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Berrios v. Virtua Health


March 31, 2008


On appeal from the Superior Court of New Jersey, Law Division, Camden County, L-8804-04.

Per curiam.


Telephonically argued March 12, 2008

Before Judges Sabatino and Alvarez.

Plaintiff Maria Berrios appeals summary judgment granted by the Law Division on May 25, 2007, dismissing her claims that she had been discharged in February 2004 from her employment with defendant, Virtua Health, Inc. ("Virtua"), in violation of the New Jersey Conscientious Employee Protection Act ("CEPA"), N.J.S.A. 34:19-1 to -14. We affirm.

The facts contained in the motion record relevant to our consideration of the issues on appeal are as follows. Plaintiff began working for Virtua in September 1993 as a coordinator for the Healthy Start Program, a federally-funded program for pregnant women with substance abuse problems. The Healthy Start program was operated within the unit of Virtua known as Alcove. Alcove also provided other mental health and substance abuse counseling services. Alcove had two out-patient treatment centers, one located in Camden and the other in Mount Holly.

Plaintiff is certified as an alcohol and drug counselor, a criminal justice counselor, a perinatal specialist, and a prevention specialist. In addition, she has a Bachelor of Arts degree in Spanish and in Liberal Arts from the former Glassboro State College (now Rowan University). Plaintiff's duties within Alcove involved primarily the counseling of patients. Her supervisor initially was Kevin Gregan, who was then the program director of Alcove.

While working at Alcove, plaintiff also completed fifteen credit hours towards a Masters degree in counseling at Rowan.

As of the time of her discharge from Virtua in February 2004, she was still forty-five credits shy of her Masters degree.

According to the allegations in her complaint, plaintiff began in 2000 to inform Gregan of what she considered to be problems with the Alcove program. Among those criticisms, plaintiff wrote to Gregan in August 2000 complaining of the work performance of her fellow employee, Maria Rivera. Plaintiff contends that Gregan did nothing in response to that letter. Over the next few years, plaintiff also complained about the deficient work performances of Donna Winder, the Alcove outpatient coordinator, and Melanie Lucas, an office manager. Specifically, plaintiff contended that Winder was leaving work early to attend night classes, and had been instructing Lucas to conduct patient evaluations in her absence. Plaintiff asserts that Lucas was not a certified counselor and was not qualified to do patient evaluations.

Plaintiff contends that she brought these various criticisms to the attention of not only Gregan but also JoEllen Layne, the Corporate Director of Virtua. Plaintiff allegedly received no response from either person.

In the latter part of 2002, Virtua hired an outside consultant, Elaine Selan, to perform an evaluation of the Alcove program. According to Selan, Layne asked her to investigate "a number of organizational and clinical problems" at Alcove, and had also informed her of certain perceived problems with Gregan. Selan performed her evaluation of Alcove from approximately October to December 2002. As part of her review, Selan recalled speaking with plaintiff about various problems with the program.

In December 2002, Selan issued a report detailing her findings. Among her suggestions for improvement, Selan noted in her report that, "[i]t is apparent to most of the staff that there are interpersonal conflicts among the [Alcove] Leadership Group." Selan also observed that her "[i]nterviews with [Alcove] staff demonstrate clear lines of division that have resulted because of these conflicts."

Within a few months of Selan's report, Gregan and Lucas were fired, and Winder did not return from medical leave. Selan thereafter replaced Gregan as Acting Director of the Alcove program in February 2003. She held that position for about one year, until Virtua discontinued the program entirely in February 2004.

In late 2002 and early 2003 plaintiff and some of her co-workers discovered in Alcove's offices numerous checks made out to the program. The checks, which were uncashed, were variously dated from 2000 through 2002. Plaintiff alerted Selan and another supervisor to this discovery.

In March 2003, shortly after Selan took over as Alcove's Acting Director, plaintiff applied for the Director's position. According to the 2003 job description for Alcove Program Director, the required qualifications included a Masters degree in Psychology, Social Work, or a related field, certain licenses and certifications, and five years of administrative experience, including supervisory, marketing and public relations experience. Having received no response to her application, plaintiff wrote to Corporate Director Layne in September 2003. In her letter to Layne, plaintiff wrote that, "I have the impression from the lack of reply that I am not being considered as a result of our previous encounters and the areas of concern that I reported." It is unclear from the record what "previous encounters" plaintiff was referring to in her letter. The record does indicate that there were some perceived problems with plaintiff's work.

