Opinion
Civ. No. 97-3441 (DRD).
March 23, 1999.
Riley E. Horton, Esq., Imperial, Zazzaro Calabro, P.A., Montclair, New Jersey, Attorneys for Plaintiffs.
John M. Nolan, Esq., David B. Lichtenberg, Esq., Jackson, Lewis, Schnitzler Krupman, Morristown, New Jersey, Attorneys for Defendants.
OPINION
In this wrongful termination and age discrimination action under the New Jersey Law Against Discrimination and various common law tort and contract theories, defendants move for summary judgment on all ten counts of the Amended Complaint. Plaintiffs Richard Renner and Barbara Renner, who claims per quod, oppose the motion. For the reasons set forth below, the defendants' motion will be granted and the Amended Complaint will be dismissed in its entirety with prejudice.
BACKGROUND
Defendant Boston Coach-New Jersey Corp. ("Boston Coach") is an executive transportation company with its main facility in Elizabeth, New Jersey. From March 21, 1994 through September 20, 1996, Boston Coach employed Renner as the general manager of its New York/New Jersey operation. Renner reported directly to defendant Russell Cooke, who was then the Vice President of Boston Coach. Renner was 49 years old when he started working for Boston Coach.
Before joining Boston Coach Renner was employed by TNT Express-Worldwide ("TNT"). In or about 1992 Renner was offered the general manager position by Boston Coach, but he decided not to pursue the offer at that time. In late 1993 Renner was again approached by Boston Coach, and on or about January 15, 1994 he filled out and signed an employment application. On the signature page of the application, above Renner's signature, was the following language: "I understand that if I am hired, my employment is at-will and may be terminated by me or my employer at any time." Renner Dep. at 93:1-5; Nolan Cert., Ex. C.
Renner received an offer letter from Cooke dated February 18, 1994 (the "Offer Letter"). Nolan Cert., Ex. D. The Offer Letter began, "I am pleased to confirm the terms and condition[s] of our offer of employment extended to you." Id. The Offer Letter provided for an annualized salary of $100,000, plus a guaranteed bonus of $35,000 for 1994 and a guaranteed signing bonus of $5,000 if Renner was employed at the time those payments were made. Id. In addition, Renner was to receive certain other employee health, welfare and fringe benefits. Id.
Renner testified that during his negotiations with Cooke he was promised equity in the company but that promise was not put in writing in the Offer Letter:
[T]here's one thing [Cooke] did say he did not put in writing, that he said, "One thing you need to — you will be considered for, and I can absolutely promise you, is equity in the company," because when I saw there was no equity mentioned or there was nothing about equity mentioned in the letter, he said, "Rick, you have to trust me on this as a friend, man to man, on a handshake. . . . If you do a good job, as I know you will, I will make sure you get equity in the company after about a — give me — give me about a year," and I said, "Okay, Russ. I'll take you on your word," and that's really what closed the deal.
Renner Dep. at 74:5-18. Later in his deposition Renner again acknowledged that no promise of equity was mentioned in the Offer Letter or put in writing elsewhere:
Q. Now, there is nothing in this letter, correct, about promises of equity?
A. That's correct.
Q. Are there any written documents that corroborate your assertion that you were promised equity in the company?
A. No, sir.
Q. Did you write to Russ Cooke after you received this document and say, in words or substance, "Hey, Russ, there's nothing in here about this promise of equity in the company"?
A. No. He explained that prior to this — prior to the arrival of this document.
Q. What did he explain to you?
A. Well, he said that — as I mentioned earlier, that he could — I think the phrase was get me equity — along with he and Perry [Solomon, President of Boston Coach] — in the company if I did a good job in the first year of employment, but he couldn't raise the issue . . . until my performance was established.Id. at 121:17 — 122:11.
