Opinion
DOCKET NO. A-5146-11T4
05-26-2015
CHARLES RUSSELL, Plaintiff-Appellant/Cross-Respondent, v. PLUMBERS AND PIPEFITTERS LOCAL UNION #9, INC., Defendant-Respondent/Cross-Appellant, and ROGER LEIP and JOHN SMITH, Defendants.
David Zatuchni argued the cause for appellant/cross-respondent (Zatuchni & Associates, LLC, attorneys; Mr. Zatuchni, on the briefs). Thomas R. Smith argued the cause for respondent/cross-appellant Plumbers and Pipefitters Local Union #9 (Pellettieri, Rabstein & Altman, attorneys; Mr. Smith, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz, Maven and Hoffman. On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-0545-09. David Zatuchni argued the cause for appellant/cross-respondent (Zatuchni & Associates, LLC, attorneys; Mr. Zatuchni, on the briefs). Thomas R. Smith argued the cause for respondent/cross-appellant Plumbers and Pipefitters Local Union #9 (Pellettieri, Rabstein & Altman, attorneys; Mr. Smith, on the brief). PER CURIAM
Plaintiff Charles Russell appeals from the Law Division order, entered pursuant to Rule 4:37-2(b), involuntarily dismissing his complaint claiming violations of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, against defendant Plumbers and Pipefitters Local Union #9 (Local 9) and the individually-named defendants, Roger Leip and John Smith. Local 9 cross-appeals from the denial of its previous motions for summary judgment and reconsideration. We affirm both orders.
I.
We derive the salient facts from the trial record. Plaintiff is a welder and pipefitter. At the time the events underlying the complaint unfolded, he was a member of Local 9, which referred its members out to employers for employment opportunities. Local 9 operated under a collective bargaining agreement (CBA) with the Mechanical Contractors Association of New Jersey, Inc. (MCA). Relevant provisions of the CBA reserved to the employer hiring Local 9 members the exclusive power to direct the workforce and manage the jobsite. The CBA also dictated the respective rights of employers and Local 9 members working at a jobsite, delineated workplace rules, grievance procedures and safety protocols.
Through the CBA, employers contacted Local 9 with manpower requests for their construction projects. Members were then referred for work based upon the specific demands of the particular employer and the member's position on Local 9's hiring list. The CBA additionally provided that only certain, named Local 9 officers would be recognized by the employer as business agents and authorized to act for or and on behalf of Local 9. It explicitly stated, "[t]he actions, declarations, or conduct of any other person, except the persons herein named, . . . shall not be considered to be the acts of . . . the Union[.]"
The CBA listed the designated agents of Local 9 as Orlando Candelori, Peter LoMauro, John Louth, Thomas J. Matusz, Nicholas Oberto, Albert Pitman, and Charles Whalen.
In January 2008, Local 9, through its designated business agent Nicholas Oberto, referred plaintiff for welding and pipefitting work at PSE&G's power plant located on Duck Island. The construction manager or employer at the worksite was Stone Webster Construction, Inc., which is also referred to as Shaw Industries and as Shaw, Stone & Webster (Shaw).
When plaintiff reported to the jobsite he signed an acknowledgement confirming his understanding that: (1) the job was temporary; (2) he was considered an employee of Shaw; and (3) any grievance arising out of his employment would be addressed through Shaw. Oberto recommended Roger Leip as the general foreman. Shaw accepted this recommendation and appointed Leip as general foreman. Leip, in turn, named John Smith as assistant general foreman. In so far as Local 9 representation at the jobsite, Oberto named John Stokes, an African-American, as shop steward.
The shop steward's duties are in addition to his employment duties. The role includes representing and protecting the Union's interest on the jobsite on jurisdictional matters with other trade unions, acting as a liaison between the Union and employer, and ensuring all safety rules were being complied with to the protection of the Union members.
Sometime between February and April, while in the work trailer on break with approximately fifteen other workers, plaintiff heard racially derogatory remarks being made about Stokes related to his role as shop steward. One such remark was made by Smith. Plaintiff reported these comments to Stokes, both because Stokes was the shop steward and because Stokes was the target of the remarks. Plaintiff told Stokes he felt the racial comments were "out of line" and disrespectful.
