85 F.Supp.2d 349 (D.N.J. 1999), Civ. A.98-5091, Pepe v. Rival Co.

Docket NºCiv. A.98-5091
Citation85 F.Supp.2d 349
Party NamePepe v. Rival Co.
Case DateDecember 15, 1999
CourtUnited States District Courts, 3th Circuit, District of New Jersey

Page 349

85 F.Supp.2d 349 (D.N.J. 1999)

Patrick PEPE, Plaintiff,

v.

RIVAL COMPANY, a Corporation Defendant.

No. CIV. A. 98-5091 AJL.

United States District Court, D. New Jersey.

Dec. 15, 1999

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Richard M. Cohen, Leib, Kraus, Grispin & Roth, Scotch Plains, NJ, for Plaintiff.

Cynthia M. Jacob, Collier, Jacob & Mills, Somerset, NJ, for Defendant.

OPINION

LECHNER, District Judge.

Plaintiff, Patrick Pepe ("Pepe") filed a complaint in the Superior Court of New Jersey, Law Division, Union County (the "Complaint"), against the defendant, the Rival Company ("Rival"), alleging age discrimination under the New Jersey Law Against Discrimination (the "NJLAD"), N.J.S.A., 10:5-1, et seq., breach of an express and/or an implied employment contract and breach of the covenants of good faith and fair dealing. Rival filed a notice of removal (the "Notice of Removal") pursuant to 28 U.S.C. § 1446(a); diversity

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jurisdiction was asserted pursuant to 28 U.S.C. § 1332

Currently before the Court is a motion for summary judgment (the "Motion for Summary Judgment"), filed by Rival.1 For the reasons set out below, the Motion for Summary Judgment is granted.

Facts

A. Parties

Pepe resides in New Jersey. See Complaint; Notice of Removal ¶ 3. Pepe was employed by Rival from 1989 to 1998. See Complaint, First Count ¶ 1; Plaintiff's Rule 56.1 Statement pp 1, 62. Pepe was initially employed as a district sales manager ("District Sales Manager") and was later promoted to senior district sales manager ("Senior District Sales Manager") in the Rival Kitchen Sales Organization (the "Kitchen Sales Organization").2 See Complaint, First Count ¶ 1; Plaintiff's Rule 56.1 Statement pp 1, 62.

Rival is a Delaware corporation with its principal place of business in Missouri. See Notice of Removal ¶ 4. Rival sells various product lines, including a line of kitchen appliances. See Moving Brief at 1. Rival sells its product lines to retail customers which include department stores, distributors and certain national stores such as Wall-Mart, K-Mart and Target. See Deposition of Mark Bittner ("Bittner Dep.") at 175.

B. Background

1. Allegations

Pepe contends Rival is liable under the NJLAD, because his termination was allegedly motivated by age. See Complaint, First Count pp 11, 13. Pepe also alleges Rival is liable for breach of either an express and/or implied employment contract based upon his membership in a so-called Secular Trust (the "Secular Trust"), a pension plan offered to select Rival employees, and/or an employment handbook Rival sent to him at the beginning of his employment. See id. at Second Count, pp 3, 4. Finally, Pepe alleges Rival breached covenants

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of good faith and fair dealing in connection with his alleged employment contract. See id. at Third Count, ¶ 2.

2. Initial Employment with Rival

In 1989, Pepe joined Rival as a District Sales Manager responsible for a territory which included New York, New Jersey and parts of New England (the "New York Territory"). See Pepe Cert. ¶ 1. Upon commencing employment at Rival, Pepe did not sign an employment contract. See Deposition of Patrick Pepe ("Pepe Dep.") at 191; Defendant's Rule 56.1 Statement ¶ 2.

Once Pepe began his employment, Rival sent a copy of The Rival Company Sales, Administrative & Clerical Associates Handbook (the "Rival Associate Handbook") to his home in New Jersey. See Pepe Cert. ¶ 45. Pepe stated he relied on the Rival Associate Handbook "as outlining company policy." Id. at ¶ 48. However, after receiving the Rival Associate Handbook, Pepe stated he reviewed the portions "which seemed important." Id. at ¶ 46. Pepe stated he reviewed "portions relating to performance and benefits." Id.

