*1
II, supra,
21,
359,
Abbott
IY For reasons set forth in opinion this the motion for interven- tion and clarification Speaker submitted of the General Collins, Assembly, Jack granted. is Based on the Court’s di- V, rective Abbott State to fund all the costs of necessary facilities remediation аnd construction the Abbott districts. O’HERN,
Granted —Chief Justice PORITZ and Justices STEIN, COLEMAN and LONG —5.
Opposed—None. FLEMING, BARBARA PLAINTIFF-APPELLANT, R. v. CORREC- SOLUTIONS, INC., TIONAL HEALTHCARE JENNIFER MIERS SIMPSON, AND SALLY DEFENDANTS-RESPONDENTS, AND ROE, JANE DOE AND ROBERT DEFENDANTS. Argued March 200 0Decided June *3 {Rand, McDonnell, argued appellant F. the cause for John Woodruff, attorneys). & Algeier, Tosti bar, Gold, argued the Pennsylvania a member of the Alan S. Mulvaney, attorneys; {McElroy, respondents Deutsch & cause brief). LaSala, Joseph P. on the
PER CURIAM. Employee Protection appeal This concerns Conscientious Act), (CEPA The 34:19-1 -8. N.J.S.A. Act or Whistleblower an appeal the extent to which question central complaints of in which employees to its the manner can dictаte specifically, can made. can workplace conduct be More *4 of employee the basis “insubordination” employer fire on complaints that the be submit- employer has directed because the ignored the previously who had to a lower-level ted complaints? same employees to permits submit that CEPA
Plaintiff contends falls within complaints to individual who legitimate CEPA 34:19-2(d). No “supervisor” as defined in N.J.S.A. of definition lawfully submitting can be terminated a CEPA complaint “any to employer’s organization individual with an who authority has thе to performance direct and control the work employee, authority affected who has to take corrective action regarding law, the violation of the regulation rule or of which the employee complains, designated by or who has been required [by] on the notice act.” this Ibid.
I. 1, 1996, April Prior to Jersey employed State New plaintiff, Fleming, Sally Barbara R. Simpson and defendants and Jennifer Miers as nurses at the Edna Facility, Mahan Correctional prison for women.
In April Department “privatized” Corrections medi- Facility cal services corporation and hired an outside to provide turn, private those services. corporation contract- Solutions, (CHS) ed with Correctional Healthcare Inc. to deliver Fleming, Simpson the services. and Miers were retained CHS to work Facility. takeover, as nurses at the After the employed was “Evening Charge as the Nurse” Fleming’s and was supervisor. immediate employed Miers initially was with CHS as Nurse, Charge a nursing supervisor became mid-May until June and then in early July late June or 1996 became CHS’s Health Services Administratоr.
On March the Assistant Depart- Commissioner of the ment of Corrections sent memorandum to all administrators and superintendents setting forth policies procedures the new and implemented be as a passage result of the of N.J.S.A. 30:7E-1 to requires -6. That statute pay inmates a nominal fee for medical services and medications. N.J.S.A 30:7E-2. Pursuant to the memorandum, Commissioner’s all requesting inmates medical ser- vices or medications were to be complete a medical (Form HS-01). request form All inmates were to be assessed a co-payment of for medical $5.00 services and for medications. $1.00 *5 completed implement in order to the co- Form HS-01 had to be payment. over, Fleming observed that medical services
After CHS took had not being provided were to inmates who and medications not required co-payment form and thus were completed the co-payment. may appear to some to be charged She (a rarity public stereotype employees of state that life unjustified) taxpayers’ money, not worker who tries to save the —a early Fleming Beginning May in late or June waste it. boss, Simpson, on several occasions about complained to her Simpson and Miers acknowl- failure to enforce this law. CHS’s undisputed It edge Fleming complaints. made these is also that completed. co-payment forms were often not that these HS-01 employees were Fleming complained that CHS also orders, expired physician under providing medications to inmates 2C:21-20, N.J.S.A. to be in violation of N.J.S.A. which she believed Act, 45:9-22, Food, Drug 21 U.S.C. and the Federal and Cosmetic § § 301 to presented had evidence
