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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 ...

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