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Spragg v. Shore Care

July 19, 1996


On appeal from Superior Court of New Jersey, Law Division, Atlantic County.

Approved for Publication July 18, 1996.

Before Judges Shebell, Stern and Newman. The opinion of the court was delivered by Shebell, P.j.a.d. Stern, J.A.D., Concurring.

The opinion of the court was delivered by: Shebell

The opinion of the court was delivered by


Defendants, Shore Care and Shore Memorial Hospital, a licensed home health care agency and a hospital, respectively, are the former employer of plaintiff, Dale Spragg, a male certified home health aide (CHHA). Plaintiff sued defendants alleging sex discrimination in violation of the New Jersey Law Against Discrimination ("LAD"), N.J.S.A. 10:5-1 through -42, because of their gender-based policy of assigning male aides to male patients only, whereas female aides were allowed to care for patients of both genders. Defendants contended that there was a bona fide occupational qualification ("BFOQ") justification for the policy premised on the privacy rights of its female patients who refused to be treated by male aides. Defendants moved for summary judgment. After denial of the summary judgment motion, the action was tried to a jury which rejected the BFOQ defense and awarded plaintiff $3,657 for lost wages, $42,500 for emotional distress, and $27,000 for punitive damages. On or about November 28, 1994, defendants filed a motion for a new trial or for judgment notwithstanding the verdict. On December 16, 1994, the Judge denied the motion.

On appeal, defendants contend that the court should have ruled as a matter of law that they proved the BFOQ defense, that the court erred in excluding from evidence affidavits signed by female patients who refused to be seen by male aides and in submitting to the jury the issue of punitive damages, and that the emotional distress award constitutes a miscarriage of Justice.

Plaintiff, a resident of West Cape May, earned his business degree from Stockton State College in 1985. He held numerous jobs in different fields, including that of retail sales clerk, landscaper, hotel desk clerk, and life insurance agent. The longest he was in any one position appears to be two years.

In May 1992, plaintiff, while unemployed, became interested in the health care field, as he had a couple of female friends who were nurses. He began training with defendant, Shore Care, for the job of home health aide. Shore Care is a home health agency that provides health care services to patients in their own homes. Among other services, health aides provide personal care to patients, including bathing them either in the bed, shower, or tub; taking care of their toileting needs; brushing their teeth; shampooing their hair, and the like. If time allows, the aides may perform housekeeping functions for the patients. A standard patient visit lasts two hours, three-quarters of the time being spent on providing personal services.

The training class for the home health aides lasted approximately three weeks, at the Conclusion of which the trainees took their tests for state certification. Plaintiff took and passed this test, received his certification, and was hired as a home health care aide by defendant. Plaintiff was certified, by the State. His certification was good for one year and plaintiff allowed it to expire without renewing it, after termination of his employment by defendant.

According to plaintiff, there was no difference in the training given to male and female home health aides. All trainees were taught how to administer personal care to both male and female patients. Plaintiff asserted he was never told that defendant assigned patients according to their sex. However, a supervising registered nurse who taught the trainees, claimed that another male aide in plaintiff's training class asked about defendant's assignment policy and that she specifically told the class that male aides cared for male patients only.

Plaintiff claimed that he had been told, when hired, that he would be working in lower Cape May County. When that did not happen, he complained. The company then divided the home health aides into teams in order to reduce their travel time. Plaintiff was assigned to Team 3, which comprised all of Cape May County as well as Margate and Longport, and plaintiff found he was going mostly to the upper end of his team's geographic area. Plaintiff felt that every time he asked to be assigned to patients closer to his home, he got the "runaround." Plaintiff maintained that, because he was assigned only to male patients, there were times when there were no patients for him to see. The female home health aides, however, were assigned to both sexes. Plaintiff spoke to several representatives of defendant about this policy.

First, plaintiff spoke to Isabel Mosca, who told plaintiff that she worked in personnel and had no involvement with the patient scheduling. Plaintiff next spoke to his immediate supervisor, Deborah Canty. Plaintiff told her that the policy was unfair and demeaning because it prevented him from doing his job. According to plaintiff, she said there was nothing she could do. Canty testified that she told plaintiff to talk to Joseph Aiello, defendant's director of home and convalescent services. When plaintiff continued to complain about the distances he had to travel, Canty also spoke to Judith Demby, director of clinical services, on his behalf and asked if plaintiff's first and last scheduled visits each day could be assigned closer to his home.

Plaintiff went to another supervisor nurse, Ann Hall, on several occasions. According to plaintiff, Hall told him there was nothing she could do and said, "This is just a job. It's not a career." Plaintiff said he was hurt by this comment because he considered the job a career and he had had a lot of hopes and expectations for it. Hall testified that she could not remember ever making such a statement. Moreover, she asserted that plaintiff's complaints had to do mostly with the amount of travelling he was doing and the financial burdens such travel put upon him. She said he complained that his car was old, did not get good mileage, and needed frequent repairs. Hall suggested some budgeting ideas to him. When plaintiff asked Hall if he could be assigned female patients closer to him, Hall told him that she had never known a female patient willing to be cared for by a male aide.

Plaintiff claimed that when he spoke to Demby, she agreed with him that he was being discriminated against, but she told him that it would eventually work in his favor because male nurses were promoted to administrative and managerial positions more quickly than female nurses. Demby denied ever making such a statement. Rather, she said that when plaintiff told her he was thinking about a career in nursing, she told him that nursing was a good career and that he should pursue it. She told him to talk to the male registered nurses at Shore Memorial Hospital, one of whom had become a vice president of the hospital.

Plaintiff claimed that Demby also told him the segregation policy was for his own "protection." Plaintiff took this to mean that defendant was afraid of getting sued by female clients. Demby admitted that she made this statement, and that she told plaintiff it was not defendant's intent to discriminate, but that the nature of the work required female patients to be cared for by only female aides. She pointed out that he chose to live where he did and that he got reimbursed for his travel. Nonetheless, she agreed to speak to the person who did the scheduling in order to have his first and last patients assigned closer to home. She said that, after her conversation with plaintiff, she spoke to both the scheduler and Aiello. Aiello assured her that it was impossible to change the gender segregation policy. Plaintiff admitted that, after he complained, defendant did try to accommodate him by giving him male patients closer to home. Plaintiff never spoke to Aiello directly, as had been recommended.

Plaintiff maintained that no one ever told him that the reason for the policy was the privacy interests of the female patients or that female patients had refused home health care from male aides. Plaintiff claimed that the gender segregation policy for male aides forced him to travel greater distances than the female aides. Although plaintiff was reimbursed for both his travel time and his travel expenses, he claimed that it took a month to get reimbursed and that, in the meantime, he had to put money out of his own pocket for the added gasoline and car phone expenses. Plaintiff believed that these expenditures would have been less if he had been assigned to care for patients of both sexes because there were female patients in areas closer to where he lived.

Plaintiff admitted he had no firsthand knowledge of anyone else's assignments, and that many factors went into assigning and scheduling patients, not just distance from the patients' homes to the aides' homes. Plaintiff agreed that he would not have complained about the gender policy if he had been assigned to all male patients closer to home in lower Cape May County, but noted this solution would not have resolved his "personal feelings" about being discriminated against. Plaintiff also agreed that if any particular female patient preferred not to be seen by a male home health aide, that was her right.

On February 25, 1993, after plaintiff had been working for defendant for nine months, plaintiff was at a patient's home in Ocean City when he received a call from his scheduler to report next to a patient's home in Mizpah. Plaintiff believed this location was outside of his team's geographic area, even though the scheduler assured him it was not. Plaintiff said he could not pay for the gas to get to there and asked if there were female clients closer that he could see. He was told that this was not the issue -- the issue was that a patient needed care. Ann Hall called plaintiff back and told him that he could not refuse to see a patient. According to plaintiff, when he told Hall that he did not have the money, Hall told him that if he did not go, he was terminated. Plaintiff was aware that home health aides were not allowed to refuse any assignment.

Hall testified that she offered to give plaintiff the money, but he said his car was too old for all this wear and tear and that defendant could find someone else to go. She tried to calm plaintiff down, but when she called him back a half hour later, he still had not changed his mind. When Hall warned him that, "you know what that means," plaintiff said that he was returning to the office to turn in his things. He did not finish any of his schedule that day, and turned in his equipment and asked for a receipt.

At the time of his termination, plaintiff was averaging a forty-hour work week, earning $7.62 an hour. He contacted several other home health care agencies in the area where he lived, but none paid as well as defendant. He could not find an acceptable job in the health care field, and ultimately, after being out of work from February 25 to June 1, 1993, took work as a head cook and manager of a restaurant.

During his three-months of unemployment, plaintiff had trouble paying his bills and was hounded by creditors. He claimed that he was a "wreck" over his situation and that he had to trade in his 1988 Grand Am with 100,000 miles on it for a 1984 Grand Prix with 128,000 miles. On cross-examination, plaintiff admitted that he had debts before he was hired by defendant. The parties stipulated that the most plaintiff could be awarded for lost pay was $3,657.

Joseph Aiello, defendant's director of home and convalescent services, was responsible for the overall operations of both the hospital and home health care agency. During the time plaintiff was employed by defendant, the agency had 550 patients, half of whom were female and sixty-five percent of whom were over the age of sixty-five. During that time, defendant employed slightly more than 100 home health aides.

Defendant received approximately 200 patient referrals per month. Scheduling a patient started with a physician's referral and a physician's order which indicated how often the patient needed to be seen, for how long, and during what time of day. Defendant next considered the location of the patient and what aides were available. The agency tried to match the closest available aide to the patient because the less time an aide spent travelling, the more time could be spent with a patient and more patients per day could be seen. However, schedules changed continually because of changes in the doctors' orders, changes in the patients' schedules, and the hiring and firing of aides. The agency called the patient to set up the actual appointment and tell them who their aide would be.

When the agency first started, in 1985, there were no male home health aides. Aiello hired the first male aide in the fall of 1987. Because many of the nurses employed by defendant told Aiello that female patients would never accept personal care from a male aide, Aiello set out to prove them wrong. He believed that women would accept such services from a male. Accordingly, Aiello began assigning patients to the male aide regardless of the gender of the patient. On each occasion that Aiello called the patient to tell her that a male aide would be coming to her home, Aiello was "universally" rejected by the patient or her family.

Aiello continued to try to assign female patients to the male aide for a period of three months. He spoke to approximately seventy-five female patients during this period of time, out of a total female population of 150 to 175 patients. Not one female agreed. The result was that the male aide's time was underutilized and that scheduling took four times as long as usual in order to try and find a "match." Aiello also testified that he tried to convince the female patients to change their minds but that he was unsuccessful.

It was at that point that Aiello decided to establish the practice of assigning male home health aides to male patients only. The policy was never formalized or put into writing -- it was just a "practice" that was handed down. Aiello believed that if he had insisted on scheduling male aides with female patients, the patients would have gone elsewhere and defendant's revenues would have declined.

Aiello thought about alternatives to the gender segregation practice but the only ones he could come up with were unsuitable. For example, he considered buddying a male and female aide together on each visit, allowing the male aide to perform only the non-personal services. However, this was neither workable nor economically feasible since it would double the costs of each visit, which costs were not reimbursable by Medicare and Medicaid. Sending two aides for each visit would not cut the time spent on each patient in half because the overwhelming majority of time was spent on the personal services; also, defendant would have to reimburse two aides for their travel time to each house unless the two aides travelled together all day, and this would even further complicate the scheduling process. Aiello considered not hiring any male aides but believed that such a practice would have been discriminatory. Between 1987, when he hired the first male aide and the hiring of plaintiff in 1992, defendant had hired three other male aides.

Aiello said he never intended to harm anyone by the practice. He had intended only to honor the personal privacy rights of defendant's patients, and did not foresee that there would be any harmful effect on the male aides. No aide, male or female, was allowed to pick and choose his or her assignments. He would never allow, however, a patient to choose the race or religion of an aide because such a criterion was totally unrelated to any clinical factor. When asked whether his agency could ask each female patient if they wanted a male aide, Aiello responded that this practice would open the door to other customer preferences as well, such as race and religion. When asked what he would do if a male patient refused a female aide, Aiello responded that he would take that into account when scheduling but that he did not develop a uniform practice for male patients because they had never expressed any qualms about a female aide being assigned to them.

When asked what a hospital would do if a female patient refused to be treated by a male doctor, Aiello responded that a hospital was different from a patient's home and that a doctor was different from a health aide. When questioned about the practices of his nearest competitors in the home health care field, Aiello stated that other agencies did not provide as much in the way of personal services as did defendant. At the time Aiello instituted this policy for defendant, he was unaware of any other agency's policy with regard to gender. However, he maintained that all of defendant's competitors currently had the same policy.

Deborah Canty testified at length regarding the process for rendering personal care to a patient at his or her home. First, the aide must completely undress the patient and drape him or her with a towel. A woman patient had to have her legs spread open and she had to be washed from front to back in the perineal area, with the aide making sure that the labia and folds were cleansed. The aide had to be sure that the remains of any bowel movement or urination were cleaned off the skin. If the patient were bed-bound, the aide would have to assist the patient in getting to the commode and would have to take off the patient's diaper or remove her panties. If the patient had an internal catheter, the aide had to drain the urine from it and then clean the catheter which, in the case of a female patient, was near the vaginal opening. The rectal and anal areas would then have to be cleaned to be sure they were free of bacteria which could then be introduced into the urethra. Aides were further instructed to check the patient's body for bruises, redness, swelling, or lumps in such areas as the breast, groin, and buttocks. Canty recalled an incident where a male and female team ...

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