JEFFREY SAUTER VS. COLTS NECK VOLUNTEER FIRE COMPANYNO. 2 (L-2637-13, MONMOUTH COUNTY AND STATEWIDE) , 451 N.J. Super. 581 ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0354-15T1
JEFFREY SAUTER, APPROVED FOR PUBLICATION
Plaintiff-Appellant, September 13, 2017
v. APPELLATE DIVISION
COLTS NECK VOLUNTEER FIRE COMPANY
NO. 2; CHRISTOPHER QUINCANNON,
individually and as a Supervisor
of Colts Neck Volunteer Fire Company
No. 2; KEVIN KETELSEN, JR., individually
and as a Supervisor of Colts Neck
Volunteer Fire Company No. 2; and
JOHN SAUTER, individually and as
a Supervisor of Colts Neck Volunteer
Fire Company No. 2,
Defendants-Respondents.
_________________________________________
Submitted December 14, 2016 – Decided September 13, 2017
Before Judges Alvarez, Accurso and Manahan.
On appeal from Superior Court of New Jersey,
Law Division, Monmouth County, Docket No. L-
2637-13.
Richard C. Sciria, attorney for appellant.
Dvorak & Associates, LLC, attorneys for
respondents (Danielle Abouzeid, of counsel
and on the brief; Courtney E. Dowd, on the
brief).
The opinion of the court was delivered by
ACCURSO, J.A.D.
Plaintiff Jeffrey Sauter, a volunteer firefighter, appeals
from a summary judgment dismissing his complaint against
defendant Colts Neck Volunteer Fire Company No. 2, and several
individual officers and members of the fire company, including
his brother. Plaintiff contends the vote of the fire company
terminating his membership constituted a violation of the
Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1
to -14. Because we agree with the trial court that plaintiff is
not an employee of Fire Company No. 2 entitled to the
protections of CEPA, we affirm.
The essential facts are undisputed. Colts Neck's fire
department consists of two all-volunteer companies, Colts Neck
Volunteer Fire Company No. 1 and Fire Company No. 2, overseen by
an Executive Fire Council made up of representatives from each
company and members or designees of the Township Committee.
See Colts Neck Municipal Code, §§ 28-1 to -3. Volunteer
firefighters in Colts Neck are eligible for Emergency Services
Volunteer Length of Service Award Program1 (LOSAP), N.J.S.A.
1
Enacted in 1997, the Emergency Services Volunteer Length of
Service Award Program Act enabled municipalities such as Colts
Neck to create, by ordinance, defined contribution plans to
provide limited tax-deferred income benefits to active volunteer
members of local fire or first aid organizations. See N.J.S.A.
40A:14-185 to -186, 188. Under the statute, a municipality can
contribute for each volunteer member a minimum of $100 and
maximum of $1150 per year of active emergency service, subject
(continued)
2 A-0354-15T1
40A:14-183 to -193, deferred compensation benefits of between
$400 and $1150 per year of active service, Colts Neck Municipal
Code, § 36-4. The Township maintains workers' compensation and
liability insurance on their behalf for incidents arising out of
the performance of their firefighting duties. Colts Neck
Municipal Code, § 28-17. Members are also entitled to reduced
fees for certain municipally issued permits and licenses. Id.
at § 68-2.
Plaintiff was a life member of Fire Company No. 2, having
joined when he was in high school and served for over twenty
years until 2013, when he was voted out by the general
membership. His LOSAP account contained $5871.71 as of the
motion date, which he will be eligible to receive when he turns
fifty-five, several years from now. At all times relevant to
this litigation, plaintiff has been a full-time employee of the
Monmouth County Sheriff's Office.
(continued)
to periodic cost of living increases. N.J.S.A. 40A:14-189b.
See Ortley Beach Prop. Owners Ass'n v. Fire Comm'rs of Dover
Twp. Fire Dist. No. 1, 320 N.J. Super. 132, 135-36 (Law Div.
1998), aff’d, 330 N.J. Super. 358 (App. Div.), certif. denied,
165 N.J. 530 (2000). Colts Neck adopted its ordinance in 2003
and awards annual contributions on the basis of points earned
for various tasks, such as drills, calls or meetings and
attending training. In order to qualify for an award, a member
must acquire a minimum of sixty points in the calendar year.
Colts Neck Municipal Code, § 36-2.
3 A-0354-15T1
It is fair to say that plaintiff's relations with Fire
Company No. 2 over his twenty-year tenure were not always
harmonious. This is his second CEPA action against the fire
company. He first sued the fire company in 2004 after it
suspended him for eighteen months. Plaintiff claimed the
suspension was in retaliation for his complaints about the bid
process for renovations to the company's fire hall after his
brother was denied the contract. Although that suit was
eventually settled for $10,000, inclusive of plaintiff's
attorney's fees, plaintiff continued to believe the fire company
"owed" him another seven or eight thousand dollars to make him
"whole" for his fees in that suit.
