Fregara v. Jet Aviation Business Jets

• Decision Date: 28 May 1991
• Docket Number: Civ. A. No. 89-3788.
• Citation: 764 F. Supp. 940
• Parties: Ronald FREGARA, Plaintiff, v. JET AVIATION BUSINESS JETS and Agents Richard Kunert and Edward Baillif, Defendants.
• Court: U.S. District Court — District of New Jersey

764 F. Supp. 940

Ronald FREGARA, Plaintiff, v. JET AVIATION BUSINESS JETS and Agents Richard Kunert and Edward Baillif, Defendants.

Civ. A. No. 89-3788.

United States District Court, D. New Jersey.

May 28, 1991.

COPYRIGHT MATERIAL OMITTED

William F. Koy, Ullman, Holtzman & Koy, Morristown, N.J., for plaintiff.

Stanley L. Goodman, Grotta, Glassman & Hoffman, P.A., Roseland, N.J., for defendants.

OPINION AND ORDER

POLITAN, District Judge.

This matter comes before the court on defendants' motion for the entry of summary judgment dismissing all seven counts of plaintiff's complaint. I heard oral argument on February 25, 1991 and reserved decision. For the reasons outlined herein, defendants' motion is GRANTED.

Plaintiff, Ronald Fregara ("Fregara"), instituted this action by filing a seven count complaint on September 8, 1989. Fregara alleges in the first through fourth counts that Jet Aviation Business Jets, Inc. ("Jet") and its agents Richard Kunert and Edward Baillif ("plaintiff's former supervisors") breached oral and written contracts of employment, including an oral contract for lifetime employment, when Fregara's employment as an aircraft maintenance coordinator was terminated by Jet on or about August 29, 1988.

In his fifth count, Fregara contends that defendants negligently discharged him by breaching a "covenant of good faith and fair dealing". In his sixth count, Fregara alleges that the individual defendants Kunert and Baillif "acting as individuals for their own purposes, entered into a conspiracy" to harass, threaten and ultimately discharge him. Finally, in his seventh count, Fregara maintains that the defendants intentionally inflicted emotional distress upon him.

Jet is engaged in the business of managing corporate aircraft, including supplying flight and administrative personnel, as was its predecessor, Executive Air Fleet ("EAF"). EAF hired Fregara on or about November 21, 1981 as a maintenance coordinator. Fregara was responsible for the maintenance, record keeping and budgets for a group of aircraft managed by EAF. The actual hands-on maintenance of the aircraft was largely performed by contractors, under Fregara's guidance and direction. Fregara was one of approximately ten maintenance coordinators employed by EAF.

Fregara alleges that he was employed pursuant to an "oral contract". He maintains that the contract was established by the oral representations of management for a career opportunity and continuous employment. Fregara also testified at his deposition that he was given an employee handbook when he was hired in November of 1981. (See Fregara deposition I at p. 24).¹ Defendant EAF apparently published and distributed an employee handbook to all new employees, including the plaintiff. Plaintiff contends that the handbook outlined EAF's personnel policies, including its policy of terminating employees "for just cause only". In sum, plaintiff maintains that the employee handbook/manual forms the basis of a contract of employment. Plaintiff also argues that the employee handbook established company policies and practices concerning employment and career expectations as well as the covenant of good faith and fair dealing.² Defendant asserts that the company handbook was rescinded by Executive Air Fleet late in 1983. (See Cash deposition at pp. 126-127). Roberta A. Cash, Jet's Vice President of Human Resources, testified that, after EAF withdrew the handbook, it was no longer distributed to newly hired employees. (Cash deposition at p. 129). Thus, defendant contends that from 1983 until the termination of plaintiff's employment in August 1988, there was no handbook or written company policy addressing the issue of job security. (Cash deposition at pp. 126-130). Plaintiff disputes whether the company handbook was ever "officially rescinded" by EAF in 1983. In support of this contention, plaintiff emphasizes the fact that defendant never produced a disclaimer or notice evidencing that the handbook was rescinded by the company. Fregara contends that the "rescinding memo" could not be located because one was never issued.

In early 1986, there was a reorganization of the maintenance department at EAF. Richard Kunert became manager of base maintenance and Ed Baillif, who had been a maintenance coordinator, was promoted to senior coordinator and acted as Fregara's direct supervisor. On March 13, 1987, Kunert gave Fregara a "letter of counselling" detailing several performance problems which Kunert and Baillif observed in his work. Fregara acknowledged these problems at his deposition:

Q. ... before you received this document, had you discussed any of the matters that are described in the document with either Rich Kunert or Ed Baillif?

