NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 10, 2013
On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-2154-10.
Neal M. Unger argued the cause for appellant (Neal M. Unger, PC, attorneys; Mr. Unger, of counsel and on the briefs; Jeffrey Zajac, on the brief).
LeRoy J. Watkins, Jr., argued the cause for respondents (Jackson Lewis, LLP, attorneys; Mr. Watkins, of counsel and on the brief; Eric G. Guglielmotti, on the brief).
Before Judges Reisner, Alvarez and Carroll.
Plaintiff Mario Gatto appeals from the September 21, 2012 summary judgment dismissing his complaint, in which he alleged that defendants Target Corporation, Target Corporation of Minnesota, Jason Buczek, Scott Rapp, and Tania Delgado violated the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8.
During the time of Gatto's employment relevant to his claim, he worked at a Target store overseeing the unloading and sorting of merchandise from delivery trucks. His position required him to keep the unloading area clear of hazards, and to provide safe access for workers. He was also required to drive a truck to and from the store and the warehouse.
It is undisputed that in the beginning of September 2009, Gatto learned that another employee, Dwight Carrara, was pulled over while driving a truck leased from Penske that had air brakes. Gatto understood that Carrara was ticketed for driving without a commercial driver's license (CDL), and further understood that such licenses were required in order for a driver to lawfully operate a truck with air brakes.
Gatto brought the CDL issue to the attention of Buczek, his supervisor. He told Buczek that he no longer wished to drive the Penske truck because he did not have a CDL, and that he did not believe anyone without such a license should do so. Eventually, Buczek informed Gatto that Rapp, another Target supervisor, had investigated the question, and that contrary to Gatto's belief, it was lawful for a driver without a CDL to operate a vehicle with air brakes, so long as it did not exceed 26, 000 pounds. The Penske truck was less than 26, 000 pounds. Dissatisfied with that response, Gatto brought in a pamphlet which he had underlined and highlighted, which he later claimed corroborated his position. Despite the fact his supervisors disagreed with him, Gatto was not required to drive trucks with air brakes. He was not reassigned, did not lose hours, and his pay was unaffected.
On November 13, 2009, about two months later, Gatto noticed a scissor lift had broken down in a back room opening onto the loading dock. A scissor lift is a one-ton motorized vehicle, the size of a car or van, which has a platform that can be moved up and down to allow access to high, otherwise inaccessible areas. Gatto told Buczek that he was going to move the scissor lift; Buczek responded that Gatto should not do so. In addition to not considering moving the equipment a priority at the time, because of the size and nature of the lift, Buczek believed for Gatto to do so would be dangerous.
Afterwards, Brandon Purcelly, another supervisor, entered the back room and saw Gatto attempting to move the scissor lift with a crown lift. A crown lift is small and manually operated, primarily used to move pallets. Purcelly told Gatto to stop trying to move the scissor lift with the crown lift because the disproportion in size made doing so unsafe. When Purcelly left the area, Gatto persisted in moving the scissor lift with the crown lift until he finally succeeded. When Buczek noticed what Gatto had done, he told him he should not have moved it because it was too dangerous.
The following day, Gatto's repeated failure to comply with his supervisors' instructions was reported to Tania Delgado, a regional supervisor, who discussed the issue with Purcelly and with Wendy Catalan, the district manager responsible for human resources. Pursuant to Target's safety guidelines, they concluded that Gatto's disregard for his supervisors' directives, and his decision to persist in moving the scissor lift, was "gross misconduct" and "reckless conduct" which warranted ...