ARMANDO PAVON v. UNITED PARCEL SERVICE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6329-04T26329-04T2

ARMANDO PAVON,

Plaintiff-Appellant,

v.

UNITED PARCEL SERVICE, INC.,

TOM ROY, JOE NAPOLITANO,

NATHANIEL SHIVERS, JACK SANTORO,

GEORGE DONOVAN, JASEN BARASTAIN

and TONY NOVAK,

Defendants-Respondents,

and

JERRY DANIELLO, DAN GROSS and

DANIEL HOYA,

Defendants.

________________________________________________________________

 

Argued January 18, 2007 - Decided February 22, 2007

Before Judges Lefelt, Parrillo and

Sapp-Peterson.

On appeal from the Superior Court of New

Jersey, Law Division, Hudson County,

Docket No. L-2502-03.

Alan L. Krumholz argued the cause for

appellant (Krumholz Dillon, attorneys;

Mr. Krumholz, on the brief).

Mary B. Rogers argued the cause for

respondents (Pitney Hardin, attorneys;

Ms. Rogers and Brigette N. Eagan, on

the brief).

PER CURIAM

Defendant United Parcel Service, Inc. (UPS), terminated plaintiff Armando Pavon for insubordination when he refused to follow company policy deeming visual inspections of trailer coupling devices adequate. Plaintiff, a unionized truck driver, insisted that uncoupling the trailers for a closer inspection was necessary for safety. Consequently, plaintiff sued UPS, his managers, and supervisors contending that defendants retaliated against him by harassing and discharging him, in violation of the Conscientious Employee's Protection Act (CEPA), N.J.S.A. 34:19-1 to -8. The motion judge granted defendants' motion for summary judgment and dismissed plaintiff's complaint. Plaintiff appealed and alleges that the trial judge erred in determining plaintiff was unreasonable to believe that (1) UPS policy and practice violated Department of Transportation Driving of Commercial Motor Vehicles Rule 49 C.F.R. 392.7 (2006) (requiring that a driver of a commercial vehicle be satisfied that the coupling devices are in good working order), and (2) adverse arbitration and Department of Labor decisions precluded his CEPA claim. Furthermore, plaintiff argues that his claim was not preempted by the Surface Transportation Assistance Act, 49 U.S.C.A. 31105, which prohibits discharging an employee who refuses to operate a vehicle because of reasonable apprehension that injury might result. We agree with each of plaintiff's arguments and reverse.

I.

The facts and relevant procedural history follow. In his work for UPS, plaintiff drove "a set of bypass doubles from the Meadowlands [Secaucus] to Nassau, New York," and drove a single boxcar back. A bypass is a load that originates in another place. Doubles are two twenty-eight-foot trailers, with a dolly connecting them and holding them together. A "bypass set" or "set of doubles" is a pre-assembled tractor and two trailers.

A kingpin from the rear trailer fits into the dolly, and at least two locks secure it; the assembly is called the fifth wheel. The kingpin ensures that "the dolly stays connected to the trailer and you don't lose the trailer or flip it out on the road." These mechanisms must be kept greased at all times to prevent rust and friction.

Drivers performing pre-trip inspections of bypass trailers are required by UPS policy to visually inspect the coupling device "to detect any gaps (indicated by light or space) between the apron plate (which is on the bottom of the trailer) and the fifth wheel, which would indicate a problem with coupling." Drivers are permitted to uncouple trailers only if they "detect light or space between the fifth wheel and the trailer plate."

According to plaintiff, it is "not possible to obtain a full inspection" of the dolly when the trailers are connected, because the dolly is underneath the rear trailer. Essential items that a driver cannot detect are whether the area is lubricated, whether there are damaged or missing pieces, and whether the kingpin or locks are damaged, bent or in an improper position. Damage to the kingpin or fifth wheel could result in uncoupling or swaying. Looking for light or space between the kingpin and the fifth wheel does not "tell you enough about the integrity of the kingpin." "[I]f they're coupled, you can't see if the kingpin is damaged or even if the glide plate rubbed away . . . . And there's something called a front lock that holds the kingpin to the dolly that you can't check. You can't check for any damage or missing pieces."

Plaintiff certified that he found many faulty registrations, which indicated that the previous driver had done a hurried, careless pre-trip inspection, or had not done any pre-trip inspection at all. Because of these defects, he had no "confidence in previous inspections done by other drivers."

