Manuel Robles v. United States Environmental Un ( 2012 )


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  •                                                      NOT PRECEDENTIAL
    
                UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT
                          ___________
    
                              No. 11-2118
                              ___________
    
                       MANUEL ROBLES;
          SANTO L. CEDENO SALTOS; WALTER GUZMAN;
            JORGE SARMIENTO; ALEXANDRA LASTRA;
        OSCAR FLORES; FREDDY PADILLA; LUIS M. LLERENA
    
                                    v.
    
    UNITED STATES ENVIRONMENTAL UNIVERSAL SERVICES, INC.
               a/k/a Alliance Environmental Systems, Inc.
    
                                     Manuel Robles; Santo L. Cedeno Saltos;
                                     Walter Guzman; Jorge Sarmiento;
                                     Alexandra Lastra,
                                                 Appellants
                       _______________________
    
              On Appeal from the United States District Court
                     for the District of New Jersey
                  D.C. Civil Action No.2-09-cv-02377
                    (Honorable Susan D. Wigenton)
                            ______________
    
             Submitted Pursuant to Third Circuit LAR 34.1(a)
                             March 5, 2012
    
     Before: SCIRICA, AMBRO and VAN ANTWERPEN, Circuit Judges.
    
                         (Filed: March 13, 2012 )
    
                           _________________
    
                       OPINION OF THE COURT
                          _________________
    SCIRICA, Circuit Judge.
    
           Plaintiffs Manuel Robles, Santo Saltos, Walter Guzman, Jorge Sarmiento, and
    
    Alexandra Lastra appeal the grant of summary judgment on their claims against
    
    defendant Alliance Environmental Systems (“Alliance”) for violation of the New Jersey
    
    Conscientious Employee Protection Act (“CEPA”), wrongful discharge, and defamation.
    
    We will affirm.
    
                                                 I.
    
           Plaintiffs were employed by Alliance to remove asbestos at the Walson Hospital
    
    on Fort Dix, New Jersey, in 2008. Each completed and signed employment applications
    
    stating he or she would be an “at-will employee” subject to termination for any reason.
    
    All testified at depositions that they understood they could be terminated at any point.
    
           Alliance paid plaintiffs $19.04 an hour, a rate established through a wage
    
    determination decision made by the federal Department of Labor (“DOL”) under the
    
    Service Contract Act and incorporated into Alliance’s subcontract. Several plaintiffs
    
    testified they were promised a wage of $40-45 an hour during their initial interview,
    
    which they believed was the federally mandated wage for asbestos removal. Robles
    
    stated from mid-February onward he complained about the pay to Jay Henderson, his
    
    supervisor, for himself and on behalf of the other plaintiffs. According to Robles’s
    
    testimony, Henderson said “he was going to keep insisting and perhaps they would give
    
    [Robles] something,” but by April nothing had changed. At that point, Robles stated he
    
    told Henderson he “was going to complain,” to which Henderson “said fine, do what you
    
    want to do.” Robles testified that in May or June he told Henderson he would contact
    
                                                 2
    DOL.
    
           Alliance terminated Guzman and Sarmiento on March 10, 2008, and Saltos on
    
    May 7, 2008, allegedly for stealing copper from the jobsite. All three filed complaints
    
    with DOL and the New Jersey Department of Labor and Workforce Development. Lastra
    
    was terminated on June 15, 2008, allegedly for insubordination. She testified that she
    
    had told Henderson a week earlier that she would call DOL to determine the proper rate
    
    of pay, “[s]o he said go ahead, call.” When asked if she believed she was fired because
    
    of her statement to Henderson, she stated, “I imagine so. I mean I don’t know. There
    
    was no reason for them to fire me.”
    
           On May 15, Robles also complained to DOL, which initiated an investigation. On
    
    August 15, DOL contacted Alliance to conduct an investigation of wage rates on the Fort
    
    Dix project. Robles testified he did not know if DOL had told Alliance that he had
    
    contacted it, although he claimed that a supervisor began to follow him around, leading
    
    him to believe that “perhaps someone told them I was behind this, behind this case.”
    
    Alliance terminated Robles on August 27, 2008, allegedly for stealing copper from the
    
    project site.
    
           Subsequently, DOL determined the workers on the Fort Dix project had been
    
    misclassified and were entitled to $40.59 an hour under the Davis-Bacon Act, 40 U.S.C.
    
    § 3141 et seq. DOL sequestered funds for back pay from the Army Corps of Engineers,
    
    which contracted for the project, and all plaintiffs received wage adjustments for the
    
    period they worked on the project, which resulted in payment at the rates plaintiffs
    
    expected when hired.
    
                                                 3
          On April 22, 2009, plaintiffs filed suit in New Jersey state court, alleging their
    
    termination by Alliance violated the NJ CEPA, constituted wrongful discharge, and
    
    defamed them. Alliance removed the case to federal court, and the District Court granted
    
    summary judgment for Alliance on all counts. Robles v. U.S. Envtl. Universal Servs.,
    
    Inc., No. 09-2377, 
    2011 WL 1322397
     (D.N.J. Mar. 31, 2011). Plaintiffs appealed. 1
    
                                                II. 2
    
                                                A.
    
