UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

GARY MANGINI,

 Plaintiff,

v.

PENSKE LOGISTICS,

 Defendants.

Civil No. 11-0270 (NLH/KMW)

OPINION

APPEARANCES:

Joshua S. Boyette, Esquire 

Justin L. Swidler, Esquire

Richard Steven Swartz, Esquire

Swartz Swidler LLC 

1878 Marlton Pike East 

Suite 10 

Cherry Hill, New Jersey 08003 

Attorneys for Plaintiff Gary Mangini

Michael D. Homans, Esquire 

Rachel E. Licausi, Esquire

Flaster Greenberg PC 

1810 Chapel Avenue West 

Cherry Hill, New Jersey 08002 

Attorneys for Defendant Penske Logistics LLC

HILLMAN, District Judge

This matter comes before the Court by way of Defendant

Penske Logistics LLC’s motion [Doc. No. 7] seeking summary

judgment in this action pursuant to Federal Rule of Civil

Procedure 56. The Court has considered the parties’ submissions

and decides this matter pursuant to Federal Rule of Civil

Procedure 78. 

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For the reasons expressed below, Defendant’s motion for

summary judgment will be denied.

I. JURISDICTION

The Court exercises jurisdiction over this matter pursuant

to 28 U.S.C. § 1332 based on diversity of citizenship and an

amount in controversy in excess of $75,000. As set forth in the

Joint Attorney Certification filed on August 8, 2012, Plaintiff

Gary Mangini is a citizen of State of New Jersey. (Joint Att’y

Certification [Doc. No. 16] ¶ 1.) Defendant Penske Logistics

LLC (hereinafter, “Penske” or “Defendant”) is a limited 1

liability company. (Id. ¶ 2.) Based on the citizenship of its

various members as detailed in the Joint Attorney Certification,

Penske is a citizen of the states of Delaware, Maryland,

Michigan, Pennsylvania, and Tennessee. (Id. ¶¶ 2-5.) Therefore,

complete diversity of citizenship exists between the parties to

this action. The parties agree that the amount in controversy in

this matter exceeds the sum of $75,000 exclusive of interests and

costs. (Id. ¶ 7); (see also Answer to Demand for Statement of

Damages [Doc. No. 1-3], Ex. B to Def.’s Notice of Removal 1.) 

1. Defendant was improperly identified in the complaint as

Penske Logistics rather than Penske Logistics LLC. 

2

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II. BACKGROUND

Plaintiff originally filed the complaint in this action in

the Superior Court of New Jersey, Law Division for Camden County

asserting a cause of action under the New Jersey Conscientious

Employee Protection Act (“CEPA”) based on an alleged incident

that occurred with his employer, Penske, on September 25, 2010. 

(Pl.’s Compl. [Doc. No. 1-2] ¶ 1, Ex. A to Def.’s Notice of

Removal.) Defendant subsequently removed Plaintiff’s action to

this Court pursuant to 28 U.S.C. §§ 1441, 1446, asserting

jurisdiction on the basis of diversity of citizenship as set

forth in 28 U.S.C. § 1332.

Penske is a trucking and logistics firm which operates a

facility in Bridgeport, New Jersey through which Penske handles

the loading and delivery of baked goods and refrigerated food

items to retail store customers in New Jersey, Pennsylvania,

Delaware, Maryland, and Virginia. In January of 2008, Plaintiff 2

began working for Penske at the Bridgeport location as a

commercial truck driver, also referred to as a delivery route

driver, and was employed in that capacity until late September of

2010. Plaintiff’s complaint in this action arises out of an

2. Unless otherwise indicated, information regarding the facts

underlying Plaintiff’s case as set forth in this Opinion are

taken from the parties’ statements of undisputed material fact

submitted pursuant to Local Civil Rule 56.1(a) and the respective

responses thereto. (See generally Doc. Nos. 7-1, 10-2, 10-3, 12-

1.) 

3

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incident that occurred on September 25, 2010, which ultimately

resulted in the termination of Plaintiff’s employment by Penske

for his alleged “Refusal to Dispatch” on a delivery route

assigned to him. 

