MICHAELS v. BJ'S WHOLESALE CLUB, INC.

Filing 56

OPINION. Signed by Judge Kevin McNulty on 6/19/14. (jd, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

CHRISTINE A. MICHAELS,

Civ. No. 2:11-05657 (KM)(MCA)

Plaintiff,
OPINION
V.

BJ’S WHOLESALE CLUB, INC.,
Defendant.

MCNULTY, U.S.D.J.:
This matter comes before the Court upon the motion of the Defendant,
BJ’s Wholesale Club, Inc. (“BJ’s”), for summary judgment. Docket No. 37. The
Plaintiff, Christine A. Michaels, commenced this action on September 29, 2011.
Docket No. 1 (“Compl”). Of the Complaint’s seven original claims, there remain
three: Retaliation in violation of the LAD (Count IV); Breach of contract (Count
VI); and Breach of implied duty of good faith and fair dealing (Count VII).
Compl. ¶J 224—260.’ As to those three claims, I find that there is no genuine,
material issue of fact for trial, and I award summary judgment in favor of the
Defendant.
I.

BACKGROUND

I consider the facts as stated in the Defendant’s Statement of Undisputed
Material Facts (“Def. SUMF”) and Plaintiff’s Responsive Statement of Material
Facts (“P1. RSMF”) pursuant to L. Civ. R. 56.1. I consider as well the deposition
transcripts and documentary exhibits submitted with the parties’ summary
judgment papers. Where the facts are not disputed, I assume them to be true;
pertinent disputes are noted.

By stipulation, four other claims were dismissed with prejudice: violation of the
New Jersey Law Against Discrimination (“LAD”), N.J.S.A. 10:5-1, et seq. (Count I);
hostile work environment in violation of the LAD (Count II); harassment in violation of
the LAD (Count III); and wrongful discharge (Count V).
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A. Plaintiff’s Employment with BJ’s
Michaels completed an application for employment with BJ’s on July 23,
1991. Def. SUMF ¶ 1; Docket No. 37-4, Exhibit A (“Michaels Dep. Tr.”) at 83. It
included an “Applicant Statement,” which stated that “I understand that my
employment is for no definite or fixed period of time and that neither hours of
work, which may be assigned to me at any time, nor any other act or
circumstances shall constitute a guaranty of employment or as to daily or
weekly straight time or overtime working hours, if any.” Def. SUMF ¶ 2;
Michaels Dep. Tr. at 84. Michaels signed the application below this statement.
Docket No. 37-4, Exhibit B (“Employment Application”). At her deposition
Michaels testified that she did not recall signing any contract of employment
with BJ’s. Def. SUMF ¶ 3; Michaels Dep. Tr. at 85:19—21.
BJ’s Wholesale Club hired Michaels as an Assistant Manager in August
1991. Def. SUMF ¶ 4; Michaels Dep. Tr. 83, 86—88. She received several
promotions, including one to General Manager and then to Regional Manager.
As Regional Manager she supervised the operations of several BJ’s Clubs in
north and central New Jersey. Def. SUMF ¶J 5—6; Michaels Dep. Tr. at 87—89.
As Regional Manager, Michaels directly reported to supervisor Frank
Buonvicino. Def. SUMF ¶ 7. When Plaintiff first became Regional Manager,
Thomas Gallagher was Buonvicino’s supervisor; when Gallagher was later
promoted, Cornel Catuna became Buonvicino’s supervisor. Id. ¶ 8—9.
B. BJ’s Member Guide
BJ’s maintains an employee handbook, the Club Team Member Guide,
which is distributed to new employees. Def. SUMF ¶ 11; Docket No. 37-4,
Exhibit E (“Member Guide”). The parties dispute whether Plaintiff first saw a
copy of the Member Guide in the 1990s, or “around 2000.” see Def. SUMF ¶
12; P1. RSMF ¶ 12. It is undisputed, however, that as General and Regional
Manager, Michaels was familiar with the Member Guide and was responsible
for enforcing its policies and procedures. The Guide includes a disclaimer
stating that it does not constitute an employment contract or otherwise modify
the at-will nature of a Team Member’s relationship with BJ’s. Def. SUMF ¶ 14.
The Member Guide sets forth BJ’s “Progressive Disciplinary Policy,”
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which establishes three tiers of violations—Levels I, II, and III. Def. SUMF ¶J
18, 19; Member Guide at D-0878, D-0879, D-0881. Level III infractions may
suppose that the possessive of BJ’s is technically BJ’s’—a hypercorrection that
I will avoid.
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result in immediate termination for the first offense. One of the explicitly
enumerated violations under Level III is “possession, distribution, use, or being
under the influence of illegal drugs or alcohol
on Company property at any
time.” Member Guide at D-0881.
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C. Michaels’ Termination
On September 22, 2009, BJ’s received an anonymous complaint to its
ethics hotline that Michaels and other employees had consumed alcoholic
beverages at BJ’s East Rutherford, New Jersey club. That drinking incident
allegedly occurred in the early morning hours of September 21, 2009, around
the time of a merchandise inventory. Def. SUMF ¶ 29; Docket No 37-5, Exhibit
H (“Ethics Hotline Complaint”).
In accordance with standard procedure upon receiving an ethics hotline
complaint, BJ’s commenced an investigation. The investigation was conducted
by Robin Bombardier and Robert Kirby. Def. SUMF ¶ 30—32. Michaels was
interviewed and she admitted, orally and in writing, that she had consumed
alcohol in the parking lot of the East Rutherford club. IcL ¶ 35. After completing
their investigation, Bombardier and Kirby presented their findings to Gallagher,
Catuna, and Susan Hoffman, BJ’s Senior Vice President of Human Resources.
Id. ¶j 38, 39. Those three decided to terminate Michaels’ employment. Id. ¶ 40.
On September 30, 2009, Buonvicino and Bombardier met with Michaels
to notify her that her employment with BJ’s was terminated, based on the
alcohol incident. Def. SUMF ¶ 49.
Another participant in the drinking incident, Charmine Sealey, was also
fired. Michaels, a Regional Manager, and Sealey, the only member of the Asset
Protection team present, were supervisory personnel responsible for enforcing
company policies. Def. SUMF ¶J 47, 48; Docket No. 37-3, Exhibit F (“Hoffman
Dep. Tr.”) at 63—64. Other, lower-ranking personnel were punished, but less
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severely.
Michaels maintains that her dismissal was pretextual. She says that the
“inventory toast”— drinking on premises to celebrate the completion of a store’s
In her certification, Michaels states that Buonvicino told her that the Loss
Prevention Vice President wanted to fire Sealy, who is African-American, for poor job
performance, but was worried that she might file a discrimination suit. Michaels Cert.
¶ 56. According to BJ’s counsel, Sealy has not filed any claim of discrimination on her
own behalf.
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inventory—was a common practice. She claims that she was not the only
person to be involved in such conduct and did not think it was inappropriate.
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It is undisputed that in August 2008, BJ’s received a complaint that beer
had been consumed at a company barbecue in the parking lot of a BJ’s club in
Paramus, New Jersey. Def. SUMF ¶ 24. (Unlike the inventory toast, this
apparently occurred during regular hours.) That complaint was investigated by
Hicks and Mauro Amato, the Regional Manager for the Paramus club. Id. ¶J 25.
Their investigation confirmed that two supervisory employees had purchased
and supplied the beer, and that on-premises drinking by employees had
occurred. Id. ¶ 26. Pursuant to BJ’s Team Member Guide, both supervisors
were immediately discharged at the conclusion of the investigation. Id. ¶ 27.
(The discipline, if any, applied to lower ranking employees does not appear in
the record.) Michaels does not dispute that she learned of this incident around
the time it occurred, P1. RSMF ¶j 24—28, and therefore knew about it when she
participated in the “inventory toast.”

