On appeal from Superior Court of New Jersey, Law Division, Gloucester County, L-0807-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 3, 2007
Before Judges Weissbard and Baxter.
Plaintiff David Lau appeals from an order of summary judgment dismissing his complaint that alleged violations of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:9-1 to -8, against defendant Plymouth Environmental, Inc. We affirm.
We take the following facts from the record presented to the motion judge, which included deposition testimony.
In 1998, Archway, a subcontractor of Eastern Insulation, Inc. hired plaintiff as an asbestos removal supervisor. Archway stationed plaintiff at a facility known as Coastal Eagle Point Oil Co. (Coastal). Eastern had entered into a contract with Coastal to perform insulation and asbestos removal. In September 2002, Archway sold its subcontract to defendant.*fn1
Thereafter, Eastern entered into a new subcontract with defendant. Plaintiff retained the same position and performed the same work as he had with Archway; however, plaintiff became defendant's employee as a result of the transactions. Plaintiff did not enter into an employment contract with defendant and served as an at-will employee. In January 2004, Sunoco, Inc. purchased Coastal. At the now Sunoco-owned location, plaintiff continued his work removing insulation and asbestos.
Plaintiff testified that on March 7, 2004, Matt Wilson, Eastern's onsite supervisor, asked plaintiff and his two-man crew to perform a job on overtime. The job involved stripping insulation from a large pipe on the roof of a building. Plaintiff testified that he told Wilson that his crew could not perform the job for the following reasons: 1) he did not have enough manpower; 2) there was a large amount of asbestos; 3) the pipe temperature was too high; and 4) the pipe passed through the roof of a building. Defendant asserts that plaintiff did not inform Wilson that he believed that there were safety issues concerning this job. On that subject, plaintiff's deposition contained the following colloquy:
Q: And what did he ask you to do during that first meeting?
A: Can you do that job - - after hours.
Q: And what did you tell him?
Q: Did you explain why you couldn't do it?
A: I don't have the manpower, it's too much asbestos, it's too high, it's too hot and it's going through the roof.
Q: And how did he respond?
A: He wasn't happy. He gave me the (making noise) - - I'm sorry.
Q: [D]id you tell him about the equipment that you would need for that job? You said you would need air regulators, you would need monitors, you'd need some things in order to get that job done. Scaffold was another one. Did you tell him about those things?
A: The main thing I told him was the manpower and that me and [my crew] were not able to do it.
Q: Okay. So you didn't mention safety concerns at that first meeting?
A: Just the fact that it was going through the roof.
Later, plaintiff stated that "[i]f we had enough men, we could do it safely." Plaintiff further testified that his crew was not up to the physical nature of the project due to his crew's health problems. Additionally, plaintiff testified that he told Wilson that the job required an air monitor. Defendant maintains that plaintiff did not inform Wilson that he could not perform the job due to a lack of air monitors. Defendant also notes that plaintiff stated he could not fully commit to the job because he had commitments to a second, part-time job. Plaintiff claims that Wilson asked him to cut corners on previous jobs at the Sunoco site and that he believed Wilson was trying to keep costs at a minimum.
Approximately one week after Wilson's first request, Wilson again asked plaintiff to perform the aforementioned job. Plaintiff declined once again, stating: "[W]e don't have the manpower. We're swamped, we're short two guys. I gave him the same answer as the first time." Plaintiff ...