PETERS v. VITRAN EXPRESS, INC. et al

Filing 14

OPINION. Signed by Judge Dennis M. Cavanaugh on 12/23/13. (gmd, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JAMES PETER,
Hon. Dennis M. Cavanaugh

Plaintiff,

OPINION

v.

Civil Action No. 2:13-cv-2702 (DMC)(JBC)

VITRAN EXPRESS, INC., a corporation
of the State of Pennsylvania; and ALAN
KUNZMAN,
Defendants.

DENNIS M. CAVANAUGH. U.S.D.J.:
This matter comes before the Court upon the Motion
to Dismiss, or in the alterative, for
Summary Judgment by Defendants Vitran Express,
1
Inc. (“Vitran”) and Alan Kunzman
(collectively ‘Defendants”). Pursuant to FED. R. Civ.
P 78. no oral argument was heard. Based
on the following and for the reasons expressed here
in, Defendants’ Motion to Dismiss is granted
in part and denied in part.
L

2
BACKGROUND
Vitran is a corporation of the State of Pennsylvania with
its principal place of business in

Gibsonia, Pennsylvania. Kunzman is the Director of
Security of Vitran. Plaintiff James Peters
(Plaintiff’) is a resident of the State of New Jerse
y. Plaintiff was employed by Vitran as a truck
driver at Vitran’s South Plainfield, New Jersey branch
from May 2008 to October 24, 2012.

2

This Court declines to treat this Motion as one for summa
ry judgment.
The facts from this section are taken from the parties’ pleadin
gs.

1

On October 24, 2012, Plaintiff was suspended without
pay. Plaintiff states that Kunzman
indicated that he was conducting an investigation in
connection with cargo that was allegedly
missing from Vitran’s New Jersey facility. Plaintiff
claims that he was never given the
opportunity to review the purported evidence against
him or to confront his accusers. Further,
Plaintiff alleges that he has not been contacted by Defe
ndants regarding his employment status,
despite several requests.
Plaintiff filed a Complaint on February 27, 2013, alleg
ing i) breach of contract; ii)
violation of covenant of good faith and fair dealing; iii)
wrongful discharge in violation of public
policy; iv) violation of the Conscientious Employee Prot
ection Act (“CEPA”); v) defamation;
3
and vi) negligence (“Compi.,” ECF No. 1, Ex. 1). Defe
ndants filed the instant Motion to Dismiss
on May 17, 2013 (ECF No. 5). Plaintiff filed an Oppositi
on on June 3, 2013 (ECF No. 7).

Defendants filed a Reply on June 10, 2013 (ECF No. 10).
IL

STANDARD OF REVIEW
In deciding a motion under FED. R. Civ. P. 1 2(b)(6), the
District Court is “required to accept

as true all factual allegations in the complaint and draw
all inferences in the facts alleged in the
light most favorable to the [plaintiff].” Phillips v. Cnty.
of Allegheny, 515 F,3d 224, 228 (3d Cir.
2008). “[A] complaint attacked by a Rule 12(b)(6) moti
on to dismiss does not need detailed factual
allegations.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007). However, the plaintiffs
‘obligation to provide the ‘grounds’ of his ‘entitle[ment]
to relief requires

more

than labels and

conclusions and a formulaic recitation of the elements of
a cause of action will not do.” Id. On

a

motion to dismiss, courts are “not bound to accept as true
a legal conclusion couched as a factual
allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986)
. Plaintiffs complaint is subject to the

Defendants’ Motion does not address Plaintiffs CEPA
claim.

heightened pleading standard set forth in Ashcroft
v. lgbal:
To survive a motion to dismiss, a complaint must cont
ain sufficient factual matter. accepted
as true, to “state a claim to relief that is plausible on
its face.” A claim has facial plausibility
when the plaintiff pleads factual content that allow
s the court to draw the reasonable
inference that the defendant is liable for the miscondu
ct alleged.
Determining whether
a complaint states a plausible claim for relief will
be a context-specific task that requires
the reviewing court to draw on its judicial experienc
e and common sense. But where the
well pleaded facts do not permit the court to infer
more than the mere possibility of
misconduct, the complaint has alleged but it has
not “show[nf’
that the pleader is
entitled to relief.”
.

.

.

.

.

.