D. Allegations of Discriminatory Conduct/Protected Activity
Michaels alleges that her supervisor, Cornel Catuna, discriminated
against her. Her allegations center around a conference call in 2008 regarding
the transfer of a BJ’s General Manager, Debbie Vito; certain corporate meetings
at which Catuna was present; and store visits Catuna made to Michaels’
region. At all relevant times, Catuna was based at BJ’s corporate headquarters
in Natick, Massachusetts. Def. SUMF ¶ 10; Michaels Dep. Tr. at 129:12.

Michaels contends that the “inventory toast” was a company custom and that
her direct supervisor, Buonvicino, had previously been involved in drinking activities
on company property. Her allegations in this respect were general and devoid of
supporting facts. See Michaels Cert. ¶ 41. Defendant acknowledges that the
individuals who decided to fire Michaels were aware of allegations that Buonvicino
knew employees had consumed alcohol on company property after inventories.
Hoffman, one of the decision-makers, testified that past “inventory toasts” and
Buonvicino’s alleged knowledge of drinking incidents were not relevant to the decision
to terminate Michaels. Def. SUMF ¶j 43, 45, 46. Buonvicino testified that he was not
aware of employees’ having consumed alcohol on company property to celebrate the
completion of an inventory. Docket No. 37-4, Exhibit C (“Buonvicino Dep. Tr.”) at 117—
18.
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Michaels saw Catuna at two of the four visits he made to New Jersey
stores in her region. Michaels Dep. Tr. at 131:18—20. She testified that, during
a November 2007 visit, Catuna addressed her in a demeaning manner as if he
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were “schooling” her. Catuna also allegedly asked a female produce specialist
questions that Michaels regarded as inappropriate because they were
impossible for the produce specialist to answer. Id. at 159—61.
As Regional Manager, Michaels attended both annual and quarterly
meetings. At the annual meetings, Michaels’ interactions with Catuna were
uneventful. Def. SUMF ¶ 57; Michaels Dep. Tr. at 131:21—132:25. As for
quarterly meetings, Michaels recalled that Catuna attended seven or eight, but
she remembered nothing of her interactions with him at the first four. Michaels
Dep. Tr. at 130:19—22, 134-35. At a September 2008 quarterly meeting,
Catuna “seemed very distant.” Michaels noticed that he was “very formal” with
her, but friendlier towards the “male regionals.” Id. at 135. Catuna addressed
male Regional Managers as “Mr.,” while referring to female Regional Managers
by their first names. Id. at 135-36. Michaels states that Catuna was dismissive
towards her on various occasions. He did not commend her on the performance
of the stores in her region, but did commend another Regional Manager. Id. at
142—43, 151—53, 155—56.
Michaels asserts that she also complained about Catuna’s behavior
toward a female general manager, Beverly Bongiorno. For instance, in
September 2008, after Catuna visited several stores, including the store
managed by Bongiorno, Catuna allegedly told Buonvicino that Bongiorno was
“not too bright.” Michaels Cert. ¶ 25. Buonvicino allegedly relayed this
information to Michaels, who took offense. Id. ¶ 26. Following an August 2009
store visit, Bongiorno allegedly called Michaels and stated: “what it is about
this guy [Catuna], does he just hate women?” Id. ¶J 31, 32. Michaels asserts
that she complained about Catuna’s conduct to both Buonvicino and Hicks.
See Michaels Cert. ¶f 19, 21, 23, 26, 27, 33. Defendants deny that Michaels
made any such complaint. Michaels acknowledges that she never complained
about Catuna directly to any of the decision-makers, Hoffman, Gallagher or
Catuna, and that she was never present when anyone else did so. P1. Br. at 7.

Michaels maintains that she first complained about Catuna after this visit.
Docket No. 43-1 (“Michaels Cert.”) ¶ 21.
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II.

DISCUSSION

BJ’s moves for summary judgment on the three un-dismissed counts of
the Complaint: retaliation (Count IV), breach of contract (Count VI), and breach
of implied duty of good faith and fair dealing (Count VII). Docket No. 37 (“Def.
Br.”). Michaels responds that she was terminated in retaliation for her
complaints of discrimination against BJ’s Senior Vice President Cornel Catuna.
Michaels further contends that her termination for drinking alcohol on
company premises was a pretext and a breach of BJ’s contractual obligations
to its employees.
For the reasons stated below, the motion for summary judgment will be
granted.
A. Summary Judgment Standard
Federal Rule of Civil Procedure 56(a) provides that summary judgment
should be granted “if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248; Kreschollek v. S. Stevedoring Co., 223 F.3d 202, 204 (3d Cir. 2000). In
deciding a motion for summary judgment, a court must construe all facts and
inferences in the light most favorable to the nonmoving party. See Boyle v.
County of Allegheny Pennsylvania, 139 F.3d 386, 393 (3d Cir. 1998) (citing
Peters v. Delaware River Port Auth. of Pa. & N.i, 16 F.3d 1346, 1349 (3d Cir.
1994)). The moving party bears the burden of establishing that no genuine
issue of material fact remains. See Celotex Corp. v. Catrett, 477 U.S. 317, 322—
23 (1986). “[W]ith respect to an issue on which the nonmoving party bears the
burden of proof
the burden on the moving party may be discharged by
‘showing’—that is, pointing out to the district court—that there is an absence
of evidence to support the nonmoving party’s case.” Celotex, 477 U.S. at 325.
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Once the moving party has met that threshold burden, the non-moving
party “must do more than simply show that there is some metaphysical doubt
as to material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475
U.S. 574, 586 (1986). The opposing party must present actual evidence that
creates a genuine issue as to a material fact for trial. Anderson, 477 U.S. at
248; see also Fed. R. Civ. P. 56(c) (setting forth types of evidence on which
nonmoving party must rely to support its assertion that genuine issues of
material fact exist). “[Ujnsupported allegations
and pleadings are
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insufficient to repel summary judgment.” Schoch v. First Fid. Bcincorporation,
912 F.2d 654, 657 (3d Cir. 1990); see also Gleason v. Norwest Mortg., Inc., 243
F.3d 130, 138 (3d Cir. 2001) (“A nonmoving party has created a genuine issue
of material fact if it has provided sufficient evidence to allow a jury to find in its
favor at trial.”). If the nonmoving party has failed “to make a showing sufficient
to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.
there can be ‘no
genuine issue of material fact,’ since a complete failure of proof concerning an
essential element of the nonmoving party’s case necessarily renders all other
facts immaterial.” Katz v. Aetna Cas. & Sur. Co., 972 F.2d 53, 55 (3d Cir. 1992)
(quoting Celotex, 477 U.S. at 322—23).
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B. LAD Retaliation Claim (Count IV)
Count IV of the Complaint alleges that the Defendants retaliated against
Michaels for lodging complaints about Catuna’s allegedly discriminatory
conduct. Pursuant to N.J.S.A. 10:5-12d, it is unlawful to “take reprisals
against any person because that person has opposed any practices or acts
forbidden under” the New Jersey LAD.
Such an unlawful retaliation claim is properly analyzed under the
burden-shifting framework set forth by the Supreme Court in McDonnell
Douglas Corp v. Green, 441 U.S. 792. See Mancuso v. City of Atl. City, 193 F.
Supp. 2d 789, 811 (D.N.J. 2002) (“Analysis of LAD retaliation claims follows
the now-familiar burden- shifting framework established for disparate treatment
claims under Title VII and the LAD.”). Under the McDonnell Douglas framework,
the Plaintiff has the initial burden of establishing a prima facie case.
Lichtenstein u. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 302 (3d Cir. 2012).
To state a prima facie case of retaliation under the LAD, plaintiffs must prove
that: “(1) they engaged in a protected activity known by the employer; (2)
thereafter their employer unlawfully retaliated against them; and (3) their
participation in the protected activity caused the retaliation.” Craig v. Suburban
Cablevision, Inc., 140 N.J. 623, 629-30, 660 A.2d 505, 508 (1995) (citing
Jamison v. Rockaway Township Bd. of Educ., 242 N.J. Super. 436, 445, 577
A.2d 177 (Sup. Ct. App. Div. 1990); Wrighten v. Metropolitan Hosps., Inc., 726
F.2d 1346, 1354 (9th Cir. 1984)).6 At the summary judgment stage, the plaintiff
There exists an equivalent, four-part formulation of the elements: “(1) that
[plaintiff] engaged in protected activity; (2) the activity was known to the employer; (3)
plaintiff suffered an adverse employment decision; and (4) there existed a causal link
between the protected activity and the adverse employment action.” Young v. Hobart