While the parties dispute the specific reason underlying

Plaintiff’s termination for refusal to dispatch, the majority of

the facts surrounding the September 25, 2010 incident are not in

dispute. On that day, Plaintiff arrived at work at approximately

4:00 p.m. and completed a routine pre-trip inspection report for

his delivery truck which revealed no safety issues with respect

to the truck or the equipment. At Penske’s Bridgeport facility, 3

delivery route drivers, like Plaintiff, are responsible for

loading and securing all product assigned for delivery on a

particular route. Penske delivery trucks at this facility are

typically loaded by first placing product against the side metal

walls of the trucks in order to leave the center aisle open for

the purposes of loading and unloading product at various

locations along the delivery route. 

On September 25, 2010, following his pre-trip inspection,

Plaintiff proceeded to the loading dock and was directed to load

certain product onto his truck for delivery, including metal

3. The parties agree that Plaintiff is not alleging in this case

that there was any defect with respect to the equipment or the

truck that in any way made Plaintiff’s assigned delivery that day

unsafe. 

4

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carts (referred to as “cans”) filled with donuts, bagel trays,

bread trays, totes and pretzels. During the course of loading

his truck, it became apparent to Plaintiff that he could not fit

all of the product designated for delivery on that route that day

in the side aisles of his truck. As a result, Plaintiff

requested that the loading dock supervisor, Valerie Poisson, ask

the dispatcher, Janet Stockdill, to come to the loading dock and

look at the truck to see which and how much product remained to

be loaded. Upon viewing the truck as initially loaded by

Plaintiff, both Poisson and Stockdill suggested alternative

loading arrangements for the truck which would permit Plaintiff

to load more product into the side aisles. Plaintiff heeded

these suggestions, and while he was able to load more product

onto the side aisles then he initially had, it appears that four

sides of bagels and three-quarters of a stack of pretzels

remained floating in the middle of the aisle. 

The parties agree that, at this point, Plaintiff, believing

the product load was “unsafe” for him to take out on his delivery

route that day, informed Stockdill that he “wasn’t going to work

in an unsafe [manner] to where [he] could possibl[y] hurt”

himself. (Def.’s Statement of Undisputed Material Facts in 4

4. Although the parties dispute the precise reasons why

Plaintiff believed the load was “unsafe” and the legal

implications of any such alleged belief, they do not dispute that

Plaintiff made this assertion and indicated his unwillingness to

work in a “unsafe” manner. 

5

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Supp. of its Mot. for Summ. J. [Doc. No. 7-1] (hereinafter,

“Def.’s Stat. of Facts”), ¶ 31) (citing Pl.’s Sept. 27, 2010

Email Statement to Penske, Ex. 14 to Decl. of Rachel E. Licausi

[Doc. No. 7-7] 2-3.) After Plaintiff indicated his unwillingness

to work in an unsafe manner, Stockdill informed Plaintiff that he

would be suspended until further notice for refusing to take the

assigned route. (Dep. Tr. of Janet Stockdill, Ex. 13 to Decl. of

Rachel E. Licausi [Doc. No. 7-7] 8:2-7.) 

Shortly thereafter, Stockdill called Paul Donnelly,

Operations Manager at Penske and Plaintiff’s supervisor, and

informed him of the situation. (Pl.’s Sept. 27, 2010 Email

Statement to Penske, Ex. 14 to Decl. of Rachel E. Licausi [Doc.

No. 7-7] 2-3.) Donnelly similarly informed Plaintiff that he

would be suspended until further notice for the refusal to take

work. At that point, the parties agree that Plaintiff “again

told ... Donnelly that he did not wish to complete the job if it

was unsafe.” (Pl.’s Counterstatement of Material Facts [Doc. No.

10-2] ¶ 20); (see also Def.’s Reply to Pl.’s Counterstatement of

Material Facts [Doc. No. 12-1] ¶ 20) (admitting same).

