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
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.
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).
Pursuant to the contract, Perimeter provided all of the
equipment and supplies necessary for the performance of its
tasks. "On a cost plus fixed fee basis, [Perimeter]
shall provide all supervision, labor, equipment, and materials
required to complete construction, repair, installation,
maintenance projects (the "Services") in connection with the RVI
facility. . . . See Pursell Decl. ¶ 2.1(a). Perimeter's
control over labor and equipment necessitated that plaintiff
attend regular RVI on-site meetings to coordinate efforts and
maximize efficiency. Finally, it is not disputed that RVI
exercised its contractual right to request that Perimeter remove
DaBronzo from the RVI site, and further, that Perimeter
terminated DaBronzo from its employ.
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).
I. The New Jersey CEPA Does Not Extend to Independent
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