-

-

556 U.S. 662, 678-679 (2009) (quoting Twombly
, 550 U.S. at 557, 750).
IL

DISCUSSION
A. Breach of Contract
Count one of the Complaint alleges that the policies and
procedures established by Vitran

and relayed to Plaintiff and other employees “con
stituted both an express[] and implied promise
and contract that employees would not be terminate
d without cause, and not without an
investigation conducted in good faith and due dilig
ence prior to termination” (Compl.

9).

Under New Jersey law, “an employment relations
hip remains terminable at the will of either an
employer or employee unless there is an agreemen
t that provides otherwise.” Warner v. Fed.
Express Corp., 174 F, Supp. 2d 215, 223, at *2 (D.N
.J. 2001). However, a plaintitTcan “override
the presumption of at-will employment” by pointing
to a “widely distributed employment
manual that articulates terms and conditions of emp
loyment, including grounds and procedures
for termination.” Sagetv. Wells Fargo Bank, N.A
., No. 2:13-03544, 2013 WL 6188638, at *2
(D.N.J. Nov. 26, 2013). Further, “[o]ral promises,
representations

.

.

.

or the conduct of the

parties, depending on the surrounding circumstances
, have been held to give rise to an
enforceable obligation on the part of an employer.”
Troy v. Rutgers, 774 A.2d 476. 482 (N.J.
2001).

Here, Plaintiff merely alleges that the ‘poIicies
and procedures established by

.

.

.Vitran”

constituted both an express and implied contract
and that he always “performed his duties
consistent with

.

.

.

Vitran’s policy” (Compl.

¶ 9-10). This vague allegation is insufficient to

withstand a motion to dismiss, as Plaintiff has not
pointed to an employment manual, an oral
promise, or any other specific conduct on the part
of Defendants that would give rise to an
implied contract. See Saget, 2013 WL 6188638,
at

*

2 (finding that the Complaint did not state

a

claim for breach of implied contract because [tjhe
Complaint faii[ed] to provide any language
from an employee handbook or similar documen
t overriding the presumption of at-will
employment”); Merkle v. T-Mobile USA, Inc., No.
07-3401, 2008 WL 2983530. at *4 (D.N.J.
July 3 1, 2008) (finding that “corporate culture” is
not sufficient to create an implied contract of
employment and that a plaintiff must allege more conc
rete evidence). Accordingly, count

one

of

the Complaint is dismissed.
B. Breach of Implied Covenant of Good Faith and
Fair Dealing
Count two of the Complaint alleges that Defendants
breached ‘an implied covenant of
good faith and fair dealing concerning
(Compl.

¶

.

.

.

Plaintiffs employment and termination procedures”

15). However, a plaintiff cannot allege a breach of
an implied covenant of good faith

and fair dealing in the absence of an underlying cont
ract. Noye v. Hoffmann-La Roche Inc., 570
A.2d 12, 14 (N.J. Super. Ct. App. Div. 1990). See also
McQuitty v. Gen. Dynamics Corp., 499
A.2d 526. 529 (N.J.

Super.

Ct. App. Div. 1985) (“Since plaintiff was working with
out a contract

as an at-will employee, his argument that every cont
ract imposes a duty of good faith and fair
dealing is irrelevant. One cannot read additional term
s into a non-existent contract,”). As
discussed above, Plaintiffs Complaint does not estab
lish the existence of an implied contract.
Accordingly, count

two

of the Complaint is dismissed.

4

C. Wrongful Discharge in Violation of Public Polic
y
Count three of the Complaint alleges that Defendan
ts wrongfully discharged Plaintiff in
violation of public policy because Kunzman’s ques
tioning of Plaintiff’s background without
cause violated Plaintiff’s Fourth and Fifth Ame
ndment rights under the United States
Constitution, his right of due process, and his right
of privacy” (Compi.

¶

19-26). In Pierce v.

Ortho Pharm. Corp., 417 A.2d 505, 512 (N.J. 1980
), the New Jersey Supreme Court stated that
“an employee has a cause of action for wrongful disch
arge when the discharge is contrary to a
clear mandate of public policy.” The court reasoned
that ‘[ai employers right to discharge an
employee at will carries a correlative duty not to disch
arge an employee who declines to perform
an act that would require a violatjon of a clear mandate
ol public policy.”