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must point to evidence in the record sufficient to create a genuine factual
dispute as to each of those three elements. Lichtenstein, 691 F.3d at 302 (citing
Erdman v. Nationwide Ins. Co., 582 F.3d 500, 508—09 (3d Cir. 2009);
Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 146 (3d Cir. 2004)). If
she is able to make this showing, the burden of production shifts to the
employer to “articulate some legitimate, non-discriminatory reason” for its
decision. Id. (quoting McDonnell Douglas, 411 U.S. at 802). Once the employer
meets that fairly minimal burden, the plaintiff must point to some direct or
circumstantial evidence from which a factfinder could “reasonably
disbelieve
[the employer’s) articulated legitimate reasons.” Id. (quoting Fuentes v. Perskie,
32 F.3d 759, 764 (3d Cir.1994)).
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Michaels claims that BJ’s stated reason for her terminating her—that she
violated company policy by drinking on company property—was a pretext. She
contends that the “inventory toast,” drinking on company property after the
completion of inventories, is a long-standing practice known and condoned by
managers, including her direct supervisor, Frank Buonvicino. She submits that
she was actually terminated in retaliation for complaints she made about
Catuna’s conduct toward her and other female employees.
1. Prima fade case of retaliation.
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Defendant BJ’s argues, inter alia, that Michaels has failed to meet her
prima facie burden because she (a) failed to establish that she engaged in
protected activity; (b) failed to establish that the protected activity was known
to the decision makers who fired her; and (c) failed to establish a causal link
between the alleged protected activity and her termination. As to (b) and (c), I
agree. Either standing alone would require summary judgment in favor of BJ’s
on the LAD retaliation claim.
a. Plaintiff’s engagement in protected activity
A central element of a retaliation claim under the LAD is proof that the
plaintiff engaged in a protected activity that was known to the alleged
W. Grp., 385 N.J. Super. 448, 465, 897 A.2d 1063, 1072 (App. Div. 2005) (citing Craig,
140 N.J. at 629-30, 660 A.2d 505).
In its reply brief, Defendant argues that Michaels’ Certification filed in
opposition to summary judgment motion should be disregarded in its entirety under
the “sham affidavit doctrine,” which may apply where a certification directly
contradicts prior sworn testimony. See Jiminez v. All Am. Rathskeller, Inc., 503 F.3d
247, 251 (3d Cir. 2007). I discuss Michaels’ Certification in the course of my analysis.
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retaliator. Erickson v. Marsh & McLennan Co., Inc., 117 N.J. 539, 560, 569 A.2d
793, 803 (1990) (quoting Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 193
n. 1, 536 A.2d 237 (1988)). “Protected activity can include a plaintiffs
complaints concerning allegations of discrimination against herself or others;
however, complaints about unfair treatment do not suffice.” Fabrikant v. Arthur
J. Gallagher & Co., Inc., A-5995-05T1, 2008 WL 281690, at *7 (N.J. Super. Ct.
App. Div. Feb. 4, 2008) (citing Barber v. CSX Distribution Servs., 68 F.3d 694,
701-02 (3d Cir. 1995)). BJ’s denies that Michaels engaged in “protected
activity” consisting of complaints concerning allegations of discrimination.
Michaels has submitted a certification to the effect that she complained
about Catuna to Caroline Hicks and Frank Buonvicino “on at least two
separate occasions.” P1. Br. (Docket No. 46) at 6; Michaels Cert. ¶‘J 17—35. See
also Michaels Dep. Tr. at 143—44, 152—153, 161—62. In September 2008, she
allegedly complained to both Hicks and Buonvicino about Catuna’s comment to
Buonvicino that Bongiorno, a female general manager, was “not too bright.”
Michaels Cert. ¶f 25, 26. According to Michaels, a few weeks later she followed
up with Hicks, who told Michaels that, according to Candice Luther, Hoffman
was in Catuna’s “back pocket.” Id. ¶ 28. The second complaint, in August
2009, arose from Catuna’s site visit to a Watchung, New Jersey store managed
by Bongiorno. According to Michaels, it was after this visit that Bongiorno
called her and stated, in reference to Catuna, “what is it about this guy, does
he just hate women?” Id. ¶j 31, 32. Michaels allegedly spoke to both Hicks and
Buonvicino about this complaint. Id. ¶ 338
Hicks and Buonvicino deny under oath that they received any
complaints, from Michaels or others, regarding Catuna’s treatment of female

