On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket Nos. L-3071-09 and L-6537-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 19, 2012
Before Judges Sabatino and Fasciale.
In these related appeals,*fn1 plaintiff Ronald R. Peralta contests the trial court's entry of summary judgment in favor of defendant Joule Staffing Services, Inc. ("Joule") and co-defendants Customized Distribution Services, Inc. ("CDS") and Direct Store Delivery, Inc. We affirm.
These are the pertinent facts, which we have considered in a light most favorable to plaintiff as the party against whom summary judgment was granted. See R. 4:46-2(c); see also W.J.A. v. D.A., 210 N.J. 229, 238 (2012); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
This case arises from the course of events following a work-related forklift accident. Plaintiff is a native of Peru who speaks only Spanish. He was forty-seven years old at the time of the accident. When the accident occurred, Joule -- a staffing agency -- employed plaintiff as a forklift operator at a warehouse operated by CDS.*fn2
Plaintiff began working for Joule as an at-will employee in 2003. His employment history with Joule had a significant interruption between 2003 and 2006, but between April 2003 and December 2007 plaintiff was placed by Joule in succession at twelve different customer work sites. Some of these work assignments were for months, others were only for a few days. Plaintiff's assignment as a forklift operator for CDS began on November 6, 2007. The assignment was made out of Joule's Passaic branch office.
At 6:25 a.m. on the morning of December 5, 2007, plaintiff was in a forklift accident at a warehouse that CDS owned.*fn3 While attempting to park the forklift, plaintiff struck a pole. According to plaintiff, the accident occurred because of a malfunction with the forklift's accelerator.
Plaintiff spoke with two supervisors at CDS and informed them that accident had occurred. According to plaintiff, one of the supervisors suggested that plaintiff should have a post-accident report "drawn up." Plaintiff agreed, but stated that he first needed to call the person who was picking him up that day to ask that person to wait for him. Plaintiff alleged that, at this point, the other supervisor, Julian Vallejo, said, "No problem, just go ahead, I'll take care of this."
An internal CDS incident report, which was unsigned, indicated that plaintiff did not complain of any injuries. It also stated that "before [plaintiff] could write a statement or answer more questions, he left the office and went home."
According to CDS, plaintiff did not follow required post-accident procedures, including submitting to drug testing. Plaintiff, however, contended that no one at CDS had requested him to undertake such drug testing. Plaintiff further contended that he had back pain after the accident, causing him to miss his next shift, which was supposed to begin the evening of the day the accident occurred and end the following morning.
On the morning of December 6, 2007, an e-mail was sent from CDS to Joule informing Joule of the damage that plaintiff's accident caused. The e-mail also advised Joule that plaintiff had failed to follow required post-accident procedures. The e-mail was silent as to plaintiff's physical condition.
That same day, the Operations Manager at CDS, Carlos Guerra, instructed his administrative assistant, Mileny Abaunza, to inform Joule that plaintiff should no longer be assigned to CDS because he had not complied with the requisite post-accident procedures after his forklift incident. Guerra testified that he took this course of action after he "was told that there was an accident. And that the person involved in the accident did not stay to fill out the paperwork."
As described by Michael Wingerter, a manager at CDS, CDS's post-accident policy requires the worker involved to submit to drug testing. According to Wingerter:
When somebody fails to go take a drug test, they're terminating themselves. All we do is notify Joule there's been an accident, he did not go take his employee post-accident drug test . . . by the process involved with, whether it's a full-time employee or whether it's an employee that we bring from a temp agency, they're no longer employed ...