In June, Oberto removed Stokes as shop steward. When plaintiff learned of Stokes' removal he reported the racial slurs to Chris Long, a member of Local 9's executive board. Long told plaintiff to bring the matter before the executive board. Plaintiff did not follow that course.
A few days later, plaintiff told Oberto about the comments he heard, including that Smith and Leip had been present when the remarks were made. In early August, Oberto called a meeting at the jobsite attended by Leip, Smith, Stokes, plaintiff and a few other Local 9 members, in order to give plaintiff the opportunity to "clear the air." Plaintiff agreed to meet, but became worried about losing his job because he had raised the issue. Oberto told plaintiff he "didn't have to worry" and that there would be no retaliation. Oberto gave plaintiff his telephone number and encouraged him to call with any problems.
Plaintiff did not say much at the meeting and did not respond when Leip asked him why he did not come to him with the complaints. Leip told those in attendance that he would not "put up with racial activities on the job."
Following the meeting, plaintiff heard no further racially derogatory remarks, but immediately began to feel that he was being subjected to retaliation. He explained that that on one occasion, Smith tried to "set him up" by directing him to install large hangars and supports in a location contrary to the plans. Plaintiff also stated that after the meeting, he realized that on two occasions, which he did not specify, he had been denied weekend overtime. He complained to Oberto, who agreed to look into the matter. Shortly thereafter, he began receiving overtime hours again.
Plaintiff recounted other examples of retaliatory conduct directed towards him including comments from co-workers that he was a "dead man walking and things of that nature," as well as a statement from Smith he "was a pariah" and he would have to work alone because people did not want to work with him, although he had always worked with a partner for safety reasons. Additionally, in mid-August 2008, Leip moved his jobsite location from Unit One to Unit Two. In Unit Two, he worked in an isolated location and often worked alone, which was prohibited because it was a safety violation to work without a partner.
Plaintiff contacted Oberto seven or eight times to complain about the comments, criticism of his performance, and the reassignment from Unit One to Unit Two, all of which he perceived as retaliation for his complaint regarding the racially derogatory comments about Stokes. According to plaintiff, Oberto stated he would speak to Leip, but he never got back him; nor did Oberto instruct plaintiff to report his concerns directly to Shaw.
In November 2008, Leip laid off twenty Local 9 members. Plaintiff was not included in the lay-off. However, in December, plaintiff was included among additional Local 9 members who were laid off. There were Local 9 members with less seniority than plaintiff who were not subject to the lay-off. Because he had been one the first persons referred to the jobsite and his experience had been that such persons were usually the last to be laid off, he believed he had been targeted because of his complaint.
In addition to his testimony, plaintiff called Leip, Smith, and three of his former co-workers at the jobsite, Stokes, Gene Burris, and Zolan Mitru, as witnesses. Stokes testified he thought plaintiff had been well-treated by Local 9 members prior to the trailer meeting. While shop steward, until June 2008, he was aware there had been complaints about plaintiff's performance prior to the August meeting. In describing the interaction plaintiff had with his co-workers following the meeting, he stated plaintiff's co-workers started to treat him differently. He explained that they were "all union members . . . [a]nd you know, the brothers stick together. So [plaintiff] basically, his name was in the mud, and everyone . . . if you were associated with [plaintiff] . . . befriended him or hanging around him, talking to him, . . . you would basically, you might have problems yourself. So people stayed away from [plaintiff]." He observed "foremen in the trailer making statements about [plaintiff] not being allowed to work on this side . . . they were saying things that would make people not want to be around Charles Russell." He identified "Brian Thiele [phonetic] and Billy Marquardt" as two foremen he heard making these comments.
Burris and Mitru each testified they were unaware of any complaints about plaintiff's work performance prior to his complaint. After the August meeting, however, Burris heard foremen saying that if plaintiff "did anything questionable" they were going to terminate him. Mitru heard foremen criticize plaintiff's performance. Burris and Mitru both acknowledged that layoffs were not necessarily based on seniority, but that productivity, attendance, and the ability to work with others all factored into the decision.
