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Gerard v. Camden County Health Services Center

March 06, 2002

SUSAN GERARD AND DESMOND GERARD, HUSBAND AND WIFE, PLAINTIFFS-APPELLANTS
v.
CAMDEN COUNTY HEALTH SERVICES CENTER, A SUBDIVISION OF CAMDEN COUNTY; ANITA GEIS, ADMINISTRATOR OF LONG TERM CARE NURSING; ANTHONY PETERS, CHIEF EXECUTIVE OFFICER OF CAMDEN COUNTY HEALTH SERVICES CENTER; RICHARD DODSON, DIRECTOR OF HUMAN RESOURCES OF CAMDEN COUNTY HEALTH SERVICES CENTER; THOMAS LUCARINI, R.N.; ROBERT HALL, DIRECTOR OF NURSING, DEFENDANTS-RESPONDENTS



On appeal from Superior Court of New Jersey, Law Division, Camden County, L-5803-98.

Before Judges Conley, A. A. Rodríguez and Lefelt.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 21, 2002

Plaintiff, former Assistant Director of Nurses at the Camden County Health Services Center (CCHSC), appeals a summary judgment in favor of CCHSC dismissing her suit brought pursuant to the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8. The motion judge concluded the record was insufficient to establish that the activity she engaged in, to which CCHSC allegedly retaliated, was protected activity within the meaning of CEPA. We reverse.

At the outset, as the appeal arises within the context of a motion for summary judgment, we consider the motion record most favorably for plaintiff and draw all inferences therefrom which a reasonable fact-finder might draw. Brill v. Guardian Life Ins. Co. of America, 142 N.J. 520, 540 (1995).*fn1 The impetus for the alleged retaliatory activity was plaintiff's refusal to accede to a request by CCHSC's hospital administrator, Anita Geis (Geis), to serve disciplinary charges upon head nurse Georgiana Young (Young) subjecting Young to a three-day suspension. The charges were based upon five alleged errors in a patient form called "Minimum Data Sets" (MDS).*fn2 Initially, Geis had directed another supervisor to serve the charges upon Young. That supervisor refused for reasons the record does not reflect.

Plaintiff, then, was directed to serve the charges. She first investigated them. Accepting her version of what occurred, as we must at this junction, she discovered that four of the five alleged errors did not involve Young and the fifth apparently involved a mistaken misdating that occurred during a training period on the MDS forms. Another supervisor had previously checked the form and had not noted the misdate as an error.

In addition to what plaintiff thought were substantially unsupported charges against Young, there was a history behind them. There is a dispute as to when plaintiff learned this, but the motion record reflects that prior to what appeared to plaintiff to be trumped up charges, Young had issued a written warning to a certified nursing assistant for leaving his patients uncared for, naked and soiled. The certified nursing assistant was a friend of Geis and had left the patients to have a smoke with her. Shortly after issuing the warning, Young was told by another nurse to withdraw the warning or face disciplinary charges herself. Young refused and, thus, the Geis charges – at least that is the way the motion record can be construed.

The obvious take on this, viewed favorably for plaintiff, is that plaintiff refused to participate in retaliatory disciplinary action that was, she believed, based upon substantially unfounded allegations of MDS form errors against a nurse who had done no more than sought to protect the patients by disciplining a friend of Geis for leaving the patients unattended. So stated it seems hardly to be questioned that, if these beliefs are objectively reasonable, plaintiff was engaged in CEPA protected activity.*fn3

CEPA is remedial legislation. It is designed to protect employees who reasonably believe, and take action consistent therewith, that their employers or co-employees are engaged in activity that either is illegal or constitutes improper patient care where the plaintiff employee is a licensed or certified health care professional, or is fraudulent or criminal, or is violative of some real, discernable public policy impacting upon the public health, safety, welfare, or environmental protection. N.J.S.A. 34:19-3c(1),(2),(3). The aim of the legislation is to encourage, not thwart, "legitimate employee complaints." Estate of Roach v. TRW, Inc., 164 N.J. 598, 610 (2000).

N.J.S.A. 34:19-3 provides in pertinent part:

An employer shall not take any retaliatory action against an employee because the employee does any of the following:

c. Objects to, or refuses to participate in any activity, policy or practice which the employee reasonably believes:

(1) is in violation of a law, or a rule or regulation promulgated pursuant to law or, if the employee is a licensed or certified health care professional, ...


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