Several years after that settlement, plaintiff again raised
the issue of his legal fees with various members of Fire Company
No. 2. In response to plaintiff's request, the general
membership voted to reimburse him for what remained of his fees
from the first suit. The fire company, however, subsequently
got legal advice that doing so would jeopardize its 501(c)(3)
tax status and so advised plaintiff. As a consequence, the
company declined to make any further payment to him.
At about the same time as these events, Fire Company No. 2
discovered after the death of its long-time treasurer that he
had embezzled approximately $300,000 from its accounts. The
4 A-0354-15T1
company subsequently made a claim under its fidelity policy for
the loss. After the fire company notified plaintiff it would
not reimburse his fees, he wrote to the fire company's fidelity
carrier claiming the company's 2011 proof of loss for the
defalcation was fraudulent. The alleged fraud was failing to
disclose a letter plaintiff had written to the Monmouth County
Prosecutor in 2003 in connection with the complaints he made in
his first suit, which that office investigated and found did not
warrant further action. The member who submitted the claim on
behalf of the fire company is a lawyer, and the first person to
have questioned the legality of the fire company reimbursing
plaintiff for his attorneys' fees.
Following his letter to the company's fidelity carrier,
plaintiff reported to the Executive Fire Council that Fire
Company No. 2 was permitting members to dispose of their
household trash in the fire company's dumpster, something
plaintiff himself admitted doing on occasion. Plaintiff,
employing the advice the fire company got about not reimbursing
his fees, asked that the Executive Council obtain a legal
opinion that members using the dumpster did not threaten the
fire department's 501(c)(3) status by conferring a financial
benefit on insiders.
5 A-0354-15T1
Days later, several members of Fire Company No. 2,
including plaintiff's brother, signed a letter to the president
and the membership committee lodging a formal complaint against
plaintiff. Those members alleged plaintiff had been
disrespectful and abusive to members at meetings, drills and
fire calls after "the outcome of the legal opinion was not in
[his] favor"; went "out on his own to sabotage the company's
insurance claim," by "falsely claiming that the company
intentionally attempted to defraud the insurance company"; and
made "a frivolous charge" to the Executive Fire Council that use
of the dumpster by members could threaten the company's
501(c)(3) status. The complainants alleged plaintiff's "angry
and belligerent" conduct was "unbecoming of a Company #2
member," and "detrimental to the Company and the safety of
members both at the fire house and on the fire ground."
The membership committee took the matter under advisement
and made the decision to terminate plaintiff's membership in
Fire Company No. 2. Thereafter, several members wrote to the
president and the membership committee asking that plaintiff be
immediately reinstated to allow him "to defend himself against
the charges" in accordance with the bylaws and that the
membership committee bring its recommendation to the company for
a vote.
6 A-0354-15T1
The membership committee rescinded the termination and
suspended plaintiff pending investigation and presentation of
the matter to the membership. The committee subsequently
sustained each of the charges against plaintiff and again
determined to terminate his membership. Plaintiff appealed its
decision to the general membership, which voted fourteen to
eight against reinstatement.
Plaintiff filed suit in the Law Division alleging
violations of CEPA, the Law Against Discrimination (LAD),
N.J.S.A. 10:5-1 to -49, and defamation. After discovery,
defendants moved for summary judgment on all counts. Plaintiff
withdrew his LAD claim at argument, and Judge Gummer granted
summary judgment dismissing the remainder of the complaint in an
opinion from the bench. After undertaking a comprehensive
review of the law, the judge dismissed the CEPA claim finding
plaintiff was not an employee entitled to the statute's
protections. In addition to relying on the plain language of
the statute and State and federal case law interpreting it, the
judge also adopted the analysis Judge Quinn applied in
dismissing a very similar CEPA claim against the same fire
company by another of its members in 2005.
On appeal, plaintiff argues the court erred in finding he
was not an employee as defined in CEPA and in relying on
7 A-0354-15T1
unpublished decisions and other cases with no precedential value
to reach its decision. Alternatively, plaintiff contends
"public policy dictates" we should expand CEPA, as "the [LAD]
has [been expanded]," to permit plaintiff to pursue a CEPA claim
against the fire company. We reject those arguments.
CEPA was enacted in 1986 to "protect employees who report
illegal or unethical work-place activities." Higgins v. Pascack
Valley Hosp., 158 N.J. 404, 417 (1999) (quoting Barratt v.
