GEORGE AKSHAR VS. PUBLIC SERVICE ELECTRIC AND GAS COMPANY (L-3370-13, PASSAIC COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4283-16T3
GEORGE AKSHAR,
Plaintiff-Appellant,
v.
PUBLIC SERVICE ELECTRIC
AND GAS COMPANY (PSE&G),
and HUGH D. SWEENEY,
Defendants-Respondents.
_____________________________
Submitted September 13, 2018 – Decided January 14, 2019
Before Judges Simonelli and Whipple.
On appeal from Superior Court of New Jersey, Law
Division, Passaic County, Docket No. L-3370-13.
Buglione, Hutton & Deyoe, LLC, attorneys for
appellant (Richard J. Turano, on the brief).
Tracy L. Bookhard, attorney for respondents.
PER CURIAM
In this employment matter, plaintiff George Akshar appeals from the May
18, 2017 Law Division order denying his motion for reconsideration of the May
12, 2016 order granting summary judgment to defendants Public Service
Electric and Gas Company (PSE&G) and Hugh D. Sweeney and dismissing
plaintiff's common law wrongful termination claim with prejudice. For the
following reasons, we affirm.
I.
Plaintiff began his employment with PSE&G in 2007. In September 2011,
he worked in the electric division in Clifton as an underground division
mechanic who performed various activities to provide electric service to PSE&G
customers. Labor Union International Brotherhood of Electrical Workers Local
94 (Union) represented him for collective bargaining purposes.
On September 25, 2011, plaintiff and Peter Alvarado, a division mechanic
assistant or "helper," were dispatched to a customer's residence to reconnect
electric service. They had worked together prior to September 25, 2011.
Restoring service at the residence required plaintiff to enter a manhole and
reconnect service underground. Plaintiff did this type of work on a daily basis
prior to September 25, 2011. Plaintiff's training required that prior to entering
a manhole, he or his helper must use an atmospheric analyzer (analyzer) and set
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up a guardrail around the manhole to prevent someone or something from falling
into it, and he must wear specialty glasses to protect his eyes, a flame-retardant
shirt, rubber gloves to protect against electrocution, and leather protectors over
the rubber gloves. This safety equipment was located in plaintiff's utility truck
on September 25, 2011. Plaintiff acknowledged that PSE&G provided its
employees with training on safety equipment and took the safety equipment very
seriously. Plaintiff also admitted that PSE&G provided presentations on safety.
The purpose of the analyzer is to detect the presence of natural gas, carbon
monoxide, and other toxins that could create an unsafe condition in the manhole
and otherwise ensure that the underground mechanic can safely breathe while
working in the manhole. After a guardrail is set up and a ladder put into the
manhole, and before the underground mechanic enters the manhole, the analyzer
should be turned on and its hose put in the manhole to check the air quality for
any presence of gas. If the alarm on the analyzer goes off, the underground
mechanic should not enter the manhole. The underground mechanic has a
blower and blanket to air out the manhole, but if there is too much gas in it, he
should call dispatch. If the manhole is safe for entry, the analyzer must remain
activated for the entire time the underground mechanic works in the manhole to
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monitor the air for gas. Plaintiff was trained not to enter a manhole if the
analyzer pre-entry test revealed an unsafe situation.
Plaintiff and Alvarado did not set up the guardrail around the manhole or
use the analyzer on September 25, 2011. Plaintiff's expert opined that the
analyzer should have been used both before plaintiff entered the manhole and
while he was working underground. Plaintiff also did not wear his flame-
retardant shirt, safety gloves, or safety glasses. Rather, he entered the manhole
wearing a short-sleeved shirt, personal glasses, and non-safety gloves.
A gas explosion occurred while plaintiff was in the manhole, causing
third-degree burns to his right forearm and second-degree burns to his head,
neck, back and face. After the incident, Alvarado set up the guardrail around
the manhole and placed the analyzer on the guardrail, which is where it belonged
if he and plaintiff were using it in accordance with their training.
PSE&G conducted an investigation of the incident and engaged an internal
laboratory and contacted the manufacturer of the analyzer to determine if and
when the analyzer was used on September 25, 2011. Both sources advised that
the analyzer was turned on after Alvarado reported the incident to PSE&G.
