SCOTT M. BUELL v. CLARA MAASS MEDICAL CENTER

This case can also be found at 199 N.J. 131, 970 A.2d 1048.
(NOTE: The status of this decision is unpublished.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2592-06T22592-06T2

SCOTT M. BUELL, JOELLEN

BUELL, LINDA HENRY, and

STEVEN MOFFETT,

Plaintiffs-Appellants,

v.

CLARA MAASS MEDICAL CENTER,

ST. BARNABAS MEDICAL CENTER

d/b/a ST. BARNABAS HEALTH CARE SYSTEM,

ANNE MARIE WERTZ, MICHAEL SCOVIL,

MARTIN MARINO and KAREN PALATELLA,

Individually,

Defendants-Respondents,

and

JOSEPH DIB, M.D.,

Defendant.

_______________________________________

 

Argued May 21, 2008 - Decided

Before Judges Wefing, Parker and Koblitz.

On appeal from Superior Court of New Jersey,

Law Division, Essex County, No. L-5144-03.

John H. Norton and Glenn D. Goldberg argued

the cause for appellants (Alpert Goldberg Butler

Norton & Weiss, attorneys; Mr. Norton and Mr.

Goldberg, of counsel; Clark E. Alpert, David N.

Butler, and Nicholas D. Bliablias, on the brief).

Mark J. Blunda and Lisa Barr -Quick argued the cause

for respondents Clara Maass Medical Center,

St. Barnabas Medical Center d/b/a St. Barnabas

Health Care system, Anne Marie Wertz, Joseph Dib,

M.D., Michael Scovil, Martin Marino and Karen Palatella (Apruzzese, McDermott, Mastro & Murphy, attorneys; Mr. Blunda and Ms. Barr -Quick,

of counsel and on the brief; Ryan S. Carey, on

the brief).

Elliott Abrutyn argued the cause for intervenor/

respondent Mark J. Blunda, Esq. and Apruzzese,

McDermott, Mastro & Murphy (Morgan Melhuish

Abrutyn and Greenbaum, Rowe, Smith & Davis,

attorneys; Mr. Abrutyn and Douglas Wolfson, of

counsel and on the brief; Shaji M. Eapen and Galit

Kierkut, on the brief).

PER CURIAM

Plaintiffs appeal from three trial court orders. The first denied their motion to consolidate their pending case with another pending matter; the second granted summary judgment in favor of defendants; the third order denied plaintiffs' motion to file an amended complaint. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Plaintiffs Buell, Henry and Moffett were employed as paramedics by Clara Maass Medical Center ("Clara Maass"). The individual defendants held different managerial or supervisory positions at Clara Maass. Defendant Ann Marie Wertz was the Director of the Mobile Intensive Care Unit for Clara Maass, and defendant Michael Scovil was the Assistant Director. Defendant Karen Palatella was the Director of Emergency Services at Clara Maass, and defendant Joseph Dib, M.D., was the Medical Director of the Mobile Intensive Care Unit. Defendant Martin Marino was the former vice-president of Human Resources for Clara Maass.

Buell started his employment as a paramedic at Clara Maass in June 2000 and Moffett in April 2001. Henry started as a part-time paramedic in March 2001 and became a full-time employee in June 2002. Buell was terminated in May 2003, and Moffet and Henry were suspended in July 2003. In this litigation, they assert a variety of claims, including violations of the Conscientious Employee Protection Act ("CEPA"), N.J.S.A. 34:19-1 to -8, and the Law Against Discrimination ("LAD"), N.J.S.A. 10:5-1 to -49. In addition, Henry, who is gay, asserted a claim of hostile work environment.

I

Clara Maass operated two mobile intensive care units, one stationed in Belleville and a later-formed one stationed at West Hudson Hospital in Kearny. The Belleville unit was known as MIC 6 and the Kearny unit as MIC 7. The Belleville unit was the larger of the two. The units were staffed by paramedics, some of whom were full-time employees of Clara Maass, some of whom were part-time employees, and others who were hired on a per diem basis. Per diem employees worked on an as needed basis, with no set schedule, and did not receive benefits. Part-time and full-time paramedics worked on a regular schedule and did receive benefits.

Moffett originally started at Clara Maass as a per diem paramedic in or about April 2001 and became a part-time employee in or about December 2002. While working part-time at Clara Maass he remained a full-time paramedic at St. Clare's Hospital until his termination from that position following an incident that involved patient care. Moffett is the oldest of the three appellants; he was fifty-two years old when he started at Clara Maass in 2001. Buell was thirty-nine years old when he was terminated in 2003.