According to plaintiff, UPS was "not concerned about the safe operation of their vehicles. They just want you to hop in your tractor. . . and leave fast. They're only worried about time." No one ever ordered plaintiff to skip his pre-trip inspection, but he was "harassed and intimidated and coerced" to forego portions of his inspections in order "to leave quickly."

One time in 1999 or 2000, two supervisors told plaintiff not to "go underneath the trailer to check the brakes." Plaintiff drove the trailer to Connecticut, where a supervisor noticed that it had cracked brakes.

On another occasion in October 2000, plaintiff refused to drive a trailer with "a very bad air leak," and his supervisor drove it with plaintiff as a passenger. Plaintiff filed a grievance, and the hearing officer reported that his "complaints were legitimate," and that UPS "acknowledged that [the supervisor] used poor judgment when he insisted that a vehicle be driven even though he knew it had an air leak."

Plaintiff complained to the EEOC in February 2000, to UPS corporate headquarters in September 2000, to the EEOC in October 2000, and to the CEO of UPS in March 2001, that management was forcing or pushing him to forego all or parts of safety inspections in order to save time.

Management also complained about plaintiff. In a January 2001 report, a supervisor said: "Armando doesn't follow company methods when doing his pre-trip of the trailer. I demonstrated the pre-trip of the tractor and trailer. . . . Armando takes to[o] much time in his pre-trips." In an August 2001 memo, a supervisor criticized plaintiff for "running very high" on his work hours.

This dispute between management and plaintiff continued into 2002, with plaintiff insisting on the need to uncouple the trailers and management contending it was not necessary and that plaintiff's pre-trip inspections were taking too long. In February 2002, plaintiff complained to UPS's Human Resources Department about harassment, excessive supervision, and not being allowed to use the bathroom. Plaintiff said: "I follow the law and ensure that our equipment is safe for the road. I am being discriminated against because of my conscientiousness."

Finally, in May 2002, UPS issued two notices of discharge to plaintiff for failure to follow proper procedures and insubordination. Plaintiff filed a grievance. Although a June 12, 2002 hearing upheld plaintiff's discharge and terminated his employment with UPS, plaintiff continued to work until his arbitration in October 2002, pursuant to his collective bargaining agreement. During this period, plaintiff continued to uncouple the double trailers and claims to have found air leaks, bad registrations, and faulty dollies once or twice a week.

The arbitrator denied plaintiff's grievance and upheld the discharge. The arbitrator recognized that plaintiff's "insubordination could be excused if compliance with [the supervisor's] order reasonably posed a danger to Pavon or other employees." The arbitrator acknowledged that Pavon was asserting safety as his rationale for uncoupling dual trailers, but according to the arbitrator, "a dangerous outcome is not something which could possibly happen. It has often been held that the fear of danger must be sufficient that a normal person must reasonably and conscientiously believe that peril is imminent." According to the arbitrator, plaintiff "offered nothing but his bold faced assertion that his way was the only safe way." Because plaintiff failed to prove that "the peril was imminent," his grievance was denied and plaintiff was terminated as of October 18, 2002.

Plaintiff then filed a complaint in Federal Court to vacate the arbitration award. The federal judge, after hearing oral argument, noted that she could vacate the award only if (1) the award "fails to draw its essence from the collective bargaining agreement," (2) the arbitrator manifestly disregarded the law, (3) the arbitrator exceeded his power, or (4) enforcement of the award would violate public policy. The judge ruled that "the standard of review . . . leaves me with no other choice but to confirm the award." In the course of this ruling, she also said that plaintiff did not have "the unfettered discretion to create an inspection policy that trumps" the employer's policy.

On April 18, 2003, plaintiff filed a complaint with the Occupational Safety and Health Administration of the United States Department of Labor (OSHA), complaining that his discharge was in retaliation "for having followed [49 C.F.R. 392.7] regarding the inspection of his vehicle's coupling device." Plaintiff also alleged that the retaliation was in violation of the Surface Transportation Assistance Act, 49 U.S.C.A. 31105(a), prohibiting discharge of an employee who refuses to operate a vehicle because it violates a regulation, or because the employee has a reasonable apprehension that serious injury might result from the vehicle's unsafe condition.

On July 18, 2003, an OSHA Regional Investigator issued a "Final Investigative Report" concluding that "[a]ny improperly coupled trailers would be apparent during the standard pre-trip inspection." Plaintiff's insistence on separating the trailers to check the coupling device was unnecessary and the report recommended dismissing plaintiff's complaint. Plaintiff withdrew "his objections to the findings in this matter," and failed to pursue the matter in this forum any further. Eventually, the Administrative Review Board approved an ALJ recommendation and dismissed plaintiff's complaint, noting that he failed to appear. Plaintiff claimed that the "logistics and expense of taking the appeal in Washington, D.C. were more than I could afford."