In particular, Selan certified that, during her time at Alcove, she "received a number of complaints from the Healthy Start administration regarding [plaintiff's] performance and attitude." Selan further stated that "[f]rom about the fall of 2003 until the Virtua-Alcove Program eventually closed, I spent a lot of time acting as a mediator between [plaintiff], Gail Armstrong, and the Healthy Start administration." According to Selan, she had intended to discipline plaintiff by instituting a "[c]orrective [a]ction [p]lan," but abandoned that idea when she learned that Alcove's operations would likely be closed and plaintiff would lose her job anyway.

Around this same time frame, plaintiff contends that she had asked Selan at a staff meeting in August 2003 about rumors that Alcove might be closing down and whether or not that was true. According to plaintiff, Selan responded that plaintiff and her co-workers had gained reputations within the organization as "whistle-blowers" and "were bringing problems to Virtua Health." Selan denies making such statements.

Plaintiff further claims that Virtua took retaliatory action against her, prior to closing down the Alcove program and discharging her and others in that unit in February 2004. Among other things, plaintiff contends that, after Selan became the Acting Director of Alcove, plaintiff was removed from her "second badge"*fn1 position as a case manager for other Alcove programs, including the Mutual Agreement Program ("MAP") and the Drug Court. Plaintiff had worked these secondary assignments in the evenings, in addition to her full-time day position as a Healthy Start coordinator. In these dual roles, plaintiff had been working over sixty hours per week. Beginning in October 2003, however, new counselors were hired for MAP, and plaintiff was relieved of her "second badge" responsibilities.

Plaintiff also contends that, sometime in the spring or summer of 2003, the title of her position with Healthy Start was changed from that of a "risk reduction coordinator" to a "generalist." Plaintiff considered this change in nomenclature a demotion. She contends that as a "[r]isk reduction coordinator[, she] had the responsibilities of coordinating, [and] administrating. A generalist was just a field worker with no specialty." Plaintiff was displeased with this change, despite the fact that, at the same time, she received a wage increase from $20.90 to $22.00 per hour.

In response to these particular allegations, Selan attested, in her own certification, that she had removed both plaintiff and her fellow worker Gail Armstrong from their evening positions because "they were simply working too many hours," and that "it was personally and clinically inappropriate for them to continue working their part-time evening positions." Selan also noted that her decision to end plaintiff's "second-badge" functions was agreed to by Allyson Bennet, who was then Virtua's human resources manager. Selan further attested that the decision to change plaintiff's job title from "risk reduction coordinator" to "generalist" was actually made by the Prenatal Cooperative of Southern New Jersey, an agency that oversaw the federal grant that funded Healthy Start. Moreover, it was Selan who decided, concurrently, to increase plaintiff's rate of pay in her daytime position.

By the late summer or early fall of 2003, plaintiff had heard rumors that the Alcove program might be shutting down. Plaintiff alleges that other Alcove employees also heard those rumors. Even so, in late September 2003, Virtua held an open house for the Alcove program, inviting consumers, vendors, and the community. Plaintiff claims that, at the open house, Selan assured Alcove employees that the program would remain open, despite contrary rumors.

In November or December of 2003, Maureen Miller, Virtua's Chief Operating Officer ("COO"), met with Selan and the other Alcove employees, including plaintiff. Miller informed them that the Alcove program would close in early 2004, due to major operating losses.

According to Miller's certification in the motion record, she had been informed at the time that Alcove had an operating deficit of approximately $660,179 in December 2003. Given that apparent substantial unprofitability, Miller made the decision to close the program, based on financial considerations. Miller's decision to close Alcove was also agreed to by Ninfa Saunders, Virtua's Executive Vice President for Health Services.

