June 6, 2007
DAVID A. MILLER, PLAINTIFF-APPELLANT,
COMMUNITY SERVICES INCORPORATED, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-2783-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 30, 2007
Before Judges Kestin, Graves and Lihotz.
Plaintiff David Miller appeals from a summary judgment dismissing his complaint against his former employer, Community Services, Inc. (CSI). The complaint alleged violations of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8. We affirm.
The facts are not disputed. In his complaint, plaintiff described the events leading up to his termination as follows:
Plaintiff's job at CSI was to assist in the assembly of individual hot meals for a Meals On Wheels program. Plaintiff was also responsible for packing the assembled meals into insulated containers which would be used while delivering the meals in the community. Plaintiff was also responsible for delivering the meals.
Plaintiff was threatened with termination on 20 October 2004 unless he complied with a CSI policy to use hot packs while delivering the meals.
Plaintiff believed the hot packs were ineffective and on October 20, 2004, he expressed his views in a letter to Donald Lippincott, defendant's transport supervisor/coordinator:
I indeed like delivering Meals On Wheels, but it is a mistake to assume that I would acquiesce to a veiled threat that my job is dependent upon my use of hot packs regarding the delivery of hot meals.
Although I once studied thermodynamics, which is sometimes known as the flow of energy, for two semesters while I was an undergraduate, it requires mere common sense to understand that the use of hot packs is utterly worthless for the following reasons: a hot pack cannot be considered to be a heat source any more than a hot meal is considered to be such a source, and given the number of times a rigid cooler or a worthless unsealed insulated bag is opened during the course of the deliveries, it cannot be credibly argued that the heat given off by a hot pack in any way influences the loss of heat from a hot meal, especially in winter. Consequently I will not be using hot packs. Of course it is your prerogative to recommend my immediate dismissal.
You may elect to retain my services in which case I will continue to perform my duties energetically, cheerfully, and intelligently. However, do not again, even in a joking manner, speak to me in a disrespectful or threatening way. If you elect to retain my services, this matter will not be discussed again, nor will I tolerate such an attempt at discussion by anyone.
If you elect to retain my services, I now inform you that I will not be attending the safety course on 6 November or on any other weekend date.
Plaintiff sent a copy of his letter to James G. Sigurdson, defendant's Executive Director. In a certification dated December 1, 2005, submitted in support of defendant's motion for summary judgment, Sigurdson stated, hot packs are "industry standard products and are specifically designed for Meals on Wheels Programs throughout the country."
On October 22, 2004, two days after plaintiff wrote his letter to his supervisor, he was terminated. On November 1, 2004, plaintiff asked defendant to provide him with "formal notice of my termination and the reason for it," and on November 5, 2004, defendant's executive director sent the following letter to plaintiff:
Dear David, Your termination from employment with CSI was due to your refusal to comply with your supervisor's directive and our policy concerning the use of hot blocks in meal transport bags.
In your letter dated October 20, 2004, you indicate that your supervisor, Don Lippincott, instructed you to use hot blocks in your meal transport bags. You further state that you would not use hot blocks. Your statement of refusal to comply with your supervisor's directive and our policy, regardless of your opinion on the appropriateness of the way in which it was communicated to you or the efficiency of the hot blocks, is insubordinate behavior and is not acceptable. You do not dictate the terms of your employment with this agency or determine which policies and procedures you will comply or not comply with.
Our policies and procedures are established to preserve the integrity of our programs and services and to ensure the safe and effective delivery of these programs and services to those whom we are contracted to serve. They are not suggestions and therefore are not optional.
It would have been helpful to us if you chose to use your "common sense skill" as referred to in your letter to me dated November 1, 2004, to help us develop a more efficient method of delivering meals rather than as a opportunity to express your disapproval of our policy and refusal to comply.
Copies of your Terms of Employment, job description, policy concerning the use of hot blocks, and Personnel Handbook section regarding Termination for Behavior and/or Attitude Related and Dispute Resolution Procedure issued to all employees via payroll distribution of July 9, 2004, have been enclosed for your records.
A plaintiff must meet four criteria to establish a prima facie case of discriminatory retaliation under CEPA:
(1) he or she reasonably believed that his or her employer's conduct was 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. 34:19-3c; (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.
[Dzwonar v. McDevitt, 177 N.J. 451, 462 (2003).]
In this case, plaintiff alleged he had a valid CEPA claim because he was terminated for refusing "to follow a practice or policy that I believe was fraudulent." The trial court concluded, however, that plaintiff's "refusal to use hot packs is not a whistle blower activity":
[T]he argument in its purest form is that Mr. Miller says he objects to and refuses to participate in the use of hot packs for Meals on Wheels because he says it is fraudulent to use hot packs that are ineffective.
Well, the problem I have with it is when you carry it through and you logically think about it, it wouldn't be fraudulent to the recipient because the recipient is getting the meals in the temperature they're getting. So it can't be fraudulent to them. They're not being told it's hot when it's not. So that doesn't work.
Plaintiff clearly disagrees with CSI's policy and consider[s] the policy a useless one. However, plaintiff is required to show that the CSI policy was a fraud. CSI admits that their policy could be more effective and plaintiff's policy may be more effective. However, under a CEPA claim plaintiff must show a fraudulent activity and the [c]court, and not the jury, is to decide whether the plaintiff has successfully and adequately established a prima facie element of a CEPA claim. Mehlman v[.] Mobile Oil, [153 N.J. 163, 187 (1998)].
As for prong two, the plaintiff is not a whistle blower. In order to be a whistle blower, the challenged conduct of the employer must be wrongful or violative of a clear mandate of public policy. Young v[. Schering Corp., 275 N.J. Super. 221, 235 (App. Div. 1994), aff'd, 141 N.J. 16 (1995)].
There is no harm to the general public. I mean, they were getting the meals cooler, cold as opposed to warm. There's no fraud being perpetrated on them. Mr. Miller was not being asked to conduct an illegal activity. He was being asked to conduct what he finds, based on his background, training, and experience, to be ineffective policies and argues that, at best, they should have simply terminated him. He didn't really report this. It wasn't done as a whistle blower, if you will. It was simply a refusal on his part to go along with what the company believed were reasonable requirements to at least attempt to keep the food warm.
So there can be no reasonable belief on Mr. Miller's part that he was either violating any law, rule, or regulation. There can be no reasonable belief, if you will, that he was really a whistle blower.
We are in substantial agreement with the trial court's findings and conclusions. "The purpose of CEPA is to protect employees who report illegal or unethical work-place activities." Barratt v. Cushman & Wakefield, 144 N.J. 120, 127 (1966). CEPA "was not intended to provide a remedy for wrongful discharge for employees who simply disagree with an employer's decision, where that decision is entirely lawful." Young, supra, 275 N.J. Super. at 237. To withstand defendant's summary judgment motion, plaintiff was required "to furnish the trial court with enough by way of proof and legal basis to enable the court to determine as a matter of law that the plaintiff has identified the asserted violation with adequate particularity for a jury's consideration." Klein v. UMDNJ, 377 N.J. Super. 28, 40 (App. Div.) (internal quotation marks omitted) (quoting McLelland v. Moore, 343 N.J. Super. 589, 601 (App. Div. 2001), certif. denied, 171 N.J. 43 (2002)), certif. denied, 185 N.J. 39 (2005). That did not happen in this case. We therefore affirm substantially for the reasons expressed by Judge Buczynski in his comprehensive oral decision on January 6, 2006.
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