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Massarano v. New Jersey Transit

January 30, 2008

BARBARA MASSARANO, PLAINTIFF-APPELLANT,
v.
NEW JERSEY TRANSIT AND FRANK FITTIPOLDI, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-000027-04.

The opinion of the court was delivered by: Parker, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION May 9, 2008

Argued October 24, 2007

Before Judges Wefing, Parker and R. B. Coleman.

Plaintiff Barbara Massarano appeals from an order entered on June 7, 2006 granting summary judgment in favor of defendants dismissing plaintiff's claim for retaliation under the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8. After carefully considering plaintiff's arguments in light of the applicable law, we affirm.

I.

The following is a summary of the facts relevant to this appeal. Plaintiff began working as Security Operations Manager for New Jersey Transit (NJT) in August 2001. Defendant Frank Fittipoldi, the Director of Organization Services for NJT, hired and supervised plaintiff. After she was hired, plaintiff learned that Gateways Security, Inc., the contract provider of security services for NJT, was actually her employer, although Fittipoldi had represented that the job was "a Transit position," meaning that she would be an NJT employee. Plaintiff maintains that she would not have left her previous job if she had known she would not be an NJT employee.

Under its contract, Gateway provided NJT with a security manager, but that position did not include a pension or health benefits. Fittipoldi recommended that plaintiff be hired but claimed that it was Gateway's decision to hire her, not his. Gateway paid plaintiff's salary. Kurus Elavia, CEO of Gateway, corroborated Fittipoldi's testimony, stating that under Gateway's contract with NJT, he (Elavia) "had the right to decide on the identity" of the NJT security manager, but that NJT could veto his choice or request a replacement. Plaintiff testified that after she learned she was actually a Gateway employee, Fittipoldi assured her the job would be "moving under" NJT in three to six months and that she would have NJT benefits. Fittipoldi disputed that statement and recalled that plaintiff said she did not need benefits because she had them from her prior employer.

Regardless of who was her actual employer, plaintiff worked in an office that was owned, controlled, operated, decorated and managed by NJT. She used NJT equipment and telephone service and was directly supervised by Fittipoldi.

When she was hired, plaintiff's responsibilities included supervision of twelve security personnel in Newark and Maplewood. She instituted training, raised standards, enhanced and updated guidelines and manuals, established a tiered pay scale to attract and retain better employees, terminated workers who did not improve their performance, upgraded equipment and prepared a business plan for the security office. Her responsibilities were expanded to include NJT's Kearny facility and the NJT concourse in New York's Penn Station. During her tenure, plaintiff hired additional personnel, increasing her staff to forty-five employees. Plaintiff testified that she "discussed everything" with Fittipoldi and that he participated in and approved plaintiff's assignments and proposals.

Fittipoldi acknowledged that plaintiff worked in NJT's offices, using NJT's equipment and that he controlled her work. He indicated that although he commented on her performance, he never gave her a formal evaluation.

In September 2001, Fittipoldi formally proposed converting plaintiff's position to NJT. In October 2001, he recommended to his supervisor, Frank Hopper, Assistant Executive Director for Procurement, that NJT establish "an in-house security operations manager." Hopper agreed but noted that there was "a formal process of establishing jobs" at NJT.

In November 2001, plaintiff inquired about the status of the NJT position. Fittipoldi assured her that "everybody was on board" and that the transfer was "a formality." By February 2002, however, Fittipoldi was equivocal about the transfer of the position and it became "a constant topic of discussion" between Fittipoldi and plaintiff.

In the Spring of 2002, Fittipoldi told plaintiff that the Board had approved the job but that it "had to pass the budget" and "was in Mr. Hopper's hands." Fittipoldi explained that when he added the position to the budget in 2002, he was "fairly confident that it would be done."

In the summer of 2002, however, Hopper told Fittipoldi that he could not recommend the new position because of "significant budgetary problems." In August 2002, Fittipoldi told plaintiff that NJT was discussing downsizing and it was not a good time to push for the position.

