PAULA CANNELLA v. CONAIR CORPORATION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5310-07T15310-07T1

PAULA CANNELLA,

Plaintiff-Appellant,

v.

CONAIR CORPORATION,

JOE SANCHEZ, MICHELE

ROCHE, DINA PYANOE,

SYLVIA STROPKAI, AL WAKAI,

INDIVIDUALLY, JOINTLY AND

IN THEIR CAPACITY AS AGENTS

FOR CONAIR CORPORATION,

Defendants-Respondents.

____________________________________________________________

 

Submitted July 15, 2009 - Decided

Before Judges R.B. Coleman and Graves.

On appeal from Superior Court of New Jersey,

Law Division, Mercer County, Docket No.

L-1354-06.

Francine A. Gargano, attorney for appellant.

Edwards Angell Palmer & Dodge LLP, attorneys

for respondents (Martin W. Aron, of counsel;

Mr. Aron and Steven M. Lucks, on the brief).

PER CURIAM

Plaintiff Paula Cannella (Cannella) appeals from an order dated May 21, 2008, granting summary judgment to her former employer, defendant Conair Corporation (Conair). In her complaint, Cannella asserted breach of contract and wrongful discharge claims against Conair. All other claims in the ten-count complaint against former co-workers were dismissed prior to summary judgment and are not the subject of this appeal. We are satisfied from our study of the record that summary judgment was properly granted, and we affirm substantially for the reasons stated by the trial court in its written opinion on May 21, 2008.

On November 5, 1997, when Cannella applied for employment at Conair, she signed an "Applicant's Statement" in which she acknowledged that if she was hired she would be an at-will employee subject to Conair's rules and regulations. That statement included the following:

I hereby acknowledge that any employment relationship with this Company is of an "at will" nature, which means that the Employee may resign at any time and the Employer may discharge Employee at any time with or without cause. It is further acknowledged that this "at will" employment relationship may not be changed by any written document or by conduct unless such change is specifically acknowledged in writing by an authorized executive of the Company.

In the event of employment, I understand that false or misleading information given in my application or interview(s) may result in discharge. I understand, also, that I am required to abide by all rules and regulations of the employer.

In addition, Cannella testified at her deposition that Conair did not promise her employment for any specific time period, and that she did not recall Conair ever providing her with a contract of employment.

In December 1997, Conair hired Cannella as a LAN (Local Area Network) administrator in its corporate offices in East Windsor, New Jersey. She continued to work in that position until Conair discharged her on May 24, 2000. On her application for employment at Conair, Cannella stated she resigned from her prior employment because of downsizing at the company. However, at her deposition she testified she left her previous job at least partially in response to her supervisor's intention to suspend her for ten days due to excessive absenteeism. She further testified she received and read the Conair employee handbook, stating that fighting, gross insubordination, and falsifying information on an employment application were "Grounds for Immediate Discharge."

The employee handbook also contained an explanation of Conair's progressive disciplinary process, which applied to "all other infractions" not listed as grounds for immediate discharge. In August 1999, Conair supplemented the handbook through an interoffice memorandum stating that "it is Company policy that the misuse of email will be grounds for immediate dismissal; therefore, use it as intended, as a communication device within the Conair environment." During her deposition, Cannella acknowledged she received this supplement and understood that the personal use of Conair's e-mail system was prohibited.

In addition, Cannella testified that her supervisor warned her in April 2000 to cease personal contact with her former partner, defendant and co-worker Michelle Roche, and that if she disobeyed she could be terminated. Nevertheless, Cannella acknowledged sending an e-mail to Roche on May 19, 2000, referring to her as "one arrogant, cold, cruel bitch," and she admitted that on May 24, 2000, she was told: "Because of this e-mail, you're fired."

The trial court dismissed Cannella's breach of contract and wrongful termination claims on the grounds that she was an at-will employee who could be fired for any or no reason, and the company handbook did not create a contract of indefinite employment. Alternatively, the court found that even if the handbook did create a contract, Conair discharged Cannella lawfully for violating its policy against sending personal and harassing e-mails to Roche, and insubordination for continuing to e-mail Roche after being told not to have any further contact with her.

On appeal, Cannella argues the trial court erred by finding that: (1) no genuine issue of material fact existed; (2) Conair did not violate a "clear mandate of public policy" when it discharged her; and (3) Cannella misrepresented material facts on her employment application. She contends her wrongful discharge claim demonstrated that Conair violated a clear mandate of public policy when it terminated her for reporting to management that she had been harassed. Relying upon Pierce v. Ortho Pharm. Corp., 84 N.J. 58 (1980), she further argues that Conair's alleged failure to respond to her complaints of harassment and the existence of workplace violence in general violate clear mandates of public policy that require protection by an employer.

