Gilbert v. Durand Glass Mfg. Co., Inc.

• Decision Date: 17 July 1992
• Citation: 258 N.J.Super. 320,609 A.2d 517
• Parties: , 7 IER Cases 1210 Theresa Ann GILBERT, Plaintiff-Respondent, v. DURAND GLASS MANUFACTURING COMPANY, INC., a corporation of the State of New Jersey, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 320

258 N.J.Super. 320

609 A.2d 517, 7 IER Cases 1210

Theresa Ann GILBERT, Plaintiff-Respondent, v. DURAND GLASS MANUFACTURING COMPANY, INC., a corporation of the State of New Jersey, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Argued June 9, 1992.

Decided July 17, 1992.

Michael F. Kraemer, Philadelphia, Pa., for defendant-appellant (White & Williams, attorneys; Michael F. Kraemer on the brief).

Harry Furman, Vineland, for plaintiff-respondent Eisenstat, Gabage & Berman, attorneys; Harry Furman on the brief.

Before Judges O'BRIEN, HAVEY and BRAITHWAITE.

The opinion of the court was delivered by

HAVEY, J.A.D.

In this employment wrongful discharge action, defendant Durand Glass Manufacturing Company, Inc. (Durand) appeals from a $150,000 judgment entered on a jury verdict in favor of plaintiff. Durand also challenges the award to plaintiff of prejudgment interest in the amount of $31,633.04. The gravamen of plaintiff's complaint was that Durand had terminated her in violation of its oral policy to give employees a verbal and successive written warnings before termination. Durand argues that plaintiff, an at-will employee, failed as a matter of law to establish a prima facie case of wrongful discharge because: (1) the Woolley ¹ doctrine applies only to a written company policy concerning termination of employment, and not to verbal policies, and (2) plaintiff failed to prove by convincing evidence that a clear and definite oral promise, conveyed to her was made by Durand not to terminate her without warning. Durand also contends that the trial judge erred in awarding prejudgment interest. We affirm the judgment, but reverse the prejudgment interest award.

Plaintiff began working for Durand in August 1982 as a glassware quality inspector. Her responsibilities involved inspecting the glass work as it came from the "hot end" to the "cold end" of the plant. It is undisputed that during her employment there was no written policy regarding warning notices prior to termination. For example, Durand's written "Rules of Conduct" did not establish a warning procedure. However, plaintiff testified that she was privy to many conversations during her employment in her foreman's office whereby employees would be told "[t]his is your first warning, this is your second warning." She also stated that her supervisor, John Johns, told her that the only cause for "immediate discharge" was insubordination.

Moreover, Ronald Lipscomb, a cold-end supervisor, testified that sometime in 1982 the cold-end supervisors met to discuss problems concerning absenteeism. A policy was subsequently implemented whereby offending employees would receive an initial verbal warning and three successive written warnings. The procedure was to be utilized in the cold end, but Lipscomb was under the impression that "eventually it would be on a plant-wide basis." He also stated that the policy was extended to other infractions besides absenteeism. Although the policy was finalized, the final step of discharge was "not carved in stone" in that discharge was left to the discretion of the department head and supervisor involved. Lipscomb also explained that there were exceptions to the warning procedure. People who were newly hired who did not work out, employees who were insubordinate or possessed firearms or engaged in drinking alcoholic beverages could be terminated without the requisite warning. Lipscomb was of the belief that he was otherwise not authorized to discharge an employee without adhering to the warning policy. The warning notice form devised at the meeting was revised by the personnel office and the forms were distributed by it to supervisors who requested them.

Joanne Simpkins, who worked for Durand for eight years, also testified that sometime in 1983 all employees in her crew were advised by their foreman of the warning policy. According to Simpkins, plaintiff was the only person she knew who was discharged without receiving any warning. Edward Dzierwinski, a shift supervisor, corroborated the existence of a "write-up system" which started in early 1983. The purpose of the "system" was to warn employees about wrongdoing so they could correct it. He and other supervisors used the warning notices, but he acknowledged it was possible that some supervisors did not.

Plaintiff submitted personnel records memorializing 18 different instances in which the formal warning procedure was utilized between 1983 and 1988 for a variety of offenses in different departments, including damage to equipment, failing to wear safety glasses, absenteeism, poor job performance, irresponsible behavior, improper labeling and smoking.