The Rival Associate Handbook included a section titled the Associate Handbook Statement ("Associate Handbook Statement"). See Rival Associate Handbook at 2. Appearing on page two of the Rival Associate Handbook following a message from the President of Rival, the Table of Contents and the Company Mission Statement, the Associate Handbook Statement provides:

This Rival Associate Handbook is by no means intended to cover every facet of the Associate-Employer relationship. Regardless of the manner or duration of the Associate's compensation, nothing contained herein shall create employment for a definite term and the statements made herein are simply general statements of THE RIVAL COMPANY ("THE COMPANY") policy. Without prior notice and at any time for any reason, the Company specifically reserves the right to:

1. MODIFY THESE POLICIES,

2. APPLY THEM IN A MANNER THAT RETAINS DISCRETION IN THE COMPANY, OR

3. REFRAIN FROM APPLYING THESE POLICIES

Associates may terminate their employment without prior notice at any time for any reason, The Company may do the same. All oral statements made at any time regarding employment and any written employment rules, statements, policies or Rival Associate Handbooks of any form or nature issued prior to this manual are hereby revoked. The Company's policies may not be changed except in writing by the President of The Company.

Id. (emphasis added). Pepe admitted he did not read the Rival Associate Handbook Statement; he stated that nothing about the page "made it seem any more important than the first few pages that went before it." Pepe Cert. at ¶ 47.

Pepe asserts he interpreted the Rival Associate Handbook as "containing promises of the company with respect to many things including promotion, transfer, corrective action, and termination." Id. The Promotions and Transfers section of the Rival Associate Handbook reads:

It is the policy of The Rival Company to fill vacancies wherever possible by transfer or promotions. The best qualified individual will be selected. Primary consideration will be given to qualified associates when trying to fill vacancies.

* * * * * *

· Those who apply will be considered on the basis of ability, experience, overall job performance and attendance. Screening interviews will be done by the Personnel Manager with the interviewing supervisor making the final selection.

· The first 30 days will be considered a probationary period, as it is in all

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positions within the Company. The person selected will be given the chance to perform the new job in a satisfactory manner.

· If there are no qualified applicants for the job within Rival, it will be filled by other means.

· The Personnel Department will notify all applicants when a position has been filled.

Rival Associate Handbook at 17.

The Corrective Action Procedure section of the Rival Associate Handbook provides:

From time to time, problems arise that relate to attendance, work performance or disruptive behavior. Every associate will be given the opportunity to correct such problems. Corrective actions will follow a 3-step plan:

Step # 1--Counseling

Your supervisor will counsel you about the problem. They [sic] will work with you to correct the problem. This will be considered your "Verbal Warning." If the problem is corrected nothing further will be said. It will not be held against you in any way.

Step # 2--Written Warning

Should the problem continue, your supervisor will counsel you again. They [sic] will put a statement of the problem in written form, a copy of which will go to your personnel file. Receipt of a written warning automatically places you on thirty (30) days probation. Your signature is required on this form as acknowledgment that you have read and understand the form. If the problem continues, the supervisor is required to move you to Step # 3.

Step # 3--Termination

To insure fair play, no terminations under this policy are permitted without the approval of the department head. No one will be terminated without every possible assistance and fair warning.

Id. at 20. Pepe argues, based upon the Corrective Action Procedures listed in the Rival Associate Handbook, he had an implied employment contract that he would not be terminated without cause. See Opposition Brief at 35. Further, Pepe states no one at Rival ever told him he was an at-will employee. See Pepe Cert. ¶ 48. Nevertheless, at page two of the Rival Associate Handbook it is clearly, plainly stated that:

... [N]othing contained herein shall create employment for a definite term .... Associates may terminate their employment without prior notice at any time for any reason, The Company may do the same.

Rival Associate Handbook at 2.

3. Employment 1989--1997

In 1992, Pepe was promoted to Senior District Sales Manager. See id. at ¶ 4. The Senior District Sales Manager position involved "supervising a [D]istrict [S]ales [M]anager, selling Rival's products, increasing the number of customers and sales volume in the territory, implementing pricing and advertising programs that were approved by senior management, controlling and administering the advertising budget," communicating with the home office and maintaining good customer relations for Rival in the New York Territory. Id. at ¶ 5.

4. Performance at Rival

During the first eight years of his tenure at Rival, Pepe was supervised and reviewed by Karl Zehner ("Zehner"). See Plaintiff's Rule 56.1 Statement at ¶ 14. Zenner testified that he received "a lot of feedback" from Pepe and probably spoke to him every day. Zehner Dep. at 36. Zehner also testified that Pepe expanded both the volume of sales and the customer base of the New York Territory. See Zehner Dep. at 32; see also Pepe Cert. ¶ 8.

Pepe attained eighty-five percent of his sales quota in 1996 and received a $12,500.00

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bonus. See Jacob Supplemental Cert., Exhibit A (the "1996 Bonus Review"); Pepe Dep. at 321. Pursuant to the 1996 Bonus Review, Pepe received the "Threshold" bonus for team work, the "Target" bonus for placement and profitability, and the maximum bonus...