Consequently, in April 2003, plaintiff filed a complaint in the Law Division of Superior Court, alleging that his discharge was in violation of CEPA and demanding reinstatement, damages, counsel fees and costs. Eventually, defendants moved for summary judgment.

The motion judge noted that, out of UPS's "approximately 13,770 feeder drivers nationwide and 339 feeder driver's within plaintiff's district," only plaintiff and one other "complained about the safety of UPS's pre-trip inspection policy." The judge believed that the record indicated that plaintiff "had no evidence and no basis for concluding that UPS's policy [or] practice of visually inspecting the coupling device for space and light was improper or unsafe." Instead, claiming to view the evidence "in a light most favorable to plaintiff," the judge reasoned that it was "undisputed" that UPS's pre-trip inspection procedure ensured safety while promoting efficiency and timeliness. "The undisputed evidence is that it worked" and consequently plaintiff "failed to establish that he had an objectively reasonable belief that defendant's pre-trip inspection policy violated [ ] 392.7 of the Federal Motor Carrier Safety Regulations." Therefore, the judge granted defendants' motion and dismissed plaintiff's CEPA claim.

II.

The relevant CEPA section provides that:

"[a]n employer shall not take any retaliatory action against an employee because the employee . . . (c) Objects to, or refuses to participate in any activity, policy or practice which the employee reasonably believes: (1) is in violation of a law, or a rule or regulation promulgated pursuant to law . . . or (3) is incompatible with a clear mandate of public policy concerning the public health, safety or welfare. . . ."

[N.J.S.A. 34:19-3]

A plaintiff who sues pursuant to N.J.S.A. 34:19-3(c) "must demonstrate that: (1) he or she reasonably believed that his or her employer's conduct was violating either a law, rule or regulation promulgated pursuant to law, or a clear mandate of public policy." Dzwonar v. McDevitt, 177 N.J. 451, 462 (2003).

The Supreme Court in Dzwonar explained that "when a plaintiff brings an action pursuant to N.J.S.A. 34:19-3(c), the trial court must identify a statute, regulation, rule or public policy that closely relates to the complained-of conduct"; if there is none, the court should dismiss the plaintiff's claim. Id. at 463. If the trial court makes the "threshold determination that there is a substantial nexus between the complained-of conduct and a law or public policy," then the jury must decide "whether the plaintiff actually held such a belief and, if so, whether that belief was objectively reasonable." Id. at 464.

Here, there is no question that a substantial nexus exists between UPS's pre-trip inspection policy and 392.7. Therefore, the question on appeal is whether the motion judge correctly determined that plaintiff failed to raise a genuine issue of material fact regarding whether he reasonably believed that defendants' pre-trip inspection policy violated 392.7.

We have determined that the motion judge mistakenly concluded that plaintiff had not raised such a genuine issue of material fact. Plaintiff consistently maintained that UPS's pre-trip inspection policy sacrificed safety for the sake of speed. Plaintiff said that supervisors pressured him to forego his pre-trip safety checks, to leave quickly, and not to look at things like hoses and windshield wipers to save time.

Plaintiff did not admit that he had no "mechanical basis to question the safety of UPS'[s] inspection procedure" as the motion judge believed. Instead, plaintiff stated that he did not know "how many other air leaks or other problems there were, but it was because of the careless pre-trip of the people bringing the bypass loads in that caused me to do that, and plus the laws and policies." Plaintiff was clearly claiming that the UPS procedure was inadequate to ensure safety.

There is also no evidence that UPS's policy "worked" as the judge claimed in his decision. The record does not contain any documentation relating to UPS's safety record involving the coupling devices. In addition, the record also contains the concerns of Beverly Calhoun, a UPS feeder driver for thirty-three years working in North Carolina.

Calhoun testified in a deposition in his own case against UPS that he was told in 1988 not to break down his doubles for his pre-trip inspection. Calhoun insisted that uncoupling allowed a better view of "a lot of things," including the springs and the U-bolts that hold them, the kingpin (to see if it is bent), and the brake chambers.

Calhoun maintained that an inadequate inspection of the fifth wheel could endanger the driver and the public because, without enough grease in the coupling, it could come loose or cause the trailer "to move around on the road more." An ALJ found that most of Calhoun's pre-trip inspection activities were reasonable and protected, and thus that UPS violated 49 C.F.R. 392.7 by prohibiting him from doing them. However, the ALJ found that Calhoun was unreasonable "to pull apart pre-assembled doubles without any specific reason for doing so."