Both Buell and Moffett claim that they were the victims of age discrimination during their employment by Clara Maass. They both also claim that Clara Maass retaliated against them for alleged whistle-blowing activities.

Moffett in his deposition asserted various instances of age discrimination. He said that younger paramedics were offered opportunities to work overtime and that he was not. He said that a younger paramedic was a given supervisory position although he had more experience than the successful applicant. He also claimed that a younger paramedic was given a full-time position for which he had applied.

Moffett was not able to supply any specific details with respect to his claim of age discrimination in giving overtime. The supervisory position for which he applied was a full-time position as the supervisor of the MIC 7 unit. The job was given to Jeffrey Garrigan, who was some years younger than Moffett. Garrigan, however, had a bachelor's degree, while Moffett did not. Moffett had not completed high school; he later earned his GED. Garrigan also had taken courses in management and had some supervisory experience. In addition, Moffett made a comment during the interview which led the interviewers to conclude that he was more interested in the position because it was full-time than its supervisory aspects. As to his assertion that a younger paramedic was offered a full-time position while he was not, he admitted that he had been offered a full-time position but had declined it because that particular position would involve asking plaintiff Henry to switch her schedule, and he was reluctant to do so because she had experienced a number of changes to her schedule.

Moffett also asserted that he had been retaliated against for several incidents involving another paramedic, Esther Prikril. In June 2002 Moffett became aware of an incident in which Prikril, with her partner, responded to a call from the Hudson County Correctional Facility and allegedly refused to intubate an inmate because he was black. Moffett reported the incident to defendant Scovil, who told Moffett that he was aware of it, Prikril's partner having already informed him. The record before us does not indicate what disciplinary action, if any, was taken against Prikril following this report.

In October 2002, Henry worked a shift with Prikril. Henry reported to Moffett that Prikril told her during this shift that she had not intubated another inmate who was being transported to the Jersey City Medical Center. According to Henry, Prikril stated, "Well, hey, I got rid of another piece of shit for you guys." Moffett and Henry reported this incident by telephone to defendant Scovil. Again, the record before us does not indicate what disciplinary action, if any, was taken against Prikril following this second report.

Approximately two months later, Prikril told Henry that another paramedic, Robert Kane, had asked her to give him her supply of Percocet tablets, for which she had a prescription. Henry did not report this conversation. In January 2003, Prikril told Henry that she wished she had never given Kane the Percocet tablets. Henry told Moffett of this conversation and the two again notified Scovil by telephone. They also made an anonymous report to the corporate compliance hotline the hospital maintained. Prikril was fired the following day. Kane's termination quickly followed. Moffet and Henry alleged that following their reports about Prikril, their work was subjected to extra scrutiny.

Buell was thirty-six years old when he started at Clara Maass. His claims of age discrimination also involved the awarding of overtime. As did Moffett, Buell claimed that younger paramedics were given overtime shifts for which he was available. At his deposition, he identified the time period when this occurred as the summer of 2002 and December 2002 through May 2003. He also was unable to provide any specific instances. Buell's wife also worked as a paramedic at Clara Maass. He claimed that Clara Maas discriminated against him through its policy of prohibiting spouses from working together or relieving one another at the end of a shift.

Buell was terminated in May 2003. Defendants contend he was terminated because of his failure to adhere to the hospital's policies and protocols while responding to emergency calls. Buell had, on several occasions, been placed on a Performance Improvement Plan ("PIP") and was told at the time of the last PIP that if any further problems developed with his performance, he would be terminated. Buell contends he was unfairly punished for errors made by his partner, Kane, the same individual who asked for and obtained Percocet from Prikril. He also alleges he was terminated in retaliation for complaints he made at various times with respect to the hospital's failure to comply with what he perceived as necessary safety standards.

An example of the latter is the hospital's use of a Ford Crown Victoria automobile at the MIC 7 unit when it opened. The vehicle was not designed for use by paramedics and equipment would, on occasion, fly off the back shelf and hit the occupants. The hospital addressed this issue by arranging to have a metal "cage" installed between the front and rear seats, similar to that used in police vehicles. Following that installation, there were no further complaints in that regard.

Whether due to the design of the vehicle or the driveway apron at the MIC 7 facility, the bottom of the vehicle, including the gas tank, would scrape as it exited the MIC 7 premises. Buell saw this as a safety hazard and repeatedly complained. He pointed to reports of explosions and fires involving the gas tank on Crown Victoria models. Because of his concerns as to the safety of the vehicle, he eventually refused to use it beyond moving it from one parking place to another when necessary.