In his testimony, Oberto acknowledged that as Local 9's business agent his responsibilities, included investigating complaints of discrimination and retaliation against Local 9 members. He advised plaintiff that he would not be subjected to any retaliation for complaining about the racially derogatory remarks. He also confirmed that Local 9 has a policy prohibiting discrimination and retaliation against its members, which was incorporated into its by-laws and the CBA. He stated that Local 9 has an obligation to protect its members from retaliation by other members, and Local 9 has the right to discipline its own members for engaging in acts of discrimination or retaliation.
Leip testified that Oberto asked him whether he would be interested in the foreman position at the jobsite. When he expressed his interest in the position, he and Oberto went to the jobsite and met one of Shaw's piping superintendents, Nate Henderson. He described a brief meeting, during which he learned "what was going to happen" and two weeks later he was asked to "go out to run the job." When asked whether Oberto chose him for the job, he responded: "I would say that between him and Nate Henderson, yes." When confronted with his deposition testimony where he attributed his appointment to Oberto and Oberto's supervisor, Mike Maloney, he confirmed the testimony was accurate. Despite his earlier deposition testimony during which he testified that Oberto had the authority to remove him from his foreman position, he testified that Oberto had no such authority and that his earlier testimony was "incorrect as far as removing me to replace me."
According to Leip, he learned about plaintiff's complaint of racially derogatory remarks directed at Stokes during the August 4, 2008 meeting. Following the meeting Oberto reached out to Leip again to report plaintiff felt that he was "being picked on." He told Oberto he was unaware plaintiff was being "picked on." During the conversation he recalled Oberto mentioning plaintiff's reassignment to Unit Two. He explained that he moved plaintiff to Unit Two in an effort to protect his job because one of Shaw's piping superintendent "had seen [plaintiff] sitting around several times on the job." He also testified Smith complained that plaintiff lacked initiative and "they were always seem (sic) to be butting heads." He indicated he made the decision to lay-off plaintiff and that his decision was performance-based. He stated he had received complaints about plaintiff's welds. He never reduced the complaints to writing because it was "not a practice we use[.]" He also testified he was "not necessarily" aware of Shaw's discipline policies. He added, "Well, I've never in my 28 years if I was a foreman, wrote anybody up. I've never even heard of it." Instead, he indicated that if he "had a problem with somebody" he could "probably get rid of them" by going to his superintendent.
With respect to being assigned to work without a partner, Leip did not remember this occurring and expressed that it would be a safety violation, so he could not "see anybody welding without somebody." He did explain that plaintiff "could have been welding in an area where there was a couple other people there, this way somebody would have seen him or been able to do a fire watch. But I can't see anybody being by themselves (sic) anywhere." He testified plaintiff never complained to him that he was being forced to work without a partner.
Smith testified that he first became aware that plaintiff had complained about racially derogatory remarks at the worksite when Oberto called a meeting held in a trailer at the jobsite. In so far as plaintiff's performance, he testified that he had problems with plaintiff's performance from the beginning of the job. He referenced one particular incident where one of plaintiff's welds was deemed insufficient. He did not discover this deficiency until after plaintiff was reassigned. This testimony conflicted with his earlier deposition testimony where he stated he did not believe any of plaintiff's welds were insufficient. In addition, he acknowledged that he never reduced any of his complaints about plaintiff's performance to writing or report his concerns to Shaw.
With regard to plaintiff's transfer from Unit One to Unit Two, Smith testified the work in Unit One "was winding down, it was getting near completion. So they had a manpower switch." He also stated the reassignment had nothing to do with complaints about plaintiff while working under him in Unit One and indicated that Leip never told him that he was moving plaintiff to protect plaintiff's job. Addressing the lay-off, he stated Leip did not consult him before preparing the lay-off list, but did show it to him before it was implemented. Finally, in response to the question whether plaintiff ever worked without a partner, he stated: "No, I don't believe so." He agreed that if such a situation occurred it would be a safety violation.