Cushman & Wakefield, 144 N.J. 120, 127 (1996)). The statute
codified and extended the Supreme Court's ruling in Pierce v.
Ortho Pharmaceutical Corp., 84 N.J. 58, 72, (1980), which
created a common law cause of action for at-will employees
wrongfully discharged in violation of a clear mandate of public
policy. Barratt, supra, 144 N.J. at 127. The common law cause
of action is grounded in the employment at-will doctrine.
Pierce, supra, 84 N.J. at 72. As the Court explained in Pierce,
"[a]n employer's right to discharge an employee at will carries
a correlative duty not to discharge an employee who declines to
perform an act that would require a violation of a clear mandate
of public policy." Ibid. CEPA created "a statutory exception
to the general rule that an employer may terminate an at-will
employee with or without cause." Higgins, supra, 158 N.J. at
8 A-0354-15T1
418. Just as in the common law action, the employer-employee
relation is at the heart of the statute.
In CEPA, the Legislature extended Pierce by prohibiting an
employer from taking retaliatory action, defined as "discharge,
suspension or demotion . . . or other adverse employment action
. . . in the terms and conditions of employment," against an
employee who discloses, threatens to disclose, or refuses to
participate in an activity of the employer "that the employee
reasonably believes is in violation of a law, or a rule or
regulation promulgated pursuant to law." N.J.S.A. 34:19-2, 19-
3; Barratt, supra, 144 N.J. at 127. The statute defines an
employee broadly as "any individual who performs services for
and under the control and direction of an employer for wages or
other remuneration." N.J.S.A. 34:19-2b.
In signing the bill, Governor Kean noted the "unfortunate"
fact "that conscientious employees have been subjected to
firing, demotion or suspension for calling attention to illegal
activity on the part of . . . employer[s]," and, conversely,
"that illegal activities have not been brought to light because
of the deep-seated fear on the part of an employee that his or
her livelihood will be taken away without recourse." Abbamont
v. Piscataway Twp. Bd. of Educ., 138 N.J. 405, 418 (1994)
(quoting Office of the Governor, News Release at 1 (Sept. 8,
9 A-0354-15T1
1986)). The Court has proclaimed the purpose of CEPA is "'to
protect and encourage employees to report illegal or unethical
workplace activities and to discourage public and private sector
employers from engaging in such conduct.'" Mehlman v. Mobil Oil
Corp., 153 N.J. 163, 179 (1998) (quoting Abbamont, supra, 138
N.J. at 431). The statute "seeks to overcome the victimization
of employees and to protect those who are especially vulnerable
in the workplace from the improper or unlawful exercise of
authority by employers." Abbamont, supra, 138 N.J. at 418.
Although plaintiff concedes he does not perform services
for Fire Company No. 2 for wages, he asserts his receipt of
LOSAP benefits constitutes sufficient remuneration to bring him
within the definition of an employee under the statute. We
disagree.
The paramount goal in interpreting a statute is, of course,
to divine the Legislature's intent, "and, generally, the best
indicator of that intent is the statutory language." DiProspero
v. Penn, 183 N.J. 477, 492 (2005). We "ascribe to the statutory
words their ordinary meaning and significance and read them in
context . . . so as to give sense to the legislation as a
whole." Ibid. (internal citation omitted). Importantly, we do
not focus on isolated words or read them "in a way which
sacrifices what appears to be the scheme of the statute as a
10 A-0354-15T1
whole." Chasin v. Montclair State Univ., 159 N.J. 418, 427
(1999) (quoting Zimmerman v. Municipal Clerk of Twp. of
Berkeley, 201 N.J. Super. 363, 368 (App. Div. 1985)).
There is no dispute that plaintiff performed his
firefighting services for Colts Neck under the control and
direction of Fire Company No. 2. Thus he satisfies at least
part of CEPA's definition of an "employee" as one who "performs
services for and under the control and direction of an employer
for wages or other remuneration." N.J.S.A. 34:19-2b. The
question is whether he performed those services "for wages or
other remuneration"2 in an employer-employee type relationship.
Cf. Feldman v. Hunterdon Radiological Assocs., 187 N.J. 228, 239
(2006) (finding the plaintiff's work as a radiologist in return
for an annual salary constituted the rendering of services for
remuneration, leaving only the question of "whether, in light of
her status as a shareholder-director, [the] plaintiff was
2
We do not endorse the trial court's discrete finding, made much
of by plaintiff, that plaintiff's sworn statement that he joined
Fire Company No. 2 because he was "[i]nterested in doing
something for the community" precluded a finding he performed
his services "for wages or other remuneration." Although we
understand the court was focused on the fact that plaintiff
volunteered his services without any expectation of payment, a
critical factor here, whether one is or is not an employee
protected by CEPA cannot turn on one's subjective motivation for
taking a job. Many employees who take jobs for reasons other
than "wages or other remuneration" nevertheless expect to be,
and are, paid for their work and protected by the statute.