Buell also made periodic complaints about problems paramedics would encounter in using the medical communications equipment, which would occasionally fail to operate while they were responding to a call. Buell told Wertz that the medical communications equipment that Clara Maass was providing did not comply with the requirements of the Office of Emergency Medical Services of the New Jersey Department of Health.

Henry also had complaints about scheduling--that she was not placed on a regular schedule but subjected to constant changes and that when she became a full-time paramedic she was required to work alternating weekends while at least one part-time paramedic was excused from weekend duty. At her deposition, she did not directly ascribe that scheduling issue to her sexual orientation. She did, however, complain that one of her supervisors made a crude remark during a meeting at which she was voicing her concerns about her schedule. He subsequently apologized to her.

In the middle of 2002 there was an opening for a position as a full-time paramedic. Henry applied for the post and was selected over three male applicants.

Henry included in her complaint about a hostile work environment that she had been "forced to endure the presence of demeaning, inappropriate pornography" at the MIC 7 unit at which she was stationed. Henry was on duty on January 12, 2002, at MIC 7 when she received a phone call from defendant Wertz, who asked her assistance in removing a screen saver from one of the computers at the site. It was titled "Virtual Girl" and depicted a woman dancing across the screen while removing her clothing. Henry removed it as Wertz had asked her to do and saved it to a disc. In doing so, she came across a file for another screen saver referring to "naked chicks." She had no other contact with pornographic material on a work-related computer other than this. In her deposition she said that while working at MIC 7 she would come across pornographic magazines, evidently left by other paramedics who worked there. She gave no indication of the frequency with which this happened or whether she made any complaint to her superiors.

During the weekend of June 14, 2003, defendant Scovil received a telephone call from another paramedic, Jeremy Gussonini, who reported that he had found a handwritten note in a fax machine at MIC 7. It was written on paper headed "West Hudson Hospital" and stated it was directed to John Norton (plaintiffs' attorney), from Steve Moffett. It read as follows:

John,

I thought this may be usefull (sic) --

Garrigan MIC 7 Supv

&

Dean Snook -- new full time on call

Pt. Delay in transport x 27 min. Documented

Don't know if medivac was approved x medical controll [sic] as per policy

When Scovil came to work on Monday, he took custody of the fax machine and disassembled it and retrieved the ribbon. He and Wertz reviewed the ribbon and learned that a quantity of material had been faxed, including quality assurance reviews on paramedics, patient care records, patient billing sheets, and a confidential inventory for the administration of controlled substances and injectables that had been obtained from the pharmacy. The investigation also uncovered another handwritten note, again directed to John Norton from Steve Moffett. This note read as follows:

John,

Enclosed is the Versed policy as you can see there is no question as to the age of the patients that can recieve (sic) Versed -- 18 - Also Please find the Narc sheet where 5.0 mg of Versed were given to 16 y [male] by Jeff Garrigan

The note was signed "Steve."

Scovil and Wertz determined that Moffett and Henry were the only paramedics on duty at MIC 7 at the time these documents were faxed and that there was no legitimate business reason for these documents to have been faxed. Nor was there any legitimate business reason for Moffett or Henry to have had access to certain of these documents, such as the pharmacy inventory. Scovil prepared and sent to Palatella a memo summarizing what had been discovered and recommending termination for violating Clara Maass's policies on the confidentiality of patient records and the federal Health Insurance Portability and Accountability Act ("HIPAA") of 1996, Pub. L. No. 104-191, 110 Stat. 1936 (codified in scattered sections of 29 and 42 U.S.C.).

We note with respect to this issue certain provisions of the St. Barnabas Code of Conduct. The Code stated:

One of the most valuable tools we have in providing patient care is the information we receive from the patient about his or her medical history and current condition. This information is confidential and must be protected from disclosure. Disclosure of this type of information may violate an individual's right to privacy and may expose both the System and the individual involved to both civil and monetary penalties.

Those of you whose jobs expose you to confidential medical information must maintain the confidentiality of that information. Disclosure may only occur on a "need to know" basis. It is important, therefore, not to discuss confidential information in public areas or to release such information without the appropriate consent . . . .

On July 2, Moffett was interviewed by Palatella and a representative of the hospital's human resources department. He refused to provide any information about whether he had faxed any material and what that might be. He was then suspended and his locker was opened and searched. That suspension has never been rescinded.

Henry was also interviewed that day. While she denied faxing charts or policies, she did admit that she had copied policies. Henry's locker was opened and searched, and she was suspended for one day. She was not, however, docked any pay. That Henry was suspended for only one day while Moffett's suspension was open-ended was apparently due to the difference in how the two responded in their interviews, Moffett essentially refusing to discuss the matter, Henry admitting that she had photocopied certain documents while denying she had faxed anything.