Upon completion of plaintiff's case-in-chief, defendants moved for an involuntary dismissal. Defendants advanced four bases for relief: (1) Local 9 was not plaintiff's employer and otherwise had no control over the jobsite or its day-to-day activities; (2) Leip acted on behalf of Shaw when he made the lay-off decision; (3) the discreet items about which plaintiff complained as retaliatory did not constitute adverse actions within the meaning of LAD; and (4) even if these items, singly or collectively could be viewed as adverse actions, "there is not an iota of evidence that Local 9 participated whatsoever in any of that."
In opposing the motion, plaintiff first argued Local 9 was aware of plaintiff's complaint and that a complaint about racially derogatory remarks within the workplace is protected activity. Plaintiff next argued that Oberto admitted Local 9 would not tolerate discrimination within the workplace and that his responsibilities included investigating discrimination complaints. He also acknowledged that Local 9 could discipline any member engaged in such activity and such discipline could range from fines to expulsion from the union. Plaintiff argued that based upon these facts, a jury could "reasonably hold [Local 9] responsible for the adverse action taken against plaintiff in being removed from the jobsite."
Plaintiff next argued that in the same way that an employer may be held liable for the unlawful acts of co-workers, Local 9 could be held "liable for the act of its members in the same manner." Plaintiff specifically argued that if "the retaliatory act was committed by a [Local 9] officer, then [Local 9] would be vicariously liable, automatically liable for those acts." Plaintiff further argued that Local 9's liability could also be established if it were aware of the retaliatory acts of its members and failed to take any preventive or remedial measures.
In its decision granting this motion, the court noted that plaintiff's initial theory of liability against Local 9 was premised upon his claim that Leip's layoff decision was influenced by Local 9 management, as part of "its desire to retaliate against the plaintiff." The court found that proof of union involvement was limited to Leip's deposition testimony that he had been appointed to the position of foreman by Oberto and that Oberto could remove him from the position. The court noted that Leip testified that he was mistaken about those facts when he gave his deposition testimony. She reasoned that even if the jury were to conclude the deposition testimony were true, "plaintiff produced no evidence from which a reasonable jury could find that [Local 9], through its officials, instigated or encouraged Leip to retaliate against the plaintiff."
The court also found the LAD does not impose an affirmative duty upon a union to protect its members from discriminatory actions undertaken by a union member's employer. Likewise, the court concluded Local 9 had no affirmative duty to act to prevent Shaw from engaging in discrimination, particularly when plaintiff failed to exhaust Local 9's internal grievance procedures, of which he was familiar. The court likewise rejected plaintiff's attempt to establish Local 9's liability based upon aiding and abetting. It found that Shaw, as plaintiff's employer, was the only entity "which had the opportunity to retaliate against the plaintiff by affecting his work conditions or laying him off[.] Consequently, the court concluded that if Leip's and Smith's actions "were based upon animus associated with plaintiff's complaint to [Local 9] about alleged discrimination against Stokes, then it was Shaw that would bear responsibility for its employees' actions, not [Local 9]."
The court observed that in opposing defendants' motion, plaintiff "by necessity" shifted his theory in order to impose liability upon Local 9 based upon its failure to properly investigate plaintiff's complaints of retaliation and to take some form of affirmative action to protect [him] at the jobsite and discipline its members. The court found this argument unavailing, noting that plaintiff failed to offer any evidence to support imposing upon Local 9 the obligation to respond to plaintiff's verbal complaints about work assignments at the jobsite or any evidence to support his "blanket claim that the union had the ability to affect or control the manner in which Shaw conducted the work at the jobsite."
Finally, the court, quoting Section 301(a) of the Labor Management Relations Act of 1947, 29 U.S.C.A. 185(a), found that plaintiff's new theory was "'substantially dependent on analysis of the collective bargaining agreement'" and was therefore preempted by federal law. The present appeal followed.
II.