The termination of the fourteen Alcove employees was formally characterized within the company as a "reduction in force." The laid-off employees were eligible for a separation plan from Virtua, including severance pay, and the temporary continuation of health benefits. This severance package was contingent on the terminated employees signing a Separation and General Release Agreement. Plaintiff refused to sign the release, and thus was not offered the severance package. Her last day of work was February 27, 2004. She filed her CEPA action in the Law Division in December 2004.

Following discovery, Virtua moved for summary judgment. In support of its motion, Virtua presented certifications from Selan, Miller, and its then-Director of Human Resources, Rhonda Jordan. Additionally, Virtua presented copies of Alcove's Statements of Revenue and Expense, for the respective years 2002 and 2003. The 2002 financial statement shows a total operating loss of over $535,000. The 2003 statement shows an even larger loss, of $660,179. Virtua also relied upon certain portions of plaintiff's deposition transcript.

In opposing the motion, plaintiff offered her own certification, along with a certification from Armstrong, her former co-worker. Armstrong became plaintiff's partner in a consulting business after the two were laid off from Virtua. Having chosen not to depose any Virtua employees, plaintiff did not offer any transcripts with any inculpatory statements from defendant's management. Nor did she challenge the authenticity of the company's 2002 and 2003 financial statements.

After hearing oral argument, the trial judge granted Virtua's motion for summary judgment on May 25, 2007. In the course of his oral ruling, the judge noted:

What strikes me about this case is[,] unlike the typical case where the plaintiff alleges that adverse employment action was taken against him or her that would be unique to him or her, the plaintiff's theory is that an entire department consisting of 13 or 14 people [was] terminated just so [plaintiff] would not get a certain appointment which at minimum is highly counter-intuitive. I'm not saying it's not possible but one needs to look at the record, I think, very carefully to see really if there's evidence in the record to support that.

The judge then asked plaintiff's counsel, "do you have any evidence to show that the decision to terminate the Alcove program was made by anybody other than [Virtua's COO] Miller?" The judge also asked plaintiff's counsel, "[i]s there any information that you have that Ms. Miller was aware of any whistle[-]blowing activity by [plaintiff]?" In response, plaintiff's counsel admitted there was no evidence to support either proposition, but argued that triable issues existed in spite of the absence of such proof of knowledge by the decision-makers.

After considering the motion record as a whole, the judge concluded that:

I think a fair review of this record leads me to conclude . . . it seems that all the plaintiff has is speculation that the dissolution of the Alcove department which I'll say one last time was losing hundreds of thousands of dollars a year . . . that it's pure speculation that the decision was -- was primarily motivated in a desire to get rid of [plaintiff].

. . . The bottom line is that the department was losing money -- a lot of money, and the activity complained of occurred in -- it looks like in most instances, months if not years beforehand.

This appeal ensued. Plaintiff argues that (1) the motion judge improperly viewed the evidential materials in a light most favorable to defendant, rather than plaintiff; (2) the judge erred in assuming that the closure of the entire Alcove program was counter-intuitive to plaintiff's claim of retaliatory discharge; and (3) the judge misunderstood the chronology of plaintiff's alleged whistleblowing activities.

Having considered these arguments and the record as a whole ourselves, in a light most favorable to plaintiff, we are satisfied that the motion judge did not err in granting summary judgment to defendant. Therefore, we affirm the Law Division's May 25, 2007 order, substantially for the reasons expressed in Judge Michael Kassel's oral opinion of that date. We add only a few comments.

Plaintiff correctly states, as a matter of law, that a court entertaining a motion for summary judgment must consider "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995); R. 4:46-2(c). In assessing the evidential materials, the court "must grant all the favorable inferences to the non-movant." Brill, supra, 142 N.J. at 536. Even so, the non-moving party cannot survive a motion for summary judgment "merely by pointing to any fact in dispute." Id. at 529. Rather, the issue must be substantial and the dispute must be genuine. Ibid. On appeal, we apply the same standards. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).

We reject plaintiff's argument that Judge Cassell failed to abide by these well-settled standards. The judge specifically assumed, for purposes of the motion argument, that plaintiff had engaged in whistle-blowing activity protected under CEPA, and that she had sustained injury as the result of her discharge from Virtua. Plaintiff received the benefit of those favorable inferences. The judge simply found that plaintiff's cause of action failed because she provided no reasonable factual support for her contention that she lost her job in retaliation for her alleged whistle-blowing.

