NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 10, 2013
On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. L-2018-10.
Bell, Shivas & Fasolo, P.C., attorneys for appellant (Joseph J. Bell, of counsel; Valerie Fasolo, on the briefs).
Methfessel & Werbel, attorneys for respondents (Eric L. Harrison, of counsel and on the brief; Leslie Koch, on the brief).
Before Judges Fisher, Espinosa and Koblitz.
Plaintiff Robert Dukin, an auto-mechanic who worked for the Mount Olive Township Board Of Education (MOBE), appeals from a February 17, 2012 order dismissing his claim pursuant to the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-3(a), and granting summary judgment to defendants MOBE, MOBE Transportation Department, Diane Davidson, Brian Lewis, Larrie Reynolds and Susan Decker. Because Dukin demonstrated a nexus between the adverse employment action of non-renewal of his annual contract and his complaints about both the safety of a school bus and the working conditions in the garage, we reverse.
Summary judgment is appropriate where there are no genuine issues of material fact. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 532 (1995). Viewing the facts in a light most favorable to the nonmoving party, a court must determine whether the materials presented "are sufficient to permit a rational fact finder to resolve the alleged disputed issue in favor of the nonmoving party." Carmichael v. Bryan, 310 N.J.Super. 34, 47 (App. Div. 1998). Credibility findings are not germane for judicial determination on summary judgment. Brill, supra, 142 N.J. at 540. We use the same standard as the trial court when we review a summary judgment decision. Henry v. N.J. Dep't. of Human Servs., 204 N.J. 320, 330 (2010).
We accept the facts as presented by Dukin, as we must in this posture of the case. Dukin was employed by MOBE from 2007 until 2010, rising from the position of mechanic's helper to mechanic before his contract was not renewed in 2010. He became a union shop-steward during his employment.
In 2009 defendant Diane Davidson assumed the role of supervisor of transportation. Her responsibilities included supervising the mechanics in the garage as well as the bus drivers and bus aides. When the mechanics met with Davidson on September 17, 2009, she told them "if you go above me in any which way, I will find a way to bury you." Davidson memorialized this meeting in a memorandum stated that she "asked mechanics to follow [the] chain of command" and that the mechanics "must come to [their immediate supervisors] before going to [the] Board office."
Dukin was suspended from work from November 2 through November 6, 2009 for not putting away equipment and using disrespectful language. Dukin filed a grievance and these charges were ultimately dropped. He was reimbursed for lost wages during the suspension. Shortly thereafter, on November 20, 2009, Dukin was also issued a written reprimand (action memo) for "maintaining sloppy work" and "dangerous work conditions." He lost this appeal and the reprimand remained in his personal file. On December 8, Dukin was cited for insubordination.
In early January 2010, Dukin was assigned to complete a quarterly inspection on bus 19 and prepare an inspection report. After checking the bus, Dukin told his supervisor, lead mechanic Brian Lewis, that there was "a severe air leak in the air tank" on bus 19's brake fittings. Lewis told Dukin to take the bus out of service until after the State bus inspections were completed. Dukin did not go into work for the next two days because of illness. On the morning he returned to work, Dukin saw a driver attempting to take bus 19 on the road. The driver told Dukin that the bus had passed state inspection. Dukin knew that state Motor Vehicle Commission (MVC) inspectors were on site checking MOBE's bus fleet and he thought that Lewis sent bus 19 for inspection in order to avoid a state audit of the garage because too many vehicles were off the road for repairs. After confirming that the school bus had not been repaired, Dukin told the driver not to take the bus because there were severe problems with the brakes and that "if it were to lose air, she could lose brake pressure and eventually get into an accident. . . ." The driver told Dukin that Lewis gave her permission to place bus 19 back into service. Dukin informed the on-site MVC inspector of the problem. He told the inspector that Lewis had sent bus 19 to the inspectors without repairing the brakes or informing them of the problem. The inspectors confirmed Dukin's concerns and told Lewis that the bus was to be taken out of service.
On January 19, 2010, Dukin received two more action memos, one for operating a vehicle engine without proper ventilation while other employees were working, and a second for calling his union ...