On appeal, plaintiff argues the trial court erred by granting defendant's motion for an involuntary dismissal. He contends he presented a prima facie case of retaliation under the LAD from which the jury could find Local 9 vicariously liable, as well as more than sufficient evidence Local 9 authorized, sanctioned, or ratified the retaliatory actions directed against him. Plaintiff additionally urges the trial court erred in concluding that his claim that Local 9 failed to properly investigate his complaints of retaliation and thereafter failed to affirmatively take steps to protect him, was preempted by federal law.
We affirm substantially for the reasons expressed by Judge Jamie S. Perri in her cogent and well-reasoned oral decision of April 23, 2012. In doing so, however, we disagree with her conclusion that plaintiff's claim that Local 9 also violated its by-laws and the CBA by not properly investigating his retaliation claims and implementing appropriate remedial measures was preempted by federal law. As to that claim, we agree that such a claim is not preempted by federal law, because plaintiff's claim of retaliation is not dependent upon or derived from the CBA, but rather, is derived independently from the LAD. Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 404, 108 S. Ct. 1877, 100 L. Ed. 2d 410 (1988). Nevertheless, as we discuss in detail below, the legal analysis of this issue does not impact the ultimate result. In view of our determination, we decline to address the issues raised in defendant's cross-appeal.
Addressing the involuntary dismissal of plaintiff's LAD claims based upon his theory of vicarious liability and aiding and abetting, we review a trial court's grant of a defendant's motion for an involuntary dismissal at the close of a plaintiff's case de novo, that is, by applying the same legal standard as the trial court. Perez v. Professionally Green, LLC, 215 N.J. 388, 399 (2013). Under Rule 4:37-2(b), the trial court is required to deny the motion "if the evidence, together with the legitimate inferences therefrom, could sustain a judgment in plaintiff's favor." See also Baliko v. Int'l Union of Operating Eng'rs, 322 N.J. Super. 261, 273 (App. Div.) (stating that the appellate "court must accept as true all evidence supporting plaintiffs' claims"), certif. denied, 162 N.J. 199 (1999). However, '"dismissal is appropriate when no rational jury could conclude from the evidence that an essential element of the plaintiff's case is present.'" Perez, supra, 215 N.J. at 407 (quoting Pressler & Verniero, Current N.J. Court Rules, comment 2.1 on R. 4:37-2 (2013)). We owe no special deference to "'[a] trial court's interpretation of the law and the legal consequences that flow from established facts.'" Turner v. Wong, 363 N.J. Super. 186, 199 (App. Div. 2003) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
The LAD prohibits reprisals against an employee who asserts rights granted by the LAD. N.J.S.A. 10:5-12(d). It is an unlawful employment practice:
[f]or any person to take reprisals against any person because that person has opposed any practices or acts forbidden under this act or because that person has filed a complaint, testified or assisted in any proceeding under this act or to coerce, intimidate, threaten or interfere with any person in the exercise or enjoyment of, or on account of that person having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by this act.As defined, "person" under the LAD includes labor unions. N.J.S.A. 10:5-5(a).
[N.J.S.A. 10:5-12(d).]
A party asserting a claim of retaliation under the LAD must demonstrate that (1) he or she "engaged in a protected activity," (2) the activity was "known to the employer," (3) he or she suffered "an adverse employment decision," and (4) there was "a causal link between the protected activity and the adverse employment action." Battaglia v. United Parcel Serv., Inc., 214 N.J. 518, 547 (2013) (quoting Woods-Pirozzi v. Nabisco Foods, 290 N.J. Super. 252, 274 (App. Div. 1996)) (internal citation and quotation marks omitted).
Once a plaintiff establishes a prima facie case of retaliation, the burden of production shifts to the defendant to articulate a "legitimate[,] non-retaliatory reason" for the decision. Royster v. N.J. State Police, 439 N.J. Super. 554, 575-76 (App. Div. 2015). If the employer satisfies this burden, the employee must then demonstrate that a retaliatory intent, not the employer's stated reason, motivated the employer's action and that the employer's articulated reason was merely a pretext for discrimination. Woods-Pirozzi, supra, 290 N.J. Super. at 274; Jamison v. Rockaway Twp. Bd. of Educ, 242 N.J. Super. 436, 445 (App. Div. 1990).
