JONATHAN MURPHY v. WAYNE DODGE, INC.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4341-06T24341-06T2

JONATHAN MURPHY,

Plaintiff-Respondent,

v.

WAYNE DODGE, INC.,

Defendant-Appellant.

_________________________________

 

Submitted January 14, 2008 - Decided

Before Judges Lintner and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. DC-7392-06.

Martin David Katz, attorney for appellant.

Respondent has not filed a brief.

PER CURIAM

Following a trial, the Special Civil Part awarded plaintiff Jonathan Murphy a money judgment of $1018, representing unpaid vacation pay that Murphy had accrued with his former employer, defendant Wayne Dodge, Inc. ("the dealership"). At the same time, the judge denied Murphy's separate claim against the dealership for $968 in unpaid sales commissions.

The dealership now appeals the court's award of vacation pay, contending that Murphy forfeited his right to receive it because he did not follow the company's vacation policies and procedures. Murphy, who appeared pro se at trial, has not cross-appealed the denial of commissions. We affirm.

The record shows that the dealership hired Murphy as a salesman in January 2002. He worked there through November 2005. He was paid both a weekly salary and any commissions he earned on customer sales.

At the time Murphy joined the company, he was provided with a copy of the dealership's employee handbook. The twenty-five page handbook addressed a variety of topics, including such things as employee benefits, insurance coverage, family leave, safety protocols, performance evaluations, sick days, dress requirements and parking.

With respect to vacations, the handbook specified that "[a]ll full[-]time employees will be entitled to vacation after one full year of service," as determined by a seniority-based schedule. Employees with one to two years of service would be allotted one week of vacation annually; those with three to ten years would have two weeks; and those serving more than ten years would earn three weeks. Employees on vacation would be paid their usual compensation.

By November 2005, Murphy had been with the company for more than three years, and consequently he accrued two weeks of paid vacation for that calendar year. The parties agree that by the time the events in question occurred in November 2005, Murphy had already used up, and had been paid for, one of his two vacation weeks for the year. It is also undisputed that Murphy took a second week of vacation from November 18 through November 25, 2005.

According to his trial testimony, Murphy advised his superiors, Bob Caravano and Daniel Ludwig, two weeks beforehand that he planned on taking vacation the week of November 18, and that they orally approved his request. As Murphy recalled it, he had stated, "[G]uys, we're going on vacation, I need a break, [then] they registered it and said okay, coming in for a vacation next week . . . [.]" Murphy acknowledges that his superiors did not memorialize their approval in writing. However, the record also reflects that, before his departure Murphy did submit a weekly pay sheet dated November 14, which included a claim for $1,018 in vacation pay as well as five sales commissions.

Murphy further testified that when he returned to the dealership from vacation on November 25, he had a disagreement with management. He contended that his superiors thought he had been out "shopping for a job." The disagreement prompted him to resign. After working a half day, Murphy left the premises, and did not return. He was not paid for the week of vacation, nor the requested sales commissions. He was also not paid for the partial day that he allegedly worked on November 25, although he did not include that as an item of damages in this case.

The dealership was represented by counsel at trial. Its sole witness was Caravano, the general manager. Caravano disputed Murphy's contention that he had obtained oral approval for his vacation prior to the week of November 18. Caravano did admit that Murphy reported back to work on November 25. He recalled that Murphy met with the dealership's owner, and decided to leave. As Caravano explained it, "it was clear to many [at the company] . . . that [Murphy] was out looking for another job, and that was the reason why he took that week off."

The dealership relied at trial, and again on this appeal, upon language in the handbook that instructs employees to obtain written permission from their superiors four weeks in advance before taking a vacation. On this subject, the handbook states:

Written approval from your department manager (or from the dealer in the case of the department manager) for vacation time off is required at least four (4) weeks in advance. Employees must take their vacations (except service technicians, who will receive vacation pay not taken at the end of the year); there is no provision for working through your allotted time. Vacation time off shall not accrue from year to year; if vacation time is not taken during the year it is earned, it will be forfeited. Vacation time is determined by the length of actual time worked during the calendar year and will be adjusted by any long-term disability time taken during the year.