11 A-0354-15T1
sufficiently subject to [the defendant's] 'control and
direction' that she could reasonably be considered an employee
rather than an employer").
We accept that LOSAP benefits, as an "award" for volunteer
service, constitute "remuneration" in some sense, albeit not as
the term is commonly used to represent payment of "an equivalent
for" services rendered. See Webster's Third New International
Dictionary 1921 (2002) (defining "remunerate"). The LOSAP
benefits available to volunteer firefighters in Colts Neck
nowhere near approximate the actual monetary value of the
services those firefighters provide. Although plaintiff could
earn points toward an annual LOSAP award through his
participation in drills, calls or training, the program does not
consider or treat those activities as remunerated tasks.
Certainly the very modest LOSAP benefits plaintiff could expect
to receive in the future would not be sufficient compensation to
change the voluntary nature of the services themselves. See
Vogt v. Belmar, 14 N.J. 195, 206 (1954) (characterizing the
relationship between a volunteer firefighter and the
municipality in the context of workers' compensation as "not
that of master and servant in the true sense" but "rather a
gratuitous consensual undertaking to perform 'public fire duty'
12 A-0354-15T1
as a member of a volunteer fire company, under the 'control or
supervision' of the municipal governing body").
The question then is whether the Legislature, in employing
the word "remuneration" in addition to "wages," has evinced an
intention to extend the protections of the statute to volunteers
such as plaintiff who are not compensated for their work. See
Craster v. Bd. of Comm'rs, 9 N.J. 225, 230 (1952). No such
intention is apparent in the wording or structure of CEPA.
Moreover, reading "remuneration" in isolation, in an effort to
bring plaintiff within the ambit of the statute, impugns the
clear statutory intent to protect those "employees" who risk
their livelihoods in reporting illegal activities in the
workplace. See Abbamont, supra, 138 N.J. at 418 (observing that
CEPA seeks to "protect those who are especially vulnerable in
the workplace from the improper and unlawful exercise of
authority of employers").
Plaintiff argues that CEPA, as remedial legislation, is to
be interpreted liberally, see Dzwonar v. McDevitt, 177 N.J. 451,
463 (2003), and claims the Court has done so in extending its
reach to independent contractors, who, like plaintiff, are not
traditional employees, see D'Annunzio v. Prudential Ins. Co. of
Am., 192 N.J. 110, 127 (2007). He contends that applying the
13 A-0354-15T1
Pukowsky3 test the Court has adopted for determining whether one
is an employee under CEPA supports that he stands in an
employment relationship with Fire Company No. 2. Although we
agree that CEPA is remedial legislation and thus should be
interpreted liberally "to effectuate its important social goal,"
Higgins, supra, 158 N.J. at 420 (quoting Abbamont, supra, 138
N.J. at 431), we are unpersuaded by plaintiff's other arguments.
There is no question but that CEPA's definition of
"employee" is broad, encompassing more workers "than the narrow
band of traditional employees," D'Annunzio, supra, 192 N.J. at
121 (characterizing the proposition as "beyond cavil"), and that
it extends to some workers otherwise characterized as
independent contractors, id. at 125-27. In order for "CEPA's
scope [to] fulfill its remedial promise," the Court has deemed
it critical that the statute's definition of "employee" reflect
"the modern reality of a business world in which professionals
and other workers perform regular or recurrent tasks that
further the business interests of the employer's enterprise,
notwithstanding that they may receive remuneration through
contracts instead of through the provision of wages and
benefits." Id. at 124 (emphasis added).
3
Pukowsky v. Caruso, 312 N.J. Super. 171 (App. Div. 1998).
14 A-0354-15T1
So viewed, it is plain the Court did not "extend" the
statute to independent contractors. Instead, in D'Annunzio the
Court acted to ensure CEPA's protections for those workers,
regardless of label, who stand in a true employer-employee
relationship with the person or entity purchasing their
services. See Feldman, supra, 187 N.J. at 241 ("courts must
look to the goals underlying CEPA and focus not on labels but on
the reality of plaintiff's relationship with the party against
whom the CEPA claim is advanced"). Although plainly
acknowledging that wages are not the only means of compensating
workers entitled to the protections of CEPA, the Court has never
suggested that an employer-employee relationship, the sine qua
non to establishing liability under the statute, cf. Pukowsky,
supra, 312 N.J. Super. at 184, could be found in the absence of
compensation for services.
