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Harris v. Clean Harbors Environmental Services, Inc.

United States District Court, D. New Jersey

October 23, 2019

JARON HARRIS, Plaintiff,




          NOEL L. HILLMAN, U.S.D.J.

         Plaintiff Jaron Harris filed suit against Defendants Clean Harbors Environmental Services, Inc. (“Clean Harbors”), Adam Mastracchio (“Mastracchio”), and John Does 1-5, alleging violations of the Fair Labor Standards Act (“the FLSA”), 29 U.S.C. § 201 et seq., and the New Jersey Conscientious Employee Protection Act (“CEPA”), N.J.S.A. § 34:19-1 et seq. (See Docket Item 1.)

         Defendants subsequently moved for summary judgment pursuant to Federal Rule of Civil Procedure 56. (Docket Item 16.) Plaintiff filed a Response in Opposition. (Docket Item 18.) Defendants filed a timely Reply. (Docket Item 19.) For the reasons expressed below, Defendants' Motion will be granted in full.


         A. The Parties

         Clean Harbors is a provider of environmental, energy, and industrial services that provides, among other things, 24-hour emergency response services - such as cleaning spills, leaks, or biohazard disasters - to its clients. Adam Mastracchio is the Field Services Branch Manager for Clean Harbors' Bridgeport, New Jersey facility. He is responsible for all aspects of that facility's field services division.[2] Plaintiff was hired by Clean Harbors as a Driver Class B Dry effective May 4, 2015. He was fired on August 10, 2017.

         B. The On-Call Policy

         Plaintiff's first count contends that Clean Harbors' on-call policy (“the policy”), which requires drivers to be on-call on a rotating basis to respond to emergency response (“ER”) services after hours and on weekends, violates the FLSA. Clean Harbors' Bridgeport facility divides its drivers into two teams that rotated being on-call each week. Each team had approximately 2-3 drivers during the relevant time period. The on-call shift begins at 5:00 PM on Friday and ends at 5:00 PM the following Friday. A driver who is on-call must report to his regularly scheduled assignments each day, but may also be called back to work after hours if an ER situation arises. If such a situation arises, the on-call coordinator is responsible for assigning the job to one of the on-call drivers. The coordinator considers whether the driver is eligible to drive more hours under Department of Transportation (“DOT”) regulations, whether the driver is trained for the equipment needed, and the driver's work schedule.

         Crucial to this litigation is that Clean Harbors does not pay drivers for the time they are on-call but not working. Instead, Clean Harbors only pays drivers if they are responding to an on-call assignment. Clean Harbors - which provides a company-issued cell phone to all drivers for on-call purposes - pays the driver from the time he picks up the on-call phone call and accepts the job through the completion of the job. Upon being given an on-call assignment, the driver reports to the Bridgeport facility and travels to the assignment from there. Defendants insinuate that drivers are permitted to get into their uniforms after they arrive at the facility. Conversely, Plaintiff alleges that he was expected to be in uniform upon his arrival at the Bridgeport facility. Moreover, Defendants claim that drivers are paid for four hours of time if an on-call assignment is cancelled after a driver accepts it and travels to the Bridgeport facility. Plaintiff disputes that assertion, claiming that drivers do not get paid at all if an on-call assignment is subsequently cancelled.

         Defendants assert that the policy requires employees to record all time worked while on call, including responding to any telephone calls, travel time to and from the location, and any work performed. Plaintiff points out that the employer is required to maintain accurate records of hours worked per 29 C.F.R. 516.

         An on-call driver is not required to remain at Clean Harbors' facility, but instead is free to return home. Drivers may also leave their homes during their on-call shifts. However, the policy requires the drivers to answer or return on-call phone calls within 15 minutes. Moreover, the policy requires the drivers to report to the Bridgeport facility within an hour of speaking with the on-call supervisor. Defendants assert, though, that the on-call coordinator would routinely grant extra time to return to the facility in the event that a driver requested it. Plaintiff notes that the policy contains no provision to that effect.

