United States District Court, D. New Jersey
BRYAN E. FISCHER, Plaintiff,
G4S SECURE SOLUTIONS USA, INC., Defendant.
James M. Carter, Esq., LAW OFFICES OF HOFFMAN DIMUNZIO, Turnersville, NJ, Attorney for Plaintiff.
John K. Bennett, Esq., Leslie Ann Marie Saint, Esq., JACKSON LEWIS P.C., Morristown, NJ, Attorneys for Defendant.
JEROME B. SIMANDLE, Chief District Judge.
Plaintiff Bryan Fischer brings this action alleging that he was terminated from his job in retaliation for engaging in protected whistleblowing activity, in violation of Conscientious Employee Protection Act ("CEPA"), N.J.S.A. 34:19-1, et seq.
Plaintiff, formerly an armed security officer at a nuclear power facility, alleges that he was constructively terminated after disclosing to his supervisors unsafe conduct by his union co-workers. In response, some co-workers made complaining statements to Plaintiff, and Defendant placed him on leave with pay in order to investigate his allegations of harassment. After concluding the investigation, Defendant offered Plaintiff two options: (1) a transfer to the nearest facility with which Defendant had a contract (in New Hampshire, for less pay and with a reduction in Plaintiff's union seniority due to the different union contract there), or (2) return to work with assurances that changes were being made to the workplace and that harassment by his co-workers would not be tolerated. (Defendant rejected a third option: Plaintiff's $800, 000 demand for severance.) Plaintiff declined the transfer and never returned to work because he felt that Defendant had not adequately addressed his safety concerns. Officially, Plaintiff was fired for not reporting to work. He maintains that he was constructively terminated.
Before the Court is a motion for summary judgment by Defendant G4S Secure Solutions USA, Inc. [Docket Item 40.] For the reasons explained below, because much of Plaintiff's conduct does not qualify for protection under CEPA, and because Plaintiff cannot establish causation or show that Defendant's proffered reason for his termination was pretextual, the Court will enter summary judgment in favor of Defendant.
1. Plaintiff's disclosures
The facts are undisputed, except where noted. In 2007, Defendant G4S Secure Solutions USA, Inc., hired Plaintiff Bryan Fischer as an armed security officer and assigned him to the PSEG Salem-Hope Creek nuclear power facility,  where G4S provided security services on a contract basis. (Statement of Undisputed Material Facts ("SMF") ¶¶ 1, 4-6.) After a few months of employment, Plaintiff joined a security officers' union, the Nuclear Power Plant Security Officers of America. (SMF ¶3.) Over the course of his employment, Plaintiff received training materials and attended numerous training sessions on safety, ethics, misconduct, and harassment in the workplace. (SMF ¶¶ 11-18.)
Between April 2008 and February 2010, Plaintiff was involved in three incidents in which he provided his employer with information about what he considered to be safety concerns at the facility. (Defendant disputes that the information disclosed had any bearing on safety. (SMF ¶ 95.)) Plaintiff asserts that these incidents provoked threatening or harassing responses from union co-workers, and set in motion a course of events that led to Plaintiff's termination.
The first incident occurred in April 2008. A manager in PSEG's security department asked Plaintiff if he was aware of any unauthorized chairs on site in which security officers might sit without permission. (SMF ¶ 19.) Plaintiff identified a chair "on one of the elevations that was used to prop open the roof door." (SMF ¶ 20.) At the manager's direction, Plaintiff and a union co-worker removed the chair. (SMF ¶¶ 21-22.) On April 17, 2008, Officer Manny Perdue was seated behind Plaintiff at a meeting, and kicked the back legs of Plaintiff's chair. (SMF ¶ 23.) Plaintiff complained, and a union representative facilitated an apology from Perdue, which Plaintiff accepted. (SMF ¶¶ 24-31.) Perdue was later fired for an unrelated reason. (Deposition of Arthur R. Simpson, Sr. (Def. Ex. D) [Docket Item 40-12] at 78:7-12, 82:19-83:2.)
One year later, Plaintiff was patting down and searching visitors to the facility, when he discovered one visitor had a digital camera without a "camera pass" authorizing the visitor to carry a camera into a protected area of the facility. (SMF ¶¶ 32-36.) Plaintiff believed that Officer Glasby, who had allowed the visitor to enter without a camera pass, had violated security protocol, and Plaintiff told the security team leader on duty. (SMF ¶¶ 37-38.) About 10 or 12 days later, Officer Glasby confronted Plaintiff and asked: "What are you trying to do jam me up?" (SMF ¶ 40.)