On August 15, 2002, shortly after plaintiff learned that her position would not be transferred to NJT, plaintiff was advised by the Newark building supervisor that he saw some schematics that were discarded in a bin on the loading dock of the Newark building. Dan Sattazahn, the security operations supervisor who reported to plaintiff, accompanied plaintiff to the area where they found four recycling bins loaded with blueprints or schematics for bridges, tunnels, a new rail operations center, underground gas lines, and building specifications, including HVAC, electrical and plumbing schematics.

Plaintiff was "outraged that this could just be sitting around with nobody there." She testified that "it was a serious situation to have these documents there and available to anyone . . . . [I]t had to at least be some kind of an infraction or violation of policy and some kind of threat to public safety and security . . . . [T]he documents should not be left where anyone can get them." Because NJT shared this area with other building tenants, plaintiff was concerned that anyone could enter the loading area and retrieve the discarded plans and schematics. Sattazhan believed that "this was a disturbing display of gross negligence."

Neither Fittipoldi nor Hopper were at work on the day plaintiff discovered the discarded plans and schematics on the loading dock. Consequently, plaintiff contacted Gwen Watson, NJT's Executive Secretary, who was acting as Executive Director that day. When Watson learned of the discarded documents, she called Peter Saklas, Assistant Executive Director of Engineering and Construction. Saklas looked at the documents and said they were "old drawings that we're throwing out." Watson believed that "Saklas knew what he was talking about" and was "not concerned any more." Sattazahn took custody of the documents and inventoried them.

The next day, when Fittipoldi returned, plaintiff informed him of the discarded documents. She claimed that he was "livid" and "furious" that she went to Watson and that he told her, "If anything ever happens like this again, you come right to me and don't go to anyone else." Plaintiff claimed that "the way he said it was very direct, very loud . . . and very mean spirited." Later that day, plaintiff said Fittipoldi told her that "if somebody wanted to blow up New York Penn Station, they only had to walk in with bombs strapped to them, they didn't need plans." Plaintiff claimed that thereafter Fittipoldi did not talk to her for weeks.

A day or so after plaintiff reported finding the plans and drawings on the loading dock, Hopper asked Fittipoldi to follow up on the complaint and meet with members of Saklas's staff. Fittipoldi and Saklas asked two members of Saklas's staff to investigate the issue. Fittipoldi testified that at that meeting we discussed what was depicted on the drawings. One of the things that we discussed was that some of the drawings showed architectural plans of certain train stations, bus depots, platforms, park and rides, and the like, train tracks and so forth. There were a multitude of different things shown on the drawings. We discussed whether any of these items or any of this information might be safety sensitive. No one really knew what that meant. That meant possibly that someone had an opinion that there might be safety implications. We agreed on one thing, that we didn't know for sure which of the drawings would be safety sensitive. However, many of the drawings that were looked at depicted public areas of public facilities. And the information on the drawings such as structural elements, position[s] of columns, gas pipes entering the facility, ventilation ducts for outside air intake and so forth could be - this information could be ascertained simply by walking through the public areas of these public facilities and observing with the naked eye. So that was something that was prevalent in our discussion, that is we thought what was found in these dumpsters [were] not trade secrets. It was details that could be observed in person.

We talked about the fact that many of these drawings were in the public domain. They were in the hands of various contractors, bidders, subcontractors, railroad historians and train rail fans and buffs that collected drawings of train stations. We also talked about the fact that our procurement department makes these drawings available whenever there is a construction project[,] new or rehab job or something like that[,] in one of these facilities that these drawings are given to bidders, in fact, sold to bidders. We charge them for the copy cost. To any bidder that comes up with a $50 or $100 check any bidder that is willing to come to the facility and pay for the drawings. They also freely copy the drawings and send them out to a multitude of subcontractors to prepare sections of their bids, different elements of the job.

So one of the prevalent sentiments in this meeting was that the drawings put in the dumpster in a secured area was not the most serious part of a potential problem of public safety.

We all agreed that there was a larger concern that should be eventually dealt with and that was determining which information and it's not just drawings, it's also printed material information about our sites, our operations that might be safety sensitive. This was a matter for police, not building management and not an engineering group and not even exclusively for a procurement and contracts group that provides these drawings to bidders. There would have ...


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