A PSE&G supervisor responded to the scene shortly after the incident and
saw plaintiff's flame-retardant shirt and safety gloves folded neatly in the utility
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truck, which indicated plaintiff was not wearing this safety equipment at the
time of the incident. PSE&G sent plaintiff's flame-retardant shirt to an external
expert to determine whether plaintiff was wearing it at the time of the incident.
The expert analyzed the shirt and determined it had "absolutely no evidence of
any kind of thermal exposure, either scorching or charring." The expert
concluded that if plaintiff had been wearing his flame-retardant shirt "he would
have suffered little if any burn injury, primarily to his head and neck. There
would have been no burns on his arms."
PSE&G also contacted the customer whose service plaintiff was restoring.
The customer reported that the worker who exited the manhole, was wearing a
T-shirt and that the guardrail and analyzer were not present around the manhole
at the time of the incident.
Plaintiff was transported to the hospital after the incident, where he
remained until October 13, 2011. He received outpatient treatment thereafter,
and was cleared to return to work. On October 20, 2011, he and his Union
representatives attended a fact-finding meeting with Sweeney and other PSE&G
representatives. At the meeting, plaintiff lied and said he was wearing the flame-
retardant shirt and safety gloves in the manhole, he and Alvarado utilized the
guardrail and analyzer prior to the incident, they "used [the analyzer] all the
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time[,]" and he knew the analyzer was working because he "heard the beep sound
it makes when you turn it on and [he] heard it running as [he] went down the
[man]hole." Sweeney advised plaintiff of the information PSE&G had to the
contrary, but plaintiff denied he did not use these safety items or the guardrail.
Plaintiff told the same lies to the Union.
After plaintiff left the fact-finding meeting, his Union representative
stated to Sweeney: "None of your [air] analyzers are calibrated at the dock with
the right times or dates[,]" and "[can] you guys tell me how the crews on
Washington [Street] in Newark made three quarters of a splice using a torch and
then all of a sudden every manhole on the street blew up because the gas sucked
the flame from the torch into the duct." 1 Plaintiff relied on these statements to
support his Pierce2 claim, as well as a video of the Clifton shop that he took on
the day of his termination, which depicted "the [air] analyzers getting calibrated
to 11/15 instead of the right date, . . . which was 11/9[, and] . . . 15 something
for the time, which is like 3 something, and it was like 10 o'clock in the
1
Plaintiff claimed that shortly prior to the incident, there was a gas explosion
in the manhole in Newark in which at least three PSE&G employees were
working, and their air analyzers reportedly did not perform as expected, but they
were not terminated.
2
Pierce v. Ortho Pharm. Corp., 84 N.J. 58 (1980).
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morning." However, plaintiff admitted he never advised PSE&G management
of this video. Therefore, the video was irrelevant to his Pierce claim.
PSE&G terminated plaintiff on November 9, 2011, for failing to use the
safety equipment and lying during the fact-finding meeting. After his
termination, plaintiff admitted to the Union that he had lied and apologized to
Sweeney for lying. The Union did not challenge plaintiff's termination.
Plaintiff believed that his failure to wear the safety equipment and use the
analyzer and his lies during the fact-finding meeting motivated PSE&G's
decision to terminate his employment. Plaintiff did not recall discussing excess
gas in manholes with PSE&G management and admitted he never complained
to PSE&G management that the dates and times of the air analyzers were
incorrect or the analyzers were defective or unreliable. Plaintiff also admitted
that the date and time an analyzer displayed did not impact its functionality, and
"didn't really serve any real relevance" to plaintiff's liability expert when
forming his opinions. Plaintiff also admitted that he would bring the analyzer
into the Metro Division when there was an issue and the analyzer was either
repaired or replaced. Plaintiff further admitted that PSE&G management
instructed him that he had the absolute right to stop any job he considered
unsafe, and he did not recall ever stopping a job because of a defective air
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analyzer. However, he maintained that his Union representative raised these
issues on his behalf at the fact-finding meeting.
Both parties moved for summary judgment. The motion judge entered an
order on May 12, 2016, granting summary judgment to defendants. In a written
opinion, the judge dismissed plaintiff's wrongful termination claim, finding as
follows:
Despite [p]laintiff's allegations that the air
analyzers were defective, and that manholes were
dangerous due to the presence of gas, [plaintiff] has not
satisfied either of the elements required by Pierce.
