O'Sullivan v. Mallon

• Decision Date: 26 June 1978
• Citation: 160 N.J.Super. 416,390 A.2d 149
• Parties: , 115 L.R.R.M. (BNA) 5064 Frances E. O'SULLIVAN, Plaintiff, v. Dr. James MALLON, Joseph Mozaffari, and Washington Memorial Hospital, Defendants.
• Court: New Jersey Superior Court

Page 416

160 N.J.Super. 416

390 A.2d 149, 115 L.R.R.M. (BNA) 5064

Frances E. O'SULLIVAN, Plaintiff, v. Dr. James MALLON, Joseph Mozaffari, and Washington Memorial

Hospital, Defendants.

Superior Court of New Jersey, Law Division.

June 26, 1978.

John R. Futey, Bordentown, for plaintiff (Kessler, Tutek & Gottlieb, Bordentown, attorneys).

Gary J. Lesneski, Haddonfield, for defendants (Archer, Greiner & Read, Haddonfield, attorneys).

ROSSETTI, J. C. C. (temporarily assigned).

Plaintiff has instituted suit for breach of an employment contract. This is defendants' motion to dismiss plaintiff's complaint for failure to state a cause of action. Plaintiff was employed by defendants as an x-ray technician until her discharge in March 1976. She alleges that her discharge resulted from her refusals to perform catheterizations. Plaintiff alleges that she was ordered to perform catheterizations and that she refused on the basis that she was not properly trained to perform such a procedure and that it was legally permissible for such a procedure to be performed only by a licensed nurse or physician. Subsequent to her discharge, the New Jersey Board of Medical Examiners concluded that such an act performed by her would be in violation of the Medical Practice Act. In August 1976, the State Board of Nursing issued a cease and desist order to these defendants forbidding the performance of catheterizations by persons not licensed as nurses.

Defendants' motion raises a novel issue concerning the right of an employer to discharge an employee who refuses to perform an illegal act.

The law in this State concerning the authority of an employer to discharge with or without cause in the absence of contractual or statutory restrictions, would appear to be quite clear. Schlenk v. Lehigh Valley Railroad Co., 1 N.J. 131, 135, 62 A.2d 380 (1948); Hindle v. Morrison Steel Co., 92 N.J.Super. 75, 81, 223 A.2d 193 (1966); English v. College of Medicine and Dentistry of N. J., 73 N.J. 20, 23, 372 A.2d 295 (1977). The issue in this case may be distinct from those cases, which recognized that an employer may discharge an employee with or without cause. Id.

The Supreme Court of New Hampshire has recently held that the "termination by the employer of a contract of employment at will which is motivated by bad faith or malice or based on retaliation is not the best interest of the economic system or the public good and constitutes a breach of the employment contract". Monge v. Beebe Rubber Co., 114 N.H. 130, 316 A.2d 549, 551 (1974).

A California case involving an employee who refused to commit perjury at the direction of his employer is more akin to the matter before this court. In Petermann v. International Brotherhood of Teamsters, 174 Cal.App.2d 184, 344 P.2d 25, 27 (D.Ct.App.1959), the court stated:

The public policy of this state as reflected in the penal code sections referred to above would be seriously impaired if it were to be held that one could be discharged by reason of his refusal to commit perjury. To hold that one's continued employment could be made contingent upon his commission of a felonious act at the instance of his employer would be to encourage criminal conduct upon the part of both the employee and employer and would serve to contaminate the honest administration of public affairs. This is patently contrary to the public welfare....