.

The Supreme Court

of Nc\v Jersey subsequently clarified that ‘a Pierce claim
requires a plaintiff to identify a clear
mandate of public policy’ about which the employe
e complained and that was the cause of the
employees discharge from employment.” Leang v. Jerse
y City Bd. of Educ., 969 A.2d 1097,
1108 (N.J. 2009),

also Badrinauthv. MetLife Corp., 368 F. Appx 320, 32324 (3d Cir.

2010) (recognizing the reporting requirement set forth
by the New Jersey Supreme Court).
Here, Plaintiff makes no allegation that he was fired
in connection with a complaint he
made concerning a clear mandate of public policy. As
such, he cannot maintain a claim under
Pierce. Accordingly, count four of the Complaint is dism
issed.
D. Defamation
Count five of the Complaint alleges that Plaintiff was
defamed by Defendants because
“Kunzman throughout his investigation, made false,
defamatory. and misleading statement to
Plaintiff’s supervisors, [Vitran], and others concernin
g
responsible for the missing freight” (Compi.

¶ 35).
5

.

.

.

Plaintiff indicating [that) he was

In order to state a claim for defamation in

.

New Jersey, a plaintiff must show that 1) the
defendant made a false and defamatory statement
that concerned the plaintiff; 2) the statement was
communicated by the defendant to a third
party; and 3) the defendant had a sufficient degr
ee of fault. Mangan v. Corporate Synergies Grp.,
Inc., 834 F. Supp. 2d 199, 204 (D.N.J. 201 1). In
order to survive a motion to dismiss, a plaintiff
“must plead facts sufficient to identify the defamato
ry words, their utterer and the fact of their
publication.” Zoneraich v. Overlook Hosp., 514 A.2d
53, 63 (N.J. Super. Ct. App. Div. 1986).
Defendants claim that Plaintiffs defamation claim
must be dismissed because Plaintiff
has not set forth sufficient facts to meet the elem
ents of defamation. This Court that Plaintiff has
adequately pleaded the elements of defamation Plain
tiff has alleged that i) Kunzman stated that
Plaintiff was responsible for the missing freight; ii)
Kunzman made these statements to
Plaintiffs supervisors; iii) Kunzman made these state
ments with the intent to destroy Plaintiffs
career: and iv) Plaintiff was damaged because he was
terminated from his employment. Further.
while Defendants assert that a qualified privilege
attached to the words allegedly stated by
Kunzman, they do not set forth the reasons as to why
the privilege is applicable. Accordingly,
Defendants’ Motion to Dismiss Plaintiffs defamati
on claim is denied.
E. Negligent Termination
Count six of the Complaint alleges that Defendants
were negligent in conducting the
investigation surrounding Plaintiffs purported theft
. However, while New Jersey law allows
claims for negligent discharge in violation ofa spec
i1c public policy. it does not allow claims tor
“mere negligent wrongful discharge.” See Mosley
v. Delaware River Port Auth., No. 99-4 147,
2000 WL 1534743, at *8 (D.N.J. Aug. 7, 2000). Plain
tiff argues in his Opposition that
Defendants can be found liable for negligently perfo
rming a duty that arises from an implied
employment contract (See Pl.’s Opp’n at 16). This argu
ment fails because, as discussed above,

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Plaintiff cannot prove the existence of an impl
ied contract. Additionally, Plaintiff argues that
[n cgiigcncc is

a nexus toi 1iabiht under [aj delamation ci urn
(Id) Hovc’ ci to uppoi

this proposition, Plaintiff merely recites the elem
ents of defamation and does

not

explain why he

should be able to bring a separate negligence claim
(See id.). Finally, Plaintiff argues that
Defendants were negligent because they left him
unsure about his employment status, which
caused him emotional distress (Id. at 17). As this
allegation was not raised in Plaintiff’s
Complaint, this Court will not address it. According
ly, count six of the Complaint is dismissed.
1

CONCLUSION
For the foregoing reasons, Defendants’ Motion to
Dismiss is granted in part and denied

in part. An appropriate order follows this Opin
ion.

Date:
Original:
cc:

December
2013
Clerk’s Office
Hon. James B. Clark U.S.M.J.
All Counsel of Record
File

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