The opinion of the court was delivered by
ESPINOSA, J.A.D.
A licensed or certified health care professional may assert a claim against his or her employer pursuant to the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, based upon a reasonable belief that the employer's conduct "constitutes improper quality of patient care[.]" N.J.S.A. 34:19-3a(1) and c(1). The statutory definition of "improper quality of patient care" includes the violation of "any professional code of ethics." N.J.S.A. 34:19-2(f). In this appeal, we consider whether plaintiff's proof, and specifically his reliance upon a professional code of ethics not applicable to his employer, was sufficient to support a liability verdict in his favor. For the reasons that follow, we conclude that, as a matter of law, plaintiff failed to prove the first element of his CEPA claim.
Plaintiff was terminated from his employment as a registered nurse by defendant, Bridgeway, Inc., d/b/a Bridgeway Care Center (defendant or Bridgeway), after he called various governmental agencies and the media to report his concerns about Bridgeway's response to what he considered an inordinate rate of infection among patients. He filed this action, alleging his termination violated CEPA. Plaintiff claimed, and the jury found, he had an objectively reasonable belief that Bridgeway provided "improper quality of patient care," or violated a law or public policy. As support for the reasonableness of his belief, he identified the American Nursing Association's Code of Ethics (the ANA Code of Ethics), Bridgeway's Employee Handbook (the Handbook) and Statement of Residents' Rights. Although the jury returned a liability verdict in plaintiff's favor, it awarded no damages. Plaintiff appeals from the damages verdict and defendant cross-appeals from the liability verdict.
Defendant owns and operates a licensed long-term care nursing home facility, with a sub-acute unit for short-term stays.
In January 2008, plaintiff was the evening and weekend shift supervisor at Bridgeway. On January 11, 2008, he circulated the following email to the administrator of Bridgeway and other employees:
To whom it will Concern,
On the same day, plaintiff approached Frances Gerber, the Director of Nursing, and Wayne Blum, Bridgeway's administrator, with an article about an influenza epidemic. There were no cases of influenza in the facility. Nonetheless, Gerber discussed plaintiff's email with Bridgeway's Medical Director, Dr. Anthony Frisoli, who did not agree with plaintiff's assessment. Gerber circulated a reply to plaintiff's email, in which she reminded supervisory personnel "that the mode of transmission is contact" and of the "need to stress the importance of handwashing[.]"
Plaintiff responded with the following email:
The record does not include any response by defendant to this email or any effort by plaintiff to pursue his concerns further with Bridgeway.
On January 14, using a fictitious name, plaintiff contacted the Bridgewater Township Board of Health because he believed "there wasn't enough action being taken by the facility" to address what he considered an inordinate rate of infection. After he was told that the Township had no authority in this area, plaintiff contacted the Somerset County Board of Health (Board of Health), again using a fictitious name, about his concerns.
On January 15, 2008, the Board of Health contacted Gerber and advised it had received a report that there had been a number of major illnesses in the facility and that a number of people had been hospitalized. The Board of Health requested information about the hospitalizations and the symptoms experienced by residents at the facility. Unbeknownst to plaintiff, Gerber gathered the requested
On January 16, plaintiff placed a call to the New Jersey Department of Health and Social Services (Department of Health). Using the fictitious name again, he stated there was an unaddressed epidemic
Following this telephone call, Gerber asked plaintiff to meet with her and Blum. They asked plaintiff if he had contacted the Board of Health and the Department of Health. He denied doing so. On January 21, Gerber asked plaintiff to meet alone with her. She asked him if he had made the anonymous calls and, once more, he denied doing so.
On January 22, defendant contacted local media and alleged there was an untreated epidemic in the facility. New Jersey Network (NJN) elected to pursue the story. Plaintiff removed administrative logs containing confidential patient information from the facility. He attempted to redact confidential information from the logs and then faxed them to Walter Kane, a reporter with NJN. However, plaintiff's attempt at redaction was not completely successful for he had failed to delete some residents' room numbers, which would have allowed a third party to identify and contact the residents.