Renner also testified that Cooke had assured him that he would be joining a growing company:
Q. Any other false promises that you contend were made . . .?
A. Well, I can only go by the word of — again, or Russ Cooke, when I first started with — or before I started with Boston Coach, how it was like a family and that our future was secure, "We're going to grow the business," "We're going to do things like open up in Europe," "With your background with the Europeans, we'd probably want you to do that," things like along those lines. . . .Id. at 104:22 — 105:7. When asked if it was his contention that Cooke's statements were false when they were made, Renner replied, "I believe in my heart of hearts that Russ meant every word he said at that time." Id. at 105:12-13.
Renner signed the Offer Letter and returned it to Cooke, Nolan Cert., Ex. D, and began working for Boston Coach on March 21, 1994. Effective January 1, 1995 Renner received 5,000 incentive shares from Boston Coach. Nolan Cert., Ex. E. Renner considered these shares to be equity in the company but was disappointed with the amount of equity distributed and the plan itself. Renner Dep. at 166:19-167:24.
Under a policy in effect at Boston Coach during Renner's tenure as general manager, drivers were not to work more than 70 hours per week for safety reasons. Id. at 139:14 — 140:1; Nolan Cert., Ex. F. By way of an e-mail message sent to him and the general managers of the other Boston Coach branches by William Gemmell on or about July 19, 1996, Renner was aware that Boston Coach printed an "Over 70 Hours Report" listing Boston Coach drivers whose hours totaled more than 70 hours in a given week and that the "Over 70 Hours Report" was distributed to Boston Coach's upper management in the corporate offices in Boston. Renner Dep. at 20:9-20:23; 143:11 — 143:13; Nolan Cert., Ex. F. On July 19, 1996 Renner sent Gemmell's e-mail message to Chester (Chet) Greco, one of his subordinates, and added: "Chet, please get this to the Fleet Controllers ASAP. DO NOT GO OVER 70!". Nolan Cert., Ex. F. Renner was aware that Boston Coach had a legal duty to maintain accurate records regarding the hours its employees worked and that Boston Coach was subject to review by the U.S. Department of Labor. Renner Dep. at 138:24-139:13.
In or about September 1996, several weeks after Renner's e-mail message to Greco, Renner became aware that Greco had moved two hours worked one week by Boston Coach driver Robert Prisco to the following week in the record keeping system because Prisco was over 70 hours for that week. Id. at 142:21 — 142:25. While Renner denies authorizing or consenting to Greco changing Prisco's hours to avoid the "Over 70 Hours Report," id. at 24, he did not tell Greco to correct the alteration of hours after Greco explained what he had done. Renner acknowledges that Greco in essence falsified corporate records and that after he became aware of Greco's falsification he did nothing to correct it. In addition, Renner did not inform his superiors at Boston Coach that Prisco's hours had been altered. Id. at 142:21 — 143:22.
Cooke learned about the Prisco incident and on September 20, 1996 requested that Renner voluntarily resign from Boston Coach. Renner refused to resign, and Cooke terminated his employment. At the time of his termination Renner was 51 years old. Greco was briefly suspended as a result of the Prisco incident but his employment was not terminated.
Renner filed his wrongful termination action in the New Jersey Superior Court, Law Division in Essex County on May 13, 1997. On July 10, 1997 the defendants removed the action to this Court pursuant to 28 U.S.C. § 1441 on the basis of diversity of citizenship of the parties. Renner filed his Amended Complaint on December 30, 1997 asserting claims of fraudulent misrepresentation (Count One), negligent misrepresentation (Count Two), age discrimination in violation of the New Jersey Law Against Discrimination (Count Three), intentional and negligent infliction of emotional distress (Count Four), interference with contract and prospective economic advantage (Count Five), defamation (Count Six), breach of oral contract (Count Seven), breach of implied covenant of good faith and fair dealing (Count Eight), loss of consortium on behalf of his wife (Count Nine) and promissory estoppel (Count Ten). The parties engaged in extensive discovery and defendants filed the motion for summary judgment now before the Court on July 13, 1998. Oral argument was heard on September 28, 1998.