Joyce Marshall, assistant to the personnel director, testified that she knew of no written policy regarding warning notices for discipline. However, she admitted that Durand's personnel files contained "quite a few" warnings, both verbal and written. She stated that a "large number" of management personnel utilized the warning system. In 1987, Marshall wrote a letter to an employee explaining this procedure. She also gave an example of an unemployment compensation form on which she indicated that a terminated employee was "on the final written warning." Another unemployment form, declining benefits, noted that the applicant "had one verbal and two written warnings" prior to discharge.

Martin Bush, the personnel director, also admitted to the existence of the warning policy. In 1983, he wrote a letter to a company manager regarding the poor attendance of two employees. Bush stated that one should be given a written notice, to be followed by a final written warning; the other should be given a verbal warning, confirmed in writing. On another occasion, Bush wrote a "second and final warning" to an employee regarding excessive absenteeism. The warning system was also used in plaintiff's department, quality control. An inspector had failed to notice defective labels. Lipscomb testified that he recommended disciplinary action be taken against the inspector, and he and Johns co-signed the written warning form.

Plaintiff testified that her supervisor praised her work. Johns admitted that plaintiff was a dependable and conscientious employee, and acknowledged telling plaintiff on several occasions that her job was secure. However, according to Johns, plaintiff was antagonistic, argumentative and disruptive. Plaintiff explained that in March 1987, approximately one week before she was terminated, her entire crew was having a problem with their supervisor, Lipscomb. Lipscomb acknowledged the problem and stated that he told the department head he "wanted [plaintiff] off my shift."

Plaintiff was terminated on March 23, 1987. She asked Johns and Bush why she was being fired and stated "I've done nothing wrong. I've never been warned. I've never been written-up. I've never been nothing. Why are you firing me?" Bush responded, "Nobody in here likes you and nobody wants to work with you." It is undisputed that plaintiff never received any warning, written or oral, prior to her termination.

Plaintiff's complaint charged, inter alia, that Durand had "commenced a policy of responding to alleged violations" of its "Rules of Conduct" through a system of warnings leading to discharge. She asserted that Durand nevertheless terminated her in violation of this policy, with no verbal or written warnings being given. She claimed that Durand "breached implied and express contracts" with her and sought damages for lost earnings as well as humiliation, mental and physical suffering.

At the close of plaintiff's proofs, Durand moved to dismiss the complaint, arguing that plaintiff had failed to demonstrate there was a generally applicable and consistently applied policy that Durand would not terminate an employee prior to giving verbal and written warnings. It also asserted plaintiff failed to establish that she was told of the existence of any such policy. In denying the motion, the trial judge determined that the existence of such a policy, whether it was consistently applied and whether plaintiff had a right to expect that any such policy would apply to her were jury questions. The jury reached the unanimous verdict in favor of plaintiff and awarded her $150,000 compensatory damages for lost wages. In the final judgment, the trial judge added $31,633.04 prejudgment interest.

In Woolley v. Hoffmann-La Roche, 99 N.J. 284, 285-86, 491 A.2d 1257, modified, 101 N.J. 10, 499 A.2d 515 (1985), our Supreme Court held that absent a clear and prominent disclaimer, an implied promise contained in a company personnel manual that an employee will be terminated only for cause may be enforceable against the employer even if the employment is of an indefinite duration and may be terminated at will. It found that when an employer circulates a manual that provides for job security provisions, the judiciary, "instead of 'grudgingly' conceding the enforceability of those provisions, ... should construe them in accordance with the reasonable expectations of the employees." Id. at 297-98, 491 A.2d 1257 (quoting Savarese v. Pyrene Mfg. Co., 9 N.J. 595, 601, 89 A.2d 237 (1952)). Because job security is a fundamental protection for workers, the Court noted that "[i]f such a commitment is indeed made, obviously an employer should be required to honor it." Woolley, 99 N.J. at 297, 491 A.2d 1257. Further, it observed that "[o]ur courts will not allow an employer to offer attractive inducements and benefits to the workforce and then withdraw them when it chooses, no matter how sincere its belief that they are not enforceable." Id. at 300, 491 A.2d 1257.

In determining the "reasonable expectations" of the plaintiff in Woolley, the Court emphasized that he had been employed without any individual contract, and thus once he was given the employment manual which represented that he would not be fired without cause, it was "almost...