James Hitesman v. Bridgeway, Inc. (072466)

SYLLABUS

(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
interest of brevity, portions of any opinion may not have been summarized).

James Hitesman v. Bridgeway, Inc. (A-73-12) (072466)

Argued November 18, 2013 -- Decided June 16, 2014

PATTERSON, J., writing for a majority of the Court.

In this appeal, the Court considers whether a health care worker may base a Conscientious Employee
Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, action upon his employer’s purported violation of standards set forth
in a professional code of ethics, an employee handbook, and the employer’s statement of patient rights.

Plaintiff James Hitesman worked as a staff nurse in a nursing home operated by Bridgeway, Inc.
(Bridgeway). Upon hire, plaintiff signed a confidentiality agreement in which he agreed not to disclose confidential
patient information and acknowledged that if he did so, he would be subject to termination. By 2006, plaintiff was a
shift supervisor, with responsibility to oversee nursing staff throughout the facility. In that capacity, plaintiff created
records that he termed “administrative logs” or “shift logs,” in which he documented patient admissions and
hospitalizations, employee absences, facility maintenance issues, and other similar events.

In January 2008, plaintiff recorded in his administrative log that five staff members had missed work due to
respiratory and gastrointestinal symptoms, and noted a prevalence of similar symptoms among patients. Thereafter,
plaintiff complained to the facility’s management about the rate of infectious diseases among patients, reported his
concerns to governmental agencies and the press, and ultimately disclosed partially-redacted patient records to a
television reporter. On January 25, 2008, Bridgeway terminated plaintiff’s employment based upon his contact with
the media and his disclosure of Bridgeway records, in violation of Bridgeway’s confidentiality policy and the Health
Insurance Portability and Accountability Act of 1996 (HIPAA), 42 U.S.C.A. §§ 1320d-1 to -9.

Plaintiff filed the instant action, alleging a violation of CEPA’s bar of employer retaliatory action against a
licensed or certified health care employee who reports on, or objects to, an employer activity that the employee
reasonably believes to constitute “improper quality of patient care.” N.J.S.A. 34:19-3(a)(1); N.J.S.A. 34:19-3(c)(1).
He also relied upon N.J.S.A. 34:19-3(c)(3), which bars retaliation against an employee who objects to an employer
activity that the employee reasonably believes to be “incompatible with a clear mandate of public policy concerning
the public health.” The trial court granted partial summary judgment to plaintiff, finding that he had a “reasonable
belief” that Bridgeway provided “improper quality of patient care.” On Bridgeway’s motion for reconsideration, the
court determined that the jury should assess the objective reasonableness of plaintiff’s belief that Bridgeway violated
a law or public policy. The court concluded, however, that plaintiff could rely on the American Nursing Association
(ANA) Code of Ethics and two Bridgeway policy documents in support of his claims, and cited additional sources of
law and public policy, including CDC guidelines and federal and state regulations addressing infection control.

At trial, Bridgeway moved for an involuntary dismissal following plaintiff’s testimony. The court denied
the motion, reasoning that the ANA Code could serve as an authority for the purposes of assessing whether plaintiff
had an objectively reasonable belief that Bridgeway provided improper health care or violated public policy. The
jury found Bridgeway liable under CEPA, but awarded no damages. The Appellate Division reversed the liability
verdict, holding that plaintiff’s CEPA claim failed as a matter of law because the authorities that he relied upon --
the ANA Code, the Bridgeway Employee Handbook and the Bridgeway Statement of Resident Rights -- neither
measured the adequacy of patient care, nor expressed a clear mandate of public policy. Hitesman v. Bridgeway,
Inc., 430 N.J. Super. 198, 219 (App. Div. 2013). The Court granted certification. 214 N.J. 235 (2013).

HELD: Claims asserted under CEPA’s “improper quality of patient care” provision must be premised upon a
reasonable belief that the employer has violated a law, rule, regulation, declaratory ruling adopted pursuant to law, or a
professional code of ethics that governs the employer and differentiates between acceptable and unacceptable conduct
in the employer’s delivery of patient care. N.J.S.A. 34:19-3(a)(1); N.J.S.A. 34:19-3(c)(1). Claims asserting that an

1
employer’s conduct is incompatible with a “clear mandate of public policy concerning the public health” must, at a
minimum, identify authority that applies to the “activity, policy or practice” of the employer. N.J.S.A. 34:19-3(c)(3).

1. A motion for an involuntary dismissal pursuant to Rule 4:37-2(b) must be denied if the evidence, and the
legitimate inferences therefrom, could sustain a judgment in plaintiff’s favor. To the extent that the trial court’s
judgment on the motion for dismissal was premised upon its interpretation of CEPA, the Court’s review is de novo.
The Court construes a statute so as “to determine and give effect to the Legislature’s intent.” (pp. 18-19)

2. CEPA is a remedial statute that promotes a strong public policy of the State and therefore should be construed
liberally to effectuate its important social goal. The “clear mandate of public policy concerning the public health”
provision of CEPA bars any retaliatory action against an employee because the employee “[o]bjects to, or refuses to
participate in any activity, policy or practice which the employee reasonably believes . . . is incompatible with a
clear mandate of public policy concerning the public health, safety or welfare or protection of the environment.”
N.J.S.A. 34:19-3(c)(3). The “improper quality of patient care” provisions contained in N.J.S.A. 34:19-3(a)(1) and
(c)(1), bar retaliation against certified health care professionals who report or object to practices that they reasonably
believe constitute improper quality of patient care, as defined by N.J.S.A. 34:19-2(f). (pp. 20-23)

3. To succeed on his CEPA claims under N.J.S.A. 34:19-3(a)(1) and (c)(1) (improper quality of patient care) and
N.J.S.A. 34:19-3(c)(3) (clear mandate of public policy concerning public health), plaintiff must prove four elements:
(1) he reasonably believed that Bridgeway either provided an improper quality of patient care or acted in a manner
incompatible with a clear mandate of public policy; (2) he engaged in protected “whistle-blowing” activity; (3) an
adverse employment action was taken against him; and (4) there was a causal connection between his whistle-
blowing activity and his termination. Only the first and fourth elements are at issue in this matter. (pp. 23-24)

4. Plaintiff need not show that Bridgeway actually violated a law, rule, regulation, or other authority, but only that
he held a reasonable belief that such a violation occurred. For a CEPA claim alleging improper quality of patient
care to be submitted to the jury, the court must find a substantial nexus between the employer’s practice, procedure,
action or failure to act, and the improper quality of patient care. If the plaintiff establishes the substantial nexus, the
jury then considers whether plaintiff reasonably believed that the authority cited was violated. The same factors
guide the analysis with regard to a “clear mandate of public policy” claim under N.J.S.A. 34:19-3(c)(3). (pp. 24-27)

5. To present a cognizable retaliation claim based on “improper quality of patient care” or practices “incompatible
with a clear mandate of public policy concerning the public health,” a plaintiff must present authority that serves as
a standard for the employer’s conduct. Here, plaintiff relied upon three purported sources of authority: the ANA
Code, Bridgeway’s Employee Handbook, and its Statement of Resident Rights. Although a professional code of
ethics governing an employer’s activities may constitute authority for purposes of a CEPA action, the ANA Code
provided no standard for Bridgeway’s control of infectious disease, and thus cannot support plaintiff’s CEPA
claims. Similarly, the Bridgeway policy documents neither defined acceptable patient care nor stated a clear
mandate of public policy for purposes of a CEPA action. Because none of plaintiff’s purported sources of authority
meet the statutory criteria that serves as a standard for the employer’s conduct, they cannot form the basis of a
retaliation claim under N.J.S.A. 34:19-3(a)(1) and (c)(1) or N.J.S.A. 34:19-3(c)(3). (pp. 27-38).

6. Regarding the additional sources of authority cited by the trial court in a pretrial summary judgment motion, such
as the “standard precautions” and other guidance derived from state or federal law, the proper inquiry is not whether
factual assertions and legal arguments could have been made to support the plaintiff’s claim. Rule 4:37-2(b) limits
the trial court to the evidence in, and inferences that may be drawn from, the trial record. Nothing in that rule
authorizes a trial court to incorporate by reference any source extraneous to the trial record as a basis to deny a
motion for involuntary dismissal. (pp. 38-41).

The judgment of the Appellate Division is AFFIRMED.

JUSTICE ALBIN, DISENTING, expresses the view that the trial court properly denied Bridgeway’s
motion for an involuntary dismissal, because, when viewed in the light most favorable to plaintiff, the evidence
supported the conclusion that plaintiff reasonably believed that Bridgeway was violating laws and regulations
governing the proper quality of patient care – including “standard precautions” deriving from federal and state law –
and that he was fired for reporting those purported violations to the appropriate authorities.

2
 CHIEF JUSTICE RABNER, JUSTICE LaVECCHIA, and JUDGES RODRÍGUEZ and CUFF (both
temporarily assigned) join in JUSTICE PATTERSON’s opinion. JUSTICE ALBIN filed a separate,
dissenting opinion.

3
 SUPREME COURT OF NEW JERSEY
A-73 September Term 2012
072466

JAMES HITESMAN,

Plaintiff-Appellant,

v.

BRIDGEWAY, INC., d/b/a
BRIDGEWAY CARE CENTER,

Defendant-Respondent.

Argued November 18, 2013 – Decided June 16, 2014

On certification to the Superior Court,
Appellate Division, whose opinion is
reported at 430 N.J. Super. 198 (2013).

Paul R. Castronovo argued the cause for
appellant (Castronovo & McKinney, attorneys;
Mr. Castronovo and Megan Frese Porio, on the
brief).

Craig S. Provorny argued the cause for
respondent (Herold Law and Jackson Lewis,
attorneys; Mr. Provorny, Gregory T. Alvarez,
and James McDonnell, of counsel).

Sarah Fern Meil argued the cause for amicus
curiae New Jersey Chapter of the National
Employment Lawyers Association.

JUSTICE PATTERSON delivered the opinion of the Court.

In this appeal, the Court considers a health care worker’s

claim asserted under the Conscientious Employee Protection Act

(CEPA), N.J.S.A. 34:19-1 to -8, premised upon standards set

1
forth in a professional code of ethics, an employee handbook,

and the employer’s statement of patient rights.

Plaintiff James Hitesman’s employment as a registered nurse

in a nursing home operated by defendant Bridgeway, Inc.

