On appeal from Superior Court of New Jersey, Law Division, Essex County, No. L-5144-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Parker and Koblitz.
Plaintiffs appeal from three trial court orders. The first denied their motion to consolidate their pending case with another pending matter;*fn1 the second granted summary judgment in favor of defendants;*fn2 the third order denied plaintiffs' motion to file an amended complaint. After reviewing the record in light of the contentions advanced on appeal, we affirm.
Plaintiffs Buell, Henry and Moffett were employed as paramedics by Clara Maass Medical Center ("Clara Maass"). The individual defendants held different managerial or supervisory positions at Clara Maass. Defendant Ann Marie Wertz was the Director of the Mobile Intensive Care Unit for Clara Maass, and defendant Michael Scovil was the Assistant Director. Defendant Karen Palatella was the Director of Emergency Services at Clara Maass, and defendant Joseph Dib, M.D., was the Medical Director of the Mobile Intensive Care Unit. Defendant Martin Marino was the former vice-president of Human Resources for Clara Maass.
Buell started his employment as a paramedic at Clara Maass in June 2000 and Moffett in April 2001. Henry started as a part-time paramedic in March 2001 and became a full-time employee in June 2002. Buell was terminated in May 2003, and Moffet and Henry were suspended in July 2003. In this litigation, they assert a variety of claims, including violations of the Conscientious Employee Protection Act ("CEPA"), N.J.S.A. 34:19-1 to -8, and the Law Against Discrimination ("LAD"), N.J.S.A. 10:5-1 to -49. In addition, Henry, who is gay, asserted a claim of hostile work environment.
Clara Maass operated two mobile intensive care units, one stationed in Belleville and a later-formed one stationed at West Hudson Hospital in Kearny. The Belleville unit was known as MIC 6 and the Kearny unit as MIC 7. The Belleville unit was the larger of the two. The units were staffed by paramedics, some of whom were full-time employees of Clara Maass, some of whom were part-time employees, and others who were hired on a per diem basis. Per diem employees worked on an as needed basis, with no set schedule, and did not receive benefits. Part-time and full-time paramedics worked on a regular schedule and did receive benefits.
Moffett originally started at Clara Maass as a per diem paramedic in or about April 2001 and became a part-time employee in or about December 2002. While working part-time at Clara Maass he remained a full-time paramedic at St. Clare's Hospital until his termination from that position following an incident that involved patient care.*fn3 Moffett is the oldest of the three appellants; he was fifty-two years old when he started at Clara Maass in 2001. Buell was thirty-nine years old when he was terminated in 2003.
Both Buell and Moffett claim that they were the victims of age discrimination during their employment by Clara Maass. They both also claim that Clara Maass retaliated against them for alleged whistle-blowing activities.
Moffett in his deposition asserted various instances of age discrimination. He said that younger paramedics were offered opportunities to work overtime and that he was not. He said that a younger paramedic was a given supervisory position although he had more experience than the successful applicant.
He also claimed that a younger paramedic was given a full-time position for which he had applied.
Moffett was not able to supply any specific details with respect to his claim of age discrimination in giving overtime. The supervisory position for which he applied was a full-time position as the supervisor of the MIC 7 unit. The job was given to Jeffrey Garrigan, who was some years younger than Moffett. Garrigan, however, had a bachelor's degree, while Moffett did not. Moffett had not completed high school; he later earned his GED. Garrigan also had taken courses in management and had some supervisory experience. In addition, Moffett made a comment during the interview which led the interviewers to conclude that he was more interested in the position because it was full-time than its supervisory aspects. As to his assertion that a younger paramedic was offered a full-time position while he was not, he admitted that he had been offered a full-time position but had declined it because that particular position would involve asking plaintiff Henry to switch her schedule, and he was reluctant to do so because she had experienced a number of changes to her schedule.
Moffett also asserted that he had been retaliated against for several incidents involving another paramedic, Esther Prikril. In June 2002 Moffett became aware of an incident in which Prikril, with her partner, responded to a call from the Hudson County Correctional Facility and allegedly refused to intubate an inmate because he was black. Moffett reported the incident to defendant Scovil, who told Moffett that he was aware of it, Prikril's partner having already informed him. The record before us does not indicate what disciplinary action, if any, was taken against Prikril following this report.
In October 2002, Henry worked a shift with Prikril. Henry reported to Moffett that Prikril told her during this shift that she had not intubated another inmate who was being transported to the Jersey City Medical Center. According to Henry, Prikril stated, "Well, hey, I got rid of another piece of shit for you guys." Moffett and Henry reported this incident by telephone to defendant Scovil. Again, the record before us does not indicate what disciplinary action, if any, was taken against Prikril following this second report.
Approximately two months later, Prikril told Henry that another paramedic, Robert Kane, had asked her to give him her supply of Percocet tablets, for which she had a prescription. Henry did not report this conversation. In January 2003, Prikril told Henry that she wished she had never given Kane the Percocet tablets. Henry told Moffett of this conversation and the two again notified Scovil by telephone. They also made an anonymous report to the corporate compliance hotline the hospital maintained. Prikril was fired the following day.
Kane's termination quickly followed.*fn4 Moffet and Henry alleged that following their reports about Prikril, their work was subjected to extra scrutiny.
