WOLVERTON v. THE GOODYEAR TIRE AND RUBBER COMPANY

Filing 26

OPINION. Signed by Judge Noel L. Hillman on 2/25/2015. (tf, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

BRYAN WOLVERTON,
Civil No. 13-2782 (NLH/AMD)
Plaintiff,
OPINION

v.
THE GOODYEAR TIRE AND RUBBER
COMPANY,
Defendant.

APPEARANCES:
ROBERT P. MERENICH
GEMMEL, TODD & MERENICH, P.A.
767 SHORE ROAD
P.O. BOX 296
LINWOOD, NJ 08221
On behalf of plaintiff
WILLIAM P. MCLANE
LITTLER MENDELSON, PC
ONE NEWARK CENTER
EIGHTH FLOOR
NEWARK, NJ 07102
On behalf of defendant

HILLMAN, District Judge
Presently before the Court is the motion of defendant for
summary judgment on plaintiff’s claims that defendant violated
the New Jersey Conscientious Employee Protection Act (“NJ
CEPA”), N.J.S.A. 34:19–1, et seq.

For the reasons expressed

below, defendant’s motion will be granted.

BACKGROUND
On January 2, 2012, defendant, The Goodyear Tire and Rubber
Company, hired plaintiff, Bryan Wolverton, as an auto technician
at its Pleasantville, New Jersey store.

Plaintiff claims that

from the time he began working at Goodyear some of his coworkers
smoked cigarettes inside the building, to his displeasure and in
violation of Goodyear policy and New Jersey law.

Plaintiff

contends that when he complained about the indoor smoking, his
supervisors and Goodyear human resource personnel did not
properly investigate his concerns, and he had to resort to
contacting the fire department, Goodyear’s internal Integrity
Hotline, and the Atlantic County Division of Public Health.
Based on his actions related to his concerns about indoor
smoking, plaintiff claims that his coworkers retaliated against
him by treating him in a hostile and harassing manner, requiring
him to quit his job on March 28, 2012.
Plaintiff filed a one-count complaint against Goodyear
claiming that Goodyear violated the NJ CEPA.

Plaintiff claims

that he was constructively discharged due to harassment
resulting from his complaints that employees were smoking
indoors.

Goodyear has moved for summary judgment in its favor,

arguing that Goodyear was responsive to plaintiff’s concerns,
conducted a reasonable investigation into his complaints, and
did everything possible to ensure that its employees abided by
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the Goodyear smoking policy and New Jersey law, and otherwise
respected plaintiff’s concerns about the indoor smoking and his
claims about co-worker harassment.

Plaintiff has opposed

Goodyear’s motion.

DISCUSSION
A.

Subject matter jurisdiction

Defendant removed this action from New Jersey state court to
this Court pursuant to 28 U.S.C. § 1441.

This Court has

jurisdiction over this matter pursuant to 28 U.S.C. § 1332
because there is complete diversity of citizenship between the
parties and the amount in controversy exceeds $75,000.
citizenship of the parties is as follows:

The

plaintiff is a

citizen of New Jersey, and defendant is an Ohio corporation with
its principal place of business in Akron, Ohio and therefore a
citizen of Ohio.
B.

Standard for Summary Judgment

Summary judgment is appropriate where the Court is
satisfied that the materials in the record, including
depositions, documents, electronically stored information,
affidavits or declarations, stipulations, admissions, or
interrogatory answers, demonstrate that there is no genuine
issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.
3

Celotex Corp. v.

Catrett, 477 U.S. 317, 330 (1986); Fed. R. Civ. P. 56(a).
An issue is “genuine” if it is supported by evidence such
that a reasonable jury could return a verdict in the nonmoving
party’s favor.
248 (1986).

Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

A fact is “material” if, under the governing

substantive law, a dispute about the fact might affect the
outcome of the suit.

Id.

