On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-7604-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Rodríguez and Chambers.
Plaintiff Herbert H. Shaw appeals from the trial court order of December 19, 2008, dismissing his claim under the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8. He contends that he was disciplined and terminated from his employment in retaliation for complaints he made about the conditions at the Newark Public Library where he was employed. Defendant Newark Public Library (the Library) maintains that the disciplinary measures taken were justified and that plaintiff was terminated from his employment because he took an unauthorized leave of absence. The Library also contends that plaintiff's CEPA claim is barred by the statute of limitations. We affirm, concluding that the CEPA claim with respect to the disciplinary actions is time barred and that plaintiff's CEPA claim with respect to his termination was properly dismissed because he failed to come forward with proofs establishing a causal connection between his protected activity and his termination from employment.
We apply the same standard as the trial court when we review a trial court order granting summary judgment. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). We must look at the competent evidence "in the light most favorable to the non-moving party" and determine whether that evidence is "sufficient to permit a rational fact finder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
Summary judgment is appropriate if, after applying this test, we determine that no genuine issue of material fact is present and the movant is entitled to judgment as a matter of law. R. 4:46-2(c).
Plaintiff began his employment at the Library in 1989 where he worked as a stationary equipment repairer. He contends that during the course of his employment he came across dangerous conditions involving a malfunctioning fire alarm system, fire doors that violated governing safety standards, and exposed asbestos leaking into the general air ducts. As a result, from 2002 until as late as July 2005, plaintiff wrote to various governmental agencies advising them of these problems.
During his employment with the Library, plaintiff encountered some disciplinary problems. In April 2002, he was suspended for a period of ten days for calling the director of the library a "liar" in a letter to the director and for addressing his supervisor with profanity. In 2004, an employee complained in writing that he acted in a "belligerent and contentious manner" toward her in the presence of librarians from other libraries. In 1995, this same employee had complained that plaintiff had done work in the women's restroom without propping the door open or putting a sign on the door indicating that he was there. In July 1999, the director sent a memorandum to plaintiff advising him that he must wear closed shoes at work. Plaintiff does not dispute that these events occurred nor does he present any evidence that the disciplinary measures taken were improper or disproportionate to treatment of others.
In September 2005, the Library terminated plaintiff's employment due to his unauthorized absence from work for a period of five days. At his deposition, plaintiff admitted that he had requested the month of August off in 2005. However, his boss told him that he could only take two weeks because a new employee was starting and they could not lose plaintiff for that length of time. Despite failing to obtain permission to do so, plaintiff did not report to work the entire month of August. He did not call nor did he produce any documentation of illness during this period. As a result, plaintiff was terminated from employment. At plaintiff's request, a hearing was held on his termination on September 13, 2005. The Final Notice of Disciplinary Action states that he was removed from his position for his unauthorized absence for five consecutive days, August 25, 26, 29, 30 and 31, 2005. The effective date of the removal was September 13, 2005. Plaintiff filed and subsequently withdrew an appeal from the Office of Administrative Law.
Plaintiff then filed his CEPA complaint on September 11, 2006. On December 19, 2008, the trial court entered summary judgment in favor of the Library concluding that the claims were barred by the statute of limitations and that plaintiff failed to show a causal connection between his complaints about conditions at the Library and his termination.
On appeal, plaintiff contends that he has made out a prima facie case under CEPA, maintaining that he has set forth proofs that he had a reasonable belief that the Library was engaging in an unlawful activity, that he disclosed the wrongdoing to a supervisor, and that a causal connection ...