Buell was thirty-six years old when he started at Clara Maass. His claims of age discrimination also involved the awarding of overtime. As did Moffett, Buell claimed that younger paramedics were given overtime shifts for which he was available. At his deposition, he identified the time period when this occurred as the summer of 2002 and December 2002 through May 2003. He also was unable to provide any specific instances. Buell's wife also worked as a paramedic at Clara Maass. He claimed that Clara Maas discriminated against him through its policy of prohibiting spouses from working together or relieving one another at the end of a shift.
Buell was terminated in May 2003. Defendants contend he was terminated because of his failure to adhere to the hospital's policies and protocols while responding to emergency calls. Buell had, on several occasions, been placed on a Performance Improvement Plan ("PIP") and was told at the time of the last PIP that if any further problems developed with his performance, he would be terminated. Buell contends he was unfairly punished for errors made by his partner, Kane, the same individual who asked for and obtained Percocet from Prikril. He also alleges he was terminated in retaliation for complaints he made at various times with respect to the hospital's failure to comply with what he perceived as necessary safety standards.
An example of the latter is the hospital's use of a Ford Crown Victoria automobile at the MIC 7 unit when it opened. The vehicle was not designed for use by paramedics and equipment would, on occasion, fly off the back shelf and hit the occupants. The hospital addressed this issue by arranging to have a metal "cage" installed between the front and rear seats, similar to that used in police vehicles. Following that installation, there were no further complaints in that regard.
Whether due to the design of the vehicle or the driveway apron at the MIC 7 facility, the bottom of the vehicle, including the gas tank, would scrape as it exited the MIC 7 premises. Buell saw this as a safety hazard and repeatedly complained. He pointed to reports of explosions and fires involving the gas tank on Crown Victoria models. Because of his concerns as to the safety of the vehicle, he eventually refused to use it beyond moving it from one parking place to another when necessary.
Buell also made periodic complaints about problems paramedics would encounter in using the medical communications equipment, which would occasionally fail to operate while they were responding to a call. Buell told Wertz that the medical communications equipment that Clara Maass was providing did not comply with the requirements of the Office of Emergency Medical Services of the New Jersey Department of Health.
Henry also had complaints about scheduling--that she was not placed on a regular schedule but subjected to constant changes and that when she became a full-time paramedic she was required to work alternating weekends while at least one part-time paramedic was excused from weekend duty. At her deposition, she did not directly ascribe that scheduling issue to her sexual orientation. She did, however, complain that one of her supervisors made a crude remark during a meeting at which she was voicing her concerns about her schedule. He subsequently apologized to her.
In the middle of 2002 there was an opening for a position as a full-time paramedic. Henry applied for the post and was selected over three male applicants.
Henry included in her complaint about a hostile work environment that she had been "forced to endure the presence of demeaning, inappropriate pornography" at the MIC 7 unit at which she was stationed. Henry was on duty on January 12, 2002, at MIC 7 when she received a phone call from defendant Wertz, who asked her assistance in removing a screen saver from one of the computers at the site. It was titled "Virtual Girl" and depicted a woman dancing across the screen while removing her clothing. Henry removed it as Wertz had asked her to do and saved it to a disc. In doing so, she came across a file for another screen saver referring to "naked chicks." She had no other contact with pornographic material on a work-related computer other than this. In her deposition she said that while working at MIC 7 she would come across pornographic magazines, evidently left by other paramedics who worked there. She gave no indication of the frequency with which this happened or whether she made any complaint to her superiors.
During the weekend of June 14, 2003, defendant Scovil received a telephone call from another paramedic, Jeremy Gussonini, who reported that he had found a handwritten note in a fax machine at MIC 7. It was written on paper headed "West Hudson Hospital" and stated it was directed to John Norton (plaintiffs' attorney), from Steve Moffett. It read as follows:
John, I thought this may be usefull (sic) --Garrigan MIC 7 Supv & Dean Snook -- new full time on call Pt. Delay in transport x 27 min. Documented Don't know if medivac was approved x medical controll [sic] as per policy
When Scovil came to work on Monday, he took custody of the fax machine and disassembled it and retrieved the ribbon. He and Wertz reviewed the ribbon and learned that a quantity of material had been faxed, including quality assurance reviews on paramedics, patient care records, patient billing sheets, and a confidential inventory for the administration of controlled substances and injectables that had been obtained from the pharmacy. The investigation also uncovered another handwritten note, again directed to John Norton from Steve Moffett. This note read as follows:
John, Enclosed is the Versed policy as you can see there is no question as to the age of the patients that can receive (sic) Versed -- 18
- Also Please find the Narc sheet where 5.0 mg of Versed were given to 16 y [male] by Jeff Garrigan The note was signed "Steve."
Scovil and Wertz determined that Moffett and Henry were the only paramedics on duty at MIC 7 at the time these documents were faxed and that there was no legitimate business reason for these documents to have been faxed. Nor was there any legitimate business reason for Moffett or Henry to have had access to certain of these documents, such as the pharmacy inventory. Scovil prepared and sent to Palatella a memo summarizing what had been discovered and recommending termination for violating Clara Maass's policies on the confidentiality of patient records and the federal Health ...