The Court's tool for assessing "the reality of plaintiff's
relationship with the party against whom the CEPA claim is
advanced" is the Pukowsky test, a twelve-factor hybrid4
4
The twelve factors are:
(1) the employer's right to control the
means and manner of the worker's
performance; (2) the kind of occupation--
supervised or unsupervised; (3) skill; (4)
who furnishes the equipment and workplace;
(5) the length of time in which the
(continued)
15 A-0354-15T1
reflecting both the common law right-to-control test and an
economic realities test. D'Annunzio, supra, 192 N.J. at 123.
The Court endorsed the Pukowsky test as the best means of
identifying "the specialized and non-traditional worker who is
nonetheless integral to the business interests of the employer,"
and thus deserving of CEPA's protections. Id. at 124-25. The
test "focuses heavily on work-relationship features that relate
to the employer's right to control the non-traditional employee,
and allows for recognition that the requisite 'control' over a
professional or skilled person claiming protection under social
legislation may be different from the control that is exerted
over a traditional employee." Id. at 123.
Plaintiff, of course, is not arguing he is an independent
contractor who should be considered an employee under CEPA.
Plaintiff is a volunteer member of a fire company contending his
LOSAP benefits are remuneration sufficient to qualify him as an
(continued)
individual has worked; (6) the method of
payment; (7) the manner of termination of
the work relationship; (8) whether there is
annual leave; (9) whether the work is an
integral part of the business of the
"employer;" (10) whether the worker accrues
retirement benefits; (11) whether the
"employer" pays social security taxes; and
(12) the intention of the parties.
[D'Annunzio, supra, 192 N.J. at 123.]
16 A-0354-15T1
"employee" under CEPA's definition of that term. Unlike
independent contractors, whom the Court has noted are not
excluded, explicitly, from CEPA's definition of "employee" as a
person "performing services for an employer for remuneration,"
D'Annunzio, supra, 192 N.J. at 121, volunteers, because they
perform services without expectation or receipt of payment, are
explicitly excluded.
While we are not convinced of the necessity of analyzing
plaintiff's status under Pukowsky in light of CEPA's plain
language excluding volunteers from the definition of "employee,"
doing so does not alter our conclusion that he does not come
within the ambit of the statute. Although those factors
concentrating on the employer's control and direction of the
work, factors one (the employer's right to control the means and
manner of the worker's performance), two (the kind of occupation
– supervised or unsupervised), four (who furnishes the equipment
and workplace), and nine (whether the work is an integral part
of the business of the "employer"), tilt in favor of finding an
employer-employee relationship; others, factors three (skill)
and five (the length of time an individual has worked), are
neutral here. The remainder of the Pukowsky factors, six
(method of payment), seven (the manner of termination of the
work relationship), eight (whether there is annual leave), ten
17 A-0354-15T1
(whether the worker accrues retirement benefits), eleven
(whether the "employer" pays social security taxes) and twelve
(the intention of the parties), all strongly cut against finding
plaintiff is an employee covered by CEPA.
Overshadowing all the other Pukowsky factors, of course, is
that plaintiff was not remunerated for the drills, calls and
training he undertook as a member of Fire Company No. 2, and
neither he nor the fire company ever intended to create an
employment relationship between them when plaintiff became a
member of the organization. See Kounelis v. Sherrer, 396 F.
Supp. 2d 525, 533-34 (D.N.J. 2005) (finding intent of the
parties most significant Pukowsky factor in rejecting prisoner's
CEPA claim against corrections officials based on his prison
sanitation job). Because plaintiff did not perform services for
Colts Neck as a member of its volunteer fire department for
wages or other remuneration, notwithstanding that those services
were performed under the fire company's direction and control,
he simply cannot qualify as an employee under CEPA regardless of
the test one employs to evaluate the relationship.
Our conclusion is buttressed by consideration of those
cases that have focused on whether the plaintiff is "within the
class of people that the statute was designed to protect." See
Feldman, supra, 187 N.J. at 249-50 (finding the plaintiff's
18 A-0354-15T1
employment agreement with the professional association
notwithstanding, no reasonable fact-finder could conclude the
plaintiff shareholder-director "was an 'employee' or a member of
the vulnerable class of persons the CEPA statute was designed to
protect"); Yurick v. State, 184 N.J. 70, 76-77 (2005)
(discussing then Judge Hoens' Appellate Division dissent opining
county prosecutor not an "employee" under CEPA and "not the type
of vulnerable person that requires CEPA's protection");
Casamasino v. City of Jersey City, 304 N.J. Super. 226, 242
(App. Div. 1997) (finding tenured tax assessor could not argue
he was the type of employee who harbored deep-rooted fear of
losing his livelihood if he spoke out against his employer's
activities, policies or practices), rev'd on other grounds, 158
N.J. 333 (1999).
