                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-9-2006

Brokenbaugh v. Exel Logistics NA
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4106




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                                                                  NOT PRECEDENTIAL

                          IN THE UNITED STATES COURT
                                   OF APPEALS
                              FOR THE THIRD CIRCUIT


                                       NO. 04-4106


                            WILLIAM T. BROKENBAUGH,
                                    Appellant

                                            v.

                     EXEL LOGISTICS NORTH AMERICA, INC.,
                       a corporation; JANE DOE, Individually;
                                     JOHN DOE


                    On Appeal From the United States District Court
                            For the District of New Jersey
                        (D.C. Civil Action No. 01-cv-02273)
                        District Judge: Hon. Robert B. Kugler


                                Argued January 25, 2006

                       BEFORE: RENDELL and STAPLETON,
                      Circuit Judges, and POLLAK,* District Judge

                              (Opinion Filed March 9, 2006)




Dennis K. Kuroishi (Argued)
7 East Kings Highway
Mt. Ephraim, NJ 08059
 Attorney for Appellant

*Hon. Louis H. Pollak, United States District Judge for the Eastern District of
Pennsylvania, sitting by designation.
Patricia A. Smith (Argued)
Ballard, Spahr, Andrews & Ingersoll
Plaza 1000 - Suite 500
Main Street
Voorhees, NJ 08043-4636
 Attorney for Appellee




                               OPINION OF THE COURT




STAPLETON, Circuit Judge:

       William Brokenbaugh is an African-American male who worked for Defendant

Exel Logistics (“Exel”) for 13 years as a forklift operator. On May 25, 2000, Exel

terminated his employment. He was 40 years old at the time. Brokenbaugh claims that

he was unlawfully fired because of his race, his gender, and/or his age. Exel claims that it

reached its decision to fire Brokenbaugh because an incident of perceived dishonesty with

a supervisor concluded a long story of persistent misconduct on the job. The District

Court granted summary judgment in favor of the employer. We agree that summary

judgment was appropriate.

       In the years leading up to May 25, 2000, Exel recorded numerous incidents of

workplace misconduct by Brokenbaugh. In October 1994, Brokenbaugh tested positive

for cocaine while on the job. In October 1997, he received a warning for having

threatened a co-worker. In August 1998, Brokenbaugh was involved in an accident with



                                             2
his forklift. While there was no property or personal damage, Exel tested Brokenbaugh

for drugs and he again tested positive for cocaine. Two months later, in November 1998,

Brokenbaugh for a third time tested positive for cocaine while on the job. In December

1998, Brokenbaugh and Exel’s General Manager signed a document in which

Brokenbaugh promised to participate in drug rehabilitation. In 1999, Brokenbaugh

continued to receive warnings from Exel for misconduct – once for having performed his

duties in a careless manner and once for insubordination. In January 2000, he was again

warned for performing substandard work. In May 2000 – days before his termination –

he was warned for having threatened the same co-worker whom he had been warned for

threatening in 1997. These instances were documented by written warnings that cite the

company “work rule” that had been violated and that were signed and dated by

Brokenbaugh and his supervisors.

       Brokenbaugh is afflicted with glaucoma which caused him to suffer severe

migraine headaches from time to time. He would relieve his headaches by taking aspirin,

resting for a period of time, and engaging in relaxing activities. An activity he found

relaxing was washing cars of his fellow employees. Early in the day on May 25, 2000,

Brokenbaugh told a supervisor that he had a migraine headache and obtained permission

to leave the workplace. As he was leaving, Brokenbaugh ran into a co-worker, Virginia

Tighe, whose car he had an appointment to detail that evening. Instead of waiting until

the evening, he drove the car to his home, rested for a couple of hours to allow the



                                             3
headache to subside, and then detailed Tighe’s car. He returned to the job site at 4:00

p.m. to drop off the car. Brokenbaugh did not attempt to collect compensation for the

time he took off.

       During that day at Exel, Michelle Burden, Brokenbaugh’s supervisor, received a

complaint from a colleague that Brokenbaugh was not out sick, as he had claimed, but

rather that he had left work in order to detail Tighe’s car. After she confirmed with Tighe

that Brokenbaugh was detailing her car, Burden wrote a memo to Exel’s General

Manager, Scott Dintiman, outlining the situation. Dintiman and Exel’s Regional Human

Resources Manager for the Northeast, Alan Schaefer, confirmed the facts with Burden

and Tighe and discussed what action should be taken. Schaefer, who was not familiar

with Brokenbaugh, reviewed his personnel record and concluded that he had a “very

checkered past” at Exel. App. at 208a. In order to confirm what had happened before

they took action, Schaefer and Dintiman decided to wait and see if Brokenbaugh returned

with Tighe’s car.