In the interim, plaintiffs' complaint was filed on June 19, 2003. It alleged that defendants, in response to plaintiffs' efforts to alert the hospital to "serious operational and personnel issues" retaliated against them and subjected them to various acts of discrimination and created a hostile work environment. Plaintiffs then later filed an amended complaint seeking additional relief with respect to these suspensions.

On July 31, 2003, the trial court entered an order directing John Norton to deliver to defendants' counsel "all patient and hospital records . . . includ[ing] anything that was . . . copied or transmitted to . . . Norton . . . other than personnel manuals or policies." Further, the order directed that Norton was not permitted to retain copies of any of the documents to be returned. The order also directed that he prepare and serve at the same time a privilege log for any documents that he was not returning on the basis of attorney-client privilege.

While this litigation was pending, Clara Maass sold its mobile intensive care unit to Monmouth Ocean Hospital Service Corporation ("Monmouth Ocean"). The sale closed on September 12, 2004. Buell had been terminated by Clara Maass nearly a year earlier, and Moffett was suspended when the transaction occurred. Henry, who was an employee of Clara Maass at the time of the sale, became an employee of Monmouth Ocean, with no loss in compensation or benefits.

When this litigation commenced, it included a number of claims the dismissal of which plaintiffs do not contest on appeal. We do not consider it necessary within this opinion to set forth that entire procedural history because it does not bear upon the issues before us on appeal. Having reviewed this record, we consider two summary judgment motions to be pertinent. The first was plaintiffs' motion for partial summary judgment, seeking a declaration that Moffett's actions in sending material to Norton, his attorney, did not violate HIPAA. In January 2005 the trial court declined to grant that relief but did hold that the provisions of HIPAA did not preclude Moffett from asserting whatever claims he might have under CEPA. The second pertinent motion was defendants' motion for summary judgment which was granted in August 2006 and which led to this appeal. The first motion is pertinent to this appeal only to the extent that plaintiffs argue that the result of the first motion precluded the relief granted in the second.

II

We turn first to plaintiffs' argument that the trial court erred when it dismissed the claims they had asserted under CEPA, recognizing that we must view the evidence in the light most favorable to plaintiffs. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995).

N.J.S.A. 34:19-3, insofar as pertinent to this appeal,

prohibits an employer from taking retaliatory action against an employee where the employee:

a. Discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer, or another employer, with whom there is a business relationship, 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;

. . . .

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 constitutes improper quality of patient care.

In addition, the statute contains definitions that bear upon our analysis.

e. "Retaliatory action" means the discharge, suspension or demotion of an employee, or other adverse employment action taken against an employee in the terms and conditions of employment.

f. "Improper quality of patient care" means, with respect to patient care, 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.]

The purpose of CEPA is "to protect employees who report illegal or unethical workplace activities . . . to encourage employees to report illegal or unethical workplace activities and to discourage employers from engaging in such conduct." Fleming v. Correctional Healthcare, 164 N.J. 90, 96 (2000) (citations omitted). Because it is remedial legislation, the statute should be liberally construed. Id. at 96-97.

A plaintiff who brings a CEPA action pursuant to N.J.S.A. 34:19-3c must demonstrate that (1) he or she reasonably believed that his or her employer's conduct was violating a law, rule, or regulation promulgated pursuant to law, or a clear mandate of public policy; (2) he or she performed a "whistle-blowing" activity described in N.J.S.A. 34:19-3c; (3) an adverse employment action was taken against him or her; and (4) a causal connection exists between the whistle-blowing activity and the adverse employment action.

[Massarano v. N.J. Transit, 400 N.J. Super. 474, 488 (App. Div. 2008) (quoting Dzwonar v. McDevitt, 177 N.J. 451, 462 (2003)).]

Under N.J.S.A. 10:5-12(a), it is an unlawful employment practice for an employer to discriminate against an employee on the basis of age. Both Moffett and Buell asserted claims under LAD based on age discrimination.

"The 'burden shifting analysis under the Law Against Discrimination (LAD) should be applied to CEPA cases.'" Id. at 492 (quoting Zappasodi v. New Jersey Dept. of Corrections, 335 N.J. Super. 83, 89 (App. Div. 2000)). In Klein v. Univ. of Med. and Dentistry of N.J., 377 N.J. Super. 28, 38-39 (App. Div.), certif. denied, 185 N.J. 39 (2005), the court discussed the shifting burdens of production in a CEPA case.

