(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interests of brevity, portions of any opinion may not have been summarized).
Argued March 14, 2000 -- Decided June 7, 2000
PER CURIAM
The primary question in this appeal, which concerns New Jersey's Conscientious Employee Protection Act
(CEPA), is whether an employer can terminate an employee for “insubordination” for failing to follow the
employer's chain-of-command structure for making workplace complaints about perceived unethical or illegal
activity.
The employee who was terminated, Barbara R. Fleming, worked as a nurse at the Edna Mahan Correctional
Facility, a prison for women. At the time of the termination, the Department of Corrections had “privatized” medical
services at the prison and hired an outside corporation, Correctional Healthcare Solutions, Inc. (CHS), to deliver
those services. CHS thus became Fleming's employer. Fleming's immediate supervisor was Sally Simpson. Above
Simpson in the nursing chain-of-command was Jennifer Miers.
In the spring of 1996, within a few months after the effective date of a new law that requires inmates to pay
a nominal fee for medical services and medications, Fleming began complaining to Simpson that she had noticed that
medical services and medications were being provided to inmates who had not completed the required co-payment
form and thus were not charged the required co-payment. Simpson and Miers acknowledged that Fleming made
these complaints and they acknowledged that the co-payment forms often were not completed. In addition, Fleming
complained to Simpson that CHS employees were providing medications to inmates under expired doctor's orders,
which she believed violated state and federal law.
On July 2, 1996, Fleming sent a letter to Donald Moore, the Director of the Medical Department at the
prison for CHS, complaining about the violations she had observed. The next day Miers returned the letter to
Fleming with a handwritten note attached telling her that the letter first should go to Simpson, who then should take
it to Miers, who in turn would take it to Moore.
On July 5, 1996, Fleming sent Miers a letter setting forth the identical complaints made in her July 2 letter
to Moore. Fleming stated that although she was instructed to send the letter to Simpson first, she did not do so
because she believed she should bring the problems to the attention of the highest person in command and that her
prior oral complaints to Simpson had not produced results.
One week later, on July 12, 1996, Miers fired Fleming, telling her that the July 5 letter was the “most
important thing” and that Fleming had failed to follow the chain of command. Miers said Fleming's conduct
constituted “willful disobedience” and that she was terminated. Miers also told Fleming, for the first time, that
Fleming had received a negative performance review from Simpson.
Fleming's initial evaluation as a CHS employee, dated May 30, 1996, had described her performance as
“meets expectations” and reported no problems with her performance. Simpson acknowledged that she had no
problems with Fleming's performance prior to May 30. Simpson had told another nurse prior to Fleming's
termination that “I'm not giving anybody a bad evaluation. I don't have anything bad to say about anybody.” When
this nurse later learned of Simpson's negative review of Fleming, she confronted Simpson about the earlier statement
and Simpson responded: “We all need our jobs.”
In the litigation Fleming filed against CHS, Miers, Simpson, and others, she asserted that her termination
violated CEPA because it was in retaliation for her submission of complaints of illegal workplace conduct. CHS
contended that it fired Fleming for “insubordination” in reporting misconduct to a higher-up, in combination with
poor job performance exacerbated by her refusal to follow direct orders. Fleming, in turn, argued that CEPA permits
employees to submit legitimate CEPA complaints to any individual who falls within CEPA's definition of
“supervisor.”
On a motion for summary judgment, the trial court found that Fleming had presented evidence from which a
jury could find that her belief that illegal conduct was occurring was objectively reasonable, but found that her
whistle-blowing was not protected. The Appellate Division, to which Fleming appealed, agreed with the trial court
and held that Fleming did not produce sufficient evidence to establish that her firing was due to her complaints about
CHS's violations and not due to her refusal to follow instructions from Miers regarding the submission of complaints
through the chain of command and for her refusal to follow orders in the dispensing of medication. The Supreme
Court granted Fleming's petition for certification, primarily to consider the chain-of-command issue.
HELD: An employer cannot fire an employee for “insubordination” because the employee failed to follow the chain
of command established by the employer when the employee is making complaints of illegal or unethical workplace
conduct.