       According to Brokenbaugh, when he returned to work with the car, Burden

directed him to Dintiman’s office. He was told that “because it appeared that

Brokenbaugh had gone home to detail a car, Brokenbaugh was being suspended for

dishonesty.” Br. Appellant at 9. Brokenbaugh describes the meeting as one-sided – that

“Dintiman did not allow Mr. Brokenbaugh to get a word in edgewise” which was not in

accord with Exel’s practice for dealing with infractions. Id. Exel describes the meeting



                                             4
similarly, but notes that Brokenbaugh admitted to Dintiman that he had detailed Tighe’s

car, and that Dintiman said that he believed that Brokenbaugh had deceived Burden in

order to do this. In handwritten notes on the memo from Burden, Dintiman recorded that

“I indicated that this was an issue with honesty & distrust. I informed him that he was

being suspended & we would contact him when a decision was made.” App. at 640.

Brokenbaugh subsequently received a letter dated May 31, 2000, from Exel stating that

his employment was being terminated for violating “work rule #1” which identifies as

grounds for immediate discharge:

       Dishonesty of any kind, including, but not limited to, falsifying employment
       data, reports, timecards, or time records. Knowingly punching another
       associate’s timecard is a violation of this rule.

District Ct. Op., App. at 10, App. at 632.

       Brokenbaugh sued in the United States District Court in New Jersey claiming that

he was terminated because of discrimination on account of his race, gender, and age in

violation of the New Jersey Law Against Discrimination (“NJLAD”) and racial

discrimination in violation of 42 U.S.C. § 1981. He also asserted claims based on

common law wrongful discharge and breach of employment contract. After discovery,

both Exel and Brokenbaugh moved for summary judgment.

       The District Court granted summary judgment in favor of Exel on all claims. The

Court applied the three-part burden-shifting framework first articulated in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973), to evaluate Brokenbaugh’s discrimination



                                             5
claims under the NJLAD and § 1981. Applying the three-part, burden-shifting

framework, the District Court either found or assumed with respect to each claim that

Brokenbaugh had established his prima facie case of discrimination and that Exel had

satisfied its burden of offering a legitimate non-discriminatory reason for his firing, i.e.,

that Brokenbaugh’s dishonesty with his supervisor on May 25, 2000, was “the last straw”

– the breaking point for Brokenbaugh’s heavy load of workplace infractions. On the third

step of the McDonnell Douglas framework, the District Court concluded that

Brokenbaugh had not demonstrated that Exel’s proffered reasons were pretext for

discrimination. The Court granted summary judgment in favor of Exel on Brokenbaugh’s

discrimination claims, as well as his common law claim of wrongful discharge and his

breach of contract claim.1

       Brokenbaugh makes four arguments on appeal. With respect to his discrimination

claims, he argues (1) that the District Court considered materials that under Federal Rule

of Civil Procedure 56(e) could not be properly considered in support of a motion for

summary judgment; (2) that the District Court misperceived the governing law; and (3)

that – even assuming the District Court applied the correct legal standards – it misapplied

that law. Brokenbaugh also claims (4) that the District Court improperly granted

summary judgment on his breach of contract claim.

       The District Court properly exercised jurisdiction under 28 U.S.C. §§ 1331, 1367

   1
    Brokenbaugh does not appeal the District Court’s decision regarding his common
law wrongful discharge claim.

                                               6
and our appellate jurisdiction rests on 28 U.S.C. § 1291 as the grant of summary

judgment was a final order of a District Court. Our review of grants of summary

judgment is plenary and we “must apply the same test employed by the District Court

under Federal Rule of Civil Procedure 56(c).” Kautz v. Met-Pro Corp., 412 F.3d 463,

466 (3d Cir. 2005). “In reviewing the grant of a motion for summary judgment, we (i)

resolve conflicting evidence in favor of the nonmovant, (ii) do not engage in credibility

determinations, and (iii) draw all reasonable inferences in favor of the nonmovant.”

Fuentes v. Perskie, 32 F.3d 759, 762 n.1 (3d Cir. 1994).