Plaintiff also submits that she complained to both Hicks and Buonvicino
following a November 28, 2007 Watchung store visit. During that visit, Catuna
allegedly treated Michaels in a “demeaning manner” and brought a female produce
specialist to tears. Michaels concedes that, at that time of this incident, she did not
complain that Catuna’s behavior during the store visit was discriminatory. Id. ¶‘J 18—
20. Michaels states that she again complained to both Hicks and Buonvicino after
Catuna allegedly yelled at her during a conference call in early 2008 regarding the
transfer of general manager. Id. ¶ 21. She complained that Catuna behaved in an
unprofessional manner by scolding her. She did not, however, “focus on gender issues
at that time.” Id. ¶ 23. I take this as an admission that she did not then make a
discrimination-related complaint that could be the foundation of a LAD retaliation
claim.
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employees. Def. SUMF ¶j 64—66. When asked if he remembered Michaels ever
complaining about the way that Catuna treated female employees, Buonvicino
said that the “only thing” he could recall was that Michaels relayed a comment
made by another female manager who said something to the effect of “what is it
with this guy, doesn’t he like women?” Buonvicino Dep. Tr. at 79.
The merits of the underlying claim of gender discrimination as to
Bongiorno are not directly at issue. The parties’ submissions set forth a
genuine dispute as to facts material to the issue of whether the plaintiff,
Michaels, engaged in protected activity, i.e., a complaint to superiors about
alleged gender discrimination. That dispute is sufficient to defeat summary
judgment as to the “protected activity” component of plaintiff’s prima facie
showing.
b. Decision-makers’ knowledge of the protected activity
Protected activity alone, however, is not sufficient. The protected activity
must be “known by the alleged retaliator.” Erickson, Inc., 117 N.J. at 560, A.2d
at 803 (quoting Velantzas, 109 N.J. at 193 n.1, 536 A.2d 237). As to this
“knowledge” element, as to which the “nonmoving party [i.e., MichaelsJ bears
the burden of proof
the burden on the moving party [i.e., BJ’s] may be
discharged by ‘showing’—that is, pointing out to the district court—that there
is an absence of evidence to support the nonmoving party’s case.” Celotex, 477
U.S. at 325. At that point, Michaels, as the non-moving party. “must do more
than simply show that there is some metaphysical doubt as to material facts.”
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986). Defendant argues that Plaintiff’s prima facie case lacks substantial
evidence that the alleged retaliator knew of any alleged protected activity, and
that there is considerable evidence to the contrary.
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The alleged protected activity consists of Michaels’ complaints to Hicks
and Buonvicino. It is undisputed, however, that Hicks and Buonvicino were not
the “retaliators,” i.e., the decision makers with regard to Michaels’s dismissal.
The class of decision makers suggested by the evidence would consist of Susan
Hoffman, Thomas Gallagher, and Catuna. Def. SUMF ¶‘jJ 4 1—42. The question,
then, is whether Hoffman, Gallagher and Catuna, when they were deciding to
dismiss Michaels, knew about Michaels’ complaints to Hicks and Buonvicino.
BJ’s also seems to be arguing that Plaintiffs voluntary dismissal of her
discrimination and hostile work environment claims constitutes a concession that
these complaints were not protected activity as a matter of law. I disagree.
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Start with Hicks and Buonvicino. As noted above, they deny receiving the
complaints at all, but Michaels swears she did complain to them, creating a
factual issue that cannot be resolved on summary judgment.
Hicks and Buonvicino also deny ever relaying complaints to the pertinent
decision-makers (Catuna, Gallagher, and Hoffman), to BJ’s home office in
Massachusetts, or indeed to any other person. Id. ¶J 64—66. As to this
contention, there is no contrary evidence sufficient to create a triable issue of
fact. Catuna and Hoffman testified that they were unaware of the alleged
complaints at the time of the decision to terminate Plaintiff’s employment. Id.
¶ 67—69; Docket No. 37-4, Exhibit D (“Catuna Dep. Tr.”) at 47—48; Docket No.
37-4, Exhibit F (“Hoffman Dep. Tr.”) at 57—58. Neither side submits any
evidence from Gallagher.
Michaels admitted at her deposition that she was personally “not aware”
that Catuna, Hoffman, or Gallagher ever learned of her alleged complaints to
Hicks and Buonvicino. Id. ¶ 67; Michaels Dep. Tr. 193. Michaels acknowledges
that she never complained directly to Hoffman, Gallagher or Catuna, and was
never present when anyone else did so. P1. Br. at 7. Her counsel conceded at
oral argument that Michaels complained only to Hicks and Buonvicino.
It follows that Michaels’ evidence, if any, that Catuna, Hoffman or
Gallagher knew of her complaints must be indirect or circumstantial. Michaels
submits that there is such circumstantial evidence that Buonvicino and Hicks
actually communicated the complaints to the decision-makers and that the
decision-makers’ conduct suggests knowledge of her complaints. I here discuss
five pieces of indirect evidence cited by Michaels:
1. Michaels states that she complained to Hicks about an alleged
comment by Catuna in September 2008 that another BJ’s female manager,
Beverly Bongiorno, was “not too bright.” Hicks assured Michaels that she
would follow up with her superiors. Michaels Cert. ¶j 25—27. Hicks allegedly
told Michaels that somebody (possibly Candice Luther, who was not a decision
maker in Michaels’ dismissal),l° said that nothing would be done about her
complaints because Hoffman was in Catuna’s “back pocket.” Michaels Cert. ¶J
24—28 said that nothing would be done because Hoffman was in Catuna’s

It is not clear from Michaels’ Certification whether she alleges that Luther is the
person Hicks went to with the complaint, or whether Luther just offered her
comments. There is no testimony from Luther in the record.
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“back pocket.” Michaels Cert. JJ 24_28.11 Hicks herself denies that any of this
happened. But at any rate, I give little or no consideration to a contested
secondhand account of what Luther said to Hicks about how Hoffman would
treat a complaint about Catuna. Hearsay objections aside, this is not
substantial evidence that Hicks actually relayed the alleged complaint to the
relevant decisionmakers.
2. Michaels also points to general testimony by Hicks that she would
always follow up with a superior regarding complaints of discriminatory
conduct. Docket No. 43, Exhibit V (“Hicks Dep. Tr.”) at 24—25. Michaels urges
an inference that Hicks therefore must have relayed her complaints about
Catuna to her superiors. This evidence of habitual practice is not particularly
pertinent. Hicks denied ever receiving this particular complaint at all. SUMF ¶J
64—66. Her testimony that she would have forwarded a complaint she received
cannot be so easily disentangled from its context, which is that she did not
receive the complaint. Absent any other evidence that the complaint went up
the line from Hicks, this is not sufficient to create a triable issue; at best it is
fodder for cross-examination. The non-movant cannot defeat summary
judgment simply by calling adverse witness liars; there must be some positive
support for the non-movant’s version of the facts. Anderson, 477 U.S. at 25657 (internal citation omitted) (reasoning that “discredited testimony is not
[normally] considered a sufficient basis for drawing a contrary conclusion” and
that a “plaintiff must present affirmative evidence in order to defeat a properly
supported motion for summary judgment
even where the evidence is likely
to be within the possession of the defendant, as long as the plaintiff has had a
full opportunity to conduct discovery”).
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3. Buonvicino allegedly told Michaels he would follow up with Catuna
about the August 2009 incident. Michaels Cert. ¶ 34. Buonvicino denies ever
doing so. See Buonvicino Dep. Tr. at 75—76. He did, however, state that he
generally spoke to Catuna daily. Buonvicino Dep. Tr. at 17. From this,
Michaels infers that Buonvicino must have told Catuna about the August 2009
complaint. General evidence that two people spoke is not specific enough to
create a triable issue as to the content of their conversation; it is at best crossexamination material.
A colleague, Rafat Rhagib, testified that he remembered Michaels mentioning
“comments about Sue Hoffman in Catuna’s pocket.” Docket No. 43, Exhibit W
(“Rhagib Dep. Tr.”) at 69. Hearsay objections aside, I give that no special independent
weight. Michaels says something similar in her certification; at most this would rebut
a charge of recent fabrication, if that were at issue.
11

12

4. Michaels alleges generally that her interactions with Catuna got
“progressively worse” at each quarterly meeting in 2009. Cert. ¶J 29—30;
Michaels Dep. Tr. at 155. Her specific factual answers, however, did not
establish such a progression. At the March or April 2009 quarterly meetings,
Michaels testified, Catuna treated her “[tjhe same way” he had treated her at
the January 2009 quarterly meeting. Michaels Dep. Tr. at 142—43, 155. At the
July 2009 meeting, approximately two months before her firing, Catuna’s
interactions with her were “[jjust more of the same.” Id. at 156. Thus the
conclusory “progressively worse” characterization in Michaels’ Certification
need not be credited, because it directly contradicts the underlying facts to
which she testified. At any rate, the inference she urges is just too speculative
to create a genuine factual issue. She describes some fairly routine irritants,
typical of interpersonal relations (e.g., that Catuna acted “distant” or
“dismissive”), and posits that they prove some fairly specific historical facts.
This evidence does not tend to prove the proposition that Catuna received or
heard about her specific complaints.
5. Finally, Michaels submits that Catuna and Hoffman testified that they
questioned Buonvicino about his knowledge of inventory toasts, contradicting
what Buonvicino himself said.’ Catuna Dep. Tr. at 42—43; Hoffman Dep. Tr. at
2
52. This evidence, says Michaels, precludes summary judgment because it
calls into question the “credibility” of all of Defendant’s evidence. It is not
unusual that the persons investigating a drinking incident would ask about
drinking incidents. And this evidence bears no relation to whether the decision
makers knew about Michaels’ complaints about discrimination. If every matter
that could bear on “credibility” could be said to create an issue of material fact,
then summary judgment would almost never be appropriate. Rule 56 requires
that the court focus, not on general credibility, but on bonafide conflicts in the
evidence as to the facts material to the causes of action.
As to the issue of the decision makers’ knowledge, BJ’s argues that this
case is analogous to Young v. Hobart W. Grp., 385 N.J. Super. 465, and I agree.
There, the plaintiff brought a LAD retaliation claim, alleging that she was
Hoffman did testify that Gallagher, Catuna, and Hoffman called Buonvicino and
that Buonvicino denied involvement in any inventory toasts. Hoffman Dep. Tr. at 51—
52. Catuna testified that he asked Buonvicino about his knowledge of the East
Rutherford drinking incident, and that Buonvicino denied having any knowledge of it.
Catuna Dep. Tr. at 42—43. Buonvicino testified that none of the decision-makers ever
spoke to him about this issue. Buonvicino Dep. Tr. at 156.
12

