MARY CARMEN BARRERA v. EXPERIENCE DRYWALL, INC.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5117-08T25117-08T2

MARY CARMEN BARRERA,

Plaintiff-Appellant,

v.

EXPERIENCE DRYWALL, INC.,

a New Jersey Corporation,

Defendant-Respondent,

and

WALTER RODRIGUEZ, LOS

PERROS, INC., RAMON A.

ORTIZ FALU, in his official

capacity,

Defendants.

________________________________________________

 

Argued January 20, 2010 - Decided

Before Judges Wefing, Grall and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-1346-07.

Jonathan I. Nirenberg argued the cause for appellant (Resnick Nirenberg & Cash, P.C., attorneys; Mr. Nirenberg, on the brief).

Jody T. Walker argued the cause for respondent (Kaufman Dolowich Voluck & Gonzo, LLP and Peckar & Abramson, attorneys; John R. Gonzo, of counsel; Mr. Gonzo and Ms. Walker, on the brief).

PER CURIAM

Plaintiff Mary Carmen Barrera appeals from the grant of summary judgment to defendant Experience Drywall, Inc. (EDI). Having considered the arguments raised in light of the record and applicable legal standards, we affirm.

When reviewing a grant of summary judgment, we employ the same standards used by the motion judge. Atl. Mut. Ins. Co. v. Hillside Bottling Co., Inc., 387 N.J. Super. 224, 230 (App. Div.)(citation omitted), certif. denied, 189 N.J. 104 (2006). In conducting our review of the motion record, we accord plaintiff the benefit of all the favorable evidence and inferences. See R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

Plaintiff's deposition testimony revealed that she was a recent immigrant from Mexico and worked as a drywall installer. Her brother and his friend, Walter Rodriguez, told her about the job. She supplied Rodriguez with her taxpayer identification number and believed that she worked for EDI based upon what he told her. Rodriguez drove a truck with EDI's logo on the side, and she and her brother would frequently accompany him to EDI's offices to pick up supplies. Plaintiff could not recall where those offices were and she never entered the building.

Plaintiff never completed an application for employment. She never filled out a time sheet, was not required to punch a time clock, and never received any documentation from EDI regarding her pay. Plaintiff never received an employee handbook or information regarding health benefits. Rodriguez would pay her in cash once a week at the rate of $80 per day. She would work seven days per week.

Plaintiff never saw any documents with EDI's letterhead, although she claimed Rodriguez would "leave things around" the truck with EDI's name on them. Rodriguez would take plaintiff to the various job sites where she would install drywall over the course of several days; he would then take her to the next assignment. On occasion, other "supervisor[s]" would be in the truck with Rodriguez; they would wear caps and shirts with EDI's logo on them. Rodriguez gave plaintiff tee shirts and a sweatshirt with the logo on them and required her to wear them at the work sites. Rodriguez would assign plaintiff her tasks and provide her with tools, although on some occasions plaintiff bought the necessary tools and brought them to the job site.

On April 5, 2006, Rodriguez picked plaintiff and her brother up at home at 5:00 a.m. and drove to a job site in Pennsylvania. After dropping her brother off at one house, Rodriguez drove plaintiff to another and, while they were alone he raped her. After he left, plaintiff continued to work, but she fell applying spackling above a Jacuzzi bathtub and injured her leg and foot. When Rodriguez returned, she told him about her injuries; eventually they left, but Rodriguez threatened her with harm if she told anyone about what he had done. Plaintiff believed Rodriguez would cause her to be deported.

Plaintiff saw a chiropractor later that day and was prescribed Motrin. The next day, plaintiff told her brother about the fall, but not about the rape. Her brother told "Eric" about her fall. Plaintiff believed Eric was Rodriguez's supervisor and claimed he was responsible for payroll. Every Thursday, Rodriguez, Eric and others would attend "meetings" at EDI's offices. Plaintiff and the other workers would not go in the office, but rather would remain outside and clean their vehicles. Plaintiff claimed that Eric told her that he worked for EDI, but she did not know Eric's last name.

On June 17, plaintiff refused to return to Pennsylvania with Rodriguez; she claimed that Rodriguez fired her in response. She then called Eric, reported the rape, and asked for a change of supervisors. Eric told her that he would try to accommodate her request, and urged her to report the incident to the police, which she did. Sometime thereafter -- plaintiff could not recall the date -- Eric came to her house and told her Rodriguez had been fired. He told plaintiff she could return to work for "the company." Plaintiff never returned to work.