                                             I.

       Brokenbaugh argues that the District Court considered hearsay and otherwise

inadmissible materials in violation of Federal Rule of Civil Procedure 56(e). The

materials he challenges were before the court in an attachment to a sworn statement of

Alan Schaefer. The materials are numerous documents from Brokenbaugh’s personnel

file chronicling his history of workplace misconduct. Brokenbaugh argues that

Schaefer’s sworn statement that these are “true and correct” copies of company

documents is not sufficient because it “attempts to ‘certify’ as to information not within

the personal knowledge of the putative affiant.” Br. Appellant at 16.

       In granting or denying a motion for summary judgment, courts consider “the

pleadings, depositions, answers to interrogatories, and admissions on file, together with

the affidavits” provided by the parties. Fed. R. Civ. P. 56(c). The Federal Rules instruct:



                                             7
       Supporting and opposing affidavits shall be made on personal knowledge,
       shall set forth such facts as would be admissible in evidence, and shall show
       affirmatively that the affiant is competent to testify to the matters stated
       therein.

Fed. R. Civ. P. 56(e). Brokenbaugh insists that Schaefer was not competent to testify to

the matters within Brokenbaugh’s personnel file because Schaefer lacked any personal

knowledge of their truth.

       Brokenbaugh is mistaken. Schaefer was competent to testify to the matters within

the personnel file for the purpose of establishing Exel’s motivation to discharge

Brokenbaugh. When offered to show why Exel decided to fire Brokenbaugh, the out-of-

court statements in Brokenbaugh’s personnel file were not “offered in evidence to prove

the truth of the matter asserted” and, thus, were not hearsay. See Fed. R. Evid. 801(c).

Schaefer had the personal knowledge necessary to competently testify about the contents

of Brokenbaugh’s file and how they influenced Exel’s decision. See Capobianco v. City

of New York, 422 F.3d 47, 55-56 (2d Cir. 2005) (finding that a document in a personnel

file of an ADA discrimination plaintiff was admissible to show the employer’s state of

mind in firing him and thus properly considered at summary judgment in accord with

Rule 56(e)); Aucutt v. Six Flags over Mid-America, Inc., 85 F.3d 1311, 1317 (8th Cir.

1996) (finding an affidavit of a supervisor containing a third party’s description of an

incident involving a discrimination plaintiff was properly considered under Rule 56(e)

because the affidavit “was based on [the supervisor’s] personal knowledge of the reasons




                                             8
underlying the challenged employment decision”).2

                                              II.

       Brokenbaugh contends that the District Court did not correctly understand what a

plaintiff in his position must tender in order to survive summary judgment. Specifically,

he contends that under Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), and the 1991

Amendments to the Civil Rights Act as interpreted in Desert Palace, Inc. v. Costa, 539

U.S. 90 (2003), he needed only to tender evidence from which a factfinder could infer by

a preponderance of the evidence that race, gender, and/or age was one factor that played a

role in Exel’s decision, i.e., that it was a “motivating” factor and not necessarily the

“determinative” one. Under these authorities, according to Brokenbaugh, once he

tendered such evidence, Exel had the burden of showing that it would have made the

same termination decision even in the absence of one or more of these motivating factors.

       We may assume for present purposes that these Title VII authorities are generally

applicable to discrimination claims based on 42 U.S.C. § 1981 and the NJLAD and that

   2
    Brokenbaugh also contends that the affidavit provided by Alan Schaefer was
defective because it “failed to include the jurat, acknowledgment, notarization or any
other indication that Mr. Schaefer swore or affirmed the text of the affidavit before a
person authorized to administer oaths.” Br. Appellant at 16. In response, Exel points out
that it resolved this issue by submitting a supplemental “Schaefer Declaration” that
contained the same information as the affidavit in a form that complied with 28 U.S.C. §
1746. We agree with Exel. The supplemental “Schaeffer Declaration” satisfies the
requirements of 28 U.S.C. § 1746 and thus is a valid affidavit for purposes of Rule 56.
See United States v. 225 Cartons, More or Less, of an Article or Drug, 871 F.2d 409, 414
n.4 (3d Cir. 1989) (“These [declarations] were filed under penalty of perjury pursuant to
28 U.S.C. § 1746 (1982) and thus satisfy the affidavit requirement of Rule 56.”).


