Schwartz v. Leasametric, Inc.

• Decision Date: 23 March 1988
• Citation: 539 A.2d 744,224 N.J.Super. 21
• Parties: Neil SCHWARTZ, Plaintiff-Appellant, v. LEASAMETRIC, INC., a corporation of the State of California, and James Brown, Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 21

224 N.J.Super. 21

539 A.2d 744

Neil SCHWARTZ, Plaintiff-Appellant, v. LEASAMETRIC, INC., a corporation of the State of California, and James Brown, Defendants-Respondents.

Superior Court of New Jersey,

Appellate Division.

Submitted March 1, 1988.

Decided March 23, 1988.

Vaccaro, Osborne, Curran & Murphy, Paramus, for plaintiff-appellant (Katherine G. Houghton, on the brief).

Beattie, Padovano, Breslin, Dunn & Kafafian, Montvale, for defendants-respondents (Roger W. Breslin, Jr., of counsel and on the brief).

Before Judges SHEBELL, GAYNOR and ARNOLD M. STEIN.

The opinion of the court was delivered by

SHEBELL, J.A.D.

Plaintiff Neil Schwartz appeals the dismissal on summary judgment of his suit against defendants Leasametric, Inc. and James Brown for wrongful termination and slander. We affirm the dismissal of his slander claims but reverse the summary judgment entered on his wrongful termination claims.

The first and fourth counts of plaintiff's complaint alleged that Brown, an agent of Leasametric, slandered plaintiff. Plaintiff alleged that Brown spoke to him "in [such] a manner as to embarrass and harass the plaintiff in front of his fellow workers" and "to give the impression that the plaintiff was dishonest and not trustworthy." Plaintiff alleged that these remarks "injured his good name, character and reputation, and brought [him] into public scandal, infamy and disgrace." In count two, plaintiff alleged that Leasametric "had a set procedure for informing employees of problems existing in their employment, and had a set procedure for termination," and that this procedure was not followed in his case. In the third count, plaintiff alleged that he was entitled to the return from Leasametric of his company car ("a new General Motors Monte Carlo") or damages equal to its value, "due to the fact that this was part of his compensation which he was offered in his employment with defendant corporation." The fifth count repeated the wrongful termination allegation from count two and demanded damages from Brown.

Brown and Leasametric contend that plaintiff's employment was terminated for insubordination to a supervisor and defend on the following grounds: (1) as an employee at will, plaintiff's employment was subject to termination at any time with or without cause; (2) the termination did not violate any expressed public policy, and (3) plaintiff's insubordinate conduct toward a supervisor constituted just cause for termination.

The facts, viewed most favorably to plaintiff, are as follows. By letter dated January 12, 1981, Leasametric offered plaintiff the position of "Senior Account Representative, Test Instruments." Plaintiff was to receive salary, quarterly performance bonuses and a company car. The letter also stated that he would be given "an employees and benefits handbook."

Leasametric's policy manual provided the following three-step procedure for disciplining poor job performance or minor acts of misconduct which applied to all employees A. Normal Disciplinary Procedures

The progressive disciplinary procedure is used to correct poor job performance or minor acts of misconduct. The procedure has three phases, for which a date must be set for the correction of each problem. They are as follows:

Phase 1--Verbal Counseling Session, with memo to file.

Phase 2--Second Counseling Session, with memo to file.

Phase 3--Recommendation for termination through your Department Manager and Personnel Manager.

The manual further indicated that certain acts were grounds for immediate termination:

The company would like to foster an environment which is professional, cooperative, kind, and friendly, therefore, even relatively minor misconduct which detracts from this atmosphere, may be grounds for immediate termination. Depending upon the severity of the act of misconduct, employees may be subject to discipline or immediate termination ... due to:

....

Insubordination

....

This is not exhaustive. Supervisors should exercise their discretion in deciding to recommend discipline for other types of employee misconduct.

The manual also indicated that disciplinary procedures could be accelerated, and that "[s]evere situations may require immediate termination or acceleration." In these severe situations, the manager was instructed to "contact the Personnel Manager to determine appropriate action."

Plaintiff started working for Leasametric in January 1981. His first immediate supervisor gave him a positive evaluation. After his first supervisor left the company, a second supervisor of three or four months also gave plaintiff a positive evaluation on December 11, 1981. Defendant Brown took over as sales manager in late January 1982.

