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Fleming v. Correctional Healthcare Solutions

June 07, 2000


The opinion of the court was delivered by: Per Curiam

Argued March 14, 2000

On certification to the Superior Court, Appellate Division.

This appeal concerns the Conscientious Employee Protection Act (CEPA or Whistleblower Act), N.J.S.A. 34:19-1 to -8. The central question in the appeal is the extent to which an employer can dictate to its employees the manner in which complaints of illegal workplace conduct can be made. More specifically, can an employer fire an employee on the basis of "insubordination" because the employer has directed that the complaints be submitted to a lower-level supervisor who had previously ignored the same complaints?

Plaintiff contends that CEPA permits employees to submit legitimate CEPA complaints to any individual who falls within the definition of "supervisor" as defined in N.J.S.A. 34:19-2(d). No employee can be lawfully terminated for submitting a CEPA complaint to "any individual with an employer's organization who has the authority to direct and control the work performance of the affected employee, who has authority to take corrective action regarding the violation of the law, rule or regulation of which the employee complains, or who has been designated by the employer on the notice required [by] this act." Ibid.


Prior to April 1, 1996, the State of New Jersey employed plaintiff, Barbara R. Fleming, and defendants Sally Simpson and Jennifer Miers as nurses at the Edna Mahan Correctional Facility, a prison for women.

In April 1996, the Department of Corrections "privatized" medical services at the Facility and hired an outside corporation to provide those services. In turn, that private corporation contracted with Correctional Healthcare Solutions, Inc. (CHS) to deliver the services. Fleming, Simpson and Miers were retained by CHS to work as nurses at the Facility. After the takeover, Simpson was employed as the "Evening Charge Nurse" and was Fleming's immediate supervisor. Miers was employed with CHS initially as Charge Nurse, became a nursing supervisor from mid-May 1996 until June 1996, and then in late June or early July 1996 became CHS's Health Services Administrator.

On March 12, 1996, the Assistant Commissioner of the Department of Corrections sent a memorandum to all administrators and superintendents setting forth the new policies and procedures to be implemented as a result of the passage of N.J.S.A. 30:7E-1 to -6. That statute requires inmates to pay a nominal fee for medical services and medications. N.J.S.A. 30:7E-2. Pursuant to the Commissioner's memorandum, all inmates requesting medical services or medications were to be required to complete a medical request form (Form HS-01). All inmates were to be assessed a co-payment of $5.00 for medical services and $1.00 for medications. Form HS-01 had to be completed in order to implement the co-payment.

After CHS took over, Fleming observed that medical services and medications were being provided to inmates who had not completed the required co-payment form and thus were not charged the required co-payment. She may appear to some to be a rarity in public life (a stereotype of state employees that is unjustified) - a worker who tries to save the taxpayers' money, not waste it. Beginning in late May or early June 1996, Fleming complained to her boss, Simpson, on several occasions about CHS's failure to enforce this law. Simpson and Miers acknowledge that Fleming made these complaints. It is also undisputed that these HS-01 co-payment forms were often not completed. Fleming also complained to Simpson that CHS employees were providing medications to inmates under expired physician orders, which she believed to be in violation of N.J.S.A. 2C:21-20, N.J.S.A. 45:9-22, and the Federal Food, Drug and Cosmetic Act, 21 U.S.C. §301 to §397.

The courts below found that Fleming had presented evidence from which a jury could find that her belief that illegal conduct was occurring was objectively reasonable. See Higgins v. Pascack Valley Hosp. 158 N.J. 404, 424 (1999) (holding "that the CEPA prohibits an employer from taking retaliatory action against an employee who has a reasonable basis for objecting to a co-employee's activity, policy, or practice covered by N.J.S.A. 34:19-3"). However, each court found that Fleming's whistle-blowing was not protected. In an unpublished opinion, the Appellate Division held that plaintiff did "not produce[] sufficient evidence to establish [that] her termination was a result of her complaining about CHS violations, and not due to her refusal to follow instructions from Miers regarding the submission of said complaints (through the chain of command) and for her refusal to follow orders in the dispensing of medication." We granted certification primarily to consider the chain-of-command issue. 162 N.J. 486 (1999).


Because the case arises on a motion for summary judgment, we must view the controverted facts in the light most favorable to plaintiff. Here is the time line of the events as plaintiff states it:

July 2, 1996 Fleming sent a letter to Donald Moore, then the Director of the Medical Department at the facility for CHS. Fleming's letter complained about, among other things, the dispensing of medications by CHS employees to inmates without valid physician orders and the failure to complete Form HS-01 when providing services or medications to inmates.

July 3, 1996 Miers returned the letter to Fleming with the following handwritten note attached: "Dear Barb: This should first go to Sally [Simpson]- then Sally should bring it to me and then I'll bring it to Don."

July 5, 1996 Fleming forwarded to Miers a letter entitled "Problems." This letter set forth the identical complaints identified in Fleming's July 2, 1996 letter to Moore. Fleming asserted that while she was instructed to send the letter to Simpson first, she did not do so because she believed she had a duty to bring these problems to the attention of the highest person in command and that her prior oral complaints to Simpson had not produced results.

July 12, 1996 Miers fired Fleming. Miers told Fleming that the "most important thing" was "this letter," referring to the July 5, 1996, letter Fleming had sent to Miers. Miers told Fleming that she had failed to follow the "chain of command." Miers said that Fleming's conduct constituted "willful disobedience" and that she was terminated. Miers told Fleming, for the first time, that she had received a negative performance review from Simpson. [Emphasis added.]

Plaintiff contends that this is a retaliatory firing in violation of CEPA. Defendant contends that it fired her for "insubordination" in reporting misconduct to a higher-up in combination with poor job performance exacerbated by her refusal to follow direct orders.


CEPA is remedial legislation. Barratt v. Cushman & Wakefield, Inc., 144 N.J. 120, 127 (1996). Its purpose is "to protect employees who report illegal or unethical workplace activities." Ibid. It is also intended to "encourage employees to report illegal or unethical workplace activities and to discourage . . . employers from engaging in such conduct." Abbamont v. Piscataway Township Bd. of Ed., 138 N.J. 405, 431 (1994). It is to be construed liberally to achieve its important social goal. *fn1

CEPA grants to employees the right to submit complaints of illegal or unethical workplace conduct to any individual defined as a "supervisor" in N.J.S.A. 34:19-2(d). CEPA provides, in part, that [a]n employer shall not take any retaliatory action against an employee because the employee . . . [d]iscloses, or threatens to disclose to a supervisor . . . [a] policy or practice of the employer . . . that the employee reasonably believes is in ...

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