1. CEPA is remedial legislation intended to protect employees who report illegal or unethical activities in the
workplace, to encourage employees to report such conduct, and to discourage employers from engaging in illegal or
unethical workplace activities. Under CEPA, an employee has the right to submit complaints of illegal or unethical
conduct to any individual defined as a “supervisor” in the statute, a term that is broadly defined and that in this case
includes, among others, Miers. CHS cannot limit the definition of “supervisor” under CEPA and cannot punish
Fleming for submitting her CEPA-protected complaints to Miers rather than to Simpson. (pp. 7-9)
2. A chain-of-command defense may be used by an employer as a valid nondiscriminatory reason for an employee's
firing, but permitting violation of a chain of command in reporting illegal or unethical workplace activity to justify
discipline of an employee undermines the intent of the Legislature in passing CEPA. It cannot be relied on to justify
Fleming's termination. (pp. 10-12)
3. On the evidence in this case, a jury could infer that Simpson's negative evaluation of Fleming was a pretext
designed to cover up CHS's retaliation against Fleming for reporting the sloppy and illegal practices she observed.
In order to prevail ultimately, Fleming must prove that CHS was motivated by this retaliatory intent when it fired her.
On remand, the trial court should reconsider the summary judgment application in light of the principles stated by the
Court and any additional proofs the parties may submit. (pp. 12-18)
The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the Law
Division for further proceedings in accordance with this opinion.
JUSTICE VERNIERO, dissenting, agrees that an employee may not be lawfully discharged for blowing
the whistle on a supervisor by lodging a CEPA complaint outside of the employer's chain-of-command structure, but
is of the view that Fleming did not produce sufficient evidence to support the inference that she bypassed Simpson
because Simpson was involved in wrongdoing or to establish that her termination was the result of her protected
activity and not due to her refusal to follow instructions from Miers about the submission of complaints or for her
refusal to follow orders in dispensing medication.
JUSTICES O'HERN, STEIN, COLEMAN, LONG and LaVECCHIA join in the Court's opinion.
JUSTICE VERNIERO filed a separate dissenting opinion in which CHIEF JUSTICE PORITZ joins.
SUPREME COURT OF NEW JERSEY
A-
39 September Term 1999
BARBARA R. FLEMING,
Plaintiff-Appellant,
v.
CORRECTIONAL HEALTHCARE
SOLUTIONS, INC., JENNIFER
MIERS and SALLY SIMPSON,
Defendants-Respondents,
and
JANE DOE and ROBERT ROE,
Defendants.
Argued March 14, 2000-- Decided June 7, 2000
On certification to the Superior Court,
Appellate Division.
John F. McDonnell argued the cause for
appellant (Rand, Algeier, Tosti & Woodruff,
attorneys).
Alan S. Gold, a member of the Pennsylvania
bar, argued the cause for respondents
(McElroy, Deutsch & Mulvaney, attorneys;
Joseph P. LaSala, on the brief).
Per Curiam
This appeal concerns the Conscientious Employee Protection
Act (CEPA or Whistleblower Act), N.J.S.A. 34:19-1 to -8. The
central question in the appeal is the extent to which an employer
can dictate to its employees the manner in which complaints of
illegal workplace conduct can be made. More specifically, can an
employer fire an employee on the basis of “insubordination”
because the employer has directed that the complaints be
submitted to a lower-level supervisor who had previously ignored
the same complaints?
Plaintiff contends that CEPA permits employees to submit
legitimate CEPA complaints to any individual who falls within the
definition of “supervisor” as defined in N.J.S.A. 34:19-2(d). No
employee can be lawfully terminated for submitting a CEPA
complaint to “any individual with an employer's organization who
has the authority to direct and control the work performance of
the affected employee, who has authority to take corrective
action regarding the violation of the law, rule or regulation of
which the employee complains, or who has been designated by the
employer on the notice required [by] this act.” Ibid.
Prior to April 1, 1996, the State of New Jersey employed plaintiff, Barbara R. Fleming, and defendants Sally Simpson and Jennifer Miers as nurses at the Edna Mahan Correctional Facility, a prison for women.
In April 1996, the Department of Corrections “privatized” medical services at the Facility and hired an outside corporation to provide those services. In turn, that private corporation contracted with Correctional Healthcare Solutions, Inc. (CHS) to deliver the services. Fleming, Simpson and Miers were retained by CHS to work as nurses at the Facility. After the takeover, Simpson was employed as the “Evening Charge Nurse” and was Fleming's immediate supervisor. Miers was employed with CHS initially as Charge Nurse, became a nursing supervisor from mid May 1996 until June 1996, and then in late June or early July 1996 became CHS's Health Services Administrator.
On March 12, 1996, the Assistant Commissioner of the Department of Corrections sent a memorandum to all administrators and superintendents setting forth the new policies and procedures to be implemented as a result of the passage of N.J.S.A. 30:7E-1 to -6. That statute requires inmates to pay a nominal fee for medical services and medications. N.J.S.A. 30:7E-2. Pursuant to the Commissioner's memorandum, all inmates requesting medical services or medications were to be required to complete a medical request form (Form HS-01). All inmates were to be assessed a co payment of $5.00 for medical services and $1.00 for medications. Form HS-01 had to be completed in order to implement the co payment.
After CHS took over, Fleming observed that medical services and medications were being provided to inmates who had not completed the required co-payment form and thus were not charged the required co-payment. She may appear to some to be a rarity in public life (a stereotype of state employees that is unjustified) - a worker who tries to save the taxpayers' money, not waste it. Beginning in late May or early June 1996, Fleming complained to her boss, Simpson, on several occasions about CHS's failure to enforce this law. Simpson and Miers acknowledge that Fleming made these complaints. It is also undisputed that these HS-01 co-payment forms were often not completed. Fleming also complained to Simpson that CHS employees were providing medications to inmates under expired physician orders, which she believed to be in violation of N.J.S.A. 2C:21-20, N.J.S.A. 45:9 22, and the Federal Food, Drug and Cosmetic Act, 21 U.S.C. §301 to §397.
The courts below found that Fleming had presented evidence from which a jury could find that her belief that illegal conduct was occurring was objectively reasonable. See Higgins v. Pascack Valley Hosp. 158 N.J. 404, 424 (1999) (holding “that the CEPA prohibits an employer from taking retaliatory action against an employee who has a reasonable basis for objecting to a co-employee's activity, policy, or practice covered by N.J.S.A. 34:19-3”). However, each court found that Fleming's whistle blowing was not protected. In an unpublished opinion, the Appellate Division held that plaintiff did “not produce[] sufficient evidence to establish [that] her termination was a result of her complaining about CHS violations, and not due to her refusal to follow instructions from Miers regarding the submission of said complaints (through the chain of command) and for her refusal to follow orders in the dispensing of medication.” We granted certification primarily to consider the chain-of-command issue. 162 N.J. 486 (1999).
Because the case arises on a motion for summary judgment, we must view the controverted facts in the light most favorable to plaintiff. Here is the time line of the events as plaintiff states it:
July 2, 1996 Fleming sent a letter to Donald Moore, then the Director of the Medical Department at the facility for CHS. Fleming's letter complained about, among other things, the dispensing of medications by CHS employees to inmates without valid physician orders and the failure to complete Form HS-01 when providing services or medications to inmates.
July 3, 1996 Miers returned the letter to Fleming with the following handwritten note attached: “Dear Barb: This should first go to Sally [Simpson]_ then Sally should bring it to me and then I'll bring it to Don.”
July 5, 1996 Fleming forwarded to Miers a letter entitled “Problems.” This letter set forth the identical complaints identified in Fleming's July 2, 1996 letter to Moore. Fleming asserted that while she was instructed to send the letter to Simpson first, she did not do so because she believed she had a duty to bring these problems to the attention of the highest person in command and that her prior oral complaints to Simpson had not produced results.
July 12, 1996 Miers fired Fleming. Miers told Fleming that the “most important thing” was “this letter,” referring to the July 5, 1996, letter Fleming had sent to Miers. Miers told Fleming that she had failed to follow the “chain of command.” Miers said that Fleming's conduct constituted “willful disobedience” and that she was terminated. Miers told Fleming, for the first time, that she had received a negative performance review from Simpson. [Emphasis added.]
Plaintiff contends that this is a retaliatory firing in violation of CEPA. Defendant contends that it fired her for “insubordination” in reporting misconduct to a higher-up in combination with poor job performance exacerbated by her refusal to follow direct orders.
CEPA is remedial legislation. Barratt v. Cushman & Wakefield, Inc., 144 N.J. 120, 127 (1996). Its purpose is “to protect employees who report illegal or unethical workplace activities.” Ibid. It is also intended to “encourage employees to report illegal or unethical workplace activities and to discourage . . . employers from engaging in such conduct.” Abbamont v. Piscataway Township Bd. of Ed., 138 N.J. 405, 431 (1994). It is to be construed liberally to achieve its important social goal.See footnote 11 CEPA grants to employees the right to submit complaints of illegal or unethical workplace conduct to any individual defined as a “supervisor” in N.J.S.A. 34:19-2(d). CEPA provides, in part, that
[a]n employer shall not take any retaliatory action against an employee because the employee . . . [d]iscloses, or threatens to disclose to a supervisor . . . [a] policy or practice of the employer . . . that the employee reasonably believes is in violation of a law, or a rule of regulation promulgated pursuant to law . . . .
[N.J.S.A. 34:19-3 (emphasis added).]
Importantly, “supervisor” is defined as
any individual with an employer's
organization who has the authority to direct
and control the work performance of the
affected employee, who has authority to take
corrective action regarding the violation of
the law, rule or regulation of which the
employee complains, or who has been
designated by the employer on the notice
required under Section 7 of this act.
Thus, “supervisor” is broadly defined. It includes, among
others, Miers, to whom Fleming submitted her complaint in early
July 1996.
CHS has no right to limit CEPA's definition of “supervisor”
by mandating that its employees submit CEPA complaints to their
immediate supervisor. Certainly, it could not punish Fleming for
submitting her protected complaints to Miers, an individual who
fell within CEPA's definition of “supervisor.”
This does not mean that an employer may not fire an
employee, even a whistleblower, who is unreasonable in expressing
his or her complaints. For example, a state employee who
repeatedly called the Governor at the Governor's residence late
at night to report violations of law at a state agency could
justly be said to be insubordinate if requested not to do so.
But to discipline an employee for going over the head of a
supervisor allegedly involved in illegal or unethical workplace
activity undermines exactly what the Legislature had in mind when
it passed the Whistleblower Act. The most that can be made of a
chain-of-command defense is that it might be raised as a valid
nondiscriminatory reason for an employee's firing, that, like any
other defense would have to be resolved by a factfinder. See
McDaniel v. Temple Indep. Sch. Dist.,
770 F.2d 1340, 1348-49 (5th
Cir. 1985)(advancing “arguments in support of [plaintiff's]
contention that . . . court erred in concluding that her
unfavorable job evaluations were not motivated by a
discriminatory or retaliatory intent”). Consider our most recent
decision in Bergen Commercial Bank v. Sisler,
157 N.J. 188
(1999), involving discrimination against a bank officer because
of his youth. There the employer asserted that it was not
discriminating against the employee but rather that it fired him
because he was unqualified for the job. Id. at 197. We said
that was a question for the factfinder. Id. at 221.
Improperly applied, a chain-of-command policy will undermine
fair employment policies. See Gares v. Willingboro Township,
90 F.3d 720, 724 (3rd Cir. 1996)(describing municipality's chain-of
command procedure as trapping plaintiff between “the Scylla of
enduring [a supervisor]'s offensive conduct and the Charybdis of
possible termination for violating the chain-of-command rules” by
reporting supervisor's conduct to higher authority).
In the analogous context of disciplining public employees
for speech, the chain-of-command defense has often been raised
but often rejected.
For example, if the employee is speaking out
against the corruption of his or her
supervisors, it may be reasonable to forego
the internal complaint mechanism of the
department because it would be a futile
gesture. Cf. Brockell v. Norton,
732 F.2d 664, 668 (8th Cir.1984) (allegations
warranted going around normal chain of
command). However, where an adequate
internal complaint mechanism is established,
the employee's failure to use the complaint
procedure can be considered in determining
whether the speech was reasonable.
The seriousness of the issue of public
concern should also be considered in
determining whether the speech was
reasonable. The more serious the issue, the
greater latitude that should be given the
public employee to speak out.
[Johnsen v. Independent Sch. Dist. No. 3,
891 F.2d 1485, 1490 n. 4 (10th Cir. 1989).
In Czurlanis v. Albanese,
721 F.2d 98 (3rd Cir. 1983), the
Third Circuit reviewed an employee's claim that he was wrongly
terminated for failing to follow the employer's “chain-of
command” policy when making “whistleblowing” complaints protected
by the First Amendment. In that case, the public employer had a
“chain-of-command” policy precluding employees from addressing
complaints to the County Board of Chosen Freeholders without
first bringing the complaint to the attention of those officials
“ultimately responsible.” Id. at 105. The court held “that such
a policy cannot be used to justify the retaliatory action . . .
under the rubric of the County's interest in promoting the
efficiency of public service.” Ibid.
A policy which would compel public employees
to route complaints about poor departmental
practices to the very officials responsible
for those practices would impermissibly chill
such speech . . . . It would deter
“whistleblowing” by public employees on
matters of public concern. It would deprive
the public in general and its elected
officials in particular of important
information about the functioning of
government departments.
[Id. at 106 (citation omitted).]
That analysis should apply here. The holdings below that allow
firing for insubordination when a whistle-blowing employee
sidesteps an involved supervisor contradict the express language
of CEPA and its broad remedial purpose. Fleming's act of
communicating her complaints to Miers involved protected conduct
as a matter of law. Fleming claims that despite the difficulty
of working in a prison, she remained the kind of person who “[a]t
the end of every hard earned day . . . [found] some reason to
believe.” Bruce Springsteen, Reason to Believe,
Nebraska (Sony/Columbia 1982). We are not so certain that
plaintiff is that ideal employee, but “insubordination” for
violating a chain of command cannot be relied on to justify her
termination.
The more difficult question is whether, if “insubordination” cannot be relied on as the basis for her discharge, plaintiff may still proceed with her claim despite the other nondiscriminatory reasons for her firing including a charge that she refused to provide medication to inmates located in the housing units. Plaintiff will argue that this was a mixed-motive case in which the burden is shifted to defendant to justify the employment decision. The Appellate Division has succinctly stated the analysis applied when several reasons for an employment decision are stated.
The difference between a McDonnell Douglas or “pretext” case and a Price Waterhouse or “mixed-motive” case has been explained in the following manner:
An employment discrimination case may be
advanced on either a pretext or
“mixed-motives” theory. In a pretext case,
once the employee has made a prima facie
showing of discrimination, the burden of
going forward shifts to the employer who must
articulate a legitimate, nondiscriminatory
reason for the adverse employment decision.
If the employer does produce evidence showing
a legitimate, nondiscriminatory reason for
the discharge, the burden of production
shifts back to the employee who must show
that the employer's proffered explanation is
incredible. At all times the burden of proof
or risk of non-persuasion, including the
burden of proving “but for” causation or
causation in fact, remains on the employee.
In a “mixed motives” or Price Waterhouse
case, the employee must produce direct
evidence of discrimination, i.e., more direct
evidence than is required for the McDonnell
Douglas/Burdine [Texas Department of
Community Affairs v. Burdine,
450 U.S. 248,
101 S. Ct. 1089,
67 L. Ed.2d 207 (1981)]
prima facie case. If the employee does
produce direct evidence of discriminatory
animus, the employer must then produce
evidence sufficient to show that it would
have made the same decision if illegal bias
had played no role in the employment
decision. In short, direct proof of
discriminatory animus leaves the employer
only an affirmative defense on the question
of “but for” cause or cause in fact.
[Starceski v. Westinghouse Electric Corp.,
54 F.3d 1089, 1096 n. 4 (3d Cir. 1995)
(citations omitted).]
The distinction between a pretext and a
mixed-motive case lies in the directness of
proof of discrimination required by the
plaintiff. Starceski, supra, 54 F.
3d at
1097. In a mixed-motive case, “direct
evidence of discriminatory animus leads not
only to a ready logical inference of bias,
but also to a rational presumption that the
person expressing bias acted on it.” Ibid.
. . . .
“At a bare minimum, a plaintiff seeking
to advance a mixed-motive case will have to
adduce circumstantial evidence 'of conduct or
statements by persons involved in the
decisionmaking process that may be viewed as
directly reflecting the alleged
discriminatory attitude.'” Griffiths v.
CIGNA Corp.,
988 F.2d 457, 470 (3d Cir.),
cert. denied,
510 U.S. 865,
114 S. Ct. 186,
126 L. Ed.2d 145 (1993), overruled on other
grounds, Miller v. CIGNA Corp.,
47 F.3d 586
(3d Cir. 1995) (in banc ) (citation omitted).
[Jackson v. Georgia-Pacific Corp.,
296 N.J.
Super. 1, 18-19 (1996).]
We are satisfied from our assessment of the evidence that the
directness of proof of discrimination in this case does not make
this a mixed-motive case. This is a McDonnell Douglas pretext
case.
In order ultimately to prevail, plaintiff must prove that
retaliatory intent motivated her employer. However, the
“factfinder's disbelief of the reasons put forward by the
defendant (particularly if disbelief is accompanied by a
suspicion of mendacity) may, together with the elements of the
prima facie case, suffice to show intentional [retaliation].
Thus, rejection of the defendant's proffered reasons will permit
the trier of fact to infer the ultimate fact of intentional”
retaliatory action. St. Mary's Honor Center v. Hicks,
509 U.S. 502, 511,
113 S. Ct. 2742, 2749,
125 L. Ed.2d 407 (1993).
Has plaintiff made a prima facie case? Fleming's initial evaluation as a CHS employee, dated May 30, 1996, indicates no problems with her performance and states that her performance “meets expectations.” Even Simpson testified that she had “no problems” with Fleming's performance prior to May 30, 1996.
Fleming also presented substantial evidence disputing that the June 1996 evaluation authored by Simpson was the basis for her firing. Plaintiff's testimony is sufficient to create a genuine dispute about that issue. Waldon v. Kraft, Inc., 896 F.2d 793, 800 (3rd Cir. 1990) (noting that “there is no rule of law that the testimony of a discrimination plaintiff, standing alone, can never make out a case of discrimination that could withstand a summary judgment motion”); Graham v. F.B. Leopold Co., Inc., 779 F.2d 170, 173 (3rd Cir. 1985) (observing that plaintiff's deposition testimony could suffice to create a genuine dispute about material issue); Waldron v. SL Indus., Inc., 56 F.3d 491, 501 (3rd Cir. 1995) (stating that “Supreme Court has made it clear that self-serving testimony may be utilized by a party at summary judgment”)(citing Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 2553, 91 L. Ed 2d 265 (1986)). Fleming's rebuttal evidence is sufficient to dispute the legitimacy of any assertions of poor performance.
Fleming also submitted evidence, in addition to her own proffered testimony, from which a jury could find that defendant's assertions of a poor performance were pretextual. Carla Streano, a nurse who worked with Fleming under Simpson, described her conversations with Simpson. Prior to Fleming's termination, Simpson informed Streano that “I'm not giving anybody a bad evaluation. I don't have anything bad to say about anybody,” including Fleming. When Streano later learned of Simpson's negative evaluation of Fleming, she confronted Simpson about her prior inconsistent statement. Simpson responded: “We all need our jobs.” Viewing this testimony in the light most favorable to Fleming, a jury could infer that Simpson's negative evaluation of Fleming was a pretext designed to cover up CHS's retaliation against Fleming for blowing the whistle on its sloppy and illegal practices.
Because the lower court treated this case as one in which violation of the chain of command was a valid basis for discharge, we should remand the matter to the Law Division to determine whether plaintiff has stated an actionable claim. The Law Division must reconsider the case in light of the principles stated herein and any further proofs that the parties may submit. And that inquiry should proceed in accordance with the standard set forth in Brill v. Guardian Life Insurance Co., 142 N.J. 520, 523 (1995). As stated in Brill, the fundamental question is “'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'” Id. at 533 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S. Ct. 2505, 2512, 91 L. Ed.2d 202, 214 (1986)). Those principles provide a guide to dispose of CEPA claims. See Regan v. New Brunswick, 305 N.J. Super. 342, 356 (App. Div. 1997)(holding that plaintiff was “entitled to all inferences that may have been drawn in his favor”); Keelan v. Bell Communications Research, 289 N.J. Super. 531, 536 (App. Div. 1996)(concluding that the existence of genuine material issues “precluded a grant of summary judgment”).
The judgment of the Appellate Division is reversed and the matter is remanded to the Law Division for further proceedings in accordance with this opinion.
JUSTICES O'HERN, STEIN, COLEMAN, LONG, and LaVECCHIA join in this opinion. JUSTICE VERNIERO filed a separate dissenting opinion in which CHIEF JUSTICE PORITZ joins.
SUPREME COURT OF NEW JERSEY
A- 39 September Term 1999
BARBARA R. FLEMING,
Plaintiff-Appellant,
v.
CORRECTIONAL HEALTHCARE
SOLUTIONS, INC., JENNIFER
MIERS and SALLY SIMPSON,
Defendants-Respondents,
and
JANE DOE and ROBERT ROE,
Defendants.
VERNIERO, J., dissenting.
To the extent that the Court holds that an employee may not
be lawfully discharged for blowing the whistle on a supervisor by
lodging a CEPA complaint outside of the employer's chain-of
command structure, I fully agree. CEPA would make little sense
if it required conscientious employees to disclose alleged
wrongdoing to the wrongdoer, especially when the wrongdoer is the
employee's immediate boss.
However, that is not this case. Plaintiff twice broke the
chain of command prior to her discharge. The first time, on July
2, 1996, she sent a memorandum entitled “Variety of Pecky
Problems” to Donald Moore, then her department director. That
memorandum contained no explanation of why plaintiff bypassed the
normal procedure, which required that the memorandum be sent to
her immediate supervisor, Sally Simpson. In fact, it did not
reference Simpson at all. Jennifer Miers, then plaintiff's
intermediate supervisor, returned the memorandum to plaintiff
with this note: “Dear Barb, This should first go to Sally
[Simpson] - then Sally should bring it to me and then I'll bring
it to Don [Moore].”
The second time, just three days later, on July 5, 1996,
plaintiff bypassed Simpson by resubmitting her list of complaints
directly to Miers. In that memorandum, plaintiff explained the
breach of protocol by stating: “I see no reason to submit these
through Sally, since they are areas over which she has very
little input or control.” Nowhere in that second memorandum does
plaintiff state that Simpson is a wrongdoer or responsible for
any of the matters about which plaintiff is complaining.
It was only at her deposition, well after her discharge and
the commencement of this suit, that plaintiff identified Simpson
for the first time as “the worst offender on our shift.” That
statement, made during the course of litigation, is a bare
allegation unsupported by plaintiff's earlier memoranda. Stated
differently, the record contains no foundational fact to support
the proposition that plaintiff bypassed Simpson because the
supervisor was specifically engaged in wrongdoing. Cf. Caputo v.
Nice-Pak Prods., Inc.,
300 N.J. Super 498, 506 (App. Div.)
(upholding directed verdict because “considering the absence of
any corroboration of plaintiff's own self-serving testimony, a
reasonable jury could not have found for plaintiff . . .”),
certif. denied,
151 N.J. 463 (1997).
I do not believe that CEPA was intended to abrogate this
Court's sound instruction “that when the evidence 'is so one
sided that one party must prevail as a matter of law,' the trial
court should not hesitate to grant summary judgment.” Brill v.
Guardian Life Ins. Co. of Am.,
142 N.J. 520, 540 (1995) (citation
omitted). Moreover, “an adverse party may not rest upon the mere
allegations or denials of the pleading . . . [to show] that there
is a genuine issue for trial.” R. 4:46-5.
Nor do I believe that CEPA was intended to innoculate
employees who are insubordinate or poor performers. According to
defendant's personnel records, plaintiff had to be directed “on
numerous occasions” to return to her unit to finish dispensing
medications to inmates. By fair inference, she was not doing her
job, at least in the minds of her supervisors. In a prison
setting, failure to do one's job, especially the failure to
administer proper medical care to inmates, can have dire
consequences.
I agree with the Appellate Division that
[P]laintiff has not produced sufficient
evidence to establish her termination was a
result of her complaining about CHS
[defendant] violations, and not due to her
refusal to follow instructions from Miers
regarding the submission of said complaints
and for her refusal to follow orders in the
dispensing of medication.
. . . .
[T]he record contains sufficient evidence of
plaintiff's poor job performance, both prior
to and after CHS's takeover. Plaintiff, in
her deposition testimony, admitted numerous
disciplinary actions taken against her while
she was an employee of the State, including a
ten-day suspension for insubordination. In
addition, plaintiff's testimony outlining her
views regarding the dispensing of medication
to an inmate without the inmate having filled
out the co-pay form supports the June 30,
1996 observations by Simpson about
plaintiff's expectation of inmates and her
interpersonal skills. When asked whether she
believed inmates should be cut off from their
medication for not having completed the co
pay form, plaintiff responded:
A: Absolutely.
Q: What happens to the inmate that
gets cut off from the medication
and gets sick and dies?
A: Same thing that happens to me if
I don't call my physician and ask
for a refill, I don't get it.
We recently observed that “[t]he overriding policy of . . .
CEPA . . . is to protect society at large.” Cedeno v. Montclair
State Univ., ___ N.J. ___ , ___ (2000). I fail to see how
society is protected by shielding a nurse who expresses a
willingness to cut off medication to persons under her care. In
my view, the Legislature did not intend CEPA for that purpose.
Instead, it is the refusal to administer medicines to inmates
that may be contrary to law. See N.J.S.A. 30:7E-5 (“[N]o inmate
shall be denied . . . prescription or nonprescription drugs or
medicine . . . because that inmate is unable to reimburse the
State or county for the costs of those services, drugs or
medicines.”).
The Court should not hold that, for the first time during
the course of litigation, a litigant may add to or revise her own
earlier memoranda and thereby create a triable issue of fact to
survive summary judgment. The lower courts had a good sense of
this suit and we should accept their findings. Brill, supra, 142
N.J. at 541 (observing that we should “encourage trial courts not
to refrain from granting summary judgment when the proper
circumstances present themselves”).
I would affirm the judgment of the Appellate Division
substantially for the reasons expressed in the opinion below.
CHIEF JUSTICE PORITZ joins in this opinion.
NO. A-39 SEPTEMBER TERM 1999
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
BARBARA R. FLEMING,
Plaintiff-Appellant,
v.
CORRECTIONAL HEALTHCARE
SOLUTIONS, INC., et al.,
Defendants-Respondents,
and
JANE DOE and ROBERT ROE,
Defendants.
DECIDED June 7, 2000
Chief Justice Poritz PRESIDING
OPINION BY PER CURIAM
CONCURRING OPINION BY
DISSENTING OPINION BY Justice Verniero
Footnote: 1 1
New Jersey's whistleblower statute, the
Conscientious Employee Protection Act (CEPA),
was passed by the Legislature in 1986.
Because CEPA is a relatively new law, the
basic contours of the statute are still being
mapped out as whistleblower cases wind their
way up the appellate ladder. . . .
CEPA prohibits employees from
retaliating against employees for “blowing
the whistle” on (1) possible violations of
the law, (2) possible improper quality of
patient care in the health care industry, or
(3) possible violations of any clear mandate
of public policy concerning the public
health, safety, or welfare or the protection
of the environment.
[Christopher P. Lenzo, The Changing Contours
of New Jersey Whistleblower Law, New Jersey
Lawyer, the Magazine, April, 1999 at 51
(footnotes omitted).]