Viewing the record in a light most favorable to plaintiff, there is no counterproof to show that Miller and Saunders decided to shut down the Alcove program for any reason other than legitimate business concerns about the unit's profitability. Plaintiff presented no competent financial proof to gainsay the profit and loss statements in the record showing that Alcove was losing money. Plaintiff contends that those financial statements fail to take into account the over $400,000 in uncashed checks that she and others had discovered. Even if plaintiff's estimate of the value of those checks is accepted at face value and subtracted, the net result still would be an annual loss over a two-year period. Plaintiff also did not present any proof that Miller and Saunders had some reason to disbelieve the accuracy of the financial data that was then being presented to them.

Plaintiff argues that the activities of Selan in holding an open house in September 2003, and in presenting a positive view of Alcove to persons inside and outside of the organization, signifies that the company's business reasons for shutting down Alcove were untrue or pretextual. Her arguments are unpersuasive. A company or organization that is losing money often would not want its customers and employees to know that fact, lest the knowledge result in an even greater loss of customer revenues and the premature departure of personnel needed to sustain its operations. As the Acting Director of Alcove, Selan would have had an incentive to promote the operation and present it in a favorable light to others in spite of its financial difficulties. Ultimately, Selan was unsuccessful in keeping the operation afloat, and upper-level management in Virtua made a financial decision to close it down.*fn2

Plaintiff points to a statement in Selan's December 2002 evaluation that the Alcove program was experiencing "improved financial stability" at that time. That euphemistic statement does not disprove that the unit was losing money, or that it had become profitable a year later in December 2003 when Virtua's chief financial officer decided to discontinue the venture.

Plaintiff also notes that Virtua had hired some new clinicians between 2002 and 2004, and that plaintiff herself had received a raise in 2003. Those events do not, however, show that Alcove was turning a profit, or that the financial information Miller relied upon in deciding to shut down the program in February 2004 was contrived. Indeed, the increase in plaintiff's hourly rate belies her theory that she had been targeted for retaliation by the company.

Plaintiff also notes that Selan had recommended what she described in her certification as an "audit" of Alcove during her tenure as Acting Director, and that such an audit was not conducted, whereas defendant's interrogatory answers state that an audit of Alcove was conducted in 2003. On closer inspection, however, the record shows that Selan had specifically recommended "an audit . . . that would check sessions and billing for a sample number of charts," as contrasted with a financial audit that would examine the overall revenues and expenses of the program. Even if Selan meant in her certification the same thing as a financial audit and defendant's interrogatory response is, in fact, contradictory, the presence or absence of an audit is not dispositive. The point remains that there is no counterproof in the record demonstrating that the grim financial reports relied upon by Miller in December 2003 were pretextual. Nor is there any proof to show that Miller and Saunders, as the company's decision-makers who opted to close Alcove, had any personal knowledge whatsoever of plaintiff's alleged whistle-blowing. If anything, plaintiff may have been a prophet of her own unit's demise in recognizing that the operation had been poorly run and its employees had mishandled incoming checks.*fn3

Under both CEPA and New Jersey's Law Against Discrimination ("LAD"), N.J.S.A. 10:5-1 to -49, an employer's reduction in workforce is a valid and permissible ground for the termination of an employee. See Young v. Hobart West Group, 385 N.J. Super. 448, 460 (App. Div. 2005); Parker v. M & T Chem., Inc., 236 N.J. Super. 451, 460 (App. Div. 1989). When an employer has provided proof that the plaintiff's termination was part of a reduction in workforce, the plaintiff bears the burden of demonstrating that this asserted reason is pretextual. Young, supra, 385 N.J. Super. at 467. We are satisfied that the motion judge fairly applied these legal principles, and that plaintiff simply did not present a genuine issue of material fact to show that Virtua disbanded Alcove, and laid off at least a dozen other co-workers with plaintiff, for anything other than legitimate financial reasons.

We have fully considered the balance of plaintiff's arguments and sub-arguments and are satisfied that they lack sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E).


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