As we previously posted here, the New Jersey Appellate Division ruled in a March 2013 decision that a nurse could not prove his Conscientious Employee Protection Act ("CEPA") whistleblower case because his complaints were based on a professional code of ethics that applied to him but not his employer. On June 16, 2014, the New Jersey Supreme Court affirmed that decision.
The plaintiff, James Hitesman, worked as a registered nurse for
Bridgeway Care Center, a long-term nursing care facility. In
January 2008, he sent emails to various management personnel at the
facility, complaining of what he described as a spreading epidemic
among patients. When the nursing home did not respond to
Hitesman's satisfaction, he contacted various boards of health,
using fictitious names, and raised similar concerns. He later
contacted a local news agency to report the "untreated
epidemic." Hitesman even provided a reporter with
administrative logs from the facility, containing confidential
patient information that he failed to completely redact. Bridgeway
then met with Hitesman, at which point he admitted to contacting
government agencies and the news media outlet and to releasing the
administrative logs.
Bridgeway terminated Hitesman a few days later for violating
patient privacy. Hitesman sued under CEPA, claiming that he
reasonably believed Bridgeway engaged in improper patient care and
acted contrary to a clear mandate of public policy. In support of
his CEPA claim, Hitesman alleged that Bridgeway's conduct
violated the American Nurses Association (ANA) code of ethics,
Bridgeway's employee handbook, and a bill of rights that
Bridgeway provides to its patients.
After a jury found in favor of Hitesman, the Appellate Division
reversed, noting that Hitesman's mere disagreement with the
care patients received did not establish a violation under CEPA.
Additionally, the Appellate Division found that Hitesman's
references to the ANA code of ethics could not support his CEPA
claim since the code applied to him and not the facility. Hitesman
also could not rely upon the company's internal handbook or
patients' bill of rights to establish his CEPA claim. None of
the documents set forth a standard to measure the adequacy of
patient care.
The Supreme Court agreed with the Appellate Division. The Supreme
Court made clear that CEPA required Hitesman to cite some authority
either to establish that Bridgeway engaged in "improper
quality of patient care" or that set forth a "clear
mandate of public policy." The "authority" required
to support a claim of "improper quality of patient care"
must be "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."
Similarly, the "authority" underlying a "public
policy" claim must be "a source of law or other
authority, constituting an expression of public policy, that sets a
governing standard for the defendant employer's conduct."
The public policy must also be "clearly identified and firmly
grounded." The Supreme Court stated that there must also be a
"substantial nexus" between the conduct underlying the
whistleblowing claim and the authority cited by Hitesman.
Here, the Supreme Court found that Hitesman failed to meet his
burden. With respect to the ANA code of ethics, the Court noted
that it was not a law or authority bearing a "substantial
nexus" to Bridgeway's conduct. It included no standards
governing the basis of Hitesman's complaint – infection
control in a nursing home. Rather, it indicated only how a nurse
should react to deficient patient care in a nursing home.
The Supreme Court also agreed that Bridgeway's handbook and
its patients' bill of rights could not support Hitesman's
CEPA claims, as they neither provided a governing standard for
Bridgeway's response to infectious diseases nor set forth any
clear mandate of public policy.
The Supreme Court's ruling buttresses the ability of employers
to require employees who bring CEPA lawsuits to articulate a clear
law, rule, or regulation as the basis of the whistleblowing
conduct. Employers should, however, continue to ensure that
employees who raise complaints of potential misconduct are treated
carefully and fairly.
Originally published on the Employer's Law Blog
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