In considering a motion for summary

judgment, a district court may not make credibility
determinations or engage in any weighing of the evidence;
instead, the non-moving party's evidence “is to be believed and
all justifiable inferences are to be drawn in his favor.”
Marino v. Industrial Crating Co., 358 F.3d 241, 247 (3d Cir.
2004)(quoting Anderson, 477 U.S. at 255).
Initially, the moving party has the burden of demonstrating
the absence of a genuine issue of material fact.
v. Catrett, 477 U.S. 317, 323 (1986).

Celotex Corp.

Once the moving party has

met this burden, the nonmoving party must identify, by
affidavits or otherwise, specific facts showing that there is a
genuine issue for trial.

Id.

Thus, to withstand a properly

supported motion for summary judgment, the nonmoving party must
identify specific facts and affirmative evidence that contradict
those offered by the moving party.
57.

Anderson, 477 U.S. at 256-

A party opposing summary judgment must do more than just

rest upon mere allegations, general denials, or vague
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statements.

Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir.

2001).
C.

Analysis

Plaintiff claims that Goodyear violated New Jersey’s
Conscientious Employee Protection Act when he was constructively
discharged as a result of his complaints about indoor smoking
violations.

The New Jersey Legislature enacted CEPA 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.”

Abbamont v. Piscataway Township

Bd. of Educ., 650 A.2d 958, 971 (N.J. 1994).

In furtherance of

that goal, the statute provides, in relevant part:

“An employer

shall not take any retaliatory action against an employee
because the employee does any of the following: . . . c. Objects
to, or refuses to participate in any activity, policy or
practice which the employee reasonably believes: (1) is in
violation of a law, or a rule or regulation promulgated pursuant
to law . . .; (2) is fraudulent or criminal; or (3) is
incompatible with a clear mandate of public policy concerning
the public health, safety or welfare or protection of the
environment.”

N.J.S.A. 34:19-3(c).

A plaintiff who brings a cause of action pursuant to
N.J.S.A. 34:19-3(c) must demonstrate that: (1) he or she
reasonably believed that his or her employer's conduct was
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violating either a law, rule, or regulation promulgated pursuant
to law, or a clear mandate of public policy; (2) he or she
performed a “whistle-blowing” activity described in N.J.S.A.
34:19-3(c); (3) an adverse employment action was taken against
him or her; and (4) a causal connection exists between the
whistle-blowing activity and the adverse employment action.
Kolb v. Burns, 727 A.2d 525, 530 (N.J. Super. Ct. App. Div.
1999) (citation omitted).
The viability of plaintiff’s NJ CEPA claim hinges on whether
plaintiff suffered an adverse employment action by Goodyear as a
result of his whistle-blowing activity.

The Act defines

“retaliatory action” to mean “the discharge, suspension or
demotion of an employee, or other adverse employment action
taken against an employee in the terms and conditions of
employment.”

N.J.S.A. 34:19-2(e).

Goodyear argues that because

plaintiff voluntarily quit his job, he was not subjected to a
retaliatory action.

Plaintiff does not dispute that he quit his

job, but he contends that Goodyear’s lack of adequate
investigation into his complaints about indoor smoking and his
coworkers’ harassment of him because of his complaints caused
his working conditions to be so offensive, he could no longer
tolerate his employment and he had no other alternative but to
resign.
“[C]onstructive discharge requires not merely severe or
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pervasive conduct, but conduct that is so intolerable that a
reasonable person would be forced to resign rather than continue
to endure it.”

Dunkley v. S. Coraluzzo Petroleum Transporters,

98 A.3d 1202, 1212 (N.J. Super. Ct. App. Div. 2014) (quoting
Shepherd v. Hunterdon Developmental Ctr., 803 A.2d 611 (N.J.
2002)) (other citation omitted).

The level of proof requires a

showing of “egregious circumstances,” which is even greater
“than that required to establish a hostile work environment.”
Id.

The proofs must show “outrageous, coercive and

unconscionable” acts.

Id.