Prior to suspending Plaintiff for the refusal to dispatch,

Donnelly asked Plaintiff if he recognized what he was doing by

refusing to take the load to which Plaintiff replied that it was

unsafe. Specifically, Donnelly stated “[G]ary I want you to

understand what[’]s going to happen here[.] [Y]ou[‘re] going to

6

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be suspended until HR gets back to you and that [I] [am] going to

push for termination[.]” (Pl.’s Sept. 27, 2010 Email Statement

to Penske, Ex. 14 to Decl. of Rachel E. Licausi [Doc. No. 7-7]

3); (see also Def.’s Stat. of Facts ¶ 34.) In response to

Donnelly’s question, Plaintiff replied “[W]hy [P]aul[,] because I

don’t want to put myself in a situation ... where [I] could

possibly get hurt?” (Pl.’s Sept. 27, 2010 Email Statement to

Penske, Ex. 14 to Decl. of Rachel E. Licausi [Doc. No. 7-7] 3.) 

After this brief exchange, Plaintiff claims, but Defendant

disputes, that he told Donnelly that he would in fact “go do the

route[.]” (Id.; see also Dep. of Gary Mangini, Ex. 2 to Decl. of

Rachel E. Licausi [Doc. No. 7-4] 149:6-17, 20-24) (... I brought

up a valid point of [an] unsafe act, and I wasn’t willing to lose

my job over something that I was not comfortable doing to where I

could potentially hurt myself. ... So, ... I offered to do the

route because I didn’t want to get terminated over something I

shouldn’t have got[ten] terminated over. I was expressing

concern.”). Plaintiff contends that after he offered to take the

route in spite of his safety concerns, Donnelly told him not to

worry about it because once Plaintiff had refused the route, he

wasn’t allowed to get in the delivery truck. (Pl.’s Sept. 27,

2010 Email Statement to Penske, Ex. 14 to Decl. of Rachel E.

Licausi [Doc. No. 7-7] 3.) Plaintiff asserts that he was

instructed to go home and wait to be contacted by human resources

7

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at Penske. (Id.) 

The parties agree that at approximately 4:40 p.m. on

September 25, 2010, Donnelly suspended Plaintiff for refusal to

dispatch with intent to terminate. Subsequently, Donnelly

contacted Barbara Miletics, a Human Resources manager, and

informed Miletics that Plaintiff had refused to deliver a load

for safety reasons. Donnelly reviewed his recommendation to

terminate Plaintiff with Miletics and requested approval to

terminate Plaintiff’s employment. Miletics then requested that

Plaintiff send her a statement regarding the events of September

25, 2010, requested statements from Donnelly, Stockdill, and

Poisson, and conducted a review of incident. After conducting a

review of the incident and the relevant statements, Miletics

confirmed and approved the decision to terminate Plaintiff’s

employment effective September 28, 2010. Plaintiff’s termination

was based on a violation of Penske’s Basic Standards of Conduct

for Refusal to Dispatch, as set forth in the Penske Logistics

Handbook for Non-Union Associates, which Plaintiff admits he

received on at least two occasions. At Penske, a Refusal to

Dispatch is considered an act of insubordination and a refusal to

do one’s job, which can result in disciplinary action up to and

including suspension or immediate involuntary termination. 

8

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III. DISCUSSION

A. Standard for Summary Judgement

Presently before the Court is Defendant’s motion for summary

judgment pursuant to Federal Rule of Civil Procedure 56 seeking

judgment in its favor on Plaintiff’s CEPA claim. Summary

judgment is appropriate where the Court is satisfied that “‘the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a matter of law.’” 

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing FED.

R. CIV. P. 56). 

An issue is “genuine” if it is supported by evidence such

that a reasonable jury could return a verdict in the nonmoving

party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986). A fact is “material” if, under the governing

substantive law, a dispute about the fact might affect the

outcome of the suit. Id. “In considering a motion for summary

judgment, a district court may not make credibility

determinations or engage in any weighing of the evidence;

instead, the nonmoving party’s evidence ‘is to be believed and

all justifiable inferences are to be drawn in his favor.’” 

Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004)

(citing Anderson, 477 U.S. at 255).

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Initially, the moving party bears the burden of

demonstrating the absence of a genuine issue of material fact. 