There is no indication, as required under Pierce, that
[p]laintiff refused to do something, or expressed
disagreement to senior management regarding the air
analyzers or the gas in the manholes. Instead, by all
indications, [p]laintiff simply did not utilize the air
analyzer or his safety equipment, because he deemed
such safety measures to be ineffective, and he chose not
to make use of them, which actions were contrary to
PSE&G safety policy.
There is no indication, based on the facts
presented on this motion record, that [p]laintiff refused
to use combustible producing tools in the manholes, or
. . . to work in the manholes or to have his fellow
employees use the air analyzers due to their alleged
defective qualities, and that he expressed such protest
to upper management, citing a specific rule or
regulation, or even a generalized public policy mandate
that, in his subjective opinion, was being violated.
Plaintiff simply chose not to utilize his required safety
gear, and as a result of that decision he was injured or
suffered greater injuries than he would otherwise have
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suffered had he utilized the safety gear as required by
his employer – PSE&G. Plaintiff then lied about using
the safety gear rather than protesting the effectiveness
of the gear or the alleged dangerous conditions in the
manholes. Only after he was caught lying and was
subsequently terminated did [p]laintiff contort these
facts into a cause of action under Pierce.
The judge also found that although plaintiff's expert opined about certain
short-comings regarding the analyzers and that the manhole conditions violated
Occupational Safety and Health Administration (OSHA) regulations, the expert
failed to cite to any specific OSHA regulation or other regulation that PSE&G
allegedly violated. The judge concluded that:
Pierce requires an expression of disagreement with
PSE&G's violation of a clear mandate of public policy.
Even viewing the facts in a light most favorable to
plaintiff, as the [c]ourt must do in connection with this
motion, plaintiff has failed to set forth facts to support
his contention that PSE&G violated a clear mandate of
public policy and [that] he expressed to upper
management a sufficient expression of disagreement
with same.
The judge also concluded that even if plaintiff had established a prima
facie case of wrongful termination, PSE&G "demonstrated ample valid reasons
for terminating . . . [p]laintiff, none of which arise from any disagreement or
potential disclosure of allegations regarding safety equipment. It is undisputed
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that [p]laintiff failed to adhere to PSE&G's policy concerning the use of safety
equipment and, subsequent to the accident, lied about same."
Plaintiff filed a motion for reconsideration, reiterating that, through his
Union representative, he expressed to PSE&G senior management disagreement
with the violation of a clear mandate of public policy. The motion judge
disagreed, finding as follows in the judge's written opinion:
It is undisputed that any statements made to
management regarding the gas analyzers were made not
by [p]laintiff, but by his [U]nion representative. This
weighs heavily against plaintiff's argument that he
expressed a clear objection to a violation of a public
policy mandate. As set forth in the prior opinion, and .
. . in [p]laintiff's deposition testimony, plaintiff did not
object to the gas analyzers and express such objection
to management, but simply did not use the gas
analyzers, and then lied to management that he had
made use of the analyzers. The fact that [p]laintiff's
[U]nion representative objected to the gas analyzers in
defense of [p]laintiff's job and/or actions does not rise
to the level of a viable expression satisfying the
requisite actions for a Pierce claim under Tartaglia[v.
UBS Painewebber, Inc., 197 N.J. 81 (2008)].
Significantly, there is no indication that [p]laintiff
expressed his objections to his [U]nion representative
and asked that such argument be advanced to upper-
management. There is nothing in the record, which
would advance that argument. Therefore, [p]laintiff
never made any expression to management regarding
any objection to faulty gas analyzers or gas in the
manholes. Plaintiff misled management regarding his
use of the gas analyzers, and never objected to the use
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of the analyzers at all. Even when his Union
representative voiced such complaints, it was
subsequent to . . . [p]laintiff having lied about using
the gas analyzers, never voicing any objection to the
gas analyzers or gas in manholes prior to his accident,
and failing to raise his objections when the opportunity
presented itself at the fact finding meeting.
The [c]ourt reiterates that it is plainly evidence
from the record in this case, that the only time the gas
analyzers were brought up was in the context of
[p]laintiff being subject to reprimand or possible
termination. Plaintiff has not pointed to anything in the
record upon which a reasonable jury could find that he
expressed a disagreement with a violation of a mandate
of public policy to management.