13

terminated because she complained about gender discrimination in the award
of bonuses. The person to whom she allegedly complained denied ever receiving
such a complaint, and also denied ever relaying such a complaint to the two
persons who made the decision to terminate the plaintiff’s employment. The
plaintiff acknowledged that she never complained directly to those two decision
makers. In upholding summary judgment in favor of the employer, the court
concluded that there was “insufficient evidence that the activity was known to
the employer.” Young, 385 N.J. Super. at 466, 897 A.2d at 1073. Here, as in
Young, Hicks and Buonvicino deny receiving a complaint from Michaels, and
(logically) also deny relaying any such complaint to the decision makers,
Hoffman, Gallagher, and Catuna. As in Young, the plaintiff, Michaels,
acknowledges that she never directly raised her concerns with those decision
makers. SUMF ¶ 67; Michaels Dep. Tr. at 193. And as in Young, summary
judgment is appropriate because there is not sufficient evidence to create a
triable issue of fact as to the decision makers’ knowledge of the protected
activity.
Michaels has not met her burden as to the second element of her prima
facie case: that she engaged in protected activity which was known to the
decision makers responsible for her dismissal. That is sufficient to require
summary judgment in favor of BJ’s as to the New Jersey LAD retaliation claim.
I nevertheless discuss the “adverse action” element briefly.
c. Adverse employment action and causal link between
protected activity and termination
Michaels’ termination, if retaliatory, would obviously be severe enough to
constitute “adverse employment action.” The more difficult question is whether
Plaintiff has raised a genuine dispute as to the existence of a causal link
between the protected activity and the termination. I find that she has not.
That would constitute an independent basis for summary judgment in favor of
BJ’s.
As to causation, post hoc reasoning is insufficient as a matter of law. An
adverse employment action may have followed protected activity; that does not
prove that it resulted from the protected activity. See Robinson v. City of
Pittsburgh, 120 F.3d 1286, 1302 (3d Cir. 1997), abrogated on other grounds by
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). Plaintiffs
commonly suggest that, because two events occurred very close in time, the
necessary causal connection may be inferred. That argument must be
approached with care.
14

The evidentiary value of temporal proximity depends on the stage of the
McDonnell Douglas analysis. When, as here, the plaintiff is attempting to satisfy
her prima facie burden on summary judgment, close temporal proximity can
save the case from dismissal for lack of causation. See Jalil v. Audel Corp., 873
F.2d 701, 708 (3d Cir. 1989). At this stage, after all, the court is only
determining whether the employer may be required to explain itself. See also
Smith v. Allen Health Sys., 302 F.3d 827, 833 (8th Cir. 2002) (citation omitted)
(stating that McDonnell Douglas “requires only a minimal showing before
requiring the employer to explain its actions”); James v. New York Racing Ass’n,
233 F.3d 149, 153 (2d Cir. 2000) (finding that a plaintiffs burden on
presenting a prima facie case under McDonnell Douglas is “minimal”). Even at
this procedural stage, however, “only where the facts of the particular case are
so ‘unusually suggestive of retaliatory motive’ may temporal proximity, on its
own, support an inference of causation.” Young, 385 N.J. Super. at 467, 897
A.2d at 1073 (quoting Krouse v. Am. Sterilizer Co., 126 F.3d 494, 503 (3d Cir.
1997)). “Where the timing alone is not ‘unusually suggestive,’ the plaintiff must
set forth other evidence to establish the causal link.” Id., 385 N.J. Super. at
467, 897 A.2d at 1073 (citing Farrell v. Planters Lfesauers Co., 206 F.3d 271,
280-81 (3d Cir. 2000)).
BJ’s contends that the temporal proximity between Michaels’ alleged
complaints and her termination, whether viewed in isolation or in the context
of the other evidence, is not “unusually suggestive” of retaliation. See Young,
385 N.J. Super. at 467, 897 A.2d at 1073 (citation omitted). As discussed
above, there is no substantial evidence that the relevant decision-makers were
even aware of, let alone motivated by, Michaels’s complaints. Def. Br. at 12.
And other evidence, far from reinforcing the “temporal proximity” argument,
tends to undercut it. Immediately preceding Michaels’ termination was the
anonymous Ethics Hotline call about drinking on the premises. That tip was
immediately followed by an investigation, in which, inter alia, Michaels
admitted the misconduct. Her dismissal, as well as that of a co-participant,
followed immediately. Taken together, these facts are not so “suggestive” as to
create a genuine issue as to Michaels’ termination having been precipitated by
her complaints, as opposed to her misconduct.
Michaels asserts that her escalating complaints caused Catuna’s conduct
towards her to grow “progressively worse,” culminating in her dismissal.
Michaels Dep. Tr. at 154. She testified that while she saw “hints” of how he
treated her differently from men in 2008, the behavior became “blatant” and
“obvious” in 2009. Id. But the facts themselves, as testified to by Michaels,
15

belie her characterization of them. Michaels testified that she first spoke to
Caroline Hicks about allegedly discriminatory treatment either in September
2007, after Michaels’ first store visit with Catuna, Michaels Dep. Tr. at 162,
167, or in early 2008, in connection with the proposed transfer of Deb Vito,
Michaels Dep. at 166. Michaels says she complained to Hicks about Catuna on
approximately four other occasions. In her Certification, she stated that she
complained about the disparate treatment in September 2008 and August
2009. At oral argument, her counsel soft-pedaled the “progressive
deterioration” theory, arguing instead that her August 2009 complaint
precipitated her dismissal a month later. BJ’s submits that there is nothing
about the “vague timeline of alleged complaints, the first of which is claimed to
have been made more than one and one-half years” prior to the termination,
that a jury could find to be “unusually suggestive” evidence of causation.
I agree. This would be an independent, alternative reason to grant
summary judgment in Defendant’s favor on the New Jersey LAD claim.

C. Contract Claims (Counts VI and VII)
Plaintiff’s remaining claims are for breach of contract (Count VI) and
breach of the implied covenant of good faith and fair dealing (Count VII).
Compl. ¶j 251—60. In Count VI, Michaels alleges that BJ’s breached its express
contractual obligations when it terminated her. In Count VII, Michaels alleges
that BJ’s had a contractual relationship with her, and that an implied term of
that contract was a “duty of good faith and fair dealing.”
The breach, Michaels submits, consists in BJ’s dismissing her for an
activity that was not a violation of the company’s policies or, “at least was a
permitted exception to the company’s policies.” PT Br. at 18. Further, the
company failed “to take into consideration mitigating facts—such as the
knowledge of, and participation in, inventory toasts by Ms. Michaels’
supervisors
and Ms. Michaels eighteen years of exemplary service
as it
was required to do in accord with its contractual obligations to Ms. Michaels,
including its contractual obligations pertaining to the company’s progressive
discipline policy.” Id.
.

.

.

.

.

.