         The policy permits drivers to switch on-call shifts by finding a replacement driver and submitting an on-call replacement form. Mastracchio has to approve such replacements, which he has done every single time he has received such a request. Drivers could find a replacement for any reason, including in order to use vacation days. Plaintiff argues, however, that the process is not that simple because there are at most three drivers on a team, and whether each driver can pick up another's assignment depends on the replacement driver's DOT limitations as well as what kind of license he has. In other words, while the policy does allow drivers to trade shifts with one another, doing so was often impractical due to the above restrictions. Conversely, Defendants assert that it is rare that a driver cannot find a replacement, but that if that does happen, the driver can let Mastracchio know that he cannot work and Mastracchio will find a replacement driver, perhaps from another Clean Harbors' facility. Plaintiff denies that this ever happened while he worked for Clean Harbors, though the parties agree that Plaintiff never attempted to switch any of his on-call shifts.

         Defendants also assert that if a driver is not available for certain hours of an on-call shift due to obligations such as doctors' appointments, weddings, and birthday parties, then the driver can inform Mastracchio, who will not call the driver during those hours. Plaintiff denies this as well, pointing to a July 6, 2017 instance in which Mastracchio denied Plaintiff's request to be taken off the on-call list so that he could take his son in for an emergency tonsillectomy. Moreover, while the parties agree that Plaintiff never asked for additional time to respond to an on-call assignment, Plaintiff notes that (1) there is nothing to suggest that such a request would be granted and (2) Plaintiff did ask Clean Harbors several times to call another driver, which it refused to do.

         During Plaintiff's employment, Clean Harbors' Bridgeport facility only received two after-hour ER requests per month. Plaintiff was only called to work an on-call shift about once per month, though the number of calls that he received during each of his on-call weeks varied. Some weeks he received no calls; some weeks he received one call; some weeks he received more calls - up to 10 in a week according to Plaintiff. Plaintiff did not keep track of how many calls he received, nor of how many assignments he actually performed while on-call. According to Clean Harbors' records, Plaintiff only worked 12 on-call assignments during his 16-month tenure with Clean Harbors: two in July 2015, one in August 2015, one in September 2015, one in November 2015, one in May 2016, two in September 2016, one in December 2016, one in March 2017, one in May 2017, one in June 2017, and zero in the other months between June 2015 and August 2017.[3]

         Under the policy, drivers are free to engage in personal activities. Nobody ever indicated to Plaintiff that he could not do any certain activities while he was on call, so long as the activities did not put Plaintiff in a condition that rendered him incapable of safely performing the essential functions of the job (that is, he could not be impaired by alcohol or drugs). Additionally, the policy limits drivers' freedom insofar as they must be able to return to the Bridgeport facility within an hour of receiving the on-call phone call.

         During his on-call shifts, Plaintiff engaged in such personal activities as playing video games, going to the gym, playing sports in his backyard, doing home improvement projects, playing with his children, watching movies and TV, socializing with friends and family in his own home, sleeping, reading, and doing house chores. Plaintiff could have also visited friends, gone to the mall, or gone to the movies, as long as doing so would not have prevented him from getting back to the Bridgeport facility within an hour of receiving the call. In fact, on two of the occasions in which Plaintiff received an on-call assignment, he was at a baseball game and a Six Flags amusement part, respectively. Unfortunately for Plaintiff, he lived about 40 minutes away from the Bridgeport facility, which limited his flexibility when on-call - though he testified that if he had lived closer to the facility, he could have engaged in other activities.

         C. Plaintiff's Performance and Disciplinary History

         Plaintiff's remaining counts contend that Defendants retaliated against him by firing him, in violation of both CEPA and the FLSA. The Court will first discuss Plaintiff's employment with Clean Harbors, including his disciplinary history, before turning to the alleged complaint that he made, which he believes is the real reason for his termination.

         Plaintiff, who has a commercial driver's license (“CDL”), applied for a job with Clean Harbors around March 2015. Mastracchio interviewed Plaintiff around May 2015. Clean Harbors hired Plaintiff as a Driver Class B Dry effective May 4, 2015. In that position, Plaintiff was responsible for operating Class B equipment such as vacuum trucks, roll-off trucks, dump trucks, and rack trucks. He reported to Mastracchio. After completing Clean Harbors' training and onboarding process, Plaintiff began driving in June 2015.