          The New Jersey CEPA, N.J. Stat. Ann. §34:19-1 et seq., protects employees from
    
    retaliation by employers for reporting suspected violations of law or public policy. To
    
    establish a prima facie case under CEPA, a plaintiff must demonstrate 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) (citing Dzwonar v. McDevitt, 
    828 A.2d 893
    , 900 (N.J. 2003)).
    
    
    1
      The District Court had jurisdiction over this diversity case under 28 U.S.C. § 1332. We
    exercise jurisdiction over this appeal under 28 U.S.C. § 1291.
    2
      We review a grant of summary judgment de novo. Doe v. Luzerne Cnty., 
    660 F.3d 169
    ,
    174 (3d Cir. 2011). Summary judgment is proper when the movant demonstrates there is
    no genuine dispute as to any material fact and is entitled to judgment as a matter of law.
    Fed. R. Civ. P. 56(a). We consider all inferences in the light most favorable to the
    nonmovant, but “[t]he nonmoving party cannot establish a genuine dispute as to a
    material fact by pointing to unsupported allegations in the pleadings.” Luzerne Cnty.,
    660 F.3d at 174-75 (citing Celotex Corp. v. Catrett, 
    477 U.S. 317
    , 322-23 (1986)).
    
                                                 4
           Because CEPA requires employees to file suit within a year of an adverse
    
    employment action, N.J. Stat. Ann. § 34:19-5, the claims of Guzman, Sarmiento, and
    
    Lastra 3 are time-barred. The claims of Saltos and Robles fail because, although they
    
    likely satisfy the first three prongs of the CEPA standard, they have not established a
    
    factual dispute as to whether their termination occurred because of their protected
    
    activity. To demonstrate causation, a plaintiff must show that the “retaliatory
    
    discrimination was more likely than not a determinative factor in the decision.” Donofry
    
    v. Autotote Sys., Inc., 
    795 A.2d 260
    , 271 (N.J. Super. Ct. App. Div. 2001). Retaliation
    
    may be reasonably inferred from the circumstances surrounding the employment action,
    
    Maimone v. City of Atlantic City, 
    903 A.2d 1055
    , 1064 (N.J. 2006), including temporal
    
    proximity between the protected activity and the adverse action, Farrell v. Planters
    
    Lifesavers Co., 
    206 F.3d 271
    , 280-81 (3d Cir. 2000), and inconsistencies or
    
    contradictions in the employer’s proffered legitimate reasons for its action, id. The
    
    plaintiff must also establish that the employer knew of the protected activity. Mancuso v.
    
    City of Atlantic City, 
    193 F. Supp. 2d 789
    , 810 (D.N.J. 2002).
    
           Here, Saltos did not complain to DOL until after his termination, so his discharge
    
    could not have been retaliation for protected activity. Robles’s termination, by contrast,
    
    occurred twelve days after DOL contacted Alliance to investigate his complaints. But
    
    other factors undercut any inference that the protected activity caused Robles’s discharge.
    
    Robles has presented no evidence that his employers were upset over his threats to
    
    
    3
     Lastra’s claim is time-barred because she was not added as a plaintiff until July 21,
    2010, over two years from her discharge.
                                                 5
    contact DOL; according to his testimony, his supervisor, Henderson, even promised to try
    
    to get him additional money and did not discourage him from reporting the matter to
    
    DOL. Alliance had no incentive to oppose Robles’s reports, since any shortfall in the
    
    wage schedule was the financial responsibility of the Army Corps of Engineers, and an
    
    increase in the cost of the project only increased the overhead and profit to which
    
    Alliance was contractually entitled. Moreover, Robles has presented no evidence that
    
    Alliance’s claim he stole copper from the worksite was pretextual. Taken together, this
    
    evidence does not demonstrate a genuine issue of material fact as to whether Robles was
    
    discharged because of his protected activity. Accordingly, summary judgment on his
    
    CEPA claim was proper.
    
                                                B.
    
           Under New Jersey law, employment is considered at-will in the absence of
    
    “explicit, contractual terms” providing otherwise. Bernard v. IMI Sys., Inc., 
    618 A.2d 338
    , 346 (N.J. 1993); see also Witkowski v. Thomas J. Lipton, Inc., 
    643 A.2d 546
    , 552
    
    (N.J. 1994). An at-will employee may be terminated “for any reason, be it good cause,
    
    no cause, or even morally-wrong cause, but not when the discharge is contrary to a clear
    
    mandate of public policy.” D’Agostino v. Johnson & Johnson, Inc., 
    628 A.2d 305
    , 311
    
    (N.J. 1993) (discussing Pierce v. Otho Pharm. Corp., 
    417 A.2d 505
    , 512 (N.J. 1980)).
    