Plaintiff also reiterated that he established a violation of a clear mandate
of public policy. Again, the judge disagreed, finding as follows:
Even if there exists a public policy mandate to keep gas
out of the manholes, the fact remains that [p]laintiff
never brought that issue to the attention of his
superiors. Such issue was only brought up to
management by [p]laintiff's [U]nion representative
within the context of his possible reprimand due to his
failure to follow safety protocol.
The judge declined to consider plaintiff's argument, raised for the first
time, that the judge failed to consider the temporal proximity of the complaints
as evidence plaintiff was terminated as retaliation rather than for legitimate
reasons. The judge determined that even if he considered the argument, "it [did]
little to bolster [p]laintiff's claims, as the temporal proximity to the alleged
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complaints about the gas analyzers remains close in time to [p]laintiff's
misleading statements regarding the use of gas analyzers, which is the reason
PSE&G claims, in part, that it terminated plaintiff's employment." The judge
also stated:
As for the other arguments regarding final written
warning, and other employees not getting fired . . . the
court properly considered these facts in its previous
ruling, and it is not necessary for the [c]ourt to retrace
such arguments where [p]laintiff has failed to point to
a wrongful analysis by the court or an area where the
[c]ourt failed to consider the significance of such
arguments.
II.
On appeal, plaintiff argues the motion judge erred in denying his motion
for reconsideration because his Union representative raised a sufficient
expression of disagreement to PSE&G senior management at the fact-finding
meeting about the faulty analyzers and dangerous gas in the manholes. Plaintiff
also argues he established a violation of a clear mandate of public policy, was
able to demonstrate issues of fact pertaining to PSE&G's reasons for terminating
him, and the judge should have granted reconsideration in the interests of justice.
"Motions for reconsideration are governed by Rule 4:49-2, which provides
that the decision to grant or deny a motion for reconsideration rests within the
sound discretion of the trial court." Pitney Bowes Bank, Inc. v. ABC Caging
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Fulfillment, 440 N.J. Super. 378, 382 (App. Div. 2015). "Reconsideration
should be used only where '1) the [c]ourt has expressed its decision based upon
a palpably incorrect or irrational basis, or 2) it is obvious that the [c]ourt either
did not consider, or failed to appreciate the significance of probative, competent
evidence.'" Ibid. (quoting Capital Fin. Co. of Delaware Valley, Inc. v.
Asterbadi, 398 N.J. Super. 299, 310 (App. Div. 2008)).
"[A] trial court's reconsideration decision will be left undisturbed unless
it represents a clear abuse of discretion." Ibid. "An abuse of discretion 'arises
when a decision is "made without a rational explanation, inexplicably departed
from established policies, or rested on an impermissible basis."'" Ibid. (quoting
Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)). Reconsideration is
not appropriate as a vehicle to bring the court's attention to evidence not
presented, although available, in connection with the initial argument. Fusco v.
Bd. of Educ., 349 N.J. Super. 455, 463 (App. Div. 2002). Applying the above
standards, we discern no reason to reverse.
Absent an employment contract, "employers or employees have been free
to terminate the employment relationship with or without cause." Pierce, 84
N.J. at 65-66. To protect at-will employees from abusive practices by their
employers, the Court has recognized a common law cause of action for at-will
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employees "who were discharged for reasons that were in some way 'wrongful.'"
Id. at 67. "In most cases of wrongful discharge, the employee must show
retaliation that directly relates to an employee's resistance to or disclosure of an
employer's illicit conduct." MacDougall v. Weichert, 144 N.J. 380, 393 (1996).
"In some cases, however, the employee may show that the retaliation is
based on the employee's exercise of certain established rights, violating a clear
mandate of public policy." Ibid. To that end, the employee "has a cause of
action for wrongful discharge when the discharge is contrary to a cle ar mandate
of public policy." Pierce, 84 N.J. at 72; see also N.J.S.A. 34:19-1 to -8
(recognizing a statutory cause of action for retaliatory discharge; passed after
Pierce). "[T]he mandate of public policy [must] be clearly identified and firmly
grounded" and an alleged violation of a "vague, controversial, unsettled, and
otherwise problematic public policy does not constitute a clear mandate."