Here, defendants do not dispute that plaintiff's complaint of racial discrimination is protected activity under the LAD for which he may not be subject to retaliation as a result of his complaint. As Judge Perri reasoned at the outset, the essential element lacking in plaintiff's case-in-chief, is the absence of an employer/employee relationship between plaintiff and Local 9. Judge Perri acknowledged that at the summary judgment stage, the motion record suggested that Leip's role as foreman was "inextricably tied to the union itself." However, once plaintiff put forth all of his proofs, plaintiff presented no proofs to dispute the testimony of his own witnesses that Shaw was the employer and that it was Shaw, who controlled the day-to-today activities of the workplace.
The fact that Leip's appointment as foreman would not have occurred but for Oberto's recommendation or that Oberto, in response to plaintiff's complaint of racial discrimination, convened a meeting to discuss the alleged discriminatory remarks being directed against a fellow union member, and also intervened to speak to Leip when plaintiff complained he was not being assigned weekend overtime, did not establish an employer/employee relationship between Local 9 and plaintiff. See D'Annunzio v. Prudential Ins. Co. of Am., 192 N.J. 110 (2007).
In D'Annunzio, the Court addressed the factors to be considered in determining the existence of an employer/employee relationship under the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8. Id. at 114. It reaffirmed the appropriateness of utilizing the factors set forth in Pukowsky v. Caruso, 312 N.J. Super. 171, 182-83 (App. Div. 1998) for resolving the question of the employment status of an independent contractor seeking the benefit of the protections afforded under CEPA. D'Annunzio, supra, 192 N.J. at 114. There, the trial court order granted summary judgment in favor of the defendant employer who alleged the plaintiff was not an employee but an independent contractor. Ibid. In upholding our reversal of that order, the Court agreed there were genuinely disputed factual issues related to the question of the plaintiff's status, which precluded summary judgment. Id. at 127. The Court emphasized that when interpreting social legislation, courts must not rigidly adhere to labels, because when taken out of context "labels can be illusory as opposed to illuminating." Id. at 122. Thus, in determining whether the plaintiff was an independent contractor of the defendant or an employee, the Court instructed that three considerations were critical to such a determination: "(1) employer control; (2) the worker's economic dependence on the work relationship; and (3) the degree to which there has been a functional integration of the employer's business with that of the person doing the work at issue." Ibid.
The LAD and CEPA are both anti-discrimination statutes and are examined under the same analytical framework. Therefore, in applying the three factors articulated in D'Annunzio, to the present matter, no rational jury could conclude that Local 9 was plaintiff's employer. Viewed most favorably to plaintiff, the fact that Local 9, through Oberto, appointed Leip as foreman at the jobsite and the fact that Oberto, in response to plaintiff's complaint of racial discrimination convened a meeting to discuss the matter, and thereafter approached Leip concerning plaintiff's claims of retaliation, while factors to consider, do not establish an employer/employee relationship between Local 9 and plaintiff.
Plaintiff was not economically dependent upon Local 9 for his compensation. Plaintiff presented no evidence remotely suggesting that Local 9 controlled the day-to-day operations at the jobsite. Plaintiff produced no evidence inferentially suggesting that Local 9 controlled the details of plaintiff's work. Thus, plaintiff failed to establish an essential element of a retaliation claim under the LAD, namely, an employer/employee relationship.
Plaintiff, relying upon our decision in Baliko, supra, 275 N.J. Super. at 191, urges that Local 9's liability is vicarious because the retaliatory actions were committed by its members Leip, as general foreman and Smith, as assistant general foreman, both of whom were "'managers' with decision-making and supervisory control over [plaintiff]." We disagree.
