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Zappasodi v. State of New Jersey Department of Corrections

November 08, 2000


Before Judges Wallace, Jr., Carchman and Lintner.

The opinion of the court was delivered by: Wallace, Jr., J.A.D.


Argued: September 27, 2000

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

Plaintiff filed a complaint against defendants alleging, inter alia, that he was discharged from his employment in retaliation for his reporting overtime abuses by staff nurses, in violation of the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -8 (CEPA). Plaintiff amended his complaint to include a count for fraudulent concealment of evidence. During trial, the judge dismissed the fraudulent concealment of evidence count. A jury found in favor of defendants. On appeal, plaintiff contends that the trial judge erred (1) in failing to charge the jury with pretext and burden shifting; and (2) in dismissing the count for fraudulent concealment of evidence. We affirm.

Plaintiff was hired as the Medical Director at Riverfront State Prison in April 1994. The Administrator of Riverfront was Donald Lewis. The Department of Corrections issued a directive to reduce overtime in all departments. Plaintiff reviewed the overtime of the nursing staff and found that some nurses were abusing overtime. He discovered that some nurses would work overtime on their days off and then call out sick on their regularly scheduled days causing other employees to replace them and collect overtime. He reported the overtime abuse problem to Lewis and to Dr. Fares, the head peer review consultant and the medical liaison between the medical departments at various correctional institutions and the Commissioner of Corrections.

After his initial attempts to reduce overtime were unsuccessful, plaintiff initiated a no overtime policy in early summer 1994. By the end of the summer there was little or no overtime being worked. Plaintiff reported his success to Dr. Fares and Lewis. Some of the nursing staff disliked the no overtime policy and filed administrative grievances against plaintiff.

In late August 1994, plaintiff prescribed Percocet, a schedule II narcotics pain killer, for a dying inmate. Plaintiff followed the necessary procedures in securing the Percocet from a local pharmacy. The prison pharmacist Joseph Ward later discovered that unused Percocet tablets were given to other inmates. Ward advised plaintiff and the nurses that it was illegal to provide one inmate's prescribed narcotics to another inmate. Plaintiff ordered Ward to return the Percocet to stock. Ward offered to destroy the medication but would not agree to store it.

Plaintiff ordered Nurse Amos to secure the medication, but she also refused. Plaintiff decided to take the Percocet home. He ordered a nurse to count each pill. While another physician and a nurse observed him, plaintiff sealed the Percocet in a container, and then took the Percocet home.

Unknown to the plaintiff, an investigation was initiated by Internal Affairs regarding his handling of the Percocet. When plaintiff returned to work on Tuesday morning, he was met in the lobby by members of the Internal Affairs and the Federal Drug Enforcement Agency. Plaintiff gave a written statement concerning the removal of the Percocet.

Investigator Randall confiscated various materials from plaintiff's office. Plaintiff obtained a receipt for the material which included medical records, prescription pads, and a red binder belonging to plaintiff. Plaintiff had retained duplicates of incoming and outgoing prison memos in the red binder, and generally used it as a means of "keeping track" of all the problems existing at Riverfront including the overtime abuse issue. Plaintiff had Investigator Randall sign a receipt indicating that Internal Affairs confiscated the red book and that it was in the possession of the State. Plaintiff claimed that the red binder contained nursing schedules "showing [his] interpretation of fraud and conspiracy, numerous sheets showing nursing errors, medication errors, nursing sheets, copies of inserts from log books and/or patient records, cash overtime sheets, and all incoming memos from March 11, 1994 to August 26, 1994."

On September 14, 1994, Internal Affairs completed its investigation of the Percocet incident. On September 26, 1994, Lewis terminated plaintiff effective October 7, 1994. Although Lewis gave no reason for termination in the letter, later he maintained that he was dissatisfied with plaintiff's performance as the medical director. Lewis concluded that plaintiff failed to resolve scheduling difficulties, to meet the needs of the prisoners, and to solve the overtime problems. It was Lewis's view that the overtime remained out of control.

Plaintiff filed a complaint against the Department of Corrections and Lewis, alleging he was discharged in violation of CEPA. Later, he filed an amended complaint to include a count for fraudulent concealment of evidence for the failure to return his documents to him.

Defendants' motion for summary judgment was denied. Trial commenced on January 12, 1999 before a jury. At the end of the trial, the judge granted defendants' motion to dismiss plaintiff's claim for fraudulent concealment of evidence. The jury ...

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