NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 18, 2012
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-6532-09.
Dominic F. Amorosa argued the cause for appellant (Dominic F. Amorosa and Schiller & Pittenger, P.C., attorneys; Mr. Amorosa, of counsel and on the briefs; Jay B. Bohn, on the briefs).
Eric L. Harrison argued the cause for respondent Sunil J. Wimalawansa (Methfessel & Werbel, attorneys; Mr. Harrison, of counsel and on the brief; Michael Poreda, on the brief).
Walter F. Kawalec, III, argued the cause for respondent University of Medicine and Dentistry of New Jersey, Robert Wood Johnson Medical School (Marshall, Dennehey, Warner, Coleman & Goggin, attorneys; Mr. Kawalec and Richard L. Goldstein, on the brief.)
Before Judges Fisher, Waugh, and St. John.
Plaintiff Lourdes Marrero appeals orders entered by the Law Division in connection with her whistleblower and tort claims against defendants Sunil J. Wimalawansa and the University of Medicine and Dentistry of New Jersey (UMDNJ). We affirm, but also remand to the Law Division for entry of a judgment for $100 in nominal damages.
We discern the following facts and procedural history from the record on appeal.
Marrero, a radiologic technician, began working at UMDNJ's division of endocrinology twenty hours per week on a part-time basis in 2002. Marrero's job was to administer bone-density scans, known as DXA scans. Wimalawansa, a medical doctor, was then chief of the endocrinology division and Marrero's supervisor. Wimalawansa read and interpreted the DXA scans administered by Marrero and other technicians.
Several months after Marrero started working at UMDNJ, new technology was installed that enabled Marrero to transmit the scan results directly from her computer to the computer in Wimalawansa's office. After Wimalawansa read the scan, he prepared a report, which was placed in the patient's file and distributed to the requesting physician by Marrero. Marrero was then responsible for sending a form to UMDNJ's billing department, which would bill the patient's insurance company or other payor.
In the summer of 2003, Wimalawansa complained to Marrero that he was experiencing computer problems that impaired his ability to read scans and issue the reports. He requested Marrero to contact UMDNJ's information technology department to arrange a repair. Marrero suggested that Wimalawansa come to her office and read the scans on her computer pending resolution of the problem. According to Marrero, Wimalawansa answered her suggestion in a "very nasty" manner. Marrero contacted the IT department, but the problem remained unresolved indefinitely.
By July 2003, Marrero observed that Wimalawansa was late in preparing reports. She and Wimalawansa communicated about the ongoing technological problems, and she informed him that she had received several telephone calls from doctors waiting for reports on their patients. At some point in 2003, Marrero reported Wimalawansa's reporting delays to Alec Cohen, an assistant to Wimalawansa's supervisor. Marrero met with Cohen and again complained about Wimalawansa's delays in April 2005.
When Wimalawansa learned that Marrero had complained to Cohen, he warned her to stop speaking with Cohen about the problem. According to Marrero, Wimalawansa made comments to her in front of others, such as "I do not want to hear what you have to say, all you do is speak garbage." Marrero testified that Wimalawansa would occasionally come into her office and tell her "very aggressively, I want to talk to you, and would . . . glare" at her. Whenever Wimalawansa asked to speak with her privately, Marrero requested that a nurse be present.
In 2007, Marrero made an internal complaint in which she alleged that Wimalawansa had been altering the dates on medical records since June 2006, and that he sometimes lost medical images when doing so. She further alleged that Wimalawansa failed to read patient scans in a timely manner. Her allegations were substantiated after an internal investigation by UMDNJ.
In August 2007, Marrero sought other employment. She decided to switch jobs because she was feeling pressure from Wimalawansa and believed she might lose her job. Marrero found another job and submitted her resignation in September, to be effective in October.
Apparently due to various internal allegations or disagreements among UMDNJ administrators, Wimalawansa was removed as chief of the endocrinology division in February 2008, but he continued to work for the division and remained in charge of the DXA unit. Also in February, Louis Amorosa, M.D., who succeeded Wimalawansa as chief of the endocrinology division, contacted Marrero and invited her to return to UMDNJ as a DXA scan technician. Marrero accepted, and returned in August 2008. On her return, Marrero was supervised by Julia Grimes, D.O.
Marrero asserts that Wimalawansa harassed her after she returned to UMDNJ and tried to have her terminated in retaliation for her role in the earlier investigation of his conduct. According to Marrero, Wimalawansa regularly glared at her when he saw her in the workplace, which re-ignited her fear and anxiety about losing her job.
On October 6, 2008, Wimalawansa wrote an email to Cohen and four others, which stated in part:
Meanwhile, you hired the DXA technologist [Marrero] who was terminated last year due [to] the combination of her refusal to decrease work-hours voluntarily and due to her poor quality of work. You and I discussed this many times last year; especially her inability to improve even after I sent her for three independent full-day outside specific DXA training courses, for which I paid her tuition fees of about $4, 500. You as a former experienced radiology person, agreed with these, especially her lack of capabilities of properly carrying out DXA BMD testing studies in our patients.
. . . I am copying this to HR for her input and I request an investigation into the validity of this appointment of this part time DXA technologist (which is in fact not warranted).
According to Marrero, the assertion that she was terminated for cause was false. She points to the fact that Wimalawansa had given her good evaluations during the period he was her direct supervisor.
In an October 10 email to Cohen and others, Wimalawansa complained that there was not enough work for two technicians and that having two was a "financial scandal." Wimalawansa asked Cohen to "advi[s]e the HR immediately to eliminate the new DXA (and the reading faculty) hires (before the division waste[d] further resources), as there is absolutely no DXA volume or any other reason to justify these two inappropriate hires." Marrero was "the new DXA."
Wimalawansa's October 16 email to Cohen made additional complaints. After alleging that Marrero forgot to show up for patient scans, Wimalawansa wrote:
This highly inappropriate (due to multiple reasons) per-diem DXA technologist hire needs to be terminated immediately. I request Alec Cohen as the responsible person, to inform this to HR this week; without further wasting funds and the credibility.
Although Marrero did not receive the three emails until after this litigation began, she heard from a co-worker that Wimalawansa was "starting to push [her] out" again. According to Marrero, she became more nervous and fearful that she would lose her job after she learned about Wimalawansa's efforts. She claims Wimalawansa sent the emails to a nurse who worked with her, hoping the nurse would tell her about their contents.
In December, Wimalawansa taped a note to the DXA computer table used by Marrero and another technician when they administered scans. The note stated that only the other technician was to administer scans on his patients and that any violation of the rule would be "a serious ethical issue." According to Marrero, this caused her further ...