There is no written employment contract as such; the contract at issue,
alleges Michaels, consisted of “oral representations to all BJ’s employees,
through unwritten employment policies, and, starting in late 2000, though BJ’s
Team Member Guide.” P1. Br. at 19. She submits that the oral, unwritten, and
written promises were all to the same effect. These included:
16

BJ’s commitment to treat its employees fairly and equitably;
-

—

-

-

BJ’s commitment to keep the promises it made to its employees;
BJ’s commitment to utilize progressive discipline, and to
consider other actions besides termination if warranted (i.e., to
consider mitigating facts), even for the highest levels of
violations (Level III violations);
BJ’s utilization of an introductory period for new employees to
determine if an employee is meeting expectations, which
obviously suggested a different employment relationship after a
successful completion of the introductory period; and
BJ’s Expectations Program, which the company noted ran both
ways and included what an employee could expect from the
company.

Id. Michaels cites to her Certification, in which she states that “all BJ’s
employees were constantly promised that we would be treated fairly, that BJ’s
would keep its promises, and that we had the protection of BJ’s expectations
and progressive discipline programs.” Michaels Cert. ¶ 87; see also Docket No.
43, Exhibits RH, GG (“Interrogatories”).
First, BJ’s contends that Michaels’ contract claims are preempted by the
LAD. Second, it contends that the Club Team Member Guide precludes any
finding that Plaintiff has a contractual right to only be dismissed “for cause.”
Instead, a disclaimer in the Guide clearly states that Michaels was an at-will
employee. Third, BJ’s contends that any oral representations allegedly made to
Michaels were too vague to create a contractual obligation. I agree with the
second and third contentions, and will grant summary judgment to BJ’s on the
contract claims.
1. Preemption by the LAD
“Where the factual predicates for the common law claims and the NJLAD
claims are the same and the remedies sought are the same, the common law
claims are barred.” Martinez v. Anselmi & Decicco, Inc., No. 09-CV-5277, 2009
WL 5206286, at *8 (D.N.J. Dec. 22, 2009). “Because of the broad availability of
remedies under the NJLAD, both state and federal courts in New Jersey have
frequently held that the NJLAD bars common law claims based on the same
operative facts as underlie the NJLAD claim.” Everson v. JPMorgan Chase

17

Bank, No. 12-CV-07288, 2013 WL 1934666, at *2 (D.N.J. May 8, 2013)
(citations omitted).
Though it is not entirely clear from the face of the complaint, it appears
that Plaintiff may be asserting her contract claims in the alternative. The NJ
LAD claim having failed, see supra, I see no good reason to rule that it remains
viable for the limited purpose of preempting the contract claims.
At any rate, Michaels does not allege that BJ’s breach of contract
consisted of retaliation; to that extent, the contract claims are distinguishable
from the LAD claim. True, the underlying facts overlap: both are based on the
drinking incident and the circumstances of the termination. I nevertheless find
that the bases of the claims are sufficiently distinct to stave off a preemption
claim.
On this ground, summary judgment is denied.
2. Contract Based on the Team Member Guide
A prerequisite to any contract cause of action is, of course, the existence
of a contract. Plaintiff argues that the Team Member Guide, an employment
manual, created an implied contract between BJ’s and its employees. And that
written contract allegedly incorporated by reference any and all oral
representations that BJ’s made. According to Michaels, the Guide is deemed to
contain “all of the promises, commitments, and programs that had previously
been presented by BJ’s orally to its employees.” P1. Br. at 21.
BJ’s maintains that a disclaimer prominently displayed on the first page
of the Team Member Guide effectively precludes any claim that the Guide
constitutes an enforceable contract between employer and employee. At any
rate, BJ’s argues, it did not violate the policies in the Guide when it terminated
Michaels’ employment. Michaels, it says, was an at-will employee who could be
discharged for any reason or no reason at all, absent a violation of public
policy.
a. The Team Member Guide Disclaimer
“In New Jersey, an employer may fire an employee for good reason, bad
reason, or no reason at all under the employment-at-will doctrine.” Witkowski
v. Thomas J. Lipton, Inc., 136 N.J. 385, 397, 643 A.2d 546, 552 (1994) (citation
omitted). “An employment relationship remains terminable at the will of either

18

an employer or employee, unless an agreement exists that provides otherwise.”
Jd13

There is good evidence that Michaels understood from the outset that her
employment was at will. Before being hired, she signed an employment
application that stated: “I understand that my employment is for no definite or
fixed period of time and that neither hours of work which may be assigned to
me at any time nor any other act or circumstances shall constitute a guarantee
of employment
“
SUMF
2; Michaels Dep. Tr. at 83; Employment
Application. Michaels acknowledged that she completed and signed that
employment application. SUMF ¶ 1; Michaels Dep. Tr. at 83; Employment
Application at D-0068.
.

.

.

Of course, employment is not at-will if “an agreement exists that provides
otherwise.” Witkowski, 136 N.J. at 398, 643 A.2d at 533. Michaels, however,
did not have a formal employment contract with BJ’s. She acknowledged that
she did not sign any such employment contract. SUMF ¶ 3; Michaels Dep. Tr.
at 85.
A formal employment contract, though, is not the only kind of contract.
The presumption that employment is at-will may be overcome “if a plaintiff can
prove that an employment manual containing job-security and termination
procedures could reasonably be understood by an employee to create binding
duties and obligations between the employer and its employees.” Witkowski
136 N.J. at 399, 643 A.2d at 533. In such a case, the employment manual is
treated as the contract of employment. As explained in Woolley v. Hoffmcznn-La
Roche, Inc., under those circumstances “the manual will constitute, in effect, a
unilateral offer to contract that an employee may accept through continued
employment.” Witkowski, at 399, 553 (citing Woolley, 99 N.J. 284, 309, 491
A.2d 1257, modified, 101 N.J. 10, 499 A.2d 515 (1985)). And such an
employment-manual-based contract can be sufficient to “overcome the
presumption that the employment is at will.” Id.
In order to state a contract claim based on an employment manual (or
other widely distributed policy), the plaintiff must point to a provision that
contains “an express or implied promise concerning the terms and conditions
The employment-at-will doctrine is not without exceptions. For example, an
employer cannot fire an employee for a discriminatory reason. Id., 136 N.J. at 398,
643 A.2d at 553. The claim discussed here, however, is based on contract.

19

of employment.” Id. at 393, 550 (quotations and citations omitted). Such a
contract can only rest on the reasonable expectations of employees. Id. (citing
Woolley).
Factors
affecting
reasonable
include
the
expectations
comprehensiveness of the termination policy and the context of the manual’s
preparation and distribution. Id.
Employers, wary of creating contractual rights, have included
disclaimers in their employment manuals. Such disclaimers may be effective. It
is well established that an implied contract based on an employment manual
may be negated by the inclusion of a “clear and prominent” disclaimer. IcL at
400, 554 (citing Woolley, 99 N.J. at 285); see also Polonsky v. Verizon
Communications Corp., No. 09-CV-4756, 2011 WL 5869585, at *9 (D.N.J. Nov.
22, 2011); Nicosia u. Wakefern Food Corp., 136 N.J. 401, 643 A.2d 554, 559-60
(1994). An effective disclaimer must be “expressed in language such that no
one could reasonably have thought [the manual] was intended to create legally
binding obligations.” Nicosia, 136 N.J. at 413, 643 A.2d at 560 (internal
quotation omitted). “Such a disclaimer serves ‘to provide adequate notice to an
employee that she or he is employed only at will and is subject to termination
without cause.” Armato v. AT & TMobility LLC, A—2754-l 1T2, 2013 WL 149671
(N.J. Super. Ct. App. Div. Jan. 15, 2013) (quoting Nicosia, 136 N.J. at 412).
The Team Member Guide contains such a disclaimer. On the first page
following the Table of Contents, the Guide states:
This guide does not constitute an employment contract, guarantee a
definite term of employment, or otherwise modify the at-will nature
of our Team Members’ relationship with the Company. The policies
and information contained within the guide may be changed,
without or without notice by the company, at any time.
SUMF ¶ 14; Team Member
maintains that the Court may
is effective as a matter of law.
2d 215, 228 (D.N.J. 2001)