(Bridgeway) was terminated in January 2008 after he complained

to the facility’s management about the rate of infectious

diseases among patients, reported his concerns to governmental

agencies and the press, and disclosed partially-redacted records

of patient care to a television reporter.

In this action, plaintiff alleged a claim under CEPA’s

provision barring employer retaliatory action against a licensed

or certified health care employee who reports on, or objects to,

an employer activity, policy, or practice that the employee

reasonably believes to constitute “improper quality of patient

care.” N.J.S.A. 34:19-3(a)(1); N.J.S.A. 34:19-3(c)(1). He also

asserted a claim under another CEPA provision barring

retaliatory action against an employee who objects to an

employer activity, policy or practice that the employee

reasonably believes to be “incompatible with a clear mandate of

public policy concerning the public health.” N.J.S.A. 34:19-

3(c)(3). Plaintiff cited the American Nursing Association (ANA)

Code of Ethics and two Bridgeway documents -- a portion of its

Employee Handbook and its Statement of Resident Rights -- in

support of his claim.

2
 The trial court denied Bridgeway’s motion to dismiss at the

close of plaintiff’s case and the jury returned a verdict of

liability under CEPA, but awarded no damages. The parties

cross-appealed, and an Appellate Division panel reversed

plaintiff’s liability verdict, holding that plaintiff’s CEPA

claim failed as a matter of law because he did not demonstrate

an objectively reasonable belief that Bridgeway’s conduct gave

rise to an improper quality of patient care or was incompatible

with a clear mandate of public policy.

We affirm. We hold that claims asserted under N.J.S.A.

34:19-3(a)(1) and (c)(1)’s “improper quality of patient care”

provision must be premised upon a reasonable belief that the

employer has violated a law, rule, regulation, declaratory

ruling adopted pursuant to law, or a professional code of ethics

that governs the employer and differentiates between acceptable

and unacceptable conduct in the employer’s delivery of patient

care. N.J.S.A. 34:19-3(a)(1); N.J.S.A. 34:19-3(c)(1). We

further hold that a plaintiff asserting that his or her

employer’s conduct is incompatible with a “clear mandate of

public policy concerning the public health” must, at a minimum,

identify authority that applies to the “activity, policy or

practice” of the employer. N.J.S.A. 34:19-3(c)(3).

Applied here, that standard warrants dismissal of

plaintiff’s CEPA claims. Although a professional code of ethics

3
governing an employer’s activities may constitute authority for

purposes of N.J.S.A. 34:19-3(a)(1), (c)(1) and (c)(3) in an

appropriate setting, the ANA Code of Ethics (ANA Code) invoked

by plaintiff provided no standard for his employer’s control of

infectious disease, and accordingly does not support plaintiff’s

CEPA allegations. The Bridgeway Employee Handbook and Statement

of Resident Rights neither defined acceptable patient care nor

stated a clear mandate of public policy for purposes of N.J.S.A.

34:19-3(a)(1), (c)(1), or (c)(3). Accordingly, we concur with

the Appellate Division panel that the trial court should have

granted Bridgeway’s motion to dismiss.

I.

We derive the facts of this case from the evidence

presented by the parties at trial.

Bridgeway operates the Bridgeway Care Center, a nursing

home in Bridgewater. In January 2008, Bridgeway employed 177

people and served approximately 145 patients, most of them

elderly. Bridgeway’s management team included Chief Executive

Officer Donald Pelligrino, also a part owner of Bridgeway, as

well as Medical Director Anthony Frisoli, M.D., Director of

Nursing Frances Gerber, R.N., and Administrator Wayne Blum.

In December 2003, Bridgeway hired plaintiff to work as a

staff nurse in the subacute unit of the nursing home. At the

time of his hiring, plaintiff executed a confidentiality

4
agreement in which he agreed not to disclose confidential

patient information and acknowledged that if he did so, he would

be subject to termination. After a brief period in the subacute

unit, plaintiff was assigned to work as a staff nurse in

Bridgeway’s long-term care unit.

In 2006, Bridgeway promoted plaintiff to the position of

shift supervisor, with responsibility to oversee nursing staff

in all three wings of the facility during the three p.m. to

eleven p.m. evening shift. In that capacity, plaintiff created

records that he termed “administrative logs” or “shift logs,” in

which he would record the entry of new admittees into the

nursing home, patient hospitalizations, employee absences for

illness or other reasons, extra monitoring provided for

particular patients, and facility maintenance issues.

In January 2008, plaintiff recorded in his administrative

log that five Bridgeway staff members had missed work due to

respiratory and gastrointestinal symptoms, and noted a

prevalence of similar symptoms among patients. Plaintiff

testified that he attempted to contact Dr. Frisoli about these

symptoms during the evening of January 10, 2008. According to

plaintiff, he learned of fifty cases of respiratory or

gastrointestinal symptoms at Bridgeway. Nursing Director Gerber

testified, in contrast, that Bridgeway staff noticed no

commonality among the patient illnesses reported at that time.

5
 At about midnight on January 11, 2008, plaintiff sent

Bridgeway management an e-mail expressing concerns about the

“seasonal prevalence of respiratory and GI symptoms” in the

facility. Later that day, Gerber responded with an e-mail in

which she stated that illnesses could be spread by contact, and

noted the importance of hand-washing for staff and residents.

According to plaintiff, at some point on January 11, 2008,

he presented to Gerber an article from the Centers for Disease

Control and Prevention (CDC) website entitled “Clinical Signs

and Symptoms of Influenza.”1 That night, in an e-mail to Gerber,

plaintiff demanded an explanation as to how Dr. Frisoli had

determined that the illnesses were spread by contact, and

inquired as to whether tests or lab work had been performed.

Plaintiff testified that he instructed Bridgeway staff about

hand-washing and the use of gloves, goggles, masks, and hospital

gowns to avoid transmission of infection.

On January 14, 2008, using the pseudonym “Bill Yates,”

plaintiff reported to the Bridgewater Township Board of Health

that there was an increase in respiratory and gastrointestinal

symptoms at Bridgeway. According to plaintiff, the Board stated

1
Plaintiff did not contend in his reports to government
officials or the media that there was an outbreak of influenza
at Bridgeway, and there is no indication in the record that any
Bridgeway patients contracted influenza during the relevant
period.
6
that it had no responsibility to oversee health issues, other

than kitchen sanitation, at Bridgeway.

The following day, using the same pseudonym, plaintiff

contacted the Somerset County Department of Health. The

Somerset County Department of Health promptly contacted Gerber,

told her that it had a report of major illnesses in the

facility, and requested information pertaining to any

hospitalizations of residents. Gerber immediately gathered

information about patient symptoms and hospitalizations and

provided it to the Somerset County Department of Health.

On January 16, 2008, again using the pseudonym “Bill

Yates,” plaintiff contacted the New Jersey Department of Health

and Senior Services (HSS). Plaintiff testified that this third

contact with government officials was prompted by his belief

that the situation at Bridgeway had not improved and that he had

not made progress with municipal or county officials. According

to plaintiff, the state health official with whom he spoke

advised him that HSS would not get involved with Bridgeway

unless asked to do so by Somerset County.

Nonetheless, the day after plaintiff’s call, an

investigator from HSS contacted Blum, Bridgeway’s administrator.

According to Blum, the investigator stated that HSS was

following up on an anonymous call reporting an “epidemic” at

Bridgeway, and asked Blum what his facility was doing to combat

7
the epidemic. Blum testified that he advised the HSS

investigator that there was no epidemic, just “our usual things

that are going on.” The investigator requested that Bridgeway

report any issue of concern and advise HSS of its remedial steps

and their outcome.

Shortly after the HSS investigator’s call to Bridgeway,

Gerber and Blum convened a meeting with plaintiff in Blum’s

office. According to plaintiff, Gerber and Blum asked him

whether he had contacted county and state health officials, and

plaintiff denied having made the calls.

According to his testimony, plaintiff then learned from

another nurse that a patient complaining of gastrointestinal

symptoms had been admitted to a hospital during the weekend of

January 19-20, 2008, and had died there of septicemia.2 When no

investigator from Bridgewater Township, Somerset County, or the

State of New Jersey appeared at Bridgeway over the weekend,

plaintiff concluded that his calls to governmental officials had

not elicited a satisfactory response, and decided to approach

the media.

Plaintiff contacted a local television station on January

22, 2008. He gave the television station copies of Bridgeway

2
Septicemia is defined as a “[s]ystemic disease caused by the
spread of microorganisms and their toxins through circulating
blood; formerly called ‘blood poisoning.’” Stedman’s Medical
Dictionary 1750 (28th ed. 2006).
8
administrative logs that he partly, but incompletely, redacted.

The documents included some residents’ room numbers, which could

enable an outsider to identify certain Bridgeway patients.

On the morning of January 23, 2008, Bridgeway Chief

Executive Officer Pelligrino was approached by a television news

reporter in the facility’s parking lot. According to

Pelligrino, the news reporter asked him whether he was aware

that “people are dying in your building.” When Pelligrino

expressed confusion about this allegation, the reporter showed

Pelligrino the administrative logs and said that he had received

them from “someone at Bridgeway.” Pelligrino subsequently

verified that Bridgeway management had not authorized the

documents’ release and contacted Bridgeway counsel.

That afternoon, Blum, Gerber and Bridgeway’s head of human

resources met with plaintiff.3 Plaintiff admitted that he had

contacted municipal, county, and state officials and the news

station, citing his obligation as a registered nurse and

explaining that he had seen “something that needed to be fixed

and it wasn’t being fixed.” Plaintiff was suspended with pay

pending Bridgeway’s investigation of his disclosures to the

media.

3
Plaintiff recorded the meeting. A portion of the recording,
much of it unintelligible, was played at trial.
9
 On January 25, 2008, Bridgeway terminated plaintiff’s

employment. Bridgeway management advised plaintiff that he was

terminated because of his contact with the media and his

disclosure of Bridgeway administrative logs, in violation of

Bridgeway’s confidentiality policy and the Health Insurance

Portability and Accountability Act of 1996 (HIPAA), 42 U.S.C.A.

§§ 1320d-1 to -9.

II.