The evidence in the record, including plaintiff’s own
testimony, does not support the “egregious circumstances”
necessary to prove his claim that he was constructively
discharged.

A timeline of events is instructive:

1. On January 2, 2012, plaintiff began working at the
Pleasantville, New Jersey Goodyear store.

Goodyear

states that plaintiff was a top-notch employee with
obvious potential for advancement with the company.
2. On January 30, 2012, plaintiff complained in person to
the service manager and store manager about employees
smoking inside the facility.

Plaintiff claims that the

managers said they would address the issue, but even
after his continuing complaints, the managers said that
they did not see the indoor smoking.
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3. On February 29, 2012, plaintiff had a confrontation with
mechanic Ed Gobbo about smoking indoors.

Plaintiff

claims that Gobbo kept his cigarettes in his toolbox, and
during their interaction on that day, Gobbo blew smoke in
plaintiff’s face.
manager.

Plaintiff reported this to the store

The store manager discussed the situation with

Gobbo and the other employees, who all denied that Gobbo
blew smoke in plaintiff’s face.

The manager reviewed and

reissued Goodyear’s tobacco use policy with all the
technicians and mechanics, and required that they all resign the policy to evidence their understanding of it.
The store manager also reminded everyone about Goodyear’s
policies regarding appropriate workplace behavior.
4. Plaintiff claims that during this time, Gobbo threatened
his life if Gobbo lost his job as a result of plaintiff’s
complaints.

Gobbo states that he told plaintiff that he

was “digging his own grave,” or “digging his own hole,”
through his own actions.
5. Plaintiff claims that during this time, his coworkers
did not work collaboratively with him to fully service
and inspect customers’ cars, and that on one occasion his
coworkers would not lower a chain to allow him back into
the facility after retrieving a customer’s car.
6. On March 14, 2012, plaintiff had an altercation with
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mechanic Scott Super, who had been employed at Goodyear
for four years.

Plaintiff was helping Super clean up

some fluid Super spilled, when the situation devolved
into plaintiff asking Super to leave him alone, and then
yelling “f--- you.”

Plaintiff claims he responded like

this because Super, on at least ten prior occasions, had
threatened to kill him if Super lost his job because of
plaintiff’s smoking complaints.

Plaintiff reported this

incident to the shop manager.
7. On March 14, 2012, plaintiff called Goodyear’s internal
Integrity Hotline and raised complaints about his
coworkers smoking indoors, and their harassment of him
because of his complaints.

Plaintiff also sent an email

with his concerns to district manager, Karole Grois.
8. On March 15, 2012, as a result of his call to the
hotline, human resources manager Elizabeth McElroy
investigated plaintiff’s complaints.
the two managers and Gobbo and Super.

McElroy spoke with
She also noted

that Grois, along with the general manager, had stopped
by the store unannounced the day before and did not see
any indoor smoking or cigarette butts on the floor.

She

determined that plaintiff’s claims were unsubstantiated.
9. On March 15, 2012, plaintiff called the Atlantic County
Division on Public Health to complain about smoking
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inside the Goodyear facility.
10. On March 19, 2012, Jill Miles from the Division
conducted an unscheduled on-site investigation.

She

observed an employee smoking outside the building in a
designated area, but she did not observe any smoking
inside the building.

Miles found several old,

deteriorated cigarette butts in the basement.

Ms. Miles

states that the store manager did not adamantly deny that
there was no smoking in the building, but she also states
that she did not ask him that question directly.
11. On March 28, 2012, the Division issued Goodyear a
notice that at some point Goodyear had violated the New
Jersey Smoke Free Air Act, and reminded Goodyear that it
should follow the law prohibiting indoor smoking.

No

other action was required of Goodyear.
12. On March 28, 2012, plaintiff quit his job, claiming it
was because it was clear to him that management would not
stop his fellow employees from smoking or harassing him,
because he was suffering from panic attacks and stress,
and because any opportunities for advancement had been
lost.
13. On March 29, 2012, plaintiff called the Integrity
Hotline again.