The courts below found that conduct jury could find that her belief from which Higgins v. Pascack occurring objectively reasonable. See was was (1999) (holding “that Valley Hosp. 158 N.J. taking retaliatory action prohibits an the CEPA objecting to a against employee who has a reasonable basis activity, policy, practice covered N.J.S.A. co-employee’s 34:19-3”). However, Fleming’s whistle- each court found opinion, Appel protected. unpublished In an blowing was not produce[] did “not sufficient late Division held that a result of her her termination was [that] evidence to establish violations, to her refusal to complaining and not due about CHS said regarding the submission of follow instructions from Miers command) (through and for her refusal to complaints the chain of granted medication.” We dispensing orders in the follow issue. the chain-of-command primarily to consider certification 744A.2d 1208 II. *6 summary Because the case arises on a judgment, motion for we must view the light controverted facts in the most favorable to plaintiff. Here is the time line of the events as states it: Flеming sent a letter to July Donald then the Director of Moore, Fleming’s Medical at the Department facility CHS. letter about, complained among things, dispensing other of medications CHS to by inmates employees without valid orders and the failure to Form physician HS-01 when complete providing services or medications to inmates. Fleming following 3, 1996 Miers July returned the letter to with the handwritten go note attached: “Dear Barb: This should first to then Sally [Simpson] Sally bring bring should it to me I’ll and then it to Don.” Fleming 5, 1996 forwarded to July Miers a letter entitled “Problems.” This letter Fleming’s forth set thе identical identified in complaints 1996 letter to July 2, Fleming Moore. asserted that while she was instructed to send the letter to bring she Simpson first, did not do so because she believed she had a to duty highest these to the attention of the problems in command person and that her oral to had not prior complaints results. produced Fleming. Fleming July 12, Miers fired Miers told that the “most important ” thing referring was Fleming letter," “this to the letter July 5,1996, had sent to Miers. Miers told that she had failed to follow the “chain of command.” Fleming’s Miers said that conduct constituted “willful disobedienсe” and that she Fleming, was terminated. Miers told for the first that time, she had received a negative review from performance added.] Simpson. [Emphasis Plaintiff retaliatory contends this is a firing in violation of CEPA. Defendant contends that it fired her for “insubordination” in reporting higher-up misconduct to a in poor combination with job performance by exacerbated her refusal to follow direct or- ders.
III. CEPA is legislation. remedial Barratt v. Cushman & Inc., Wakefield, 120, 127, (1996). 144 N.J. Its purpose protect employees is “to report illegal who or unethical workplace activities.” Ibid. It is also “encourage intended to employees report illegal to workplace or unethical activities and to discourage ... employers engaging in such conduct.” Abba Piscataway Ed., mont v. Township Bd. 138 N.J. liberally
A.2d 958 It is to be construed to achieve its important goal.1 social grants employees right complaints
CEPA to to submit workplace any or unethical conduct to individual defined 34:19-2(d). “supervisor” provides, part, as N.J.S.A. against [a]n shall not take action an employer any retaliatory because the employee [a] ... or . . [d]iscloses, threatens disclose to or employee policy ... that the believes is in violation of practice employer employee reasonably law____ regulation promulgated or a rule of law, pursuant added).] (emphasis [N.J.S.A. 34:19-3 Importantly, “supervisor” is defined as organization individual with who has the employer’s direct and authority control the work of the affected who has to take performance employee, authority regarding regulation corrective action the violation of law, rule of whiсh the designated or who has been on complains, the notice 7 of this act. under Section *7 added).] 34:19-2(d)(emphasis [N.J.S.A. Thus, “supervisor” broadly includes, others, among It defined. Miers, complaint early July to whom her in submitted 1996. right “supervi no to limit
CHS has definition of CEPA’s by mandating employees complaints sor” that its submit CEPA to supervisor. Certainly, punish their immediate it could not Flem Miers, ing submitting protected complaints for her an individual “supervisor.” who fell within CEPA’s definition of statute, 1 New whistleblower the Conscientious Jersey's Employee (CEPA), Legislature Protection Act was the in 1986. Because by passed being law, CEPA is a new the basic contours of the statute still are relatively out as whistleblower cases wind their the lad- mapped way up appellate ... der. retaliating against for “blow- prohibits employees employees (1) (2) ing law, the whistle” on violations of the possible possible improper (3) of care in the health care or violations quality patient industry, possible concerning of clear mandate of health, the or any