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Richardson v. Deborah Heart & Lung Center


July 28, 2010


On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-2101-07.

Per curiam.


Submitted May 25, 2010

Before Judges Carchman and Ashrafi.

Plaintiff Joyce Richardson appeals from dismissal of her complaint alleging violations of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8. We affirm.

Plaintiff was employed for more than thirty years by defendant Deborah Heart and Lung Center (Deborah) as a laboratory technician and later assistant manager. She resigned from that employment in September 2006. She then filed this lawsuit alleging violation of CEPA and constructive discharge in retaliation for "whistle-blowing" conduct. The court granted Deborah's motion for summary judgment, finding that plaintiff had not demonstrated a genuine issue of disputed fact as to essential elements of her cause of action. This appealed followed.

In reviewing a grant of summary judgment, we apply the same standard under Rule 4:46-2(c) that governs the trial court. See Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007); Prudential Prop. & Cas. Ins. Co. v. Boyland, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). We 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. of Am., 142 N.J. 520, 540 (1995). On this appeal, we review the facts most favorably to plaintiff.

Plaintiff first became employed by Deborah in 1975 as an xray technician. Twenty years later, she was promoted to Assistant Technical Manager in Deborah's Adult Heart Catheterization Laboratory (Cath Lab). In this new role, plaintiff was responsible for managerial and administrative tasks in addition to regular laboratory work.

The promotion also brought plaintiff under the direct supervision of her sister, Judy DePstrokonski.*fn1 While Deborah had an anti-nepotism policy, it was flexibly enforced. Before Deborah invoked the anti-nepotism policy as one of the reasons to transfer plaintiff to another department, she worked under her sister's supervision for ten years, even sharing an office and telephone. Plaintiff alleges the anti-nepotism policy was a pretext for adverse job action in violation of CEPA.

Plaintiff's tasks as Assistant Manager of the Cath Lab included assisting with payroll, conducting quality assurance functions (QA), and setting the "call" schedule, that is, determining which staff members would be on-call in the lab at various times. QA tasks, which were the responsibility of plaintiff and two other managers, consisted of ensuring that information pertaining to medical procedures was accurately entered into the hospital's primary database. This data included patients' names, billing information, the procedures that were performed, and the names of staff members who performed them. Where information was inaccurate, plaintiff filled out an "edit slip" reflecting the corrections. Additionally, she was required to notify staff members of their errors. Plaintiff estimated approximately ten to fifteen percent of her work time was spent on QA tasks. On June 17, 2005, a staff meeting was held at which the Cath Lab's supervising physicians raised questions regarding the accuracy of some data entered into the computer system and sought modification of QA practices.

During the fall of 2005, the Chief Operating Officer of Deborah, Joseph Chirichella, informed Judy D. and another supervisor, Andrew Haviland, that he had received anonymous complaints from former Cath Lab employees and other staff regarding plaintiff's scheduling practices, high levels of overtime, and alleged failure to contribute to regular lab duties. Judy D. and Haviland strongly disputed the veracity of the allegations stating that "at no time, past or present, has anyone brought these subjects" to their attention.

The complaints were brought to plaintiff's attention in November 2005. After an internal investigation, Chirichella found most of them were unfounded, but he did determine that plaintiff herself had earned more overtime and on-call pay in 2004 and 2005 than any other Cath Lab employee. Plaintiff countered that most other staffers were rejecting "on-call" work in an attempt to force Deborah to increase wage rates, and she suggested the complaints were prompted by her failure to support the other employees' cause.

In December, Judy D. and Haviland developed a plan to address the "[p]erception that preferential treatment is afforded" to plaintiff. Among the changes, plaintiff was removed from a reporting relationship with her sister, instead being supervised solely by Haviland. Other changes were adjustment of her work schedule and broadening of her non-administrative skills to assist staff where necessary.

In February 2006, plaintiff and three other Cath Lab managers did not receive a 3.5 percent pay increase granted to Cath Lab staff. Higher management noted the pay raise was provided solely to clinical staff, not to managers. Although plaintiff acknowledged being a manager, she challenged her exclusion from the pay raise on the ground that she "had an hourly rate and . . . was assigned the same amount of call and late shifts as the clinical staff." Additionally, she cited her exclusion from a February 13, 2006 staff meeting as evidence of a campaign against her.

On March 23, 2006, another anonymous complaint regarding plaintiff was made to Deborah's internal reporting hotline, this time alleging plaintiff was improperly using edit slips to include herself on procedures she did not work, while excluding staff who did the work. Chirichella again investigated the charges, interviewing ten employees, and he found disagreement about including or excluding staff from the billing data but no wrongdoing by plaintiff.

