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
James Hitesman v. Bridgeway, Inc. (072466)
Court: Supreme Court of New Jersey
Date filed: 2014-06-16
Citations: 218 N.J. 8, 93 A.3d 306
Copy CitationsCombined Opinion