public policy public safety, or the of the environment. protection welfare Changing Lenzo, P. The Contours New Whistleblower [Christopher Jersey of (footnotes omitted).] Magazine, Law, New 1999 at 51 Jersey Lawyer, April, employer may not mean an This does not fire an whistleblower, employee, a who in expressing even is unreasonable complaints. example, employee his or her For state who repeatedly called the at the Governor Governor’s residence late at night report at a agency justly violations of law state could be requested said to be insubordinate if do not to so. But disciрline employee going for over the of a head allegedly in workplace activity involved or unethical under exactly Legislature mines what passed had in mind when it Act. Whistleblower The most that can of a be made chain-of- might command is that it be defense raised as a valid nondiscrimi natory employee’s firing, that, for an reason like other defense would have to be resolved factfinder. See McDaniel v. th Dist., (5 Temple Indep. 1340, Sch. 770 F.2d 1348-49 Cir.1985)(advancing “arguments support [plaintiffs] conten concluding job tion that ... court erred that her unfavorable by discriminatory evaluations not retaliatory were motivated intent”). Consider our Bergen most recent decision in Commer Sisler, 188, (1999), cial Bank v. involving against youth. discrimination a bank officer because his There discriminating against asserted that it was not rather him unqualified but that it fired because he was job. Id. question 723 A.2d We said that was a for the Id. at factfinder. 723A.2d 944. applied,
Improperly policy a chain-of-command will undermine policies. fair employment See v. Willingboro Township, Gares rd(3 F.3d Cir.l996)(describing municipality’s chain-of- procedure trаpping Scylla command as between “the *8 enduring supervisor]^ Charybdis [a offensive conduct and the of possible violating termination for the by chain-of-command rules” reporting supervisor’s higher authority). conduct to analogous
In the disciplining public employees context of for speech, the chain-of-command defense been has often raised but rejected. often against speaking her if the out the of his or For example, corruption forego internal of it be reasonable to the mechanism complаint supervisors, gesture. it v. Norton, because would be a futile Brockell the department Cf. Cir.1984) (8th (allegations going of warranted around normal chain
F.2d command). is estab- where an internal mechanism However, complaint adequate in to use the can be considered lished, complaint procedure the failure employee’s determining whether the was reasonable. speech in of the of concern also be considered The seriousness issue should public determining the issue, the was reasonable. The more serious the whether speech greater given out. latitude that should be the to public employee speak (10th 1490 n. 4 [Johnsen v. Dist. No. 891 F.2d Sch. Independent Cir.1989).] rd Albanese, (3 Cir.1983), v. F.2d 98 the Czurlanis wrongly claim employee’s reviewed an that he was Third Circuit failing employer’s to follow the “chain-of-eommand” terminated making “whistleblowing” complaints protected the policy when case, public employer the had Amendment. In that First addressing employees policy precluding “chain-of-command” County the without complaints to Board of Chosen Freeholders bringing cоmplaint the to the attention of those officials first Id. “ultimately responsible.” at 105. The court held “that such ... under justify retaliatory be used the action policy cannot efficiency promoting in of County’s interest the rubric Ibid. public service.” about A which would route employees complaints poor policy compel public would officials for those responsible practices practices very departmental “whistleblowing” such It would deter by public chill speech____
impermissibly general It would on matters of concern. рublic deprive public employees functioning officials of information about the particular and its elected important government departments. (citation omitted).] [Id. at 106 that allow analysis apply holdings should here. The below That employee side- whistle-blowing when a firing for insubordination express language steps an involved contradict purpose. Fleming’s act of commu- and its broad remedial protected complaints involved conduct as nicating her to Miers despite difficulty of matter of law. claims prison, kind of who working person “[a]t in a she remained the every day ... to believe.” [found] hard earned some reason end *9 100 Believe, (Sony/Columbia Springsteen,
Bruce Reason to Nebraska 1982). plaintiff are employee, We not so certain that ideal is that violating but a chain “insubordination” for of command cannot be justify her relied on to termination.
IV.
