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Miller v. Community Services Incorporated

June 6, 2007

DAVID A. MILLER, PLAINTIFF-APPELLANT,
v.
COMMUNITY SERVICES INCORPORATED, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-2783-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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:

Dear Don:

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 ...


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