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate where the moving party establishes that "there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party must show that if the evidentiary material of record were reduced to admissible evidence in court, it would be insufficient to permit the non-moving party to carry its burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
Once the moving party has carried its burden under Rule 56, "its opponent must do more than simply show that there is some metaphysical doubt as to the material facts in question." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986), rev'g, 723 F.2d 238 (3d Cir. 1983). The opposing party must set forth specific facts showing a genuine issue for trial and may not rest upon the mere allegations or denials of its pleadings. Sound Ship Bldg. Corp. v. Bethlehem Steel Co., 533 F.2d 96, 99 (3d Cir.), cert. denied, 429 U.S. 860 (1976).
At the summary judgment stage the court's function is not to weigh the evidence and determine the truth of the matter, but rather to determine whether there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The mere existence of some alleged factual dispute between the parties, however, will not defeat an otherwise properly supported motion for summary judgment. Id. at 247-248.
ANALYSIS
Defendants assert that they are entitled to summary judgment on all ten counts of the Amended Complaint. Each count will be discussed in turn.
I. Fraudulent Misrepresentation (Count One)
In Count One Renner alleges that Cooke made fraudulent misrepresentations which induced him to leave his employment with TNT and join Boston Coach. In particular, the alleged misrepresentations were that Renner would be joining a growing company and that he could receive an equity interest if his division became profitable.
To sustain a cause of action for fraudulent misrepresentation under New Jersey law, the following elements must be established: (1) a material misrepresentation of a presently existing or past fact; (2) made with knowledge of its falsity by the person making the misrepresentation; (3) intent that the misrepresentation be relied upon; (4) reliance on the misrepresentation; and (5) damage to the party who relied on the misrepresentation. First Valley Leasing, Inc. v. Goushy, 795 F. Supp. 693, 701 (D.N.J. 1992). A misrepresentation concerning a future action or event is only actionable if the defendant had a false state of mind.Ocean Cape Hotel Corp. v. Masefield Corp., 63 N.J. Super. 369, 380 (App.Div. 1960). In order to show a false state of mind, a plaintiff must establish that the defendant had no intention to perform a future action or event at the time that the material misrepresentation was made.Silvestre v. Bell Atlantic Corp., 973 F. Supp. 475, 485 (D.N.J. 1997).
Defendants correctly argue that Count One must fail because assuming that the alleged representations were made, Renner cannot establish that they were false or that Cooke made them with knowledge of their falsity or with a false state of mind. As for the alleged representation that Renner would be joining a growing company, such a statement is merely an expression of opinion by Cooke and thus not actionable. Further, the alleged representation that Renner would receive an equity interest in the company if he made his branch profitable was not false. Renner testified that receipt of this equity interest was contingent upon his first year performance and the year-end profitability of his branch. Renner Dep. at 74:5-18; 75:17-24; 96:11 — 97:13. Renner also testified that, effective January 1, 1995, he received 5,000 incentive shares and that he believed that these incentive shares constituted an equity interest in the company. Id. at 166:19 — 167:1; Nolan Cert., Ex. E. Moreover, even if Cooke's representations were false Renner has not established that Cooke made the representations with knowledge of their falsity, an essential element in a claim for fraudulent misrepresentation.
Renner's real grievance is not that he failed to receive equity in the company but rather that he was "underwhelmed" by the amount of equity that he received. Thus, Count One must be dismissed.
II. Negligent Misrepresentation (Count Two) and Negligent Infliction of Emotional Distress (Part of Count Four)
Defendants argue that Renner's negligence claims (Count Two, for negligent misrepresentation and a portion of Count Four, for negligent infliction of emotional distress) should be dismissed because they are barred by the exclusivity provision of the New Jersey Workers' Compensation Act (the "Act").
