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Barrera v. Experience Drywall

March 30, 2010

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.



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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 20, 2010

Before Judges Wefing, Grall and Messano.

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 . ...


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