A suit by two former New Jersey-based employees of Anheuser-Busch—claiming they were wrongfully discharged based on messages from their personal devices that were transferred to a company tablet—is headed for federal court.
The St. Louis-based brewer of Budweiser and other beers filed a notice of removal to the U.S. District Court for the District of New Jersey on March 19.
“Because there is complete diversity between the parties, and the amount in controversy is in excess of $75,000, this court has original jurisdiction over plaintiffs’ claims,” Anheuser-Busch said in the notice.
The plaintiffs previously worked at Anheuser-Busch’s Jersey City facility. Victor Nascimento, of Elizabeth, was a territory sales manager, while Audry Yule, of Union, was a sales execution coordinator/market manager, according to the complaint, filed Jan. 8 in Hudson County Superior Court.
They worked for the company—as well as a predecessor, Jersey Eagle Sales Co.—for about 12 years. In 2012, shortly after Anheuser-Busch acquired Jersey Eagle, Nascimento was provided an iPad and required to open an iTunes account using a personal credit card, the complaint says.
A year ago, five company employees, including Nascimento and Yule, exchanged a series of text messages, apparently disparaging fellow employee Alex Davis. The messages were transmitted using their personal mobile phones, and on their own time, but Nascimento’s personal phone was linked to his company iPad through the iMessaging application, causing the messages to be stored on the iPad, according to the complaint.
Afterward, Nascimento was issued a new iPad, while the old one—with his text messages and credit card information still stored on it—was loaned to Davis. Davis discovered the text messages and complained, after which Nascimento, Yule and the others were questioned by investigators hired by Anheuser-Busch, according to the complaint.
Nascimento, Yule and a third employee involved in the messaging were terminated last September for “‘violation of corporate policy regarding use of company equipment,’” while a fourth was reprimanded, according to the complaint.
The plaintiffs’ lawyer, Christopher Lenzo, told the Law Journal he wrote to Anheuser-Busch’s legal department last October, contending that the company breached the employees’ constitutional right to privacy in out-of-work communications and conduct, and offered to engage in settlement talks, but to no avail.
The complaint alleges common-law wrongful discharge in violation of a clear mandate of public policy. It also claims Anheuser-Busch violated the New Jersey Law Against Discrimination, contending that black workers—Davis and the employee reprimanded rather than fired—were treated differently than nonblack workers—Nascimento, Yule and the third employee terminated.
The removal notice said, aside from the diversity of the parties, “The entire amount in controversy, while not specifically enumerated in plaintiffs’ complaint, appears to contemplate an amount exceeding the sum or value of $75,000.”
“After discovery is completed and if this matter were to proceed to trial, plaintiffs’ economic damages and counsel fees, by themselves, clearly establish, to a legal certainty, that the amount in controversy is in excess” of that sum, the notice added.
Lenzo, reached by phone, said Anheuser-Busch’s actions are “eroding the very important barrier, in my view, of your public life and your private life.”
“People shouldn’t lose their jobs over what they say in the privacy of their own homes,” he said.
“While [the suit is] a novel application of the law … I don’t think it’s a stretch,” Lenzo added. “It’s a fairly well-established set of principles.”
Anheuser-Busch hasn’t yet filed an answer, according to the notice, but has until April 9 to do so, said Lenzo, who added that he expects the company to seek arbitration.
Anheuser-Busch’s counsel, John Bennett of Jackson Lewis in Morristown, didn’t return a call.