NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1532-23
SHARON HUSSAIN,
Plaintiff-Appellant,
v.
ALLIES, INC., JUANITA SMULLEN, TRACEY WILSON, ANNE KREEGER, ANITA BOGDEN, CHRISTINE COCUSO, and ERICA HILL,
Defendants-Respondents. ____________________________
Argued February 26, 2025 – Decided April 21, 2025
Before Judges Berdote Byrne, Jacobs and Jablonski.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1898-22.
Peter D. Valenzano argued the cause for appellant (McOmber McOmber & Luber, PC, attorneys; Peter D. Valenzano and R. Armen McOmber, of counsel and on the briefs; and Tifffany M. Yacullo, on the briefs). Michael R. Miller argued the cause for respondents (Margolis Edelstein, attorneys; Michael R. Miller, and Ryan P. Dickinson, of counsel and on the brief).
PER CURIAM
Plaintiff appeals from the trial court's order granting defendants' Rule 4:6-
2(e) motion, dismissing her Conscientious Employee Protection Act, N.J.S.A.
34:19-1 to -14 ("CEPA") and common law wrongful termination claims with
prejudice, for failure to state claims upon which relief may be granted, and
denying her cross-motion for leave to file an amended complaint.
While working in defendants' group homes for developmentally disabled
individuals, plaintiff voiced concerns to her supervisors regarding her belief
defendants were violating N.J.A.C. 10:44A-2.8(b) and N.J.A.C. 10:44A-2.7(a),
administrative regulations pertaining to staffing and medical training. At an
unspecified time after relaying these concerns, plaintiff asserts her requests for
paid time off ("PTO") were improperly denied, leading her to file a complaint
with the New Jersey Department of Labor and Workplace Development
("DOL"). Defendants then placed plaintiff on a disciplinary "development
plan," and at a meeting to discuss this plan, terminated plaintiff.
Plaintiff brought a claim in the Law Division alleging her termination was
in retaliation for her grievances regarding defendants' alleged violations of
A-1532-23 2 N.J.A.C. 10:44A-2.8(b) and N.J.A.C. 10:44A-2.7(a), and for filing a DOL
complaint regarding her PTO. Plaintiff's two-count complaint asserted
defendants' actions amounted to whistleblower retaliation in violation of the
CEPA, and common law wrongful termination.
Defendants moved to dismiss for failure to state claims upon which relief
may be granted, which the trial court granted, dismissing plaintiff's complaint
with prejudice. The trial court also denied plaintiff's cross-motion for leave to
file an amended complaint. We reverse, applying the permissive standard
afforded to plaintiff in the pleading stage by Printing Mart-Morristown v. Sharp
Electronics Corp., 116 N.J. 739 (1989), and find plaintiff has adequately pled
facts in her complaint setting forth prima facie CEPA and common law wrongful
termination.
I.
The following facts are gleaned from the scant record on appeal, a product
of this matter having been dismissed at the pleading stage, and are primarily
reproduced in pertinent part from plaintiff's complaint, which we must accept as
true for purposes of this appeal. See Sparroween, LLC v. Twp. of W. Caldwell,
452 N.J. Super. 329, 339 (App. Div. 2017) ("When reviewing a motion to
A-1532-23 3 dismiss under Rule 4:6-2(e), we assume the allegations are true and afford the
pleader all reasonable inferences.").
Plaintiff was hired by defendants in September 2020, as a Support
Manager working in defendants' group homes for developmentally disabled
individuals. Plaintiff believed defendants were in violation of N.J.A.C. 10:44A-
2.8(b) because they "did not have a policy in place regarding proper ratio of staff
members to individuals" living in the group homes. Plaintiff voiced these
concerns to her supervisors, who responded by informing plaintiff there was no
proscribed staff-to-resident ratio set forth in the regulation. Plaintiff also
expressed concerns with staff being sent from one group home to another to
accommodate understaffing issues. She claims her concerns were disregarded.