The third incident occurred on February 14, 2010, at the beginning of Plaintiff's shift. (SMF ¶ 42.) He smelled alcohol on the breath of his co-worker Officer Crowell and inquired whether Crowell had been drinking. (SMF ¶¶ 42-43.) Crowell replied that he had some drinks the night before but felt fine. (SMF ¶ 44.) Plaintiff believed that security officers were required to self-report if they were intoxicated or if they had been under the influence of alcohol within five hours of reporting for duty, and Plaintiff instructed Crowell to report to the team leader. (SMF ¶¶ 45-46.) When Plaintiff informed Officer Terry Snyder, the union's vice president, about the situation, they both accompanied Crowell to the locker room to take a fitness-for-duty Breathalyzer test. (SMF ¶¶ 48-50.) Crowell failed the test and was terminated immediately. (SMF ¶¶ 50-51.)
As to each of these three incidents, Plaintiff does not allege that his employer ignored his reports or failed to take proper action. Indeed, as to the third and most serious report of misconduct, involving Officer Crowell's use of alcohol, Plaintiff admits "the employer did the right thing at the time and terminated that employee." (Pl. Supp. Letter Br. [Docket Item 48] at 2.)
2. Reaction to Plaintiff's conduct
Some of Plaintiff's co-workers expressed dissatisfaction with Plaintiff's behavior and Crowell's termination. Officer Perdue showed Plaintiff text messages that read, "Fischer is going to get his, " and "Fischer's no good, why you talk to him?" (SMF ¶¶ 52-54.) One officer told Plaintiff that "he needed to stop reporting things" and that if they were in the military, other officers "would pay him a visit at night." (SMF ¶ 57.) Plaintiff observed that when he entered the security officers' break room, some union officers would leave the room. (SMF ¶ 56.) Two months after Crowell's termination, Officer Glasby relieved Plaintiff from his shift, and asked why Plaintiff was squinting his eyes and clenching his fists, and if he were going to hit Glasby. (SMF ¶ 59.) Plaintiff contends he was doing none of those things and thought Glasby was trying to provoke him or set him up. (SMF ¶ 60; Counterstatement of Material Facts ("CMF") [Docket Item 42] ¶ 12.) Plaintiff discussed with Officer Snyder the possibility of contacting PSEG's Employee Concerns Program ("ECP"), about this treatment by his co-workers. (SMF ¶¶ 61-65.) The next day, the union president, Anthony Rizzo, told Plaintiff: "I hear you're going to contact Employee Concerns. Go ahead and contact Employee Concerns and see where that gets you." (SMF ¶ 66.)
Plaintiff contacted the manager of ECP, Mike Headrick, and left a message requesting that Headrick call him back on his cell phone. (SMF ¶¶ 67-69; CMF ¶ 16.) Instead, Headrick called Plaintiff's supervisor, Dave Mizenis, who, over the radio, relayed the message for Plaintiff to call "extension 2014, " which Plaintiff feared would be recognized by his co-workers as the ECP extension. (SMF ¶¶ 70-73.) Headrick later apologized for calling the supervisor, and arranged to meet Plaintiff that evening, to discuss the work environment. (SMF ¶¶ 75-76.) Plaintiff met with Headrick twice and reported that his coworkers were treating him differently after the radio message to call extension 2014; one officer had asked Plaintiff "what was wrong with him" and "if he had a problem, " and another asked, "what's the matter with you, Fischer?" (SMF ¶¶ 79-82.) Headrick promised to investigate. (SMF ¶ 83.)
Plaintiff also arranged meetings with Hunter Sawders, project manager for G4S, and Brian Jacques, PSEG security manager. (SMF ¶¶ 84-88.) Jacques suggested that Plaintiff be assigned to administrative work in the building, to separate him from his fellow union officers while the situation was under review. (SMF ¶ 89.) Although Plaintiff reported to work in the administrative building at least twice, Rizzo informed Sawders that the union's collective bargaining agreement did not allow officers to perform such work. (SMF ¶ 96.) Consequently, on or around May 24, 2010, Plaintiff was placed on administrative leave with pay, pending an investigation. (SMF ¶ 98.)
G4S retained attorney Arthur Domby to investigate Plaintiff's concerns. (SMF ¶ 92.) Domby spoke with Plaintiff several times throughout the investigation, and as the investigation drew to a close, in July 2010, Domby told Plaintiff that he believed the work environment was being corrected. (SMF ¶¶ 99-102.) Domby said that any disciplinary action against union co-workers would be up to Sawders and G4S. (SMF ¶ 103.)
In August 2010, Plaintiff also contacted a field examiner at the National Labor Relations Board office in Philadelphia about filing unfair labor practice charges against the union and G4S. (SMF ¶¶ 105-06.) The field examiner drafted charges based on Plaintiff's representations, but Plaintiff ultimately decided not to sign or file charges. (SMF ¶¶ 107-09.) Plaintiff asserts that he told members of management, including Sawders, that he was considering filing NLRB charges. (CMF ¶ 33; Certification of Bryan Fischer ("Fischer Cert.") [Docket Item 42-1] ¶ 27.) Defendant contends that, because Plaintiff never filed charges, neither G4S nor the union ever received notice of any NLRB charges. (SMF ¶¶ 110-11.)