A prima facie case of discriminatory retaliation under CEPA requires a plaintiff to demonstrate, in relevant part: (1) a reasonable belief that the employer's conduct was violating either a law, rule, regulation or public policy; (2) he or she performed a "whistle blowing" activity as described in N.J.S.A. 34:19-3a or c; (3) an adverse employment action was taken against him or her; and (4) a causal connection existed between his whistle-blowing activity and the adverse employment action. If a plaintiff is able to establish these elements, then the defendants must come forward and advance a legitimate, nondiscriminatory reason for the adverse conduct against the employee. If such reasons are proffered, plaintiff must then raise a genuine issue of material fact that the employer's proffered explanation is pretextual.

If the employer does advance a legitimate nondiscriminatory reason for its adverse action against an employee, the employee "has the ultimate burden of proving that the employer's proffered reasons were a pretext for the discriminatory action taken by the employer." Kolb v. Burns, 320 N.J. Super. 467, 478 (App. Div. 1999).

A different analysis applies in instances in which a plaintiff has proof of an employer's discriminatory animus. In such an instance of mixed motives, a heavier burden is imposed on the employer.

[T]the employee must produce direct evidence of discrimination. . . . If the employee does produce direct evidence of discriminatory animus, the employer must then produce evidence sufficient to show that it would have made the same decision if illegal bias had played no role in the employment decision.

[Fleming, supra, at 100 (quoting Starceski v. Westinghouse Electric Corp., 54 F.3d 1089, 1096 n.4 (3d Cir. 1995)).]

In the context of a CEPA mixed motives case, the employee must produce direct evidence of retaliation. If the employee does produce such direct evidence, the employer must produce sufficient evidence to demonstrate that it would have made the same employment decision even if retaliation had played no role in reaching that decision.

The trial court concluded that plaintiffs were unable to prevail on their CEPA and LAD claims, whether viewed as a pretext case or a mixed motives case. Plaintiffs contend on appeal that they have produced sufficient evidence to permit them to go forward under either theory. Having reviewed the record, we are satisfied that the trial court's conclusion was correct.

A

The claims of each plaintiff must be analyzed separately, and we take the claims of plaintiff Henry first for we agree with the trial court that she did not experience an adverse employment action that would trigger CEPA protections. "An adverse employment action involves some harm to an employee's employment opportunities." Caver v. City of Trenton, 420 F.3d 243, 256 (3d Cir. 2005) (quoting Nelson v. Upsala College, 51 F.3d 383, 388 n.6 (3d Cir. 1995)).

When the hospital learned that she might have been involved in the faxing of hospital records to the office of John Norton, she was suspended for one day. She was escorted from the premises, and her photograph was posted at various security points to alert those on duty that she was not permitted to enter. In addition, her locker was cut open and searched. She was, however, re-instated after one day and paid for the one day that she was suspended from duty. She remained employed by Clara Maass until the paramedic operation was sold to Monmouth Ocean, at which point she became an employee of Monmouth Ocean. She suffered no demotion in rank and no reduction in pay grade. She was not denied any pay raises. "The imposition of a minor sanction is insufficient to constitute a retaliatory action under the statute." Klein, supra, 377 N.J. Super. at 46.

While the experience may have been personally upsetting for her, "case law . . . strongly suggests that [a plaintiff's] emotional distress alone is not a cognizable injury within the CEPA context." Hancock v. Borough of Oaklyn, 347 N.J. Super. 350, 361 (App. Div. 2002), appeal dismissed, 177 N.J. 217 (2003). "[E]motional distress alone does not constitute a cognizable injury under CEPA." Borawski v. Henderson, 265 F. Supp. 2d 475, 487 (D.N.J. 2003). "[A]n investigation of an employee is not normally considered retaliation." Beasley v. Passaic County, 377 N.J. Super. 585, 606 (App. Div. 2005). Further, there is no indication in this record that the hospital conducted its investigation in an improper manner. The search of Henry's locker, for example, was in accordance with the provisions of the hospital's employee handbook which Henry received when she started her employment at Clara Maass. The trial court correctly granted summary judgment to defendants with respect to Henry's claims under CEPA.

B

We turn now to Buell's claims. Buell contends that he was terminated because he presented complaints about the safety of the Crown Victoria vehicle, because he reported problems with the medical communications equipment, and for reporting that paramedic Kane had improperly disposed of a morphine vial. These, he contends, constituted whistle-blowing activities and that his termination was thus actionable under CEPA. We disagree.

In our judgment, the overwhelming weight of the evidence demonstrates that Buell was eventually terminated for a history of problems with his clinical performance that spanned two and one-half years, and not for the issues he may have raised during the course of his employment.