As a Support Manager, plaintiff was also responsible for assisting Direct
Support Professionals ("DSPs") in caring for individuals living in defendants'
group homes. Plaintiff alleges DSPs mentioned to her they were not trained to
take a resident's blood sugar, a task DSPs were responsible for, although she
does not assert which DSPs voiced these concerns to her or when. This
information supported plaintiff's belief that defendants were in violation of
N.J.A.C. 10:44A-2.7(a). She reported this concern to her supervisors. Plaintiff
also expressed her concern regarding the way DSPs were being trained,
A-1532-23 4 specifically that their training was primarily delegated to watching videos. As
with her grievances about the staff-to-resident ratio, plaintiff alleges these
concerns were also disregarded.
On an unspecified date after reporting her concerns to her supervisors,
plaintiff was denied PTO to which she believed she was entitled. Despite being
denied by the first supervisor she spoke with, plaintiff persisted and requested
time off from a second supervisor because she believed the first supervisor was
incorrect. However, this second supervisor also denied plaintiff's PTO request.
Believing she had PTO remaining, and that this second refusal was also in error,
plaintiff inquired further with an individual in the payroll department. This third
inquiry was successful, as the payroll department informed plaintiff she did have
PTO remaining and granted her request. Plaintiff was then granted PTO.
Plaintiff thereafter filed a complaint with the DOL regarding the two initial
denials of her PTO requests. 1
At an unspecified time after filing her DOL complaint, plaintiff was
placed on a disciplinary "development plan." On March 25, 2022, plaintiff had
a meeting with defendants to address this plan. During the meeting, defendants
1 Plaintiff has not provided the DOL complaint as part of the record on appeal. Consequently, the date plaintiff filed the DOL complaint and the DOL complaint's contents are unknown. A-1532-23 5 told plaintiff she was being disciplined for two write-ups existing on her
disciplinary record. In response, plaintiff informed defendants the two write-
ups had been proven false and should have been removed from her disciplinary
record. In addition to the two write-ups, defendants showed plaintiff a
photograph of her smoking, in violation of defendants' new non-smoking policy.
When Plaintiff attempted to explain to defendants that the photograph was taken
before the new non-smoking policy went into effect, defendants told plaintiff
she had an "aggressive demeanor" and terminated her.
Plaintiff filed a two-count complaint on November 1, 2022, alleging
whistleblower retaliation in violation of CEPA and common law wrongful
discharge contrary to Pierce. Plaintiff alleges her termination was pretextual
and in retaliation for filing a DOL complaint and for airing her grievances to
defendants regarding their alleged violations of N.J.A.C. 10:44A-2.8(b) and
N.J.A.C. 10:44A-2.7(a).
Defendants filed a motion to dismiss for failure to state claims upon which
relief may be granted pursuant to Rule 4:6-2(e). Plaintiff then filed a cross-
motion to amend her complaint. After oral argument, the trial court granted
defendants' motion to dismiss on January 10, 2024, dismissing plaintiff's
complaint with prejudice, and denying plaintiff's cross-motion to file an
A-1532-23 6 amended complaint. The trial court reasoned plaintiff's complaint neither
established that defendants' actions had a substantial nexus to the law or public
policy plaintiff had identified, nor that plaintiff's termination violated a clear
mandate of public policy.
II.
We review motions to dismiss brought pursuant to Rule 4:6-2(e) de novo.
Baskin v. P.C. Richard & Son, LLC, 246 N.J. 157, 171 (2021). In considering
a Rule 4:6-2(e) motion, we examine "'the legal sufficiency of the facts alleged
on the face of the complaint,'" giving the plaintiff the benefit of "'every
reasonable inference of fact.'" Dimitrakopoulos v. Borrus, Goldin, Foley,
Vignuolo, Hyman & Stahl, PC, 237 N.J. 91, 107 (2019) (quoting Printing Mart-
Morristown, 116 N.J. at 746). "The test for a Rule 4:6-2(e) motion is 'whether
a cause of action is suggested by the facts.'" Maia v. IEW Const. Grp., 257 N.J.
330, 341 (2024) - (quoting Printing Mart-Morristown, 116 N.J. at 746) (internal
quotation marks omitted); see also Pace v. Hamilton Cove, 258 N.J. 82, 96
(2024) ("The plaintiff is entitled to the benefit of every reasonable inference as
we 'search[] the complaint in depth and with liberality to ascertain whether the
fundament of a cause of action may be gleaned even from an obscure statement
of claim, opportunity being given to amend if necessary.'" (alteration in original)
A-1532-23 7 (quoting Printing Mart-Morristown, 116 N.J. at 746)). Admittedly, this is an
"indulgent standard," see Green v. Morgan Properties, 215 N.J. 431, 456 (2013),
wherein we affirm dismissals pursuant to Rule 4:6-2(e) "'in only the rarest of
instances.'" Mack-Cali Realty Corp. v. State, 250 N.J. 550, 553 (2022) (quoting
Printing Mart-Morristown, 116 N.J. at 772 (1989)).
