STATE OF NEW JERSEY VS. FRANKLIN D. NICOLOUDAKIS(07-08-0842, MERCER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-1726-14T4
GINA MARIE MILLER,
Plaintiff-Appellant,
v.
SHORE MEMORIAL HOSPITAL,
SHORE MEDICAL CENTER AND
VICTOR GAZZARA,
Defendants-Respondents.
_______________________________
Submitted October 5, 2016 – Decided November 28, 2016
Before Judges Reisner and Koblitz.
On appeal from Superior Court of New Jersey,
Law Division, Atlantic County, Docket No. L-
3333-12.
Richard L. Press & Associates, attorneys for
appellant (Richard L. Press, on the brief).
Paisner Litvin, attorneys for respondents
(Richard J. De Fortuna, of counsel and on the
brief).
PER CURIAM
Plaintiff Gina Marie Miller appeals from an October 31, 2014
order granting summary judgment, dismissing her complaint under
the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-
1 to -14. We affirm.
It is helpful to begin by considering CEPA and its proof
paradigm. CEPA is remedial legislation designed to "protect and
encourage employees to report illegal or unethical workplace
activities and to discourage public and private sector employers
from engaging in such conduct." Abbamont v. Piscataway Twp. Bd.
of Educ., 138 N.J. 405, 431 (1994). The proof paradigm for a CEPA
case is similar to that used in cases under the Law Against
Discrimination, N.J.S.A. 10:5-1 to -42. Kolb v. Burns, 320 N.J.
Super. 467, 477-79 (App Div. 1999). To establish a prima facie
case under CEPA, the plaintiff must establish four prongs:
(1) he or she reasonably believed that his or
her employer's conduct was violating either a
law, rule, or regulation promulgated pursuant
to law, or a clear mandate of public policy;
(2) he or she performed a "whistle-blowing"
activity described in N.J.S.A. 34:19-3(c);
(3) an adverse employment action was taken
against him or her; and
(4) a causal connection exists between the
whistle-blowing activity and the adverse
employment action.
[Lippman v. Eithicon, Inc., 222 N.J. 362, 380
(2015) (citation omitted).]
After the plaintiff presents a prima facie case,
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[t]he burden of production then shifts "to the
employer to articulate some legitimate,
nondiscriminatory reason" for the adverse
employment action. Once the employer does so,
"the presumption of retaliatory discharge
created by the prima facie case disappears and
the burden shifts back to the [employee]." At
that point, the employee must convince the
fact finder that the employer's reason was
false "and that [retaliation] was the real
reason." The ultimate burden of proof remains
with the employee.
[Winters v. N. Hudson Reg. Fire & Rescue, 212
N.J. 67, 90 (2012) (citations omitted).]
We consider the issues in this case in light of those legal
principles. Plaintiff, a social worker employed by the Shore
Medical Center (Hospital), claimed that the Hospital terminated
her employment as a reprisal, because she had engaged in whistle-
blowing activity protected by CEPA. For purposes of the summary
judgment motion, the trial court found that plaintiff had engaged
in CEPA-protected whistle-blowing, a finding defendants do not
challenge on this appeal.1 While there was a four-month gap
1
We note, however, that plaintiff failed to identify any
applicable law, rule, regulation, or professional code of ethics
that would support a whistle-blowing claim, with respect to her
complaint that a masters-degree candidate, serving as a Hospital
social work intern, delivered some legal papers to a judge's
chambers. That strict proof requirement - to identify the specific
basis for the whistle-blowing complaint - was emphasized in
Hitesman v. Bridgeway, Inc., 218 N.J. 8, 33 (2014), which was
decided a few months before the summary judgment motion in this
case. However, because the parties did not brief this issue, we
do not rest our decision on it.
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between plaintiff's alleged whistle-blowing and her termination,
we will assume for purposes of this appeal that she satisfied the
relatively low threshold for presenting a prima facie case because
the manager about whom she complained participated in the decision
to fire her. See El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J.
Super. 145, 168 (App. Div. 2005) (noting "that the evidentiary
burden at the prima facie stage of the analysis is 'modest,' or
even 'slight'") (citation omitted).
There is no dispute that the Hospital presented proof of
legitimate non-retaliatory reasons for firing plaintiff. The
central issue on this appeal is whether the summary judgment record
could support a finding that the Hospital's reasons were merely a
pretext for retaliation. See Kolb, supra, 320 N.J. Super. at 478.
Our review of the trial court's summary judgment order is de
novo, employing the same Brill2 standard used by the trial court,
and viewing the motion evidence in the light most favorable to
plaintiff. See Lippman, supra, 222 N.J. at 367; Kolb, supra, 320
N.J. Super. at 471. After reviewing the record in light of those
principles, we conclude that, even giving plaintiff the benefit
of all favorable inferences from the evidence, no rational jury
2
Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
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would conclude that the Hospital's reasons for firing her were a
pretext for retaliation. See Brill, supra, 142 N.J. at 540-41.
The undisputed evidence, meticulously documented in the
hospital's personnel records, established that plaintiff had
endemic attendance and punctuality issues, going back several
years. In fact, on January 19, 2011, about four months prior to
her termination, plaintiff had been given two warnings, including
a third-level final disciplinary warning for "poor job
performance." The third-level notice cited plaintiff for arriving
late for work or not showing up for work. The warning put her on
notice that failure to improve could lead to termination. The
warning had been preceded by at least two written notices from her
supervisor reminding her that she needed to be at work by 9:30
a.m. and noting her failure to arrive on time.
On January 26, 2011, plaintiff received a memo dated January
25, 2011, from Victor Gazzara, the Hospital's Director of Patient
Relations and Social Services, and Christine Gabrielli, Manager
of Social Services, once again reminding her of the need to arrive
at work at the assigned hour, and reminding her to review her
email on a daily basis.
On January 27, 2011, plaintiff made her "whistle-blowing"
allegations to the Human Resources Department. She complained
that on January 19, 2011, Gazzara had allowed a social work intern,
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rather than a social worker, to deliver a civil commitment
application to a judge. She also complained that on January 14,
2011, Gazzara had made comments to her which she found insulting.
She further expressed concern that she received the third-level
warning "only 1 week after my job was changed and Victor came into
the dept."3
The Human Relations (HR) Department investigated plaintiff's
complaint and sent her a letter concluding that further action was
not warranted. The letter, dated February 10, 2011, memorialized
plaintiff's admission that she had discussed with Gazzara her
concerns about his comments and he had "apologized if he offended
[her] in any way." The letter also advised that the leadership
of each department was responsible for deciding whom to assign to
deliver court papers, and the HR department could not intervene
in those decisions. The letter also noted plaintiff's pending,
separate challenge to the disciplinary notices.
On February 22, 2011, the Hospital's Vice President of Medical
Affairs, Peter Jungblut, sent plaintiff a detailed letter
rejecting her appeals from the second and third corrective
3
The record reflects that plaintiff was transferred into a new
assignment, where she was required to arrive at work an hour
earlier than she had previously been used to arriving. The record
also reflects that she did not comply with that new requirement,
but instead was repeatedly late to work.
6 A-1726-14T4
counseling notices. Jungblut's letter reviewed plaintiff's
history of attendance problems since 2009, and noted that future
failure to follow Hospital guidelines could result in termination.
Plaintiff's employment was terminated after a patient
complained, on April 20, 2011, that plaintiff disclosed
confidential medical information to the patient's family without
the patient's consent. If true, that would constitute a violation
of federal patient privacy law (HIPAA). When plaintiff's
supervisor checked the patient's record, it did not contain any
documentation from plaintiff noting the required consent. At her
deposition, plaintiff testified that she did obtain the patient's
consent and documented the consent. However, the patient's
records, which are in the appendices, contain no such
documentation, and defendant submitted undisputed evidence that a
patient documentation note, once placed in the computer system,
could not be deleted.
According to the supervisor, a check of additional patient
records revealed that plaintiff did not document, or failed to
timely document, actions taken with respect to other patients.
Based on our review of the records in the appendices, it appears
that some of them do not document any contacts between plaintiff
and the patient and some of them do. Apparently, neither side
presented any legally competent evidence explaining each record,
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other than the record of the patient who complained about lack of
consent.
On May 5, 2011, the same day that plaintiff's supervisors
were meeting to discuss the HIPAA problems, they received notice
that a patient's family member had complained that plaintiff had
treated the family rudely. During discovery, the woman who made
the complaint was deposed. She testified that she spoke to a
hospital social worker about her daughter's serious drug and mental
health problems, and that the social worker was rude, unsympathetic
and, in the woman's view, treated her family like "trash." The
woman testified that she complained about this treatment to the
Hospital administration. At her deposition, plaintiff admitted
speaking to the woman, and admitted that the woman had complained
about her; however, plaintiff denied that she had been rude to the
woman.
In a May 6, 2011 letter to plaintiff confirming her
termination, Gazzara noted the complaint from a patient about
plaintiff's unauthorized release of her medical information, and
plaintiff's failure to properly or timely document her contact
with patients. Gazzara further noted plaintiff's admission that
she spoke to the patient whose family complained she was rude. He
also stated that plaintiff failed to note the contact in that
patient's record. Gazzara also cited the "extensive corrective
8 A-1726-14T4
actions within [plaintiff's] employee file over the years for both
time and attendance and poor job performance."
Based on our review of the record, we conclude that plaintiff
failed to present evidence that the employer's reasons for
terminating her were not true or that they were merely an excuse
to retaliate against her. Even if defendant was incorrect in
asserting that plaintiff failed to document all of the files
defendant cited, it is undisputed that she failed to document the
files of the patients who complained about her. And, those HIPAA
errors and patient complaints occurred at a point where plaintiff
had already been warned several times that she would be terminated
if there were continued lapses in her job performance. See El-
Sioufi, supra, 382 N.J. Super. at 171. On this record, no rational
jury could conclude that the employer's reasons for firing
plaintiff were not only untrue but were motivated by retaliatory
intent. Id. at 173-74.
Affirmed.
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