The Act provides the exclusive remedy for injuries arising from negligence in the employment context. N.J.S.A. 34:15-8. See, e.g.,Millison v. E.I. DuPont de Nemours Co., 101 N.J. 161, 165 (1985) (characterizing N.J.S.A. 34:15-8 as an "exclusive-remedy provision"),aff'd, 115 N.J. 252 (1989). This is so regardless of the kind of injury alleged. Fregara v. Jet Aviation Bus. Jets, 764 F. Supp. 940, 954 n. 8 (D.N.J. 1991) (noting that "plaintiff cannot pursue any cause of action based upon negligence due to the exclusive remedy provision set forth in the New Jersey Workers' Compensation Act").
Therefore, all employment-related negligence claims are remediable exclusively in worker's compensation and Count Two and the portion of Count Four alleging negligent infliction of emotional distress must be dismissed. It is briefly noted that Renner's argument that the exclusivity bar of the Act does not apply to his negligence claims because defendants' misrepresentations were intentional is beside the point; if these claims allege intentional conduct they are already asserted in Count One and that portion of Count Four alleging intentional infliction of emotional distress.
III. Violation of New Jersey Law Against Discrimination (Count Three)
In Count Three Renner alleges that defendants terminated his employment because of his age in violation of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq. ("NJLAD"). Defendants argue that Renner's claim must be dismissed because he cannot establish a prima facie case of age discrimination and that even if he could there is no evidence that its legitimate, non-discriminatory reason for terminating his employment is pretextual.
The standards of analysis for discrimination claims are the same under the NJLAD and Title VII because New Jersey has adopted the burden-shifting approach established for Title VII cases in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Peper v. Princeton University Board of Trustees, 77 N.J. 55, 81-83 (1978). A plaintiff bears the initial burden of demonstrating a prima facie case of employment discrimination, and the establishment of such a case will create a presumption of unlawful discrimination. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506-507 (1993). In cases involving allegations of discriminatory discharge, a plaintiff must prove that: (1) he is a member of a protected class; (2) he was performing his job at a level that met his employer's legitimate expectations; (3) he was discharged; and (4) the employer sought another to perform the same work after the plaintiff was discharged. Maher v. New Jersey Transit Rail Operations, Inc., 125 N.J. 455, 480-481 (1991).
Once a prima facie case is demonstrated, the burden of production shifts to the defendant to set forth evidence which establishes legitimate nondiscriminatory reasons for the adverse employment action.St. Mary's Honor Center, 509 U.S. at 506-507. However, the "ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Id. at 507 (quoting Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981)).
Once the defendant has met its burden, the presumption raised by theprima facie case is rebutted and "drops from the case." Id. at 507. The plaintiff must then produce evidence from which the "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." Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994).
Renner has failed to establish a prima facie case of employment discrimination because the evidence does not support a conclusion that he was performing his job well enough to meet Boston Coach's legitimate expectations. Renner testified that he was aware Boston Coach had a legal duty to maintain accurate records regarding the hours its employees worked. Renner Dep. at 25:14-18; 138:24 — 139:13. He understood his duties as a general manager would be violated if company records were altered. Id. Renner admitted that he knew it was wrong for Greco to alter Prisco's hours to avoid the "Over 70 Hours Report." Id. at 142:21-143:22. Yet Renner failed to correct the falsification of hours and failed to inform his superiors that the records had been falsified.Id. As a result, Renner failed to perform his job duties at a level necessary to satisfy the second element of his prima facie case.
Renner's involvement in the Prisco incident, deemed by Boston Coach to have been a serious lapse of judgment on Renner's part condoning the falsification of company records in violation of wage and hour laws, eroded Boston Coach's confidence in his ability to perform his job. It is therefore of no consequence that, as argued by Renner, his earlier job performance had been favorably evaluated and he had received a special bonus in 1994.