Celotex, 477 U.S. at 323 (“[A] party seeking summary judgment

always bears the initial responsibility of informing the district

court of the basis for its motion, and identifying those portions

of ‘the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any,’ which

it believes demonstrate the absence of a genuine issue of

material fact.” (citation omitted); see also Singletary v. Pa.

Dept. of Corr., 266 F.3d 186, 192 n.2 (3d Cir. 2001) (“Although

the initial burden is on the summary judgment movant to show the

absence of a genuine issue of material fact, ‘the burden on the

moving party may be discharged by “showing” –- that is, pointing

out to the district court –- that there is an absence of evidence

to support the nonmoving party’s case’ when the nonmoving party

bears the ultimate burden of proof.”) (citing Celotex, 477 U.S.

at 325). 

Once the moving party has met this burden, the nonmoving

party must identify, by affidavits or otherwise, specific facts

showing that there is a genuine issue for trial. Celotex, 477

U.S. at 324. Thus, to withstand a properly supported motion for

summary judgment, the nonmoving party must identify specific

facts and affirmative evidence that contradict those offered by

the moving party. Anderson, 477 U.S. at 256-57. A party

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opposing summary judgment must do more than just rest upon mere

allegations, general denials, or vague statements. Saldana v.

Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001).

B. New Jersey Conscientious Employee Protection Act 

The New Jersey Legislature enacted CEPA to “protect and

encourage employees to report illegal or unethical workplace

activities and to discourage public and private sector employers

from engaging in such conduct.” Dzwonar v. McDevitt, 828 A.2d

893, 900 (N.J. 2003) (internal citation and quotation omitted). 

CEPA provides,

An employer shall not take any retaliatory action

against an employee because the employee does any of

the following:

a. Discloses, or threatens to disclose to a

supervisor or to a public body an activity, policy

or practice of the employer ... that the employee

reasonably believes is in violation of a law, or a

rule or regulation promulgated pursuant to law

...; or ...

c. Objects to, or refuses to participate in any

activity, policy or practice which the employee

reasonably believes:

(1) is in violation of a law, or a rule

or regulation promulgated pursuant to

law or, if the employee is a licensed or

certified health care professional,

constitutes improper quality of patient

care;

(2) is fraudulent or criminal; or

(3) is incompatible with a clear mandate

of public policy concerning the public

health, safety or welfare or protection

of the environment.

N.J. STAT. ANN. § 34:19-3.

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In order to prevail on a claim under CEPA, a plaintiff must

demonstrate that: (1) he reasonably believed that his employer’s

conduct was violating a law, rule, or regulation promulgated

pursuant to law, or a clear mandate of public policy; (2) he

performed a whistle-blowing activity described in N.J. STAT. ANN.

§ 34:19-3(c); (3) an adverse employment action was taken against

him; and (4) a causal connection exists between the whistleblowing activity and the adverse employment action. Sarnowski v.

Air Brooke Limousine, Inc., 510 F.3d 398, 404 (3d Cir. 2007)

(citing Dzwonar, 828 A.2d at 900).

A plaintiff proceeding under Section 34:19-3(c) “need not

show that his or her employer or another employee actually

violated the law or a clear mandate of public policy. ...

Instead, the plaintiff simply must show that he or she

‘“reasonably believes” that to be the case.’” Dzwonar, 828 A.2d

at 900 (citations omitted) (emphasis added). As the Third

Circuit has recognized, “[t]he plaintiff need not ‘set forth

facts that, if true, would constitute a violation of [a

statute],’ ... but he must establish a ‘substantial nexus between

the complained-of conduct and a law or public policy identified

by the court or the plaintiff[.]’” Bocobo v. Radiology

Consultants of South Jersey, P.A., No. 07-3142, 2012 WL 1302576,

*6 (3d Cir. Apr. 17, 2012) (citing Dzwonar, 828 A.2d at 901;

Caver v. City of Trenton, 420 F.3d 243, 254 (3d Cir. 2005)). 