         Plaintiff succeeded in the technical aspects of his job, but he routinely failed to timely and correctly submit required paperwork. He also failed to respond to two on-call assignments, in violation of Clean Harbors' on-call policy.[4]These deficiencies were noted early in Plaintiff's employment. In August 2015, Mastracchio issued Plaintiff a performance review. In the categories of “Communication” and “Customer Satisfaction, ” Mastracchio commented, “Jaron has to make sure all of his paperwork is turned in on time and correct.” For the category of “Attendance, ” Mastracchio commented, “Jaron has a good attendance but has to make sure he answers his phone when on call.” Under the “Initiative” category, Mastracchio commented, “Jaron has to get out the door quicker in the morning.” Plaintiff admits that he sometimes fell behind on his paperwork during his employment.

         On March 1, 2016, Mastracchio issued Plaintiff a written warning for failing to timely and correctly turn in his drivers' logs, trip and dispatch reports, and time cards. The warning read:

Jaron is not following our policies I have talked to Jaron about this many times and he is still not getting it. This needs to stop today and Jaron needs to turn in his paperwork everyday moving forward. If this continues Jaron will be suspended and can be terminated. Jaron has been talked to many times and still is not doing his paperwork correctly and is not doing his drivers paperwork or turning it in.[5]

         The written warning also stated that if Plaintiff did not improve his performance, he may be subject to further disciplinary action, up to and including termination. This aligns with Clean Harbors' employee handbook, which contemplates written warnings for an employee's first two offenses, suspension without pay for the third offense, and termination of driving privileges and possible employment altogether for the fourth offense. Plaintiff does not dispute that Mastracchio and other employees told Plaintiff that he needed to turn in his paperwork on time, and that Plaintiff's paperwork was not up to date.

         On August 22, 2016, Plaintiff received his second written warning - this one for being late to work. According to that warning, on August 19, 2016, Plaintiff was scheduled to start his shift at 4:00 AM. The client complained that Plaintiff was not on site, at which point Clean Harbors pulled Plaintiff's truck's GPS information, which showed that Plaintiff did not even leave the Bridgeport facility until 5:10 AM. He did this without notifying his managers that he was going to be late. The warning also noted that Jaron was falsifying hours by clocking in at 4:00 AM.[6] As with the first warning, Plaintiff was warned that if he did not improve his performance, he would be subject to further disciplinary action, up to and including termination.

         That same day, Plaintiff received his third written warning, this time for failure to comply with DOT regulations. Per the warning, on August 19, 2016, Plaintiff started his shift around 5:00 AM and, thus, according to DOT regulations, Plaintiff was prohibited from driving past 7:00 PM. However, after 7:00 PM, instead of laying over in Clean Harbors' Bristol, Connecticut facility, Plaintiff continued driving back to Clean Harbors' Bridgeport, New Jersey facility. Plaintiff does not contest that this is what the warning says, but he does deny the substance of the warning. He asserts that he correctly calculated whether he could drive past 7:00 PM on that day and that he was not in violation of DOT regulations by doing so. In any event, Plaintiff was again warned that if he did not improve his performance, he might be subject to further disciplinary action, up to and including termination.

         Shortly after receiving these two warnings, Plaintiff received his 2016 performance review, which Mastracchio completed. In the “Communication” category, Mastracchio commented, “Jaron has been written up for his paperwork and needs to correct it ASAP.” In the “Customer Satisfaction” category, Mastracchio commented, “Jaron does a good job with our customers but is failing with our internal customers (FSS). My specialists come to me all the time with issues with Jaron's paperwork.” In the “Job Skills” category, Mastracchio commented, “Jaron is a very good B driver but again his paperwork needs to be complete and accurate.” Plaintiff received an overall score of “Meets Expectations” on his 2016 performance review.

         On January 17, 2017, Plaintiff received his fourth written warning, this time for failing to turn in his drivers' logs and mileage reports on time and correctly. That warning included the following language: “This is Jaron's final warning and has 5 days from 1/30/17 to complete all missing paperwork and mileage. If this is not corrected in five days, Jaron will lose his driving privileges and possible employment with Clean Harbors.” This being his fourth warning, Plaintiff was suspended for three days. Plaintiff admitted in his deposition that he was, in fact, behind on his paperwork at the time of this warning and suspension.