On the morning of January 23, Kane confronted Donald Pelligrino, the Chief Executive Officer and an owner of Bridgeway, at the facility. Kane told Pelligrino that an anonymous source reported an outbreak of illness at the facility, resulting in one death, and that Bridgeway was not taking appropriate measures. Kane also showed Pelligrino a copy of the partially redacted administrative logs.
Blum and Gerber met with plaintiff and Denise Zulpa, Director of Human Resources, on January 23. In this meeting, which plaintiff secretly recorded, he admitted contacting the government agencies and the news media. Blum and Gerber questioned plaintiff's basis for concluding the facility was not being run appropriately. Plaintiff stated, "[a]ll I know is that 34 patients had GI symptoms, and we did not take proper procedures or precautions, nor did we seem very motivated to find out what it was."
Blum demanded to know what activity required by State regulation had not been taken. He noted that a report to the State was unnecessary because the thirty-four patients were not all suffering the same symptoms at the same time. Gerber stated that some of the patients with respiratory symptoms had aspiration pneumonia. Plaintiff acknowledged that possibility.
Blum expressed disappointment in plaintiff's lack of confidence in his leadership and said, "I know that everything we had to do we followed state regs and got advice from the state." Gerber stated that plaintiff's "[l]ack of integrity" in lying was a concern. The conversation then turned to the release of the administrative logs, which plaintiff conceded was a violation of the confidentiality policy.
Later that day, plaintiff was suspended with pay pending Bridgeway's investigation of the extent of his disclosures to the media. On January 25, 2008, plaintiff was told his employment was terminated as a result of his contacting the news media and violating both the Health Insurance Portability and Accountability Act of 1996 (HIPAA), 42 U.S.C.A. §§ 1320d-1 to -9, and Bridgeway's confidentiality policy.
Plaintiff filed a complaint against Bridgeway. He alleged that he had repeatedly objected to its "improper quality of patient care" and disclosed to government regulators "practices of Defendant that [he] reasonably believed constituted improper quality of patient care and violations of his professional code of ethics[.]" Plaintiff contended that Bridgeway violated CEPA because his employment was terminated in retaliation for engaging in this protected activity.
In addition to the ANA Code of Ethics, plaintiff identified the Code of Conduct contained in the Handbook and the Statement of Residents' Rights as relevant to the reasonableness of his belief that Bridgeway provided an improper quality of healthcare to its residents. Plaintiff admitted that the ANA Code of Ethics applied to him and did not apply to defendant. He testified that the Handbook required him "to support and comply with the standards of [his] professional licensure ... [and his] ethics and standards as a registered nurse." Plaintiff described the Statement of Residents' Rights as follows:
On cross-examination, plaintiff conceded that he did not know better than Dr. Frisoli, Gerber, or the unit managers what precautionary measures were appropriate in January 2008. He explained he "just thought [they] had a difference of opinion." Plaintiff also admitted he had violated the confidentiality policy and could be terminated for doing so.
At the close of plaintiff's case, defendant moved to dismiss the complaint on the ground that plaintiff had failed to prove he had an objectively reasonable belief that Bridgeway provided improper quality of health care or violated a law or public policy, the first element of his CEPA claim. Defense counsel noted that the only authority cited by plaintiff to support the reasonableness of his belief was the ANA Code of Ethics which, plaintiff admitted, did not apply to Bridgeway.
Plaintiff's counsel argued that a code of ethics not applicable to defendant could still provide a basis for the requisite reasonable belief. He cited defendant's Code of Conduct in its Employee Handbook and the Statement of Residents' Rights as further support for the reasonableness of plaintiff's belief, and described the relevant portions from these documents:
The court agreed with plaintiff's counsel that, although the ANA Code of Ethics did not apply to defendant, it could be used to determine "whether there's improper health care" or to "establish[] public policy." Accordingly, defendant's motion was denied.
Plaintiff requested that Model Jury Charge (Civil), 2.32, "New Jersey Conscientious Employee Protection Act," be read to the jury regarding his CEPA claim. The court gave the following instruction regarding the first element of this claim:
The court did not provide the jurors with the statutory definition of "improper
The first two questions on the verdict sheet asked the jury whether plaintiff had proven "that his belief that Bridgeway provided improper quality of health care or violated the law of public policy was objectively reasonable" and if proven, "that his reporting to the government was a determinative motivating factor in Bridgeway's decision to terminate his employment[.]" The jury answered "Yes" to each of these questions and was therefore instructed by the verdict sheet to proceed to the third question regarding damages.
The third question asked, "Do you find that [plaintiff] is entitled to compensation for past lost pay?" The question was followed by this instruction: "Stop your deliberations. The Court will set the amount of Mr. Hitesman's lost pay."
After receiving the vote on each question, the court polled the jurors as to their vote on the specific question. Upon receiving the vote on the third question, the court announced, "Based on your verdict, judgment is entered for the defendant." Plaintiff's counsel interjected that he thought there was "some confusion on the jury." A juror said, "Yeah," and asked to say something. The court did not permit the juror to speak. Plaintiff's counsel asked the court to poll the jury "to make sure that ... they realize that voting no on question 3 means [plaintiff] loses the trial and Bridgeway gets a verdict in its favor." The court declined to inquire further, stating there was "absolutely no confusion on the part of the jury as to the questions they answered."
Plaintiff moved for entry of judgment notwithstanding the verdict pursuant to R. 4:40-2(b), based on the jury's liability determination. Plaintiff's girlfriend, Mary Walker, submitted a certification in which she stated she overheard four jurors discussing the result of the trial, expressing confusion, and that they apologized to her about the result. Both this motion and a motion for reconsideration were denied. Bridgeway also moved for a judgment notwithstanding the verdict on liability, which was denied.
In his appeal, plaintiff argues that the trial court erred in dismissing the jury without resolving "the jury's inconsistent verdict of liability without the stipulated damages" as required by Rule 4:39-2. He
CEPA is "designed to protect employees who blow the whistle on illegal or unethical activity committed by their employers or co-employees." Estate of Roach v. TRW, Inc., 164 N.J. 598, 609-10, 754 A.2d 544 (2000).
As noted, "improper quality of patient care" is a defined term in the statute. It applies to an employer that is a health care provider and means "any practice, procedure, action or failure to act [with respect to patient care] ... which violates any law or any rule, regulation or declaratory ruling adopted pursuant to law, or any professional code of ethics." N.J.S.A. 34:19-2(f).
Therefore, the four essential elements applicable to plaintiff's CEPA claim are: (1) he reasonably believed that his employer's conduct violated either "any professional code of ethics" or, under c(3), a clear mandate of public policy; (2) he performed a "whistle-blowing" activity described in N.J.S.A. 34:19-3; (3) an adverse employment action was taken against him; and (4) a causal connection exists between the whistle-blowing activity and the adverse employment action. See Dzwonar v. McDevitt, 177 N.J. 451, 462, 828 A.2d 893 (2003); Klein v. Univ. of Med. & Dentistry of N.J., 377 N.J.Super. 28, 38, 871 A.2d 681 (App.Div.), certif. denied, 185 N.J. 39, 878 A.2d 856 (2005).
Defendant stipulated that plaintiff performed a whistle-blowing activity in calling the governmental agencies and that his termination constituted the requisite adverse employment action, thus satisfying the second and third elements of plaintiff's claim. The issue here is whether plaintiff satisfied the first prong of his CEPA claim, which required him to "set forth facts that would support an objectively reasonable belief that a violation has occurred." Dzwonar, supra, 177 N.J. at 464, 828 A.2d 893.
In furtherance of its purpose to protect and encourage whistleblowers, CEPA is not intended "to make lawyers out of conscientious employees...." Mehlman v. Mobil Oil Corp., 153 N.J. 163, 193, 707 A.2d 1000 (1998). Therefore, a plaintiff is not required to show that the relevant legal authority or clear mandate of public policy "actually would be violated if all the facts he or she alleges are true." Dzwonar, supra, 177 N.J. at 464, 828 A.2d 893. Rather, the plaintiff must "set forth facts that would support an objectively reasonable belief that a violation has occurred." Ibid.
Proof of such a factual basis begins with the identification of the relevant legal authority or public policy the plaintiff believes his or her employer violated. Before a CEPA claim may be submitted to a jury, the court must identify a legal authority recognized in the statute "that closely relates to the complained-of conduct[,]" id. at 463, 828 A.2d 893 (emphasis added), and "make a threshold determination that there is a substantial nexus between the complained-of conduct and a law or public policy identified...." Id. at 464, 828 A.2d 893 (emphasis added). "The trial court can and should enter judgment for a defendant when no such law or policy is forthcoming."
It is not enough for an employee to rest upon a sincerely held — and perhaps even correct — belief that the employer has failed to follow the most appropriate course of action, even when patient safety is involved. A plaintiff cannot rely upon "a broad-brush allegation of a threat to patients' safety[,]" because CEPA affords no protection for the employee who simply disagrees with lawful policies, procedures or priorities of the employer. Klein, supra,
Therefore, to prove his claim based upon an allegation of "improper quality of patient care" under N.J.S.A. 34:19-3a(1) or c(1), plaintiff was first required to identify the professional code of ethics that he believed Bridgeway violated. To support his claim under N.J.S.A. 34:19-3c(3), plaintiff was required to identify "a clear mandate of public policy concerning the public health, safety or welfare" with which he reasonably believed Bridgeway's conduct was incompatible. See Dzwonar, supra, 177 N.J. at 462, 828 A.2d 893; Mehlman, supra, 153 N.J. at 187-88, 707 A.2d 1000; Schechter, supra, 327 N.J.Super. at 431, 743 A.2d 872. However, further inquiry is required because the mere identification of an authority does not alone provide adequate support for an objectively reasonable belief that a violation has occurred.
In Dzwonar, the plaintiff was terminated from her employment as a paid arbitration officer by Local 54 of the Hotel and Restaurant Employees International Union after she repeatedly objected to the Executive Board's refusal to read its minutes at the general membership meetings. 177 N.J. at 456, 828 A.2d 893. She identified specific provisions of the Labor Management Reporting and Disclosure Act (LMRDA), 29 U.S.C.A. §§ 401 to -531, as well as the Union's bylaws and a public policy that she believed the Union had violated. Id. at 465-66, 828 A.2d 893. The identified authorities related to the Union's relationship with its members. Yet, the Court analyzed each of the authorities identified in turn and concluded that none provided adequate support for an objectively reasonable belief that defendants had violated a law.
The Court first addressed the plaintiff's reliance upon section 101(a)(1) of the LMRDA. To establish a claim under that section, "a union member must allege a denial of rights accorded to other members[.]" Id. at 466, 828 A.2d 893 (internal quotation marks omitted). Because the plaintiff's claim did not concern such a denial of rights to others, but "only a disagreement regarding access to information[,]" the Court found no "close relationship" between plaintiff's claims and the statute relied upon as support for her
The Court then turned to plaintiff's argument that she reasonably believed defendants violated section 101(a)(2) of the LMRDA, which grants union members "the right to meet and assemble freely with other members; and to express any views, arguments, or opinions[.]" 29 U.S.C.A. § 411(a)(2). The Court found that, because plaintiff failed to identify any conduct by defendants that implicated those protections, "she did not possess an objectively reasonable belief that defendants' actions violated section 101(a)(2)" as a matter of law. Dzwonar, supra, 177 N.J. at 467-68, 828 A.2d 893.
Next, the Court considered plaintiff's claim that she reasonably believed defendants' failure to explain their actions more fully to the general membership violated section 501(a) of the LMRDA. The Court dismissed this as a "dispute concern[ing] the adequacy of the Union's internal procedures" and concluded "as a matter of law that plaintiff did not possess an objectively reasonable belief that section 501 of LMRDA was violated." Id. at 468, 828 A.2d 893.
The Court rejected the plaintiff's reliance upon an alleged violation of the Union's bylaws because such bylaws are not included among the authorities enumerated in N.J.S.A. 34:19-3c(1), which requires her objection to be based upon a reasonable belief that defendants' conduct violated "a law, or a rule or regulation promulgated pursuant to law[.]" Id. at 469, 828 A.2d 893. The Court concluded that this claim should have been precluded by the trial court. Ibid. Finally, the Court rejected plaintiff's claim that her termination violated a clear mandate of public policy, stating it could not identify such a policy. Ibid.
The Court's analysis in Dzwonar makes it clear that, once the relevant legal authority is identified, the plaintiff's factual allegations must be evaluated in light of that authority to determine whether the plaintiff possessed an objectively reasonable belief that a cognizable violation occurred. See McLelland, supra, 343 N.J.Super. at 600, 779 A.2d 463; Mehlman, supra, 153 N.J. at 193, 707 A.2d 1000; Klein, supra, 377 N.J.Super. at 40, 871 A.2d 681. No cognizable violation can occur if the authority relied upon is not one specified in the statute. See Dzwonar, supra, 177 N.J. at 469, 828 A.2d 893. While proof of a violation is unnecessary, the required "close relationship" between a claim and the authority identified cannot exist when an element necessary to a claim under that authority is not present, see id. at 467, 828 A.2d 893, or the protection afforded by the authority does not apply to the employee's claim. Id. at 467-68, 828 A.2d 893. Under such circumstances, the employee lacks an objectively reasonable belief of a violation as a matter of law.
In this case, the conduct complained of was "Bridgeway's response" to what plaintiff believed was an increase in gastrointestinal and respiratory symptoms. As noted, plaintiff did not identify any law or any rule, regulation or declaratory ruling adopted pursuant to law that he believed defendant had violated. He identified the relevant authorities as Section 3.5 of the ANA Code of Ethics, the Code of Conduct contained in the Handbook, and the Statement of Residents' Rights.
Neither the Code of Conduct nor the Statement of Residents' Rights qualify as "any law or any rule, regulation or declaratory ruling adopted pursuant to law or any professional code of ethics." N.J.S.A. 34:19-2(f). Therefore, neither may support an objectively reasonable belief that Bridgeway's conduct constituted an improper quality of patient care under N.J.S.A. 34:19-3a(1) or c(1). See Dzwonar, supra, 177 N.J. at 469, 828 A.2d 893 ("[B]ylaws are not a `law, rule or regulation' pursuant to CEPA[.]").
Because N.J.S.A. 34:19-2(f) includes "any professional code of ethics," plaintiff's reliance upon the ANA Code of Ethics does not die on the threshold of the statutory definition. The question remains whether the ANA Code of Ethics can support an objectively reasonable belief that Bridgeway violated it.
As plaintiff acknowledged, the ANA Code of Ethics does not apply to Bridgeway. He contended, however, that it could provide a basis for a CEPA claim, in part because the ANA Code of Ethics was incorporated in Bridgeway's Handbook.
The trial court accepted plaintiff's argument that "any code of ethics," even one not applicable to the employer, could support a plaintiff's reasonable belief of a violation, relying upon Kalman v. Grand Union Co., 183 N.J.Super. 153, 443 A.2d 728 (App.Div.1982), in which liability was found against defendant, a grocery store, for violation of a code of ethics applicable to pharmacists. This reliance was misplaced both legally and factually. Kalman was decided prior to CEPA and therefore did not entail an interpretation of the statutory definition of "any professional code of ethics." See N.J.S.A. 34:19-2(f). Moreover, because the entire Grand Union store was licensed as a pharmacy, it was subject to the code of ethics and statutes applicable to pharmacists. Kalman, supra, 183 N.J.Super. at 155, 443 A.2d 728.
The section of the ANA Code of Ethics relied upon by plaintiff provides guidance to nurses who become aware of "instances of incompetent, unethical, illegal, or impaired practice" in the provision or denial of health care. Its purpose is to inform nurses on the proper discharge of their responsibility as patient advocates under such circumstances. Even as "incorporated" in Bridgeway's Handbook, the ANA Code of Ethics provided standards for employees to follow.
Here, plaintiff questioned the quality of care provided by Bridgeway. The section of the ANA Code of Ethics may provide guidance for a determination of whether plaintiff acted in compliance in expressing his concerns, but the question of his own compliance is irrelevant. Even if he had complied with the Code, such compliance would shed no light on whether his concerns were based upon a purely subjective disagreement or an objectively reasonable belief that his employer engaged in misconduct. More important, the ANA Code of Ethics establishes no standard regarding the patient care Bridgeway was required to provide to its patients. As a result, plaintiff's belief that Bridgeway acted in violation of the ANA Code of Ethics was not objectively reasonable as a matter
We next turn to plaintiff's claim that he reasonably believed Bridgeway's conduct was "incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment[,]" N.J.S.A. 34:19-3c(3). His reliance upon the ANA Code of Ethics, the Code of Conduct and Statement of Residents' Rights remains inadequate to support the first prong of this claim as well.
To sustain a CEPA claim, "the mandate of public policy [must] be clearly identified and firmly grounded" and must not be "vague, controversial, unsettled, [or] otherwise problematic[.]" See Mehlman, supra, 153 N.J. at 181, 707 A.2d 1000 (quoting MacDougall v. Weichert, 144 N.J. 380, 391-92, 677 A.2d 162 (1996)). In addition, "the complained of activity must have public ramifications, and ... the dispute between employer and employee must be more than a private disagreement." Maw v. Advanced Clinical Commc'ns, Inc., 179 N.J. 439, 445, 846 A.2d 604 (2004).
"[S]ources of public policy include legislation; administrative rules, regulations or decisions; and judicial decisions. In certain instances, a professional code of ethics may contain an expression of public policy." Pierce, supra, 84 N.J. at 72, 417 A.2d 505. Although a clear mandate of public policy under N.J.S.A. 34:19-3c(3) is not limited to policy expressed in a statute, rule or regulation promulgated pursuant to law,
As we have noted, the section of the ANA Code of Ethics relied upon by plaintiff provides guidance to nurses in their roles as patient advocates. Although, arguably, it is not designed "to serve only the interests of a profession[,]" see Pierce, supra, 84 N.J. at 72, 417 A.2d 505, it neither expresses any policy based upon a constitutional provision, statute, rule or regulation promulgated pursuant to law, nor provides a standard that clearly delineates "acceptable [versus] unacceptable conduct." See Maw, supra, 179 N.J. at 444, 846 A.2d 604.
However, even if the ANA Code of Ethics were considered a "clear mandate of public policy," plaintiff has identified no "incompetent, unethical, illegal, or impaired practice" by Bridgeway that would implicate the Code. Further, plaintiff has not identified any action by Bridgeway that was incompatible with any expression of policy in the Code. To the contrary, the evidence showed that Bridgeway responded to plaintiff's emails and took no action to thwart plaintiff from taking any action suggested by the ANA Code of Ethics.
The Code of Conduct and the Statement of Residents' Rights similarly fail to reflect a clear mandate of policy. Generalized statements about a commitment to "the best quality health care" and requirements that employees comply with all applicable statutes, regulations and ethical standards are far too vague to provide "a
We are therefore satisfied that plaintiff lacked an objectively reasonable belief that Bridgeway engaged in conduct that was incompatible with a clear mandate of public policy based on the ANA Code of Ethics, the Code of Conduct or the Statement of Residents' Rights. Because he lacked an objectively reasonable belief that Bridgeway's conduct constituted improper quality of patient care or violated public policy, plaintiff failed to satisfy the first prong of his CEPA claim as a matter of law. In short, as plaintiff testified, his dispute with his employer was just "a difference of opinion."
The verdict in plaintiff's favor on liability is reversed.
Moreover, although we conclude that the ANA Code of Ethics, Bridgeway's Code of Conduct and Statement of Residents' Rights could not serve as the source of law or public policy to support plaintiff's claim here, we note that the instruction given to the jury did not specify what portion of those authorities plaintiff believed had been violated as required by the Model Jury Charge.
