails to identify a specific expression of public policy that would protect him or her from at-will termination, summary judgment is appropriate. Giudice v. Drew Chem. Corp., 210 N.J. Super. 32, 36 (App. Div.), certif. denied, 104 N.J. 465 (1986); Warthen, supra, 199 N.J. Super. at 23-24.

Determining public policy is a matter of weighing competing interests. More is needed than a standard of conduct that affects only one person. Pierce, supra, 84 N.J. at 75. Rather, a clear mandate of public policy is one that "on balance is beneficial to the public." Hennessey, supra, 129 N.J. at 100. "A vague, controversial, unsettled, and otherwise problematic public policy does not constitute a clear mandate[,] [and] [i]ts alleged violation will not sustain a wrongful discharge cause of action." MacDouglall, supra, 144 N.J. at 392. An employee who is discharged for reasons relating to an employer's policies that affect only a private interest does not have a cause of action under Pierce. Ibid.

A review of the record presented to us on appeal convinces us that, at most, plaintiffs disagreed with the manner in which the Blue Army decided to restructure and conduct its affairs. With respect to the demand that plaintiffs promptly sign an acknowledgement of the new employee manual, they were not treated any differently than any other employee of the Blue Army. While such a procedure may strike some as unseemly, it was not unlawful. Nothing within plaintiffs' allegations would support a conclusion that the Blue Army's decisions in some manner contravened a clear mandate of public policy. We are satisfied that the trial court correctly granted summary judgment to the Blue Army.

III.

We turn now to the summary judgment granted to defendants Hennessey and the Handmaids. Plaintiffs' principal argument on appeal is that the motion was premature because plaintiffs had not received all the discovery material they had requested. Analysis of this contention requires a detailed recitation of the procedural missteps by both parties. This issue does not affect defendant Blue Army because plaintiff never sought any discovery of any type from that defendant during the entire time the case was pending.

During the course of Hennessey's deposition, which was taken on June 5, 2007, she referred to certain documents, including the constitution of the Handmaids and a report prepared by an investigative team appointed by the Bishop of the Metuchen Diocese after he learned of complaints about the Handmaids. Plaintiffs' counsel asked for copies of these documents, and Hennessey responded that the documents were confidential; the documents were never produced to plaintiffs' counsel. The attorney for the Handmaids never asserted a formal claim of privilege under Rule 4:10-2(e) and never filed a motion for a protective order under Rule 4:10-3. Plaintiffs' counsel never filed a motion prior to the discovery end date to compel production of these documents.

Rather, at approximately the time the Handmaids moved for summary judgment, their attorney forwarded to the trial court copies of the documents. He explained in his covering letter that his clients had received the investigative report from the bishop with the admonition that its contents were confidential. He asserted his position that the documents were irrelevant to plaintiffs' claims and asked the trial court to determine whether they should be produced to plaintiffs.

Plaintiffs' response was not to object to this informal methodology, but to file a motion seeking to compel production of these documents. After hearing oral argument, the trial court granted summary judgment. It noted in the statement of reasons appended to its order that plaintiffs had not produced any admissible evidence to refute the assertion by defendants that their jobs were restructured and hours reduced because of the reduced financial condition of the Blue Army. Further, it denied plaintiffs' motion to compel production of these documents. It noted that the discovery end date had been extended on three occasions, that two of those extensions were granted after Hennessey's deposition in June 2007, that plaintiffs had engaged in no discovery other than Hennessey's deposition, sought no relief from the trial court on this question from the time of Hennessey's deposition in June 2007 until its motion, filed in January 2008, and had never sought to subpoena the investigative report from the diocese. Concluding that plaintiffs had failed to show exceptional circumstances, it denied the motion.

We are satisfied that the trial court correctly denied this motion. With respect to the constitution and by-laws of the Handmaids, we are unable to perceive what light those documents could have shed on this case or how their production was "reasonably calculated to lead to the discovery of admissible evidence." R. 4:10-2(a). Whether Hennessey and other members of the Handmaids were conducting themselves in compliance with that constitution and by-laws had no bearing on plaintiffs' employment status. Plaintiffs were not charged with the responsibility of seeing that the Handmaids complied with their governing documents; nor would plaintiffs have had standing to compel the Handmaids to do so.

We are also satisfied that the trial court correctly denied the motion with respect to the investigative report prepared at the behest of the Metuchen bishop. Whether plaintiffs' motion is analyzed under Rule 4:24-1(c), requiring a showing of exceptional circumstances, or under Rule 4:24-2, requiring a showing of good cause, plaintiffs' application was deficient. Plaintiffs merely asserted, in conclusory terms, why they considered the document critical; they offered no explanation as to why they failed to seek relief earlier. Determination of whether there has been the requisite showing of either good cause or exceptional circumstances rests ultimately in the sound discretion of the trial court; having reviewed this record, we find no basis to conclude that the trial court abused its discretion when it denied the application.

Plaintiffs' next argument is that the trial court was, in any event, incorrect when it granted summary judgment with respect to their claims against Hennessey and the Handmaids for tortious interference with economic advantage. The state of the record, combined with our affirmance of summary judgment in favor of the Blue Army, convinces us that the trial court was correct on this claim as well.

It would, for instance, appear anomalous to conclude that plaintiffs have no claim against the Blue Army for loss of employment but yet can proceed against a third party for the same claim. Additionally, as we have noted, plaintiffs put forth no admissible evidence that the reduction in their hours was the result of anything other than the reduced financial circumstances of the Blue Army. Their complaints of a "hit-list" notwithstanding, there is no showing that these plaintiffs were treated in any way differently than any other employee.

Indeed, if there were a concerted plan to drive away Stankavish, it would seem more likely that her position would have been reorganized in such a way as to result in her losing health insurance. That, however, is not what occurred; she would have retained her health insurance coverage if she had remained in the employ of the Blue Army.

Plaintiffs' final argument is that the trial court erred when it denied their motion for reconsideration. Defendants have cross-appealed, contending that the trial court should not have considered the motion at all because it was not timely filed. R. 4:49-2. Because we are satisfied the motion was properly denied, we do not address the issue of timeliness.

A motion for reconsideration is not a vehicle for a litigant to submit material that was available at the time of the original motion, and yet not presented to the court at that time. Capital Fin. Co. of Del. Valley, Inc. v. Asterbadi, 398 N.J. Super. 299, 310 (App. Div.), certif. denied, 195 N.J. 521 (2008). It is intended, rather, to permit a litigant to demonstrate to the court that it overlooked certain matters or controlling decisions. Ibid.

Plaintiffs' motion for reconsideration did not comply with this principle. Rather, it included certifications and documents that were clearly available to plaintiffs at the time of the summary judgment motions but which were not submitted to the court. The trial court was fully justified in not considering that material in connection with a reconsideration motion.

The orders under review on plaintiffs' appeal are affirmed; the cross-appeal is dismissed.


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