(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 February 1, 1999 -- Decided June 10, 1999
POLLOCK, J., writing for a unanimous Court.
The primary issue raised on this appeal is whether the Conscientious Employer Protection Act
(CEPA) prohibits an employer from retaliating against an employee who "blows the whistle" on a co-employee.
Josephine Higgins worked as a part-time nurse in a Mobile Intensive Care Unit (MICU), which
responds to calls for on-scene medical treatment. The MICU is made up of Mobile Intensive Care Nurses
(MICNs) and Mobile Intensive Care Paramedics (MICPs). As an "unscheduled, per diem nurse," Higgins
worked at Pascack Valley Hospital's discretion. She did not have a fixed work schedule; therefore, she could
periodically be assigned to staff the Hospital's emergency room.
In 1991 and 1992, Higgins complained to her supervisor at Pascack Valley Hospital (Hospital) about
two incidents. In her first complaint, Higgins alleged that two MICPs, Contini and Fromm, filed incorrect
forms after treating a patient. The supervisor, Gary Del Moro, performed an investigation and concluded
that there was no wrongdoing on the part of Fromm and Contini. The second complaint made by Higgins
alleged that Fromm had stolen medication from a patient. Higgins' supervisor was unable to corroborate
Higgins' claim, even after questioning others. Higgins was informed of the results of the investigation.
Shortly thereafter, seven MICU nurses and paramedics informed Del Moro that they did not want to be
scheduled to work with Higgins. Higgins was temporarily transferred from the MICU to the emergency
room to allow emotions to subside.
Higgins claims that the Hospital retaliated against her by transferring her temporarily to the
emergency room, reducing her work hours, and denying her a promotion. She filed a complaint against the
Hospital, asserting claims for a violation of the CEPA, defamation, and intentional infliction of emotional
distress. Higgins sought both compensatory and punitive damages. Higgins also sued Voorman-Fish, Del
Moro, Myron Horowitz, Louis Ycre, and Daniel DeSantis (the individual defendants), supervising employees
Higgins claims engaged in the retaliatory conduct.
The jury returned a verdict for Higgins on the CEPA and defamation claims. The trial court, on
motion, dismissed the intentional-infliction of emotional distress claims. Higgins was awarded $315,000 in
compensatory damages and $320,000 in punitive damages. The court entered judgment against the Hospital,
reasoning that to be liable for retaliation against an employee who complains about a co-employee's
misconduct, the employer must be complicit in the misconduct. The court found ample evidence of employer
complicity. The court further ruled that the CEPA does not impose personal liability on a co-employee or
supervisor who engages in retaliatory conduct and, therefore, dismissed the CEPA claims against the
individual defendants. Del Moro and Voorman-Fish remained jointly and severally liable with the Hospital
on the defamation claim.
On appeal, the Appellate Division agreed with the Law Division's conclusion that, absent employer
complicity, the CEPA does not protect an employee who complains about misconduct of co-employees.
According to the Appellate Division, however, the jury instructions erroneously stated that the employer
could be liable even if not complicit in the co-employee's conduct. Therefore, the Appellate Division
reversed the judgment against the Hospital and remanded for a new trial. The Appellate Division also
dismissed the defamation claims.
The Supreme Court granted Higgins' petition for certification.
HELD: The Conscientious Employee Protection Act protects an employee who, with a reasonable basis,
complains to his or her employer about the misconduct of co-employees, even in the absence of
employer complicity in the misconduct.
1. The purpose of the CEPA is to protect employees who report unethical or illegal work-place activities.
The CEPA establishes an exception for the general rule that an employer may fire an at-will employee with
or without cause. (pp. 17)
2. A plain reading of the statutory language suggests that the CEPA covers employees who object to the
conduct of co-employees. The omission of the phrase "of the employer" in subsection (c) of N.J.S.A. 34:19-3
demonstrates the intention not to limit this section to conduct by the employer. Furthermore, as remedial
legislation, the statute must be liberally construed to effectuate its important goals. Misconduct by
employees, like that of employers, can threaten the public health, safety, and welfare. This is especially so in
the case of hospitals and other health care institutions. (pp. 17-23)
3. The Court's interpretation accords with the prevailing authority throughout the country. (pp. 23-26)
4. The evaluation of the employer's retaliatory conduct should focus on the reasonableness of the underlying
complaint, not on the reasonableness of the employer's investigation. (pp. 26-28)
5. The trial court did not commit reversible error by failing to instruct the jury that it could find the
Hospital liable only if it first found that the Hospital was complicit in the employees' misconduct. The
charge adequately focused the jury's attention on the reasonableness of the basis for the complaint. (pp. 28-29)
6. The record does not permit the entry of judgment against the individual defendants. (pp. 29)
7. The Court affirms the dismissal of the defamation claim substantially for the reasons expressed by the
Appellate Division. (pp. 29-32)
Judgment of the Appellate Division is AFFIRMED IN PART AND REVERSED IN PART and the
matter is REMANDED to the Appellate Division.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, O'HERN, GARIBALDI, STEIN and
COLEMAN join in JUSTICE POLLOCK'S opinion.
SUPREME COURT OF NEW JERSEY
A-
6 September Term 1998
JOSEPHINE C. HIGGINS and
JOSEPH A. HIGGINS, JR.,
Plaintiffs-Appellants,
v.
PASCACK VALLEY HOSPITAL;
DOROTHY VOORMAN-FISH;
GARY DEL MORO; MYRON HOROWITZ;
LOUIS YCRE and DANIEL DeSANTIS,
Defendants-Respondents.
Argued February 1, 1999 -- Decided June 10, 1999
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
307 N.J. Super. 277 (1998).
Paul Schachter argued the cause for
appellants (Reinhardt & Schachter, attorneys;
Denise Reinhardt of counsel; Ms. Reinhardt
and Andrew W. Dwyer, on the briefs).
John H. Schmidt, Jr., argued the cause for
respondents (Lindabury, McCormick &
Estabrook, attorneys; Mr. Schmidt, Richard J.
Cino, Kathleen Connelly-Agnostak and Athina
Lekas, on the brief).
Christopher P. Lenzo argued the cause for
amicus curiae, National Employment Lawyers
Association of New Jersey (Francis, Lenzo &
Manshel, attorneys; Mr. Lenzo, Patricia
Breuninger and Bennet D. Zurofsky, of
counsel).
The opinion of the Court was delivered by
POLLOCK, J.
The primary issue is whether the Conscientious Employee
Protection Act ("CEPA"), N.J.S.A. 34:19-1 to -8, prohibits an
employer from retaliating against an employee who "blows the
whistle" on a co-employee.
Plaintiff Josephine Higgins complained to her supervisors
about misconduct by two of her co-employees, Bruce Contini and
Peter Fromm. She argues that her employer, Pascack Valley
Hospital ("the Hospital") retaliated against her by temporarily
transferring her from the Hospital's Mobile Intensive Care Unit
("MICU"), reducing her work hours, and denying her a promotion.
Higgins instituted an action in the Law Division asserting claims
for violation of the CEPA, defamation, and intentional infliction
of emotional distress. She seeks both compensatory and punitive
damages. In addition to naming the Hospital as a defendant, she
ultimately joined Dorothy Voorman-Fish, Gary Del Moro, Myron
Horowitz, Louis Ycre, and Daniel DeSantis ("the individual
defendants"), the supervising employees who she claims engaged in
the retaliatory conduct.
After the jury returned a verdict for Higgins on the CEPA
claim, the trial court entered judgment against the Hospital.
The court explained that to be liable for retaliation against an
employee who complains about a co-employee's misconduct, the
employer must be complicit in the misconduct. As the court read
the CEPA, the statute does not protect any employee who complains
about a co-employee's misconduct, absent employer complicity.
Here, the court found "ample evidence" of employer complicity.
The Appellate Division agreed with the Law Division's
conclusion that, absent employer complicity, the CEPA does not
protect an employee who complains about misconduct of co-employees.
307 N.J. Super. 277, 296-97 (1998). According to the
Appellate Division, however, the jury instructions erroneously
stated that the employer could be liable even if not complicit in
the co-employees' misconduct. Id. at 297-300.
Thus, the primary issue on this appeal is whether the CEPA
imposes liability on an employer for retaliating against a
complaining employee when the employer was not complicit in the
conduct of co-employees about which the employee complained. An
additional issue is whether the trial court adequately charged
the jury on the liability of the employer. A third issue
concerns the liability of the individual defendants. Based on
the jury verdict, the Law Division entered judgment on the CEPA
claim against the Hospital, but not against the individual
defendants. The Appellate Division reversed the judgment against
the Hospital, id. at 300, and dismissed Higgins's defamation
claim. Id. at 302-04.
We granted Higgins's petition for certification.
156 N.J. 405 (1998). We hold that the CEPA protects an employee who, with
a reasonable basis, complains to his or her employer about the
misconduct of co-employees, even in the absence of employer
complicity in the misconduct. Based on the jury's answers to the
special verdict form, judgment on the CEPA claim was properly
entered against the Hospital, but not against the individual
defendants. Finally, we affirm the dismissal of Higgins's
defamation claim.
In May 1985, Higgins began working as a part-time nurse in the MICU, which responds to calls for on-scene medical treatment. The MICU is comprised of Mobile Intensive Care Nurses (“MICNs”) and Mobile Intensive Care Paramedics (“MICPs”).
As an "unscheduled, per diem nurse," Higgins worked not a fixed schedule, but at the Hospital's discretion. Accordingly, the Hospital could assign Higgins periodically to staff the Hospital's emergency room.
In 1991 and 1992, Higgins complained to her supervisor at the Hospital about two separate incidents. Higgins's first complaint alleged that two MICPs, Contini and Fromm, filed the wrong forms after treating a patient. While serving as a volunteer for the Triboro Volunteer Ambulance Corp. in November 1991, Higgins went in an ambulance to the home of two firemen, Kenny Steele and his father. The two firemen had been injured during a drill. When Higgins arrived at the scene, she treated the son, Kenny, for smoke inhalation.
A Hospital MICU ambulance, staffed by Contini and Fromm, also responded to the call. According to Contini and Fromm, they originally were dispatched to treat a patient suffering respiratory distress. While going to the scene, they received a second dispatch that another patient at the same address needed medical attention. When Contini and Fromm reached the Steele home, police told them that the second patient, Kenny's father, did not require assistance. Contini and Fromm limited their treatment to Kenny. On determining that Kenny did not require immediate advanced life support, they discharged him to Higgins's ambulance for transport to the Hospital.
When Higgins reported for duty at the Hospital approximately one week later, she checked the MICU log to see what had happened to Kenny. The log indicated that the MICU call had been canceled before Contini and Fromm arrived at the scene, and that they had never treated Kenny. Consequently, Higgins concluded that Contini and Fromm had failed to complete the appropriate forms.
In accordance with state regulations, Hospital rules require MICPs and MICNs, after completing a MICU call, to fill out either a "white sheet" or a "blue sheet." If the MICU arrives at the scene and provides treatment, the MICNs and MICPs should complete a white sheet. If the call is canceled before the MICU reaches the scene, the MICNs and MICPs should complete a blue sheet. Higgins ascertained that Contini and Fromm had filed a blue sheet. Because they had treated Kenny, they should have filed a white sheet.
Higgins reported her findings to her supervisor, defendant Gary Del Moro, Coordinator and Assistant Director of the MICU. Del Moro had held a meeting two months earlier to remind the MICU staff of the importance of completing accurate paperwork. Before that meeting, two MICNs, who had filed a blue sheet instead of a white sheet after treating a patient, were fired. Del Moro told Higgins that he would investigate her complaint.
In response to questions from Del Moro, Fromm said he had completed the correct forms. Del Moro advised defendant Dorothy Voorman-Fish, the President of Nursing Services, of the potential infraction. The next morning, Del Moro checked the paperwork but, like Higgins, could find only the blue sheet. He then called the dispatching agency and confirmed that there had been dispatches for two people at the same address. Eventually Del Moro found the white sheet in Kenny's medical file in the Hospital Records Department. Although the dispatch report was missing, the white sheet was otherwise complete.
According to Fromm, Contini had completed a blue sheet, indicating that the call concerning Kenny's father had been "canceled upon arrival." Later that evening, Fromm completed a white sheet, indicating that Kenny had been treated for smoke inhalation. Fromm explained that he had failed to put the dispatch number on the white sheet because he did not have his log book with him. Although Fromm intended to put the white sheet in the MICU coordinator's box, he inadvertently left it in the emergency room.
Contini substantially corroborated Fromm's account that he had filled out a blue sheet for the canceled second call. According to Contini, he had told Higgins that the white sheet had been completed properly. Higgins, however, testified that Contini had told her that the white sheet had been fabricated after she filed her complaint.
Del Moro summarized the results of his investigation in a memorandum to Voorman-Fish in December 1991. He recommended that Contini and Fromm should be absolved of any wrongdoing. Del Moro's report also stated in part:
[Higgins's] actions have markedly polarized this MICU. Several staff have refused to work with her, [o]thers have elected to confront her. My clinical evaluation of Josephine is that of an employee that meets expectations, however, this type of unsubstantiated accusations [sic] in addition to [Higgins's] history of not following the chain of command makes her a less than desirable employee.
Voorman-Fish thereafter reviewed MICU reports from the preceding
six months to ascertain whether the MICU was complying with
Hospital policies.
After completion of the investigation, Higgins met with Del
Moro and Voorman-Fish. They showed Higgins the white sheet and
told her that Contini and Fromm had asked that they no longer be
scheduled to work with her. According to Higgins, Del Moro and
Voorman-Fish criticized, but did not discipline, her for making
the complaint.
Higgins's second complaint alleged that Fromm had stolen
medication from a patient. In January 1992, Higgins and Fromm
were dispatched to the home of a patient who was experiencing
chest pains. When they arrived at the scene, Higgins attended to
the patient, and Fromm stood across the bed taking notes. While
Higgins attempted to insert an intravenous line into the
patient's arm, she saw Fromm open a bottle of the patient's
prescription medication, empty the pills into his hand, and place
them into his pants pocket. Higgins neither informed the police
officers who were at the scene nor confronted Fromm about the
incident. She explained, "I was taking care of my patient and I
was trying to think through what I had just seen."
On arrival at the Hospital, Higgins notified Linda
Sacchieri, the on-duty nursing supervisor. Sacchieri told
Higgins that she would "handle the situation" and that Higgins
should return to work. Sacchieri and another supervisor, after
reporting the incident to Voorman-Fish, questioned Fromm. Fromm
showed that he had nothing in his pockets and denied taking the
drugs.
Pursuant to instructions from Voorman-Fish, Del Moro
obtained statements from the Paramus police and ambulance squads
that had been at the patient's home with Higgins and Fromm. No
one corroborated Higgins's claim.
Voorman-Fish also telephoned Higgins and asked her to submit
a written statement about the incident. Higgins said that she
would not submit a report until she spoke with her attorney.
When Voorman-Fish did not receive anything in writing from
Higgins, Voorman-Fish wrote a letter to Higgins chastising her
for not responding. In fact, Higgins did respond in a letter
dated January 16, 1992, which was found on a desk in the nursing
office on January 17, 1992.
At trial, Fromm denied taking the patient's drugs. He
acknowledged emptying the medicine bottle, but explained that he
did so to determine whether the patient had taken the correct
dosage. Fromm made this determination by examining the date on
the bottle and then counting the remaining pills. He returned
the bottle. As he explained, it "would have been irresponsible"
not to check the patient's medication.
Following its investigation, the Hospital concluded that
Fromm had not taken medication from the patient. Because the
Hospital did not ask Higgins to participate in the investigation,
she concluded that it was “whitewashed.”
Voorman-Fish informed Higgins of the results of the
investigation in a letter dated February 14, 1992:
We have looked into your allegations
concerning Peter Fromm, MICP, and to-date,
can find nothing to substantiate an improper
act of the nature you note on his part.
Given the lack of corroboration and with due
respect for the level of professional conduct
Mr. Fromm has exhibited while in our employ,
I find no reason to pursue this matter
further.
If you are able to present corroborative
evidence of any nature bearing on this
matter, please contact me.
Shortly thereafter, seven MICU nurses and paramedics, including
Fromm, sent Del Moro letters stating that they did not want to be
scheduled with Higgins. They no longer trusted her and feared
that she would falsely accuse them. The letters also expressed
anger that, contrary to the nursing code of ethics, Higgins did
not speak with Fromm before accusing him of taking the pills.
On January 27, 1992, Voorman-Fish met with Higgins, Del
Moro, and a representative of Higgins's union, as well as
defendants DeSantis, Director of Personnel; Horowitz, Director of
Labor Relations; and Ycre, the Hospital President. Voorman-Fish
showed Higgins the letters and told her that she was being
transferred temporarily from the MICU to the emergency room "to
allow the emotions to subside and collegiality to return to the
unit.”
Voorman-Fish followed up the meeting with a letter to
Higgins:
As I stated to you at our meeting Tuesday
morning, I have received individual written
requests from almost all the MICU personnel
that you not be assigned to ride with them.
Accordingly, I must require that you perform
your duties as an unscheduled per diem nurse
in the Emergency Room until further notice.
I will maintain this position until a
sufficient number of MICU personnel express a
willingness to be assigned as your MICU
partner for scheduling purposes.
Although working in the Emergency Room is
currently a part of the expectations of your
position as an MICN, the Hospital will
provide you with additional orientation and
you will have the opportunity to work, on the
average, the same number of hours as you had
been assigned on the MICU so that your
earning ability remains unaffected.
This decision is an administrative act on my
part to insure a smoothly functioning MICU
and is not to be construed as discipline or a
reprimand of any sort. My single interest
and responsibility is that quality patient
care continues to be delivered to those who
require it.
Higgins denied receiving this letter. She also contended
that the Hospital orchestrated the staff's reaction.
After Higgins spent one day in her new position, her union
representative advised her not to return to the emergency room.
Approximately two weeks later, Higgins returned to the MICU as a
"third member" of a MICU team, a position usually held by a
trainee or observer. Later in the year, Higgins was reinstated
as one of the two principal riders in an MICU ambulance.
Although Del Moro denied intentionally reducing Higgins's hours,
Higgins claimed that she “was working far less” than before.
At trial, Higgins also questioned the Hospital's failure to
hire her for either of two full-time MICU positions for which she
applied in January and February 1992. The Hospital awarded one
position to Contini and eliminated the other position.
On January 20, 1993, Higgins filed a complaint against the
Hospital and the individual defendants. Higgins alleged
violations of CEPA, intentional infliction of emotional distress,
and defamation. She also asserted several other common-law tort
causes of action that were dismissed prior to trial. At the end
of Higgins's case, defendants moved to dismiss the remaining
claims. Defendants specifically argued that the court should
dismiss the CEPA claim because the CEPA does not apply to
employees who complain about co-workers. The trial court denied
the motion to dismiss the CEPA and defamation claims, but
dismissed the intentional-infliction-of-emotional-distress claim.
The court instructed the jury on Higgins's CEPA claim:
[P]laintiff, Josephine Higgins, has alleged
that she was retaliated against because she
objected to or refused to participate in an
activity, policy, or practice which
plaintiff, Josephine Higgins, reasonably
believed was a past, present, or potential
continuing violation of the law, rule, or a
regulation promulgated pursuant to law;
fraudulent or criminal; or, incompatible with
a clear mandate of public policy concerning
the health, safety, or welfare [] of the
public. To prevail on this claim, the
plaintiff, Josephine Higgins, has the burden
of showing by a preponderance of the evidence
that she reasonably believed that an
activity, policy, or practice of the
defendant in violation of the law, and in
that case, she alleged that she observed a
co-worker taking medications from a patient .
. . .
And these allegations also fall [within] the
purview of incompatibility with a clear
mandate of public policy concerning the
public health, safety, or welfare, in that,
plaintiff has alleged and has to prove that
allegation that [(1)] control of and
documentation relating to the patient's
prescription medication in her home was not
followed. [(2)] She objected to or refused to
participate in that activity or practice. (3)
That retaliatory action was taken against her
by way [of] an adverse employment action. And
(4), that were was a causal link between the
plaintiff, Josephine Higgins, reporting and
the retaliatory or adverse action of the
defendant. She has to prove all four of
those elements.
To establish the first element of her claim,
it is the plaintiff, Josephine Higgins'
burden to prove . . . [s]he had a reasonable
belief that the activity, policy, or practice
of the defendant through the employees was in
violation of the law, rule or regulation; was
fraudulent or criminal; was incompatible with
a clear mandate of public policy concerning
the public health, safety, or welfare of
patients.
. . . .
Plaintiff cannot prove her claim of
retaliation merely by conclusory statements
or by speculating that the action taken
against her was in response to her objections
to or refusal to participate in the activity,
policy, or practice of the employer as []
condoned by the defendant, Pascack Valley
Hospital, because, obviously, the hospital
can only act through its employees and its
administration. So that's why I say it has
to be shown that it was acts condoned by the
defendant, Pascack Valley.
The jury found for Higgins on the CEPA and defamation
claims. It awarded her $315,000 in compensatory damages,
consisting of $225,000 for lost wages and benefits on her CEPA
claim ($200,000 for denial of promotion and $25,000 for lost
hours), $45,000 for emotional distress on the CEPA claim, and
$50,000 for harm to plaintiff's professional reputation as a
result of defamation. The jury also awarded Higgins $320,000 in
punitive damages. The trial court reduced the jury's award for
lost hours from $25,000 to $4500, and awarded Higgins $200,816 in
attorney's fees, $11,885 in costs, and $26,082 in pre-judgment
interest.
The court ruled that the CEPA does not impose personal
liability on a co-employee or supervisor who engages in
retaliatory conduct. Consequently, the court dismissed the CEPA
claims against the individual defendants. It entered judgment
against only the Hospital for the compensatory damages arising
from the CEPA claim, the punitive damages, and the award of
attorney's fees, costs, and interest. Del Moro and Voorman-Fish,
however, remained jointly and severally liable with the Hospital
for the defamation claim.
The court denied defendants' motion for a judgment
notwithstanding the verdict on the CEPA claim. It repeated that
the CEPA applies only if the employer is involved in the
challenged conduct of the co-employees. It concluded, however,
that “there was ample evidence on this record to show the
employer's complicity. . . . [I]f it were an initial complaint
against a co-employee, it does not refute the fact of an
employer's responsibility under CEPA where the employer does
nothing to rectify the obvious illegal activity that is being
complained about.”
The Appellate Division agreed that Higgins could recover
under the CEPA only if the “hospital, through its supervisors . .
. , condoned and ratified that conduct by whitewashing the
investigation.”
307 N.J. Super. 277, 297 (1998). Finding that
the jury instructions on employee complicity were deficient, the
Appellate Division reversed the judgment against the Hospital and
remanded for a new trial. The Appellate Division also dismissed
the defamation claims, but did not comment on the dismissal of
the judgment against the individual defendants.
A question has arisen, however, whether the CEPA's protection extends to an employee's complaints about not the employer, but a co-employee. The Appellate Division has ruled that the CEPA does not protect employees who object to the wrongful conduct of a fellow employee. See, e.g., Roach v. TRW, Inc., 320 N.J. Super. 558 (App. Div. 1999) (reversing jury verdict that defendant violated CEPA by terminating employee who objected to illegal activities of co-employees because CEPA does not protect “disclosure of employee activities victimizing the employer”); Demas v. National Westminster Bank, 313 N.J. Super. 47, 51 (App. Div. 1998) (affirming summary judgment entered against plaintiff who claimed that supervisor harassed her after she reported that co-worker had violated bank policies and banking and security regulations, because “the conduct upon which plaintiff alleges she blew the whistle was not conduct attributable to her employer”), petition for certif. filed, (Aug 7, 1998); see also Littman v. Firestone Rubber & Tire Co., 715 F. Supp. 90, 93 (S.D.N.Y. 1989) (dismissing CEPA claim asserted by employee who exposed alleged fraudulent activities by co-employees because “fraud directed solely at the company . . . is not the type of activity the statute was designed to combat, or whose disclosure the statute was designed to protect”).
Our primary goal when interpreting the CEPA, as when interpreting any statute, is to determine the Legislature's intent. See State v. Gonzalez, 142 N.J. 618, 627 (1995); Young v. Schering Corp., 141 N.J. 16, 25 (1995). The analysis begins with the language of the statute. State v. Kittrell, 145 N.J. 112, 122-23 (1996). If the statutory language is clear, that language ordinarily governs. Board of Educ. v. Neptune Township Educ. Ass'n, 144 N.J. 16, 25 (1996).
With these basic principles in mind, we turn to N.J.S.A. 34:19-3, which provides:
An employer shall not take any retaliatory action against an employee because the employee does any of the following:
a. Discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer that the employee reasonably believes is in violation of a law, or a rule or regulation promulgated pursuant to law; or
b. Provides information to, or testifies before, any public body conducting an investigation, hearing or inquiry into any violation of a law, or rule or regulation promulgated pursuant to law by the employer; or
c. Objects to, or refuses to participate in any activity, policy or practice which the employee reasonably believes:
(1) is in violation of a law, or a rule or regulation promulgated pursuant to law;
(2) is fraudulent or criminal; or
(3) is incompatible with a clear mandate of public policy concerning the public health, safety or welfare.
A plain reading of the statute suggests that the CEPA covers
employees who object to the conduct of co-workers. The term
"any" in subsection "c" indicates that the statute applies
regardless of the source of the activity, policy or practice.
Although subsections "a" and "b" limit the statute's application
to policies, practices and activities “of” or “by” “the
employer,” subsection "c" contains no such limitation. The
omission of the phrase "of the employer" in subsection "c" is too
obvious to ignore. See Abbamont v. Piscataway Bd. of Educ.,
138 N.J. 405 (1994) (finding that where no specific CEPA provision
precludes awarding punitive damages against public employers,
“[t]hat omission must be deemed purposeful”). When “the
Legislature has carefully employed a term in one place and
excluded it in another, it should not be implied where excluded.”
GE Solid State, Inc. v. Director, Div. of Taxation,
132 N.J. 298,
307-08 (1993); see also State v. Hoffman,
149 N.J. 564, 579
(1997).
Defendants contend, to the contrary, that the legislative
history demonstrates an intent to limit the CEPA's application to
complaints concerning employer conduct. The Legislature
originally enacted the CEPA in 1986. L. 1986, c. 105, § 3a.
In 1989, the Legislature amended the CEPA “to protect employees
from retaliation for disclosure about [] an activity, policy or
practice of 'another employer, with whom the employee's employer
has a business relationship . . . .'” Barratt, supra, 144 N.J.
at 128 (quoting L. 1989, c. 220, § 1). Unfortunately, the
legislative history of the original bill and the 1989 amendment
is meager. Young, supra, 141 N.J. at 24.
When signing the original CEPA bill, Governor Kean stated:
It is most unfortunate -- but, nonetheless,
true -- that conscientious employees have
been subjected to firing, demotion or
suspension for calling attention to illegal
activity on the part of his or her employer.
It is just as unfortunate that illegal
activities have not been brought to light
because of the deep-seated fear on the part
of an employee that his or her livelihood
will be taken away without recourse.
[Office of the Governor, News Release at 1
(Sept. 8, 1986).]
Concerning the 1989 amendment, the Assembly Labor Committee
stated:
Under current law, an employee is protected
against retaliation only with regard to the
disclosure or threatened disclosure of
information about his employer and public
policies concerning the health, safety or
welfare of the public.
[Assembly Labor Committee Statement No. 661,
L. 1989, c. 220.]
Those brief statements leave open the question whether the
Legislature intended that the CEPA should extend also to
employees who complain not about their employer, but about co-employees. In answering that question, we turn to the statute's
purpose, which was to enact "broad protections against employer
retaliation" for employees who act in the public interest.
Mehlman v. Mobil Oil Corp.,
153 N.J. 163, 179 (1998). As
remedial legislation, the statute "should be construed liberally
to effectuate its important social goal." Abbamont, supra, 138
N.J. at 431. So viewed, the CEPA: prohibits employer retaliation
against an employee who objects to an employer practice that
violates a foreign country's public policy, as expressed in an
industry safety guideline, even if the employee is unaware of the
precise source of the public policy, Mehlman, supra, 153 N.J. at
188-90, 192-93; protects an employee who reports an illegal act
of a minority partner, even if the partners' relationship did not
exist at the time of the wrongdoing, Barratt, supra, 144 N.J. at
128-30; and permits an employee to pursue a common-law tort or
contract claim that is distinct from the CEPA claim, Young,
supra, 141 N.J. at 25-26.
Misconduct of employees, like that of employers, can
threaten the public health, safety, and welfare. Especially in
hospitals and other health care institutions, a practice of a co-employee, like that of the employer, can threaten the health and
safety of patients. For example, a paramedic's theft of patient
medication, whether or not condoned by the hospital, could
undermine public health. Sometimes, moreover, only an employee
can bring a co-employee's wrongdoing to the attention of the
employer or a public agency. If left unprotected, employees who
otherwise would complain about a co-employee might hesitate to
come forward out of fear of retribution. A vindictive employer
could resent disruption in the workplace or the disclosure of
improper practices within the organization. In this context,
"reporting a fellow employee's violation . . . is not so
different from traditional notions of whistleblowing." Dudewicz
v. Norris-Schmid, Inc.,
503 N.W.2d 645, 648 (Mich. 1993).
Nothing indicates that the Legislature intended that the
CEPA's expansive protection should depend on a strict parsing of
employer and employee conduct. "The Legislature obviously
intended to provide a comprehensive and effective cause of action
for retaliatory discharge." Young, supra, 141 N.J. at 26. A
solitary employee may not be able to determine whether an illegal
activity is the isolated act of a single co-employee or a
systemic practice. When an employee complains of the wrongdoing,
he or she may not know whether the employer will condone the act.
Failure to protect complaining employees therefore will inhibit
them from reporting practices for which they reasonably believe
their employer is responsible.
That interpretation accords with the prevailing authority
throughout the nation. Several state courts have construed
similar "whistleblowing" statutes to protect employees who report
the misconduct of co-employees. In Dudewicz, supra,
503 N.W.2d 645, the Michigan Supreme Court interpreted the Michigan
Whistleblowers' Protection Act, M.C.L.A. § 15.361, to prohibit an
employer from taking retaliatory action against an employee who
files a criminal complaint against a fellow employee. The
Michigan statute protects an employee who "reports . . . a
violation or a suspected violation of a law or regulation or rule
promulgated pursuant to law." Ibid. As the Michigan Supreme
Court found, "a plain reading of this provision reveals that
protection is not limited to employee reports of violations by
employers." Dudewicz, supra, 503 N.W.
2d at 648. This plain
reading was supported by the legislative analysis, which
recognized that "employees are naturally reluctant to inform on
an employer or a colleague." Ibid.
In New York, the Appellate Division has reached a similar
result. The New York Whistleblower Statute, N.Y. Labor Law §
740, is substantially similar to the CEPA. New York courts have
construed the statute to apply to complaints made against co-employees. In Kraus v. New Rochelle Hosp. Med. Ctr.,
628 N.Y.S.2d 360 (App. Div. 1995), the plaintiff, vice-president of
nursing, was terminated after reporting to a doctor's superior
that the doctor had performed procedures without obtaining the
requisite informed consent from patients or their families. The
court concluded that the plaintiff had established a violation of
the Whistleblower Statute, and ordered the plaintiff reinstated
to her position at the hospital. Similarly, in Rodgers v. Lenox
Hill Hosp.,
626 N.Y.S.2d 137 (N.Y. App. Div. 1995), the
plaintiff, director of the Emergency Medical Service Department
at Lenox Hill Hospital, was fired after investigating two
paramedics who pronounced dead a patient who was in fact still
alive. The trial court granted the hospital's motion to dismiss
the plaintiff's claim under the Whistleblower Statute. In
affirming, the Appellate Division concluded that the "plaintiff's
claim falls within both the letter and the spirit of the
whistleblower statute." Id. at 139, 141. Although the New York
Appellate Division did not explicitly address whether the
Whistleblower Statute applies where an employee objects to the
practices of a fellow employee, the outcome of these cases
supports such coverage.
Additionally, several states' whistleblower statutes
expressly protect employees who object to co-employees'
activities. See Cal. Gov. Code § 8547.2 (West 1999) (protecting
public employee who reports improper activity "by a state agency
or by an employee"); Fla. Stat. Ann. § 112.3187(5)(a) (West
1998) (protecting public employee who discloses "any violation or
suspected violation . . . by an employee or agent of an agency .
. . ."); N.C. Gen. Stat. §§ 126-84, -85 (1998) (prohibiting
retaliation against State employee who reports misconduct by "a
State agency or State employee"); Ohio Rev. Code Ann. § 4113.52
(Banks-Baldwin 1998) (protecting employee who reports “violation
by a fellow employee”); Or. Rev. Stat. § 659.550 (1998)
(prohibiting retaliation against employee who reports "criminal
activity by any person"); S.C. Code Ann. §§ 8-27-10, -20 (Law.
Co-op. 1998) (protecting State employee who reports wrongdoing by
public body or public employee). Only one state statute
explicitly limits protection to employees who complain about
employer conduct. See Fla. Stat. Ann. § 448.102 (West 1998)
(prohibiting retaliatory action against private-sector employee
who "objects to, or refused to participate in, any activity,
policy, or practice of the employer which is in violation of a
law, rule or regulation").
Furthermore, the courts of Massachusetts and Illinois have
stated that, even in the absence of a whistleblower statute, an
employee who is terminated for reporting the illegal action of a
co-worker may maintain a common-law cause of action for wrongful
discharge. See Palmateer v. International Harvester Co.,
421 N.E.2d 876 (Ill. 1986) (finding that at-will employee dismissed
for reporting suspected criminal activity by fellow employee to
police stated claim for retaliatory discharge because “public
policy favors the exposure of crime”); Shea v. Emmanuel College,
425 N.E.2d 1348 (Mass. 1997) (holding that at-will employee fired
for reporting suspected criminal activity in her workplace to
supervisor or public authority has cause of action for wrongful
discharge, even if employer is victim of alleged criminal
conduct).
In the present case, the Appellate Division misconstrued our
opinion in Abbamont as subjecting the employer to liability under
the CEPA only if the conduct about which the employee complained
could be imputed to the employer. The Appellate Division
concluded that the Hospital is not liable under the CEPA because
the co-employee's alleged misconduct _ theft of patient
medication and falsification of Hospital records _ “could not be
considered to have been within the scope of the employee's
authority or as in the fulfillment of the employer's business.”
307 N.J. Super. at 296. The wrong imputed to the employer in
Abbamont, however, was a school principal's and superintendent's
failure to rehire a teacher because the teacher complained about
the inadequate safety conditions of the school's metal shop, not
the failure to maintain the metal shop. Similarly, in the
present case, the wrong imputed to the Hospital is the
retaliatory action against Higgins undertaken by the Hospital
supervisors, the individual defendants. It is irrelevant that
the alleged illegal acts of Contini and Fromm cannot be
attributed to the Hospital.
We hold, therefore, 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. Filing a
complaint, however, does not insulate the complaining employee
from discharge or other disciplinary action for reasons unrelated
to the complaint. As a practical matter, a proper investigation
by the employer should reveal whether the basis for the complaint
is reasonable. The critical facts are those that relate directly
to the reasonableness of the complaint. If credibility is a
concern, other facts also could become relevant. Even when an
employer conducts a thorough investigation of the alleged
misconduct, the evaluation of the employer's retaliatory conduct
focuses not on the reasonableness of the employer's
investigation, but on that of the underlying complaint. As long
as a reasonable basis exists for a complaint about misconduct,
whether of the employer or of a co-employee, the complaining
employee should not be exposed to retaliation by the employer.
An employer, however, retains the authority to dismiss an
employee for filing a complaint that is not supported by an
objectively reasonable basis.
In sum, the trial court did not commit reversible error by
failing to instruct the jury that it could find the Hospital
liable for the CEPA claim only if it first found that the
Hospital was complicit in the co-employees' misconduct. The
charge, moreover, adequately focused the jury's attention on the
reasonableness of the basis for the complaint.
Accordingly, we reverse the judgment of the Appellate
Division and reinstate the judgment entered in the Law Division
finding the Hospital liable on the CEPA claim.
IV.
The Law Division denied defendants' motion for summary judgment on the defamation claim. Initially, the trial court concluded that “the [Voorman-Fish] letter is reasonably susceptible of a defamatory meaning. . . . [A] reasonable person could conclude that the reference to Mr. Fromm's professionalism implicitly questions that of Ms. Higgins.” Later, in response to defendants' objection during plaintiff's summation, the court ruled that the Voorman-Fish letter on its own could not support a defamation claim because the letter merely was “a statement of fact about the . . . result of an investigation.” The court found, however, that plaintiff's defamation claim could rest on “the cumulative effect of the coworkers [and] the hospital administration." According to the court, the co-workers' letters, the Hospital's failure to respond to those letters, and Voorman-Fish's letter combined to portray Higgins as untrustworthy. The Appellate Division reversed, finding, as a matter of law, that no reasonable person could conclude that Higgins had been defamed.
A statement is defamatory if it “is false and 'is injurious to the reputation of another' or exposes another person to 'hatred, contempt or ridicule' or subjects another person to 'a loss of the good will and confidence' in which he or she is held by others.” Romaine v. Kallinger, 109 N.J. 282, 289 (1988) (quoting Leers v. Green, 24 N.J. 239, 251 (1957)). “Whether the meaning of a statement is susceptible of a defamatory meaning is a question of law for the court.” Ward v. Zelikovsky, 136 N.J. 516, 529 (1994).
We affirm the dismissal of the defamation claim substantially for the reasons set forth in the opinion of the Appellate Division. First, the Appellate Division properly concluded that Voorman-Fish's letter, which contained only statements of facts that were true, was not defamatory. As the Appellate Division explained:
Voorman-Fish's letter contained no language expressly or impliedly exposing plaintiff to ridicule or otherwise attacking her reputation. . . . The letter simply says that her complaints were investigated and 'to date' Voorman-Fish could find no substantiation and thus no reason to continue the investigation, but requested plaintiff to provide more information if she had any. We hardly see how this defames plaintiff. Moreover, the February 14 letter was not false; it accurately reported the results of defendants' investigation.
[307 N.J. Super. at 303.]
We also agree with the Appellate Division's conclusion that the co-workers' letters merely stated the co-workers' opinions. “[O]pinion statements generally have received substantial protection under the law. . . . Only if a reasonable factfinder would conclude that the statements imply reasonably specific assertions of fact will the harm be redressable.” Ward, supra, 136 N.J. at 531. As the Appellate Division found:
In their own letters, the co-employees expressed their opinions that plaintiff's accusations against Fromm and Contini were unfounded and they declared their unwillingness to work with plaintiff. These letters were expressions of opinion concerning plaintiff's good faith and made no statements of fact about her.
The effect of the Appellate Division's judgment was to
render moot several issues pertaining to damages and counsel
fees. 307 N.J. Super. at 281. Our partial reversal of the
Appellate Division's judgment requires that court now to consider
those issues.
The judgment of the Appellate Division is affirmed in part
and reversed in part, and the matter is remanded to the Appellate
Division.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, O'HERN,
GARIBALDI, STEIN, and COLEMAN join in JUSTICE POLLOCK's opinion.
NO. A-6 SEPTEMBER TERM 1998
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
JOSEPHINE C. HIGGINS and
JOSEPH A. HIGGINS, JR.,
Plaintiffs-Appellants,
v.
PASCACK VALLEY HOSPITAL;
DOROTHY VOORMAN-FISH;
GARY DEL MORO; MYRON HOROWITZ;
LOUIS YCRE and DANIEL DeSANTIS,
Defendants-Respondents.
DECIDED June 10, 1999
Chief Justice Poritz PRESIDING
OPINION BY Justice Pollock
CONCURRING OPINION BY
DISSENTING OPINIONS BY