At the end of May 2006, management asked plaintiff to transfer to the electrophysiology study (EPS) lab at "the same benefit level" while retaining the ability to pick up additional shifts in the Cath Lab if her schedule allowed. Plaintiff made notes of a May 25 meeting with Chirichella, indicating there were no longer any outstanding QA issues and that she had taken "a black eye" for her work in this area, but that transfer to EPS would be the most appropriate action in light of how she was perceived by staff. She also wrote: "Staff morale is the reason for transfer."

A May 31 letter from Deborah's counsel led plaintiff to believe she would be terminated if she did not accept the transfer. The pertinent paragraph of the letter states:

[Deborah] has the legal right to involuntarily transfer employees to different positions or departments, and to unilaterally modify or terminate any term or condition of employment, or to terminate employment - at any time or for any reason.

At this point though, [plaintiff] has been asked to consider a voluntary transfer, and has the option to accept or decline this option. Deborah's attempts to keep [plaintiff] whole through such a transfer and with a grandfathered wage rate is evidence that there is no illegal motive, but rather, a desire to demonstrate appreciation of [plaintiff's] service, and at the same time, stabilize the department morale in an effort to manage the institution, rather than just deal with the interests of a single employee.

On June 6, plaintiff spoke with Bret Bissey, Deborah's Chief Compliance and Privacy Officer, and expressed her belief that she was "being set up to be terminated." Bissey encouraged her to work through the usual Human Resources channels. Meanwhile, a June 16 email from Chirichella to a Human Resources manager stated Chirichella had to contact EPS supervisor Rose Tuck to "remove any uncertainty" she had regarding plaintiff's reputation, finally convincing Tuck to go along with the planned transfer to the EPS lab. Plaintiff ultimately accepted the transfer, effective July 24.

The transition was not smooth. Plaintiff initially alleged the position was a "do nothing job" consisting mostly of "EKG issues and paperwork," in contrast to the more clinical work she performed in the Cath Lab. In her deposition, however, plaintiff admitted the work in each lab was actually quite similar. Plaintiff also maintained she was being inadequately trained for the new position and that EPS supervisors refused to speak with her. Plaintiff wrote a letter to Tuck on August 21 in which she stated:

As per my first day in the EPS department you expressed a desire to speak with me. So this is just a reminder that I anxiously wait for this opportunity.

Further, I have not received a copy of the Job Specific Orientation Checklist, which would greatly enlighten me, concerning the do's and don't's of the EPS department.

On September 1, 2006, plaintiff resigned from her employment at Deborah after only five weeks of orientation in the EPS lab.

Plaintiff obtained new employment in a similar role at another hospital shortly after her resignation. At her deposition, she testified she had interviewed for that position in July 2006, before her transfer to the EPS lab became effective.

On April 20, 2007, plaintiff filed a one-count complaint alleging her co-workers and Deborah management had "aided or abetted or participated in a retaliatory course of conduct which led to the constructive termination" of her employment, in violation of CEPA. She alleged she had been forced to resign through an "involuntary transfer," and she had been "defamed" by co-workers who had made "knowing falsehoods regarding [her] conduct in connection with her employment relationship."

After completion of discovery, Deborah moved for summary judgment. Addressing the elements of a claim under CEPA, the trial court expressed difficulty identifying the "public policy which the employer has allegedly violated" as well as "what it was exactly that the plaintiff was alleging was the protected activity." The court also said plaintiff's evidence did not show any retaliation within the meaning of the statute. The court found that, despite loss of her "manager" title, plaintiff suffered "no loss of pay [and] that there was overtime available" in the EPS Lab.

The court explained its reasoning further:

[T]he plaintiff's arguments seem to be that simply because [she] was in some way involved in activities that appear to be compliance issues, that that fact in and of itself establishes that she was engaged in protected activity. But . . . I don't believe that the case law supports the position that having that type of job, in and of itself, entitles you to allege that you're engaged in protect[ed] activities.

Now certainly if the plaintiff was being advised to do things that were illegal or violated public policy or advised to pursue procedures that did implicate laws, rules, regulations or public policy, that would be a different situation. But this is not the case here. It is simply a matter of co-employees complaining about her, whether validly or not, there being a certain perception that favoritism was being shown, and the resulting transfer.

We agree with the trial court's reasoning in concluding that plaintiff could not prove a CEPA violation.

We recently explained the general purpose of CEPA in Donelson v. DuPont Chambers Works, 412 N.J. Super. 17 (App. Div. 2010):

[CEPA's] purpose is to protect and encourage employees who report illegal or unethical workplace activities. CEPA prohibits an employer from taking retaliatory action against employees "who object to employer conduct that they reasonably believe to be unlawful or indisputably dangerous to the public health, safety or welfare." [Id. at 29 (quoting Dzwonar v. McDevitt, 177 N.J. 451, 464 (2003)) (citations omitted).]