[Emphasis added.]

The handbook also recites that "[t]he purpose of vacation pay is so that an employee may leave work and relax so [he or she] may return to work renewed. An employee not returning [to work] will not be entitled to vacation pay."

The dealership also points to the following language in the handbook concerning the timing of vacations:

Vacations can be taken at any time that is convenient to the Company considering the workload in your department and with the written approval of your department manager or with the written approval of the dealer. No employees will be permitted to take more than five (5) days of vacation at one time. Although the Company will attempt to accommodate your request for vacation time off, it may be necessary to refuse your request and we reserve the right to do so. In most cases, no more than one employee doing the same type of work in the same department will be allowed to take vacation time off at the same time. The Company will consider various factors including the employee's length of service with the Company and time of request in determining priority for granting vacation time off.

Murphy did not dispute that these provisions appear in the employee handbook. He also acknowledged that, at best, he only gave two weeks, not four weeks, notice of his anticipated vacation for the week of November 18, and that he did not receive such approval in written form. However, Murphy contended that the dealership did not strictly enforce the handbook's procedures in actual practice. To the contrary, he testified that Ludwig and other supervisors had previously allowed him to take paid vacations on many occasions without written approval four weeks in advance. In fact, Murphy asserted that he never had to follow the handbook's specified procedures in the past.

After considering the proofs, the trial judge held that the dealership owed Murphy for the one week of accrued vacation. The judge agreed that Murphy had not abided by the handbook's procedures for four-week notice. Even so, the judge determined as a matter of law that Murphy had earned the vacation pay, owing to his years of company service. The judge also found that Murphy had, in fact, reported to work on November 25 after using up his vacation time. The dealership now challenges those determinations on appeal.

As a preliminary matter, we note that the objective of the Special Civil Part is to provide "a forum for pro se litigants that is quick, procedurally simple and relatively inexpensive." Schumy v. Cremer, 159 N.J. Super. 514, 516 (Cty. Ct. 1978). In our review of bench rulings from the Special Civil Part and from other non-jury cases, we accord deference to the judge's findings of fact. See Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974). Accordingly, we sustain the trial judge's particular finding here that Murphy did, in fact, report to work on November 25 after his vacation ended, which is supported by substantial credible testimony from Murphy and, to some degree, from Caravano.

Although an employee handbook or manual may at times create implied terms of employment, see Woolley v. Hoffmann-La Roche, Inc., 99 N.J. 284, modified on other grounds, 101 N.J. 10 (1985), that principle is not absolute. An employer must utilize such a manual in a "fair" manner. Id. at 309. The actual practices of an employer are also relevant, particularly if they stray from the specific procedures detailed in a manual. Here, Murphy testified that he had previously been orally permitted by his superiors at the company to take vacations without four full weeks of advance notice. Those superiors allegedly included his immediate supervisor Ludwig, who did not testify for the defense. We discern no inequity or reversible error in the judge's determination that the deviation from the handbook's procedural provisions was not an absolute bar to Murphy's monetary claim.

We concur with the judge's analysis that, at most, Murphy's deviation from the handbook procedures conferred a right upon the company to discharge him, but not a further right to deny him the vacation time that he had already earned and accrued. We have long held that "contractual provisions for vacation with pay are neither gratuity nor gift, but rather a supplement to the employment agreement which constitutes an offer or reward of additional wages for service, to which the employee becomes entitled upon performance . . . ." Textile Workers Union of Am. v. Paris Fabric Mills, Inc., 22 N.J. Super. 381, 384 (App. Div. 1952). Despite his departure from written formal procedures, Murphy earned the withheld vacation pay, and did not forfeit it when he resigned.

Affirmed.

 

Ludwig, who was described as Murphy's "direct manager" and who allegedly had joined in approving the disputed vacation in advance, did not testify.

The judge did find, however, that Murphy was not entitled to the disputed commissions, because the sales in question were not fully consummated until after his resignation.

(continued)

(continued)

9

A-4341-06T2

February 4, 2008