Even if Renner had made out a prima facie case of employment discrimination defendants would be entitled to summary judgment on this claim because there is no evidence in the record to suggest that defendants' stated reason for Renner's termination (the Prisco incident) is a pretext for age discrimination. Indeed, the record supports the exact opposite conclusion. At his deposition Renner testified that he believed that it was "overly harsh" for Boston Coach to have terminated him over the Prisco incident and that his belief that he was terminated for any other reason was entirely speculative:
Q. Isn't the essence of your claim that it was unfair to be fired solely because of the Prisco incident?
A. The essence of my claim — I don't want to repeat the whole question — is it fair to say the essence of my claim? I think so, yes.
Q. That it was —
A. It would be fair to say.
Q. That it was overly harsh to terminate you based solely on the Prisco incident?
A. I believe so.
Q. And as you sit here today, other than speculation, you can't point to any other specific instances or incidents that Russ Cooke relied on to terminate you. Isn't that correct?
* * *
A. Yes, I guess.
BY MR. NOLAN:
Q. All right. Let me see if I can — other than the Prisco hours incident, are you aware of any other specific instance where you did or did not do something that was relied on by Russ Cooke in deciding to terminate you?
A. No.
Q. Okay. And if I understand correctly, your beliefs or your belief that you were fired for some reason in addition to or other than the Prisco incident is speculative on your part?
A. Absolutely, yes.
Renner Dep. at 159:21 — 161:16.
Further, Renner's argument that his termination must have been motivated by age because Boston Coach general managers from other branches were terminated at earlier dates is without merit and based solely on speculation. Renner has failed to provide any evidence of the ages of these terminated general managers, the ages of the individuals who replaced them, or the reasons surrounding their terminations. As defendants correctly observe, Renner's argument is about an alleged plot to replace general managers with "operations supervisors" and overlooks the fact that he was replaced by a 46-year-old in his same general manager position.
In light of the foregoing it must be concluded that Renner's claim of age discrimination is based solely on speculation, defendants have articulated a legitimate, non-discriminatory reason for terminating Renner and no evidence of record supports an inference of age discrimination. Subjective beliefs, accusations and speculation that a protected characteristic was a motivating or determinative factor are insufficient to prove discrimination. Geary v. Visitation of the Blessed Virgin Mary Parish School, 7 F.3d 324, 332 (3d Cir. 1993); Mallon v. Prudential Property Cas. Ins. Co., 688 F. Supp. 997, 1005-1006 (D.N.J. 1988). Thus, Renner's NJLAD claim must be dismissed.
IV. Intentional Infliction of Emotional Distress (Count Four)
That portion of Count Four alleging negligent infliction of emotional distress is discussed in Point II above.
Defendants assert that they are entitled to summary judgment on the claims set forth in Count Four alleging intentional infliction of emotional distress because Renner cannot meet the stringent criteria for establishing a claim. Renner argues that his claim should stand because defendants' false allegation of dishonesty and illegality constitutes outrageous conduct.
"[T]o establish a claim for intentional infliction of emotional distress, the plaintiff must establish intentional and outrageous conduct by the defendant, proximate cause, and distress that is severe." Buckley v. Trenton Saving Fund Soc., 111 N.J. 355, 366 (1988). This tort contemplates conduct "so extreme and outrageous as to go beyond all possible bounds of decency, and be regarded as atrocious and utterly intolerable in a civilized community." Zamboni v. Stamler, 847 F.2d 73, 80 (3d Cir.) (citation and internal quotation marks omitted), cert. denied, 488 U.S. 899 (1988). Conduct which the New Jersey courts have found to meet this extremely high level of uncivilized conduct are such matters as a doctor knowingly and untruthfully advising parents that their child had cancer, Hume v. Bayer, 178 N.J. Super. 310, 317-19 (Law Div. 1981), and a hospital being unable to locate the body of a dead baby for three weeks, Muniz v. United Hospitals Medical Center, 153 N.J. Super. 79 (App.Div. 1977). It is extremely rare to find conduct in the employment context that is sufficiently outrageous to provide a basis for recovery. Fregara, 764 F. Supp. at 956.
