Bryan Fischer v. G4S Secure Solutions Inc , 614 F. App'x 87 ( 2015 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 14-3420
_____________
BRYAN E. FISCHER,
Appellant
v.
G4S SECURE SOLUTIONS USA, INC.
_______________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 10-cv-6792)
District Judge: Hon. Jerome B. Simandle
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Submitted Under Third Circuit L.A.R. 34.1(a)
June 5, 2015
Before: FISHER, JORDAN, and SHWARTZ, Circuit Judges.
(Filed June 8, 2015)
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OPINION
_______________
JORDAN, Circuit Judge.
Appellant Bryan Fischer asks us to reverse an order of the United States District
Court for the District of New Jersey granting summary judgment in favor of his former

This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
employer G4S Secure Solutions USA, Inc. (“G4S”), on his New Jersey Conscientious
Employee Protection Act (“CEPA”) claim. N.J. Stat. Ann. 34:19-1, et seq. Because
Fischer has failed to adduce evidence of a causal link between what he claims was
protected whistle-blowing and his termination, we will affirm.
I. Background1
A. Factual Background
G4S hired Fischer in 2007 to be an armed security officer at the Salem-Hope
Creek nuclear power facility for which G4S provides security services under a contract
with PSEG Nuclear, LLC (“PSEG”). While there, Fischer joined a security officers’
union. During his tenure, he received training materials and attended numerous training
sessions on safety, ethics, misconduct, and harassment in the workplace.
Between April 2008 and February 2010, Fischer reported three “safety concerns”
to PSEG, provoking unfavorable responses from his co-workers. The first incident
occurred in April 2008 when a manager in PSEG’s security department asked Fischer if
he was aware of any unauthorized chairs on site in which security officers might sit
without permission and he told the manager that there was a chair that was used to prop
open the roof door. At the manager’s direction, Fischer and a co-worker removed the
chair.2
1
These facts are recounted in the light most favorable to Fischer, the non-movant.
See infra n.4.
On April 17, 2008, a co-worker kicked the back legs of Fischer’s chair. Fischer
2
thought this was in retaliation for his report about the chair, and he complained about the
2
The second incident occurred one year later when Fischer discovered that a visitor
to the facility had a digital camera without a “camera pass” authorizing the carrying of a
camera into a protected area of the facility. Fischer believed that a co-worker, security
officer Glasby, who had allowed the visitor to enter without a camera pass, had violated
security protocol, prompting Fischer to tell the security team leader on duty. Several
days later, Glasby confronted Fischer and asked: “What are you trying to [do,] jam me
up?” (App. at 184.)
The third incident occurred on February 14, 2010, when Fischer smelled alcohol
on the breath of another co-worker, security officer Crowell, and inquired whether
Crowell had been drinking. Crowell replied that he had had some drinks the night before
but felt fine. Fischer 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 Fischer instructed Crowell to do so. Fischer then informed Terry
Snyder, the union’s vice president, about the situation, and they both accompanied
Crowell to the locker room to take a fitness-for-duty breathalyzer test. Crowell failed the
test and was terminated that same day.
Some of Fischer’s co-workers expressed dissatisfaction with his behavior and
Crowell’s termination. For example, one showed him text messages that read, “Fischer is
going to get his,” and “Fischer’s no good, why you talk to him?” (App. at 108.) Another
officer told Fischer that “he needed to stop reporting things” and that, if they were in the
incident. A union representative facilitated an apology from the co-worker, which
Fischer accepted.
3
military, other officers “would pay him a visit at night.” (Id.) Fischer testified during his
deposition that, when he entered the security officers’ break room, some union officers
would leave the room. Fischer discussed with Snyder the possibility of contacting
PSEG’s Employee Concerns Program about this treatment by his co-workers. The next
day, the union president, Anthony Rizzo, said, “I hear you’re going to contact Employee
Concerns. … Go ahead and contact Employee Concerns and see where that gets you.”
(App. at 194.)
After Fischer contacted the manager of the Employee Concerns Program, Mike
Headrick, Headrick called Fischer’s supervisor who, over the radio, relayed the message
for Fischer to call “extension 2014,” the import of which Fischer feared his coworkers
would recognize. Headrick later apologized for calling the supervisor, and arranged to
meet Fischer that evening to discuss the work environment. Fischer met with Headrick
twice and reported that his coworkers were treating him differently, prompting Headrick
to tell him that he would investigate the matter and keep him apprised of any updates.
Fischer also arranged meetings with Hunter Sawders, the project manager for G4S, and
Brian Jacques, the PSEG security manager. Jacques suggested that Fischer be assigned
to administrative work in the administration building, to separate him from his fellow
union officers while the situation was under review. Although Fischer reported to work
in the administration building at least twice, the union protested that its collective
bargaining agreement did not allow officers to perform such work. Consequently, on
May 24, 2010, Fischer was placed on administrative leave with pay, pending an
investigation.
4
G4S retained an attorney, Arthur Domby, to investigate Fischer’s concerns.
