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VERONICA DENIS VS. MORRIS VIEW HEALTHCARE CENTER (L-1572-18, MORRIS COUNTY AND STATEWIDE) ( 2021 )


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  •                                  NOT FOR PUBLICATION WITHOUT THE
    APPROVAL OF THE APPELLATE DIVISION
    This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
    internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.
    SUPERIOR COURT OF NEW JERSEY
    APPELLATE DIVISION
    DOCKET NO. A-3870-19
    VERONICA DENIS,
    Plaintiff-Appellant,
    v.
    MORRIS VIEW HEALTHCARE
    CENTER,
    Defendant-Respondent.
    _____________________________
    Submitted November 4, 2021 – Decided December 16, 2021
    Before Judges Hoffman and Whipple.
    On appeal from the Superior court of New Jersey, Law
    Division, Morris County, Docket No. L-1572-18.
    Jared A. Geist, attorney for appellant.
    John A. Napolitano, Morris County Counsel, and
    Kaufman, Semerano & Leibman, LLP, attorneys for
    respondent (Mark J. Semeraro and R. Scott Fahrney, on
    the brief).
    PER CURIAM
    Plaintiff, Veronica Denis, appeals from the May 8, 2020, order dismissing
    her complaint against defendant, Morris View Healthcare Center (Morris View),
    a facility under the purview of the Department of Human Services (DHS), for
    violating the statute of limitations and failing to present a case under the New
    Jersey Law Against Discrimination (NJLAD). We affirm.
    Plaintiff was hired at Morris View as an Institutional Attendant or nurse's
    aide in May 1991. After seven years, she began working as a licensed practical
    nurse (LPN), and five years after that, as a registered nurse (RN), until she
    retired, or as she alleges, was forced out. Plaintiff was a charge nurse in 2015.
    The charge nurse was responsible for various administrative tasks,
    including assigning tasks to other nurses; overseeing internal reporting, such as
    incident reports and reporting incidents to the nurse supervisor; no tifying
    relatives of changes to the patient's medications; and reporting the last twenty -
    four hours and patient events in their progress notes. RNs and, on occasion,
    LPNs could fulfill the role of charge nurse. A charge nurse earned an extra
    $1.75 per hour.
    In March 2015, plaintiff was provided with a performance report, which
    imposed a five-day suspension from April 15 to 29. The performance report
    found plaintiff had failed to notify the families of two different patients about
    A-3870-19
    2
    multiple medication and condition changes. With one patient, plaintiff failed to
    notify the family regarding four medication changes, and similarly, failed to
    report same on the Integrated Progress Notes and twenty-four-hour report. With
    the second, plaintiff failed to mention a change in condition to the family, as
    well as a change in medications. Thus, Morris View found she had "neglect[ed]"
    her duty and must "improve [her] compliance." Three days after the March
    performance report, Maureen Callery-Giordano, RN, notified plaintiff she was
    being transferred to another unit and would no longer be a charge nurse, but a
    wing nurse, unless needed because charge nurses were absent.
    On April 1, 2015, plaintiff filed a grievance for the five-day suspension
    and for the assignment change. As to the suspension grievance, Drew Lutton,
    the Hearing Officer for the grievances from Morris View, summarized plaintiff's
    performance issues, her suspension, and the hearings held on May 13, 2015, and
    he provided his recommendation to Jennifer Carpinteri, a DHS director, on June
    4, 2015.
    Lutton found "[plaintiff] was suspended for failing to properly document
    critical resident care activities and failed to properly notify the resident's
    responsible party of those activities, involving two residents." Lutton concluded
    plaintiff did not fulfill her obligations as "an RN and as a [c]harge [n]urse." He
    A-3870-19
    3
    noted plaintiff was disciplined in 2014, with a five-day suspension, for failing
    to properly verify orders and document information for a resident who returned
    from the hospital. Lutton recommended to deny the grievance and leave the
    discipline in place. Carpinteri signed and approved Lutton's recommendation to
    deny the grievance and keep the discipline.
    Plaintiff's union representative, Jenelle Blackmon, wrote to DHS and the
    Morris County Director of Labor Relations, Allison Stapleton, appealing
    Lutton's decision. Blackmon contended the medication changes were to the
    frequency of administration, not the prescription itself, and she was only trained
    to inform the family of the latter. Stapleton affirmed the denial of the grievance,
    noting plaintiff did not follow the established procedure following a change in
    medication on multiple occasions and plaintiff was previously disciplined for a
    lack of documentation; thus, the five-day suspension was warranted. Plaintiff
    did not further appeal the suspension.
    As to her assignment grievance filed on April 1, 2015, plaintiff contested
    her transfer from a charge nurse to a wing nurse position. At the a ssignment
    grievance hearing on May 13, 2015, Blackmon, on behalf of plaintiff, contended
    plaintiff was an RN, which was a superior qualification to the LPN who
    subsequently assumed the charge nurse position; plaintiff had more seniority;
    A-3870-19
    4
    plaintiff had already served as charge nurse; and plaintiff would suffer a loss of
    pay from losing the charge nurse position. Callery-Giordano, and Cathy Engler,
    an administrator, had participated in plaintiff's reassignment and represented
    Morris View at the assignment grievance hearing. Morris View contended that
    it reassigns staff on a regular basis; an RN does not have priority to be a charge
    nurse because an LPN is also qualified; seniority does not dictate who is the
    charge nurse; and plaintiff would still function as a back-up charge nurse.
    On June 2, 2015, Lutton summarized plaintiff's assignment grievance
    hearing to Carpinteri. Lutton recommended this grievance be denied as well, as