All paramedics at Clara Maass were on probation during their first three months of employment. Buell's probationary period was extended because of issues that arose with respect to patient care, and on September 21, 2000, he was placed on a PIP. By that date, he had not voiced any complaints about the Crown Victoria. After completing that PIP, he eventually became a full-time paramedic at Clara Maass.

On February 15, 2002 he was placed on his second PIP because of issues with respect to patient care; specifically, that he had given an incorrect dosage of lidocaine to a cardiac patient who subsequently died. The Office of Emergency Medical Services presented charges against Buell as a result of this incident, which he chose not to contest; his license as a paramedic was suspended for ninety days.

Six months later, he was placed on a third PIP and informed that if any further problems developed, he would be terminated. Buell asserted that he was unfairly charged with problems respecting patient care that were the result of actions by his partner, Kane. In response, he was offered the opportunity to work with another partner. Buell refused, however, because that would involve moving from the night shift and losing the difference in pay for working the night shift.

To meet the concern that Buell was expressing, that any errors that may have occurred were due to Kane's actions and not his, the hospital revised its policy to require that the paramedic who spoke to medical control was to implement the orders received. The first revision addressed only Buell and Kane but became formal policy in November 2002.

We have earlier noted the incident involving Kane's receiving Percocet tablets from Prikril. When that came to light, Kane was terminated in January 2003. In May 2003 Buell was summoned to attend a meeting to discuss eighteen patient calls to which Buell had responded and which presented questions regarding the quality of patient care. All of the incidents occurred after the third PIP had been put in place, and eleven of those cases occurred after Kane had been terminated.

Buell's explanation was deemed inadequate with respect to fourteen of the eighteen cases. Buell's attempt to establish a CEPA claim under a pretext analysis was entirely insufficient.

Buell's attempt to establish a CEPA claim under a mixed motives analysis was similarly fruitless. Buell pointed to two incidents in support of a mixed motive claim: an alleged statement by Scovil in August 2002 to Kane that he had "other fish to fry," and a certification by paramedic Mahnfeldt that he had been told in early 2003 by paramedic McMahon that McMahon had heard Wertz tell Scovil, "We are going to get Scott Buell fired. We have Dr. Dibb [sic] on our side."

Neither is sufficient, whether separately or combined, to support a mixed motives claim. The alleged statement of August 2002 is too ambiguous and separated in time from Buell's termination in May 2003 to provide proof of discriminatory animus on defendants' part. The Mahnfeldt certification, moreover, provides no evidential support for Buell's CEPA claim. Apart from the fact that the time period referred to in the Mahnfeldt certification is dubious, Wertz having been on maternity leave at the time she is alleged to have made the statement, and the statement's double hearsay nature make it wholly inadmissible. The trial court correctly granted summary judgment to defendants on Buell's CEPA claims.

The same analyses and conclusions apply to Buell's claim of age discrimination under LAD.

C

We turn now to Moffett's claims. He argues that his failure to receive the appointment as the supervisor of the MIC 7 Unit, the reduction in working hours, and his ultimate suspension were retaliatory acts taken by defendants in response to his whistle-blowing activities: namely, his reports of Prikril's alleged complete abandonment of her responsibilities as a paramedic, her agreement to supply another paramedic with a controlled substance, and his report to his attorney of instances in which Clara Maass's mobile intensive care unit may not have complied with appropriate procedure, to the detriment of patient care.

We agree with defendants that insofar as Moffett's retaliation claim rests upon the fact that he did not receive the supervisory position, it is not supported by the record. The successful candidate, Garrigan, had a better educational background, had managerial experience and, during the interview process, seemed more interested in advancement than did Moffett. Plaintiffs failed to present any evidence that these asserted reasons were pretextual. For the same reasons, Moffett's age discrimination claim under LAD is similarly without legal merit.

We also agree with defendants that the record does not support an inference that defendants retaliated against Moffett because he reported Prikril. Moffett had been a per diem paramedic at the time of his first report. It was after he made that report to Scovil that he moved from per diem status to a part-time employee. And, even though a part-time employee, he worked approximately forty hours a week for the period between December 2002 and April 2003, after his next reports about Prikril. It is true that he then experienced a reduction in hours. That, however, corresponded with Wertz's return from maternity leave. While she had been out on leave, Garrigan had assumed more supervisory tasks and was not available to handle his regular paramedic shifts. With Wertz's return, Garrigan could return to his more usual duties, and there was not the need to have Moffett work the extra hours. And in February 2003, he was offered a position as a full-time employee; it was his decision to decline the offer.