Domby spoke with Fischer several times throughout the investigation, and, as the
investigation drew to a close in July 2010, Domby told Fischer that he believed the work
environment was being corrected. Domby further reported that any disciplinary action
against union co-workers would be up to Sawders and G4S. In August 2010, Fischer
contacted a field examiner at the National Labor Relations Board (“NLRB”) office in
Philadelphia about filing unfair labor practice charges against the union and G4S. The
field examiner drafted charges, but Fischer ultimately decided not to sign or file them.
Fischer maintains that he told members of G4S management, including Sawders, that he
was considering filing NLRB charges, but G4S contends that, because he never actually
did so, neither G4S nor the union ever received notice.
In September 2010, Fischer had a series of telephone conversations and in-person
meetings with management of G4S and PSEG about whether and how he could return to
work, all of which he surreptitiously recorded. In the conversations, management
reassured Fischer that they were taking his concerns seriously and that they would take
action against anyone who gave him trouble. Specifically, management informed Fischer
– repeatedly – that it would have a “zero tolerance” policy on any harassment or bullying
directed toward him. (See, e.g., App. at 226 (deposition testimony from Fischer in which
he admits he was told there would be “zero tolerance” of harassment); App. at 440 (“Zero
tolerance. For this case in particular, ... zero tolerance. Number one, I will not tolerate
anybody giving you shit out there, period.”); App. at 456 (“I told you ... I’m an advocate.
I’m your advocate. Somebody is out there giving you a hard time, you call me. All
5
right? ... And I will call the president and we’ll call him and we’ll say you’re done. Get
him off-site. Not – not you, but whoever is giving you a hard time. Because we have
zero tolerance for that.”).) Management also informed Fischer that they were glad he had
reported the misconduct and that he had done “exactly what everybody should [do].”
(App. at 446.) They informed him that things would “be different” and that they would
not tolerate any “union games.” (Id.) Management also informed Fischer that he should
“continue to identify and raise issues. … [W]e welcome that, and … we want to make
sure that that doesn’t stop.” (App. at 463.) Management also told Fischer he would have
a direct line to them and that he should immediately contact them if anyone were to give
him a “hard time,” and they further emphasized that they were his “advocate[s].” (App.
at 456.)
When Fischer indicated that he felt he would be unsafe if he returned to work,
management asked him what measures would make him feel safe and offered to take a
number of steps, including providing him with an escort, to ensure his “safety and smooth
transition.” (App. at 524.) Management told Fischer that his “health and safety is our
most important priority right now.” (App. at 484.) When Fischer suggested that a
transfer to a different facility might make him feel more comfortable (App. at 475-476),
management offered to transfer him to New Hampshire, which would cause him to lose
three years of union seniority, but he refused because his wife apparently does not “like
cold climates,” (App. at 506; see also id. at 505 (“[M]y wife’s not going to move.”); id. at
506 (“[S]he told me, if she was going anywhere, it’s south.”)). Management asked about
6
firing the offending officers, but Fischer believed that doing so would only lead to
increased hostility among the remaining employees.
On September 24, 2010, Fischer’s attorney sent G4S a letter rejecting the offer to
transfer and demanding a severance package of $800,000. G4S rejected that severance
demand the same day, and instructed Fischer to contact management no later than
September 27 to return to work or pursue the transfer. On September 29, Fischer’s
attorney sent G4S a letter indicating that Fischer would not be returning to work. On
October 8, G4S sent Fischer a letter informing him that he was terminated for failing to
report to work.
B. Procedural History
On November 16, 2010, Fischer filed a complaint against G4S in New Jersey state
court and, in late December, G4S removed the action to federal court, based on federal
question jurisdiction. G4S successfully moved to the claims against it. Fischer later filed
an amended complaint asserting a single claim for retaliation under New Jersey’s CEPA,
arguing that he was terminated for “speaking out or threatening to speak out about
[G4S]’s inability or unwillingness to follow safety requirements ... and for speaking out
or threatening to speak out about unfair labor practices to the National Labor Relations
Board.” (App. at 75 ¶ 38.) After discovery closed, G4S moved for summary judgment
and the District Court granted that motion in June 2014.3 Fischer timely appealed.
3
The District Court concluded that, because G4S’s motion for summary judgment
sought dismissal of the CEPA claim insofar as it was based on the unfiled NLRB charges
and because Fischer did not address the NLRB charges at all in opposing summary
judgment, Fischer had abandoned any argument rooted in those unfiled charges. We
7
II. Discussion4
CEPA protects employees from retaliation by employers for reporting suspected
violations of law or public policy. Battaglia v. United Parcel Serv., Inc., 70 A.3d 602,
625 (N.J. 2013). To survive a summary judgment motion, a plaintiff bringing a CEPA
claim must establish a prima facie case by demonstrating that “(1) he reasonably believed
that his employer’s conduct was violating a law or rule or regulation promulgated
pursuant to law, (2) he objected to the conduct, (3) an adverse employment action was
taken against him, and (4) a causal connection exists between the whistleblowing activity
and the adverse employment action.” Sarnowski v. Air Brooke Limousine, Inc., 510 F.3d
398, 404 (3d Cir. 2007).