Generally, "both employers and employees commonly and reasonably expect employment to be at-will, unless specifically stated in explicit, contractual terms." Bernard v. IMI Sys., Inc., 131 N.J. 91, 106 (1993). Moreover, "company personnel policy manuals . . . would ordinarily not lead to contractual consequences" unless the manual contained an implied promise that an employee would be fired only for cause. Woolley v. Hoffmann-La Roche, Inc., 99 N.J. 284, 289 (1985).

In the present matter, Cannella expressly acknowledged that her employment at Conair was at-will. The employment application she signed prior to beginning her position at Conair contained no express contractual terms indicating that a contract had been created, and Cannella did not allege that Conair made any specific promises to her. On the contrary, Cannella's employment application explicitly stated that she would be an at-will employee.

Moreover, Cannella concedes she read Conair's handbook, which listed insubordination and falsifying information on an employment application as grounds for immediate discharge; she was aware of the supplement adding misuse of company e-mail to that list; she was told not to have any further contact with Roche in April 2000; and she violated Conair's e-mail policy on May 19, 2000, by sending Roche a personal e-mail. Additionally, Conair discovered that Cannella had misrepresented her reason for leaving her previous job on her employment application.

Regarding Cannella's wrongful discharge claim, employers have a "duty . . . not to discharge an employee who refused to perform an act that is a violation of a clear mandate of public policy." Pierce, supra, 84 N.J. at 72. Cannella argues that "a cause of action under Pierce [is] not limited to retaliatory actions or violations of statutory rights" and requires only that "the employee 'point to a clear expression of public policy.'" Hennessey v. Coastal Eagle Point Oil Co., 129 N.J. 81, 92 (1992) (citing Pierce, supra, 84 N.J. at 73). However, Canella's interpretation mischaracterizes the nature of a Pierce claim, which requires a plaintiff's refusal to follow an employer's instruction to perform an act that would violate a "clear mandate of public policy." Pierce, supra, 84 N.J. at 72. "If an employee does not point to a clear expression of public policy, the court can grant a motion to dismiss or for summary judgment." Ibid.

In this case, the trial court rejected plaintiff's reliance on Pierce, stating "that's not what Pierce v. Ortho . . . suggests. I think you're talking about a LAD [Law Against Discrimination] type claim that might otherwise be cognizable were it within the statute of limitation, but this is not it." The court also stated:

Cannella argues her wrongful discharge count is clear in its statement that a mandate of public policy had been violated by Conair. She submits that the public has an interest in insuring the safety of employees in the workplace. Additionally, plaintiff argues that it is imperative that an employee be allowed to express to their superiors any problems in the workplace. Finally, plaintiff argues that if . . . employees are allowed to be retaliated against by discharge from their jobs for complaining about workplace problems, then an unsafe environment is thereby created for all employees in New Jersey.

New Jersey recognizes a claim for wrongful termination of an "at will" employee when the discharge is contrary to a clear mandate of public policy. See Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58 (1980). An employee can prove a wrongful discharge claim by "show[ing] that the retaliation is based on the employee's exercise of certain established rights, violating a clear mandate of public policy." MacDougall v. Weichert, 144 N.J. 380, 393 (1996). Whether a plaintiff has established the existence of a clear mandate of public policy is an issue of law. Mehlman v. Mobil Oil Corp., 153 N.J. 163, 187 (1998). "A salutary limiting principle is that the offensive activity must pose a threat of public harm, not merely private harm or harm only to the aggrieved employee." Id. at 188. The public policy must be "clearly identified and firmly grounded. . . . A vague, controversial, unsettled, and otherwise problematic public policy does not constitute a clear mandate." MacDougall, supra, 144 N.J. at 391-92. Unless an employee "at will" identifies a clear, specific expression of public policy, that employee may be discharged with or without cause. Pierce, supra, 84 N.J. at 72.

Despite plaintiff's assertion that her alleged wrongful discharge was in violation of the public's interest in protecting employees who [complain] about workplace problems, it remains unclear to the Court which "publicly repugnant" act plaintiff alleges she refused to perform.

As the motion judge correctly concluded, Cannella failed to meet the requirements of a cause of action under Pierce, supra, 84 N.J. at 72. In addition, the court correctly determined that "no reasonable juror could reach any conclusion other than that plaintiff's breach of contract claim is without grounds for recovery." We agree. When viewed in a light most favorable to Cannella, the facts are "so one-sided" that Conair was entitled to summary judgment as a matter of law. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). The court correctly applied the law with respect to Cannella's breach of contract and wrongful discharge claims and properly granted Conair's motion for summary judgment.

Affirmed.

 

The statute of limitations under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42, is two years. Montells v. Haynes, 133 N.J. 282, 291-95 (1993); see also Shepherd v. Hunterdon Developmental Ctr., 174 N.J. 1, 23 (2002). Conair terminated Cannella on May 24, 2000, and Cannella filed this action on May 22, 2006. Her complaint included a LAD claim, which was dismissed on the ground that the statute of limitations had expired.

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A-5310-07T1

December 24, 2009