                                              9
they are specifically applicable to the case reflected in this record. While those

propositions are by no means clear,3 we may assume arguendo that they are because

Brokenbaugh has not tendered evidence, direct or circumstantial, from which a factfinder

could reasonably infer that race, gender, and/or age was even a “motivating” factor in

Exel’s decision. In short, both of the authorities Brokenbaugh invokes would require him

to produce evidence from which a factfinder could reasonably conclude that an

impermissible factor like race, gender, or age played at least some role in Exel’s decision

making process or evidence by which a factfinder could reasonably disbelieve Exel when

it says it fired him for misconduct. Under either of the legal standards he invokes, his

claim would still fail as the evidence he has presented would not allow a jury to

reasonably reach either conclusion.

       We note that the District Court’s statement of the governing law gave

Brokenbaugh the benefit of the rule he seeks:

       Where . . . the employer has proffered a legitimate nondiscriminatory reason
       for its action the plaintiff must point to some evidence, direct or

   3
     The 1991 Amendments to the Civil Rights Act by their terms are, of course, not
applicable to § 1981, and Desert Palace does not suggest that they affect anything other
than Title VII liability. The Supreme Court of New Jersey has not yet had occasion to
address the issue of whether New Jersey law under the NJLAD will follow these Title VII
amendments. See Meyers v. AT&T, 882 A.2d 961, 970-71 (N.J. Super. Ct. App. Div.
2005). (“The Third Circuit has not directly addressed the issue. Nor is there guidance
from our own Supreme Court concerning how the decision in Desert Palace might alter
its analysis . . . [in] mixed motive cases.”) Finally, as we note hereafter, this record
contains no “direct evidence” of discrimination as the kind necessary under Price
Waterhouse to absolve a plaintiff of the duty to show “but for” cause – i.e., that an
impermissible consideration was a “determinative” cause.

                                             10
       circumstantial, from which a factfinder could reasonably either (1)
       disbelieve the employer's articulated legitimate reasons; or (2) believe that
       an invidious discriminatory reason was more likely than not a motivating or
       determinative cause of the employer's action.

District Ct. Op., App. at 28 (quoting Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994)).

Under this statement of the governing rule, Brokenbaugh could escape summary

judgment by tendering evidence of pretext (which would permit an inference satisfying

either causation standard) or other evidence that would support an inference of either “a

motivating cause” or “a determinative” one. Turning to the record, we find that

Brokenbaugh tendered no such evidence.

                                            III.

       As we have indicated, Exel insists that Brokenbaugh was terminated because it

believed that he had been dishonest with his supervisor on May 25, 2000, and that this

was but one in a long line of other serious work infractions. The evidence regarding the

information that Exel’s decision makers, its General Manager and Regional Human

Resources Manager, considered in making the discharge decision is undisputed both with

respect to events of May 25th and with respect to Brokenbaugh’s work history. With

respect to the former, they were reliably advised or personally observed that Brokenbaugh

had asked his superior if he could be excused from work because he was ill, that he had

then taken a co-worker’s car to detail with him as he left, and that he had returned the

detailed car to the co-worker at the end of the day. With respect to Brokenbaugh’s

record, his personnel file disclosed the following:

                                             11
8/19/94 – Brokenbaugh warned for testing positive for cocaine.
10/3/97 – Brokenbaugh warned for threatening a co-worker.
8/3/98 – Brokenbaugh warned for forklift accident, testing positive for cocaine.
11/2/98 – Brokenbaugh tested positive for cocaine.
12/2/98 – Brokenbaugh signs agreement with company to get rehab to keep his job.
5/11/99 – Brokenbaugh warned for performing duties in a careless manner.
11/4/99 – Brokenbaugh warned for insubordination.
1/10/00 – Brokenbaugh warned for substandard work.
5/22/00 – Brokenbaugh warned for threatening the same employee as in 1997.

It is thus clear that from the perspective of Exel’s decision makers there was ample cause

for Brokenbaugh’s discharge.

       Brokenbaugh’s principal response is that he did nothing wrong on May 25th

because he did have a migraine headache that morning when he spoke to his supervisor

and because there was no work rule requiring that he return to work that day so long as he

did not ask to be paid for the day. There is evidence that would support such a finding.

