TULSIE DASS v. NATIONAL RETAIL TRANSPORTATION, INC.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1100-04T11100-04T1

TULSIE DASS,

Plaintiff-Appellant,

v.

NATIONAL RETAIL TRANSPORTATION,

INC.,

Defendant-Respondent.

______________________________

 

Argued November 1, 2005 - Decided

Before Judges Coburn, Collester and S.L. Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County,

L-5755-02.

Alan L. Krumholz, argued the cause for appellant (Krumholz Dillon, attorneys;

Mr. Krumholz, on the brief).

Peter T. Shapiro, argued the cause for respondent (Jones, Hirsch, Connors & Bull, attorneys; Mr. Shapiro, on the brief).

PER CURIAM

Plaintiff, Tulsie Dass, appeals from a trial court order granting summary judgment dismissing his complaint filed under the Conscientious Employee Protection Act (CEPA). We affirm.

I

Plaintiff's complaint, filed on September 4, 2002, alleged that he worked for defendant National Retail Transportation, Inc., as a truck mechanic from 1988 to December 5, 2001. He alleged that the Vice President of Maintenance, Lou Piscitelli, required him to perform "personal jobs" for Piscitelli without pay and "away from the corporate premises." The complaint alleged that in 2001, plaintiff refused to repair Piscitelli's son's car without being compensated and that plaintiff complained "to the owners or officers of the company" that Piscitelli was demanding that he perform such unauthorized, unpaid work. After plaintiff complained, "Piscitelli's behavior toward the plaintiff became gradually more abusive and more belligerent." Allegedly, on December 5, 2001, Piscitelli incited an argument with plaintiff as an excuse to terminate him in reprisal for his refusal to perform the unpaid work. Plaintiff contended that his termination, in reprisal for resisting, refusing and complaining about the unpaid work, violated CEPA. N.J.S.A. 34:19-3.

Following extensive discovery, defendant moved for summary judgment, contending that plaintiff was fired for insubordination in connection with his refusal to repair a company truck, denying that he was required to do unpaid work, and contending that there was no connection between any alleged complaints about unpaid work and the decision to fire him.

The trial judge granted summary judgment, concluding that "there is no proof that [plaintiff] was forced to work on . . . projects on his own time." She also concluded that plaintiff had produced no proof, beyond his own allegations, that he was fired for retaliatory reasons or that defendant's stated reason for firing him (insubordination) was pretextual. She also reasoned that a February 2, 2002 determination of the Appeals Tribunal granting plaintiff unemployment benefits did not have collateral estoppel effect on the issue of whether he was fired for insubordination.

II

There was some corroboration in the record for plaintiff's claim that he complained about having to perform unpaid work, that he complained about abusive conduct by Piscitelli, and that he was a good employee. William Cluver, Director of Corporate Safety and Loss Control, testified at his deposition that plaintiff did complain to him informally about having to work on Piscitelli's son's car. He also testified that plaintiff complained to him "that Lou [Piscitelli] was screaming at him, and he had smelled alcohol on his breath." Cluver also testified that plaintiff "did a very good job."

Plaintiff testified at his deposition that beginning about six months before his termination, he began complaining to Ray Wisniewski, the company President, about Piscitelli's alcohol use and abusive behavior, and he told Wisnieswki that he was not going to do any more personal favors [free work] for Piscitelli. He also testified that about three months before his termination, he made another complaint to Wisnieswki and Wisniewski said he would talk to Piscitelli; he subsequently reported back to plaintiff that he had talked to Piscitelli. Plaintiff testified that after he complained to Wisniewski, Piscitelli "very often" would "yell and scream at me for no reason."

Plaintiff also testified that about three months before his termination, he complained to Executive Vice President Frank Walsh that Piscitelli was asking him to do personal favors and that Piscitelli was drinking and treating him badly. At one point he told Walsh that Piscitelli wanted him to work on his son's car off-premises, and Walsh told plaintiff that he didn't have to do that personal work for Piscitelli. He also testified that, about two weeks before his termination, he told Walsh that he thought Piscitelli was "looking to fire me." He reached this conclusion because Piscitelli was sending supervisors to look over his shoulder and because Piscitelli would no longer talk to him about work. Before he started complaining and refusing to do personal jobs for Piscitelli, Piscitelli would "stop by the shop and discuss the work" with plaintiff. After he complained to his supervisors about Piscitelli, Piscitelli no longer did this.