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Once the plaintiff establishes a prima facie case under

CEPA, “‘the burden of production shifts to the defendant to

“articulate some legitimate, nondiscriminatory reason” for its

actions.’ ... Once the defendant articulates a legitimate reason

for the adverse employment action, the presumption of retaliatory

discharge created by the prima facie case disappears and the

burden shifts back to the plaintiff.” Blackburn v. United Parcel

Service, Inc., 179 F.3d 81, 92 (3d Cir. 199) (citations omitted). 

On a motion for summary judgment, “the court must determine

whether the plaintiff has offered sufficient evidence for a

reasonable jury to find that the employer's proffered reason for

the discharge was pretextual and that retaliation for the

whistleblowing was the real reason for the discharge.” Id. at

92-93.

IV. ANALYSIS

In moving for summary judgment, Defendant argues that

Plaintiff cannot establish a prima facie case under CEPA because

(1) Plaintiff did not have an objectively reasonable belief that

Penske’s conduct violated a law, rule, regulation or a clear

mandate of public policy; (2) Plaintiff did not perform a

whistle-blowing activity pursuant to Section 34:19-3c of the Act;

and (3) Plaintiff cannot demonstrate a causal connection between

any alleged whistle-blowing activity and his dismissal. (Def.’s

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Mem. of Law in Supp. of its Mot. for Summ. J. [Doc. 7-2]

(hereinafter, “Def.’s Mem.”), 7-24.)5

The majority of Defendant’s motion argues that Plaintiff is

unable to establish the first element of a prima facie case under

CEPA — that the plaintiff reasonably believed that his employer’s

conduct was violating a law, rule, or regulation promulgated

pursuant to law, or a clear mandate of public policy. The New

Jersey Supreme Court has previously explained that this element

“does not require a plaintiff to show that a law, rule,

regulation or clear mandate of public policy actually would be

violated if all the facts he or she alleges are true. Instead, a

plaintiff must set forth facts that would support an objectively

reasonable belief that a violation has occurred.” Dzwonar, 828

A.2d at 901. On a motion for summary judgment, where the

defendant asks the court to determine as a matter of law that a

plaintiff’s belief was not objectively reasonable, the role of

this Court is limited. As both the Third Circuit and the New

Jersey Supreme Court have explained, the Court “must make a

threshold determination that there is a substantial nexus between

the complained-of conduct and a law or public policy identified

by the court or the plaintiff.” Caver, 420 F.3d at 254 (citing

Defendant concedes, however, that Plaintiff’s 5

“termination for Refusal to Dispatch constitutes an ‘adverse

employment action’” as required under the third element of a

prima facie CEPA case. Accordingly, the Court need not address

the third element of the CEPA analysis in this Opinion.

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Dzwonar, 828 A.2d at 901). Where the Court finds that a

substantial nexus exists at the summary judgment stage, then it

must be left to the jury to “determine whether the plaintiff

actually held such a belief and, if so, whether that belief was

objectively reasonable.” A district court “overstep[s] its

bounds by deciding for itself whether [a plaintiff’s] complaints

were ‘trivial’ or ‘reasonable.’ This is an issue of fact that

has been specifically reserved for the jury under New Jersey case

law.” Caver, 420 F.3d at 255.

In arguing that Plaintiff cannot establish the first element

of his CEPA claim, Defendant asserts that Plaintiff’s testimony

demonstrates that “the sole reason he refused to take the load

was concern about possible personal injury to himself” with

regard to moving extra product around and possibly straining his

back, and that such “a personal concern about one’s own potential

injury — and not a legal violation or threat to the public

interest — is not protected by CEPA.” (Def.’s Mem. 12.) 

Defendant argues that Plaintiff’s refusal to take the load was

based on a personal preference and his own individual standards

as to risk of injury which is insufficient to allege a violation

of the law. (Id. at 13.) Defendant characterizes Plaintiff’s

objection to taking his assigned load on September 25, 2010 as a

“disagreement with Penske’s lawful business decision not to cater

to his personal preferences and concerns” and that this sort of

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private dispute is not actionable under CEPA. (Id. at 14.)