Plaintiff filed this action in the Law Division, seeking

compensatory and punitive damages and other relief. He pled a

CEPA claim quoting N.J.S.A. 34:19-3(c)(1), alleging a reasonable

belief that Bridgeway practices “constituted improper quality of

patient care and violations of [plaintiff’s] professional code

of ethics (for example, acting on questionable practice under

Section 3.5 of the American Nursing Association’s Code of

Ethics).” Although plaintiff’s complaint did not cite the

“clear mandate of public policy” language of N.J.S.A. 34:19-

3(c)(3), he relied on that provision of CEPA, as well as

N.J.S.A. 34:19-3(a)(1) and (c)(1), before and during trial.

On June 1, 2010, prior to trial, the trial court granted

plaintiff’s motion for partial summary judgment as to the first

element of his CEPA claim -- that plaintiff had a “reasonable

belief” that Bridgeway provided “improper quality of patient

care” under N.J.S.A. 34:19-3(c)(1). The trial court granted

10
Bridgeway’s motion for reconsideration. Thereafter, the trial

court held that plaintiff properly relied upon the ANA Code and

Bridgeway Employee Handbook and Statement of Resident Rights in

support of his CEPA claim. In support of its decision, the

trial court cited additional sources of law and public policy,

including CDC guidelines and federal and state regulations

addressing infection control.4 The trial court concluded that

plaintiff had met his burden to establish a substantial nexus

between Bridgeway’s conduct and a law or public policy. It

determined, however, that the jury should assess the objective

reasonableness of plaintiff’s belief that Bridgeway violated the

law or public policy cited by plaintiff.

Prior to trial, plaintiff presented a stipulation agreed

upon by Bridgeway’s prior counsel that the value of plaintiff’s

lost income claim was $59,000. The trial court determined that

plaintiff could rely upon the stipulation at trial.

The case was tried before a jury in February and March of

2011. The parties disputed the cause of plaintiff’s dismissal.

Plaintiff contended that Bridgeway terminated his employment in

retaliation for his communications to municipal, county, and

4
The additional references included 42 C.F.R. § 483.25,
requiring nursing facilities to maintain the well-being of their
patients, N.J.S.A. 26:2H-93, stating that high-quality nursing
home services are in the public interest of New Jersey, and
N.J.A.C. 8:39-19.4, mandating “written policies and procedures
regarding infection prevention and control” for nursing
facilities, and incorporating CDC guidelines.
11
state regulatory authorities about the spread of infections

among staff and patients at the nursing home.5 Bridgeway

asserted that the termination was prompted by plaintiff’s

disclosure of partially redacted administrative logs to the

media, in violation of his confidentiality agreement and HIPAA.

In his proposed jury instruction submitted prior to trial,

plaintiff identified a single authority supporting his CEPA

claim: section 3.5 of the ANA Code. Plaintiff testified at

trial regarding the ANA Code, stating that it required him to

try to improve patient care. He contended that Bridgeway

violated the ANA Code because it did not ensure proper quality

of care. On cross-examination, plaintiff conceded that although

the ANA Code applied to him by virtue of his status as a

registered nurse, it did not apply to Bridgeway.

Plaintiff further testified that the Bridgeway Employee

Handbook required him to comply with the ANA Code and to perform

his duties as a registered nurse, and that the Bridgeway

Statement of Resident Rights supported his claim because it set

forth patients’ right to freedom of choice and right to be

protected from social isolation. On cross-examination,

plaintiff contended that Bridgeway failed to follow all the

“standard precautions” recommended by the CDC and New Jersey

5
Plaintiff did not contend that his contact with the media
constituted protected activity for purposes of CEPA. See
N.J.S.A. 34:19-3(a); N.J.S.A. 34:19-3(c).
12
health authorities to control infection, such as hand-washing

and the use of masks and gloves. Plaintiff conceded that he did

not know what diagnostic tests Bridgeway conducted, whether the

patients’ illnesses shared a commonality of causes, or whether

there was an “epidemic” at the nursing home. He also admitted

that his dispute with the facility’s Medical Director amounted

to a difference of opinion about how best to approach infection

control.

Following plaintiff’s testimony, Bridgeway moved for an

involuntary dismissal under Rule 4:37-2(b). It argued that

plaintiff had failed to establish an objectively reasonable

basis for his belief that Bridgeway violated the ANA Code.

Plaintiff countered that Bridgeway had violated the ANA Code,

its Employee Handbook, and its Statement of Resident Rights.

The trial court reasoned that the ANA Code could serve as an

authority for the purposes of the jury’s determination of

whether plaintiff had an objectively reasonable belief that

Bridgeway provided improper health care or violated public

policy. It held that plaintiff had presented a prima facie

showing supporting his CEPA claim, and denied Bridgeway’s motion

to dismiss.

At the jury charge conference, the trial judge noted, and

plaintiff confirmed, that plaintiff relied on three sources of

law or public policy: the ANA Code, Bridgeway’s Employee

13
Handbook, containing its Code of Conduct, and Bridgeway’s

Statement of Resident Rights. The trial court instructed the

jury that “the American Nursing Association’s Code of Ethics,

Section 3.5, Bridgeway’s own Code of Conduct, Bridgeway’s

Employee Handbook and Bridgeway’s Statement of Resident Rights

are sources of law or public policy that closely relate to the

conduct about which [plaintiff] blew the whistle.”6

The jury returned a verdict, responding to three questions

on the verdict sheet. First, the jury determined that plaintiff

had proven “that his belief that Bridgeway provided improper

quality of health care or violated the law [or] public policy

was objectively reasonable.” Second, the jury decided that

plaintiff’s “reporting to the government was a determinative

motivating factor in Bridgeway’s decision to terminate his

employment.” Despite concluding that Bridgeway was liable, the

jury found, pursuant to the third question on the verdict sheet,

that plaintiff was not “entitled to compensation for past lost

pay.” The trial court polled the jurors on questions two and

three on the verdict sheet, but declined plaintiff’s request for

further inquiry with respect to the jury’s intent when it found

6
The model charge governing CEPA, Model Jury Charge (Civil),
2.32, “New Jersey Conscientious Employee Protection Act,” does
not include the statutory definition of “improper quality of
patient care.” N.J.S.A. 34:19-2(f). Consistent with the model
charge, the jury was not instructed as to the meaning of that
term.
14
liability but no damages. The trial court then dismissed the

jury.

Following the trial, Bridgeway moved for a judgment

notwithstanding the verdict pursuant to Rule 4:40-2(b).

Bridgeway asserted that the jury’s verdict was against the

weight of the evidence and that plaintiff had not presented a

cognizable CEPA claim. Separately, plaintiff moved for a new

trial pursuant to Rule 4:49-1(a) arguing that the jury’s verdict

was inconsistent and was the product of jury confusion. The

trial court denied both motions.

Both parties appealed the trial court’s judgment.

Plaintiff argued that the jury had been confused and had

consequently rendered an inconsistent verdict in which it found

liability but ignored the parties’ stipulated lost income

damages. Bridgeway contended that plaintiff had failed to

establish the elements of a CEPA claim and that the jury’s

liability verdict was against the weight of the evidence. It

maintained, however, that the jury’s liability and damages

verdicts were not inconsistent.

An Appellate Division panel reversed the liability verdict

in plaintiff’s favor. Hitesman v. Bridgeway, Inc., 430 N.J.

Super. 198, 219 (App. Div. 2013). The panel concluded that

plaintiff had failed to prove his CEPA claim. Ibid. It found

that the authorities upon which plaintiff relied -- the ANA

15
Code, the Bridgeway Employee Handbook and the Bridgeway

Statement of Resident Rights -- neither measured the adequacy of

patient care for purposes of N.J.S.A. 34:19-3(a)(1) and (c)(1),

nor expressed a clear mandate of public policy as required by

N.J.S.A. 34:19-3(c)(3). Id. at 215-19. The panel held that the

liability verdict was accordingly against the weight of the

evidence. Id. at 209. It characterized the parties’ dispute as

nothing more than a “difference of opinion,” which did not give

rise to a cause of action under CEPA. Id. at 219.

This Court granted certification. 214 N.J. 235 (2013).

III.

Plaintiff argues that the Appellate Division’s holding

eviscerates CEPA’s 1997 amendments, enacted to protect health

care professionals who complain about improper patient care, and

that it weakens CEPA’s protections for New Jersey employees who

notify authorities about employer actions that contravene public

policy. He challenges the Appellate Division’s rejection of the

ANA Code as an authority supporting his CEPA claim, arguing that

the panel effectively wrote the “professional code[] of ethics”

text out of N.J.S.A. 34:19-2(f). Plaintiff cites case law

authorizing courts to use industry guidelines and employer

manuals as sources of public policy for purposes of CEPA.

Plaintiff also cites on appeal statutory and regulatory

provisions, not introduced at trial, that prescribe standards

16
for nursing homes as sources of law and public policy supporting

a CEPA claim. He argues that the jury’s liability verdict

should be reinstated, and that he is entitled to a new trial on

damages or an additur.

Bridgeway counters that the Appellate Division properly

found that plaintiff failed to demonstrate that he reasonably

believed that Bridgeway delivered an “improper quality of

patient care” under N.J.S.A. 34:19-3(c)(1), or that it acted

incompatibly with a “clear mandate of public policy” under

N.J.S.A. 34:19-3(c)(3). It contends that plaintiff failed to

identify any law, rule, regulation, declaratory ruling, or

professional code of ethics that he reasonably believed

Bridgeway violated. Bridgeway argues that the authorities cited

by plaintiff -- the ANA Code, the Bridgeway Employee Handbook,

and the Bridgeway Statement of Resident Rights -- establish no

standard governing the quality of Bridgeway’s patient care.

Bridgeway further contends that plaintiff failed to demonstrate

clearly and convincingly a miscarriage of justice that would

justify a new trial on damages or an additur.

Amicus curiae New Jersey Chapter of the National Employment

Lawyers Association (NELA-NJ) argues that the Appellate

Division’s decision in this case forces nursing home employees

to choose between their jobs and their ethical obligations.

NELA-NJ relies upon the legislative history of CEPA, asserting

17
that it demonstrates clear legislative intent to protect health

care professionals who complain about substandard patient care.

NELA-NJ defends the trial court’s reliance on the ANA Code as a

standard that plaintiff reasonably believed that Bridgeway

violated. It argues that CEPA incorporates professional codes

of ethics in N.J.S.A. 34:19-2(f)’s definition of improper

quality of patient care, and that this term is not limited to

codes that govern the conduct of employers.