He stated that he was feeling harassed by

his coworkers because they were ignoring him and refusing
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to work with him to get work done.

He also stated that

the service manager told him that plaintiff calling the
hotline was the worst decision he made.

He also stated

that he did not feel that this prior complaint was
resolved.
14. On May 14, 2012, plaintiff’s unemployment compensation
benefits application was approved.

Goodyear had

contested plaintiff’s application.

After a hearing, a

deputy found:

“You left your job voluntarily on 3/28/12

because you were dissatisfied with your working
conditions.

Evidence indicates that you attempted to

resolve the problems with your employer prior to leaving.
Evidence indicates that your reason for leaving
constitutes good cause attributable to the work.
eligible for benefits.”

You are

(Pl. Ex. L.)

Plaintiff contends that the investigation into his
complaints was shoddy and ineffective, his concerns about
harassment, including death threats, were never addressed, and
that the finding by the unemployment benefits deputy that there
was good cause for him to leave his employment all support his
contention that he suffered an adverse employment action by
being constructively discharged as a result of his complaints of
illegal indoor smoking.

None of these arguments is availing.
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First, even though plaintiff was dissatisfied with
Goodyear’s investigation into his complaints about indoor
smoking and the alleged harassment by his smoker coworkers,
plaintiff does not articulate what Goodyear should have done
instead.

Goodyear provides a detailed account of its immediate

responses to plaintiffs’ numerous complaints, starting with his
late February 2012 altercation with Gobbo, which resulted in a
reinforcement of the Goodyear smoking policy.

Although his

concerns about indoor smoking were addressed at the store level,
two weeks later plaintiff’s altercation with Super led to a more
formal investigation by corporate human resources as a result of
plaintiff’s call to the Integrity Hotline.
Importantly, that investigation occurred immediately, every
person involved was interviewed, and despite finding plaintiff’s
claims to be unsubstantiated, the Goodyear corporate policies
were again reinforced with all employees.

See Griffin v.

Harrisburg Prop. Servs., Inc., 421 F. App'x 204, 209 (3d Cir.
2011) (finding that the employer took adequate remedial action
where it commenced an investigation on the next business day
after the plaintiff's complaints, the complaints were
investigated and resulted in discipline and a final warning to
the harasser); Huston v. Procter & Gamble Paper Prods. Corp.,
568 F.3d 100, 110 (3d Cir. 2009) (affirming the district court's
judgment denying the plaintiff's hostile environment claim where
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the employer launched an investigation on the day the plaintiff
filed her complaint, interviewed various individuals the
plaintiff mentioned in her complaint and disciplined every
employee it found to have violated company policies); Andreoli
v. Gates, 482 F.3d 641, 644 (3d Cir. 2007) (citing Knabe v.
Boury Corp., 114 F.3d 407 (3d Cir. 1997)) (explaining in the
context of sexual harassment, finding an employer's actions to
be adequate, as a matter of law, where management undertook an
investigation of the employee's complaint within a day after
being notified of the harassment, spoke to the alleged harasser
about the allegations and the company's sexual harassment
policy, and warned the harasser that the company does not
tolerate any sexual comments or actions).
It must also be noted that from late February 2012 until
plaintiff quit on March 28, 2012, plaintiff does not provide any
evidence of indoor smoking, which was corroborated by
unannounced visits by a district manager, as well as the
Atlantic County Division on Public Health.

It is unclear what

plaintiff wanted Goodyear management to have done differently
when there was no evidence of indoor smoking, the prevention of
which was the purpose of plaintiff’s complaints and his impetus
for “whistleblowing.”
Second, the nature of plaintiff’s alleged harassment does
not support his contention that he was constructively
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discharged.

Plaintiff claims that he received numerous death

threats, but that claim is based only on his allegations, and it
is not supported by specific facts and affirmative evidence that
contradict the evidence provided by Goodyear.