There is a material difference between Calhoun's situation and plaintiff's. Calhoun was uncoupling doubles that mechanics had assembled and had not yet been driven, whereas plaintiff was uncoupling bypass doubles that unidentified UPS employees had assembled in other locations and that other drivers had driven to the Meadowlands. Thus, Calhoun was checking work that a professional had just performed and had not yet been driven, but plaintiff was checking work that apparently other drivers had performed, before at least a day's driving. Even if the initial assembly of the bypass doubles that plaintiff drove was in order, a piece could bend, break, wear out or change its position en route.

The motion judge reasoned that 392.7 was not "intended to vest each driver with the authority to set his or her own inspection practice and to divest UPS of any authority to impose an appropriate standardized inspection policy on all drivers." However, that was not the issue. The only issue was whether plaintiff raised a genuine factual dispute regarding whether he reasonably believed that defendants' pre-trip inspection policy violated 392.7.

Defendants cite as support Castle Coal & Oil Co., Inc. v. Reich, 55 F.3d 41, 4 4-46 (2d Cir. 1995), where the court found no violation of the Surface Transportation Assistance Act when an employer discharged a driver who refused to make oil deliveries because he believed that it was not safe to operate a hose mounted on the side of the truck in the face of New York City one-way street traffic.

The statute at issue in Castle Coal, 49 U.S.C.A. 2305, is substantially similar to 49 U.S.C.A. 31105(a)(1), the statute in Calhoun's case. It requires the employee to prove that he was discharged for refusing to operate his vehicle because either (a) operation of the vehicle would constitute an actual violation of a federal rule, regulation, policy or order, or (b) the employee had a "reasonable apprehension of serious injury to himself or the public due to the unsafe condition of such equipment."

Defendants claim these statutes are similar to CEPA because they require "an objective test of reasonableness." However, defendants are incorrect. Under CEPA, the standard is more lenient. Plaintiff must prove only a reasonable belief that the employer violated a law, rule, regulation or public policy, N.J.S.A. 34:19-3(c), not an actual violation or a reasonable belief that serious injury is imminent.

Section 392.7, the federal regulation plaintiff argues he reasonably believed defendants were violating, on its face allocates some authority and discretion to drivers. This section, in relevant part, provides that "[n]o commercial motor vehicle shall be driven unless the driver is satisfied that the following parts and accessories are in good working order . . . Coupling devices." 49 C.F.R. 392.7 (emphasis added). In addition Department of Transportation Commercial Driver's License Standards, Requirements and Penalties Rule 49 C.F.R. 383.111 (2006), requires commercial motor vehicle operators to demonstrate their knowledge of "[m]otor vehicle inspection." Question fifteen on plaintiff's Department of Transportation "Safety Regulations Questionnaire," dated May 1985, and "UPS Driver Test Sheet," dated February 1997, with the correct answer, stated: "A driver must satisfy himself that service and parking brakes, tires, lights and reflectors, mirrors, coupling and other devices are in good working order: . . . before the vehicle may be driven." (emphasis added). The plain language and ordinary meaning of these provisions lend support to plaintiff's view that he reasonably believed that his personal inspection of the coupling device was necessary and that defendants' pre-trip inspection policy violated 392.7.

In conclusion, when the evidence is properly viewed in a light most favorable to plaintiff, as is required in reviewing a defendant's summary judgment motion, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), it is apparent to us that plaintiff raised a genuine fact issue regarding whether he reasonably believed that UPS's pre-trip inspection procedure violated 49 C.F.R. 392.7. Consequently, summary judgment, dismissing plaintiff's CEPA claim, was incorrectly granted.

III.

Furthermore, we disagree with the motion judge that plaintiff's CEPA claim was barred by the arbitration and OSHA decisions. An arbitration or grievance protesting a discharge does not preclude the worker's subsequent statutory civil rights claim. McDonald v. City of W. Long Branch, 466 U.S. 284, 292, 104 S. Ct. 1799, 1804, 80 L. Ed. 2d 302, 309-10 (1984); Thornton v. Potamkin Chevrolet, 94 N.J. 1, 5-6 (1983). We believe that all of the considerations set forth in McDonald and Thorton apply here.

The arbitrator's determination in this matter that plaintiff had not proven any "imminent peril" is quite different from CEPA's "reasonable belief" requirement. Also, a judge who focuses on the litigants, unlike an arbitrator who focuses on the union, is sensitive to the claim and considers the public interest. In our view, the public policy behind CEPA has sufficient importance, like the public policy against discrimination, to prevent contract-based claims from precluding subsequent resolution of statutory claims.