We also reject Moffett's claim that his suspension, imposed in July 2003 following the discovery that confidential hospital documents had been faxed, was in contravention of CEPA. The legal basis for this assertion is plaintiffs' contention that HIPAA provides a "safe harbor" for Moffett's conduct. We disagree.

Plaintiffs point to 45 C.F.R. 164.502(j)(1). This regulation provides in pertinent part:

(j) Standard: Disclosures by whistleblowers and workforce member crime victims.

(1) Disclosures by whistleblowers. A covered entity is not considered to have violated the requirements of this subpart if a member of its workforce or a business associate discloses protected health information, provided that:

(i) The workforce member or business associate believes in good faith that the covered entity has engaged in conduct that is unlawful or otherwise violates professional or clinical standards, or that the care, services, or conditions provided by the covered entity potentially endangers one or more patients, workers, or the public; and

(ii) The disclosure is to:

(A) A health oversight agency or public health authority authorized by law to investigate or otherwise oversee the relevant conduct or conditions of the covered entity or to an appropriate health care accreditation organization for the purpose of reporting the allegation of failure to meet professional standards or misconduct by the covered entity; or

(B) An attorney retained by or on behalf of the workforce member or business associate for the purpose of determining the legal options of the workforce member or business associate with regard to the conduct described in paragraph (j)(1)(i) of this section.

In our judgment, this regulation does not provide the protection plaintiffs seek. We note first that the regulation, by its terms, protects the entity, i.e., Clara Maass, not individuals. Additionally, the record does not support plaintiffs' assertion that at the time the fax incident occurred, defendants were on notice that attorney Norton represented Moffett and Henry. The references to the record plaintiffs supply for this proposition indicate that Norton had communicated with Clara Maass as early as October 2002 on behalf of plaintiff Scott Buell and his wife, Joellen Buell. Plaintiffs have not pointed us to any specific reference in this record of a similar communication on behalf of Moffett. Further, even if the regulatory provision could be interpreted to provide some shelter for Moffett, the hospital would still have been entitled to investigate what on its face was a blatant violation of its own policies on confidentiality. Moffett persisted in his refusal to answer questions about this incident until the second day of his deposition, in November 2004. By that time, the sale to Monmouth Ocean had been completed and Clara Maass no longer employed paramedics in a mobile intensive care unit.

We are also satisfied that Moffett did not present sufficient evidence to proceed on a CEPA claim on a theory of mixed motive. In support of that, Moffett points to one portion of his deposition, in which he recites that Scovil had allegedly

bragged to the fact that he had a sniper rifle identical to the D.C. sniper, that he was quite proficient with it, he also told someone that he could end this litigation very quickly with that rifle.

This statement suffers from the same evidential infirmity as the Mahnfeldt certification we referred to earlier; it is wholly inadmissible hearsay. Further, Moffett's answer places the statement as having been made after this litigation commenced. It is not relevant to proving defendants' motivation before the start of litigation. The trial court correctly dismissed Moffett's CEPA and LAD claims.

III

Plaintiffs present two remaining issues: that the trial court should have granted them leave to amend their complaint and that it improperly dismissed plaintiff Henry's claim of a hostile work environment. We address this latter issue first.

A

We have earlier set forth in this opinion various actions that Henry contended created a hostile work environment. An employer may be held responsible under LAD for such a hostile work environment.

In any LAD-based hostile environment claim, the plaintiff must demonstrate that: (1) the conduct complained of was unwelcome; (2) that it occurred because of the plaintiff's inclusion in a protected class under the LAD; and (3) that a reasonable person in the same protected class would consider it sufficiently severe or pervasive to alter the conditions of employment and create an intimidating, hostile, or offensive work environment. Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 603-04 (1993). Our review of a hostile work environment claim requires us to consider the totality of the circumstances. See id. at 607; Mandel v. UBS/PaineWebber, Inc., 373 N.J. Super. 55, 73 (App. Div. 2004).

[El-Sioufi v. St. Peter's University Hospital, 382 N.J. Super. 145, 178 (App. Div. 2005).]

Henry's complaints as to discrimination were all contained within the complaint, her answers to interrogatories, and her deposition. After defendants filed their motion for summary judgment, Henry filed an opposing certification, in which she recited a variety of additional complaints of instances she said created a hostile work environment. That certification was directly at odds with her earlier deposition testimony, in which she clearly stated in response to a series of questions that neither the individual nor the entity defendants had discriminated against her because of her sexual orientation. Her answers at her deposition were clear and unequivocal.

The trial court reviewed her later-submitted certification and rejected it as a sham affidavit.