           Plaintiffs here signed an employment application unambiguously stating they were
    
    at-will employees. Their deposition testimony demonstrated they had no reasonable
    
    expectations otherwise. Accordingly, plaintiffs may only recover if their termination
    
    violated New Jersey public policy. Saltos and Robles have waived their wrongful
    
                                                 6
    termination claims by filing CEPA claims. N.J. Stat. Ann. § 34:19-8; Young v. Schering
    
    Corp., 
    660 A.2d 1153
     (N.J. 1995). Guzman, Sarmiento, and Lastra may have done the
    
    same by initiating CEPA claims, even though those claims are time-barred. See Young,
    
    660 A.2d at 1159-60 (concluding that the legislature intended that a “former employee
    
    forfeits his or her common-law retaliatory-discharge cause of action when he or she
    
    ‘institutes’ a CEPA cause of action.”). But even if their common-law claims survive,
    
    plaintiffs must still demonstrate that the discharge occurred in retaliation for engaging in
    
    activity to further public policy. Conoshetti v. Pub. Serv. Elec & Gas. Co., 
    364 F.3d 135
    ,
    
    148-49 (3d Cir. 2004). Here, plaintiffs have not established that their discharge was
    
    caused by protected activity: Guzman and Sarmiento contacted DOL only after their
    
    discharge, while Lastra has offered no evidence besides her assertion to suggest her
    
    discharge was retaliation for protected activity and not, as Alliance asserts, for
    
    insubordination. For these reasons, plaintiffs’ wrongful-discharge claims must fail.
    
                                                  C.
    
            Robles, Saltos, Guzman, and Sarmiento allege Alliance defamed them by
    
    accusing them of stealing materials from the worksite. To establish a defamation claim, a
    
    plaintiff must establish (1) the assertion of a false and defamatory statement concerning
    
    the plaintiff, (2) the unprivileged publication of that statement to a third party, (3) fault
    
    amounting to at least negligence by the publisher, and (4) damages. DeAngelis v. Hill,
    
    
    847 A.2d 1261
    , 1267-68 (N.J. 2004) (citing Restatement (Second) of Torts § 558 (1965)).
    
    To survive a motion for summary judgment on a defamation claim, the plaintiff “must
    
    plead facts sufficient to identify the defamatory words, their utterer and the fact of their
    
                                                   7
    publication. A vague conclusory allegation is not enough.” Zoneraich v. Overlook Hosp.,
    
    
    514 A.2d 53
    , 63 (N.J. Super. Ct. App. Div. 1986).
    
           Here, the accusation of criminality is defamatory as a matter of law. Romaine v.
    
    Kallinger, 
    537 A.2d 284
    , 291 (N.J. 1988). Moreover, although plaintiffs testified that
    
    they were not harmed by Alliance’s accusations of wrongdoing, an accusation of criminal
    
    conduct is slander per se for which damages are presumed. McLaughlin v. Rosanio,
    
    Bailets & Talamo, Inc., 
    751 A.2d 1066
    , 1072 (N.J. Super. Ct. App. Div. 2000); see also
    
    Jorgenson v. Pa. R.R. Co., 
    138 A.2d 24
    , 37-40 (N.J. 1958) (accusation of theft from
    
    employer is slander per se). 4 But plaintiffs have presented no evidence outside
    
    unsupported allegations in the pleadings that Alliance’s statements were false. Nor have
    
    plaintiffs demonstrated the fact of unprivileged publication. Although Alliance
    
    communicated its allegation that Robles stole copper when he applied for unemployment
    
    benefits, statements made in unemployment proceedings enjoy qualified privilege under
    
    New Jersey law, Rogozinski v. Airstream by Angell, 
    377 A.2d 807
    , 817-18 (N.J. Super.
    
    Ct. Law Div. 1977), and so are actionable only if the plaintiff presents evidence of “a
    
    wrong or malicious motive,” Fees v. Trow, 
    521 A.2d 824
    , 830 (N.J. 1987). Plaintiffs
    
    have not suggested a malicious motive, nor have they provided evidence of any other
    
    publication other than the bald assertion that Alliance officials must have communicated
    
    
    4
      Although the New Jersey Supreme Court has limited slander per se strictly to the four
    existing categories and discussed eliminating it altogether, Ward v. Zelikovsky, 
    643 A.2d 972
    , 984-85 (N.J. 1994), leading one court to suggest that “slander per se is on its last
    legs in New Jersey, and may no longer be a viable jurisprudential basis for awarding
    damages when there is no demonstrable harm,” McLaughlin, 751 A.2d at 1075, the New
    Jersey Supreme Court has not abolished the doctrine.
                                                 8
    the allegations to other officials within the company. This assertion, with nothing more,
    
    does not raise a genuine issue of material fact, Luzerne Cnty., 660 F.3d at 174-75, and so
    
    summary judgment on plaintiffs’ defamation claims is proper.
    
                                                III.
    
           For the foregoing reasons, we will affirm the District Court’s grant of summary
    
    judgment to Alliance.
    
    
    
    
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