Defendants further argue that Plaintiff’s vague reference in

his September 27, 2010 email to Penske Human Resources manager

Barbara Miletics to “new federal regulations” which granted

Plaintiff the right to “refuse any work” which he deemed was

unsafe is not an adequate basis to support his CEPA claim because

Plaintiff must identify the law or policy allegedly violated. 

(Id. at 15.) According to Defendant, Plaintiff’s “inability to

identify a ‘new regulation’ that gives drivers the right to

refuse work they personally deem unsafe dooms his CEPA claim, as

a matter of law.” (Id.) Defendant also argues that Plaintiff’s

belated attempt to cite federal regulations regarding the

strapping and securing of cargo as referenced in his complaint

also cannot save his CEPA claim because Plaintiff never

previously expressed any concerns about the strapping or securing

of the product with respect to the September 25, 2010 incident,

including in his follow up email statement to Human Resources. 

(Id. at 15-16.) Thus, Defendant argues that Plaintiff’s concerns

“lacked ‘any substantial nexus’ to the regulations he cited posttermination relating to the securing and strapping of product,

and Plaintiff cannot now attempt to retroactively change the

nature of his pre-termination concerns and beliefs.” (Id. at

16.) Finally, Defendant asserts that allowing Plaintiff’s claims

to proceed would have extreme public policy consequences because

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Plaintiff is asking the Court to “expand CEPA to hold ... that

... any New Jersey employee can avoid work by asserting it would

violate his or her own personal standards of safety, regardless

of whether there is any alleged legal violation.” (Id. at 18.)

In considering Defendant’s arguments, the Court, in deciding

the present motion for summary judgment, cannot make credibility

determinations or engage in any weighing of the evidence. 

Marino, 358 F.3d at 247. Rather, the Court is required to

believe the evidence of the nonmoving party and draw all

reasonable inferences in Plaintiff’s favor. Id. Here, Plaintiff

has come forward with sufficient evidence which, drawing all

reasonable inferences in his favor, demonstrates that a

substantial nexus exists between the complained-of conduct and a

violation of a law, rule, regulation or clear mandate of public

policy. While Defendant consistently argues that Plaintiff’s

safety concern was merely a personal preference and an

unwillingness on Plaintiff’s part to risk injury to himself which

does not qualify under for protection under CEPA, the record

reflects that is not the case. Here, Plaintiff’s repeated

assertions that he had “safety” concerns regarding the product

load in his truck and that he refused to work in an unsafe manner

clearly reflect more than a personal disagreement with his

employer. Plaintiff has come forward with evidence, which when

believed, demonstrates that Plaintiff’s assertions were tied to

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his understanding that a federal law or regulation, although he

could not specify exactly which one(s), was being violated when

Penske attempted to require Plaintiff to take a load which he

deemed unsafe. 

Specifically, Plaintiff represents that during the course of

the September 25, 2010 incident, while on the phone with

Donnelly, Plaintiff “tried to bring up to ... Donnelly the

[Compliance-Safety-Accountability] training ... and stated that

this initiative and the federal regulations the initiative is

based on allowed a driver to refuse work he believed was unsafe.” 

(Pl.’s Counterstatement of Material Facts [Doc. No. 10-2] ¶ 21.) 

Plaintiff also points to the Compliance-Safety-Accountability

handout attached as Exhibit C [Doc. No. 10-4] to Plaintiff’s

Counterstatement of Material Facts, which demonstrates that the

“CSA 2010 [was] an initiative to improve the efficiency and

effectiveness of the [Federal Motor Carrier Safety

Administration’s] enforcement and compliance program[.]” This

handout also demonstrates that improper loading of cargo and

improper cargo securement are considered as one of seven Behavior

Analysis and Safety Improvement Categories used to calculate

safety performance under the CSA. (CSA Handout, Ex. C to Pl.’s

Counterstatement of Material Facts [Doc. No. 10-4] 1.) 

In response, Defendant admits that “at some point Plaintiff

brought up the Compliance Safety Accountability training and that

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Mr. Donnelly told [Plaintiff] the training was irrelevant because

it had nothing to do with the volume of product in” Penske’s

trucks. (Def.’s Reply to Pl.’s Counterstatement of Material

Facts [Doc. No. 12-1] ¶ 21) (citing Dep. Tr. of Paul Donnelly,

Ex. 32 to Decl. of Rachel E. Licausi [Doc. No. 12-3] 88:9-13). 