Plaintiff testified that from January up until June 1982, he had "[n]o difficulty" with Brown, and plaintiff did not detect any "hostility" or "bad feeling[s]." On about June 18, 1982, plaintiff detected a change in Brown's attitude which emanated "from a policy that was construed to mean let's get rid of anybody who's making any kind of money in this company one way or another." Leasametric allegedly was firing first those employees making the most money, and plaintiff was next in line. Plaintiff testified that the following discussion alerted him to Brown's change in attitude:

He just called me in as we were walking by the hall. Nothing led up to it.... He came over to me in front of Ed Elber's office and said if you would like to leave the company, I will give you a letter of recommendation and I said to him, "Jim, I don't know what you're talking about." And his answer was ... "Don't worry about it."

In answers to interrogatories, plaintiff indicated Brown also told him that "we don't need people like you around here."

On the morning of June 25, Brown asked plaintiff for an accident report concerning an auto accident plaintiff was involved in during the prior December. Plaintiff responded, "Jim, the accident report was submitted in December of '81." Brown persisted in a tone characterized by plaintiff as "[i]nsolent, aggressive, arbitrary [and] loud." Brown looked through plaintiff's desk drawers, and later another employee asked plaintiff for his car keys so Brown could look through the trunk. Thereafter, Brown told plaintiff that they had lost his keys. Several Leasametric employees went through plaintiff's car looking for his keys. Plaintiff asserted:

I went back outside and they were still searching in the trunk and turning and toppling things over and destroying and mixing up the boxes and all my records and the catalogs and everything else was turned over topsy-turvy and moved around with a wire hanger and everything was disheveled and practically was thrown every which way on the premise that the keys were in there, and then about 20 minutes later Jim Brown walks out with the keys in his hand.

These events occurred in front of several Leasametric employees.

On June 28, plaintiff was paged at about 9:15 a.m. while servicing one of his accounts in Fort Monmouth. He called the Allendale office, and Brown told him to "[g]et up here right away." "Angry" and "furious," Brown approached plaintiff when he arrived, and demanded to see plaintiff's accident report kit. When plaintiff responded that he did not have a report kit, Brown "became real abusive towards me and said 'open up your drawer,' and rummaged through the desk, and this was in front of everybody. It was quite embarrassing."

When Brown could not find the kit in plaintiff's desk, his next statement was:

"Get your keys. Get your car opened. I want to look through your truck," and that was loud. He yelled that out again. And at that time I said, "What is going on here? What are you trying to do? You're provoking me." He said, "I don't care. You just get those keys, open that trunk. I want to look in your trunk."

When Brown could not find the kit, he went to the phone and called the personnel manager who instructed Brown to issue plaintiff a warning letter for not properly filling out an accident report. Brown returned and again yelled at plaintiff. Plaintiff thereafter stated: "I'm going to leave now and it looks like you're provoking me." Brown asked plaintiff if he was quitting. Plaintiff responded that he was not quitting, but that he was going to see a lawyer.

On the evening of June 28, the personnel manager notified a vice-president of the altercation and asked him to investigate it. The vice-president telephoned plaintiff, and plaintiff agreed to meet him the next day at the Allendale office. Plaintiff never attended the meeting due to difficulty with his neck and back, and did not reschedule it. After investigating the incident, the vice-president recommended that plaintiff be fired. On June 30, plaintiff received a mailgram from the vice-president indicating that he was fired for insubordination. Plaintiff spoke with the company president several times afterwards, but to no avail. Upon being terminated, plaintiff had to return his company car.

Plaintiff contends that the trial court erred in granting summary judgment on the slander counts, because "Brown's loud, abusive and arrogant tone of voice, coupled with his insistence upon searching through plaintiff's desk, personal belongings and company car" fairly indicated "that Brown unjustifiably accused plaintiff of lying and ridiculed and embarrassed plaintiff" in front of his co-workers. Defendants deny that the words were defamatory in nature and also claim that they were protected by a qualified privilege.

In granting defendants' summary judgment motion, the motion judge reasoned

that the alleged defamatory statements, when viewed in context, do not rise to the level of an assertion or implication of a statement of fact injurious to plaintiff's reputation. The Court further finds that the alleged defamatory statements were, in any case, subject to a qualified privilege since they were made by defendant Brown in the course of and...