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Johnson v. Roper

Superior Court of New Jersey, Appellate Division

July 18, 2013

LARRY JOHNSON, Plaintiff-Appellant,
v.
LEE ROPER and RESIDEX, L.L.C., Defendants-Respondents.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 6, 2013

On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-4424-10.

Mark C.G. Lawrence argued the cause for appellant (Forman & Cardonsky, attorneys; Mr. Lawrence, of counsel and on the brief).

Stacey K. Boretz argued the cause for respondents (Lindabury, McCormick, Estabrook & Cooper, P.C., attorneys; John H. Schmidt, Jr., and Ms. Boretz, on the brief).

Before Judges Ashrafi, Espinosa, and Guadagno.

PER CURIAM

Plaintiff appeals from the September 10, 2012 order of the Law Division granting defendants' motion for summary judgment and dismissing his complaint brought pursuant to the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14, against his former supervisor, Lee Roper and employer Residex, L.L.C. (Residex). Plaintiff's complaint alleged he was terminated from his position as a truck driver after having made multiple complaints that the truck was not adequately maintained and presented a safety risk while in use on roadways. Plaintiff argues that the trial court erred in determining that he had not established a prima facie case for a CEPA violation and that his testimony and pleadings sufficiently established such a violation. We disagree and affirm.

I.

Plaintiff was employed by Residex from June 2006 through November 5, 2009, as a truck driver. His complaint alleged that between May and September 2009, he "made numerous complaints, objections and/or disclosures to employees/agents" of defendants, "particularly" defendant Lee Roper, "concerning safety and maintenance issues" with his truck. On November 5, 2009, defendants terminated plaintiff's employment.

In addition to Roper, plaintiff claimed he made complaints regarding the maintenance of his truck to two co-workers. He also alleged he reported safety issues in his daily logs. In his answers to interrogatories, plaintiff expanded on the alleged safety issues and the form of his complaints:

Although I brought various issues to Mr. Roper's attention over this period of time, my most persistent and serious complaint was that the truck's engine would shut down periodically and without warning while I was in traffic leaving me with no power brakes or steering. Despite my complaints the problem was never fixed.
I do recall that in September 2009, the truck went in for service after I had been complaining about the issue with the engine shutting down and a problem with the lift gate. When it came back, the problem with the lift gate had been fixed, but Mr. Roper told me the problem with the engine shutting down was too expensive to fix.
In October 2009, I sent a letter to Mr. Roper about the problem by certified mail. Although that letter is dated at the top "May 11, 09, " that date is not true . . . . On page 3 of the letter, I mention the events of September, 2009 with Mr. Roper saying that the engine problem was too expensive to fix. According to the United States Postal Service Track & Confirm website . . . my letter was delivered at 11:02 am on October 19, 2009. At the end of the letter, I put that I was sending a copy of the letter to the D.O.T., but I did not actually send it to the D.O.T. I was just trying to get Mr. Roper's attention.
On November 2, 2009, Residex purchased a replacement truck. I drove the truck on November 3, 2009. . . . On November 5, 2009 Lee Roper terminated my employment with Residex. . . . I asked him "why?" and he ...

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