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Falcone v. Columbia Pictures Industries Inc.

argued: September 19, 1986.


Appeal from the United States District Court for the District of New Jersey - Newark D.C. Civil No. 85-4896

Author: Rosenn

Before SEITZ, SLOVITER, and ROSENN, Circuit Judges.

ROSENN, Circuit Judge.

This appeal once again calls upon us to decide whether and under what circumstances an employer's right to dismiss an "at will" employee is limited by a requirement that the employer follow certain procedures before terminating employment. The district court granted the employer's motion for summary judgment, orally holding that because the employer made no oral or written representations at the time of hiring limiting its right to dismiss, plaintiff's claim failed to set forth a cause of action. We affirm.*fn1


Samuel J. Falcone was first hired by Columbia Pictures Industries, Inc. (Columbia) in March 1976 to work at its Music Publications Division in Hialeah, Florida. At that division, Falcone was the business manager and controller, and as such was responsible for not only the financial affairs of the division, but for handling personnel matters as well. In this latter capacity Falcone reported to both the Corporate Personnel Director of Columbia and the President of the division.

In opposition to Columbia's motion for summary judgment, Falcone asserted that at the "inception" of his employment in March 1976, he was advised orally that it was Columbia's policy and practice before terminating an employee to first give an oral warning to the employee with respect to the problem requiring improvement, and to then give a second warning in writing with a copy to the personnel file of the individual, and finally to terminate the employee if necessary after allowing thirty days for improvement. Falcone conceded before the district court, however, and again before this court, that he was not so advised on the day he was hired but "within the first week of his employment." Falcone further averred that he and other managers, department heads, and supervisors at Columbia administered this "warnings" policy in connection with employees whom they supervised. Falcone did not know, however, of any written policy at the time he was hired.

In September 1981 Columbia promoted Falcone to the position of Controller of its International Pictures division headquartered in New York City. Here he reported to Peter C. Kells, the Senior Vice President of Finance and Administration at Columbia. In connection with this appointment Falcone received an increase in his base salary, and moved himself and his family from Florida to New Jersey.

In January 1982 Columbia issued a Personnel Policy Manual. This manual of restricted circulation was "designed to assist Executives, Department Heads, and managers in communicating and implementing Company personnel policy," and was apparently available only for inspection by, and not distribution to, other Columbia employees. The manual does not appear to discuss termination other than to provide for termination pay in the event of retirement, voluntary termination, or involuntary termination for other than just cause.

In April 1982 Columbia distributed and Falcone received a copy of a booklet entitled "The Company You Have Joined." The booklet contained a section on termination which provided that before dismissal the supervisor would meet with the employee to attempt to resolve the problem, give the employee a chance to improve, and, if necessary, "after sufficient warnings," discuss with the employee the reasons for the termination. It also provided that if any conflicts existed between the booklet and "applicable legal documents," the latter would govern.

On or about August 17, 1982, Columbia notified Falcone that they were terminating his employment and giving him five months severance pay. Falcone asserts that the procedures in Columbia's booklet were not followed, and that the only reason Kells gave for Falcone's termination was that his assignment to the International Pictures division "just hasn't worked out."

After Columbia filed its answer to the complaint a United States Magistrate scheduled a conference at which, over Falcone's objection, the magistrate stayed the depositions which had been noticed by Falcone, as well as requests for documents and interrogatories which had already been served. Falcone alleges that the Magistrate entered this order based upon Columbia's promise that it would stipulate that it did not follow the dismissal procedure alleged by Falcone; however, Columbia denies having agreed to so stipulate. Falcone made further discovery requests and when these were not complied with, the Magistrate determined that Columbia could withhold compliance pending the outcome of defendant's summary judgment motion.

On February 24, 1986, the district court ruled against Falcone on Columbia's motion for summary judgment. The court found that because Falcone failed to present any evidence that he relied upon the company's alleged oral and written representations when he accepted employment, he did not come within New York's narrow limitation on an employer's ability to terminate an at will employee ...

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