agree. “It is a well-settled rule that a party opposing a summary judgment motion must
inform the trial judge of the reasons, legal or factual, why summary judgment should not
be entered. If it does not do so, and loses the motion, it cannot raise such reasons on
appeal.” Liberles v. Cnty. of Cook, 709 F.2d 1122, 1126 (7th Cir. 1983); accord Grenier
v. Cyanamid Plastics, Inc., 70 F.3d 667, 678 (1st Cir. 1995) (“If a party fails to assert a
legal reason why summary judgment should not be granted, that ground is waived and
cannot be considered or raised on appeal.” (internal quotation marks omitted)); Aslanidis
v. U.S. Lines, Inc., 7 F.3d 1067, 1077 (2d Cir. 1993) (“[A] party opposing summary
disposition of a case must raise all arguments against such remedy in the trial court and
may not raise them for the first time on appeal.”); cf. Shell Petroleum, Inc. v. United
States, 182 F.3d 212, 218 (3d Cir. 1999) (stating that, in order for an issue to be preserved
for appeal, a litigant “must unequivocally put its position before the trial court at a point
and in a manner that permits the court to consider its merits”).
4
The District Court had jurisdiction under 28 U.S.C. §§ 1332 and 1441. We have
jurisdiction pursuant to 28 U.S.C. § 1291. We review the District Court’s grant of
summary judgment de novo and “view inferences to be drawn from the underlying facts
in the light most favorable to the nonmoving party.” Montanez v. Thompson, 603 F.3d
243, 248 (3d Cir. 2010) (internal quotation marks omitted). Summary judgment is
appropriate if we are satisfied that there is no genuine dispute as to any material fact and
that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a);
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
8
Here, the District Court concluded that Fischer’s disclosures about the chair and
the camera were not protected because he could not point to a “law, rule, regulation, or
clear mandate of public policy” that bore a substantial nexus to the disclosures. Hitesman
v. Bridgeway, Inc., 93 A.3d 306, 320 (N.J. 2014) (“[T]he plaintiff must identify the
authority that provides a standard against which the conduct of the defendant may be
measured.”). Fischer did not identify at summary judgment any statute, rule, or public
policy related to camera passes, and he did not attempt to explain how having an
“unauthorized” chair violated the law as opposed to union rules or company policy. Cf.
Dzwonar v. McDevitt, 828 A.2d 893, 904 (N.J. 2003) (stating that the trial court should
have precluded CEPA claim based on violation of union rules because “bylaws are not a
law, rule or regulation pursuant to CEPA” (internal quotation marks omitted)). On
appeal, Fischer argues that the District Court’s ruling was in error but he still fails to
explain how either disclosure constituted a violation of a statute, rule, or public policy.
Instead, he argues that, because those disclosures had the potential to create a hostile
working environment if his coworkers actually did retaliate against him and because a
violent working environment would be dangerous at a nuclear facility, the disclosures are
protected.5 He misapprehends the law; the disclosure itself must bear a substantial nexus
to a law, rule, regulation, or clear mandate of public policy and he does not even attempt
to argue that such is the case here. Id.; Hitesman, 93 A.3d at 320. Accordingly, the
5
Insofar as Fischer attempts to raise for the first time on appeal a claim based on
reporting a hostile work environment, he may not do so.
9
District Court did not err in concluding that the claims related to the chair and the camera
pass could not survive.
Even if we were to conclude that those rulings were in error, however, Fischer’s
claims based on them would still fail for the same reason that his claim based on the
report of his intoxicated co-worker fails: there is no causal connection between the
disclosures and his termination.6 Fischer was fired because he refused to come to work
after his employer repeatedly assured him that it would take a number of measures to
protect him and that harassment or bullying directed at him would not be tolerated.
Contrary to Fischer’s assertions that this justification was a mere pretext and that G4S
was angry with him for “making waves” (Opening Br. at 24), the undisputed evidence,
including recordings that Fischer himself created, shows that G4S was indeed very
supportive of Fischer’s disclosures. The company commended Fischer for making the
disclosures, held him out as a model employee, and took a number of steps to facilitate
his reintegration at the PSEG facility.
Based on the record before us, no rational juror could conclude that G4S had
constructively terminated Fischer by refusing to address his concerns about retaliation, or
that G4S had fired Fischer because it was unhappy that he reported workplace violations.
Accordingly, the District Court did not err in granting summary judgment for the
company.
6
The parties agree that termination is an adverse employment action under CEPA
but disagree as to whether Fischer’s termination is causally connected to his disclosures.
The District Court only reached whether the disclosure based on the intoxicated co-
worker was causally connected to Fischer’s discharge, because it had already concluded
that the other two disclosures were not protected by CEPA.
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III. Conclusion
For the forgoing reasons we will affirm the ruling of the District Court.
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