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October 17, 2002


The opinion of the court was delivered by: Wolfson, United States Magistrate Judge.


The primary issue presented on this motion for summary judgment by defendant Roche Vitamins, Inc. ("RVI") is whether the protections afforded employees by the New Jersey Conscientious Employee Protection Act, N.J.S.A. 34:19-1, et seq., ("CEPA") extend to independent contractors. This Court*fn1 holds that an independent contractor, such as the plaintiff here, Thomas DaBronzo ("plaintiff" or "DaBronzo"), who complains to his employer about the alleged misconduct of another business entity with whom the employer has a business relationship, has no cause of action against the other business entity under CEPA. Therefore, defendant's motion for summary judgment is granted.


Plaintiff was employed as a foreman for Perimeter, Inc. ("Perimeter"), an insulation and asbestos contractor, until he was terminated on December 13, 2001. For thirty years, plaintiff worked exclusively at RVI's manufacturing plant in Belvidere, New Jersey, first for the Woolsulate Corporation, and then for Perimeter. RVI, a manufacturer of bulk vitamin C and other vitamin premixes, had a contractual relationship with Woolsulate and continues to have a contractual relationship with Perimeter for insulation installation and routine maintenance projects, including asbestos removal. See Plaintiffs Opposition Brief, Exhibit B*fn2. Neither party contests that RVI exercised its contractual right to have Perimeter remove plaintiff from the RVI manufacturing site. However, the parties vigorously contest the facts which precipitated that removal and which caused Perimeter to terminate plaintiff from its employ.*fn3

Plaintiff has chosen not to sue Perimeter, his direct employer, and proceeds only against RVI. For purposes of this motion, the reasons for plaintiffs termination are not relevant. Instead, the following undisputed facts are pertinent to the issue whether plaintiff can assert a CEPA claim against RVI.

Material Facts

Perimeter was the "resident contractor" for the Belvidere, New Jersey RVI site. See Plaintiffs Opposition Brief, Exhibit B. In this capacity, Perimeter was offered routine insulation maintenance projects without having to go through a formal bidding process. According to the contract between Perimeter and RVI, DaBronzo was listed as Perimeter's general foreman assigned exclusively to the RVI site. See id. (Proposal at ¶ 6.0). As the general foreman and Perimeter's on-site representative, RVI funneled work directly to plaintiff in the form of work orders and DaBronzo then distributed the assignments to Perimeter personnel for execution. At all times, RVI reserved the right to constrain Perimeter's expenses to conform to RVI's budgetary limits. Likewise, RVI management was on-site, observing Perimeter's performance to ensure compliance with federal and state safety regulations, which included regulating the manner in which the asbestos was removed and handled.

It is undisputed that Perimeter was plaintiffs direct employer, issued his paychecks, made the appropriate tax and social security deductions, set plaintiffs vacation schedule, and maintained plaintiffs pension and retirement package, inclusive of any employee benefit plans. Plaintiff was also a member of Local 89 of the International Association of Heat and Frost Insulators and Asbestos Workers, with whom Perimeter, not RVI, had a collective bargaining agreement. On the other hand, plaintiff was not eligible for any employee benefits or incentives offered to employees of RVI:

"CONTRACTOR [Perimeter] is responsible for staffing the Services and providing any and all compensation and/or insurance to its staff members. RVI shall not be responsible for withholding, and shall not withhold, FICA or taxes of any kind from any payments it owes to CONTRACTOR. CONTRACTOR agrees to comply with all laws related to payment of income taxes for individuals providing services hereunder. . . . Further, as independent contractors, neither CONTRACTOR nor any of [RVI's] benefit plans, programs, employment policies or procedures or workers' compensation insurance . . .". Id. (Resident Insulation Services Agreement at ¶ 11.12).

At the initial scheduling conference with the Court, the parties properly focused on the issue of whether plaintiff was an independent contractor to RVI and whether CEPA covers independent contractors. Consequently, I directed that discovery proceed on the issue of plaintiffs relationship with RVI. As a result, plaintiff deposed Robert B. Pursell, Manager of Contractor Services for RVI. Although plaintiff claims that this motion for summary judgment is premature due to the infancy of the discovery process, he has no discovery requests pending, and has failed to identify any specific additional discovery necessary to defend against the motion. Finally, plaintiff has not filed any opposing affidavits. Therefore, I conclude that this motion is ripe for resolution.

Summary Judgment Standard

A moving party is entitled to judgment as a matter of law where there is no genuine issue as to any material fact. See FED R. Civ. P. 56(c); Brooks v. Kyler, 204 F.3d 102, 105 n. 5 (3d Cir. 2000) (citing FED R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)); Orson, Inc. v. Miramax Film Corp., 79 F.3d 1358, 1366 (3d Cir. 1996). The burden of demonstrating the absence of a genuine issue of material fact falls on the moving party. See Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 305 (3d Cir. 1999) (citations omitted). Once the moving party has satisfied this initial burden, the opposing party must identify "specific facts which demonstrate that there exists a genuine issue for trial." Orson, 79 F.3d at 1366.

Not every issue of fact will be sufficient to defeat a motion for summary judgment; issues of fact are genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Further, the nonmoving party cannot rest upon mere allegations; he must present actual evidence that creates a genuine issue of material fact. See FED R. Civ. P. 56(e); Anderson, 477 U.S. at 249, 106 S.Ct. 2505 (citing First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 290, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)). In conducting a review of the facts, the non-moving party is entitled to all reasonable inferences and the record is construed in the light most favorable to that party. See Pollock v. American Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986). Accordingly, it is not the Court's role to make findings of fact, but to analyze the facts presented and determine if a reasonable jury could return a verdict for the nonmoving party. See Brooks, 204 F.3d at 105 n. 5 (citing Anderson, 477 U.S. at 249, 106 S.Ct. 2505); Big Apple BMW v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).

RVI asserts that summary judgement is appropriate in this case because independent contractors are not covered by CEPA and that plaintiff was an independent contractor, not an RVI employee. By contrast, plaintiff asserts that independent contractors are covered by CEPA, and that CEPA extends to plaintiffs claim because RVI is "another employer" as defined under the statute. Alternatively, plaintiff contends that the Court should find that he was an employee, and not an independent contractor of RVI, and, thus, is afforded protection under CEPA.

I. The New Jersey CEPA Does Not Extend to Independent Contractors

As a federal court sitting in diversity, pursuant to 28 U.S.C. § 1332(a), I am obligated to apply the substantive laws of the State of New Jersey. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). The parties agree that no reported New Jersey case has addressed whether CEPA protections extend to independent contractors. Certainly, the statute does not, by its express terms, include independent contractors. In cases such as this, where neither the New Jersey Supreme Court nor the Appellate Division has spoken on an issue, this Court must base its decision on a prediction of how the New Jersey Supreme Court would interpret the question. See Pittston Co. Ultramar America Ltd. v. Allianz Ins. Co., 124 F.3d 508, 516 (3d Cir. 1997); see also, City of Erie v. Guaranty National Ins. Co., 109 F.3d 156, 159-60 (3d Cir. 1997) (where Pennsylvania had not yet decided whether the tort of malicious prosecution occurs for purposes of insurance coverage, federal court would predict what the Pennsylvania Supreme Court would decide if confronted with the question). Accordingly, I have considered New Jersey Supreme Court CEPA decisions, that Court's approach to employment cases, as well as the remedial nature of the statute, to assist me in predicting how the New Jersey Supreme Court would decide the issue presented here.

CEPA, enacted in 1986 to encourage employees to notify authorities of any and all illegal or unethical work-place activities ...

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