In this case, there is nothing in the record to indicate that defendants' alleged conduct rises close to the level of outrageousness required to establish liability. Renner testified as follows in support of his emotional distress claim:
Q. Mr. Renner, are you seeking to recover damages for emotional distress in this case?
A. Yes.
Q. Can you tell me what the basis for this claim is?
A. The basis for the claim of emotional distress was my shock and dismay, which lasted for some time over this incident, the fact that I wasn't sleeping well, I was trying to figure out what really happened, what was happening behind closed doors that I didn't know about, and my wife became concerned. Gained some weight, and we talked about it and, yes, she said to me, "This is bothering you." I said, "Of course it bothers me. I've never been fired in my life, and you have somebody who says right to your face that `another employee just said something different than you, we're taking his side of the story and we're firing you, bye-bye for now,' that's irritating."
Q. How long did you continue to suffer from this emotional distress?
A. I don't recall. It was a considerable amount of time.
Q. If I understand from your testimony earlier, did you — you did not seek any professional help to deal with this?
A. That's correct.
* * *
Q. Do you continue to suffer from this emotional distress?
A. I continue to wonder what the real story is behind this. . . .
Renner Dep. at 233:8-234:8; 234:19-21.
In short, Renner's argument that defendants' fabrication of a reason for terminating his employment resulted in his suffering severe emotional distress is without merit. He disagrees with the reason given for his termination, yet he acknowledges that he violated his work-related responsibilities with regard to the Prisco incident. Indeed, as discussed in Point III above, Renner's contention that he was terminated for a reason other than his involvement in the Prisco incident is purely speculative and without any basis in the evidence. Moreover, Renner's reliance on Subbe-Hirt v. Baccigalupi, 94 F.3d 111 (3d Cir. 1996), is misplaced because the conduct of the defendant in that case was exceptionally severe and therefore clearly distinguishable from defendants' alleged actions in this case. Thus, Count Four must be dismissed.
V. Interference with Contract and Prospective Economic Advantage (Count Five)
Defendants assert that Count Five should be dismissed because Renner was an at-will employee at TNT, his prior employer, and he has failed to establish the requisite malice necessary to support his claim. Renner responds that defendants tortiously interfered with his prospective economic advantage by luring him from his long-time employment at TNT with promises of equity to join Boston Coach.
The elements of a tortious interference with prospective economic advantage claim are:
(1) a plaintiff's existing or reasonable expectation of economic benefit or advantage; (2) the defendant's knowledge of that expectancy; (3) the defendant's wrongful, intentional interference with that expectancy; (4) the reasonable probability that the plaintiff would have received the anticipated economic benefit in the absence of interference; and (5) damages resulting from the defendant's interference.Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1167 (3d Cir. 1993). In order to be liable, the defendant must perform a wrongful act which violates generally accepted standards of common morality or law. Herbert v. Newton Memorial Hospital, 933 F. Supp. 1222, 1230 (D.N.J. 1996),aff'd, 116 F.3d 468 (3d Cir. 1997).
In this case, there is no evidence to support Renner's claim. Although he argues that he was lured from a long-time, secure position with TNT with promises of equity to join Boston Coach, as discussed in Point I above he acknowledged in his deposition that he did receive equity, just not as much as he had hoped for. In addition, Renner cannot establish that defendants acted with any malice; in fact, when he accepted the position with Boston Coach his yearly salary nearly doubled, he received two guaranteed bonuses and he was given the opportunity for additional bonus compensation. Accordingly, the allegations of tortious interference with a prospective economic advantage will be dismissed.
VI. Defamation (Count Six)
Renner alleges that defendants defamed him by disseminating erroneous information concerning the reasons for the termination of his employment, specifically that they informed other employees that he had been terminated for cause and because he "did a real bad thing." Renner Dep. at 112:18-25. This count must be dismissed because assuming for the purposes of this motion that these statements were made, Renner cannot establish that they were false.