When questioned regarding whether Plaintiff was, on September 25,

2010, referencing the safety training he had a few weeks earlier,

Donnelly testified that Plaintiff “was referencing that he could

decline taking a load because he thought it was unsafe and I said

it wasn’t relevant, that [type of] safety [issue], to this

[type], and it was not.” (Dep. Tr. of Paul Donnelly, Ex. 32 to

Decl. of Rachel E. Licausi [Doc. No. 12-3] 90:1-6.) Donnelly

further testified that Plaintiff “referenced the training as

being unsafe and he could refuse” but that “[t]here is nothing

that was ever mentioned in that training about being able to

refuse to take out other than a piece of power equipment.” (Id.

at 91:4-8.) In Donnelly’s view, Plaintiff must not have “pa[id]

attention toward the training” because “it had nothing to do with

out product in our trailers.” (Id. at 91:14-16.) 

Additionally, Plaintiff’s September 27, 2010 email statement

to Human Resources, made just two days after the alleged

incident, expressly states that Plaintiff “refused to work [in

an] unsafe” manner because “about 3 weeks ago, we signed

paperwork on the new federal regulations ... one [of] which said

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that the driver has the power to refuse any work or equipment

that they deem unsafe.” (Pl.’s Sept. 27, 2010 Email Statement to

Penske, Ex. 14 to Decl. of Rachel E. Licausi [Doc. No. 7-7] 3.) 

Subsequently, in his complaint and his brief in opposition to

Defendant’s motion for summary judgment, Plaintiff has identified

various Federal Motor Carrier Safety Regulations, regulations and

standards issued by the Department of Labor under the

Occupational Safety and Health Act, and a public policy in the

state of New Jersey favoring workplace safety as set forth in the

New Jersey Worker Safety and Health Act. (Pl.’s Response in

Opp’n to Def.’s Mot. for Summ. J. [Doc. No. 11] (hereinafter,

“Pl.’s Opp’n”), 6-19.) 

Plaintiff sets forth in great detail, how a substantial

nexus exists between these regulations, laws, and mandates of

public policy (including the proper loading and strapping of

cargo, the avoidance of workplace conditions which pose an

unacceptable risk of personal injury to workers unloading and

loading commercial delivery trucks, and preventing workplace

conduct which can endanger New Jersey employees with risks of

physical harm under New Jersey law) — and the conduct complained

of in this action (i.e., Plaintiff’s refusal to work in an

allegedly unsafe manner). Defendant’s reply to Plaintiff’s

opposition fails to challenge, in any meaningful or persuasive

way, the substantial nexus which Plaintiff contends exists

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between his unwillingness to delivery the product load in

question because of safety concerns regarding falling or shifting

cargo and personal injury from improper working conditions in

loading and unloading the vehicle, and the various regulations

and law Plaintiff has identified to the Court. 

Drawing all reasonable inferences in favor of Plaintiff and

believing the evidence offered in opposition to the present

motion for summary judgment, the Court agrees with Plaintiff that

a substantial nexus exists in this case between the complained-of

conduct and the laws, regulations, and public policy identified

by Plaintiff. Accordingly, the remaining issues of whether

Plaintiff actually held a belief that a violation of law had

occurred and, if so, whether that belief was objectively

reasonable are left for the jury to resolve. While Defendant

clearly argues that any such belief by Plaintiff was not

objectively reasonable, this is an issue of fact specifically

reserved for the jury to determine and the Court would

“overstep[] its bounds by deciding for itself whether

[Plaintiff’s] complaints were ‘trivial’ [as Defendant asserts] or

‘reasonable.’” Caver, 420 F.3d at 255.