    plaintiff's contract did not mention seniority factoring into who was the charge
    nurse; the loss of pay is not applicable because the charge nurse shifts are not
    guaranteed but plaintiff would receive that rate when she covered those shifts;
    and an RN or LPN could equally be considered for the charge nurse position.
    Thus, Carpinteri agreed with Lutton that "[m]anagement was fulfilling their
    prerogative to assign staff in a way that best serves the needs" and upheld the
    assignment change.
    Again, plaintiff enlisted Blackmon and the Local 1040 AFL/CIO (the
    Union) to appeal Lutton and Carpinteri's decision to Stapleton via a July 8, 2015,
    letter. The letter contended the LPN on plaintiff's new unit would be less
    A-3870-19
    5
    credentialed and experienced, make the additional $1.75 per hour, the loss of
    pay is disciplinary, and as an RN, she should supervise medication distribution.
    Stapleton responded on August 5, 2015, noting the Union argued during its
    negotiations in 2009-2010 that an LPN and RN should both be able to perform
    the role of charge nurse, and that a charge nurse is not a title, but a function.
    Stapleton also denied the grievance.
    On November 4, 2015, the Division of Pensions and Benefits (the
    Division) sent plaintiff a letter acknowledging her application for retirement.
    The Division's letter noted her requested effective retirement date of August 1,
    2016, but plaintiff had failed to provide evidence of her birth date. A year later,
    the Division sent a letter dated October 19, 2016, which approved plaintiff's
    retirement as effective on August 1, 2016.
    On December 7, 2015, and before the approval letter, plaintiff received a
    Preliminary Notice of Disciplinary Action (PNDA), which sought to remove her
    from her job effective December 29, 2015. The PNDA charged her under
    N.J.A.C. 4A:2-2.3(a)(1), "[i]ncompetency, inefficiency or failure to perform
    duties," N.J.A.C. 4A:2-2.3(a)(6), "[c]onduct unbecoming a public employee,"
    N.J.A.C. 4A:2-2.3(a)(7), "[n]eglect of duty," and N.J.A.C. 4A:2-2.3(a)(12),
    "[o]ther sufficient cause."
    A-3870-19
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    The PNDA alleged that on October 21, 2015, plaintiff failed to report an
    adverse incident involving an employee to her supervisor or to file a workers
    compensation report.    Specifically, plaintiff failed to properly report and
    document an incident where a resident struck and knocked the glasses off of an
    employee, because plaintiff asserted she was too busy. The PDNA further
    alleged that on November 12, medication went missing due to her carelessness;
    on November 30, she left medication unattended at a bedside in the dementia
    unit; on the same day, plaintiff left a resident with their head drooped and not
    feeling well, knowing they went through a medication change, took their blood
    pressure with the resident's nasal cannula detached, and returned to her routine
    without further action, which resulted in a doctor intervening with a stat
    nebulizer treatment; and that she had been "the subject of [six] disciplinary
    action[s,] which resulted in suspensions; [three] of which were major
    disciplinary actions which involved inadequate patient care."
    On January 26, 2016, Robert O. Yaeger, a Union representative, wrote to
    plaintiff to encourage her to accept a settlement agreement. Yaeger had spoken
    with plaintiff on January 19 and 25, 2016, and discussed the PNDA and a
    settlement to resolve the matter. On January 19, plaintiff made Yaeger believe
    she would be okay with the settlement, so they adjourned a January 21 hearing.
    A-3870-19
    7
    But on January 22, County Personnel Director, Frank Corrente advised Yaeger
    plaintiff was refusing the settlement and retaining her own private counsel. She
    confirmed this with Yaeger on January 25.
    On January 25, Yaeger told plaintiff he would go with her to the Human
    Resources (HR) office to begin processing her retirement and sign the settlement
    agreement, but plaintiff resisted, stating she felt "set up" and "harassed." Thus,
    Yaeger and Corrente agreed to meet for a hearing at Morris View, with plaintiff,
    on February 4. Yaeger advised the settlement again, stated he was ready to go
    on February 4 and advised plaintiff on how further appealing or fighting the
    PNDA would not necessarily result in a "win."
    The record is empty after this point, until plaintiff signed an "[e]xit
    [i]nterview [f]orm," on July 28, 2016, days before her effective retirement,
    noting the reason for separation was retirement, and outstanding benefits to be
    paid. Plaintiff filed her complaint against Morris View on August 13, 2018,
    alleging wrongful termination under NJLAD and violation of the Equal Pay Act.
    On February 28, 2020, defendant moved for summary judgment, and oral
    argument was heard on May 8, 2020. Later that day, the court filed an order
    granting defendant's motion and dismissing plaintiff's complaint with prejudice,
    for two reasons. The first reason was plaintiff filed her complaint outside the
    A-3870-19
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    two-year statute of limitations under the NJLAD. The second reason was
    plaintiff could not sustain the elements of the NJLAD claim on the merits. This
    appeal followed.
    Plaintiff argues the court erred because she filed her complaint within two
    years of receiving her last paycheck and because she stated an actionable claim
    on the merits. We disagree.
    "Whether a cause of action is barred by a statute of limitations is a
    question of law . . . reviewed de novo." Catena v. Raytheon Co., 
    447 N.J. Super. 43
    , 52 (App. Div. 2016) (citing Estate of Hainthaler v. Zurich Com. Ins., 
    387 N.J. Super. 318
    , 325 (App. Div. 2006)). Here, plaintiff's untimely filing of the
    complaint was reason enough for the court to dismiss her complaint. Claims
    brought under the LAD are subject to a two-year statute of limitations. Vitale
    v. Schering-Plough Corp., 
    231 N.J. 234
    , 249 (2017) (citing Montells v. Haynes,
    
