Mardini v. Viking Freight, Inc.

• Decision Date: 02 December 1999
• Docket Number: No. Civ.A. 99-3488 JWB.,Civ.A. 99-3488 JWB.
• Citation: 92 F.Supp.2d 378
• Parties: Susan MARDINI, Plaintiff, v. VIKING FREIGHT, INC., a California Corporation, registered to do business in the State of New Jersey; and Thomas Borg, individually, Defendants.
• Court: U.S. District Court — District of New Jersey

92 F.Supp.2d 378

Susan MARDINI, Plaintiff, v. VIKING FREIGHT, INC., a California Corporation, registered to do business in the State of New Jersey; and Thomas Borg, individually, Defendants.

No. Civ.A. 99-3488 JWB.

United States District Court, D. New Jersey.

December 2, 1999.

Anthony N. Verni, West Orange, NJ, for plaintiff.

DeCotiis, Fitzpatrick & Gluck, by Susan Volkert, Teaneck, NJ, for defendant Viking Freight, Inc.

OPINION

BISSELL, District Judge.

Plaintiff, Susan Mardini, filed the Complaint in this matter in the Superior Court of New Jersey on May 27, 1999 against defendant Viking Freight, Inc. ("Viking") and Thomas Borg.¹ Viking removed the matter to this Court on July 23, 1999, based upon diversity jurisdiction. The motion before this Court is a motion to dismiss six of the seven counts alleged in the Complaint. Plaintiff has alleged a violation of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq. ("LAD"). Defendant's motion to dismiss does not include the plaintiff's LAD claim. The six claims at issue here include a breach of an employment contract, a breach of the implied covenant of good faith and fair dealing contained within the employment contract, a common law wrongful discharge claim, intentional infliction of emotional distress, fraud, and negligent supervision of employees. This Court has jurisdiction pursuant to 28 U.S.C. § 1332.

FACTS

Ms. Mardini was hired by Viking on November 12, 1992 to handle the accounts of Viking's recent acquisitions, regional trucking carriers Coles Express, Inc. ("Coles") and Spartan Express, Inc. ("Spartan"). (Compl. at 2). Plaintiff was discharged on February 10, 1999. (Id. at 13).

Plaintiff claims that Viking instituted and enacted policies and practices of unlawful and systematic exclusion of and discrimination of the plaintiff. (Id. at 4). Plaintiff claims that Viking: (a) hired plaintiff at a lower rank and pay than male employees; (b) failed to give plaintiff comparable raises; (c) failed to promote plaintiff at the same rate as comparably qualified males; (d) paid plaintiff lower wages than comparable male employees; (e) failed to equalize conditions of employment for plaintiff, with respect to the quality and quantity of accounts; (f) provided plaintiff with either poor performing accounts or accounts which had terminated their relationship with Viking, while allowing Ms. Mardini's male counterparts access to the prime accounts; (g) took accounts from Ms. Mardini to accommodate male employees, but did not do the same for the plaintiff; (h) adopted unreasonable standards of employment and advancement designed to discriminate in favor of men; and (I) unlawfully terminated plaintiff in favor of retaining men who were comparably trained and less qualified with less tenure than the plaintiff. (Id. at 4, 5).

In the first count of plaintiff's Complaint, she alleges a cause of action for discrimination. She states that male co-workers were given accounts located in plaintiff's territory which were more convenient to her than to them. (Id. at 6). Plaintiff was given the "left over" accounts and the less desirable accounts to work with, and the preferred accounts were given to male employees. However, plaintiff was successful in her work even though she had to work with the "left over" accounts. (Id.) She was also subject to disparate treatment when Jude Reardon, a male co-worker, was given fifty per cent of plaintiff's accounts. (Id.) Reardon was considered a poor producer and was slated for termination. (Id. at 7). Instead of terminating him, management hired him as a Corporate Accounts Director and he was given half of plaintiff's accounts. (Id.) None of the male Corporate Account Directors suffered any diminution in their account base as plaintiff did. (Id.)

In 1996, two employees left Viking. (Id. at 8). Their accounts were given to Reardon and another male employee and none were given to plaintiff. (Id.) Reardon still had one-half of plaintiff's accounts. (Id.) Plaintiff complained about this disparity but nothing was done to remedy it. (Id.)

