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Smith-Bozarth v. Coalition Against Rape and Abuse

March 21, 2000

JEANNE SMITH-BOZARTH, PLAINTIFF-APPELLANT,
v.
THE COALITION AGAINST RAPE AND ABUSE, INC. AND TERESA M. DOWNEY, DEFENDANTS-RESPONDENTS.



Before Judges Skillman, D'Annunzio and Fall.

The opinion of the court was delivered by: Skillman, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 15, 2000

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

This appeal involves a complaint brought under the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, by an employee of a social services agency who alleges she was wrongfully discharged for denying the head of the agency unrestricted access to files containing confidential information obtained from the agency's clients. We conclude that there is no clear mandate of public policy that prohibits the head of a social services agency from obtaining unrestricted access to the agency's files, and therefore affirm the dismissal of plaintiff's complaint.

Defendant Coalition Against Rape and Abuse, Inc. (CARA) is a nonprofit organization located in Cape May County which provides counseling and other supportive services for victims of sexual and physical abuse. Plaintiff, a certified social worker, was employed by CARA in the position of Rape Program Coordinator. In late April 1997, defendant Teresa R. Downey was appointed Acting Executive Director of CARA.

At the request of a former client, plaintiff wrote a letter to the Department of Social Services confirming that the client had sought services from CARA. Plaintiff claims that she instructed the secretary who typed the letter not to mail it until the client signed a release form. However, the letter was mailed without obtaining a release.

According to Downey, plaintiff told her on Friday, May 23, 1997, that a former client had asked her to send a letter to the Department of Social Services. Plaintiff expressed concern that the client might be attempting to defraud the Department by falsely claiming she had become pregnant as a result of a rape, because that was the only way the Department would approve benefits for the child. Downey then asked plaintiff to show her the letter and release form, but it was late in the afternoon and plaintiff went home without producing these materials. The following week, Downey obtained a copy of the letter from the secretary who typed it, but was unable to locate any authorization for release of the letter. Consequently, Downey again asked plaintiff to show her the release form. However, plaintiff went home sick and remained out of work the rest of the week. When plaintiff did not return to work the next week, Downey called her at home and said she wanted to see the client's file. But plaintiff refused to disclose the location of the file, telling Downey she "had to give her a reason before [plaintiff] would get the file or tell [Downey] where the file was on the phone."

When plaintiff returned to work on June 4, 1997, Downey told her she was being placed on probation for insubordination. Downey then again directed plaintiff to bring her the client file. However, plaintiff stated that before getting the file, she wanted to discuss her "reason for not following [Downey's] order," which was "the importance of keeping rape and incest files confidential." Downey then discharged plaintiff.

A week later, plaintiff brought this CEPA action against CARA and Downey. Plaintiff alleged that she was discharged in retaliation for her refusal to turn over confidential client files to Downey, and that she "reasonably believed that allowing Downey access to these highly sensitive materials was a violation of law, rule or regulations, and was incompatible with public policy." Plaintiff sought both compensatory and punitive damages.

Defendants moved for summary judgment on the ground that plaintiff would not have violated any law, rule or regulation, or other clear mandate of public policy by allowing Downey access to the files concerning CARA's clients. The trial court denied the motion by a written opinion which stated in pertinent part:

Plaintiff claims that she refused to allow her supervisor access to these personal diaries and journals because she believed them to be confidential and that disclosure should only be on a need to know basis. Plaintiff understood this to be both the policy in her place of employment, . . . as well as a policy embodied in, among others, the Professional Counselor Licensing Act, . . . which provides that communications between a professional counselor and persons counseled while performing counseling shall be confidential and its secrecy preserved; the Social Worker's Licensing Act, . . . which privileges a licensed or certified social worker not to disclose any confidential information acquired from a client or patient while performing social work services for that client; and the victim/counselor privilege, . . . which renders confidential communications and documents generated between a victim and counselor, disclosed in the course of the counselor's treatment of the victim for any emotional or psychological condition resulting from an act of violence.

Therefore, plaintiff has established, as a matter of law, that there exists a clear mandate of public policy respecting the confidentiality of the highly personal and intimate client diaries and journals, as required by CEPA.

After taking plaintiff's deposition, defendants renewed their motion for summary judgment. The trial court granted this motion, concluding on the basis of plaintiff's deposition testimony that she had "failed to establish that she 'reasonably believed' that turning over the specific client file at issue to then-Acting Director Downey would violate the clear mandate of public policy regarding confidentiality ...


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