On March 26, 2007, plaintiff filed a complaint naming EDI, Rodriguez and fictitious parties as defendants, alleging violations of the Law Against Discrimination, N.J.S.A. 10:5-1 to -49 (LAD); common law assault and battery; negligent and intentional infliction of emotional distress; and negligent hiring and supervision. EDI filed its answer and a third-party complaint against Los Perros, Inc. (Los Perros), Ramon A. Ortiz Falu, and Rodriguez. The gist of the allegations in the third-party complaint was that Los Perros, a company owned by Falu, employed Rodriguez as a foreman and that plaintiff was employed by Los Perros, not EDI. In her deposition, plaintiff disclaimed any knowledge of Los Perros.

Plaintiff filed her amended complaint on September 10, 2007, adding Los Perros and Falu as direct defendants and asserting the same claims as before. The amended complaint alleged that at all relevant times, plaintiff was "employed by . . . EDI and/or Los Perros . . . ." EDI answered and moved for summary judgment in January 2008.

In support of the motion, Eyal Glisko, EDI's president, certified that the company frequently subcontracted drywall "work to independent contractors." Glisko personally signed every check issued by EDI "to [its] employees and subcontractors." He claimed that EDI "play[ed] absolutely no role in [its] subcontractors' personnel and payroll decisions," and that it never paid the employees of those subcontractors.

Glisko certified that EDI entered into a contract with Los Perros in January 2006 to provide drywall services. A copy of the agreement was attached to the certification. Pursuant thereto, Los Perros had "sole discretion and control over [its] work and the manner in which it [wa]s performed . . . ."; was required to maintain workers' compensation and general liability insurance; was responsible for all of its own personnel decisions; and would "use only its own equipment and supplies to perform the work assignments . . . ." Copies of the insurance policies Los Perros purchased were attached to the motion. Glisko certified that EDI "occasionally reviewed Los Perros'[s] work to make sure that [it] had been completed in a . . . professional manner, [but] never supervised [its] employees, instructed [it] to assign certain employees to projects, or dictated the terms or conditions under which [its] employees worked." Glisko acknowledged that some of EDI's trucks were "provide[d] to subcontractors who requested use of a . . . vehicle due to various issues with their own vehicles." Los Perros was paid directly by checks Glisko issued.

Glisko denied ever knowing plaintiff and certified that she was not hired by him or any other manager at EDI; that she never completed any documentation required of new employees at EDI; and that she was never trained or supervised by EDI. He made similar representations regarding Rodriguez. Glisko certified that "no 'Eric'" worked for EDI during 2006, and no one by that name ever contacted him regarding the rape of plaintiff.

In response to EDI's motion, plaintiff cited her deposition testimony regarding representations made by Rodriguez and Eric to her and her brother, whose certification corroborated her claims. Additionally, plaintiff supplied the certification of Enrique Suarez, her former boyfriend, who also claimed that he believed he worked for EDI, and further corroborated the representations allegedly made by Rodriguez.

Oral argument on the motion took place on February 20, 2009. In response to questions by the judge, plaintiff's counsel admitted that plaintiff never received a W-2 form, had never filed a tax return, and that based upon his review of documents furnished by EDI, "Rodriguez was an employee of Los Perros." Plaintiff had no proof "that he was an employee of [EDI]."

The motion judge thoroughly recounted the motion record we have detailed above. Applying the "totality-of-the-circumstances test" we utilized in Pukowsky v. Caruso, 312 N.J. Super. 171 (App. Div. 1998), the judge concluded that plaintiff "was not an employee of EDI." He reached a similar conclusion regarding Rodriguez.

On appeal, plaintiff contends that she was an employee of EDI because it "controlled her work, she was financially dependent on EDI as her sole source of income, and her job . . . was an integral function of EDI's drywall business." Alternatively, she argues that even if she was not employed by EDI, the company is vicariously liable for Rodriguez's conduct under the "doctrine of apparent authority." Lastly, plaintiff claims EDI is liable "because it did not have an effective anti-harassment policy . . . ." We find none of the arguments persuasive.

