On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-3452-09.
The opinion of the court was delivered by: Espinosa, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano, Espinosa and Kennedy.
The opinion of the court was delivered by ESPINOSA, J.A.D.
Defendant, Eastern International College, was formerly known as Micro Tech Training Center (Micro Tech), a for-profit technical school. Plaintiff Shanita D. Suarez enrolled in its diagnostic medical ultrasound technician (DMUT) program after an admissions representative told her that upon graduation, she would be able to perform ultrasounds on patients in hospitals and clinics and earn $65,000 per year. In this lawsuit, alleging violations of the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -195, and common law fraud, she contends that these representations were false. She alleges that, to obtain employment in this field, it was necessary to obtain ARDMS*fn1 certification. Because Micro Tech lacked necessary accreditation, she was not eligible upon graduation to take the examination administered by ARDMS to obtain the certification required by potential employers. She contends that, as a practical matter, she cannot either attain the credentials necessary to be eligible to take the ARDMS examination or obtain employment as an entry level sonographer.
Plaintiff now appeals from an order that granted summary judgment to defendant, dismissing her complaint. Defendant cross-appeals, arguing that plaintiff's CFA claim should have been dismissed as barred under a "learned professional" exemption. For the reasons that follow, we affirm the dismissal of plaintiff's common law fraud claim, reverse the dismissal of her CFA claim, and reject defendant's argument that the "learned professional" exemption applies.
Consistent with the standard applicable to summary judgment motions and our review, we summarize the facts in the light most favorable to plaintiff, giving her the benefit of all favorable inferences in support of her claims. R. 4:46-2(c); Parks v. Rogers, 176 N.J. 491, 494-95 (2003); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
Plaintiff left school after tenth grade and got her GED in 1995 when she was seventeen. A lack of daycare for her son thwarted her subsequent effort to obtain training in nursing. She also had to leave a computer training course two months short of completion because she could not afford the financial aid payments. At the time of her deposition, she had five children, ages sixteen, thirteen, ten, and six years old and eight months old, and was earning fifteen dollars per hour as a temporary billing clerk at a hospital.
Plaintiff learned of Micro Tech from an advertisement in the New York Post in May 2005. She contacted the school and met with a Mr. Brown, the admissions representative, and Patricia Washington, whom she believed was the dean of the school. She described her first meeting with Brown:
Mr. Brown, he explained to me how the -- what the program that I would be graduating, and I would be performing ultrasound after graduation on patients in the hospital and in the clinic. And he told me I needed to take a pre-entrance exam to get into the school. And he told me that once I graduate that I would be making good money and it would make my life different from what it is already before I came in there. And that I would be earning close to 65,000 a year, more than what nurses earn.
Because I told him I had previously tried to become a nurse and he said, You would make more money as an ultrasound technologist than a nurse would.
Brown told her the program would last thirty-six months in the evening and twenty-four months in the day. Brown did not tell her about any certification requirements upon graduation or make any representations about obtaining certification. He did not state that Micro Tech guaranteed employment but said there was job placement available.
Plaintiff took the pre-entrance exam that day. She understood the results would dictate whether she could attend the school but was told "not to worry about it if [she] didn't do well." Although plaintiff's math results were "a little underscore," Washington told plaintiff not to worry about it.
Plaintiff decided to attend Micro Tech. She applied for financial aid and received a $5,000 grant and $17,000 in loans. Since graduation, she has received deferment of her obligation to repay the loans from Sallie Mae because of her low income.
Plaintiff received a catalog from Micro Tech when she started school. The catalog stated that, upon completion of the program, a student can obtain employment within a hospital or clinical setting as an ultrasound technologist and that the program would emphasize the requirements to obtain ARDMS certification. She asked the dean about ARDMS and was told she did not need to worry about it until after she graduated.
Plaintiff was one of approximately eight students in Micro Tech's inaugural DMUT class. She attended evening classes, meeting Monday through Thursday from 6:00 to 10:30 p.m., from May 2005 through January 2008. Plaintiff also completed six hundred hours of clinical work, performing ultrasound studies on patients in a lab setting. She received a diploma certificate in June 2008, that stated,
Has successfully completed
Diagnostic Medical Ultrasound Technician
Micro Tech Training Center, Inc.
On June 18, 2008 Plaintiff then started "vigorously" looking for employment. At the end of September 2008, the placement representative at Micro Tech sent her to interview with a woman named Anna at On-Site Imaging (On-Site) in southern New Jersey. Anna told her that as a new graduate, she would have to prove herself by scanning patients and that if she did so satisfactorily until November, she would be hired as a full-time employee and would be scanning various patients near her area as opposed to where she was being sent. Plaintiff did approximately thirty ultrasound scans for On-Site from September to mid-October 2008. Anna paid her twenty-five to thirty dollars for each test, and ten dollars per hour for travel time from On-Site to the patient.
In the beginning, plaintiff was told the scans she did were fine. After a few weeks, Anna told her there had been complaints about the way she filled out the forms that were turned in to the radiologist. Plaintiff knew one ultrasound was re-done.
According to plaintiff, Anna told her in mid-October that she did not have any patients for her. At the beginning of November, Anna told plaintiff she had a patient for her to scan that weekend and then, at the last minute, Anna contacted plaintiff and told her she could not send her out on any more patients until plaintiff met with her senior technologist. Plaintiff called him several times but the technologist never returned her calls. Plaintiff contacted Anna to ask if she could meet with someone else. Anna replied that she would get back to her but did not do so. Plaintiff kept calling, and finally, someone from On-Site told her to return the GPS given to her. At the end of January 2009, Anna called plaintiff and told her she could not be responsible for her driving so far from her residence to the locations she sent her to see patients; and that she could not provide plaintiff any more work unless she moved closer to the area.
In plaintiff's view, she was never employed by On-Site. She explained, "I didn't have employment. I never filled out a W-2. It was just promised to me that if I completed X, Y and Z, I would have employment in the future."
Every effort plaintiff made to secure employment thereafter failed because, she was told, she needed ARDMS certification to work as an ultrasound technician. However, to be eligible to take the examination for ARDMS certification, one had to satisfy pre-requisites that varied depending upon educational background. A student who graduates from a program accredited by the Commission on Accreditation of Allied Health Education Programs (CAAHEP)*fn2 is eligible to take the examination without any additional clinical ultrasound experience.
Micro Tech was not accredited by CAAHEP. As a result, its graduates were not eligible to take the ARDMS certification unless they also completed twelve months of full-time clinical ultrasound/vascular experience. However, without an ARDMS certification, no one was willing ...