Opinion
DOCKET NO. A-5119-12T4
09-19-2014
ANNA M. KIMERA, Plaintiff-Appellant, v. WANAQUE CONVALESCENT CENTER FOR REHABILITATION AND NURSING, LLP, SENIORS MANAGEMENT NORTH, INC., KATHY SLEEZER and KATHLEEN REDNER, Defendants-Respondents. DON DELAPENA, Plaintiff-Appellant, v. WANAQUE CONVALESCENT CENTER FOR REHABILITATION AND NURSING, LLP, SENIORS MANAGEMENT NORTH, INC., KATHY SLEEZER and KATHLEEN REDNER, Defendants-Respondents.
Damon A. Vespi and Mark J. Cintron argued the cause for appellants (The Vespi Law Firm, LLC, attorneys for appellant Anna M. Kimera; and The Cintron Firm, LLC, attorneys for appellant Don DelaPena; Mr. Vespi and Mr. Cintron, on the joint brief). Caren Litvin argued the cause for respondents.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner and Koblitz. On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket Nos. L-1564-11 and L-1-13. Damon A. Vespi and Mark J. Cintron argued the cause for appellants (The Vespi Law Firm, LLC, attorneys for appellant Anna M. Kimera; and The Cintron Firm, LLC, attorneys for appellant Don DelaPena; Mr. Vespi and Mr. Cintron, on the joint brief). Caren Litvin argued the cause for respondents. PER CURIAM
Plaintiffs, Anna M. Kimera and Don DelaPena, appeal from a May 15, 2013 order dismissing on summary judgment their complaint against defendants, the Wanaque Convalescent Center for Rehabilitation and Nursing (the Center) and several of its employees. We affirm, substantially for the reasons stated by Judge Philip H. Mizzone, Jr., in his May 15, 2013 written opinion.
A brief summary will suffice to illuminate our decision. Plaintiffs, licensed practical nurses (LPNs) formerly employed by the Center, claimed that they were terminated from their jobs in violation of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14. Without identifying any relevant law, rule, regulation, declaratory ruling, or professional code of ethics, they claimed in general that the Center rendered improper quality of care to a patient who died on August 14, 2010.
Plaintiffs also asserted several related causes of action, which we conclude were properly dismissed.
Plaintiffs contended that the patient, who was quadriplegic and had a tracheotomy tube (trach tube), was left unattended for approximately two hours when the nursing staff should have been checking on him every fifteen to twenty minutes. Their initial concern over his care was based on rumors circulating among the Center's staff. DelaPena also claimed that he was concerned after he saw the patient's medical chart, which showed no nursing notes between 2:25 a.m. and about 4:00 a.m., when the patient was found unresponsive. However, even DelaPena admitted that it was routine for a patient's chart to contain no notations if nothing unusual occurred during a particular time frame. Hence, the time gap in the chart did not establish that no one regularly checked on the patient.
DelaPena surreptitiously made a copy of the patient's chart and removed it from the Center, an action he admitted was in violation of the Center's policies as well as federal patient privacy laws. He did not tell anyone that he took the document, nor did he allege that the Center improperly revised the chart, until after he resigned.
Although plaintiffs initially speculated that the patient might have pulled out his trach tube, Antoinette Martinez, the LPN who found him unconscious, testified that the tube was in place at that time. Further, although DelaPena speculated that Martinez left the patient's assigned floor for two hours, leaving no one to supervise him in her absence, Martinez testified that when she left, there were two other employees — a charge nurse and another LPN — working on the floor.
DelaPena admitted he did not bring any of his concerns to any Center supervisor, beyond asking a supervisor how the incident could have happened. He told Kimera about his concerns, and she in turn told her immediate supervisor several times that she thought "something" had gone wrong with the patient's care. Kimera also testified that she told the supervisor that DelaPena had told her the patient might have been left unsupervised. Several months after the incident, both plaintiffs were terminated from their employment.
DelaPena was given the option of resigning or being fired; he resigned.
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The Center produced legally competent evidence that both plaintiffs had a history of disciplinary infractions prior to the August 2010 incident. The Center also produced evidence that plaintiffs' disciplinary infractions continued after August 2010, and that after the imposition of progressive discipline both plaintiffs were terminated for legitimate, non-retaliatory reasons. Plaintiffs produced no proof that the Center's asserted reasons were pretextual. See Winters v. N. Hudson Reg. Fire & Rescue, 212 N.J. 67, 90 (2012).
Relying on the then-recently decided Appellate Division opinion in Hitesman v. Bridgeway Inc., 430 N.J. Super. 198, 210 (App. Div. 2013), aff'd, 218 N.J. 8 (2014), Judge Mizzone concluded that "[p]laintiffs failed to satisfy the first prong of a CEPA claim because they did not even identify any law or rule, regulation or declaratory ruling . . . that they believed [d]efendants violated," and thus also failed to prove their objectively reasonable belief that defendants had violated any such standard. He also found that defendants produced legitimate non-retaliatory reasons for firing plaintiffs, and plaintiffs failed to raise a genuine issue of fact that those reasons were pretextual. The judge likewise found that plaintiffs' related causes of action for common law wrongful discharge, intentional infliction of emotional distress, and fraudulent misrepresentation were barred by CEPA's election of remedies provision. See N.J.S.A. 34:19-8.
Having reviewed the record de novo, as we must on an appeal from a trial court's summary judgment order, we conclude that Judge Mizzone's decision is supported by the undisputed material facts and correctly applies CEPA to those facts. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998) (stating that summary judgment orders are reviewed de novo, applying the standards stated in Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)). We add only the following comments.
The Supreme Court's recent decision, affirming Hitesman, only lends further support to Judge Mizzone's decision. Hitesman, supra, 218 N.J. at 15 (2014). The Court recognized that CEPA claims relating to patient care must be based on violations of specific legal standards:
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).We agree with Judge Mizzone that in opposing the summary judgment motion, plaintiffs failed to identify any such legal standards that defendants allegedly violated. We decline to consider arguments on this issue that plaintiffs did not present to the trial court. Id. at 40-41; Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
[Ibid.]
Plaintiffs' additional contentions on this appeal are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION