SAMUEL PERRY v. POSTAL TRANSPORTATION INC CLIFFORD FINKLE JR INC

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Superior Court of New Jersey, Appellate Division.

SAMUEL PERRY, Plaintiff–Appellant, v. POSTAL TRANSPORTATION, INC., and CLIFFORD B. FINKLE, JR., INC., Defendants–Respondents.

DOCKET NO. A–2115–12T4

Decided: April 24, 2014

Before Judges Alvarez and Ostrer. Fernando Iamurri, attorney for appellant. Drinker Biddle & Reath LLP, attorneys for respondents (John A. Ridley and Meredith R. Murphy, on the brief).

Plaintiff Samuel Perry appeals the December 7, 2012 denial of reconsideration of an earlier grant of summary judgment to defendants Postal Transportation, Inc., and Clifford B. Finkle, Jr., Inc. We affirm.

Perry is a part-time truck driver employed by Postal, a non-union employer.   He has never been employed by defendant Clifford B. Finkle, Jr., Inc., a related company, or another related company not a party to this proceeding, CBF Trucking, Inc. The drivers for Clifford B. Finkle, Jr., Inc. and CBF Trucking, Inc., are represented by different locals of the same union.   Postal and CBF provide hauling and trucking services for the United States Post Office.   The companies are apparently operated by the same business entity.   Postal, on an emergency basis, may pick up trips when drivers from CBF Trucking are unable to complete deliveries, after the union's collective bargaining agreement obligations are satisfied.

Perry is a full-time employee of United Parcel Service (UPS), and drives on a shifting weekly schedule.   He is not able to confirm his UPS driving assignment for the coming week until the afternoon or evening of the Thursday prior.   This means his availability for part-time driving for Postal is constricted by notice of his UPS schedule.

Perry sued Postal and Clifford B. Finkle, Jr., Inc., for racial discrimination — presumably under the Law Against Discrimination (LAD), N.J.S.A. 10:5–1 to –49 — and settled the matter in August 2010.   On March 14, 2011, plaintiff filed this lawsuit, alleging that, in retaliation for exercising his rights, his part-time hours were “substantially cut,” and his “ ‘runs' [were] sabotaged by the [d]efendants.”   Plaintiff was actually on disability leave for a portion of the months at issue.

Judge Christine A. Farrington assumed “for the sake of argument” that plaintiff established a causal link between the protected activity (the LAD litigation) and the restriction of his hours.   Once having posited that plaintiff established a prima facie case, the judge then shifted the burden to defendants, whom she concluded refuted the presumption of retaliation by demonstrating legitimate reasons for their course of conduct.

Specifically, the trial judge stated:

Defendants prove [p]laintiff was a part-time employee who did not work a fixed schedule, that the schedule was subject to a combination of factors including available work, available drivers, and route limitations (i.e. whether the route was subject to a CBA and requiring Teamster drivers be given the right of first refusal).   Further, [d]efendants contend that they chose to consolidate full-time driver schedules in the interest of increasing operating efficiency and profits.   The [c]ourt finds these to be legitimate business interests.   Additionally, the written warnings [issued to plaintiff] were based upon articulated company policies perceived to have been violated.   The [c]ourt finds [d]efendants have met their burden and the onus now shifts back to the [p]laintiff to prove that the articulated reason is a pretext for the retaliation.   Plaintiff has offered no evidence to overcome this presumption.   To overcome summary judgment in a retaliation case an employee must submit competent evidence that casts significant doubt upon the employer's proffered legitimate reason so that a fact finder could reasonably conclude it was fabricated.  El–Sioufi v. St. Peter's Univ. Hosp., 382 N.J.Super. 145, 173 (App.Div.2005).   In his deposition and in his brief in response to the [d]efendant's motion [p]laintiff alleges that there are other employees of [d]efendants that can corroborate [his claims], but no corroboration beyond his self-serving statements are offered by way of either depositions or affidavits.   Moreover, [p]laintiff admits that he was unable to accept or refused work on account of conflict with work schedules and overtime at his full-time job, [his] disability, and a perception that work offered was insufficient to justify his time and expenses.   Finally, the incidents complained of by [p]laintiff wherein a dispatcher failed to give him a key to access his destination location and the misstatement of a different, now deceased employee with regard to [p]laintiff's eligibility to work at a certain facility, were one-time events, which no reasonable jury could find constituted retaliation.   As such [p]laintiff has failed to meet the burden required of him under the framework established by Jamison v. Rockaway [Twp. Bd. of Educ., 242 N.J.Super.   436 (App.Div.1990) ].

In denying reconsideration, decided without oral argument, the judge merely stated that the motion was denied because it “failed to meet [the] requirements of [Rule ] 4:49–2.”

On appeal, Perry raises the following points for our consideration:

POINT I

THE LOWER COURT FAILED TO APPLY THE PROPER STANDARD IN CONSIDERING APPELLANT'S MOTION FOR RECONSIDERATION.

POINT II

THE LOWER COURT FAILED TO CONSIDER SIGNIFICANT PROBATIVE EVIDENCE IN DECIDING THE MOTION FOR RECONSIDERATION.

POINT III

THE LOWER COURT BASED [ITS] DENIAL OF APPELLANT'S MOTION FOR RECONSIDERATION UPON A PALPABLY INCORRECT AND IRRATIONAL BASIS.

We consider plaintiff's claims to lack sufficient merit to warrant discussion in a written opinion.   R. 2:11–3(e)(1)(E).   We therefore affirm the court's denial of reconsideration of the grant of summary judgment essentially for the reasons stated by Judge Farrington in her initial decision.

Plaintiff's proofs, even drawing every favorable inference in his favor as required on a motion for summary judgment, simply did not establish the requisite adverse employment action by the employer.   Plaintiff did not demonstrate any causal link between the alleged limits on his trips — the claimed adverse employment action — and his protected activity.   See Jamison, supra, 242 N.J.Super. at 445.

To prevail on a motion for reconsideration, a moving party must show the original decision was based on plainly incorrect reasoning, the judge failed to consider evidence, or there is new evidence not previously available.   Cummings v. Bahr, 295 N.J.Super. 374, 384–85 (App.Div.1996).   Plaintiff failed to meet that standard.   The judge neither misconstrued the record of material facts nor the standard for the grant of summary judgment.

Affirmed.

PER CURIAM

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