None of plaintiff's alleged "whistleblowing" activities
posed the least threat to his livelihood for the simple reason
that he was not "employed" as a volunteer firefighter.5
Plaintiff, like the plaintiffs in Feldman, Yurick and
Casamasino, is simply not within the class of workers CEPA was
5
The point is easily made by considering how different a case
this would be had plaintiff made similar allegations against his
employer, the Monmouth County Sheriff's Office, and been fired
for them. "Blowing the whistle" on the leadership of a
membership organization to which one belongs obviously carries
none of the financial risk of doing so in the workplace, the
only venue where CEPA applies.
19 A-0354-15T1
designed to protect. As a volunteer member of his fire company,
plaintiff stands outside the employment relationship which gave
rise to the doctrine underpinning the statute and beyond the
scope of the problem the Legislature designed CEPA to address.
In considering whether plaintiff performed firefighting services
"for wages or other remuneration," we are not free to read those
words in a way that sacrifices the scheme of the statute to
protect "those who are especially vulnerable in the workplace
from the improper or unlawful exercise of authority" by
employers bent on retaliation against a "whistleblower." See
Abbamont, supra, 138 N.J. at 418; see also Chasin, supra, 159
N.J. at 427.
Plaintiff argues in the alternative, that "public policy
dictates" we should expand CEPA, as "the [LAD] has [been
expanded]," to permit him to pursue a CEPA claim against Fire
Company No. 2. Specifically, plaintiff contends that because
this court has held "a volunteer fire department is considered
an employer of its volunteers within the meaning of the [LAD],"
see Hebard v. Basking Ridge Fire Co. No. 1, 164 N.J. Super. 77,
83 (App. Div. 1978), appeal dismissed, 81 N.J. 294 (1979); Blair
v. Mayor & Council, Borough of Freehold, 117 N.J. Super. 415,
417-18 (App. Div. 1971), certif. denied, 60 N.J. 194 (1972); we
should similarly construe CEPA. In addition to our having no
20 A-0354-15T1
ability to rewrite a plainly written enactment of the
Legislature, which limits the protections of CEPA to those
persons performing services for an employer for wages or other
remuneration, N.J.S.A. 34:19-2b; see DiProspero, supra, 183 N.J.
at 492, we question the premise of the argument.
As the Court has recently reminded, although it has "[o]n
occasion, when appropriate," looked to the LAD in construing
CEPA, "CEPA and [the] LAD are statutes that have their own
distinct purposes and are worded differently to achieve those
purposes." Donelson v. DuPont Chambers Works, 206 N.J. 243,
261-62 (2011). The LAD's definition of "employee" is broader
than CEPA's.6 In defining the term, the LAD states only that
"'[e]mployee' does not include any individual employed in the
domestic service of any person."7 N.J.S.A. 10:5-5f. Indeed, it
6
The LAD is a much broader statute than CEPA, providing that
"[a]ll persons shall have the opportunity to obtain employment,
and to obtain all the accommodations, advantages, facilities,
and privileges of any place of public accommodation, publicly
assisted housing accommodation, and other real property without
discrimination," N.J.S.A. 10:5-4, its aim being "nothing less
than the eradication 'of the cancer of discrimination.'"
Fuchilla v. Layman, 109 N.J. 319, 334 (quoting Jackson v.
Concord Co., 54 N.J. 113, 124 (1969)), cert. denied, 488 U.S.
826, 109 S. Ct. 75, 102 L. Ed. 2d 51 (1988).
7
The LAD's definition of "employer" is similarly inclusive,
encompassing any person, "unless otherwise specifically exempt
under another section of [this act], and includes the State, any
political or civil subdivision thereof, and all public officers,
agencies, boards or bodies." N.J.S.A. 10:5-5e. A "person" is
(continued)
21 A-0354-15T1
was the very breadth of the LAD's language that prompted our
courts to develop the Pukowsky test to determine who qualifies
as an "employee" under the statute "in cases lacking an actual
or customary employer-employee relationship." Thomas v. Cty. of
Camden, 386 N.J. Super. 582, 595 (App. Div. 2006).
Although the LAD's definition of "employee" lacks CEPA's
qualification that services be performed "for wages or other
remuneration," it is somewhat anomalous that a volunteer
firefighter should be considered an employee under the LAD but
not under CEPA, in light of the Court's endorsement of the
Pukowsky test for determining the existence of an employment
relationship under both statutes. See D'Annunzio, supra, 192
N.J. at 122-25. Accordingly, we turn to analyze the two cases
on which plaintiff relies to argue that volunteer firefighters
should be treated as employees of their fire companies under
CEPA as they are under the LAD.