Defendants admitted that company employees, including plaintiff, were required to work on the owners' and managers' personal vehicles on company time. They also admitted that company employees performed other personal work for them, including working on the supervisors' boats and doing painting and other work at the supervisors' homes. But they contended that plaintiff was always paid for this work.

They admitted that Piscitelli made the decision to fire plaintiff. In his certification, Piscitelli contended that he fired plaintiff for being insubordinate and that before the insubordination incident, he had concerns about plaintiffs' absenteeism and uncooperative attitude toward his direct supervisor, George Morris.

Both Piscitelli and Morris certified that on December 4, 2001, plaintiff heatedly refused directions from first Morris and then Piscitelli to repair a truck. Piscitelli did not fire plaintiff on December 4. Instead, according to Piscitelli's certification, he "visited Mr. Dass in the body shop" on the next day (December 5) and "told him that I was prepared to forget yesterday's incident, but that he should know that he cannot act as he did towards Mr. Morris and me and had to follow our directions. Mr. Dass became indignant and began to yell at me again." Finally "[a]s the conversation proceeded in a heated manner, Mr. Dass called me a no good motherfucker. I told him that he was fired."

Plaintiff's testimony is actually consistent with Piscitelli's version in critical respects. In his deposition, plaintiff admitted that on the day before he was fired, he had a heated disagreement with his supervisor, George Morris, and then also with Piscitelli, over Piscitelli's direction that he repair a company truck that had a broken spoiler. Piscitelli wanted plaintiff to fix the spoiler so the truck could be placed back in service immediately. Plaintiff had ordered a new spoiler and wanted to wait for it to come in before fixing the truck; he felt that if he repaired the broken spoiler the repair would not hold. Plaintiff admitted that both he and Morris raised their voices, after which Morris went to talk to Piscitelli and Piscitelli called plaintiff into his office. Plaintiff testified that at that meeting Piscitelli swore at him and demanded that he fix the spoiler, and plaintiff walked out of the meeting saying "I won't stand here and let you abuse me." There is no doubt Piscitelli made it abundantly clear that he wanted plaintiff to fix the truck immediately.

There is also no dispute that Piscitelli did not fire plaintiff after the December 4 incident. Instead, he met with plaintiff the next day. According to plaintiff's deposition testimony:

The next day [Piscitelli] came to the shop and I'm trying to explain to him about the truck and he keeps saying if I ever talk to him that way he going to fire me and I didn't pay him no mind. I keep telling him [sic] but this piece today, why you can't fix the piece. I say it doesn't work, it takes a lot of work and the piece is wet, it's fiberglass, it has to dry it out and [he] keep telling me he going to fire me and I said well, if you're going to insist you want to fire me, you know, do what you have to do and he said get the fuck out of here, you're fired, get out.

There is no dispute that plaintiff belonged to a union while employed at National. The union contract, which is in the record, lists insubordination as one of the grounds that would justify the employer in immediately terminating an employee without going through a process of progressive discipline.

III

The Conscientious Employee Protection Act protects employees against retaliation for complaining to supervisors or outside agencies about an employer's illegal activities. N.J.S.A. 34:19 2(e), -3(a). Complaining to an employer about an unlawful failure to pay wages, would constitute protected activity under CEPA. Zubrycky v. ASA Apple, Inc., ___ N.J. Super. ___ (App. Div. 2005).

Because CEPA is essentially a civil rights statute, a CEPA case is to be analyzed using the same principles, and the same burden-shifting framework, as is applicable to the Law Against Discrimination, N.J.S.A. 10:5-1 to -49. See Kolb v. Burns, 320 N.J. Super. 467, 477 (App. Div. 1999). Plaintiff must produce evidence that he engaged in protected activity under CEPA, that he was fired, and that there is a causal connection between the protected activity and the termination. Id. at 476. Once plaintiff makes a prima facie showing, the employer must provide evidence of a legitimate non-retaliatory reason for the discharge. Id. at 478. Plaintiff must then show that the "employer's proffered reasons were a pretext" for retaliatory action taken by the employer. Ibid.