In the context of this record, however, that evidence does not speak to the pretext issue, or

give rise to an inference of intentional discrimination. To show pretext, “the plaintiff

cannot simply show that the employer’s decision was wrong or mistaken, since the factual

dispute at issue is whether discriminatory animus motivated the employer, not whether the

employer is wise, shrewd, prudent, or competent.” Fuentes v. Perskie, 32 F.3d 759, 765

(3d Cir. 1994). The pretext issue is not whether Exel had cause to terminate

Brokenbaugh, but rather whether it believed it had such cause and acted upon that belief.

The uncontradicted and contemporaneously documented evidence indicates that Exel’s

decision makers believed that he had a long history of misbehavior and that he had lied to



                                             12
his supervisor. Indeed, when Brokenbaugh was asked at his deposition whether he

thought that Exel’s General Manager Scott Dintiman believed that he had gone home in

order to detail a car rather than because of sickness, Brokenbaugh acknowledged that he

believed Dintiman had reached that conclusion; he argued only that Dintiman was wrong

to have done so. In this context, evidence which supports only an inference that the

employer was wrong will not support a finding of pretext.

       Brokenbaugh also contends that pretext can be inferred from Exel’s letter of May

31, 2000, which identified dishonesty as the reason for his discharge, but not his long

history of workplace infractions. He points out that “[i]f a plaintiff demonstrates that the

reason given for [his] termination did not remain consistent . . . this may be viewed as

evidence tending to show pretext.” See, eg., Abramson v. William Paterson College of

New Jersey, 260 F.3d 265, 284 (3d Cir. 2001). This is, of course, true, but, in context, a

trier of fact could not reasonably conclude here that the difference between Exel’s May

31, 2000, letter and its position in this suit was probative of whether its “last straw”

explanation was a pretext for race, gender, and/or age discrimination. That letter

informed Brokenbaugh that his employment was being terminated for dishonesty, and this

was in fact the cause of his discharge even if it was viewed in light of his prior offenses.

His earlier offenses, though numerous and serious, had not resulted in his being fired, and

he would not have been fired but for the perceived dishonesty. The letter was thus not

inconsistent with Exel’s explanation in this litigation regarding what motivated its



                                              13
decision, at least not in a way that would support an inference of pretext.

       Finally, Brokenbaugh insists that an inference that race, gender, and/or age played

a role in Exel’s decision can be drawn from his evidence regarding “comparators” – other

employees not members of his race, gender or age group who he claims were treated more

favorably. Brokenbaugh identifies 19 employees at Exel who he claims were similarly

situated and had been treated with more leniency than Brokenbaugh. After reviewing the

evidence, we find no evidence of an employee at Exel that had amassed a record so

replete with workplace infractions that he or she might be considered similarly situated to

Brokenbaugh. Nor did any of the employees Brokenbaugh identifies engage in

misconduct for as long as he did.4 The two employees whose records come the closest to

Brokenbaugh’s – Patrick Beals and Gene Gurlin – were also discharged for their

misconduct and do not appear to have been tolerated for as long as Brokenbaugh.

       This is a case in which the employee claiming discrimination worked for the

employer for 13 years. He does not claim that any of his previous workplace infractions

were the product of bias or, indeed, that anything else that happened in the workplace

prior to May of his 13th year reflects impermissible discrimination at work. The only

reasonable inference to be drawn from the evidence is that such discrimination played no



   4
    Brokenbaugh points to several employees who had amassed certain levels of points in
a system devised by Exel to track absences. However, Brokenbaugh was not terminated
on the basis of his absences or the point level he achieved based on those absences. We
evaluate the evidence only as it pertains to “the criteria identified by the employer, not the
criteria only the plaintiff thinks are important.” See Simpson, 142 F.3d at 647-48.

                                             14
role as well in the employer’s discharge decision. Indeed, if Exel’s managers had been

burdened with the discriminatory animuses Brokenbaugh claims, one would expect that

he would have been terminated long before he was as a result of one of his earlier

infractions.

                                             IV.

       Finally, Brokenbaugh challenges the District Court’s grant of summary judgment

on his breach of contract claim. After his third positive test for cocaine on the job,

Brokenbaugh and Exel signed a document dated 12/2/98 containing the following text:

                                 Condition of Employment
                                 William Brokenbaugh . . .