Under New Jersey law, "one who publishes a false and defamatory communication concerning a private person . . . is subject to liability if, but only if, he (a) knows that the statement is false and that it defames the other, (b) acts in reckless disregard of these matters, or (c) acts negligently in failing to ascertain them." Sisler v. Courier-News Co., 199 N.J. Super. 307, 312-13 (App.Div. 1985), rev'd on other grounds, 104 N.J. 256 (1986). At the threshold of any defamation action is whether the statement at issue is susceptible of a defamatory meaning. Kotlikoff v. The Community News, 89 N.J. 62, 67 (1982). This question is one of law to be resolved by the court. Id. Truth is an absolute defense to a claim of defamation. Hart v. City of Jersey City, 308 N.J. Super. 487, 492 (App.Div. 1998).
As discussed in Point III above, Renner was terminated for not correcting Greco's falsification of Prisco's hours and for not reporting Greco's conduct to his superiors. In light of Renner's involvement in the Prisco incident his discharge could not be considered unjustified. See, e.g., Fried v. Aftec, Inc., 246 N.J. Super. 245, 256 (App.Div. 1991) (in the absence of a specific agreement between parties regarding the meaning of "cause," plaintiff could be terminated for cause if "defendant had substantial objective proof of plaintiff's failure to perform his duties . . . notwithstanding that there had been no proof of dishonesty or the like"). As a result, Renner was terminated for cause, defendants' allegedly defamatory statements were true, and summary judgment will be granted on Count Six.
VII. Breach of Oral Employment Contract (Count Seven)
Defendants argue that Renner's claim for breach of an oral employment contract must be dismissed because he did not have any employment contract with Boston Coach but was instead an at-will employee. Renner responds that he had an oral contract for continued employment with Boston Coach and defendants orally promised to discharge him only for cause.
New Jersey follows the American common-law view that employment is "at-will, unless specifically stated in explicit, contractual terms."Bernard v. IMI Sys., Inc., 131 N.J. 91, 106 (1993). To overcome the presumption of at-will employment, an employee must demonstrate that "`there is proof of a precise agreement and a long-term commitment [that] is supported by consideration from the employee in addition to the employee's continued work.'" Fregara, 764 F. Supp. at 947 (quoting Carney v. Dexter Shoe Co., 701 F. Supp. 1093, 1103 (D.N.J. 1988)) (emphasis added). In addition, the New Jersey Supreme Court has held:
[C]ontracts for lifetime employment [are] extraordinary, and [will] be enforced only in the face of clear and convincing proof of a precise agreement setting forth all of the terms of the employment relationship, including the duties and responsibilities of both the employer and the employee.Shebar v. Sanyo Bus. Sys. Corp., 111 N.J. 276, 287 (1988) (emphasis added).
In this case Renner admitted in his deposition that he did not have an employment contract and that he was an at-will employee of Boston Coach. Renner Dep. at 93:1-8. In addition, the employment application signed by Renner explicitly stated that his employment would be at-will: "I understand that if I am hired my employment is at will and may be terminated by me or my employer at any time." Nolan Cert., Ex. E.
Moreover, none of the remarks allegedly made by defendants prior to hiring Renner qualify as a "precise agreement" as required under Shebar to constitute a contract for lifetime employment. Claims similar to Renner's have similarly been rejected by other courts. See, e.g.,Savarese v. Pyrene Mfg. Co., 9 N.J. 595, 603 (1952) (oral promise "you will have a foreman's job for the rest of your life" rejected as basis for employment contract because "the terms are vague and uncertain and do not comply with the precision and clarity required by the law");Fregara, 764 F. Supp. at 946-947 (claim of oral contract rejected where plaintiff testified he had been told by his employer "that as long as I performed my job, that I have a job there"). Finally, even if Renner was able to demonstrate that defendants promised him that they would discharge him only for cause, Renner's termination was for cause as discussed in Point VI above.