In this case, plaintiff contends that he complained about being required to perform unpaid work and was fired as a reprisal. Defendant contends that plaintiff was fired for insubordination. Plaintiff contends that Piscitelli deliberately baited him into an argument in order to have an excuse to fire him.

For summary judgment purposes, the evidence supports a finding that plaintiff engaged in protected activity under CEPA. Piscitelli and other company executives admitted asking plaintiff to perform personal jobs for them, both on company premises and at other locations. Although they contend he was paid, they produced no documentation that he was paid for this work. Plaintiff could hardly be expected to produce documentation that he was not paid for this work, although he did produce a list of jobs for which he claims he was not paid. His certification and deposition testimony that he was not paid are sufficient to withstand summary judgment on this issue. Requiring an employee to perform unpaid work is a clear violation of wage and hour laws; defendant does not dispute this general proposition.

Plaintiff also produced legally competent evidence that he complained to supervisors in the company about being required to perform unpaid personal work for Piscitelli and other company supervisors. Cluver admitted that plaintiff complained to him about these issues. Plaintiff also produced evidence that at some point he refused to perform any more of this unpaid personal work for Piscitelli. The refusal to perform unpaid work in violation of wage and hour laws, and making complaints about the unpaid work, is protected activity under CEPA. N.J.S.A. 34:19-3(a). And there is no dispute that plaintiff was fired.

But to prevail on his CEPA claim, plaintiff must also show that "a causal connection exists between the whistle-blowing activity and the adverse employment action." Dzwonar v. McDevitt, 177 N.J. 451, 462 (2003). The real issue is whether plaintiff produced direct or circumstantial evidence from which reasonable jurors could conclude that his termination was motivated in whole or in part by retaliatory animus due to his complaints about, or his refusal to continue to perform, unpaid work.

Based on our review of the entire motion record, we conclude that no reasonable trier of fact could find that plaintiff was fired as a reprisal for complaining about having to perform unpaid work. Plaintiff's own testimony establishes that he was insubordinate in refusing to repair the truck, despite being told to do so multiple times by two different supervisors. Consistent with the union contract, Piscitelli could have fired plaintiff for insubordination on December 4, 2001, when he was insubordinate the first time. And if Piscitelli were looking for an excuse to fire plaintiff as a reprisal, that is what he would have done. But he did not. Instead, by plaintiff's own admission, Piscitelli sought him out again on December 5 and gave him another opportunity to do the work he had been directed to do. Plaintiff again refused, because he disagreed with his supervisors about the best way to perform the repairs. Plaintiff testified in his deposition that he did not remember whether anyone swore during his first confrontation with Piscitelli on December 4, and he submitted no legally competent evidence denying that he called Piscitelli an obscene name during their meeting on December 5.

Plaintiff did not establish, either directly or by reasonable inference, that there was a causal connection between his protected activity and his termination. There is, for example, no evidence that employees who did not engage in CEPA-protected activity were insubordinate and were not fired. The undisputed evidence supports the employer's contention that plaintiff was terminated for insubordination, a legitimate non-retaliatory reason, and plaintiff did not submit evidence that the employer's proffered reason was a pretext for retaliation in violation of CEPA.

Finally, we agree with the trial judge that the decision of the Appeals Tribunal granting plaintiff's unemployment claim is irrelevant for two reasons. First, there is no indication that the defendant appeared at the hearing and hence the Tribunal's finding represented plaintiff's one-sided version of events. And second, the legal standard for receiving unemployment benefits is different, and less demanding, than the standard required to establish a CEPA violation. See Zubrycky v. ASA Apple, Inc., ___ N.J. Super. ___ (App. Div. 2005).

 
Affirmed.

Plaintiff also alleged he was fired for complaining about Piscitelli's drinking habits. But he abandoned this claim in the trial court and we therefore will not address the issue here.

A spoiler, or aerodynamic fairing, is a part that is attached to the side of the truck cab to block air from flowing between the cab and the truck trailer and slowing the truck down. It is not necessary to the safe operation of the truck.

There is no evidence from which reasonable jurors could conclude that plaintiff's termination was connected to his alleged complaints about environmental problems. There is no evidence that any supervisor was upset by plaintiff's complaints about this issue. And he admitted that Piscitelli told him that the problems would be remedied when the company built a new maintenance building.

(continued)

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12

A-1100-04T1

November 22, 2005