Plaintiff requested that her supervisor, Mr. Borg, review the accounts and redistribute them to bring about parity. (Id. at 9). Instead, another employee was let go and his accounts were given to Reardon as well. (Id.) As a result of these actions, Reardon, who had less seniority than plaintiff, was generating sales three times those of plaintiff. (Id.) Plaintiff again requested a redistribution but Borg did not react. (Id. at 10). In February 1998, plaintiff formalized her request for equalization of the accounts in a memo to Borg. (Id.) In June 1998, this topic was discussed at a territory review meeting in Chicago with Borg and Mike Marcum. Plaintiff wrote a memo to Marcum and Marcum indicated that Borg would review the situation. Borg never responded. (Id.)

Plaintiff continued to work hard and increased her revenues substantially by October 1998. However, her review for that year gave her a lower increase in pay than the year before. (Id. at 11). Plaintiff again raised the issue of the accounts at a territory meeting in Chicago on or about December 12, 1998, and prepared a detailed memo for discussion purposes. (Id.) In January 1999, plaintiff was told that she would be given back all of her accounts that had gone to Reardon, with the exception of Barnes and Noble. (Id.) Reardon retained these accounts and they were never transferred back to the plaintiff. (Id. at 12). Plaintiff repeatedly questioned Borg about the accounts, but she was met with indifference, so she contacted Marcum. (Id.) Marcum stated that it was a judgment call by Borg and that Borg was upset over being confronted at the December 12 territory meeting in Chicago. (Id.) Plaintiff was then terminated on February 10, 1999 based on an allegation that she had submitted a false expense report related to a dinner with a client. (Id. at 13).

Plaintiff's second cause of action alleges a breach of contract claim. In support of this claim plaintiff claims that defendants represented to plaintiff, "in various writings, including, but not limited to, personnel policies and procedure manuals, retirement and profit-sharing plan and employee guidelines, that her employment relationship with Viking, would be based upon good faith, that Plaintiff would be treated fairly and equitably, would be judged on the basis of individual merit and ability, and would receive just compensation for the services rendered to Viking." (Id. at 15). Plaintiff claims that she performed all of her duties in accordance with her employment contract, yet Viking wrongfully discharged her. (Id. at 15-16).

The employment handbook on which plaintiff relies stated that:

The contents of this employee handbook are solely intended to provide guidance and understanding of the benefit plans and policies of Viking Freight System, Inc. These benefits and policies in no way constitute an employee contract. Details and specific information are available in the governing documents. Any questions can be referred to your Supervisor or the Personnel Department.

(Defendant's Exh. B at 70).

Plaintiff's third cause of action alleges a breach of an implied covenant of good faith and fair dealing. (Compl. at 17). This action is based on the employment agreement, which plaintiff claims created a covenant of good faith and fair dealing. The defendant breached this, plaintiff claims, by (a) discriminatorily refusing to judge plaintiff on the basis of merit; (b) refusing to give her equal opportunity for advancement; (c) failing and refusing to reconsider plaintiff's merit and ability for promotion or transfer; (d) failing to give any consideration to plaintiff's long-term record of employment service; (e) terminating plaintiff in favor of retaining less qualified and less experienced male workers. (Id. at 17-18).

The fourth cause of action is a wrongful discharge claim, stating that for the reasons already set forth, plaintiff is entitled to damages for wrongful discharge. (Id. at 19-20). Plaintiff's fifth cause of action is for intentional infliction of emotional distress. The sixth cause of action alleges fraud, deceit and misrepresentation. Plaintiff alleges that the defendants made material misrepresentations of the fact that plaintiff was to be judged upon the basis of merit and ability. (Id. at 22). Finally, the seventh cause of action alleges negligent supervision of employees. Plaintiff claims that the defendants owed a duty to plaintiff to insure that her supervisors treated plaintiff in a fair and equitable manner in order to equalize employment conditions and have plaintiff judged on her merit. (Id. at 24). These duties were delegated to Thomas Borg, who failed to equalize employment conditions. (Id.)

ANALYSIS

I. Standard

Federal Rule of Civil Procedure 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue of law. Neitzke v. Williams, 490 U.S. 319, 326, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989) (citing Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984)); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). In disposing of a motion to dismiss, the court must operate on the assumption that the factual allegations in the complaint or counterclaim are true. Neitzke, 490 U.S. at 326-27, 109 S.Ct. 1827. A motion to dismiss may be granted if the opposing party would not be entitled to relief under any set of facts consistent with the allegations in the complaint or counterclaim. As the Supreme Court stated in Neitzke:

[n]othing in Rule 12(b)(6) confines its sweep to claims of law which are obviously insupportable. On the contrary, if as a matter of law "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations," Hishon, supra at 73, 467 U.S. 69, 104 S.Ct. 2229, 81 L.Ed.2d 59, a claim must be dismissed, without regard to whether it...