A.
whether,
question
The more difficult
if “insubordination”
discharge,
may
cannot be relied on as the basis for her
proceed
despite
still
with her claim
the
nondiseriminatory
other
firing including
charge
her
a
reasons
for
that she refused to
provide
housing
medication to
located in
inmates
the
units. Plain-
argue
tiff will
a
this was mixed-motive case
which the
justify
burden
employment
is shifted
defendant
the
decision.
Appellate
succinctly
analysis
The
applied
Division has
stated the
employment
when several
reasons
for an
are
decision
stated.
Douglas
The
between a
difference
McDonnell
or
case and a Price
“pretext”
following
or
Waterhouse
“mixed-motive”
has been
case
in the
manner:
explained
An
discrimination
be
either a
ease
advanced on
оr
employment
pretext
“mixed-motives”
In
case,
once the
has made a
theory.
pretext
employee
prima
showing
going
of
the burden of
discrimination,
forward shifts
the employer
fade
legitimate,
who must articulate a
the
reason for
adverse
nondiseriminatory
employ
showing
legitimate,
ment
If the
decision.
does
evidence
employer
produce
discharge,
reason for
nondiseriminatory
the
the burden of
shifts back to
production
who must show that the
employee
employer’s
is incredi
proffered explanation
including
ble. At all times the burden of
or risk of
proof
non-persuasion,
proving
burden of
“but for”
fact,
causation
causation in
remains on the
aIn
“mixed
Price
motives” or
Waterhouse
employee.
case,
must
employee
evidence of discrimination,
direct
more
than
produce
i.e.,
direct evidence
is re
Douglas/Burdine
[Texas
the McDonnell
quired
Department
Community
of
(1981)
v.
450
Burdine,
]
U.S.
248,101
S.Ct
L.Ed.2d 207
facie
prima
Affairs
case. If the
does
direct evidence of
produce
discriminatory animus, the
then
must
evidence sufficient to
it would
employer
рroduce
show that
have made
if
the same decision
bias
no
had
role in the
decision. In
played
employment
short, direct
of
animus leaves the
proof
discriminatory
only
affirmative
defense on
“but for” cause or cause in fact.
question
(3d Cir.1995)
Westinghouse
[Starceski v.
n. 4
Electric
F.3d
Corp.,
(citations omitted).]
The distinction between a
and mixed-motive
lies
pretext
case
directness
discrimination
54 F.
proof
required by
plaintiff.
3d at
supra,
Starceski
a mixed-motive ease, “direct evidence of
animus leads not
discriminatory
logical
to a
inference of
only
ready
bias, but also to a rational
that the
presumption
expressing
it,”
bias acted on
Ibid.
person
*10
seeking
“At a bare
a
minimum,
a
plaintiff
advance mixed-motive case will have
to adduce circumstantial evidence ‘of conduct or statements
by
involved
persons
decisionmaking
reflecting
alleged
that
process
be viewed as
directly
”
(3d Cir.),
attitude.’
discriminatory
v. CIGNA
988 F.2d
470
457,
Corp.,
Griffiths
cert,
(1993),
denied, 510 U.S.
114
865,
186,126
S.Ct.
L.Ed.2d 145
overruled on other
grounds,
(3d Cir.1995) (in
) (citation
Miller v. CIGNA
retaliatory employer. However, intent motivated her the “factfin der’s disbelief put by (partic reasons forward the defendant ularly if accompanied disbelief by suspicion mendacity) may, together ease, with prima the elements of the suffice to show facie Thus, intentional rejection prof [retaliation]. of the defendant’s permit fered reasons will the trier of fact to infer the ultimate fact retaliatory intentional” Mary’s St. Honor Center v. action. Hicks, 502, 511, 2742, 2749, 509 U.S. 113 S.Ct. 125 407 L.Ed.2d
B. prima Has made a Fleming’s case? initial evalua- facie employee, 30, 1996, tion as a May CHS dated prob- indicates no performance lems with her and performance states that her expectations.” “meets Simpson Even testified that she had “no problems” 30, with Fleming’s performance prior May
Fleming presented also disputing substantial evidenсe that the June 1996 evaluation authored was the basis for her
firing.
testimony
Plaintiffs
is sufficient
genuine
to create a
dispute
Inc.,
Kraft,
793,
about that issue. Weldon v.
