Hitesman v. Bridgeway Inc.
2013 N.J. Super. LEXIS 44
N.J. Super. App. Div. U2013Background
- Plaintiff, a licensed nurse, was terminated by Bridgeway after reporting concerns about infection rates and related care in the facility.
- Plaintiff claimed CEPA retaliation based on an objectively reasonable belief of improper quality of patient care, citing ethics codes and a resident rights policy.
- He identified the ANA Code of Ethics, Bridgeway’s Handbook Code of Conduct, and the Statement of Residents’ Rights as support for reasonableness.
- Plaintiff sent emails, made anonymous calls to public health authorities, and contacted the media to report concerns; he was suspended and then terminated for disclosing confidential information and HIPAA violations.
- The trial court instructed the jury on CEPA elements but did not provide the statutory definition of improper quality of patient care; jury found liability but awarded no damages, and later this verdict was appealed.
- On appeal, the court reversed the liability verdict, concluding plaintiff failed to show an objectively reasonable belief under CEPA and that the trial court erred in instructing the jury about sources of law/public policy.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff had an objectively reasonable belief of improper quality of patient care | Hitesman relied on ANA Code, Handbook and Residents’ Rights for reasonableness. | ANA code did not apply to Bridgeway; only applicable authorities can justify CEPA belief. | No; no cognizable nexus identified; belief not objectively reasonable as a matter of law. |
| Whether professional ethics or public policy authorities can support CEPA liability | Ethics codes incorporated into Bridgeway’s policy support reasonableness. | Ethics code and handbook provisions are not laws or rules; cannot support CEPA. | No; these authorities do not constitute the required legal sources under CEPA. |
| Whether the trial court properly instructed on CEPA elements and sources of law | Model jury charge should guide analysis; ANA Code and Bridgeway sources are relevant. | Instructions misapplied; sources did not meet statutory requirements. | Error in instruction; failed to provide proper legal standard; verdict reversed for liability. |
| Whether the first element of CEPA was misapplied leading to an improper liability verdict | Evidence supported a reasonable belief under CEPA. | No legally cognizable basis identified; belief not reasonable. | Plaintiff failed to establish first CEPA element as a matter of law; liability reversed. |
Key Cases Cited
- Dzwonar v. McDevitt, 177 N.J. 451 (N.J. 2003) (establishes threshold nexus and objective-belief framework for CEPA)
- Mehlman v. Mobil Oil Corp., 153 N.J. 163 (N.J. 1998) (limits CEPA to reasonable beliefs, not mere disagreement)
- Klein v. Univ. of Med. & Dentistry of N.J., 377 N.J. Super. 28 (App. Div. 2005) (disagreement with lawful policies not protected by CEPA)
- Maw v. Advanced Clinical Commc’ns, Inc., 179 N.J. 439 (N.J. 2004) (requires a clear mandate of public policy for CEPA 3(c)(3))
- Pierce v. Ortho Pharm. Corp., 84 N.J. 58 (N.J. 1980) (CEPA codification context)
- Schechter v. N.J. Dep’t of Law & Pub. Safety, Div. of Gaming Enforcement, 327 N.J. Super. 428 (App. Div. 2000) (policy-dispute considerations in CEPA analysis)
- Young v. Schering Corp., 141 N.J. 16 (N.J. 1995) (CEPA not a remedy for employee disagreement with lawful policies)
- McLelland v. Moore, 343 N.J. Super. 589 (App. Div. 2001) (objective-belief standard in CEPA context)
- Estate of Roach v. TRW, Inc., 164 N.J. 598 (N.J. 2000) (CEPA purpose to protect whistleblowers)