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Higgins v. Pascack Valley Hospital

June 10, 1999


The opinion of the court was delivered by: Pollock, J.

Argued February 1, 1999

On certification to the Superior Court, Appellate Division, whose opinion is reported at 307 N.J. Super. 277 (1998).

The primary issue is whether the Conscientious Employee Protection Act ("CEPA"), N.J.S.A. 34:19-1 to -8, prohibits an employer from retaliating against an employee who "blows the whistle" on a co-employee.

Plaintiff Josephine Higgins complained to her supervisors about misconduct by two of her co-employees, Bruce Contini and Peter Fromm. She argues that her employer, Pascack Valley Hospital ("the Hospital") retaliated against her by temporarily transferring her from the Hospital's Mobile Intensive Care Unit ("MICU"), reducing her work hours, and denying her a promotion. Higgins instituted an action in the Law Division asserting claims for violation of the CEPA, defamation, and intentional infliction of emotional distress. She seeks both compensatory and punitive damages. In addition to naming the Hospital as a defendant, she ultimately joined Dorothy Voorman-Fish, Gary Del Moro, Myron Horowitz, Louis Ycre, and Daniel DeSantis ("the individual defendants"), the supervising employees who she claims engaged in the retaliatory conduct.

After the jury returned a verdict for Higgins on the CEPA claim, the trial court entered judgment against the Hospital. The court explained that to be liable for retaliation against an employee who complains about a co-employee's misconduct, the employer must be complicit in the misconduct. As the court read the CEPA, the statute does not protect any employee who complains about a co-employee's misconduct, absent employer complicity. Here, the court found "ample evidence" of employer complicity.

The Appellate Division agreed with the Law Division's Conclusion that, absent employer complicity, the CEPA does not protect an employee who complains about misconduct of co-employees. 307 N.J. Super. 277, 296-97 (1998). According to the Appellate Division, however, the jury instructions erroneously stated that the employer could be liable even if not complicit in the co-employees' misconduct. Id. at 297-300.

Thus, the primary issue on this appeal is whether the CEPA imposes liability on an employer for retaliating against a complaining employee when the employer was not complicit in the conduct of co-employees about which the employee complained. An additional issue is whether the trial court adequately charged the jury on the liability of the employer. A third issue concerns the liability of the individual defendants. Based on the jury verdict, the Law Division entered judgment on the CEPA claim against the Hospital, but not against the individual defendants. The Appellate Division reversed the judgment against the Hospital, id. at 300, and dismissed Higgins's defamation claim. Id. at 302-04.

We granted Higgins's petition for certification. 156 N.J. 405 (1998). We hold that the CEPA protects an employee who, with a reasonable basis, complains to his or her employer about the misconduct of co-employees, even in the absence of employer complicity in the misconduct. Based on the jury's answers to the special verdict form, judgment on the CEPA claim was properly entered against the Hospital, but not against the individual defendants. Finally, we affirm the dismissal of Higgins's defamation claim.


In May 1985, Higgins began working as a part-time nurse in the MICU, which responds to calls for on-scene medical treatment. The MICU is comprised of Mobile Intensive Care Nurses ("MICNs") and Mobile Intensive Care Paramedics ("MICPs").

As an "unscheduled, per diem nurse," Higgins worked not a fixed schedule, but at the Hospital's discretion. Accordingly, the Hospital could assign Higgins periodically to staff the Hospital's emergency room.

In 1991 and 1992, Higgins complained to her supervisor at the Hospital about two separate incidents. Higgins's first complaint alleged that two MICPs, Contini and Fromm, filed the wrong forms after treating a patient. While serving as a volunteer for the Triboro Volunteer Ambulance Corp. in November 1991, Higgins went in an ambulance to the home of two firemen, Kenny Steele and his father. The two firemen had been injured during a drill. When Higgins arrived at the scene, she treated the son, Kenny, for smoke inhalation.

A Hospital MICU ambulance, staffed by Contini and Fromm, also responded to the call. According to Contini and Fromm, they originally were dispatched to treat a patient suffering respiratory distress. While going to the scene, they received a second dispatch that another patient at the same address needed medical attention. When Contini and Fromm reached the Steele home, police told them that the second patient, Kenny's father, did not require assistance. Contini and Fromm limited their treatment to Kenny. On determining that Kenny did not require immediate advanced life support, they discharged him to Higgins's ambulance for transport to the Hospital.

When Higgins reported for duty at the Hospital approximately one week later, she checked the MICU log to see what had happened to Kenny. The log indicated that the MICU call had been canceled before Contini and Fromm arrived at the scene, and that they had never treated Kenny. Consequently, Higgins concluded that Contini and Fromm had failed to complete the appropriate forms.

In accordance with state regulations, Hospital rules require MICPs and MICNs, after completing a MICU call, to fill out either a "white sheet" or a "blue sheet." If the MICU arrives at the scene and provides treatment, the MICNs and MICPs should complete a white sheet. If the call is canceled before the MICU reaches the scene, the MICNs and MICPs should complete a blue sheet. Higgins ascertained that Contini and Fromm had filed a blue sheet. Because they had treated Kenny, they should have filed a white sheet.

Higgins reported her findings to her supervisor, defendant Gary Del Moro, Coordinator and Assistant Director of the MICU. Del Moro had held a meeting two months earlier to remind the MICU staff of the importance of completing accurate paperwork. Before that meeting, two MICNs, who had filed a blue sheet instead of a white sheet after treating a patient, were fired. Del Moro told Higgins that he would investigate her complaint.

In response to questions from Del Moro, Fromm said he had completed the correct forms. Del Moro advised defendant Dorothy Voorman-Fish, the President of Nursing Services, of the potential infraction. The next morning, Del Moro checked the paperwork but, like Higgins, could find only the blue sheet. He then called the dispatching agency and confirmed that there had been dispatches for two people at the same address. Eventually Del Moro found the white sheet in Kenny's medical file in the Hospital Records Department. Although the dispatch report was missing, the white sheet was otherwise complete.

According to Fromm, Contini had completed a blue sheet, indicating that the call concerning Kenny's father had been "canceled upon arrival." Later that evening, Fromm completed a white sheet, indicating that Kenny had been treated for smoke inhalation. Fromm explained that he had failed to put the dispatch number on the white sheet because he did not have his log book with him. Although Fromm intended to put the white sheet in the MICU coordinator's box, he inadvertently left it in the emergency room.

Contini substantially corroborated Fromm's account that he had filled out a blue sheet for the canceled second call. According to Contini, he had told Higgins that the white sheet had been completed properly. Higgins, however, testified that Contini had told her that the white sheet had been fabricated after she filed her complaint.

Del Moro summarized the results of his investigation in a memorandum to Voorman-Fish in December 1991. He recommended that Contini and Fromm should be absolved of any wrongdoing. Del Moro's report also stated in part:

"[Higgins's] actions have markedly polarized this MICU. Several staff have refused to work with her, [o]thers have elected to confront her. My clinical evaluation of Josephine is that of an employee that meets expectations, however, this type of unsubstantiated accusations [sic] in addition to [Higgins's] history of not following the chain of command makes her a less than desirable employee."

Voorman-Fish thereafter reviewed MICU reports from the preceding six months to ascertain whether the MICU was complying with Hospital policies.

After completion of the investigation, Higgins met with Del Moro and Voorman-Fish. They showed Higgins the white sheet and told her that Contini and Fromm had asked that they no longer be scheduled to work with her. According to Higgins, Del Moro and Voorman-Fish criticized, but did not discipline, her for making the complaint.

Higgins's second complaint alleged that Fromm had stolen medication from a patient. In January 1992, Higgins and Fromm were dispatched to the home of a patient who was experiencing chest pains. When they arrived at the scene, Higgins attended to the patient, and Fromm stood across the bed taking notes. While Higgins attempted to insert an intravenous line into the patient's arm, she saw Fromm open a bottle of the patient's prescription medication, empty the pills into his hand, and place them into his pants pocket. Higgins neither informed the police officers who were at the scene nor confronted Fromm about the incident. She explained, "I was taking care of my patient and I was trying to think through what I had just seen."

On arrival at the Hospital, Higgins notified Linda Sacchieri, the on-duty nursing supervisor. Sacchieri told Higgins that she would "handle the situation" and that Higgins should return to work. Sacchieri and another supervisor, after reporting the incident to Voorman-Fish, questioned Fromm. Fromm showed that he had nothing in his pockets and denied taking the drugs.

Pursuant to instructions from Voorman-Fish, Del Moro obtained statements from the Paramus police and ambulance squads that had been at the patient's home with Higgins and Fromm. No one corroborated Higgins's claim.

Voorman-Fish also telephoned Higgins and asked her to submit a written statement about the incident. Higgins said that she would not submit a report until she spoke with her attorney. When Voorman-Fish did not receive anything in writing from Higgins, Voorman-Fish wrote a letter to Higgins chastising her for not responding. In fact, Higgins did respond in a letter dated January 16, 1992, which was found on a desk in the nursing office on January 17, 1992.

At trial, Fromm denied taking the patient's drugs. He acknowledged emptying the medicine bottle, but explained that he did so to determine whether the patient had taken the correct dosage. Fromm made this determination by examining the date on the bottle and then counting the remaining pills. He returned the bottle. As he explained, it "would have been irresponsible" not to check the patient's medication.

Following its investigation, the Hospital concluded that Fromm had not taken medication from the patient. Because the Hospital did not ask Higgins to participate in the ...

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