Guide at D-0849 (italics
rule on summary judgment
See Warner v. Fed. Express
(citations omitted) (“When

in original). BJ’s
14
that this disclaimer
Corp., 174 F. Supp.
the language and

Michaels testified that, as a General Manager and then a Regional Manager, she
was familiar with Team Member Guide and indeed was responsible for enforcing the
policies and procedures established therein. Michaels Dep. Tr. at 9 1—92, 97. She
testified, however, that she did not read the manual “cover to cover.” Id. at 97.
20

placement of a disclaimer is not disputed, as in this case, the sufficiency of the
disclaimer can be decided as a matter of law.”).’
5
First, the language of the disclaimer is clear. The disclaimer specifically
states that the Guide “does not constitute an employment contract, guarantee a
definite term of employment, or otherwise modify the at-will nature of our Team
Members’ relationship with the Company.” The disclaimer does not contain
legalese or the kind of confusing language found to render a disclaimer
ineffective in Nicosia, supra. And it clearly states that the Guide does not affect
the “at-will nature” of an employee’s relationship with BJ’s.
Second, I find that the disclaimer is sufficiently prominent. “The
‘prominence’ requirement can be met in many ways. Basically, a disclaimer
must be separated from or set off in a way to attract attention.” Nicosia, 136
N.J. at 415, 643 A.2d at 561.
For example, “A term or clause is conspicuous
that a reasonable person against whom it is
have noticed it.” N.J.S.A. 12A:1-201(10)
may be called by setting off the disclaimer
.

.

.

.

when it is so written
to operate ought to
A readers attention
with different type,

Two cases in this district have dealt with the very employment manual in
question, albeit in somewhat indirect fashion.
In Varney v. BJ’s Wholesale Club, Inc., Judge Wigenton considered what
appears to be precisely the disclaimer at issue here. Although the court deemed the
plaintiffs breach of contract claim to have been abandoned, the court nevertheless
reviewed the Defendants submission. The court’s “own independent analysis of the
motion record yield[ed] no finding to the contrary or any inaccuracies in Defendants
proofs or proffered arguments.” And those arguments included the contention that the
disclaimer contained in the Guide met the requirements of Woolley and Nicosia and,
that the Guide therefore did not constitute an implied contract. No. 07-CV-47, 2008
WL 2944650, at *1 (D.N.J. July 31, 2008); Docket No. 37-7, Exhibit V (“Varney
Summary Judgment Motion”).
In Creamer v. BJ’s Wholesale Club, Inc., Civil No. 05-1995 (MLC), Judge Cooper
ruled orally on a motion for summary judgment. (see id., Docket No. 16). That plaintiff
brought a claim contending that the Team Member Guide gave rise to an employment
contract and that BJ’s breached this implied contract by terminating the plaintiffs
employment. (Docket No. 16 at 14). Judge Cooper, granting summary judgment in
favor of BJ’s as to this claim, considered the disclaimers in both the employment
application and the Member Guide. That plaintiff admitted that she understood the
disclaimer in the application to mean that BJ’s “could terminate her employment.” Id.
at 16. Judge Cooper cited, but did not substantially analyze, the Team Member guide
disclaimer. Referring to Wooley and Nicosia, id. at 14, Judge Cooper found that “there
was no express or implied contract of employment created between the parties.” Id. at
17. “Rather it was an at-will employment relationship terminable by either party at
any time or without, and with or without cause.” Id.
15

21

including bold,
, capitals,
A disclaimer
, or italics
may be underlined or set off by a different color or border.
.

.

.

.

.

.

Id. (internal citations omitted).
This disclaimer is on the first page following the Table of Contents. It is
set apart from the Equal Employment Opportunity statement, the only other
item on the page. Further, the disclaimer appears in italics, a method of
emphasis specifically enumerated in Nicosia. (And the italic type sets it off from
the accompanying Equal Employment Opportunity statement, which is in
regular typeface.)
I am cognizant that the disclaimer is not preceded by a heading. Nor does
it appear in bold face type, although the italic font is reasonably eye-catching.
It does not merit its own entry in the Table of Contents. Under Woolley and
Nicosia, however, I need not find that a disclaimer is optimally prominent; it
need only be sufficiently prominent.
I so find. The disclaimer is clear and prominent enough to constitute an
effective disclaimer. And, there being no dispute about the content or
appearance of the waiver, I can determine its adequacy on summary judgment.
See Pepe v. Rival Co., 85 F. Supp. 2d 349, 383 (D.N.J. 1999), affd, 254 F.3d
1078 (3d Cir. 2001) (“When there are no disputes regarding the language and
placement of a disclaimer, the adequacy of a disclaimer is a question of law.”).
There being an effective disclaimer, the Team Member Guide does not
constitute a contract. It therefore cannot serve as the basis for a claim of
breach of contract or breach of the implied covenant of good faith and fair
dealing. See Varrallo v. Hammond Inc., 94 F.3d 842, 848 (3d Cir. 1996) (citation
omitted) (“Because neither handbook affected the status of Varrallo’s
employment, he remained an employee ‘at will.’ As a result, there was neither a
term of discharge only ‘for cause’ nor a covenant of good faith and fair dealing
between Varrallo and Hammond.”).
As to the contract claims based on the Team Member Guide, I will grant
BJ’s motion for summary judgment.
b. Failure to Comply with the Expectations Program
In the alternative, even setting aside the disclaimer, I could not find that
the proofs create a triable issue as to Michaels’ claim that BJ’s breached its
Progressive Discipline policy. The Progressive Discipline policy is one of three
components of the Expectations Program, contained in the Team Member
22

Guide at D-0878. Those three components are
Workplace Guidelines, and the Open Door Policy.’ Id.
6

Progressive

Discipline,

The Progressive Discipline policy states that “a Team Member who
commits a violation may go through several disciplinary steps, depending on
the level, seriousness, and timing of the violation.” Id. The Workplace
Guidelines policy sets forth conduct that is “not acceptable and may result in
corrective action.” Id. at D-0879. Three levels of violations are defined: Level I,
Level II, and Level III. There is no dispute that Michaels committed a
specifically-enumerated Level III violation: “Possession, distribution, use, or
being under the influence of illegal drugs or alcohol, or possession of weapons
on Company property at any time.” Id. at D-0881. Level III violations “may
result in immediate termination of employment for the first offense, unless
other action is warranted following an investigation.” Id.
In Armato v. AT&T Mobility LLC, the court similarly considered a claim
arising from an alleged failure to comply with a progressive disciplinary
procedure. That plaintiff claimed that “he was terminated before receiving the
benefit of the progressive disciplinary steps outlined in AT&T’s employment
manual.” A-2754-11T2, 2013 WL 149671, at 3 (N.J. Super. Ct. App. Div. Jan.
15, 2013). In ruling that the plaintiff’s claim was “without merit,” the court
reasoned as follows:
The manual, however, does not provide for a mandatory graduated
disciplinary process, especially with respect to management-level
employees. Instead, the ‘Management Disciplinary Process’ section
details that the company may use certain methods to improve
‘unacceptable standards of conduct,’ but it also states that ‘certain
acts will result in immediate suspension and/or termination.’ AT &
T retained discretion in carrying out any progressive disciplinary
measures.
Id.