       This document is a mutual and binding agreement between William
       Brokenbaugh . . . and EXEL Logistics regarding Mr. Brokenbaugh[‘s]
       continued employment

       WHEREAS, Mr. Brokenbaugh has expressed a desire to voluntarily
       participate in certified drug rehabilitation

       WHEREAS, Exel has agreed to accept Brokenbaugh’s desire effective
       November 6, 1998, and;

       WHEREAS, Mr. Brokenbaugh and Exel want to formalize the terms of this
       November 6, 1998 condition of employment and to compromise any
       differences which may exist between them;

       NOW, THEREFORE, in consideration of the mutually satisfactory
       promises set forth herein, the sufficiency of which is hereby mutually
       recognized, Mr. Brokenbaugh and Exel agree as follows:

       1.      Mr. Brokenbaugh must be evaluated by a certified counseling service and
               fully participate in a drug rehabilitation program. He will provide
               documentation of the recommended counseling program as well as

                                             15
             documentation of the successful completion of such program.

       2.    Mr. Brokenbaugh’s continued employment is conditional on strict
             compliance with the prescribed treatment plan. The counseling service will
             inform EXEL an on-ongoing account of his participation in the program.
             Failure to participate in a prescribed treatment plan will result in
             termination of employment.

       3.    EXEL Logistics will provide payment for the counseling service only as
             noted in the EXEL logistics Medical Benefits Plan.

       4.    Mr. Brokenbaugh will be required to take another drug screen in
             approximately 90 days. If the results of the screen are “positive,” Mr.
             Brokenbaugh’s employment will be terminated.

App. at 626. This dispute is best summarized by the parties’ dueling descriptions of that

document: Exel dubs it Brokenbaugh’s “last-chance agreement” and Brokenbaugh refers

to it as his “long-term employment contract.” Brokenbaugh argues that Exel violated the

covenant of good faith and fair dealing when it terminated his employment in violation of

the implied contractual obligation in this document: stay clean and you can keep your

job.

       In New Jersey, employees are presumed to be terminable at will unless they have a

contract with their employer:

       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. An
       employment relationship remains terminable at the will of either an
       employer or employee, unless an agreement exists that provides otherwise.

Witkowski v. Thomas J. Lipton, Inc., 643 A.2d 546, 552 (N.J. 1994) (citations omitted).

However, New Jersey does recognize that employment manuals spelling out termination



                                            16
procedures can give rise to contractual obligations:

       [I]f 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, the manual will constitute, in effect, a unilateral offer to
       contract that an employee may accept through continued employment.

Id. at 552. “The key consideration in determining whether an employment manual gives

rise to contractual obligations is the reasonable expectations of the employees.” Id. at

550. While there is no “categorical test” for determining if employment manuals give rise

to such obligations, “[c]ertain factors . . . will generally be relevant . . . [such as] the

manual's specific provisions and the context of its preparation and distribution.” Id.

       The document produced by the parties is similar to an employment manual in that

it describes specific conditions for Brokenbaugh to avoid being fired. Like an

employment manual, Brokenbaugh essentially argues that this document gives rise to an

obligation: if the employee follows the rules, he or she will not be fired. Assuming New

Jersey’s doctrine is applicable to this kind of document, we find that this document cannot

be read to create a reasonable expectation of continued employment. The “context of

[this document’s] preparation and distribution” to Brokenbaugh was his third positive test

for cocaine use on the job. We agree with the District Court that “it would be illogical

and would defy common sense to conclude that Exel, after discovering a third instance of

drug abuse by this employee who operates a forklift, intended to ensure this employee’s

position.” District Ct. Op., App. at 37. In addition, the “specific provisions” of the



                                               17
document seem consistent with Exel’s description of this as a “last-chance agreement.” It

is entitled “Condition of Employment.” Exel only “agrees” to“accept Brokenbaugh’s

desire” to obtain drug rehabilitation and to pay for drug counseling consistent with its

benefits plan. Finally, it is difficult to understand how Brokenbaugh could expect that if

he was dishonest with supervisors, abused another employee, had another accident, or

violated numerous other company policies, Exel would be bound to continue his

employment as long as he did not violate this agreement. Because this expectation would

not have been reasonable in the context of this document’s creation, there was no binding

agreement, and he could be fired for “good reason, bad reason, or no reason at all.” 5

                                             V.

       The judgment of the District Court will be affirmed.




   5
     The Court in Witkowski v. Thomas J. Lipton, Inc., 643 A.2d 546, 553 (N.J. 1994)
(citations omitted), did note exceptions to this rule exist for employees whose firing
violates “public policy” or the NJLAD. We have considered the NJLAD claim and we
perceive no public policy problem with Brokenbaugh’s discharge.

                                             18