To the extent Defendant takes issue with Plaintiff’s

purported failure to specifically cite, at the time of the

September 25, 2010 incident and subsequently, a specific law or

policy allegedly violated by Defendant’s conduct, the Court finds

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that failure of no moment. (Def.’s Mem. 15.) First, the Court

notes that during the September 25, 2010 incident and in his

statement to Human Resources, Plaintiff expressly referenced

federal regulations regarding the CSA training program, an

initiative designed and implemented by the Federal Motor Carrier

Safety Administration, which included information on proper

loading and securing of cargo. Moreover, New Jersey courts

clearly recognize that while “the objecting employee must have an

objectively reasonable belief, at the time of objection or

refusal to participate in the employer's offensive activity, that

such activity is either illegal, fraudulent or harmful to the

public health, safety or welfare, and that there is a substantial

likelihood that the questioned activity is incompatible with a

constitutional, statutory or regulatory provision, code of

ethics, or other recognized source of public policy[,]” CEPA does

not require the objecting employee to have “[s]pecific knowledge

of the precise source of public policy” allegedly being violated. 

Mehlman v. Mobil Oil Corp., 707 A.2d 1000, 1015 (N.J. 1998). 

“The object of CEPA is not to make lawyers out of conscientious

employees but rather to prevent retaliation against those

employees who object to employer conduct that they reasonably

believe to be unlawful or indisputably dangerous to the public

health, safety or welfare.” Id. at 1016.

In this case, the Court is satisfied that with respect to

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the first prong of the analysis for CEPA, Plaintiff has

demonstrated a substantial nexus between the complained of

conduct and the law, regulation, or public policy allegedly

violated and thus it is for the jury, and not the Court, to

decide whether Plaintiff actually held such a belief and whether

that belief was objectively reasonable. 

In addressing the remaining contested elements of

Plaintiff’s CEPA cause of action, the Court finds that Defendant

has not met is burden to establish the absence of a genuine issue

of material fact because Defendant essentially relies on the same

arguments regarding Plaintiff’s inability to demonstrate that he

held a reasonable belief that Defendant’s conduct violated a law,

rule, regulation or mandate of public policy in order to show

that Plaintiff did not engage in whistle-blowing activity as

outlined under CEPA. However, for similar reasons to those set

forth on the first element of Plaintiff’s claim, the Court

rejects these arguments. 

Moreover, Defendant also argues that Plaintiff cannot

establish the requisite causal connection between any whistleblowing activity and his dismissal. This argument fails because

it presupposes that Plaintiff did not engage in any protected

conduct, and Defendant asserts that Plaintiff was terminated for

his refusal to dispatch based on his unwillingness to risk

personal injury. Defendant further argues that “[n]owhere in the

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record is there any indication that anyone at Penske perceived

him to be making a claim of a legal violation[.]” (Def.’s Mem.

23.) However, this argument is belied by the evidence submitted

by Plaintiff demonstrating that he specifically referenced his

CSA training – an initiative of the Federal Motor Carrier Safety

Administration – in his initial conversation with Donnelly just

prior to his suspension on September 25, 2010, and again in his

September 27, 2010 statement to Human Resources. 

6

V. CONCLUSION

For the foregoing reasons, Defendant Penske Logistics LLC’s

motion for summary judgment [Doc. No. 7] is denied. An Order

consistent with this Opinion will be entered. 

Date: September 28, 2012 /s/ Noel L. Hillman 

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.

5. Defendant’s argument that summary judgment is also warranted

because Plaintiff cannot establish that Penske’s explanation for

his termination was false and pretextual is similarly unavailing. 

Defendant contends that its “legitimate, non-discriminatory

reason for [Plaintiff’s] discharge [was] his violation of a basic

standard of conduct at Penske” for refusal to dispatch. (Def.’s

Mem. 26.) Defendant asserts that this proffered reason is

sufficient to shift the burden to Plaintiff to demonstrate that

Penske’s reason for his termination was a pretextual cover-up for

unlawful retaliation. However, this argument presupposes that

Plaintiff had no objectively reasonable belief that a violation

of law, rules, regulation or public policy occurred by Penske

based on a safety issue, such that Plaintiff could not refuse the

work that day based solely on his personal belief that he would

be injured — thereby justifying Plaintiff’s termination for

refusal to dispatch. 

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