896 F.2d
rd(3 Cir.1990) (noting that “there is no rule of law that
testimony
plaintiff,
alone,
of a
standing
discrimination
can never
make out a case of discrimination that
summary
could withstand a
motion”);
judgment
Co., Inc.,
Leopold
Graham v. F.B.
779 F.2d
(3rd
170,
Cir.1985) (observing
plaintiffs
deposition
testi
mony could
genuine dispute
suffice to create a
about material
issue);
Indus., Inc.,
(3rd
Cir.1995)
Waldron v. SL
56 F.3d
(stating
“Supreme
Court has made it clear that self-serving
testimony may
by party
be utilized
summary judgment”)(cit
Catrett,
ing
Corp.
Celotex
v.
477 U.S.
106 S.Ct.
(1986)).
fered jury from which a could find that defendant’s poor performance assertions of a pretextual. Streano, were Carla a nurse who worked with Fleming Simpson, under described her Simpson. conversations with termination, Prior Fleming’s Simpson informed giving Streano that “I’m anybody not a bad evaluation. I anything don’t have say bad to anybody,” abоut including Fleming. When Streano later Simpson’s learned of negative Fleming, evaluation of she confronted about her prior inconsistent Simpson responded: statement. ‘We all need jobs.” Viewing our testimony this in light most favorable to Fleming, jury Simpson’s could infer that negative evaluation of pretext was a designed to up cover CHS’s retaliation against Fleming blowing sloppy whistle on its and practices.
Because the lower court treated this case as in one which violation of the chain of command was a valid basis for discharge, we should remand the matter to the Law Division to determine whether has stated an actionable claim. The Law Division must light reconsider the case in principles of the
103 parties may proofs that the submit. herein and further stated proceed in accordance with the standard inquiry should And Co., 520, 142 Insurance in Brill v. Guardian set forth Life Brill, 523, the fundamental 146 As stated 666 A.2d “ disagree presents a the evidence sufficient question is ‘whether jury it is so one-sided require to a or whether ment to submission ” 533, prevail as a matter of law.’ Id. party that one must Inc., Liberty Lobby, 477 U.S. (quoting Anderson v. A.2d 146 (1986)). 2505, 2512, 202, 214 Thоse 251-52, 91 L.Ed.2d 106 S.Ct. Regan guide dispose claims. See principles provide a of CEPA Brunswick, A.2d 523 N.J.Super. v. New plaintiff was “entitled to all inferences (App.Div.1997)(holdingthat favor”); Keelan v. Bell Commu have been drawn his Research, N.J.Super. nications genuine material that the existence of (App.Div.l996)(concluding summary judgment”). “precluded grant issues and the Appellate Division is reversed judgment The of the proceedings in for further remanded to the Law Division matter is opinion. with this accordance
VERNIERO, J., dissenting. employee may not be holds that an
To the extent that thе Court blowing whistle on a lawfully discharged for employer’s chain-of- complaint lodging a outside structure, make little sense fully agree. I CEPA would command alleged wrongdo- employees to disclose if it conscientious wrongdoer is the wrongdoer, especially when the ing to the employee’s immediate boss.
However, chain Plaintiff twice broke the that is not this case. *12 time, 2, July on prior discharge. to her The first of command “Variety Peeky Prob- entitled of she sent a memorandum Moore, That department director. Donald then her lems” to bypassed explanation why plaintiff contained no of memorandum the memorandum be procedure, which that the normal fact, it Sally Simpson. did supervisor, immediate sent to her 104 Miers, plaintiffs Simpson all. Jennifer then
not reference plaintiff supervisor, returned the memorandum intermediate Barb, go Sally note: This should first with this “Dear bring bring it to then I’ll it [Simpson] Sally should me and —then to Don [Moore].” time, later, 5, 1996, just plaintiff days July
The second three on Simpson by resubmitting complaints directly her- of bypassed list memorandum, plaintiff explained In that the breach of to Miеrs. by stating: through no reason these protocol “I see to submit input Sally, they very are which little since areas over she has or plaintiff Nowhere in does control.” that second memorandum any Simpson wrongdoer responsible or for of state that is a plaintiff complaining. matters about which is only discharge deposition, It was at her well after her and the suit, plaintiff of commencement this identified time as on That the first “the worst offender our shift.” state ment, during litigation, allegation made the course bare by plaintiffs unsupported differently, earlier memoranda. Stated proposition to support the record contains no foundational fact plaintiff bypassed Simpson specif because the was Prods., ically engaged wrongdoing. Caputo v. Nice-Pak Cf. Inc., N.J.Super. (App.Div.) (upholding 300 “considering directed verdict because absence of corrobo plaintiffs self-serving testimony, jury a reasonable ration own ”), denied, have ... could not found for 151 N.J. certif. 463, A.2d 876 abrogate I do not believe that was intended this Court’s sound instruction “that when evidence ‘is so one-sided law,’ party trial prevail that one must as matter of court summary grant judgment.” should not hesitate to Brill v. Guard Am., (1995) Ins. A.2d ian Co. Life (citation omitted). Moreover, party may “an not adverse rest allegations upon pleading the mere denials of ... [to show] genuine is a trial.” R. that there issue for 4:46-5. *13 employ- do I believe that CEPA was intended to inoculate
Nor poor performers. According to ees who are insubordinate or records, plaintiff personnel defendant’s had to be directed “on dispensing to her unit to numerous occasions” to return finish inference, By doing medications to inmates. fair she was not her job, suрervisors. prison setting, in In a at least the minds of her job, especially proper one’s the failure to administer failure do inmates, consequences. medical care to can have dire agree Appellate I with the Division that: [P]laintiff not termination was a has sufficient evidence establish her produced complaining [defendant] about and not due to her violations, result her CHS regarding to follow instructions from Miers the submission of said com- refusal dispensing and for her refusal to follow orders medication. plaints job [T]he contаins sufficient evidence of both record plaintiffs poor performance, to and after CHS’s takeover. her admitted Plaintiff, testimony, prior deposition against she was an numerous actions taken her while disciplinary including In addition, for insubordination. State, ten-day plaintiffs suspension outlining regarding dispensing her views of medication to an inmate testimony having without inmate filled out the form the June co-pay supports of inmates and her observations about by Simpson plaintiffs expectation interper- off sonal skills. When asked whether she bеlieved inmates should be cut having form, their medication for not responded: completed co-pay A: Absolutely. gets gets What to the cut off from the medication and inmate Q: happens sick and dies? thing A: if I call and ask for a Same me don’t my physician happens get I refill, don’t it. recently overriding policy of ... We observed that “[t]he protect society large.” ... v. Montclair State is to Cedeno Unir., I fail to see how expresses willing society protected shielding a nurse who view, my persons ness to cut off medication to under her сare. Instead, Legislature purpose. for that it did not intend CEPA is the to administer medicines to inmates that be refusal (“[N]o contrary to law. See N.J.S.A. 30:7E-5 inmate shall be nonprescription drugs ... prescription denied ... or medicine county for because that inmate is unable to reimburse the State or medicines.”). services, drugs or the costs of those that, during time The Court should not hold for the first litigation, litigant may her own earlier course of add to or revise thereby and create a triable issue of fact to survive memoranda *14 summary judgment. good The lower courts had sense this Brill, accept findings. supra, 142 suit and we should their (observing “encourage A.2d 146 that we should trial granting summary judgment courts not to refrain from when themselves”). proper present circumstances judgment Appellate I would affirm the Division substan- tially expressed opinion in the for the reasons below. joins opinion.
Chief Justice PORITZ this For Justice PORITZ and Justice affirmance —Chief VERNIERO —2. O’HERN, STEIN,
For reversal and remandment —Justices COLEMAN, LONG and LaVECCHIA —5. MARTELLI,
IN THE MATTER OF LEON AN ATTORNEY AT LAW. June ORDER Disciplinary September having The Review Board on concluding filed with the Court its decision that LEON MARTEL- HILL, LI of CHERRY who was admitted the bar of this State (lack disciplined violating should be RPC 1.3 1.4(a) (failure client), diligence) RPC to communicate with RPC 1.15(d) (failure comply recordkeeping requirements with R.