IV.

In this case, we review the trial court’s denial of

Bridgeway’s motion for an involuntary dismissal, filed pursuant

to Rule 4:37-2(b) at the close of plaintiff’s case. A motion

for an involuntary dismissal is premised on “the ground that

upon the facts and . . . the law the plaintiff has shown no

right to relief.” R. 4:37-2(b). The motion “shall be denied if

the evidence, together with the legitimate inferences therefrom,

could sustain a judgment in plaintiff’s favor.” R. 4:37-2(b).

“‘[I]f, accepting as true all the evidence which supports the

position of the party defending against the motion and according

him the benefit of all inferences which can reasonably and

legitimately be deduced therefrom, reasonable minds could

differ, the motion must be denied.’” Estate of Roach v. TRW,

Inc., 164 N.J. 598, 612 (2000) (quoting Sons of Thunder, Inc. v.

Borden, Inc., 148 N.J. 396, 415 (1997)). An appellate court

18
applies this standard when reviewing a trial court’s denial of a

Rule 4:37-2(b) motion for involuntary dismissal. Fox v.

Millman, 210 N.J. 401, 428 (2012). A reviewing court

considering an appeal involving a Rule 4:37-2 motion “must

disregard evidence adduced on the defense case.” Verdicchio v.

Ricca, 179 N.J. 1, 30-31 n.4 (2004).

To the extent that the trial court’s denial of Bridgeway’s

motion for an involuntary dismissal was premised upon a

construction of CEPA, our review is de novo. Twp. of Holmdel v.

N.J. Highway Auth., 190 N.J. 74, 86 (2007). “A trial court’s

interpretation of the law and the legal consequences that flow

from established facts are not entitled to any special

deference.” Manalapan Realty, L.P. v. Twp. Comm. of Manalapan,

140 N.J. 366, 378 (1995).

The Court construes a statute so as “to determine and give

effect to the Legislature’s intent.” N.J. Dep’t of Children &

Families v. A.L., 213 N.J. 1, 20 (2013) (citing Allen v. V & A

Bros., Inc., 208 N.J. 114, 127 (2011)). The Court’s initial

task is to analyze the statute’s plain language. DiProspero v.

Penn, 183 N.J. 477, 493 (2005). Only if the plain language is

ambiguous does the Court look to extrinsic evidence such as

legislative history. A.L., supra, 213 N.J. at 20 (citing Murray

v. Plainfield Rescue Squad, 210 N.J. 581, 592 (2012)); see

DiProspero, supra, 183 N.J. at 492.

19
 “CEPA is a remedial statute that ‘promotes a strong public

policy of the State’ and ‘therefore should be construed

liberally to effectuate its important social goal.’” Battaglia

v. United Parcel Serv., Inc., 214 N.J. 518, 555 (2013) (quoting

Abbamont v. Piscataway Twp. Bd. of Educ., 138 N.J. 405, 431

(1994)). That social goal is “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.’” Dzwonar v. McDevitt, 177 N.J. 451,

461 (2003) (quoting Abbamont, supra, 138 N.J. at 431). The

statute thus shields an employee who objects to, or reports,

employer conduct that the employee reasonably believes to

contravene the legal and ethical standards that govern the

employer’s activities.

The “clear mandate of public policy concerning the public

health” provision of CEPA was an original component of the

statute when it was enacted in 1986. See L. 1986, c. 105, § 3.

N.J.S.A. 34:19-3(c)(3) bars any retaliatory action against an

employee because the employee:

(c) Objects to, or refuses to participate in
any activity, policy or practice which the
employee reasonably believes:

. . .

(3) is incompatible with a clear mandate of
public policy concerning the public health,

20
 safety or welfare or protection of the
environment.

[N.J.S.A. 34:19-3(c)(3).7]

For purposes of CEPA, “public policy has been defined as

that principle of law which holds that no person can lawfully do

that which has a tendency to be injurious to the public or

against the public good.” Mehlman v. Mobil Oil Corp., 153 N.J.

163, 187 (1998) (internal quotation marks omitted). “[A] clear

mandate of public policy conveys a legislative preference for a

readily discernable course of action that is recognized to be in

the public interest.” Maw v. Advanced Clinical Commc’ns, 179

N.J. 439, 444 (2004) (internal quotation marks omitted). Public

policy “is not concerned with minutiae, but with principles.”

Mehlman, supra, 153 N.J. at 187 (internal quotation marks

omitted). The “clear mandate” must exist to prevent harm to the

7
N.J.S.A. 34:19-3(a) and N.J.S.A. 34:19-3(c) address distinct
categories of protected activity. The “clear mandate of public
policy” provision of CEPA is found only in N.J.S.A. 34:19-
3(c)(3), which bars retaliation by an employer against an
employee who “[o]bjects to, or refuses to participate in any
activity, policy or practice which the employee reasonably
believes . . . is incompatible with a clear mandate of public
policy.” There is no parallel subsection addressing a “clear
mandate of public policy” under N.J.S.A. 34:19-3(a), which is
the section of CEPA that bars retaliation for, among other
conduct, an employee’s reporting of employer conduct “to a
public body.” Although this issue was not raised by the parties
in the trial court or on appeal, it appears that the trial court
incorrectly charged the jury that plaintiff could assert a CEPA
claim, under N.J.S.A. 34:19-3(c)(3), for retaliation based upon
his reports to government officials of conduct that he
reasonably believed to be incompatible with a clear mandate of
public policy.
21
public, rather than to protect exclusively private interests.

Dzwonar, supra, 177 N.J. at 469.

In 1997, the Legislature amended CEPA to add the second

provision upon which plaintiff asserted a claim in this case,

the “improper quality of patient care” language of N.J.S.A.

34:19-3(a)(1) and (c)(1). See L. 1997, c. 98, § 2. The amended

version of N.J.S.A. 34:19-3(a) bars employer retaliation against

an employee who:

(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:

(1) is in violation of a law, or a rule or
regulation promulgated pursuant to law . . .
or, in the case of an employee who is a
licensed or certified health care
professional, reasonably believes
constitutes improper quality of patient
care.

[N.J.S.A. 34:19-3(a)(1).]

In a parallel amendment, the Legislature added language to

N.J.S.A. 34:19-3(c)(1), which specifically applies to employees

in the health care field and bars retaliation against an

employee who:

(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 . . .
or, if the employee is a licensed or
certified health care professional,

22
 constitutes improper quality of patient
care.

[N.J.S.A. 34:19-3(c)(1).]

As amended, CEPA defines “improper quality of patient care” as

“any practice, procedure, action or failure to act of an

employer that is a health care provider which violates any law

or any rule, regulation or declaratory ruling adopted pursuant

to law, or any professional code of ethics.” N.J.S.A. 34:19-

2(f).

Plaintiff’s CEPA claims -- his “improper quality of patient

care” claim under N.J.S.A. 34:19-3(a)(1) and (c)(1) and his

“clear mandate of public policy concerning the public health”

claim under N.J.S.A. 34:19-3(c)(3) -- require proof of four

elements. First, plaintiff was required to demonstrate that he

reasonably believed that Bridgeway either provided an improper

quality of patient care as defined in N.J.S.A. 34:19-2(f), or

acted in a manner incompatible with a clear mandate of public

policy. See Dzwonar, supra, 177 N.J. at 462; Klein v. Univ. of

Med. & Dentistry of N.J., 377 N.J. Super. 28, 38-39 (App. Div.),

certif. denied, 185 N.J. 39 (2005); Kolb v. Burns, 320 N.J.

Super. 467, 476 (App. Div. 1999). Second, plaintiff had the

burden to prove that he engaged in protected “whistle-blowing”

activity as defined in N.J.S.A. 34:19-3(a) or 3(c). Dzwonar,

supra, 177 N.J. at 462; Klein, supra, 377 N.J. Super. at 38.

23
Third, plaintiff had the burden of proving that an “adverse

employment action was taken against him.” Dzwonar, supra, 177

N.J. at 462; see Klein, supra, 377 N.J. Super. at 38. Fourth,

plaintiff had the burden to demonstrate a causal connection

between his whistle-blowing activity and his termination.

Dzwonar, supra, 177 N.J. at 462; Klein, supra, 377 N.J. Super.

at 38. Because the parties stipulated that the second element

was satisfied by plaintiff’s contact with governmental

authorities, and that the third element was satisfied because

his employment at Bridgeway was terminated, only the first and

fourth elements of plaintiff’s CEPA claim were contested at

trial.

In Dzwonar, supra, this Court defined the framework to

guide a trial court’s determination of a defense challenge to a

plaintiff’s proof of the first element of a CEPA claim:

[W]hen a defendant requests that the trial
court determine as a matter of law that a
plaintiff’s belief was not objectively
reasonable, the trial court must make a
threshold determination that there is a
substantial nexus between the complained-of
conduct and a law or public policy
identified by the court or the plaintiff.
If the trial court so finds, the jury then
must determine whether the plaintiff
actually held such a belief and, if so,
whether the belief was objectively
reasonable.

[177 N.J. at 464.]

24
 The Court noted that CEPA’s goal “is ‘not to make lawyers

out of conscientious employees but rather to prevent retaliation

against those employees who object to employer conduct that they

reasonably believe to be unlawful or indisputably dangerous to

the public health, safety or welfare.’” Ibid. (quoting Mehlman,

supra, 153 N.J. at 193-94). Accordingly, it is not the

plaintiff’s burden to show that the defendant actually violated

the law, rule, regulation, or other authority cited, but only to

demonstrate that he or she held a reasonable belief that such a

violation occurred. Ibid.

Thus, Dzwonar identifies the framework to be used by a

trial court in determining a defendant’s motion to dismiss CEPA

claims under the two provisions at issue here. In order for a

claim under N.J.S.A. 34:19-3(a)(1) and (c)(1), alleging improper

quality of patient care, to be submitted to the jury, the trial

court must find a substantial nexus, as explained by Dzwonar,

supra, 177 N.J. at 464, between the defendant employer’s

“practice, procedure, action or failure to act,” N.J.S.A. 34:19-

2(f), and the “improper quality of patient care.” See Maimone

v. City of Atlantic City, 188 N.J. 221, 233 (2006); Klein,

supra, 377 N.J. Super. at 40; Turner v. Associated Humane Soc’ys

Inc., 396 N.J. Super. 582, 593 (App. Div. 2007). The trial

court’s task is to determine whether such a substantial nexus

exists, reviewing the evidence in accordance with the

25
deferential standard of Rule 4:37-2(b). If the plaintiff’s

proofs establish the substantial nexus, the trial court should

deny the defendant’s motion to dismiss. It should then charge

the jury to consider whether plaintiff believed that the

authority cited was violated, and if so, whether that belief was

reasonable. If the jury decides in the affirmative, plaintiff

has proven the first element of the CEPA claim. See Dzwonar,

supra, 177 N.J. at 464; Klein, supra, 377 N.J. Super. at 39-40.

If the trial court determines that the plaintiff’s proofs failed

to establish the substantial nexus, it should grant the

defendant’s motion, and dismiss the N.J.S.A. 34:19-3(a)(1) or

(c)(1) claim.

The same factors guide a trial court’s analysis in deciding

a motion to dismiss a plaintiff’s “clear mandate of public

policy” claim under N.J.S.A. 34:19-3(c)(3). Dzwonar, supra, 177

N.J. at 464. The trial court must determine whether there is a

substantial nexus between the complained-of conduct and a “clear

mandate of public policy” identified by the court or the

plaintiff. Ibid. If the trial court, reviewing the evidence

under the standard of Rule 4:37-2(b), determines that the

plaintiff has demonstrated such a substantial nexus, the motion

should be denied. Ibid. The court should then instruct the

jury to determine whether the plaintiff believed that the

defendant’s conduct was incompatible with a “clear mandate of

26
public policy,” and if so, whether such a belief was reasonable.

Ibid. If the plaintiff fails to demonstrate a substantial nexus

between the employer’s conduct and the identified clear mandate

of public policy, the trial court should grant the motion and

dismiss the N.J.S.A. 34:19-3(c)(3) claim.

The statutory elements and the analytical framework set

forth in Dzwonar distinguish an employee’s objection to, or

reporting of, an employer’s illegal or unethical conduct from a

routine dispute in the workplace regarding the relative merits

of internal policies and procedures. See Dzwonar, supra, 177

N.J. at 467-69 (affirming dismissal of plaintiff’s CEPA claim

based upon general administration of union meetings and union’s

allegedly inadequate explanation of its actions to membership);

Maw, supra, 179 N.J. at 443, 445 (rejecting employee’s CEPA

claim where employee “was terminated for refusing to execute an

employment agreement containing a do-not-compete provision” and

stating that “the dispute between the employer and employee must

be more than a private disagreement”); Schechter v. N.J. Dep’t

of Law & Pub. Safety, Div. of Gaming Enforcement, 327 N.J.

Super. 428, 432 (App. Div. 2000) (rejecting CEPA claim premised

upon “nothing more than a policy dispute between the Division’s

middle and upper level management concerning the priority to be

assigned to exclusion cases”). As this Court observed in Estate

of Roach, supra, when noting the importance of the plaintiff’s

27
reasonable belief that the defendant’s conduct contravened an

authority recognized in CEPA:

[I]f an employee were to complain about a
co-employee who takes an extended lunch
break or makes a personal telephone call to
a spouse or friend, we would be hard pressed
to conclude that the complaining employee
could have “reasonably believed” that such
minor infractions represented unlawful
conduct as contemplated by CEPA. CEPA is
intended to protect those employees whose
disclosures fall sensibly within the
statute; it is not intended to spawn
litigation concerning the most trivial or
benign employee complaints.

[164 N.J. at 613-14.]

Accordingly, a pivotal component of a CEPA claim is the

plaintiff’s identification of authority in one or more of the

categories enumerated in the statute that bears a substantial

nexus to his or her claim. As the Court noted in Dzwonar,

supra, in which it rejected the plaintiff’s contention that

union bylaws constituted a law, rule, regulation, or clear

mandate of public policy for purposes of N.J.S.A. 34:19-3(c),

“[t]he trial court can and should enter judgment for a defendant

when no such law or policy is forthcoming.” 177 N.J. at 463.

Whether a CEPA plaintiff invokes a law, rule, regulation,

declaratory ruling, or professional code of ethics as a

benchmark for “improper quality of patient care” under N.J.S.A.

34:19-3(a)(1) or (c)(1), or alleges employer conduct

“incompatible with a clear mandate of public policy concerning

28
the public health” under N.J.S.A. 34:19-3(c)(3), the plaintiff

must identify the authority that provides a standard against

which the conduct of the defendant may be measured.

By their express terms, and as construed by our courts, the

relevant provisions of CEPA recognize a range of standards that

may support a claim. For purposes of N.J.S.A. 34:19-3(a)(1) and

(c)(1), the Legislature specifically enumerated the categories

of authority that may establish the “improper quality of patient

care.” N.J.S.A. 34:19-2(f) defines “improper quality of patient

care” to be a violation of “any law, or any rule, regulation or

declaratory ruling adopted pursuant to law or professional code

of ethics.” N.J.S.A. 34:19-2(f).

As an Appellate Division panel has noted, CEPA is not

intended to protect an employee “who simply disagrees with the

manner in which the hospital is operating one of its medical

departments, provided the operation is in accordance with lawful

and ethical mandates.” Klein, supra, 377 N.J. Super. at 42.

Thus, a claim under N.J.S.A. 34:19-3(a)(1) or (c)(1) cannot

proceed unless the plaintiff demonstrates a reasonable belief

that the defendant’s patient care is “improper,” measured

against an authority recognized by CEPA. Therefore, to assert a

CEPA claim based on the “improper quality of patient care,” the

plaintiff must identify a law, rule, regulation, declaratory

ruling adopted pursuant to law or professional code of ethics

29
that applies to and governs the employer in its delivery of

patient care.

Plaintiff’s second claim, based on a “clear mandate of

public policy concerning the public health” under N.J.S.A.

34:19-3(c)(3), similarly requires a plaintiff employee to

identify a source of law or other authority, constituting an

expression of public policy, that sets a governing standard for

the defendant employer’s conduct. As the Court has observed, a

“clear mandate” of public policy need not be enacted in a

constitution, statute or rule, but must nonetheless provide a

definite standard by which the employer’s conduct may be gauged:

Like [N.J.S.A. 34:19-3(c)(1)], the reference
in [N.J.S.A. 34:19-3(c)(3)] to “a clear
mandate of public policy” conveys a
legislative preference for a readily
discernible course of action that is
recognized to be in the public interest. A
“clear mandate” of public policy suggests an
analog to a constitutional provision,
statute, and rule or regulation promulgated
pursuant to law such that, under [N.J.S.A.
34:19-3(c)(3)], there should be a high
degree of public certitude in respect of
acceptable vers[u]s unacceptable conduct.

[Maw, supra, 179 N.J. at 444.]

As the Court noted in Mehlman, supra, the mandate of public

policy must be “‘clearly identified and firmly grounded’” and

cannot be “‘vague, controversial, unsettled [or] otherwise

problematic.’” 153 N.J. at 181 (quoting MacDougall v. Weichert,

144 N.J. 380, 391-92 (1996)).

30
 Consistent with this principle, our courts have recognized

various sources of authority bearing the required substantial

nexus to the plaintiff’s claim. In each case, the law,

regulation, or other authority held to support a CEPA claim, not

only expressed a “clear mandate of public policy,” but

identified acceptable and unacceptable practices in the

defendant employer’s business. In Mehlman, supra, the Court

found, based on several sources of law and regulation that were

admitted into evidence at trial, a “clear mandate of public

policy” governing the concentration of benzene in the defendant

employer’s gasoline. 153 N.J. at 190-92.8 In Abbamont, supra,

the plaintiff, a teacher of industrial arts, identified

administrative regulations prescribing school metal shop safety

requirements as the source of his complaints to management.

Abbamont, supra, 138 N.J. at 410, 424. The plaintiff in

Maimone, supra, a police officer, premised his “clear mandate of

public policy” claim under N.J.S.A. 34:19-3(c)(3) upon laws

against prostitution and against sexually-oriented businesses

near churches and schools, which he alleged were ignored by his

employer. 188 N.J. at 229, 232. In each of these settings, the

8
These included United States and Japanese gasoline regulations
that addressed benzene safety hazards, a Japanese Petroleum
Associates guideline banning the sale of gasoline with a high
concentration of benzene, a United States Occupational Safety
and Health Administration regulation regarding benzene exposure,
and the New Jersey product liability laws. See Mehlman, supra,
153 N.J. at 174-77.
31
authority expressed a “clear mandate of public policy” and

generated a standard governing the employer’s conduct. In the

absence of such a relevant standard, this Court has not

recognized a “clear mandate of public policy” bearing the

required “substantial nexus” to the plaintiff’s CEPA claim.9

Thus, to present a cognizable retaliation claim based on

“improper quality of patient care” under N.J.S.A. 34:19-3(a)(1)

and (c)(1), or based on practices “incompatible with a clear

mandate of public policy concerning the public health” under

N.J.S.A. 34:19-3(c)(3), a plaintiff must present authority

meeting the statutory criteria that serves as a standard for the

9
In Kalman v. Grand Union Co., a pre-CEPA case upon which
plaintiff relies, an Appellate Division panel reversed a trial
court’s dismissal of a claim brought by a retail pharmacist
terminated after he alleged that the pharmacy in which he worked
illegally closed while the grocery store in which it stood
remained open, leaving prescription drugs available to the
public without a pharmacist present. 183 N.J. Super. 153, 155-
56, 159 (App. Div. 1982). The plaintiff in Kalman cited several
forms of authority in support of his common-law whistleblower
claim: state statutes and state regulations governing the
operation of pharmacies, and the American Pharmaceutical
Association’s Code of Ethics. Id. at 157-58. The pharmacists’
Code of Ethics, governing both the plaintiff and his employer,
required pharmacists to “observe the law” and to expose illegal
or unethical conduct in the profession. Id. at 158. The
Appellate Division concluded that the pharmacists’ Code of
Ethics supported state statutory and regulatory mandates and, in
conjunction with those mandates, constituted an expression of
public policy. Id. at 159. Kalman does not support plaintiff’s
contention that a code of ethics that compels the employee to
report illegal activity, but imposes no requirements on the
employer, can independently constitute a “clear mandate of
public policy” under N.J.S.A. 34:19-3(c)(3).
32
employer’s conduct. In the absence of such authority, the CEPA

claim fails.

V.

In light of the statutory text and the framework of our

case law, we consider the three sources upon which plaintiff

relied in support of his CEPA claims.

Section 3.5 of the ANA Code, entitled “Acting on

questionable practice,” addresses the obligation of a nurse to

report inadequate medical care. It provides:

The nurse’s primary commitment is to the
health, well-being, and safety of the
patient across the life span and in all
settings in which health care needs are
addressed. As an advocate for the patient,
the nurse must be alert to and take
appropriate action regarding any instances
of incompetent, unethical, illegal, or
impaired practice by any member of the
health care team or the health care system
or any action on the part of others that
places the rights or best interests of the
patient in jeopardy. To function
effectively in this role, nurses must be
knowledgeable about the Code of Ethics,
standards of practice of the profession,
relevant federal, state and local laws and
regulations, and the employing
organization’s policies and procedures.

When the nurse is aware of inappropriate or
questionable practice in the provision or
denial of health care, concern should be
expressed to the person carrying out the
questionable practice. Attention should be
called to the possible detrimental [e]ffect
upon the patient’s well-being or best
interests as well as the integrity of
nursing practice. When factors in the

33
 health care delivery system or health care
organization threaten the welfare of the
patient, similar action should be directed
to the responsible administrator. If
indicated, the problem should be reported to
an appropriate higher authority within the
institution or agency, or to an appropriate
external authority.

The ANA Code provision also addresses the importance of

“established processes for reporting and handling incompetent,

unethical, illegal, or impaired practice” in the employment

setting to reduce the risk of reprisal. It provides that a

nurse reporting such improper practice should be assisted by

nursing colleagues, state nursing associations, and “appropriate

authorities” such as practice committees of professional

organizations, licensing authorities, and regulatory agencies

concerned with evaluating standards of practice. The section

concludes by noting that “[a]ccurate reporting and factual

documentation, and not merely opinion, undergird all such

responsible actions,” and that professional risks resulting from

reporting “do not eliminate the obligation to address serious

threats to patient safety.”

We concur with the Appellate Division panel that the ANA

Code does not constitute a source of law or other authority

bearing a “substantial nexus” to Bridgeway’s conduct, as Dzwonar

mandates. Dzwonar, supra, 177 N.J. at 464. The ANA Code

expresses the nursing profession’s commitment to sound patient

34
care, and like CEPA it encourages reporting of deficient

practice to appropriate authorities. As plaintiff necessarily

conceded at trial, however, the ANA Code does not govern

Bridgeway’s patient care. The ANA Code includes no general

standard for infection control in a nursing home, much less

specific direction on how Bridgeway should have treated its

patients’ illnesses in January 2008. It provides no standard

under which a factfinder could determine whether plaintiff held

an objectively reasonable belief that Bridgeway delivered an

“improper quality of patient care.” N.J.S.A. 34:19-3(a)(1);

N.J.S.A. 34:19-3(c)(1). Nor does the ANA Code prescribe for

Bridgeway a “readily discernible course of action that is

recognized to be in the public interest,” from which we can

discern a “clear mandate of public policy.” N.J.S.A. 34:19-

3(c)(3); Maw, supra, 179 N.J. at 444; see also Warthen v. Toms

River Cmty. Mem’l Hosp., 199 N.J. Super. 18, 20-21, 28 (App.

Div.) (finding that “even if [the court] were to make the

dubious assumption that the [ANA Code] represents a clear

expression of public policy,” plaintiff’s personal morals, not

mandate of public policy, were source of her objection to

conducting kidney dialysis on terminally ill patient), certif.

denied, 101 N.J. 255 (1985). The Code directs a nurse’s action

in response to deficient patient care in a nursing home, but

provides no standard by which such a deficiency can be

35
ascertained. Accordingly, it does not support either of

plaintiff’s CEPA claims.

As the Appellate Division panel found, the second authority

cited by plaintiff, the Bridgeway Employee Handbook’s Code of

Conduct, similarly falls short of the mark. The Code of Conduct

states that Bridgeway has “adopted a Compliance Program to

ensure that [it] operates in full compliance with applicable

State and Federal statutes and regulations, including health

care programs and private insurance program requirements,” and

states that “[i]t establishes the basic legal and fundamental

principles . . . that Bridgeway will operate under.” The Code

of Conduct sets forth ethical standards for Bridgeway staff,

prescribes employee compliance with laws and regulations, sets

forth reporting procedures and states that patients will be

afforded “service[s] that are identified as needed.” The Code

of Conduct does not, however, provide a governing standard for

Bridgeway’s response to infectious diseases in patients,

or otherwise define an adequate response to any condition or

disease.

Moreover, the Code of Conduct articulates no public policy

with respect to the control of infectious disease. In contrast

to the guide at issue in Abbamont, supra, 138 N.J. at 424, which

specifically incorporated administrative regulations addressing

safety, the Bridgeway Employee Handbook sets forth no authority

36
which could be construed as an expression of public policy

regarding infection control. The Code of Conduct does not

constitute authority on which a plaintiff could premise a claim

under N.J.S.A. 34:19-3(a)(1) and (c)(1) for the “improper

quality of patient care,” or a claim under N.J.S.A. 34:19-

3(c)(3) asserting retaliation for objecting to conduct

incompatible with a “clear mandate of public policy.”

Finally, plaintiff relies on the Bridgeway Statement of

Resident Rights.10 As plaintiff described it at trial, the

Statement of Resident Rights ensures that a Bridgeway patient

has rights, including the freedom to choose his or her

physician, to choose and participate in his or her care, and to

be shielded from social isolation. Again, the source of

authority cited by plaintiff has no relationship to the subject

of his complaints -- allegedly deficient control of infection in

staff and residents in January 2008. It provides no standard

for “improper quality of patient care” for purposes of N.J.S.A.

34:19-3(a)(1) and (c)(1). Further, like the Employee Handbook,

the Statement of Resident Rights articulates no “clear mandate

10
The Bridgeway Statement of Resident Rights is not part of the
record. The record includes only plaintiff’s acknowledgement
that he had reviewed the Statement of Resident Rights. In his
acknowledgement, plaintiff verified that he understood each
right, that he agreed “to promote and protect the rights of each
resident,” and that he committed “to treat each resident with
kindness, dignity and respect and to report any instances of
abuse, neglect and/or mistreatment of residents” to his
supervisor, without delay.
37
of public policy” as required by N.J.S.A. 34:19-3(c)(3). In

sum, plaintiff identified no law, rule, regulation, declaratory

ruling adopted pursuant to law, professional code of ethics, or

other authority recognized by CEPA, that presented a standard

for Bridgeway’s delivery of patient care.

Our dissenting colleague contends that Bridgeway’s motion

for an involuntary dismissal under Rule 4:37-2(b) should have

been denied. Post at ___ (slip op. at 14). He reasons that

because the trial court cited CDC guidelines when it denied a

pretrial motion for summary judgment, and by virtue of

references in plaintiff’s testimony to “standard precautions”

recommended by the CDC, the trial court properly denied

Bridgeway’s motion. Post at ___ (slip op. at 10-13). Neither

the trial court’s prior references to CDC standards in its

summary judgment decision, nor plaintiff’s vague references to

CDC-recommended precautions in his testimony, provide what CEPA

demands: evidence of a law, rule, regulation, declaratory

ruling, professional code of ethics, or clear mandate of public

policy that bears a substantial nexus to plaintiff’s claim.

Dzwonar, supra, 177 N.J. at 464.

Contrary to the suggestion of our dissenting colleague, the

trial court’s citation to CDC guidelines to buttress its

decision, in a pretrial summary judgment motion, is no

substitute for evidence of a governing standard admitted for the

38
jury’s consideration at trial. By its very terms, Rule 4:37-

2(b) limits the trial court to the evidence in, and inferences

that may be drawn from, the trial record. R. 4:37-2(b); see

also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536

(1995) (explaining that, unlike summary judgment motions,

motions to dismiss under Rule 4:37-2(b) “are based on evidence

presented during . . . trial”). The inquiry is not whether

factual assertions and legal arguments could have been made by

the trial court or counsel to support the plaintiff’s claim, but

whether the plaintiff has presented at trial evidence that

“together with the legitimate inferences therefrom, could

sustain a judgment in plaintiff’s favor.” R. 4:37-2(b); see

Pressler, Current N.J. Court Rules, comment 2 on R. 4:37-2;

Godfrey v. Princeton Theological Seminary, 196 N.J. 178, 197

(2008); Polyard v. Terry, 160 N.J. Super. 497, 505 (App. Div.

1978), aff’d, 79 N.J. 547 (1979). Nothing in that rule -- or in

our practice -- authorizes a trial court to incorporate by

reference part of its summary judgment opinion, or any other

source extraneous to the trial record, as a basis to deny a

motion for involuntary dismissal at the close of the plaintiff’s

proofs. The trial court’s reference to CDC guidelines in its

summary judgment decision simply cannot serve, after the fact,

as a proxy for trial evidence.

39
 The proofs that can be found in the record fell far short

of the mark set by CEPA, as construed in Dzownar. None of the

three sources of authority that plaintiff elected to rely upon

in his presentation of evidence and his proposed instructions to

the jury -- the ANA Code and the two Bridgeway documents --

consisted of a CDC guideline or state law standard. During his

cross-examination, plaintiff briefly alluded to, but did not

identify, “standard precautions” involving hand-washing, the use

of gloves, and “other barriers,” emanating from the CDC and

“State policies[] from the health department.” As the dissent

notes, among the numerous recommendations published by the CDC,

there is an infection control guideline entitled Healthcare

Infection Control Practices Advisory Committee, 2007 Guideline

for Isolation Precautions: Preventing Transmission of Infectious

Agents in Healthcare Settings, available at

http://www.cdc.gov/hicpac/pdf/isolation/Isolation2007.pdf. HSS

also has enacted regulations governing infection control in

hospitals and nursing homes, including N.J.A.C. 8:39-19.4. See

also N.J.S.A. 26:2H-93 (finding that “[i]t is in the public

interest of [New Jersey] for its nursing home industry to

continue to provide high-quality services to those frail and

vulnerable citizens who critically need nursing home care”).

The record does not indicate whether these were the sources to

which plaintiff generally referred; at trial, he revealed

40
neither the name nor the contents of the CDC guidelines and

state policies, and offered no document constituting or relating

to such guidelines and policies into evidence. Moreover, in

omitting any CDC guideline or state regulation from his pretrial

proposed instructions to the jury -- a position from which he

never diverged at trial -- plaintiff affirmatively elected not

to rely on these sources as the authority required to support

his CEPA claims.

Contrary to our dissenting colleague’s contentions, the

trial record is devoid of proof that would put the defendant on

notice of any CDC or state regulatory standard against which its

conduct was to be assessed, or enable the trial judge, the jury,

or an appellate court to evaluate plaintiff’s claims against the

statutory benchmark.11 In short, plaintiff did not identify,

11
The excerpts from the record set forth by our dissenting
colleague confirm that plaintiff presented no specific CDC
standards or other policies that would provide a benchmark for
the jury. In the first selection from plaintiff’s testimony
cited by the dissent, post at ___ (slip op. at 4-5), plaintiff
did nothing more than to note the existence of unidentified “CDC
policies on infection control” in which the use of masks was
recommended. In the second excerpt cited by our dissenting
colleague, post at ___ (slip op. at 5-6), plaintiff simply
recounted his instructions to staff, with no mention of any CDC
guideline or any other standard. The third excerpt cited in the
dissent, post at ___ (slip op. at 6), involved plaintiff’s
discussion of a supervisor’s job duties, and similarly failed to
identify any CDC or other infection control standard. While our
dissenting colleague has identified specific “standard
precautions” promulgated by the CDC, post at ___ (slip op. at 7-
9), and has explained them in detail, no such effort was
undertaken by plaintiff at trial.
41
offer into evidence, or cite in his proposed jury instructions

any federal or state regulatory “standard precautions” for

infection control.

As a matter of law, plaintiff failed to present evidence to

support a substantial nexus between the complained-of conduct

and an authority cognizable under N.J.S.A. 34:19-3(a)(1), (c)(1)

or (c)(3). Viewing the record in plaintiff’s favor as required

by Rule 4:37-2(b), the trial court should have granted

Bridgeway’s motion for an involuntary dismissal at the close of

plaintiff’s case. Accordingly, the Appellate Division panel

properly reversed the liability verdict in plaintiff’s favor.

In light of our holding, we do not reach the plaintiff’s

argument that the jury returned an inconsistent verdict

requiring a new trial on the issue of damages, or that he is

entitled to an additur in light of that verdict.

VI.

The judgment of the Appellate Division is affirmed.

CHIEF JUSTICE RABNER and JUSTICE LaVECCHIA, and JUDGES
RODRÍGUEZ and CUFF (both temporarily assigned), join in JUSTICE
PATTERSON’s opinion. JUSTICE ALBIN filed a separate, dissenting
opinion.

42
 SUPREME COURT OF NEW JERSEY
A-73 September Term 2012
072466

JAMES HITESMAN,

Plaintiff-Appellant,

v.

BRIDGEWAY, INC., d/b/a
BRIDGEWAY CARE CENTER,

Defendant-Respondent.

JUSTICE ALBIN, dissenting.

Plaintiff James Hitesman, a registered nurse, claimed

defendant Bridgeway Care Center terminated his employment

because he complained to his supervisors and governmental

authorities about the nursing home’s failure to take standard

precautions to address an incipient, life-threatening outbreak

of infection among the facility’s elderly patients and staff.

Hitesman contended that Bridgeway’s retaliatory firing for his

whistleblowing activities violated the Conscientious Employee

Protection Act (CEPA), N.J.S.A. 34:19-1 to -8.

In denying Bridgeway’s motion for an involuntary dismissal

at the end of Hitesman’s case, the trial court did exactly what

is asked of all courts deciding such motions -- it looked at the

evidence in the light most favorable to the non-moving party,

Hitesman. Based on that standard, the court concluded that

Hitesman established the elements of a cause of action under

1
CEPA. The court found evidence to support the conclusion that

Hitesman reasonably believed that Bridgeway was violating laws

and regulations governing the proper quality of patient care,

that he reported Bridgeway’s violations to the appropriate

authorities, and that he was fired for doing so.

The majority has simply ignored the record in overturning

the trial court’s decision. The record clearly reveals that

Hitesman testified about violations of “standard precautions”

concerning infection control reflected in federal and state

healthcare law and that the trial court relied on his testimony

and those sources of law in denying Bridgeway’s motion to

dismiss. The majority’s assertion that Hitesman was merely

expressing his personal views on the proper quality of patient

care is not borne out by the record -- and certainly not by a

reading of the record that gives Hitesman the benefit of all

favorable inferences.

I therefore respectfully dissent. In doing so, I will

turn to those portions of the record either omitted or barely

mentioned in the majority’s opinion. I will let the record

speak for itself.

I.

To support a CEPA claim under N.J.S.A. 34:19-3(a), (c)(1),

or (c)(3), plaintiff must establish that he reasonably believed

2
an activity, policy, or practice of his employer constituted

improper quality of patient care, contrary to law or a clear

mandate of public policy, and that his employer fired him for

his whistleblowing. The plaintiff does not have to show that

his employer “actually violated the law or a clear mandate of

public policy.” Dzwonar v. McDevitt, 177 N.J. 451, 462 (2003).

So long as a plaintiff has an objectively reasonable belief that

his employer has done so, the plaintiff is protected even if he

is mistaken. Id. at 464. CEPA’s intent “is not to make lawyers

out of conscientious employees” who report conduct “that they

reasonably believe to be unlawful.” Mehlman v. Mobil Oil Corp.,

153 N.J. 163, 193-94 (1998). Rather, CEPA’s intent is to

prevent retaliation against employees who make good-faith

objections. Ibid.

II.

A.

The majority asserts that Hitesman’s trial testimony only

“briefly alluded to, but did not identify, ‘standard

precautions’” deriving from federal and state law. Ante at ___

(slip op. at 40). The record says otherwise.

Hitesman testified that, as a nurse, he was obliged “to

protect the patients” in the Bridgeway facility and to ensure

that “quality of care” standards were followed, particularly

3
those standards related to “infection control.” He was alarmed

about an outbreak of respiratory and gastrointestinal infections

within the facility and about Bridgeway’s failure to implement

“standard precautions” to control the spread of those

infections. For example, Bridgeway officials did not take basic

steps to isolate infected residents, such as closing the

communal dining hall. As Hitesman explained, “[p]utting all

these people together to possibly contaminate each other . . .

posed a risk.”

In his testimony, Hitesman unmistakably identified the

Centers for Disease Control and Prevention (CDC) and state law

as sources for his reference to “standard precautions.” Here is

what Hitesman said in response to questioning:

Q. And these standard precautions come
from where?

A. They come from the CDC. And State
policies, from the health department. . . .

Q. What CDC policies?

A. CDC policies on infection control.

Q. For what in? They have different -
-

A. Well, they have . . . the general
policies for infection control which are
called standard precautions.

Q. Okay.

4
 And tell me in what instance are you
suppose to use masks under the infection
control from the CDC?

A. When you have evidence of some type
of -- some type of illness that is being
spread through other vectors. In the case
of a mask you are looking at airborne mode
of transportation, droplets, aerosol, that
kind of thing.

Hitesman repeatedly explained the nature of the “standard

precautions” for infection control:

Q. [Y]ou said before that you . . .
closed the main dining room and you gave
masks for the staff.

Is that correct?

A. Correct.

Q. Did you do anything else with the
staff to act on your concerns?

A. I reminded them of basic standard
precautions, washing hands, infection
controls, whatever barriers you might need
depending upon what the symptoms were that
were presented. . . .

Q. What infection control procedure
did you go over with the staff?

A. Well. Pardon me. The basic --
basic standards are standard precautions.
You always assume a patient is infected even
when there is no infection. It tells you
when to wash your hands, use gloves. You
wash your hands before and after dealing
with the residents. After toileting a
resident, cleaning a resident up. When to
use gloves. When not to use gloves. That
kind of thing.

5
 And then we went over more advanced
techniques.

If patients were showing symptoms of
lots of vomiting and diarrhea, GI symptoms,
then they might require gowns. If they were
dealing with a patient that was sneezing and
coughing a lot, it might require gloves,
maybe even goggles, depending on what was
going on.

In discussing the responsibilities of the Bridgeway

infection control coordinator, Hitesman again referenced the CDC

“standard precautions”:

Q. What [were] the duties of the
infection control coordinator?

A. Her duties would have been to
educate the staff on basic infection control
standard precautions as laid out by the CDC,
as well as advanced techniques for infection
control for patients that required
isolation.

[(Emphasis added).]

Additionally, Hitesman testified that during the course of

the outbreak at the Bridgeway facility, he gave Director of

Nursing Frances Gerber, a registered nurse, an article from the

CDC on influenza. The article “addressed droplets and airborne

viruses and procedures on how to prevent airborne infections.”

Although Hitesman was not specifically concerned about a flu

outbreak, he believed that the CDC article “was just an example

of how to control infection.”

6
 Despite Hitesman’s testimony, the majority insists that “he

revealed neither the name nor the contents of the CDC guidelines

and state policies, and offered no document constituting or

relating to such guidelines and policies into evidence.” Ante

at ___ (slip op. at 40-41). Hitesman’s testimony, however,

sufficiently identified the relevant CDC guidelines applicable

to Bridgeway as a healthcare facility. CEPA does not require

that a plaintiff in his testimony give the precise statutory

citation of the law that he reasonably believes his employer is

violating. Indeed, the law or public policy that plaintiff

reasonably believes his employer is violating may be “identified

by the court or the plaintiff.” Dzwonar, supra, 177 N.J. at

464.

The majority cites no legal authority for the new demands

it places on CEPA plaintiffs. Until today, “[t]he object of

CEPA [was] not to make lawyers out of conscientious employees.”

Mehlman, supra, 153 N.J. at 193. Until today, no case required

a plaintiff to make a hard copy of a federal or state statute or

regulation, such as the CDC guidelines, and place or read it

into evidence. Here, the court referred to and quoted the

applicable law in its summary-judgment opinion, which was

incorporated in the court’s involuntary-dismissal decision.

B.

7
 The CDC “standard precautions” identified and described by

Hitesman are a set of instructions for infection control in

healthcare facilities. See Healthcare Infection Control

Practices Advisory Committee, 2007 Guideline for Isolation

Precautions: Preventing Transmission of Infectious Agents in

Healthcare Settings 66 (2007) [hereinafter Guideline for

Isolation Precautions], available at

http://www.cdc.gov/hicpac/pdf/isolation/Isolation2007.pdf. The

standard precautions are

a group of infection prevention practices
that apply to all patients, regardless of
suspected or confirmed infection status, in
any setting in which healthcare is delivered
. . . . These include: hand hygiene; use
of gloves, gown, mask, eye protection, or
face shield, depending on the anticipated
exposure; and safe injection practices.
Also, equipment or items in the patient
environment likely to have been contaminated
with infectious body fluids must be handled
in a manner to prevent transmission of
infectious agents.

[Ibid.]

The standard precautions are regarded by the CDC as “the primary

strategy for the prevention of healthcare-associated

transmission of infectious agents among patients and healthcare

personnel.” Ibid. (emphasis omitted). How the standard

precautions apply in any given case is determined by the nature

of the healthcare interactions “and the extent of anticipated

blood, body fluid, or pathogen exposure. For some interactions

8
. . . only gloves may be needed; during other interactions . . .

use of gloves, gown, and face shield or mask and goggles is

necessary.” Ibid.

In his testimony, Hitesman expressed an understanding of

these “standard precautions” promulgated by the CDC.

Hitesman specifically pointed out that the infection control

policies governing New Jersey nursing-home facilities are also

derived from state law. Significantly, the CDC Guideline for

Isolation Precautions is explicitly incorporated into state law.

N.J.A.C. 8:39-19.4(a) mandates that a long-term healthcare

“facility shall develop, implement, comply with, and review . .

. written policies and procedures regarding infection prevention

and control which are consistent with the most up-to-date

Centers for Disease Control and Prevention publications,

incorporated herein by reference, including, but not limited to

. . . Guidelines for Isolation Precautions in Hospitals.”

(Emphasis added). Similarly, the CDC standard precautions are

contained in guidelines developed by the New Jersey Department

of Health and Senior Services, specifically the Guidelines for

the Control of Respiratory Outbreaks in Long-Term Care and Other

Institutional Settings 6-10 (Nov. 2011),1 and the Guidelines for

1
Available at
http://www.state.nj.us/health/flu/documents/outbreak_prevention.
pdf.

9
the Control of Gastroenteritis Outbreaks in Long-Term Care and

Other Institutional Settings 5-8 (Nov. 2011).2 Both of these

sources also reference the CDC Guideline for Isolation

Precautions.

The testimony quoted above belies the majority’s assertion

that Hitesman failed to identify, or “briefly alluded to,” the

CDC “standard precautions” as a source of law. Moreover, the

majority’s constrained and ungenerous reading of the record is

completely at odds with the standard to be applied at a motion

to dismiss, a standard that gives Hitesman the benefit of the

most favorable inferences from his testimony.

III.

A.

Without any support, the majority states that “the trial

record is devoid of proof that would put the defendant on notice

of any CDC or state regulatory standard against which its

conduct was to be assessed.” Ante at ___ (slip op. at 41). A

nursing home facility, like Bridgeway, is presumed to know the

law governing the control of infectious diseases, and once an

applicable statute or regulation is brought to its attention, it

should have no problem accessing the law online or in a library.

2
Available at
http://www.state.nj.us/health/cd/manual/gi_ltc.pdf.
10
 At the summary-judgment stage, the trial court identified

and quoted the above federal and state sources of law on

infection control. It thus “identif[ied] a statute, regulation,

rule, or public policy that closely relates to the complained-of

conduct.” See Dzwonar, supra, 177 N.J. at 463. And, it made “a

threshold determination that there [was] a substantial nexus

between the complained-of conduct and a law or public policy.”

See id. at 464. The trial court made the “substantial nexus”

decision in favor of Hitesman and memorialized this decision in

a thorough and detailed written summary-judgment opinion.

In that opinion, the court identified the sources of law

and public policy concerning Hitesman’s “improper quality of

patient care” allegations under N.J.S.A. 34:19-3(a)(1) and

(c)(1), and his “clear mandate of public policy” allegations

under N.J.S.A. 34:19-3(c)(3). It cited Section 3.5 of the

American Nursing Association (ANA) Code of Ethics, as well as

“myriad statutes and regulations applicable to [Bridgeway]’s

standard of care.” These regulations included all of the

sources identified above, particularly the CDC Guideline for

Isolation Precautions, N.J.A.C. 8:39-19.4 (mandating “general

policies and procedures for infection control,” including

compliance with CDC guidelines in long-term care facilities),

and the Department of Health and Senior Services guidelines on

11
infection control.3 The trial court specifically noted that

Hitesman brought to its attention the Health and Senior Services

guidelines.

After Hitesman presented his case, Bridgeway challenged

both the trial court’s “substantial nexus” determination and the

sufficiency of the trial evidence in a motion for involuntary

dismissal. Addressing the “substantial nexus” issue, the court

explained that it would not revisit its earlier summary-judgment

opinion in which it identified the applicable sources of law.

The court observed that the parties “had extensive argument on

the summary judgment motions as to the law that applies to this

case” and that “it was [the court’s] responsibility to identify

what law may apply.” Indeed, the court specifically expressed

that it had “established what the laws/policies/regulations

are.”

Then, the trial court gave its reasons for denying the

involuntary-dismissal motion. The court acknowledged that

defendant believed that the evidence was “weighted substantially

in [their] favor.” However, the court maintained that in

3
The trial court also referenced N.J.S.A. 26:2H-93 (declaring
that “[i]t is in the public interest of this State for its
nursing home industry to continue to provide high-quality
services to those frail and vulnerable citizens who critically
need nursing home care”), and 42 C.F.R. § 483.25 (“Each resident
must receive and the facility must provide the necessary care
and services to attain or maintain the highest practicable
physical, mental, and psychosocial well-being . . . .”).
12
deciding the motion it was not to assess whether “the weight” of

the evidence favored defendant but rather whether there was “any

evidence that could go to the jury.” The court noted that

“we’ve heard the testimony of the plaintiff.”

B.

The trial court clearly understood its obligations under

CEPA and Rule 4:37-2(b) at the involuntary-dismissal stage. See

Dzwonar, supra, 177 N.J. at 464 (“If the trial court . . . finds

[a substantial nexus], the jury then must determine whether the

plaintiff actually held such a belief and, if so, whether that

belief was objectively reasonable.”). The court did nothing

more remarkable than apply the standard governing a dismissal

motion, assessing the evidence and the legitimate inferences

drawn from the record in allowing the case to go to the jury.

Nevertheless, with blinders on, the majority refuses to

accept the permissive standard that applies in a motion for

involuntary dismissal. The majority pretends that Hitesman did

not testify about the CDC standard precautions and that the only

cited authorities present at the time of the involuntary-

dismissal motion were the ANA Code of Ethics, Bridgeway’s

Employee Handbook, and Bridgeway’s Statement of Resident Rights.

Again, the record says otherwise.

C.

13
 In addressing the merits of whether the trial court

properly denied defendant’s involuntary-dismissal motion, the

majority posits that Hitesman’s proposed jury instructions were

inadequate because they failed to cite the CDC guidelines on

“standard precautions” for infection control. See ante at ___

(slip op. at 41-42). However, whether jury instructions are

adequate is a completely separate issue from whether a motion to

dismiss should be granted. The trial court understood this

distinction, and said so. In denying the dismissal motion, the

court referenced the applicable law that it detailed in its

summary-judgment opinion -- the CDC guidelines and state law

incorporating those guidelines. Any inadequacy in the jury

charge is a matter that should have been separately addressed.

In summary, the trial court followed the framework

articulated in Dzwonar, supra, 177 N.J. at 464, and correctly

applied Rule 4:37-2(b) to the trial record. I fail to see how

the majority can conclude that Hitesman’s CEPA claims should

have been dismissed.

IV.

Additionally, I disagree with the majority’s supposition

that the ANA Code of Ethics has no applicability to Bridgeway as

a healthcare facility. See ante at ___ (slip op. at 35).

Inasmuch as Bridgeway acts through its employees, some of whom

14
are nurses, the ANA Code of Ethics has applicability to

Bridgeway under CEPA.

The majority makes much of the point that Hitesman on

cross-examination made a concession that the ANA Code of Ethics

did not apply to Bridgeway. Ante at ___, ___ (slip op. at 12,

35). That a skilled defense attorney elicited from Hitesman an

incorrect opinion on the law -- that the ANA Code of Ethics did

not apply to Bridgeway -- does not alter the law.

An “employer” is defined broadly in CEPA to include “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. 34:19-2(a). Thus, “employer” encompasses any

individuals working on behalf of Bridgeway, including nurses.

The ANA Code of Ethics clearly applies to nurses, including

Hitesman, who worked in the Bridgeway facility on Bridgeway’s

behalf. Surely, an employee who claims that other employees are

violating their professional ethical mandates is engaged in

activity protected by CEPA.

Therefore, the ANA Code of Ethics could reasonably form

part of the basis for Hitesman’s whistleblowing activity. If

Hitesman reasonably believed that not reporting improper quality

of patient care in the Bridgeway facility would be a violation

of the ANA Code of Ethics, then Hitesman was engaged in

15
protected activity. In the context of this case, however, the

ANA Code of Ethics is only meaningful in light of the CDC

“standard precautions” for infection control.

V.

In conclusion, looking at the record in the light most

favorable to Hitesman, sufficient evidence was presented to

overcome Bridgeway’s motion to dismiss. For that reason, there

is no basis to reverse the trial court’s decision to let this

case go the jury. Because the majority has failed to adhere to

the deferential standard of review applicable to involuntary-

dismissal motions, I respectfully dissent.

16
 SUPREME COURT OF NEW JERSEY

NO. A-73 SEPTEMBER TERM 2012

ON CERTIFICATION TO Appellate Division, Superior Court

JAMES HITESMAN,

Plaintiff-Appellant,

v.

BRIDGEWAY, INC., d/b/a
BRIDGEWAY CARE CENTER,

Defendant-Respondent.

DECIDED June 16, 2014
Chief Justice Rabner PRESIDING
OPINION BY Justice Patterson
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY Justice Albin

CHECKLIST AFFIRM REVERSE
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUDGE RODRÍGUEZ (t/a) X
JUDGE CUFF (t/a) X
TOTALS 5 1

1