In Pukowsky, supra, we held "that independent contractors are not to be considered 'employees' within the meaning of the LAD, and are therefore not entitled to avail themselves of its protections." 312 N.J. Super. at 180. We adopted a "twelve-part 'totality of the circumstances test'" to determine whether an LAD plaintiff is an employee or an independent contractor. Id. at 182 (citing Franz v. Raymond Eisenhardt & Sons, Inc., 732 F. Supp. 521, 528 (D.N.J. 1990)). The factors to be considered are:

(1) the employer's right to control the means and manner of the worker's performance; (2) the kind of occupation--supervised or unsupervised; (3) skill; (4) who furnishes the equipment and workplace; (5) the length of time in which the individual has worked; (6) the method of payment; (7) the manner of termination of the work relationship; (8) whether there is annual leave; (9) whether the work is an integral part of the business of the "employer;" (10) whether the worker accrues retirement benefits; (11) whether the "employer" pays social security taxes; and (12) the intention of the parties.

[Pukowsky, supra, 312 N.J. Super. at 182-83 (quoting Franz, supra, 732 F. Supp. at 528 (citing E.E.O.C. v. Zippo Mfg. Co., 713 F.2d 32, 37 (3d Cir. 1983))).]

Application of these twelve factors to the evidence in the motion record in this case leads to the conclusion that plaintiff was not an employee of EDI.

She argues, however, that Pukowsky was "modified" by the Supreme Court's holding in D'Annunzio v. Prudential Ins. Co. of Am., 192 N.J. 110 (2007). To the contrary, the Court reaffirmed the Pukowsky test, id. at 125, though we have noted that

The D'Annunzio Court emphasized three primary considerations when examining the non-traditional employment relationship: "(1) employer control; (2) the worker's economic dependence on the work relationship; and (3) the degree to which there has been a functional integration of the employer's business with that of the person doing the work at issue."

[Hoag v. Brown, 397 N.J. Super. 34, 48 (App. Div. 2007) (quoting D'Annunzio, supra, 192 N.J. at 122).]

Here, it is undisputed that Rodriguez was not employed by EDI but rather by Los Perros. By the plaintiff's account, Rodriguez controlled her work, drove her to the sites he selected, assigned her specific tasks, and paid her. Plaintiff's economic dependence was solely attributed to that relationship, not a non-existent relationship with EDI. Plaintiff's work was clearly "functionally integrated" into that of her employer, Los Perros, a company whose apparent raison d'etre was to install drywall as a subcontractor. The record is devoid of any proof regarding the significance of Los Perros to EDI's overall business.

Plaintiff alternatively contends that EDI is vicariously liable for Rodriguez's actions because "it allowed [her] to reasonably believe he was her supervisor." We find this invocation of the doctrine of apparent authority unavailing under the facts of this case.

As we recently noted, "[g]enerally, a principal is immune from liability for the negligence of 'an independent contractor, or that of its employees, in the performance of the contracted services.'" Estate of Cordero v. Christ Hosp., 403 N.J. Super. 306, 312 (App. Div. 2009) (quoting Basil v. Wolf, 193 N.J. 38, 62 (2007)); Restatement (Second) of Torts 409 (1965). The doctrine of apparent authority provides an exception to the general rule. Cordero, supra, 403 N.J. Super. at 312. "Apparent authority imposes liability on the principal not as the result of the reality of a contractual relationship but rather because of the actions of a principal or an employer in somehow misleading the public into believing that the relationship or the authority exists." Ibid. (quotations omitted).

In this case, however, there is nothing to support the critical link between EDI's actions or inactions and Rodriguez' conduct. There is no proof that EDI was aware that he was representing himself as their employee, or, for that matter, that it was aware of his conduct at all. Viewing the evidence in a light most favorable to plaintiff, it is insufficient to prove that EDI imbued Rodriguez with apparent authority such that it could be vicariously liable for his conduct. See Brill, supra, 142 N.J. 540 (holding that summary judgment is appropriate "when the evidence is so one-sided that one party must prevail as a matter of law") (quotation omitted).

The remainder of plaintiff's arguments are without sufficient merit to warrant further discussion. See R. 2:11-3(e)(1)(E).

Affirmed.

 

Los Perros and Falu were represented at the motion after apparently having been served by substituted service on the company's workers' compensation insurance carrier. The transcript reflects that they opposed EDI's motion. Plaintiff indicated in her appellate brief that she ultimately "amicably resolved" her complaint against Los Perros and Falu, and the record contains a stipulation of dismissal with prejudice as to those defendants. It would appear that Rodriguez could not be located and was never served with the complaint.

References were made during oral argument to Glisko's deposition testimony, but it is not part of the appellate record. In its brief EDI asserts that the deposition testimony was entirely consistent with Glisko's certification.

(continued)

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A-5117-08T2

March 30, 2010