The very object of the summary judgment procedure then is to separate real issues from issues about which there is no serious dispute. Sham facts should not subject a defendant to the burden of a trial. The determination that an offsetting affidavit creates only a sham factual dispute is squarely within the trial court's authority at the summary judgment stage, when the court is required to evaluate, analyze, and sift evidence to determine whether the evidential materials, when viewed in the light most favorable to the opposing party, would permit a rational factfinder to resolve the issue in favor of the opposing party. See Brill, supra, 142 N.J. at 540. That rule does not intrude on the function of the jury because it does not require the trial court to determine credibility, or to determine the relative weight of conflicting evidence. We are confident that trial courts have the ability to distinguish sham affidavits from affidavits that raise a genuine issue of material fact. . . .

Accordingly, the sham affidavit doctrine calls for the trial court to perform an evaluative function that is consistent with our holding in Brill. When not applied mechanistically to reject any and all affidavits that contain a contradiction to earlier deposition testimony, the doctrine requires a court to evaluate whether a true issue of material fact remains in the case notwithstanding an affiant's earlier deposition testimony. The Appellate Division has applied the doctrine in the past, as do we for the first time here . . . . Critical to its appropriate use are its limitations. Courts should not reject alleged sham affidavits where the contradiction is reasonably explained, where an affidavit does not contradict patently and sharply the earlier deposition testimony, or where confusion or lack of clarity existed at the time of the deposition questioning and the affidavit reasonably clarifies the affiant's earlier statement.

[Shelcusky v. Garjulio, 172 N.J. 185, 200-

02 (2002).]

The trial court in its opinion carefully reviewed the various discrepancies between Henry's deposition testimony and her later certification. We find no abuse of the court's discretion in rejecting this certification.

B

The final issue is whether plaintiffs should have been granted leave to amend their complaint to assert claims against the attorneys representing defendants in this litigation. In their proposed amended complaint, plaintiffs sought to assert claims of tortious interference with prospective economic advantage, defamation, fraud, violation of CEPA, negligence, respondeat superior and negligent supervision against Mark J. Blunda, Esq., and his law firm, Appruzzese, McDermott, Mastro & Murphy. This was the subject of a separate motion, heard by the trial court nearly eight months prior to the trial court's decision on defendants' motion for summary judgment.

The trial court issued a comprehensive letter opinion, analyzing each of the particular claims and setting forth its reasons for concluding that each lacked legal merit. It thus denied the motion to amend.

Plaintiffs on appeal stress the general principle that leave to amend a complaint ordinarily should be freely granted. Franklin Med. V. Newark Public Sch., 362 N.J. Super. 494, 506 (App. Div. 2003); Zacharias v. Whatman PLC, 345 N.J. Super. 218, 226 (App. Div. 2001), certif. denied, 171 N.J. 444 (2002); R. 4:9-1. It rests within the trial court's sound discretion, however, whether to grant a motion to amend when it is apparent that the proposed amendment is meritless. Notte v. Merchants Mut. Ins. Co., 185 N.J. 490, 501 (2006).

 
We affirm the trial court's denial of the motion to amend substantially for the reasons expressed by Judge Patricia K. Costello in her letter opinion of January 24, 2006.

The orders under review are affirmed.

Plaintiffs have not briefed this issue, and it is therefore waived. Zavodnick v. Leven, 340 N.J. Super. 94, 103 (App. Div. 2001).

The order granted summary judgment on all claims save the retaliation claim of plaintiff Henry; that claim was subsequently dismissed with prejudice pursuant to a consent order for purposes of finality.

That termination occurred after the events underlying this litigation.

The record before us contains a notification from the Department of Health and Senior Services to Kane, summarily suspending his certification; according to this notification, Clara Maass had suspended him for incidents involving improper disposal of medication and failing a drug screen.

Clara Maass Medical Center was a part of the St. Barnabas Health Care System, and the Code of Conduct promulgated by St. Barnabas governed employees of Clara Maass as well. Each of the plaintiffs had received a copy of this Code of Conduct at the start of employment.

The employee handbook for Clara Maass stated in pertinent part, that the hospital premises "and all property owned by Clara Maass Medical Center are subject to observation, surveillance and inspection at any time without prior notice" and that employees' lockers could "be opened and inspected periodically without prior notice . . . in the presence of the employee, or in the presence of the employee's supervisor or manager if the employee is not working during the time of inspection." It also provided that employees were subject to disciplinary action for the "[u]nauthorized possession, use, copying, or reading of hospital records or disclosure of information contained in such records to unauthorized persons."

(continued)

(continued)

32

A-2592-06T2

September 12, 2008