Plaintiff contends on appeal the trial court erred in dismissing her
complaint for failure to state claims upon which relief may be granted pursuant
to Rule 4:6-2(e) because she has adequately pleaded facts to establish a prima
facie CEPA and a common law wrongful termination claims, each grounded in
a reasonable belief that she was terminated for raising concerns regarding
defendants' alleged violations of N.J.A.C. 10:44A-2.5(b) and N.J.A.C. 10:44A-
2.7(a)2 and her filing of a DOL complaint. In response, defendants argue
plaintiff's complaint does not plead facts supporting a reasonable belief they
violated N.J.A.C. 10:44A-2.5(b) and N.J.A.C. 10:44A2.7(a), and defendants'
initial withholding of plaintiff's PTO was not an act of retaliation but an error
that was rectified without any harm to plaintiff. Defendants further contend
2 The language in N.J.A.C. 10:44A-2.5(b) and N.J.A.C. 10:44A-2.7(a) has been substantively revised since plaintiff filed her complaint. For the purposes of this appeal, our analysis of N.J.A.C. 10:44A-2.5(b) and N.J.A.C. 10:44A-2.7(a) refer to the then-current versions of these regulations.
A-1532-23 8 plaintiff should not be granted leave to amend her complaint because the
proposed amended complaint fails to address those errors.
A. Plaintiff's CEPA Claim.
"The Legislature enacted CEPA to 'protect and encourage employees to
report illegal or unethical workplace activities and to discourage public and
private sector employers from engaging in such conduct.'" Dzwonar v.
McDevitt, 177 N.J. 451, 461 (2003) (quoting Abbamont v. Piscataway Twp. Bd.
of Educ., 138 N.J. 405, 431 (1994)). "The statute 'shields an employee who
objects to, or reports, employer conduct that the employee reasonably believes
to contravene the legal and ethical standards that govern the employer's
activities.'" Allen v. Cape May Cty., 246 N.J. 275, 289 (2021) (quoting
Hitesman v. Bridgeway, Inc., 218 N.J. 8, 27 (2014)).
In pertinent part, the statute provides:
An employer shall not take any retaliatory action against an employee because the employee does any of the following:
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:
A-1532-23 9 (1) is in violation of a law, or a rule or regulation promulgated pursuant to law ....
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]
(3) is incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment.
[N.J.S.A. 34:19-3(a), (c).]
The statute also protects "an employee who is a licensed or certified health
care professional" who performs a whistleblowing activity in response to
employer conduct "reasonably believe[d] [to] constitute[] improper quality of
patient care." See N.J.S.A. 34:19-3(a)(1), (b), and (c)(1). Although plaintiff
cites this language in her brief as authority, it is inapplicable to her because she
does not assert in her complaint that she is a "licensed or certified health care
professional."
A-1532-23 10 A plaintiff bringing a CEPA claim 3 must demonstrate:
(1) he or she reasonably believed that his or her employer's conduct was violating either 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- 3[]; (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.
[Dzwonar, 177 N.J. at 462.] "CEPA is remedial legislation and therefore 'should be construed liberally
to effectuate its important social goal.'" Dzwonar, 177 N.J. at 463 (quoting
Abbamont, 138 N.J. at 431). Accordingly, a plaintiff bringing a CEPA claim is
not required to prove their employer actually violated any law, rule, regulation,
or clear mandate of public policy to be successful; the plaintiff must merely
"show that he or she 'reasonably believes this to be the case.'" Id. at 462 (quoting
Estate of Roach v. TRW, Inc., 164 N.J. 598, 613 (2000) (internal quotation
3 Plaintiff's complaint does not clarify whether she is bringing her claim pursuant to N.J.S.A. 34:19-3(a) or (c). However, this failure is inconsequential for purposes of this appeal as these two provisions are similar and differ only in the "whistleblowing activity" the employee took part in. Compare N.J.S.A. 34:19-3(a) with N.J.S.A. 34:19-3(c). Moreover, the issue on appeal is not whether plaintiff engaged in a proper "whistleblowing activity," but whether she held a sufficient "reasonable belief" to plead a valid CEPA claim, which is a requirement shared by both N.J.S.A. 34:19-3(a) and (c). A-1532-23 11 marks omitted)); see also Mehlman v. Mobil Corp., 153 N.J. 163, 193-94 (1998)
(CEPA is not intended "to make lawyers out of conscientious employees but
rather to prevent retaliation against those employes who object to employer
conduct that they reasonably believe to be unlawful or indisputably dangerou s
to the public health, safety[,] or welfare").