3. Meetings with management
In September 2010, Plaintiff had a series of telephone conversations and in-person meetings with management of G4S and PSEG about whether and how Plaintiff could return to work. In the conversations, management reassured Plaintiff that they were taking his concerns seriously and that they would take necessary action to deal with anyone who gave Plaintiff trouble. Plaintiff surreptitiously recorded these conversations with a voiceactivated recording device. (SMF ¶ 104.) Plaintiff later explained that he wanted to document "the honest truth of whatever [management] thought they were going to do" and "didn't want them to change their wording based on knowing that I had a recording device." (Fischer Dep. (Def. Ex. B) at 383:21-384:13.) He thought that recording the conversations would protect his "well-being." (Id. at 384:25-385:2.) As discussed next, the transcripts of Plaintiff's secret recordings document that Defendant's management took prompt and reasonable measures to protect Plaintiff from workplace harassment by co-workers and to preserve his employment.
a. September 9, 2010
On September 9, 2010, Plaintiff met with Sawders and Robert Kindelein, who managed the Safety Conscious Work Environment ("SCWE") program for G4S, about returning to work. (SMF ¶¶ 13, 115.) Plaintiff secretly recorded the conversation, as noted. Both Sawders and Kindelein assured Plaintiff that changes were being made in the workplace and that management would have "zero tolerance" of harassment toward Plaintiff upon his return. (Tr. of 9/09/10 Conversation at 68:18-21). Sawders said:
I want to make sure you know that I'm aware of the issues raised. Obviously, I've seen the investigation. There are some issues I still need to address with some of the force. Discipline will be issued wherever warranted. Coaching will be issued wherever warranted.... But I want you to know that I will take action on the parts that need to have action taken on them.
(Id. at 80:20-81:4.) Sawders explained that "the supervisors are going to quickly get some reigns put on them" and that "life is about to change for them." (Id. at 72:25-73:1, 74:4-12.) Sawders said he specifically discussed Plaintiff's situation with the supervisors so that "there's going to be a heightened level of awareness out there." (Id. at 81:9-10.) Sawders also reported that he spoke to, and provided reading material to, "every shift" and told the officers that "[t]his stuff about rats and snitches, that belongs in a prison. It doesn't belong here." (Id. at 74:15-21.) Kindelein added that "[t]here's going to be a lot of SCWE things addressed." (Id. at 74:13-14.) The managers pledged to take any action necessary and told Plaintiff that anyone who harassed Plaintiff would be "done." (Id. at 75:9-13, 81:2-10, 142:1-8; 145:17-18.) Sawders encouraged Plaintiff to continue reporting safety violations through the proper chain of command but told him to report any instances of harassment directly to him. (Id. at 68:25-69:9, 71:20-22.) Sawders also discussed how Plaintiff would have to undergo a fitness-for-duty procedure, including drug testing, because he had been away from work for so long. (SMF ¶¶ 115-18.)
Kindelein also discussed with Plaintiff an allegation contained in the investigation report that Plaintiff reported that he caught an officer named Katie Harris sleeping. (Tr. of Conversation with Fischer, Kindelein & Sawders (Pl. Ex. F) [Docket Item 42-6] at 6:10-7:42.) Plaintiff responded that "[t]hat's a complete fabrication and lie" (id. at 7:12-13) and that "this is a union retaliation." (Id. at 11:17-18.) Kindelein replied: "I got to look into it." (Id. at 11:24.)
During this and subsequent conversations that Plaintiff recorded, Plaintiff expressed continued concerns about his safety. "I mean, do I think somebody's going to shoot me? No." (Tr. of 9/09/10 Conversation (marked as D-37 within Def. Ex. C.) [Docket Item 40-10 at 37] at 103:15-16.) "Did anybody say they're going to beat me up or anything that - like that? No, but I've heard people aren't happy with [me]." (Tr. of 9/10/10 Conversation with Fischer, Kindelein & Bruecks (marked as D-40 within Def. Ex. C) [Docket Item 40-10 at 62] at 100:10-14.) "I really believe that somebody, given the opportunity, could possibly do something physically. I mean, do I have concrete evidence? No, I don't. But... based on things I've heard and then were told to me... I probably feel that something like that could possibly happen to me." (Tr. of 9/10/10 Conversation with Fischer, Kindelein & Sawders (marked as D-42 within Def. Ex. C) [Docket Item 40-10 at 70] at 3:12-17.) Plaintiff added: "I mean, I'm a man. I can take it. And like I said, they might say, Fischer, you got a high receding hairline; Fischer, you're skinny. I mean, that's - that's - you know, I'm a man." (Tr. of 9/10/10 Conversation with Fischer, Kindelein & Bruecks at 101:14-17.) He was particularly concerned about "a situation that I would be in where somebody makes an accusation that he freaked out on me and - and really they struck me and now - now they're trying to come up with a story to defend what they did to me." (Id. at 102:2-6.)