Furthermore, the federal judge's denial of plaintiff's request to vacate the arbitration award did not address issues pertaining to plaintiff's CEPA claim. The judge's review was not an appeal and was not plenary, but was narrowly limited to the grounds for vacating an award set forth in 9 U.S.C.A. 10. In short, the judge did not consider whether the arbitrator's findings of fact were supported by the evidence. She accepted them and considered only whether the arbitrator manifestly disregarded the law, or whether his award violated public policy.

In addition, plaintiff's OSHA complaint does not bar his CEPA claim because the issues in the two proceedings were not identical, and the OSHA claim was not actually litigated. In his OSHA complaint, plaintiff alleged that his discharge was in violation of 49 U.S.C.A. 31105(a), because it was in retaliation for plaintiff's compliance with 49 C.F.R. 392.7.

Under 49 U.S.C.A. 31105(a)(1)(B)(i), the employee must prove that he or she refused to operate a vehicle because its operation violated a federal standard, regulation or order. Under CEPA, the employee must prove only that he or she reasonably believed that the employer violated a law, rule, regulation or policy. N.J.S.A. 34:19-3(a)(1). Thus neither the claims nor the issues were identical.

Furthermore, plaintiff did not contest or adjudicate the final administrative decision. Plaintiff here, like the plaintiff in Hennesey v. Winslow Twp., 183 N.J. 593, 599 (2005), withdrew and decided not to pursue his OSHA complaint.

IV.

Finally, although the trial judge did not rule on this issue, because we are remanding plaintiff's CEPA claim, we briefly address plaintiff's contention that the Surface Transportation Assistance Act, 49 U.S.C.A. 31105, does not preempt the CEPA claim.

Unlike the Surface Transportation Assistance Act, CEPA allows punitive damages, N.J.S.A. 34:19-5(f), and compensation for emotional distress. Mehlman v. Mobil Oil Corp., 153 N.J. 163, 178 (1998). CEPA thus provides greater protection to employees than does the Surface Transportation Assistance Act.

Because CEPA provides more protection to employees, it would not prevent full compliance with the Act or the regulations promulgated under it. There is no specific indication in 49 U.S.C.A. 31105 that it precludes state law protecting workers; to the contrary, its permissive wording and legislative history indicate that Congress intended that it not be preclusive. Briones v. Ashland, Inc., 164 F. Supp. 2d 228 (D. Mass 2001). See also Glassock v. Alliant Foodservice, Inc., 232 F. Supp. 2d 1148, 1153-54 (D. Or. 2001); Germann v. Vulcan Materials Co., 106 F. Supp. 2d 1010, 1015 (S.D. Cal. 2000); Whitworth v. TNT Bestway Transp., 914 F. Supp. 1434, 1436 (D. Tex. 1996).

Similarly, regulation 49 C.F.R. 390.9 (2006), provides that the Federal Motor Carrier Safety Regulations, which were promulgated under the Act, are "not intended to preclude States . . . from establishing or enforcing State or local laws relating to safety, the compliance with which would not prevent full compliance with these regulations," unless "specifically indicated."

Accordingly, we agree with plaintiff that neither the Surface Transportation Assistance Act nor the regulations promulgated under the Act preempt CEPA proceedings.

IV.

In conclusion, we find that plaintiff established a factual dispute regarding whether he had a reasonable belief that UPS's pre-trip policy violated 49 C.F.R. 392.7. This factual dispute was sufficient to withstand summary judgment, and consequently we reverse the trial court, reinstate plaintiff's CEPA claim, and remand for further proceedings.

We also conclude that the CEPA claim was not precluded by the prior arbitration award and decision of the United States Department of Labor. Finally, we also conclude that plaintiff's CEPA claim is not preempted by the Surface Transportation Assistance Act.

Reversed and remanded.

 

Plaintiff must also establish that (2) "he or she performed a 'whistle-blowing' activity described in N.J.S.A. 34:10-3(c); (3) an adverse employment action was taken against him or her; and (4) a causal connection exists between the whistle-blowing activity and the adverse employment action." Blackburn v. UPS, 3 F. Supp. 2d 504, 513 (D. N.J. 1998), aff'd 179 F.3d 81, 92 (3d Cir. 1999). These elements are not at issue in this appeal.

(continued)

(continued)

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A-6329-04T2

February 22, 2007