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26 practice notes
  • 164 F.Supp.2d 203 (D.Mass. 2001), 00-CV-11050, Linkco, Inc. v. Nichimen Corp.
    • United States
    • Federal Cases United States District Courts 1st Circuit District of Massachusetts
    • 17 Septiembre 2001
    ...claims (particularly the employment contract and fiduciary duty claims) will be governed by Japanese law. See, e.g., Pepe v. Rival Co., 85 F.Supp.2d 349, 381 (D.N.J.1999) (applying law of the state where employee was located and performed job duties, rather than law of state where employer ......
  • 164 F.Supp.2d 203 (D.Mass. 2001), 00-CV-11050, Linkco, Inc. v. Nichimen Corp.
    • United States
    • Federal Cases United States District Courts 1st Circuit District of Massachusetts
    • 17 Septiembre 2001
    ...claims (particularly the employment contract and fiduciary duty claims) will be governed by Japanese law. See, e.g., Pepe v. Rival Co., 85 F.Supp.2d 349, 381 (D.N.J.1999) (applying law of the state where employee was located and performed job duties, rather than law of state where employer ......
  • Nissan World, LLC v. Market Scan Information Systems, Inc., 060507 NJDC, 05-02839-JAG
    • United States
    • Federal Cases United States District Courts 3th Circuit District of New Jersey
    • 5 Junio 2007
    ...296, 331 n. 21 (3d Cir. 2001); Schunkewitz v. Prudential Securities Inc. , 99 Fed.Appx. 353, 355 (3d Cir. 2004); Pepe v. Rival Co. , 85 F.Supp.2d 349, 382 (D.N.J. 1999) ("New Jersey courts tend to enforce [choice of law] provisions in contracts provided the public policies of New Jerse......
  • Berrodin v. Medical Components, Inc., 100704 PAEDC, 03-5572
    • United States
    • Federal Cases United States District Courts 3th Circuit Eastern District of Pennsylvania
    • 7 Octubre 2004
    ...plaintiff's employment duties and responsibilities were performed in New Jersey, the court applied New Jersey law. Pepe v. Rival Corp. , 85 F.Supp.2d 349 (D.N.J. 1999), aff'd 254 F.3d 1078 (3d Cir. [31] Shamley , 869 F.2d at 172. [32] Abbamont , 650 A.2d at 971. [33] Although the parties di......
  • Request a trial to view additional results
26 cases
  • 164 F.Supp.2d 203 (D.Mass. 2001), 00-CV-11050, Linkco, Inc. v. Nichimen Corp.
    • United States
    • Federal Cases United States District Courts 1st Circuit District of Massachusetts
    • 17 Septiembre 2001
    ...claims (particularly the employment contract and fiduciary duty claims) will be governed by Japanese law. See, e.g., Pepe v. Rival Co., 85 F.Supp.2d 349, 381 (D.N.J.1999) (applying law of the state where employee was located and performed job duties, rather than law of state where employer ......
  • 164 F.Supp.2d 203 (D.Mass. 2001), 00-CV-11050, Linkco, Inc. v. Nichimen Corp.
    • United States
    • Federal Cases United States District Courts 1st Circuit District of Massachusetts
    • 17 Septiembre 2001
    ...claims (particularly the employment contract and fiduciary duty claims) will be governed by Japanese law. See, e.g., Pepe v. Rival Co., 85 F.Supp.2d 349, 381 (D.N.J.1999) (applying law of the state where employee was located and performed job duties, rather than law of state where employer ......
  • Nissan World, LLC v. Market Scan Information Systems, Inc., 060507 NJDC, 05-02839-JAG
    • United States
    • Federal Cases United States District Courts 3th Circuit District of New Jersey
    • 5 Junio 2007
    ...296, 331 n. 21 (3d Cir. 2001); Schunkewitz v. Prudential Securities Inc. , 99 Fed.Appx. 353, 355 (3d Cir. 2004); Pepe v. Rival Co. , 85 F.Supp.2d 349, 382 (D.N.J. 1999) ("New Jersey courts tend to enforce [choice of law] provisions in contracts provided the public policies of New Jerse......
  • Berrodin v. Medical Components, Inc., 100704 PAEDC, 03-5572
    • United States
    • Federal Cases United States District Courts 3th Circuit Eastern District of Pennsylvania
    • 7 Octubre 2004
    ...plaintiff's employment duties and responsibilities were performed in New Jersey, the court applied New Jersey law. Pepe v. Rival Corp. , 85 F.Supp.2d 349 (D.N.J. 1999), aff'd 254 F.3d 1078 (3d Cir. [31] Shamley , 869 F.2d at 172. [32] Abbamont , 650 A.2d at 971. [33] Although the parties di......
  • Request a trial to view additional results