Retaliatory action is defined as the "discharge, suspension or demotion of an employee, or other adverse employment action taken against an employee in the terms and conditions of employment." N.J.S.A. 34:19-2e. Examples of adverse employment action include reductions in pay or the withdrawal of previously provided benefits. Maimone v. City of Atlantic City, 188 N.J. 221, 235-36 (2006). But such retaliation is not "limited to a single discrete action, but may include 'many separate but relatively minor instances of behavior directed against an employee . . . that combine to make up a pattern of retaliatory conduct.'" Donelson, supra, 412 N.J. Super. at 29 (quoting Green v. Jersey City Bd. of Educ., 177 N.J. 434, 448 (2003)).

CEPA protects employees from retaliatory action in response to three forms of whistle-blowing activity, two of which are relevant in this case. These protected activities are when an employee:

a. Discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer . . . that the employee reasonably believes:

(1) is in violation of a law, or a rule or regulation promulgated pursuant to law . . . ;

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 . . . ;

(2) is fraudulent or criminal . . . ; or

(3) is incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment. [N.J.S.A. 34:19-3.]

To maintain a cause of action under either subsection a or c of the statute, a plaintiff must establish:

(1) he or she reasonably believed that his or her employer's conduct was violating either a law, rule, or regulation promulgated pursuant to law, or a clear mandate of public policy;

(2) he or she performed a "whistle-blowing" activity described in [the statute];

(3) an adverse employment action was taken against him or her; and

(4) a causal connection exists between the whistle-blowing activity and the adverse employment action. [Dzwonar, supra, 177 N.J. at 462.]

Upon showing all four elements of the claim, a plaintiff may be entitled to an injunction, reinstatement to a previous position, reinstatement of benefits and seniority rights, lost wages and benefits, and the payment of attorney's fees and costs of litigation. N.J.S.A. 34:19-5.

On this appeal, plaintiff devotes much of her argument to alleged disputed issues of fact as to the third element of a CEPA claim, an adverse employment action. On the other hand, Deborah argues that plaintiff failed to establish any of the four elements of a CEPA claim.

We conclude that plaintiff failed to show any law, rule, regulation, or public policy that she reasonably believed Deborah was violating, and that she also failed to show genuine issues of disputed fact as to any whistle-blowing activity by her as defined in the statute. We need not address whether issues of fact exist as to the last two elements of a CEPA claim, adverse employment action and a causal connection.

Plaintiff alleges she engaged in CEPA-protected conduct "by enforcing [Deborah's] professional services billing compliance program policies and procedures and [Deborah's] other compliance and quality assurance procedures." She claims she "insure[d] that all of the billing information and Cath Lab reports that she reviewed contained . . . accurate information to avoid potentially harmful mistakes to patients and to prevent unlawful practices or insurance fraud."

Plaintiff's claim fails because everything plaintiff describes as her protected whistle-blowing activity was also an "activity, policy or practice" of her employer, Deborah. As Deborah argued in support of summary judgment:

[I]f you look at the internal procedures and policies that Deborah has, they basically say we want to make sure that we're doing everything correct when it comes to billing and patient information, and if you see a mistake it is absolutely your obligation to report it, and if you don't, even if you had nothing to do with it, you're going to be terminated.

Far from disclosing or threatening to disclose to a supervisor or public body, N.J.S.A. 34:19-3a, or objecting to or refusing to participate in, N.J.S.A. 34:19-3c, the employer's activity, policy, or practice that was contrary to law or public policy, plaintiff describes her protected conduct as enforcement of Deborah's policy or practice of correcting potential billing mistakes. Plaintiff lacks evidence of an activity, policy, or practice of Deborah that was in violation of law, rule, or regulation; was fraudulent or criminal; or was "incompatible with a clear mandate of public policy concerning the public health, safety or welfare." See N.J.S.A. 34:19-3a, -3c.

Plaintiff contends that by refusing to overlook staff mistakes, she "refused to participate in conduct that she reasonably believed to be in violation of the law." She argues that her QA tasks were in themselves protected conduct under CEPA. We disagree, as did the trial court, that plaintiff's express job duties could also be the protected whistle-blowing conduct under CEPA in the circumstances presented here.

To support her argument, plaintiff contends that CEPA treats fellow employees in the same way as an employer, and her co-employees' practices in providing mistaken billing information were an activity or practice of Deborah that plaintiff reasonably believed was in violation of law and public policy. Plaintiff's argument fails for two reasons.