MacDougall, 144 N.J. at 391-92. "[S]ources of public policy include legislation;
administrative rules, regulations or decisions; and judicial decisions." Mehlman
v. Mobil Oil Corp., 153 N.J. 163, 181 (1998). Ibid. If an employee fails to point
to a clear expression of public policy, a court "can grant a motion to dismiss or
for summary judgment." Pierce, 84 N.J. at 73.
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In addition, to support a Pierce claim, a plaintiff must show that he or she
made a sufficient expression of a disagreement with a corporate policy,
directive, or decision based on a clear mandate of public policy derived from
legislation; administrative rules, regulations; or decisions, or judicial decisions.
Tartaglia, 197 N.J. at 109; Pierce, 84 N.J. at 72. "[A] complaint to an outside
agency will ordinarily be a sufficient means of expression, but a passing remark
to co-workers will not. A direct complaint to senior management would likely
suffice, but a complaint to an immediate supervisor generally would not." 3
Tartaglia, 197 N.J. at 109.
We have considered plaintiff's arguments in light of the record and
applicable legal principles and conclude they are without sufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm
substantially for the reasons the judge expressed in his written opinions granting
summary judgment and denying reconsideration. However, we make the
following comments.
3
For this reason, what plaintiff said about the explosion on the day of the
accident to a supervisor from the Clifton shop, who was no part of PSE&G
senior management, is insufficient to support his Pierce claim. In any event, the
record does not reveal that plaintiff made an expression to the supervisor of a
disagreement with a corporate policy, directive, or decision based on a clear
mandate of public policy.
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Plaintiff, himself, never complained to PSE&G senior management about
faulty or unreliable analyzers. Rather, he advised senior management at the fact-
finding meeting that he used his analyzer on the day of the incident, used it "all
the time[,]" and it was functioning properly because he "heard it running as [he]
went down the [man]hole." What plaintiff's Union representative said to senior
management after plaintiff left the fact-finding meeting clearly contradicted
what plaintiff said about the analyzer.
In any event, assuming the Union representative's statements at the fact-
finding meeting are attributable to plaintiff, 4 the statement that "[n]one of
[PSE&G's] analyzers are calibrated at the dock with the right times or dates" did
not constitute a sufficient expression of a disagreement with a corporate policy
or decision based on a clear mandate of public policy derived from legislation;
administrative rules, regulations or decisions; or judicial decisions. The Union
representative did not identify any public policy PSE&G allegedly violated by
not calibrating the analyzers with the right times or dates, and the record
contains no such public policy. Both the manual for the analyzers and the
protocols set by the International Safety Equipment Association in the record
4
Plaintiff cites no authority supporting his proposition that a Union
representative's statements made outside his presence are attributable to him.
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recommend calibration only to ensure the "sensors and alarms respond to the
gas within the manufacturer's acceptable limits." Similarly, OSHA mandates
the calibration of equipment to ensure accuracy within a ten percent limit. See
29 C.F.R. § 1926.953(i). Calibration is not required to correct dates and times
on the analyzers.
In fact, these sources, on which plaintiff's expert relied, do not mention
any maintenance necessary to keep the dates and times accurate on the analyzers
or mandate that analyzers have the correct time and date. Moreover, there is no
evidence that incorrect dates and times on the analyzers will result in the
analyzers failing to detect gas. Notably, plaintiff acknowledged that the dates
and times had no impact on the analyzer's "ability to detect the toxins in the air
quality[.]" As such, the Union representative's statement regarding the
inaccurate dates times and days on the analyzers fells short of a sufficient
disagreement based on a clear mandate of public policy. Tartaglia, 197 N.J. at
109.
In addition, plaintiff, himself, never complained to PSE&G senior
management about dangerous gas in manholes. The Union representative's
statements about the Newark incident did not constitute a sufficient expression
of a disagreement with a corporate policy or decision based on a clear mandate
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of public policy derived from legislation; administrative rules, regulations or
decisions; or judicial decisions. The Union representative did not identify any
public policy PSE&G allegedly violated with respect to gas in manholes. As
such, the Union representative's statement regarding the Newark incident fell
short of a sufficient disagreement based on a clear mandate of public policy.
Tartaglia, 197 N.J. at 109. Accordingly, plaintiff failed to establish a Pierce
claim, warranting the grant of summary judgment and the denial of his motion
for reconsideration.
Affirmed.
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