The Open Door Policy, which also falls under the Expectations Program
umbrella, states that “Management’s door is always open to help resolve work-related
problems.” The policy sets forth steps that employees should follow to address
concerns, including speaking to an immediate manager, the area human resources
manager, and then the zone vice president. Team Member Guide at D-0882—83. The
Open Door Policy does not appear to be implicated here.
16

23

BJ’s retained similar discretion in its Guidelines. The Progressive
Discipline policy states that “a Team Member who commits a violation may go
through several disciplinary steps, depending on the level, seriousness, and
timing of the violation.” (emphasis added). Stepwise discipline is not
mandatory. And it is undisputed that Michaels committed a Level III offense
and that, under the Workplace Guidelines, a Level III offense “may result in
immediate termination of employment for the first offense, unless other action
is warranted following an investigation.”
After the hotline call, BJ’s followed standard protocol and commenced
such an investigation. SUMF ¶j 29—30. During that two-day process, the
investigators interviewed and obtained written statements from eight persons
who had been present at the drinking event and also interviewed Michaels. Id.
¶ 34, 35. Michaels was given the opportunity to make written and oral
statements. She admitted to the Level III offense of drinking on the premises.
Id. ¶ 35. Ultimately, Hoffman, Gallagher, and Catuna decided that it was
appropriate to terminate Michaels. They also fired the only other person of
supervisory rank that attended the “event.”
17
BJ’s clearly had the discretion to do this; it would not have been a
breach of its procedures, even if those procedures were contractually
enforceable. The result—dismissal of an eighteen-year veteran employee based
on a single incident—may seem harsh. I cannot, however, swap my business
judgment for that of BJ’s.
On this alternative ground, then, BJ’s motion for summary judgment as
to contractual breach will be granted.
c.

Contract claims based on oral promises

Plaintiff maintains that promises were made to all BJ’s employees
throughout her tenure, particularly “by human resource department
In her certification, Michaels disputes that Charmine Sealey, the other
supervisor present at the drinking incident, was terminated for her participation in the
incident. In her Certification, Michaels states that “Mr. Buonvicino told me that the
Loss Prevention VP wanted to fire Ms. Sealey, who is African American, for poor job
performance but was worried that she might file a discrimination suit. The loss
prevention VP was apparently thinking about trying to use the inventory toast as an
excuse for firing Ms. Sealey.” Michaels Cert. ¶ 56. This attempt to assert Ms. Sealey’s
rights (she has not made any claim of discrimination), based on speculation, does not
create an issue of fact as to breach.
24

representatives as part of the company’s anti-union organizing campaigns.” P1.
Br. at 20. Plaintiff alleges that these promises include an undertaking that
employees would be treated fairly, that the company would use progressive
discipline, and that employees had the “same protections that they would have
if they were represented by a union,” icL, including a guarantee of dismissal
only for “just cause.”
Oral assurances of job security “may be enforceable by an employee
where the terms and conditions of employment are clear and capable of judicial
interpretation and an employee reasonably relies on them to his/her
detriment.” Swicler v. Ha-Lo Indus., Inc., 134 F. Supp. 2d 607, 617 (D.N.J.
2001) (citing Shebar v. Sanyo Bus. Sys. Corp., 111 N.J. 276, 544 A.2d 377
(1988). Such assurances may be enforceable as a contract “if the intention of
the parties to make such a contract is clearly, specifically and definitely
expressed, and the intent of the parties may be ascertained from the oral
agreement, the attendant circumstances and the presence of valuable
consideration.” Id. (citing Obendorfer v. Gitano Group, Inc., 838 F. Supp. 950,
953 (D.N.J. 1993)).
Defendant’s alleged promise to treat employees “fairly” is too vague and
unspecific to support a claim that this dismissal for admitted on-premises
drinking, in violation of a specific, explicit rule, was a breach of contract.
Michaels testified that no BJ’s employee ever explicated the meaning of “being
treated fairly.” Michaels Dep. Tr. at 407. To be enforceable, a contract “must be
sufficiently definite ‘that the performance to be rendered by each party can be
ascertained with reasonable certainty.”’ Weichert Co. Realtors v. Ryan, 128 N.J.
427, 435, 608 A.2d 280, 284 (1992) (quoting West Caldwell v. Caidwell, 26 N.J.
9, 24—25, 138 A.2d 402 (1958)). The term “fair treatment” is too vague to permit
enforcement with respect to this incident. See Monroe v. Host Marriot Serus.
Corp., 999 F. Supp. 599, 606 (D.N.J. 1998) (holding that a company’s
“Guarantee of Fair Treatment” was “lacking in specificity and explicit terms
regarding job security and termination policies and is therefore not an
employment contract capable of being breached”).
Plaintiff also contends that BJ’s made oral promises to utilize progressive
discipline and that BJ’s promised that she could only be fired “for cause.” First,
Michaels does not even really allege that she was ever told she could only be
fired for “just cause.” She testified that she did not “know if they said it per
8
The argument for a “just cause” standard based on BJ’s desire to stave off
union activity is difficult to fathom. It seems to require the court to hypothesize a
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Se, but that certainly was the message that I got in 18 years, that you couldn’t
be fired for no reason.” Michaels Dep. Tr. at 290—291. She does not identify
who gave her that implied “message” and she “did not recall” anybody ever
telling her what conduct would constitute “just cause.”
Ultimately, she
testified that she thought it was defined in the “Team Member Guide.” Id.
Oddly enough, then, the oral promises come back to the Team Member
Guide. The Team Member Guide does not define “just cause.” Instead, as
detailed above, it sets forth precisely the disciplinary regime that was applied in
this case, disclaims enforcement as a contract, and establishes the employee’s
at-will status.
As to the oral-statements component of Michaels’ contract claims, I will
grant summary judgment to BJ’s.
d.

Implied covenant of good faith and fair dealing

Finally, I will address Michaels’ claim that BJ’s breached the Implied
Covenant of Good Faith and Fair Dealing. Under New Jersey law, the implied
covenant of good faith and fair dealing is “contained in all contracts and
mandates that ‘neither party shall do anything which will have the effect of
destroying or injuring the right of the other party to receive the fruits of the
contract.”’ Seidenberg v. Summit Bank, 348 N.J. Super. 243, 253, 791 A.2d
1068, 1074 (N.J. Super. Ct. App. Div. 2002) (quoting Sons of Thunder v.
Borden, Inc., 148 N.J. 396, 420, 690 A.2d 575 (1997); Palisades Properties, Inc.
v. Brunetti, 44 N.J. 117, 130, 207 A.2d 522 (1965)). The covenant “requires that
a contracting party act in good faith when exercising either discretion in
performing its contractual obligations,
or its right to terminate
Accordingly, it may occur that a party will be found to have breached the
implied covenant even if the action complained of does not violate a ‘pertinent
express term.” Id. at 258, 1076-77 (internal citations omitted).
.

.

.

.

.

A breach of this implied covenant presupposes the existence of a
contract, whether express or implied. A party cannot breach an implied term of
a contract if there was no contract in the first place. In the particular case of
an at-will employee, “an implied contract must be found before the jury could
find that the implied covenant of good faith and fair dealing had been

collective bargaining agreement, where none was ever reached. These oral assertions
are an insufficient basis for that relief, assuming it is available at all.

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breached.” Wade v. Kessler Inst., 172 N.J. 327, 345, 798 A.2d 1251, 1262
(2002) (“To the extent plaintiff contends that a breach of the implied covenant
may arise absent an express or implied contract, that contention finds no
support in our case law.”) See also Pepe, 85 F. Supp. 2d at 390 (“The doctrine
of good faith and fair dealing cannot, however, create rights or obligations in
the absence of a valid contract.”).
Having found that there is no express or implied contract, I will also
grant summary judgment in favor of BJ’s on Michaels’ claim that it breached
the implied covenant of good faith and fair dealing.
III. CONCLUSION
For the foregoing reasons, Defendant’s motion for summary judgment is
GRANTED. An appropriate order will be filed with this opinion.

/L

Ec/

KEVIN MCNULTY
United States District Judge
DATED: June 19, 2014

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