In order to impose vicarious liability upon Local 9, plaintiff was required in his proofs to establish genuinely disputed facts for the jury to resolve as to four elements: (1) Local 9 delegated authority to Leip, Smith and other members who supervised plaintiff, to control the situation about which plaintiff complained; (2) the supervisors exercised this authority; (3) in exercising their authority a violation of the LAD occurred; and (4) the authority delegated by Local 9 to the supervisors injured plaintiff. See Lehmann v. Toys "R" Us, 132 N.J. 587, 620 (1993). See also Aguas v. State of New Jersey, 220 N.J. 494, 514 (2015) (reaffirming use of Lehmann four-pronged test to determine employer's vicarious liability for sexual harassment claims).
The Court in Lehmann applied these factors in the context of an established employer/employee relationship between the plaintiff and defendant, but noted that "[t]he determination of whether a supervisor who creates a hostile work environment was aided in accomplishing that tort by the power delegated to him or her to control the day-to-day working environment requires a detailed fact-specific analysis." Id. at 620. We have tailored the requisite elements to establish vicarious liability in response to plaintiff's claim that Local 9 directed the actions of plaintiff's supervisors.
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In addition to these four elements, because it is undisputed that plaintiff, his supervisors, and other Local 9 members working at the jobsite were employed by Shaw, who is not a defendant in this action, Local 9's vicarious liability can only be established with proof that at all times the supervisors, in engaging in the retaliatory conduct were acting in their capacity as union members rather than as employees of Shaw. Lehmann, supra, 132 N.J. at 620. Plaintiff offered no such proof. As discussed earlier, Local 9's convening a meeting to discuss allegations of racial discrimination and making inquiries on plaintiff's behalf regarding overtime, do not raise genuinely disputed issues of fact that Local 9 delegated to the supervisors authority to engage in retaliatory conduct.
Further, plaintiff's reliance upon Baliko to support his theory of vicarious liability is, as Judge Perri, observed, misplaced. Baliko is significant in that although it was analyzed under the analytical framework announced in Lehmann, the defendant union was not the plaintiff's employer. The plaintiffs alleged that the union, which was embroiled in a labor dispute with their employer, subjected them to sexual harassment on a daily basis as they passed the union's picket line to and from their worksite. Baliko, supra, 275 N.J. Super. at 186-87. The plaintiffs argued that notwithstanding the absence of an employer/employee relationship between them and the union a Lehmann analysis was appropriate because, under the LAD liability may be imposed upon a labor organization as "aiders and abettors for sexual harassment that causes a hostile work environment." Id. at 190. We agreed, observing that "[l]abor unions focus their efforts on the workplace. It is the principal arena for their activities." We additionally noted the "Legislature has recognized that a labor union has the potential to critically influence whether a workplace environment will be hostile or welcoming[.]" We held that labor unions act through their members and that "[i]f one member assists, supports, encourages, and supplements the efforts of another in conduct which violates the LAD, the local may be liable as a principal for violating N.J.S.A. 10:5-12(b) and individual members may be liable as aiders and abettors for violating N.J.S.A. 10:5-12(e).
The theory of vicarious liability we recognized in Baliko was based upon the factual predicate that the members were expressly involved in union activity, namely, picketing outside of the plaintiff's workplace. It was not based upon some claim, as asserted here, that the union was controlling the day-to-day activities of the workplace or was critically influencing the working environment.
Likewise, we reject plaintiff's theory of liability premised upon aiding and abetting under a Baliko analysis. At the outset, liability for aiding and abetting under the LAD is only established with proof of substantial assistance or encouragement to the unlawful conduct on the part of Local 9 through its officers and members. See Tarr v. Ciasulli, 181 N.J. 70, 83-84 (2009). As Judge Perri concluded, the trial record is devoid of any evidence Local 9 "encouraged or instigated in any way, shape or form the decisions of Shaw employees regarding plaintiff's work assignments or ultimate inclusion in the December 2008 layoff."
In short, the essence of plaintiff's proofs against defendants is the fact that his supervisors, who he claims engaged in retaliatory conduct, were all members of Local 9. Their status, however, standing alone, is insufficient to impose liability upon Local 9. Anjelino v. N.Y. Times Co., 200 F.3d 73, 95 (3rd Cir. 1999) (holding that in the absence of evidence that the union instigated or actively supported the alleged discriminatory acts, no liability may be imposed upon the union under the LAD even though some of the supervisors and workers who purportedly engaged in the discriminatory activity were members of the union). Moreover, in the absence of liability of Local 9, as a principal, no liability may be imposed upon Leip and Smith, individually, as aiders and abettors. Baliko, supra, 275 N.J. Super. at 191.
In so far as plaintiff's claim based upon Local 9's violation of its by-laws and the CBA, liability on that basis is equally unavailing. First, while in the context of union activities Oberto was obliged to investigate discrimination complaints and take appropriate action, as Judge Perri found, Local 9 had no affirmative duty to protect its members from the discriminatory actions of Shaw's employees. Anjelino, supra, 200 F.3d at 95-96. To the extent it nonetheless intervened, the record establishes beyond dispute that Local 9 investigated plaintiff's complaint of racially derogatory remarks directed at Stokes. Oberto convened a meeting to discuss the allegations at which Leip made clear discrimination would not be tolerated. Plaintiff testified that following the meeting, he heard no further racially derogatory remarks. When plaintiff noticed that he was not included in an overtime rotation after the second overtime list had been exhausted, he complained to Oberto. Accepting his testimony that Oberto never got back to him in response to any of his calls, plaintiff testified that he was placed on the overtime rotation list after he complained to Oberto. When he was reassigned to Unit Two from Unit One, he did not complain. Moreover, when he was included in the December 2008 layoff, he did not complain.
Beyond these specific incidents, plaintiff's complaints were that he essentially felt ostracized. Not every instance of ostracism by co-workers is an act of workplace retaliation. Employee discourtesy and rudeness should not be confused with retaliation. The Supreme Court has explained, the LAD does not create a "sort of civility code for the workplace[.]" Battaglia, supra, 214 N.J. at 549. Rather, it advances "[f]reedom from discrimination." Id. at 546.
To summarize, plaintiff's proofs fail to establish an employer/employee relationship as between plaintiff and Local 9, as a matter of law. The factual evidence presented falls woefully short of suggesting that Local 9 directed Leip, Smith or any of plaintiff's supervisors to engage in retaliatory conduct towards plaintiff and there is no evidence that Local 9 instigated, encouraged its members to engage in retaliatory conduct towards plaintiff.
Because plaintiff cannot establish the requisite employer/employee relationship or that Local 9 encouraged or instigated the alleged retaliatory conduct, it is unnecessary to address, at length, whether the actions about which plaintiff complains rose to the level of an adverse employment action under the LAD. We note the LAD does not define "adverse employment action" and there is no bright-line rule in determining what constitutes an adverse employment action. Mancini v. Twp. of Teaneck, 349 N.J. Super. 527, 564 (App. Div. 2002), aff'd. o.b., 179 N.J. 425 (2004). That being said, "the retaliatory conduct alleged must be 'serious and tangible' enough to alter an employee's compensation, terms, conditions, or privileges of employment, deprive [him] future employment opportunities, or otherwise have a 'materially adverse' effect on his status as an employee." Hargrave v. Cnty. of Atl., 262 F.Supp.2d 393, 427 (D.N.J. 2003) (quoting Robinson v. City of Pittsburgh, 120 F.3d 1286, 1300-01 (3d Cir. 1997)). Measured under this standard, we do not conclude reassigning plaintiff from Unit One to Unit Two materially affected his status as an employee or the work environment. It was undisputed that the two units mirrored each other. Similarly, the fact that he was passed over twice for overtime cannot be viewed as serious and tangible, without more. The record established that he consistently received scheduled overtime after the August 4, 2008 meeting and he presented no evidence comparing the weekend overtime compensation he received during the relevant time period with that of his co-workers in order to illustrate his comparative loss resulting from being passed over twice.
We do agree that a jury could conclude that being made to work without a partner, which plaintiff, Leip and Smith all agreed was a safety hazard and his lay-off from employment, constitute adverse employment actions within the meaning of LAD. However, for the reasons previously discussed, there is no evidence that these decisions were made by Local 9.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION