SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-926-96T2
JOSEPHINE C. HIGGINS and
JOSEPH A. HIGGINS, JR.,
Plaintiffs-Respondents/
Cross-Appellants,
v.
PASCACK VALLEY HOSPITAL,
DOROTHY VOORMAN-FISH, GARY
DEL MORO, MYRON HOROWITZ,
LOUIS YCRE, and DANIEL
DeSANTIS,
Defendants-Appellants/
Cross-Respondents.
________________________________________________
Argued December 16, 1997 - Decided January 14,
1998
Before Judges Conley, Wallace and Carchman.
On appeal from the Superior Court of New Jersey,
Law Division, Bergen County.
John H. Schmidt, Jr. argued the cause for
appellants/cross-respondents (Lindabury,
McCormick & Estabrook, attorneys; Mr.
Schmidt, and Athena Lekas, on the brief).
Andrew Dwyer argued the cause for
respondents/cross-appellants (Reinhardt &
Schachter, attorneys; Paul Schachter, of counsel
and on the brief; Mr. Dwyer, on the brief).
The opinion of the court was delivered by
CONLEY, J.A.D.
Plaintiff, Josephine Higgins, was a part-time nurse for Pascack Valley Hospital's mobile emergency-care squad. In 1991 and 1992 she complained to her supervisors on two occasions about
what she believed to be misconduct by a co-employee. The
supervisors investigated both complaints and concluded that the
co-employee had not engaged in the alleged misconduct. As a
result of her complaints, however, other co-employees became
hostile towards plaintiff and expressed to their supervisors the
desire not to be assigned to work with her. In her subsequent
civil action, plaintiff contended that as a result, her work
hours were reduced and her request for transfer to the full-time
position of a mobile intensive care nurse was denied in
retaliation for her complaints and, thus, in violation of the
Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to
-8. She also claimed that defendants defamed her. Defendants
appeal a jury verdict returned in favor of plaintiff on both
claims, awarding her compensatory and punitive damages of
$640,000 (reduced to $619,000 on remittitur), plus $200,816.77
counsel fees, $11,884.85 in costs, and $26,082 prejudgment
interest. Plaintiff cross-appeals from the remittitur, the
calculation of counsel fees, and the dismissal of her complaint
against the individual defendants as to their personal liability.
On defendants' appeal, we reverse the verdict as to
defamation, agreeing with defendants that a cause of action on
that theory was not, as a matter of law, established by
plaintiff. Because we believe the jury charge as to the CEPA
claim was erroneous, we reverse the verdict as to that claim and
remand for a new trial thereon. We do so not only as to
liability but damages as well because we think the award of
compensatory and punitive damages can not be separated from the
liability issues.
As to the issues on cross-appeal, our reversal of the CEPA
and defamation liability verdicts renders the remittitur and
counsel fee issues moot. We are convinced the trial judge, for
the reasons she expressed, properly dismissed the complaint as to
the individual defendants and that, further, the issues on appeal
as to that dismissal are without merit and require no further
opinion. R. 2:11-3(e)(1)(A), (E).
In 1985, plaintiff began working for the hospital as a part-time nurse in its Mobile Intensive Care Unit (MICU). The unit responds to accident scenes with a nurse and a paramedic, who provide emergency treatment to injured victims and ride in the ambulance with the victims until arrival at the hospital. Plaintiff's employment status was known as "per diem-unscheduled." During her years with the hospital, plaintiff also worked part-time elsewhere as a nurse or nursing instructor. Her complaint originates from two separate incidents involving two separate calls. The parties have referred to the first incident as "the paperwork incident" and the second as the "pill-theft incident."
After completing an MICU call, the nurse and paramedic are required to fill out either a white or a blue sheet. A white sheet is used when the MICU arrived at the scene and provided
some assessment or treatment. A blue sheet is used if the MICU
call was canceled by the police or ambulance staff before the
MICU arrived.
Plaintiff testified that in the fall of 1991 two MICU nurses
had been suspended for filing a blue sheet for an incident in
which they had actually seen the victim; they should have filled
out a white sheet instead. Shortly thereafter the MICU
coordinator held a meeting at which he reminded the staff of the
importance of the necessity for proper paperwork.
About two months later, on November 18, 1991, plaintiff was
serving as a volunteer for Triboro Volunteer Ambulance Corps when
an ambulance was dispatched to the home of two firemen, father
and son, who had been injured during a drill. Plaintiff knew the
son, Kenny Steele, whom she began treating for smoke inhalation.
Also reporting to the scene was an MICU vehicle manned by two
paramedics, Bruce Contini and Peter Fromm. Plaintiff saw them
evaluating Kenny. Plaintiff's ambulance then transported Steele
to the hospital.
The next time plaintiff reported for MICU duty, about a week
later, she checked the MICU log to find out what had happened to
Steele. The log indicated that the MICU call had been canceled
before Contini and Fromm ever got to the scene. As a result,
plaintiff formed the opinion that the paperwork she found was
incomplete, and that the paramedics had failed to complete the
appropriate forms.
At trial Fromm gave his version of the incident. He and
Contini were dispatched to attend to a patient with a respiratory
emergency. While they were en route to the scene, they received
a second dispatch that there was a second patient needing
attention at the same location. Upon their arrival either some
police officers or the ambulance staff told them that the second
patient did not need their assistance; hence, they treated Kenny
Steele, who was suffering from smoke inhalation. Plaintiff had
already arrived with the ambulance and was with Steele. Fromm
and plaintiff agreed that Steele did not need the advanced life
support offered by the MICU, and so they left Steele with the
ambulance squad.
On the way back to the hospital, Contini filled out a blue
sheet with regard to the second patient, Kenny Steele's father,
whom they had not attended to. Contini wrote "Resp"
(respiratory) in the space for the purpose of the dispatch,
because that had been the subject of the initial dispatch. In
the section labeled "CANCELED PRIOR TO ARRIVAL," Contini first
wrote in "BLS" (basic life support, a reference to the ambulance
squad), but then crossed it out and wrote "error" when he
realized that he should have filled out the next section, for
calls canceled "UPON ARRIVAL." Fromm reviewed the blue sheet,
signed it, and gave it back to Contini.
According to Fromm he filled out a white sheet for the
incident, describing his and Contini's treatment of Kenny Steele
for smoke inhalation. In the top right-hand corner, in the space
for "Report #," Fromm wrote "91-" but left the rest of the number
blank because he was in the emergency room and the log book with
the incident numbers was in the office. Instead of putting the
form in the coordinator's box for his signature, Fromm said he
inadvertently left it in the emergency room where they had taken
Steele.
In his deposition (read into evidence because Contini had
moved to Colorado before trial), Contini substantially
corroborated Fromm's account of how he and Fromm had been "called
off" the second patient and examined Kenny Steele only. Contini
filled out a blue sheet on the second patient, at first filling
in the wrong section but finally indicating that the second call
had been canceled on arrival by the ambulance team. He said that
he had told plaintiff that the form had been properly completed.
Plaintiff, however, testified that Contini told her the white
sheet had been made up after she reported the incident.
Plaintiff reported the suspected impropriety to her
supervisor, defendant Gary Del Moro, Coordinator and Assistant
Director of the MICU. He told her that he would investigate and
get back to her. Del Moro testified at trial that upon receiving
plaintiff's complaint, he called Fromm, told him of her complaint
and asked him if he had completed the proper forms. Fromm told
him he had. Del Moro also advised Dorothy Voorman-Fish, the
President of Nursing Services, of the potential infraction. The
next morning Del Moro investigated the complaint. As he began
his investigation, he located only the blue sheet. He then
telephoned the dispatching agency, and confirmed that the
dispatch was for two people, one who had respiratory problems and
one who fell. Since Del Moro could not locate the white sheet in
the MICU office or the emergency room, he went to the medical
records department at the hospital to look through the patient
charts. Inside of the patient's medical record was the white
sheet. Although the dispatch report number was missing, the
white sheet was otherwise complete. The missing dispatch number
was later filled in by Nancy Del Moro, a full-time MICU nurse
(and Gary Del Moro's wife), on November 8, 1992, nearly a year
later.See footnote 1
Del Moro made a written report of the accusation and what
his investigation revealed to Voorman-Fish. Thereafter, Voorman-Fish reviewed six months of MICU incident reports to make certain
the hospital policies were being followed. Plaintiff was made
aware of Del Moro's findings and claimed to have been chastised
for making the report. Plaintiff was not disciplined for making
the accusations against Fromm and Contini, but Del Moro wrote in
his December 7, 1991 report to Voorman-Fish:
Josephine'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 in addition to
Josephine's history of not following the chain of
command make her a less than desirable employee.
Following the incident, both Fromm and Contini wrote to Del Moro
requesting that they no longer be scheduled to work with
plaintiff. During his deposition, Contini expressed his opinion
that plaintiff was not a good MICU employee, claiming she had
poor communication skills and a lack of direction in treating
patients. He felt his opinion was shared by other employees in
the MICU.
On January 15, 1992, plaintiff and Fromm were dispatched to aid someone experiencing chest pain. Plaintiff was standing on one side of the patient's bed and Fromm on the other, when plaintiff saw Fromm open the patient's bottle of pills, empty them into his left hand and place them in his pocket. Plaintiff was very upset, never having seen such conduct. Though there were police present, plaintiff did not say anything at the time because "I was taking care of my patient and I was trying to think through what I had just seen." Upon arrival at the hospital, plaintiff called her nursing supervisor, Linda Sacchieri. Sacchieri told her to return to work and that she would "handle the situation."
The hospital has specific policies and procedures to follow in connection with allegations of an employee's drug abuse or unlawful activities. Sacchieri testified at trial that immediately after plaintiff's report, she contacted Voorman-Fish
for advice. After talking to Voorman-Fish, Sacchieri immediately
took Fromm into her office. She and another supervisor
questioned him about the alleged theft of medication, and made
him empty his pockets. This was audio-taped. Fromm denied
taking drugs and had nothing in his pockets.
The next morning, Voorman-Fish directed Del Moro to contact
the Paramus police and volunteer ambulance squad and try and get
statements. Voorman-Fish also reviewed the MICU incident report,
the white sheet, and particularly focused on the drugs that were
listed as the patient's medications.
That same morning Voorman-Fish also telephoned plaintiff and
asked her to document the incident and submit that in writing to
her by 5:00 p.m. that day. Later that same day, plaintiff
telephoned Voorman-Fish and told her that she would not submit
anything until she could speak with her attorney. Because
Voorman-Fish had not received anything in writing from plaintiff
on January 15, 1992 she wrote to plaintiff on January 16, 1992
and chastised her for not responding. In fact, plaintiff did
respond to Voorman-Fish; the letter was dated January 16, 1992
and was found on a desk in the nursing office on January 17,
1992.
In response to Voorman-Fish's directions, Del Moro did
contact the Paramus police and the ambulance squad that responded
with plaintiff and Fromm on January 15, 1992. He found no
information to corroborate what plaintiff had reported.
At trial Fromm denied plaintiff's theft accusation. He
explained that he opened the patient's prescription bottles and
emptied their contents into his hand in order to determine if the
patient had taken too many or not enough pills, which he could
determine by looking at the dates on the bottles and then
counting the number of pills remaining. He opined that it "would
have been irresponsible" of him not to examine the patient's
medications. Fromm then poured the pills back into their bottles
and replaced the lids; he denied putting any pills in his
pockets.
Following its investigation of plaintiff's allegations, the
hospital concluded that Fromm did not steal prescription
medications from the Paramus residence. Although plaintiff was
advised of the hospital's conclusion following its investigation,
she objected to it, still believing that Fromm had stolen a
patient's drugs and felt the investigation had been whitewashed
because she was never asked to participate in it.
The result of the investigation was conveyed to plaintiff by
Voorman-Fish in a letter dated February 14, 1992. Shortly
thereafter, someone posted the letter in the coffee room. Both
Voorman-Fish and Del Moro denied doing that. The letter was
addressed only to plaintiff and not copied to anyone else. It
stated:
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 any
further.
If you are able to present corroborative
evidence of any nature bearing on this
matter, please contact me.
Shortly after the January 15 incident, Del Moro received letters from six MICNs and MICPs which advised him that they no longer felt that they could trust plaintiff and that they no longer wanted to be scheduled to work with her. They expressed concern that plaintiff could make false accusations against them. Del Moro also received another letter from Fromm which stated that in light of the accusations made against him, Fromm could no longer work with plaintiff.
As a result of the letters that were received, Voorman-Fish called a meeting for January 27, 1992. Plaintiff was asked to attend. In addition to Voorman-Fish and Del Moro, defendants Daniel DeSantis, the Director of Personnel, Myron Horowitz, the Director of Labor Relations, and Louis Ycre, the president of the hospital, also attended, as well as a union representative. According to Voorman-Fish, the purpose of the meeting "was to apprise the union representative of what had ensued, what the allegations were, the result of the investigation, the receipt of these letters, and our need to move on." Plaintiff was shown letters from her co-employees stating that they refused to work with her out of fear that she would turn them in.
Each letter expressed the sentiments reflected in the following letter from Cathy Roy, an MICU paramedic:
In view of the recent incident involving
accusations made by Josephine Higgins against
a fellow staff member, I would like to make
known my wishes that I not be scheduled to
work on the MICU with Ms. Higgins in the
future.
I value my certification, my reputation and
the fine reputation of the MICU at Pascack
Valley Hospital too much to see any one of
them jeopardized by any possible detrimental
action taken by the aforementioned
individual.
All but one of the letters were typed on Del Moro's office
computer; each writer claimed that his or her letter was
unsolicited, although most knew that others also were going to
write a letter.
Among the things that bothered the co-employees about
plaintiff's accusation of Fromm was her failure to speak with
Fromm before reporting him; this was a breach of the nursing code
of ethics, which requires one to consult one's partner before
alleging misconduct against him or her. Cathy Roy described
plaintiff "as having a very over reactive hyperactive personality
with sort of a crusader complex," meaning that she felt she could
"single-handedly save the world."
Del Moro told plaintiff that the president of the hospital
"was concerned that they could not keep the mobile intensive care
unit on the road so that they were going to remove me from the
mobile intensive care unit and place me into the emergency room."
Plaintiff was told to turn in her keys to the MICU vehicle and
her portable radio.
In a letter of January 30, 1992, Voorman-Fish advised
plaintiff as follows:
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.
After removal from the MICU, plaintiff felt that Del Moro
wanted "to get even for what I had done to . . . another
paramedic." She said one way this manifested itself was in her
being scheduled for fewer hours. After working her new emergency
room assignment for just one day, plaintiff was advised by her
union representative, Heck, not to return to the emergency room,
as she had been hired for the MICU and not the emergency room.
In the second week of February 1992, plaintiff was allowed to
return to the MICU but as a third member; normally, a third
member was a trainee or observer. Del Moro met with the MICU
staff and affirmed that everyone had to work as scheduled, in
order to maintain the efficiency of the unit.
Eventually, sometime later in 1992, plaintiff was permitted
to participate as one of the two principal riders. But,
according to plaintiff, she "was working far less" than before.
Del Moro, who was in charge of scheduling, denied any conscious
attempt to reduce plaintiff's hours. But because he felt that
plaintiff herself had made herself available with unacceptable
frequency, by August 1993 Del Moro had decided that plaintiff
should be fired, and he recommended that to Diane Bongiovanni,
Director of Nursing for Special Units. But Bongiovanni declined.
On January 30, 1992, plaintiff applied for a posted full-time position as an MICU night nurse. At the same time a day-time position was posted; plaintiff applied for them both. In
April 1992 plaintiff was interviewed for the night job by
Bongiovanni. Bongiovanni selected the other applicant, Bruce
Contini, a paramedic who had just finished nursing school. At
trial she explained her reasons for picking Contini:
Because I felt at that point he had a
significant amount of more hours in advanced
life support and more recent emergency room
experience that related to advance life
support and had more experience with the
types of skills and requirements that were
needed in advanced life support.
She denied that there were any other factors influencing her
decision. When confronted with her deposition, however, she
admitted that Contini had told her that he would resign if he
were not selected, and that she factored that into her decision.
Plaintiff was upset because she had far more experience than
Contini. Mary McIntyre, an unscheduled per diem nurse, also
opined that Contini's "qualifications were nowhere near equal to
Josephine's." Moreover, under the collective bargaining
agreement members of the union were entitled to preference for
job openings, yet Contini was not a member at the time he
applied; he had become a member by the time of his hiring in
April 1992. According to McIntyre, in March 1992, before Contini
became a union member, Horowitz told her that Contini would
"probably get the job." By letter of April 10, 1992, the
personnel office notified plaintiff that the hospital had decided
not to fill the other, day-time position and had therefore
eliminated it.
Marcy Carovillano, an unscheduled per diem paramedic in the
MICU, began working in October 1993. She was surprised that Del
Moro would say "very derogatory, inflammatory things" about
plaintiff in front of her and other employees. Del Moro told
Carovillano "to watch out for [plaintiff], she's bad news, . . .
watch your back, she'll, you know, on calls and she can write
people up on the drop of a dime and he was laying the ground work
to me, of trying to dishonor someone." She heard similar
warnings from others, "almost like everybody was programmed to
say exactly the same thing." Several of the staff told
Carovillano that plaintiff was to be scheduled only "if they were
really desperate." But after plaintiff filed the instant action,
Del Moro said that plaintiff would have to be given more hours;
otherwise, "it wouldn't look good." When Carovillano finally met
and worked with plaintiff, she found plaintiff to be an excellent
worker and a "pleasure" to work with.
In June 1994 Fromm became clinical supervisor and began
assisting with the scheduling of MICU personnel. He denied ever
passing over plaintiff in retaliation for her accusations against
him. He estimated that about forty percent of the time plaintiff
failed to return his calls for her to work.
In the first four points of their main brief, defendants argue for reversal of the CEPA portion of the verdict. In Point I, as well as in part of Point II and Point IV, they contend that, as a matter of law, CEPA was never intended to protect those who protest the illegal conduct of co-employees, as opposed to the illegal conduct of the employer itself.
Defendants raised this contention as part of their motion to dismiss at the close of plaintiff's case. At that time, the trial judge denied the motion, holding that it was for the jury to determine whether CEPA protected plaintiff in these circumstances, an issue that she said was "very close." She did not expressly discuss defendants' claim that the act did not apply to misconduct of co-employees.
Defendants reasserted the point in support of their motion for judgment notwithstanding the verdict. In support of their n.o.v. motion, defendants relied on an unreported Appellate Division opinion, Jensen v. Harrah's Casino Hotel, No. A-4129-93 (App. Div. May 4, 1995), certif. denied, 142 N.J. 455 (1995). In that case plaintiff, a marketing operations supervisor for a
casino, was fired after she told the manager of another department (not her immediate supervisor) that she suspected
another marketing operations supervisor of stealing casino
coupons. In her CEPA action plaintiff alleged that defendant
joined in a "cover up" of the employee's misconduct and was
careless in enforcing existing procedures. The trial court
granted summary judgment to defendant, noting that N.J.S.A.
34:19-3 applied to illegal activity by an employer, not by
another employee. We affirmed, relying upon Abbamont v.
Piscatway Township Bd. of Educ.,
138 N.J. 405 (1994). We thought
in Jensen that a plaintiff seeking protection under N.J.S.A.
34:19-3 must demonstrate employer involvement in workplace
violation of a law, rule, or a clear mandate of public policy.
In ruling on defendants' motion and denying it, the trial
judge here agreed that employer involvement in the alleged
violative conduct was required. She said "I believe the entire
statute requires the employer's complicity, or you don't have a
case. . . ." She thought, however, that there was ample evidence
to show such complicity and so denied the motion. She observed:
I believe that the entire statute requires
the employer's complicity, or you don't have
a case, but I do believe there was ample
evidence on this record to show the
employer's complicity. That if it was an
initial complaint against a co-employee, it
does not negate the fact of an employer's
responsibility under CEPA where the employer
does nothing, and in fact does -- does
nothing to rectify the obvious, illegal
activity that is being complained
about. . . . [T]he result of the inadequate
education and investigation of the complaint
is the termination with zero cause -- which
was what this record was -- zero cause for
termination of Ms. Higgins [sic] services,
and a[n] inflammation of the emotions in the
work place setting by the supervisors -
directly by the supervisors to instill fear
and hatred against Ms. Higgins to make it
impossible for her to continue as an MICN in
this unit.
I had ten or more people come here and
tell a jury that for reasons that they could
not articulate they didn't want to work with
Ms. Higgins. Was it because she wasn't able
to do her job? No. Was it because she
wasn't qualified to do her job? No. Had
they ever had any problems with Ms. Higgins?
No. Was she always there when she was called
to a job? Yes, but we didn't want to work
with her, so there was only one reason
articulated on this trial record as to why
they didn't want to work with her. It was
because the entire administration at Pascack
Valley did zero to mitigate that ramp in
emotion that had no foundation, in fact, and
were derived upon [sic] an illegal activity
of one employee as seen by Ms. Higgins.
Now, does that mean that the person that
was alleged to have stolen drugs had to be
terminated? No, but it certainly doesn't
mean that his activities can be condoned and
rewarded, and everyone who supports him can
be rewarded while Ms. Higgins takes the brunt
of an administration who did not want to -
to find out what really happened.
[Emphasis added.]
The judge, then, clearly thought that the hospital had, in
effect, whitewashed the investigation, thus tying itself to the
employee's misdeeds.
CEPA provides in pertinent part as follows:
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 or another
employer, with whom there is a business
relationship, that the employee reasonably
believes is in violation of a law, or a rule
or regulation promulgated pursuant to
law, . . . ;
b. Provides information to, or testifies
before, any public body conducting an
investigation, hearing or inquiry into any
violation of law, or a rule or regulation
promulgated pursuant to law by the employer
or another employer, with whom there is a
business relationship, . . . ; 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. . . .
[N.J.S.A. 34:19-3 (emphasis added).]
"Employer" is defined in CEPA to mean "any individual,
partnership, association, corporation or any person or group of
persons acting directly or indirectly on behalf of or in the
interest of an employer with the employer's consent. . . ."
N.J.S.A. 34:19-2a (emphasis added).
The Supreme Court in Abbamont v. Piscataway Township Bd. of
Educ.,
138 N.J. 405 (1994), discussed the purposes of CEPA as
follows:
In 1986 the Legislature enacted CEPA to
protect employees from retaliatory actions by
employers. That law protects "whistle
blowers," "who, believing that the public
interest overrides the interest of the
organization he [or she] serves, publicly
`blows the whistle' if the organization is
involved in corrupt, illegal, fraudulent, or
harmful activity." As the bill's sponsor
stated, CEPA's enactment is "important to all
New Jersey workers who are concerned about
working in a safe environment with honest
employers." When signing the whistleblower
law, Governor Kean explained CEPA's purpose:
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.
[Id. at 417-18 (citations omitted) (emphasis added).]
The focus of CEPA's perceived purpose, then, is upon
protecting employees who reasonably believe something is very
amiss with their employer's activities and who want to prompt
corrective action, or simply lodge a complaint. Thus, N.J.S.A.
34:19-3 a and b expressly refer to whistleblowing on an activity,
policy or practice "of" or "by" "the employer." Plaintiff
contends, using standard principles of statutory construction,
that the absence of such modifying phrase in N.J.S.A. 34:19-3c
reflects a legislative intent to broaden the scope of CEPA's
protective umbrella to any workplace activity, whether or not
acquiesced in by the employer. Plaintiff construes CEPA to
impose strict liability upon an employer and its supervisors for
the misconduct, or reasonably believed misconduct, of a
nonsupervisory employee.
We recognize that subsection c may be so broadly read. But
we are convinced that the Supreme Court's discussion of employer
liability under CEPA for compensatory and punitive damages in
Abbamont and its understanding of the difference between strict
liability and vicarious liability in the context of a CEPA cause
of action, is dispositive. We therefore need not engage in
extended discourse and analysis of CEPA and its scope, or survey
the scope of similar whistleblower statutes in other states, a
task neither party has attempted to do.
After discerning CEPA's focus upon "`New Jersey workers who
are concerned about working in a safe environment with honest
employers,'" 138 N.J. at 417, the court in Abbamont held that the
"traditional doctrine of respondeat superior governs employer
liability for compensatory damages under CEPA[,]" id. at 418, and
that "`the employer should be liable for punitive damages only in
the event of actual participation by upper management or willful
indifference[,]'" id. at 419 (quoting Lehmann v. Toys `R' Us,
Inc.,
132 N.J. 587, 625 (1993)). Critical to its analysis in
explaining the concept of respondeat superior in the context of
compensatory damages, the Supreme Court resorted to agency law
which it considered as "`sufficiently flexible to provide just
results in the great variety of circumstances presented by [the
retaliatory discharge of whistleblowers] and to accomplish the
purposes of [CEPA].'" Id. at 418 (quoting Lehmann, supra, 132
N.J. at 619). In rejecting the argument that agency principles
should not pertain because CEPA requires intentional employer
conduct, the court observed: "`[a]ccording to the trend of modern
authority, the liability of an employer for the acts of his
employee depends not upon whether the injurious act of the
employee was wilful and intentional or was unintentional, but
upon whether the employee, when he did the wrong, was acting in
the prosecution of the employer's business and within the scope
of his authority, or had stepped aside from that business and
done an individual wrong.'" Abbamont, supra, 138 N.J. at 419
(quoting
53 Am. Jur. 2d Master & Servant § 438 (1970) (emphasis
added)).See footnote 2 Here, plaintiff accused Fromm and Contini of
falsifying records and accused Fromm of stealing drugs. Such
misconduct, at the time of its commission, certainly 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.
Our reading of the statute and its legislative history with
our understanding of the sense of Abbamont leads us to the
conclusion that in order for plaintiff to be entitled to
compensatory damages on her CEPA claim, she must demonstrate that
Voorman-Fish and Del Moro either condoned or ratified the alleged
violative conduct of which she complained and for which she says
she was retaliated against. Cf. Maher v. New Jersey Transit Rail
Operations, Inc.,
239 N.J. Super. 213 (App. Div. 1990), aff'd in
part, rev'd in part
125 N.J. 455 (1991) (plaintiff claimed he was
harassed and fired because he reported a co-employee for
misconduct, including drinking alcohol on the job. We reversed
the summary judgment granted based on a federal preemption, but
noted the "dubious" nature of plaintiff's claim under CEPA. Id.
at 228.). Contrast Barratt v. Cushman & Wakefield of N.J., Inc.,
144 N.J. 120 (1996).
In our view, then, plaintiff's CEPA cause of action depends
upon her contention that not only had Fromm violated hospital
procedure, not to mention various applicable administrative code
provisions, and, as to the medication theft incident, criminal
laws, but the hospital, through its supervisors Del Moro and
Voorman-Fish, condoned and ratified that conduct by whitewashing
the investigation. Were that so, we have no doubt that damages
against the hospital would be warranted.See footnote 3
Our concern, however, is that the jury charge was not so
focused. In this respect, we note the first two interrogatories
submitted to the jury. The first required the jury to consider
the alleged misconduct of Fromm; the second that of the hospital,
that is to say Voorman-Fish and Del Moro. As to the hospital,
the trial judge instructed the jury in pertinent part:
In this case, plaintiff, 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 public health,
safety, or welfare of a -- of the public. To
prevail on this claim, the plaintiff, Josephine
Higgins, has the burden of showing by a
preponderance of 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, prescribed
medications in their -- in the house. A rule a
regulation promulgated pursuant to this law, that
had to do with the documentation on another
incident, namely, the blue or white sheets that
you heard about.
And these allegations also fall with -- in
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
control of and documentation relating to the
patient's prescription medication in her home was
not followed. She -- 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 there 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 by a preponderance of the evidence, that in
light of the circumstances facing her and the
knowledge possessed by her at the time, she formed
her belief. She has 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 -- 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.
Defendant cannot be charged with a
retaliatory motive if you find that defendant
hospital's conduct towards the plaintiff did not
change perceptively following her objections that
she had made to her supervisor at various times.
In this case, the defendant is free to show that
the retaliatory action taken against the plaintiff
was animated, that is, caused by her incompetence,
her disloyalty, reduction in forces of the
hospital or any other legitimate reason.
Plaintiff must then place on the record after the
hospital may have endeavored to show those
elements, then plaintiff would have to place on
the record tangible evidence to show that the
defendant Pascack Valley's failure to follow the
contract and give the job -- gave the job to
Contini instead of her, because of her alleged
failure to respond to calls, or make herself
available, or any other of defendant's proofs,
were all what we call a pretext, an endeavor to
justify that their otherwise retaliatory actions.
[Emphasis added.]
Finally, when explaining interrogatory #2 relating to the
hospital's violation of a clear mandate of public policy, law or
regulation, the judge said no more than "[n]umber 2 . . . asks
you . . . what was [the hospital's] response."
These instructions are erroneous for two reasons. First,
they seem to tell the jury that the violation by her co-employee,
in and of itself, is enough. We say this because the judge told
the jury that to establish the first element of her burden of
proof, plaintiff need demonstrate a reasonable belief of a
violation by "defendant through the employees." But just prior
to this statement, the judge had referred to Fromm's alleged
misconduct. And, although the word "condoned" was used, no
distinction was made between the co-employees' conduct and the
handling of plaintiff's complaints by Del Moro and Voorman-Fish.
Second, the jury charge did not focus the jury's attention
upon what action on the part of Voorman-Fish and Del Moro would
implicate the hospital for the purposes of imposing
responsibility for CEPA damages. As we have said, CEPA is
premised upon remediation of alleged employer violative conduct,
here, that relating to the document falsification and medicine
theft. To establish the necessary employer conduct, plaintiff
contended that the hospital's investigations were a sham and a
cover-up. Were that so, Abbamont's agency principles would have
been satisfied, for a sham or bad faith investigation would
reflect a condoning or ratification of the misdeeds. The problem
is, the jury was not told that that is what it must conclude to
affirmatively answer interrogatory #2 as to the employer's
violation of a clear mandate of public policy, law or regulation.
Under the jury charge, the jury could have believed simply that
the hospital's investigation, though conducted in good faith, was
nonetheless inadequate and that the hospital should have done a
better investigation which would have vindicated plaintiff's
complaints.
We do not believe that where the employer investigates a
complaint as to a co-employee's conduct that is alleged to fall
within N.J.S.A. 34:19-3(c)(1), (2) or (3) and does so in good
faith, but nonetheless, perhaps because of some inadequacies in
the investigative techniques or, perhaps, because some source of
information was misleading, reaches a conclusion a jury may think
is incorrect, such an incorrect result may ipso facto constitute
a violation of a clear mandate of public policy or law. As we
have said, the gravamen of plaintiff's claims was her complaint
of drug theft and false or improper paperwork and the retaliation
thereon. It is the employer's complicity in that activity that
must be the basis for damages under CEPA. That is to say, the
jury should have been told that it must determine not just
whether the investigation of the complaint led to what it
perceived was the right result, but whether the investigation was
conducted in bad faith and was a sham or cover-up of the
misconduct such that master/servant or principal/agent liability
evolved between the hospital and its supervisors, Voorman-Fish
and Del Moro.
The trial judge did not make this clear and we can not tell
from the jury verdict whether it answered #2 yes because it found
the investigation was a cover-up or because it simply felt the
investigation reached the wrong result. If the jury premised its
findings on the former, a CEPA violation would be well-founded.
But if it concluded defendant's "retaliation" was attributed to a
good faith but erroneous investigation, we are convinced CEPA
would not apply.
Plaintiff's complaint alleged defamation based upon the posting of the February 14, 1992 letter from Voorman-Fish to plaintiff concerning the January 15, 1992 pill-theft incident. We have previously set forth the contents of that letter. In general, Voorman-Fish told plaintiff that the hospital could "find nothing to substantiate an improper act of the nature" she had complained of and that because of that and because of Fromm's prior "level of professional conduct," she saw no basis for further pursuing the matter. However, she urged plaintiff to contact her if she could present any other evidence that would substantiate her accusation.
Defendants' motion for summary judgment on the grounds that the letter did not have a defamatory meaning as a matter of law was unsuccessful. The motion judge said:
[T]he letter is reasonably susceptible of a defamatory meaning. The letter which was addressed to the plaintiff and posted on a Hospital bulletin board made it clear that Ms. Voorman-Fish found her allegations against Peter Fromm to be uncorroborated. Further the court agrees with plaintiff that a reasonable person could conclude that the reference to Mr. Fromm's professionalism implicitly questions that of Ms. Higgins.
Defendants reasserted their argument in their motion for judgment at the end of plaintiff's case. The trial judge found that the jury could find that the letter defamed plaintiff and that the hospital was liable for allowing the letter to be posted. However, during summations, it became clear that in addition to the February 14 letter, counsel intended to argue that the letters of the co-employees expressing their desire not to be scheduled with plaintiff were also defamatory. When defense counsel raised an objection, the trial judge ruled, in apparent contradiction of her ruling in denying defendants'
motion for judgment, that the Voorman-Fish letter itself was "a
statement of fact about the . . . result of an investigation and
therefore couldn't possibly be defamatory." Thus, reasoned the
judge, if that were the only basis of plaintiff's defamation
action, she would "have to throw it out." But she concluded the
letter was defamatory:
if placed in conjunction with the actions and
inactions of the hospital concerning what
they knew was being said about her and that
they were complicit in denying her; namely,
never addressing with the people the fact
that there is not a scintilla of evidence to
say that she is not trustworthy, that in
fact, she had done her job in accordance with
the policies, procedures and -- of the
hospital, as well as the State of New Jersey.
That's the essence of the defamation. It is
plain on its face . . . .
She added that "it was the countenancing of behavior within the
department that directly defamed" plaintiff, and that "[i]t was
the cumulative effect of the coworkers, the hospital
administration that directly impugned her business professional
reputation. . . ." The judge considered defendants' failure to
respond to the co-employees' letters as indicating that plaintiff
indeed was trustworthy. And the trial judge referred to the co-employees' letters as being defamatory per se. In her charge to
the jury, the judge identified the allegedly defamatory
statements as such:
that she [plaintiff] couldn't be trusted;
that people couldn't work with her because
they weren't able to have confidence in her
working together with them. And, that,
coupled with the letter that was posted that
was addressed to Ms. Higgins only, and the
statements in that letter combined to defame
her.
As far as we can discern, the trial judge's view seemed to
be that: 1) the co-employees' letters expressed the writers'
belief that plaintiff was not trustworthy and had acted
irresponsibly in reporting the two incidents; 2) the evidence
showed that plaintiff, in fact, had acted properly in reporting
the incidents and had never been guilty of untrustworthy conduct
on the job; 3) defendants were aware that the co-employees'
beliefs were unfounded; 4) in spite of this awareness, defendants
never attempted to correct the co-employees' misapprehensions
about plaintiff, thereby in effect, reinforcing and condoning
those misapprehensions; 5) the posting of the Voorman-Fish
letter, while not defamatory in itself, evidences defendants'
"countenancing" of the co-employees' attitudes; 6) that
"countenancing" constituted the defamation.
However the judge's formulation of the cause of action might
be characterized, we do not think the critical letter comes close
to being classifiable as defamation.
A defamatory statement is one that is
false and "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).]
See Casamasino v. City of Jersey City, 304 N.J. Super. 226, 243 (App. Div. 1997). If the offending statement is not capable of a defamatory meaning, the trial court should dismiss the claim as a matter of law. Romaine v. Kallinger, supra, 109 N.J. at 290. In
so determining, it is the "fair and natural" meaning that a
reasonable person of ordinary intelligence and sensibility would
give the statement that must be considered. Ward v. Zelikovsky,
136 N.J. 516, 529 (1994); Romaine v. Kallinger, supra, 109 N.J.
at 290. As observed by the Supreme Court in Ward v. Zelikovsky,
supra, 136 N.J. at 529 "[t]he First Amendment `does not embrace
the trite wallflower politeness of the cliche that if you can't
say anything good about a person you should say nothing at all.'"
(quoting Rodney A. Smolla, Law of Defamation, § 6.09[2], at 6-37
(1986)). Cf. Romaine v. Kallinger, supra, 109 N.J. at 295 (in
the conceptually related law of privacy, there can be no recovery
for false-light invasion of privacy unless the publication is of
a character "`highly offensive to a reasonable person.' . . .
[t]his protection of privacy does not extend to the
`hypersensitive person[.]'" (citations omitted)).
Voorman-Fish's letter contained no language expressly or
impliedly exposing plaintiff to ridicule or otherwise attacking
her reputation. Contrary to plaintiff's reading of it, it could
not, even in the context of all the circumstances, reasonably be
"understood to mean that plaintiff, at best, had made wild
accusations; at worst, she had lied." 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.
True statements are absolutely protected under the First
Amendment. Ward v. Zelikovsky, supra, 136 N.J. at 530.
Indeed, the trial judge ultimately did not find that the
letter was defamatory. She expressly ruled that the letter
contained "a statement of fact about the . . . result of an
investigation and therefore couldn't possibly be defamatory."
The only way the letter was pertinent to the defamation, reasoned
the judge, was that it was some evidence that defendants failed
to correct the co-employees' opinions that plaintiff had acted
unprofessionally in reporting the incidents. But this is not
defamation.
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.
Only a statement of fact can be defamatory; mere expressions of
opinion, which, by their nature, can never be proved true or
false, are not actionable, unless they imply the existence of
undisclosed facts. Ward v. Zelikovsky, supra, 136 N.J. at 531;
Karnell v. Campbell,
206 N.J. Super. 81, 89 (App. Div. 1985). If
the letters are not defamatory neither can be the hospital's
failure, as thought by the trial judge, to refute the contents of
the co-employees letters.
We thus reverse the judgment as to defamation and dismiss that count of the complaint. We reverse the judgment for
damages, counsel fees and costs based upon CEPA and remand for a new trial consistent with this opinion. We do not retain jurisdiction.
Footnote: 1When asked about the one year delay, Fromm testified:
A Well, the log book was amended immediately upon
discovery of the error. Nobody bothered to put it
on the form. And [sic] accusation had been made,
and I think that the form was kept by the
coordinator until that whole thing was resolved.
So I didn't access -- let me back up. The chart
was never given to me so that I could fix it.
Q. So the number was added after the accusation
was made?
A. Yes.
Footnote: 2In the context of employer LAD responsibility for workplace
sexual harassment, the court explained more fully the concept of
vicariously employer liability in Lehmann v. Toys `R' Us, Inc.,
supra, 132 N.J. at 624:
An employer will be found vicariously liable if
the supervisor acted within the scope of his or
her employment. Moreover, even if the supervisor
acted outside the scope of his or her employment,
the employer will be vicariously liable if the
employer contributed to the harm through its
negligence, intent, or apparent authorization of
the harassing conduct, or if the supervisor was
aided in the commission of the harassment by the
agency relationship. Thus, an employer can be
held liable for compensatory damages stemming from
a supervisor's creation of a hostile work
environment if the employer grants the supervisor
the authority to control the working environment
and the supervisor abuses that authority to create
a hostile work environment. An employer may also
be held vicariously liable for compensatory
damages for supervisory sexual harassment that
occurs outside the scope of the supervisor's
authority, if the employer had actual or
constructive notice of the harassment, or even if
the employer did not have actual or constructive
notice, if the employer negligently or recklessly
failed to have an explicit policy that bans sexual
harassment and that provides an effective
procedure for the prompt investigation and
remediation of such claims.
See generally, Restatement (Second) of Agency, § 219.
Footnote: 3In this respect we agree with plaintiff that thefts of
medication and falsification of records constitute a violation of
a law or a clear mandate of public policy, not to mention a
violation of pertinent administrative regulation and criminal
laws. As she asserts in her brief:
The theft of a patient's medication, or the
falsification of paperwork regarding patient
care, plainly are illegal activities that
directly impact the public interest in the
provision of health care. See also, e.g.,
N.J.S.A. 2C:21-4.1 (making it a crime to
"falsif[y] any record relating to the care of
a medical . . . patient"); N.J.S.A. 2C:20-1
et seq. (theft and related offenses);
N.J.S.A. 2C:35-1 et seq. (unlawful possession
of drugs).
Moreover, defendants concede in their brief:
The defendants will acknowledge that the
activities Higgins' [sic] accused Fromm and
Contini of having engaged would have constituted
violations of law, regulations and public policy
if those activities occurred. The Hospital
investigated each of the accusations made by
Higgins, however, and determined that the
activities which formed the bases of her
accusations had not occurred.
And see, e.g., Barratt v. Cushman & Wakefield of N.J., Inc., supra, 144 N.J. at 131 ("[s]tatutes and administrative regulations . . . are precisely the mandates of public policy that will support an action for wrongful discharge."); Chelly v. Knoll Pharmaceuticals, 295 N.J. Super. 478, 488 (App. Div. 1996).