b. September 10, 2010
Talks continued the next day, with Mike Bruecks, PSEG's security director, which Plaintiff also secretly recorded. Bruecks told Plaintiff that he had seen the investigator's report and PSEG supported Plaintiff's return and would take care of any problems. (SMF ¶¶ 126, 129-30; Tr. of 9/10/10 Conversation with Fischer, Kindelein & Bruecks at 93:11-13, 100:15-22.) Bruecks said: "We all have to acknowledge that it's not going to be a perfect ride, because of the... investigation. We will take care of that, if anybody steps out of line." (Id. at 103:13-16.)
During a follow-up conference call, Kindelein asked Plaintiff what G4S could do to alleviate his concerns, and Plaintiff replied that he did not know. (SMF ¶¶ 127-28.) Plaintiff discussed returning to work in such a manner that he would be separated from officers who threatened him, but he stated:
I won't want to say no specific names, because I really don't have a specific name... - I mean, there are a few that I feel I could threatened by [sic], but I don't want to reveal their names, because that would be unfair to them, and pre-judgmental on my part.
(Tr. of 9/10/10 Conversation with Fischer, Kindelein & Sawders (marked as D-42 within Def. Ex. C) [Docket Item 40-10 at 71] at 4:3-9.) Plaintiff also discussed the possible termination of harassing officers, but Plaintiff acknowledged that such a move could backfire:
MR. FISCHER:... And obviously I'm hearing, you know, you had reiterated that nobody's going to be terminated, and - and I understand that. I'm not going to tell you how to do your job and how you would keep this force intact.
MR. SAWDERS: Would terminating some people make you feel more comfortable?
MR. FISCHER:... in a way, it would, but then, in a way, I'd fear that what retaliation would come from them terminations. So, it is like a double-edged sword.
(Id. [Docket Item 40-11] at 8:18-9:2.)
Kindelein promised to speak with G4S corporate officials about options for Plaintiff. (SMF ¶ 132.) Plaintiff asked about being transferred to another G4S site. (SMF ¶ 133-34.) Kindelein advised that the nearest G4S site was Seabrook, N.H. (SMF ¶ 137.) When asked to suggest other options, Plaintiff floated the idea of a severance package. (SMF ¶¶ 138-39.) Sawders told Plaintiff that the attorney for G4S and Plaintiff's attorney would have to discuss these options, but that Plaintiff should continue the process of preparing to return to work, "just in case." (SMF ¶ 141; Tr. of 9/10/10 Conversation with Fischer, Kindelein & Sawders (marked as D-42 within Def. Ex. C) [Docket Item 40-11 at 15] at 25:17-24.) Kindelein stated that "your health and safety is our most important priority right now." (Id. at 14:6-7.)
c. Other correspondence and Plaintiff's termination
Plaintiff met with Sawders again on September 16, 2010. (SMF ¶ 142.) Sawders told Plaintiff that he could not create a position at the Salem-Hope Creek facility that would "keep [Plaintiff] away from other people that are of concern to you." (SMF ¶ 144; Tr. of 9/16/10 Meeting (marked as D-46 within Def. Ex. C.) [Docket Item 40-11 at 28] at 4:5-9.) However, Plaintiff testified that, at some point, Sawders told him that Mizenis, the supervisor who relayed the message from ECP to Plaintiff over the radio, would not be assigned to Plaintiff's shift upon his return to work. (Fischer dep. at 347:13-17.) Sawders offered Plaintiff a transfer to Seabrook, N.H., but advised him that security officers there belonged to a different union, and Plaintiff would start anew in terms of salary and seniority. (Tr. of 9/16/10 Meeting at 4:12-5:11.) Plaintiff again raised the option of a severance package, but Sawders told Plaintiff he was only authorized to offer a transfer to New Hampshire, and that the attorneys should confer about severance. (SMF ¶¶ 148-49.)
On September 24, 2010, Plaintiff's counsel sent G4S a letter rejecting the offer to transfer. (SMF ¶ 152.) In the letter, Plaintiff demanded a severance package of $800, 000. (SMF ¶ 153; D-46 (within Def. Ex. C) [Docket Item 40-11 at 46] at 3.) G4S's attorney rejected Plaintiff's severance demand the same day, and instructed Plaintiff to contact management no later than September 27, 2010, to return to work or pursue the transfer. (SMF ¶ 154.) The letter stated that if Plaintiff did not contact management by the close of business on September 27, 2010, G4S would deem him to have ...