The first case, Blair, dates from 1971, and involves an
appeal from a final decision of the Director of the Division on
Civil Rights regarding the membership and admission policies of
a volunteer fire department in the Borough of Freehold. Blair,
(continued)
"one or more individuals, partnerships, associations,
organizations, labor organizations, corporations, legal
representatives, trustees, trustees in bankruptcy, receivers,
and fiduciaries." N.J.S.A. 10:5-5a.
22 A-0354-15T1
supra, 117 N.J. Super. at 416-17. The opinion, in which we
affirmed the decision of the Director "essentially for the
reasons stated by hearing examiner [Sylvia B.] Pressler," is too
brief to allow any real sense of the facts. Id. at 417. We
concluded:
the admission procedures established under
the various borough ordinances, including
the latest, constitute an unlawful
employment practice because of the
establishment of requirements irrelevant to
the proper performance of the duties of
firemen. We cannot conceive of any lawful
reason for the requirement of a vote of the
membership of a volunteer fire department
for admission of a new member thereto. The
only rational reason for such a requirement
is exclusion. The overall record contains
substantial credible evidence to warrant the
conclusion that such exclusion was motivated
at least in part by race.
[Ibid.]
We, however, reversed the Division's finding that the fire
department's facilities constituted a public accommodation.
Ibid. We wrote:
We are not persuaded that the
facilities maintained for the pleasure and
sociability of members of the volunteer fire
department are the equivalent of facilities
maintained for the use of the general public
of a personal nature. The facilities of the
fire department, as shown by the record
here, are maintained for the use of its
members and not for the general public. Such
facilities are therefore not an
accommodation within the meaning of the act.
23 A-0354-15T1
[Ibid.]
The other case, Hebard, was decided in 1978. Caroline
Hebard filed a complaint against Basking Ridge Fire Company, No.
1 in the Division on Civil Rights after the fire company denied
her application for membership "on the ground that membership
was limited exclusively to males." Hebard, supra, 164 N.J.
Super. at 79. The Division determined the fire company, which
in its relation to Basking Ridge was structured similarly to
Fire Company No. 2, was both a public accommodation and an
employer under the LAD, and had discriminated against Hebard
when it denied her membership. Id. at 80.
We affirmed that decision on appeal, writing, "[t]he
company is an 'employer' within the meaning of the law and
subject to the provisions thereof relating to employment
discrimination. It is not within the statutory exclusion as a
nonprofit social or fraternal club or corporation." Id. at 83.
We continued:
Some comment is in order on whether
Blair, supra, is determinative of the
company's status as an employer under the
law. In Blair the volunteer fire company
plainly appeared to be part of the municipal
government, and the order apparently was
directed to the municipality and the "fire
department" as the employer. See 117 N.J.
Super. at 417. We see no appreciable
distinction in this respect between the
present case and Blair.
24 A-0354-15T1
The company, by virtue of municipal
ordinances, is municipal in nature, subject
to the township governing body and
ordinances. The township provides
approximately 20% of the company's funding
and provides workers' compensation for the
members. These indicia of control, both
fiscal and supervisory, warrant the
conclusion that the members of the company
are, in effect, employees of the township,
as well as of the company, notwithstanding
the fact that the members are not paid.
[Hebard, supra, 164 N.J. Super. at 83-84.]
In light of our finding that the fire company was an employer
subject to the LAD, we did not consider the Division's finding
that the fire company was a place of public accommodation under
the LAD. Id. at 86.
As far as we are aware, these are the only two cases ever
holding that volunteer firefighters are "employees" under the
LAD, notwithstanding that they are not paid for their services.
For our purposes, we need do no more than point to the
differences in the definition of "employee" in the LAD and CEPA
to explain why volunteer firefighters might be considered
employees under the LAD, but cannot be so considered under CEPA.
We note, however, that the development of the law, both in
the area of places of public accommodation, see Dale v. Boy
Scouts of Am., 160 N.J. 562, 584-602 (1999), rev'd and remanded
on other grounds, 530 U.S. 640, 120 S. Ct. 2446, 147 L. Ed. 2d
554 (2000), and employment, see Thomas, supra, 386 N.J. Super.
25 A-0354-15T1
at 591-600; Pukowsky, supra, 312 N.J. Super. at 184, might
suggest that were Blair and Hebard decided today, the result
would be the same but the rationale could well be different.