As a result, Renner is unable to overcome the presumption of at-will employment notwithstanding his argument that the employment application was merely a formality. There was no oral employment agreement and defendants are entitled to summary judgment on Count Seven.
VIII. Breach of Implied Covenant of Good Faith and Fair Dealing (Count Eight)
An implied covenant of good faith and fair dealing does not exist independent of a contract of employment. McQuitty v. General Dynamics Corp., 204 N.J. Super. 514 (App.Div. 1985). In McQuitty, the Appellate Division found that because no contract of employment existed between the parties the plaintiff was an at-will employee. Id. at 518. The court further held that since the plaintiff was an at-will employee, "his argument that every contract imposes a duty of good faith and fair dealing is irrelevant." Id. at 520. Holding that "[d]efendant had an absolute right to terminate plaintiff without cause," the court observed that "[o]ne cannot read additional terms into a non-existent contract" and dismissed the plaintiff's claim for breach of an implied covenant of good faith and fair dealing. Id. See also Noye v. Hoffmann-La Roche Inc., 238 N.J. Super. 430, 434 (App.Div.) ("In the absence of a contract, there can be no breach of an implied covenant of good faith and fair dealing"), certif. denied, 122 N.J. 146 (1990).
As discussed in Point VII above, Renner had no contract of employment and was an at-will employee. As a result, Count Eight will be dismissed.
IX. Loss of Consortium (Count Nine)
Defendants correctly assert that Barbara Renner's loss of consortium claim must be dismissed. "Loss of consortium is a derivative claim which depends for its sustenance upon a viable tort claim of the spouse." Reiff v. Convergent Technologies, 957 F. Supp. 573, 584 (D.N.J. 1997). Because this Court has dismissed all of her husband's claims, Mrs. Renner has no foundation from which to derive a loss of consortium claim. Accordingly, the loss of consortium count will be dismissed.
X. Promissory Estoppel (Count Ten)
Finally, Renner alleges that when he left his employment with TNT, he detrimentally relied on defendants' assurances of continued employment and equity in the company.
Under New Jersey law, a promissory estoppel claim consists of four elements: (1) a clear and definite promise by the promisor; (2) made with the expectation that the promisee will rely thereon; (3) actual reliance by the promisee; and (4) incurrence of a definite and substantiated detriment as a result of the reliance. Jevic v. Coca-Cola Bottling Co. of New York, Inc., No. 89-4431, 1990 WL 109851, at *4 (D.N.J. June 6, 1990); Malaker Corp. Stockholders Protective Comm. v. First Jersey Nat'l Bank, 163 N.J. Super. 463, 479 (App.Div. 1978).
Renner cannot establish that a clear and definite promise of continued employment was made by Boston Coach. As discussed in Point VII above in the employment agreement context, Renner was never promised continued employment with Boston Coach and he was an at-will employee. Nor can Renner establish that he relied on Boston Coach's promise of equity to his detriment; as discussed throughout this opinion, the gravamen of Renner's claim is not that he didn't receive equity but rather that he was "underwhelmed" by the 5,000 incentive shares he acknowledged constituted an equity share of the company. The doctrine of promissory estoppel "should only be applied in the rare case where it is the only method of avoiding injustice." Jevic, 1990 WL 109851 at *6. This case plainly does not cry out for any such relief, and Count Ten will be dismissed.
CONCLUSION
For the reasons set forth above, the defendants' motion will be granted and the Amended Complaint will be dismissed in its entirety with prejudice. An appropriate order follows.
O R D E R
This matter having been opened to the Court by the attorneys for the defendants on a motion for summary judgment, and notice having been given to all parties, in consideration of the papers submitted, for good cause shown, and for the reasons set forth in the Court's opinion of even date,
IT IS, on this day of March 1999, ORDERED that the motion is granted and the Amended Complaint is dismissed with prejudice.