Plaintiff’s other

allegations of harassment are his coworkers’ alleged overt acts,
like once locking a chain so he could not enter the building
with a customer’s car, and passive acts, like not assisting him
with car inspections and ignoring him altogether.

These

allegations do not amount to the level of harassment sufficient
to substantiate a constructive discharge claim.
Indeed, even a finding that these allegations were
considered “severe” or “pervasive” is insufficient.

See

Dunkley, 98 A.3d at 1212 (explaining that constructive discharge
requires not merely severe or pervasive conduct, and that
employee discourtesy and rudeness should not be confused with
employee harassment; an “unhappy” workplace does not equate to a
hostile work environment); see also id. (citing Cokus v. Bristol
Myers Squibb Co., 362 N.J. Super. 366, 382–83, 827 A.2d 1173
(Law Div. 2002) (“The fact that [the plaintiff's] co-workers and
superiors chose to limit their contact with [him] to business
only and otherwise ignored [him], stared/glared at [him] when
they walked by [him], and, even as plaintiff believed—talked
about [him] behind closed doors,” fails to create a hostile work
environment.), aff'd 362 N.J. Super. 245, 246–47, 827 A.2d 1098
14

(App. Div.), certif. denied, 178 N.J. 32, 834 A.2d 405 (2003);
Battaglia v. United Parcel Serv., Inc., 214 N.J. 518, 549, 70
A.3d 602 (2013) (explaining that in the context of the NJLAD,
under which the hostile environment claims are usually raised,
the NJLAD does not create a “sort of civility code for the
workplace).
Third, the proceedings for plaintiff’s unemployment
benefits do not assist his claim.

As pointed out by Goodyear,

not only does the benefits determination confirm that plaintiff
admits that he voluntarily left his job at Goodyear, the
proceedings have no import in a NJ CEPA violation case.

See

Olivieri v. Y.M.F. Carpet, Inc., 897 A.2d 1003, 1013 (N.J. 2006)
(in the context of a NJ CEPA violation claim, the New Jersey
Supreme Court finding: “The salutary purposes of our
unemployment compensation scheme . . . must inform the uses to
which unemployment compensation determinations may be applied.
When juxtaposed against the type and manner of decisions to
which we apply collateral estoppel effect, the very strengths of
the unemployment compensation scheme in respect of the award of
benefits become weaknesses: its speed of decision-making
inhibits the deliberative process; its underlying purpose, the
almost presumptive payment of unemployment compensation
benefits, is at odds with a process that values a level playing
field; and the disparity between what is at stake between an
15

employer and an employee skews the results.”).

CONCLUSION
The Court accepts that plaintiff was concerned, rightly so,
about his coworkers smoking inside his workplace.

The Court

also accepts that his coworkers who were smokers may not have
appreciated plaintiff making an issue of their smoking when he
came in as a new employee and voiced their displeasure in
inappropriate and offensive ways.

The record shows, however,

that when plaintiff voiced his complaints about indoor smoking
and the harassment he felt he received as a result, management
quickly took reasonable action to ensure that the Goodyear
employees knew the rules against smoking inside the facility,
and to investigate plaintiff’s concerns about harassment.

The

record also shows that within weeks of plaintiff’s employment
and after his complaints, the indoor smoking ceased.

Even

though the circumstances surrounding plaintiff’s whistleblowing
activity caused him to believe that his three-month job at
Goodyear was a “dead end,” plaintiff has not provided sufficient
evidence to show that the circumstances caused or tolerated by
Goodyear were so “egregious, outrageous, coercive and
unconscionable” that they amounted to an adverse employment
action by Goodyear.
Consequently, because plaintiff has not provided sufficient
16

proof to establish a genuine issue for trial on his NJ CEPA
violation claim, Goodyear’s motion for summary judgment must be
granted.

Date:

An appropriate Order will be entered.

February 25, 2015

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

At Camden, New Jersey

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