First, CEPA has separate definitions for "employee" and "employer." See N.J.S.A. 34:19-2a, -2b. An employee is "any individual who performs services for and under the control and direction of an employer for wages or other remuneration." Ibid. Cath Lab staff who allegedly made the mistakes were employees.

Plaintiff cites Maw v. Advanced Clinical Communications, Inc., 359 N.J. Super. 420, 440 (App. Div. 2003), rev'd on other grounds, 179 N.J. 439 (2004), for its holding that an employee, as well as the employer, is subject to the prohibitions of CEPA. That holding, however, requires that the employee be acting "on behalf of or in the interest of an employer with the employer's consent." Ibid. (quoting N.J.S.A. 34:19-2a). In this case, the employer, Deborah, had a policy and practice of correcting employee mistakes; it was not consenting to them.

We recognize that the Supreme Court held in Higgins v. Pascack Valley Hospital, 158 N.J. 404, 418-24 (1999), that a plaintiff's complaints regarding the improper activities of co-employees are protected by CEPA against retaliation. The Court stated:

Nothing indicates that the Legislature intended that the CEPA's expansive protection should depend on a strict parsing of employer and employee conduct. . . . A solitary employee may not be able to determine whether an illegal activity is the isolated act of a single co-employee or a systemic practice. When an employee complains of the wrongdoing, he or she may not know whether the employer will condone the act. Failure to protect complaining employees therefore will inhibit them from reporting practices for which they reasonably believe their employer is responsible. [Id. at 421.]

The holding of Higgins, however, was in the context of a plaintiff lodging complaints of co-employee conduct in isolated situations outside the plaintiff's job duties. When the employer has assigned plaintiff the express task of correcting and reporting the mistakes of co-employees, the employer cannot reasonably be viewed as having condoned the alleged errors of co-employees. The errors or misconduct of co-employees that are alleged to be in violation of law or public policy cannot be fairly attributed to the employer.

The glaring deficiency in plaintiff's claim is that her employer did not ask her to overlook staff mistakes. In fact, she was charged with the task of finding and correcting staff mistakes. At all times during her employment in the Cath Lab, plaintiff had the authority to catch errors and the support of management in bringing those errors to the attention of supervisors and staff. Plaintiff disregards the systems and policies she admits Deborah had in place for the identification and correction of staff mistakes. There was no evidence in the summary judgment record that Deborah had a policy or practice of permitting mistakes of the Cath Lab staff in the information they provided for billing purposes.

Furthermore, nothing in the evidence plaintiff gathered before the close of discovery supported her contention that Deborah sought to end tight QA practices in the Cath Lab. Plaintiff's evidence did not support a finding that she reasonably believed Deborah was violating a law, rule, regulation, or clear mandate of public policy regarding its billing procedures.

Moreover, plaintiff failed to show what law, rule, regulation, or clear mandate of public policy was potentially violated by Deborah's QA policy and practices. Whether a CEPA plaintiff has shown the existence of such a law, rule, regulation, or clear mandate of public policy is an issue of law to be determined by the court and not an issue of fact for the jury. Mehlman v. Mobile Oil Corp., 153 N.J. 163, 187 (1998). While a CEPA plaintiff need not show an actual violation, she must identify "a statute, regulation, rule, or public policy that closely relates to the complained-of conduct." Dzwonar, supra, 177 N.J. at 463. "The trial court can and should enter judgment for a defendant when no such law or policy is forthcoming." Ibid.

Here, plaintiff generally claimed that it was a violation of law and public policy to permit false information in billing information. She also claimed that such false information would constitute insurance fraud. Initially, we note that misspellings of names or the identification of individuals in the Cath Lab who worked on a procedure would not constitute false billing. It would appear that only information about incorrect listing of procedures could affect billing and insurance payments.

Plaintiff identified no law, rule, regulation, or clear mandate of public policy that indicated Deborah's QA policy and practices were inadequate in correcting such potential billing errors. Moreover, her activities were not protected whistle-blowing because she was, in fact, merely performing the job duties assigned to her by her employer for the very purpose of avoiding a policy or practice that may have been contrary to law or public policy. She was not disclosing, objecting to, or refusing to participate in an employer policy or practice that was in violation of law or contrary to a clear mandate of public policy.

Because of staff dissatisfaction with the manner that plaintiff was performing her managerial tasks, and a staff perception that she was benefiting from favoritism, higher management transferred her to improve staff morale.

Plaintiff failed to present evidence to satisfy the first two elements of a CEPA violation. Therefore, the trial court correctly granted summary judgment to defendant dismissing plaintiff's complaint.


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