         Plaintiff served his suspension, completed his missing paperwork, and was permitted to return to work. In addition to the above language, the written warning again stated that if Plaintiff did not immediately improve his performance, he might be subject to further disciplinary action, up to and including termination. Moreover, this warning outlined Clean Harbors' progressive discipline policy, which states that a third offense would result in suspension and a fourth offense could result in termination. Mastracchio testified that he also warned Plaintiff that any subsequent policy violation would result in termination of his employment. Plaintiff, in his Declaration, stated that he was not specifically told that, though he does not dispute the contents of the fourth written warning.

         Finally, on or around August 5, 2017, Plaintiff received a fifth warning. On that day, Plaintiff was on-call and received but did not answer a phone call from the on-call coordinator around 5:30 AM. Mastracchio texted Plaintiff at 6:00 AM, asking Plaintiff to call him as soon as possible. Plaintiff responded at 7:30 AM, writing, “Sry just woke up what's going on?” The warning stated that Plaintiff's failure to respond required Clean Harbors to hire two outside vendors to complete the assignment, which the customer would not pay for.

         Plaintiff admits that he overslept and missed the call, but asserted in his Declaration that the job at issue required more equipment than Clean Harbors had available, so the outside vendors would have been required even if he had not overslept. Moreover, Plaintiff stated that, even in spite of his oversleeping, he still could have arrived on the site before the outside vendors. Regardless, the warning stated, “Jaron has 4 other warnings since 3/1/16 and this will be his fifth warning and this leaves us no choice but to terminate Jaron due to him not following our policies and procedures.”

         It further stated, “Jaron has not followed our policies and procedures and is being terminated for his lack of not following our P&P.” Mastracchio texted Plaintiff on August 6, 2017, stating, “[Y]ou have a meeting on Thursday[, August 10, 2017, ] at 0900 in my office until then you are under suspension, For not calling back for a ER yesterday until an 1.5 hr later.” Plaintiff was then terminated on August 10, 2017. The parties agree that it was the violation of the on-call policy, outlined below, that prompted Plaintiff's termination.[7]

         D. Plaintiff's Alleged Complaint About the On-Call Policy

         Plaintiff alleges that in July 2017 he made a complaint to Robert Casmer, a scheduling coordinator at Clean Harbors, about how restrictive the on-call policy was. In making this complaint, Plaintiff was trying to see if Clean Harbors would provide him with any monetary compensation while being on-call. Moreover, after Plaintiff made his complaint, another coordinator named Daniel Diehl had an altercation with Plaintiff relating to dropping his children off at day care. Plaintiff alleges that following the complaint, he told Diehl that he needed to drop off his children at day care during an on-call shift and, though Diehl initially agreed to let Plaintiff leave his on-call assignment early, he then tried to prevent Plaintiff from leaving the worksite to drop off his children. Diehl allegedly told Plaintiff that he could be fired for leaving his on-call assignment early. Plaintiff then complained to Mastracchio that Diehl was trying to get him fired - though Plaintiff testified that he does not know whether Diehl knew about Plaintiff's complaint to Casmer. The next time Diehl was the on-call coordinator was when Plaintiff overslept, missed an on-call call, received his fifth warning, and was subsequently terminated.

         Defendants assert that Mastracchio, who made the decision to terminate Plaintiff's employment, had no knowledge of the alleged complaint that Plaintiff made to Casmer, nor of any complaint made by Plaintiff at all during his employment, whether about the on-call policy or any other issue. Plaintiff conceded in his Deposition that he was unaware if Casmer relayed the complaint to Mastracchio. Mastracchio, in his Certification, stated that Casmer was not consulted and played no role in the decision to terminate Plaintiff's employment.

         Plaintiff alleges, however, that the contention that Mastracchio did not know about his complaints about the on-call policy is false. Plaintiff states that “[t]here was regular grumbling among the workers about the on-call policy. It came up during nearly every group meeting and resulted in a ...

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