The fire companies might be seen as "places" of public
accommodation subject to the LAD but not employers of their
members. See Frank v. Ivy Club, 120 N.J. 73, 104 (1990) (citing
Hebard to support the proposition that "[w]here a place of
public accommodation and an organization that deems itself
private share a symbiotic relationship, particularly where the
allegedly 'private' entity supplies an essential service which
is not provided by the public accommodation, the servicing
entity loses its private character and becomes subject to laws
against discrimination"), cert. denied, 498 U.S. 1073, 111 S.
Ct. 799, 122 L. Ed. 2d 860 (1991); see also Nat'l Org. for Women
v. Little League Baseball, Inc., 127 N.J. Super. 522, 531 (App.
Div.) ("The statutory noun 'place' (of public accommodation) is
a term of convenience, not of limitation."), aff'd, 67 N.J. 320
(1974). In any event, our review of Blair and Hebard convinces
us that neither provides a sound basis to find plaintiff an
employee of Fire Company No. 2 under CEPA.
Finally, we end by noting we find no error in Judge
Gummer's having relied on the analysis Judge Quinn applied in
dismissing a very similar CEPA claim against the same fire
26 A-0354-15T1
company by another of its members in 2005. A review of the
motion transcript makes perfectly clear that the court was aware
of and abided by the strictures of Rule 1:36-38 in her treatment
of that case.
Judge Quinn's opinion was cited to the court by the fire
company, which was a party to the prior case. Both parties were
aware of the opinion and that it was one of a very few opinions,
none of them precedential, discussing the treatment of
volunteers under CEPA and Pierce. See, e.g., Versarge v. Twp.
of Clinton, 984 F.2d 1359, 1371 (3d Cir. 1993) (affirming
summary judgment dismissing Pierce claim on the basis that "New
Jersey courts have not expanded this principle to include
expulsion from volunteer organizations").
8
The Rule provides:
No unpublished opinion shall constitute
precedent or be binding upon any court.
Except for appellate opinions not
approved for publication that have been
reported in an authorized administrative law
reporter, and except to the extent required
by res judicata, collateral estoppel, the
single controversy doctrine or any other
similar principle of law, no unpublished
opinion shall be cited by any court. No
unpublished opinion shall be cited to any
court by counsel unless the court and all
other parties are served with a copy of the
opinion and of all contrary unpublished
opinions known to counsel.
[R. 1:36-3.]
27 A-0354-15T1
The parties presented their arguments to the court
regarding the merits of the rationale in that case, and the
court, acknowledging the case was not binding as the unpublished
decision of a coordinate trial court, see Brundage v. Estate of
Carambio, 195 N.J. 575, 594 (2008); State ex rel. R.M., 343 N.J.
Super. 153, 156 (Ch. Div. 2001), expressed its reasons for
finding the logic of the opinion persuasive and adopting it.
Rule 1:36-3 does not prevent a party from properly calling an
unpublished opinion to the attention of the court, see Falcon v.
Am. Cyanamid, 221 N.J. Super. 252, 261 n.2 (App. Div.), certif.
denied, 108 N.J. 185 (1987), nor prevent the court from
acknowledging the persuasiveness of a reasoned decision on
analogous facts, see Nat'l Union Fire Ins. Co. of Pittsburgh v.
Jeffers, 381 N.J. Super. 13, 18 (App. Div. 2005).9
Moreover, because we apply the same standard as the trial
judge in our review of a summary judgment, Nicholas v. Mynster,
213 N.J. 463, 478 (2013), and are obliged to construe the meaning
of the statute here anew, Zabilowicz v. Kelsey, 200 N.J. 507,
9
By holding the trial court did not err in acknowledging the
persuasive logic of an unpublished decision, we do not imply it
had any obligation to have considered it. While litigants are
free to cite unpublished opinions to the court in accordance
with Rule 1:36-3, the court is, of course, free to disregard
them. See Sciarrotta v. Glob. Spectrum, 194 N.J. 345, 353 n.5
(2008); Mesivta Ohr Torah of Lakewood v. Twp. of Lakewood, 24
N.J. Tax 314, 332-33 (2008).
28 A-0354-15T1
512-13 (2009), any error in the court's reliance on an
unpublished opinion would be of no moment in any event. Having
considered plaintiff's remaining arguments, we find them without
sufficient merit to require further discussion here. See R.
2:11-3(e)(1)(E).
Because we conclude plaintiff is not an employee of Fire
Company No. 2, its vote to strip plaintiff of his membership in
the organization in alleged retaliation for his letters to the
fire company's fidelity carrier and Colts Neck's Executive Fire
Council, even if true, is not a CEPA violation. Accordingly, we
affirm the judgment dismissing the complaint.
Affirmed.
29 A-0354-15T1