    133 N.J. 282
    , 291-92 (1993)). This two-year statute of limitations commences
    on the day when the "[d]iscriminatory termination [or] other similar abrupt,
    singular adverse employment action[] that [is] attributable to invidious
    discrimination" occurs because such acts are "generally . . . immediately known
    injuries . . . ." Alexander v. Seton Hall Univ., 
    204 N.J. 219
    , 228 (2010).
    The court found plaintiff's complaint was not timely filed:
    A-3870-19
    9
    The easiest one to me is the statute of limitations.
    Receiving a paycheck two weeks after you leave is
    pretty standard. That doesn't mean that extends the
    time of -- for the statute to apply. The statute begins to
    run on the day of the last day. Two years later she has
    no opportunity to file (inaudible). So for the statute of
    limitations reasons, I will grant the application.
    Plaintiff retired on August 1, 2016 but did not file her initial complaint until
    August 13, 2018. Thus, we affirm the order dismissing plaintiff's complaint.
    We need not discuss the merits of plaintiff's claim, but we add the
    following comments because the trial court discussed the merits and
    incorporated them into the rationale for dismissal. The court added:
    And also, as to the substance, I'll grant the application.
    This woman was disciplined nine times. And I added
    it up. It was [thirty-two] days of suspension during a
    certain period of time. The preliminary notice of
    disciplinary action was filed -- was given to her several
    weeks after she had already put in for retirement. She
    filed for retirement on November 4, 2015. And as
    pointed out by defense counsel, she signed the Morris
    County exit interview where she indicated she was
    simply leaving because of retirement.
    Under the NJLAD, to establish a prima facie case of discriminatory
    discharge, a plaintiff must show that (1) she belongs to a protected group; (2)
    she was performing her duties at a level that met her employer's legitimate
    expectations; (3) she was nevertheless terminated; and (4) "the employer sought
    A-3870-19
    10
    someone to perform the same work after [she] left." Zive v. Stanley Roberts,
    Inc., 
    182 N.J. 436
    , 450 (2005).
    In considering potential discrimination and contended constructive
    termination, the trial judge found:
    In order to sustain an LAD claim, you need four
    different aspects to it. One, plaintiff (inaudible)
    plaintiff was otherwise qualified in performing the
    essential functions of the job. The material facts in
    dispute, that I get. Plaintiff was terminated. There's no
    evidence that the plaintiff was terminated. She retired
    on her own. Her employment record was not good.
    Being suspended [thirty-two] different days, nine
    different occasions, suggests to me this was not an ideal
    employee . . . [p]laintiff must be -- must also establish
    that the employer knowingly permitted conditions of
    discrimination so intolerable that a reasonable person
    would have to resign. And it further says it requires not
    merely severe or pervasive conduct but conduct that
    was so intolerable that a reasonable person would be
    forced to resign. That's the Shepherd case, 174 N.J.1
    And then the standard envisions extensive outrage,
    coercive and unconscionable requirements. There are
    no material facts in dispute which would suggest the
    plaintiff was treated in such a manner.
    Based on our review of the record we discern no error in the trial court's
    conclusions. Plaintiff's remaining arguments are without sufficient merit to
    warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
    1
    Shepherd v. Hunterdon Dev. Ctr., 
    174 N.J. 1
     (2002).
    A-3870-19
    11
    Affirmed.
    A-3870-19
    12
    

Document Info

Docket Number: A-3870-19

Filed Date: 12/16/2021

Precedential Status: Non-Precedential

Modified Date: 12/16/2021