JAMES DUDLEY v. IEW CONSTRUCTION GROUP

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6108-06T16108-06T1

JAMES DUDLEY,

Plaintiff-Appellant,

v.

IEW CONSTRUCTION GROUP,

Defendant-Respondent.

_____________________________________________

 

Submitted April 21, 2008 - Decided

Before Judges A.A. Rodr guez and C.S. Fisher.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-842-05.

F. Michael Daily, Jr., LLC, attorney for appellant (Amy B. Sunnergren, on the brief).

Fox Rothschild, LLP, attorneys for respondent (Michael S. Hanan, of counsel and on the brief).

PER CURIAM

Plaintiff filed this action, alleging he was terminated by defendant in retaliation for his pursuit of workers' compensation remedies. He appeals an order granting defendant's motion for summary judgment.

In reviewing a summary judgment, appellate courts apply the same standard that trial judges must apply. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). This standard requires that we consider whether the evidential material presented on the motion, when viewed in the light most favorable to the opponent, is sufficient to allow a rational factfinder to render a verdict in favor of the motion's opponent. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). In other words, "when the evidence 'is so one-sided that one party must prevail as a matter of law,' the trial court should not hesitate to grant summary judgment," but when the evidential material reveals a genuine dispute about a material fact, then summary judgment is precluded. Ibid. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)). Viewing plaintiff's allegations in the light most favorable to him, we must assume the truth of the following set of circumstances.

Plaintiff was, for many years, a member of a union through which he obtained work on heavy construction projects. The methodology for obtaining employment in this field was established by a collective bargaining agreement, which provided that union members would be hired out of the union hiring hall to different employers, such as defendant. The employment of any union member by an employer is not for any fixed duration of time. And the availability of construction work, as well as the length of a particular project, is determined by numerous variables, including the nature and duration of the construction project, the skills required, the weather, and the time of year. As a general rule, winters provide less opportunity for work than warmer seasons.

By way of this system, plaintiff worked for defendant for approximately six months in 1996. He also worked for defendant from April through December 1997, and from March 1997 through October 1998. Plaintiff claims he was injured on the job in October 1998 when he fell from a scaffolding. He was treated by defendant's workers' compensation doctors from July 1999 through June 2004, but continued to work for defendant during that same time period.

In September 2001, plaintiff was involved in another accident while working for defendant. Again, this did not cause an interruption in his relationship with defendant. However, a doctor suggested that plaintiff be placed on "light duty." Defendant complied with this restriction, which the doctor ultimately lifted in April 2002.

Plaintiff alleges that Chuck Worthington, his supervisor with defendant at the time, questioned plaintiff in April 2002 as to why plaintiff was still seeing a doctor, allegedly saying, "what's this worker's comp stuff about?" Plaintiff claims that Worthington told him that this was his last appointment and that, once off light duty, plaintiff would be terminated. A few days later, plaintiff was told he was off light duty and would be in the field with Worthington. Plaintiff worked for Worthington for about one week thereafter and then was offered another position with defendant that continued until November 2002. At that time, plaintiff was laid off but soon returned to work for defendant until January 2003. His lay off at that time continued until March 2003 when plaintiff was once again re-hired by defendant through the union hall.

In March 2003, plaintiff filed a workers' compensation claim petition based on the 1998 accident. His employment with defendant continued notwithstanding that filing until November 2003, at which time, as had been the pattern of his relationship with defendant, plaintiff was laid off. But he was hired again by defendant in March 2004. A week later, a project superintendent discharged plaintiff due to poor job performance; it is undisputed that this project superintendent was unaware of plaintiff's pending workers' compensation action.

Plaintiff filed this action, alleging that his termination in March 2004 was in retaliation for his commencement of a workers' compensation action a year earlier. To establish a claim of retaliatory discharge pursuant to N.J.S.A. 34:15-39.1, a plaintiff must prove (1) he made or attempted to make a claim for workers' compensation benefits, and (2) he was discharged in retaliation for making that claim. Galante v. Sandoz, Inc., 192 N.J. Super. 403, 407 (Law Div. 1983), aff'd, 196 N.J. Super. 568 (App. Div. 1984), appeal dismissed, 103 N.J. 492 (1986). There is no dispute that plaintiff met the requirements of the first prong; the matter at hand requires consideration of the second.

Plaintiff argues that there was a pattern of retaliatory conduct that started in November 2002 from which an inference of retaliatory motive could be drawn. Applying the Brill standard, we conclude that no rational factfinder could draw such an inference from these facts. First, plaintiff has incongruously argued that the pattern of retaliatory conduct commenced before he filed his workers' compensation claim petition. Moreover, plaintiff was repeatedly hired by defendant from the union hall over the course of many years, both before and after the filing of the compensation claim. The fact that there were periods during which plaintiff was not employed does not evidence a pattern of retaliatory conduct but only a course of conduct rooted in the nature of the construction business in this region of the country.

The only evidence that might arguably suggest retaliation are Worthington's statements. Those statements, however, were made in April 2002, nearly two years before plaintiff's March 2004 discharge, thus contradicting any connection between the statements and the later discharge. Although timing is not the sine qua non of proving or disproving a connection between two events, certainly the fact that plaintiff was rehired following what occurred with Worthington strongly eviscerates the contention that Worthington's statements reveal defendant's intent to retaliate against plaintiff. Moreover, it was undisputed that the supervisor who ultimately discharged plaintiff in March 2004 had no knowledge of plaintiff's workers' compensation claim, thus further negating any connection between the workers' compensation action and the March 2004 discharge.

For these reasons, we conclude that no rational factfinder could have rendered a verdict in plaintiff's favor and that the trial judge correctly granted defendant's motion for summary judgment.

Affirmed.

This statute declares that "[i]t shall be unlawful for any employer or his duly authorized agent to discharge or in any other manner discriminate against an employee as to his employment because such employee has claimed or attempted to claim workmen's compensation benefit from such employer. . . ."

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A-6108-06T1

May 2, 2008