PETER C. OKOSA v. THE CENTER FOR FAMILY SUPPORT, INC.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

PETER C. OKOSA,

Plaintiff-Appellant,

v.

THE CENTER FOR FAMILY

SUPPORT, INC., and DOROTHY

MUTHONI,

Defendants-Respondents.

________________________________________________________________

December 23, 2013

Submitted July 30, 2013 Decided

Before Judges Espinosa and Hoffman.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-6009-10.

Peter C. Okosa, appellant pro se.

Garrity, Graham, Murphy, Garofalo & Flinn, P.C., attorneys for respondents (John Badagliacca, of counsel; Stephen F. Balsamo, on the brief).

PER CURIAM

Petitioner appeals from an order that granted summary judgment to defendants, dismissing his complaint. We affirm.

We derive the facts from defendants' Statement of Material Facts submitted in support of their summary judgment motion.1

Plaintiff was employed as a residence manager of a group home by the Center for Family Support, Inc. (CFS), for approximately four months when his at-will employment was terminated in July 2009. Plaintiff contended he became aware of certain discrepancies in ledgers regarding three residents' petty cash accounts, shortfalls of $11.97, $9.63, and $12.47, respectively, in May 2009. He further contended that he reported the shortfalls to co-workers, Stella Mainga and defendant, Dorothy Muthoni, who was his direct supervisor. He scheduled a meeting with another supervisor, Donna Messina, after the July 4, 2009 weekend to discuss his allegations with her.

However, on July 2, 2009, an event occurred that prompted action by CFS. Plaintiff arrived at work at the group home at approximately 9:30 a.m. and discovered a sewage overflow in the basement. According to one of the counselors at the home, plaintiff chose to leave the group home to take a resident to a medical appointment without calling a plumber to address the sewage overflow or taking other action to remediate the condition, despite her advice to do so. That afternoon, a representative of the Division of Developmental Disabilities made an unannounced visit to the group home, observed the sewage overflow, and reported his observations. As of the afternoon, plaintiff had still not called a plumber to address the sewage overflow.

After conducting an investigation, Sharon Lax, CFS Human Resources Director, determined to terminate plaintiff's employment for his improper handling of the sewage overflow incident. At the time she terminated plaintiff's employment, she had no knowledge of plaintiff's allegations that residents' funds had been mishandled. Plaintiff was terminated on July 21, 2009.

In this lawsuit against CFS and Muthoni, plaintiff alleged he was wrongfully terminated because he was about to "blow the whistle" on the alleged mishandling of funds.

Defendants filed a motion for summary judgment, arguing that plaintiff's termination was not causally related to his claimed whistleblowing activities. The return date for the motion was July 13, 2012. Therefore, pursuant to Rule 4:46-1, any opposition was required to be filed no later than ten days before the return date.

Plaintiff did not timely file opposition and the record does not reflect any request for an adjournment of the motion. The trial court granted defendants' summary judgment motion, noting on the order that the motion was unopposed.

However, plaintiff filed opposition to the motion, late in the afternoon of July 12, the day before the return date. Despite the fact that the order revealed his opposition had not been considered by the court -- and we do not suggest that the trial court was required to do so -- plaintiff did not file a motion for reconsideration, which would have afforded the trial court the option of considering his untimely opposition.

Instead, he filed an appeal from the order in which he ignores his failure to timely oppose the motion and asks this court to reverse the order on the merits, including the opposition that was not considered by the trial court. He raises the following arguments in this appeal:

POINT I

SHARON LAX WAS AWARE OF APPELLANT'S WHISTLE BLOWING ACTIVITIES, BUT DID NOT WANT TO HEAR THEM, AND FACE THE TRUTH.

POINT II

APPELLANT CAN ESTABLISH CAUSAL CONNECTION BETWEEN HIS WHISTLE BLOWING ACTIVITIES AND JOB TERMINATION.

POINT III

RESPONDENTS VIOLATED THE PROTECTIVE COURT ORDER THEY SOUGHT AND OBTAINED THROUGH THEIR OWN MOTION.

POINT IV

APPELLANT BELONGS TO ONE OF THE EXCEPTIONS OF THE AT-WILL EMPLOYMENT DOCTRINE.

POINT V

LORRAINE THOMPSON LIED IN HER TESTIMONY.

POINT VI

THE UNEMPLOYMENT APPEALS TRIBUNAL DID NOT BELIEVE THAT THIS APPELLANT WAS FIRED FOR POOR JOB PERFORMANCE OR MISCONDUCT.

POINT VII

RESPONDENTS CHANGED FROM JURY TRIAL OPTION TO NON-JURY TRIAL BECAUSE THEY BELIEVED JUDGE VENA WOULD GRANT THEIR MOTION FOR SUMMARY JUDGMENT JUST AS HE GRANTED MOST OF THEIR MOTIONS IN THE PAST.

"The jurisdiction of appellate courts rightly is bounded by the proofs and objections critically explored on the record before the trial court by the parties themselves." State v. Robinson, 200 N.J. 1, 19 (2009). Therefore, plaintiff's opposition to the summary judgment motion is not properly before us.

Moreover, our review of plaintiff's opposition reveals that its deficiencies were not limited to its untimeliness. In filing his opposition, plaintiff was also required to comply with the requirements of Rule 4:46-2(b), which included filing a response to defendants' Statement of Material Facts that either admitted or disputed each of the facts in defendants' statement. Moreover, to dispute any material fact, plaintiff was required to substantiate his contention with specific reference to the record. The rule explicitly provides:

[A]ll material facts in the movant's statement which are sufficiently supported will be deemed admitted for purposes of the motion only, unless specifically disputed by citation conforming to the requirements of paragraph (a) demonstrating the existence of a genuine issue as to the fact.

[Ibid. (emphasis added)]

Because plaintiff did not respond to defendants' statement by specifically disputing any statement with citations to the record to support his opposition, the statements contained in defendants' Statement of Material Facts are deemed admitted. As a result, the record fails to show the existence of a genuine issue of fact and summary judgment was properly granted.

Affirmed.

1 As we note, infra, these facts are deemed admitted due to plaintiff's failure to dispute them pursuant to Rule 4:46-2(b).