A. No. The only thing we might have discussed was the insubordination action towards supervisors. The other things speak for themselves, call out different incidents which I agree happened, more or less incidents that happened, but I think it was generated mainly by the last item. (Plaintiff's deposition I at p. 49).

As a result of the incidents detailed in the March 13, 1987 letter of counselling, Fregara was suspended for a day with pay and was enrolled in a two month program of supervisory counselling in an effort to improve his performance. Fregara acknowledged this counselling program by countersigning a memorandum. (See Exhibit 6 of plaintiff's deposition transcript). Defendant contends that, notwithstanding this counselling program, plaintiff's performance continued to decline.

On June 30, 1987, Fregara allegedly violated company policies and FAA regulations by releasing an aircraft for flight notwithstanding an eliminated warning light. A document entitled Minimum Equipment List ("MEL") exists for each type of aircraft. The MEL which is filed with FAA, lists all of the items which may be inoperable on an aircraft without requiring that the aircraft be grounded for repairs. (Plaintiff's deposition I at p. 68).³ Although Fregara concedes that the warning light is not listed on the aircraft's MEL, Fregara nonetheless released the aircraft for flight. (Plaintiff's deposition I at pp. 68-69). Subsequently, the flight was stopped in mid-take-off by Kunert, who directed Fregara to determine and repair the problem. (Plaintiff's deposition I at pp. 61-62). As a result of this incident, Fregara was given a three day suspension without pay and was placed on another six months probation. This probationary period also involved additional supervisory counselling. (Plaintiff's deposition I at p. 64).

Defendant contends that, on December 31, 1987, Fregara allowed an uninsured pilot, who was inspecting an aircraft for a prospective purchaser, to taxi the aircraft. Fregara was apparently reprimanded for this violation of company rules and warning letter was placed in his file.

In May 1988, Fregara received his evaluation for the period of November 1986 to November 1987. In previous years, Fregara had received his evaluations soon after the end of the period under evaluation. On this occasion, Fregara asked for and was given an "addendum" which evaluated his performance from November 1987 until the delivery of the evaluation.

Both the evaluation and the addendum reflected management's poor opinion of Fregara's performance. Notwithstanding the prior warnings and disciplinary actions, Fregara testified that he was surprised that EAF felt he was performing poorly. (Plaintiff's deposition I at p. 91). Fregara discussed his poor evaluation with several management officials but they refused to change the evaluation.⁴

Fregara's 1988 evaluation, prepared by Kunert, concluded with the following comments:

Therefore, in light of your last year's performance, I must inform you that you are on a six month performance evaluation commencing 5/19/88. Every thirty days there will be a review of your performance by your supervisor and myself. A written record of these reviews will be compiled. If during this review period your actions in any way jeopardize the safety and/or the business integrity of the EAF/client relationship, you will be subject to immediate termination.

Fregara's employment with EAF was finally terminated on August 29, 1988. Fregara was discharged in part because he refused to sign (i.e., to acknowledge receipt of) a memorandum dated July 27, 1988 which reflected the topics discussed at the second of the six counselling sessions established in the 1988 evaluation. (Plaintiff's deposition I at p. 110). Fregara stated at his deposition that, when Kunert asked him to sign the memo, he refused and the ensuing discussion "got pretty loud ...". (Plaintiff's deposition I at p. 113).

During this same time period, Kunert also learned that at a recent aircraft inspection, Fregara had "signed off" on several items (i.e., certified the flight worthiness of the aircraft) when the inspecting mechanic had determined that repairs were necessary. Fregara allegedly violated company policy by "signing off" on these items without either having the repair done or documenting the reasons why he believed the repair was not necessary. (Plaintiff's deposition I at pp. 125-126; Exhibit 15 thereto).

Defendant alleges that plaintiff's continued failure to properly perform his duties, together with his refusal to acknowledge the poor level of his performance and his failure to benefit from counselling, led to its decision to discharge the plaintiff. On August 29, 1988, Charlie Beaton, the Director of Maintenance, terminated plaintiff's employment. The termination letter given to Fregara provides, in pertinent part:

Over the eighteen months your supervisor and your manager have evaluated your performance as insufficient to meet the requirements of a maintenance coordinator. They have worked closely with you monitoring your performance; attempting repeatedly to bring your performance up to an acceptable level. However, it has become apparent that you have not put forth the effort

...