To be sure, plaintiff must "set forth facts that would support an objectively
reasonable belief that a violation has occurred." Dzwonar, 177 N.J. at 464; see
also Chiofalo v. State, 238 N.J. 527, 543 (2019) ("[T]rial courts 'must be alert
to the sufficiency of the factual evidence and to whether the acts complained of
could support the finding that the complaining employee's belief was a
reasonable one,' and 'must take care to ensure that the activity complained about
meets this threshold.'" (quoting Battaglia v. United Parcel Serv., Inc., 214 N.J.
518, 558 (2013))). This requires a trial court, considering a motion to dismiss a
plaintiff's CEPA claim pursuant to Rule 4:6-2(e) to "make a threshold
determination that there is a substantial nexus between the complained -of
conduct and a law or public policy identified by the court or the plaintiff."
Dzwonar, 177 N.J. at 464. Therefore, "the trial court must identify a statute,
regulation, rule, or public policy that closely relates to the complained -of
A-1532-23 12 conduct," and "should enter judgment for a defendant when no such law or
policy is forthcoming." Id. at 463.
We disagree with the trial court that plaintiff has not met the threshold
requirement of establishing a prima facie CEPA claim, especially in light of the
liberality in which we address claims at the pleading stage and conclude the trial
court read the pleading too narrowly. Plaintiff's grievances to her supervisors
may amount to whistleblowing activity sufficient to satisfy the second prong of
CEPA, see N.J.S.A. 34:19-3(a), (c). Plaintiff was also terminated, which
amounts to an adverse employment action sufficient to satisfy prong three of
CEPA, see N.J.S.A. 34:19-2(e), and plaintiff's assertion she was terminated
because of her grievances to defendants sufficiently pleads a causal connection
between her whistleblowing activity and alleged adverse employment action to
satisfy prong four of CEPA. see Dzwonar, 177 N.J. at 462.
We conclude plaintiff's complaint has sufficiently pled that she held a
reasonable belief defendants were "violating either a law, rule, or regulation
promulgated pursuant to law, or a clear mandate of public policy" to satisfy
prong one of CEPA based on her belief defendants had violated then-current
N.J.A.C. 10:44A-2.7(a). See Dzwonar, 177 N.J. at 462. At the time of the
complaint, N.J.A.C. 10:44A-2.7(a) provided:
A-1532-23 13 Basic staff training programs shall either be offered by the Division [of Developmental Disabilities], or provided by the licensee after obtaining approval from the Division, to ensure staff competency. Within [one- hundred-twenty] days of employment, each employee shall successfully complete New Jersey Pre-Service Training that shall address, at a minimum:
1. Overview of developmental disabilities;
2. Medication training;
3. Preventing abuse and neglect;
4. American Red Cross Standard First Aid Training (and have a valid certificate on file); and
5. Cardiopulmonary resuscitation training (and have a valid certificate on file).
[N.J.A.C. 10:44A-2.7(a) (2022) (amended 2023).]
Plaintiff alleges the DSPs "were never trained properly and . . . did not know
how to do things such as test an individual's blood sugar; a task DSPs are
responsible for [conducting]." Training DSPs to monitor blood sugar may
arguably be considered medication training pursuant to N.J.A.C. 10:44A-
2.7(a)(1), because the results may require the administration of insulin, or
preventing neglect pursuant to N.J.A.C. 10:44A-2.7(a)(1), because the failure to
timely and correctly check blood sugar may amount to neglect. Moreover,
A-1532-23 14 N.J.A.C. 10:44A-2.7(b)4 requires defendants to provide "training in all policies
and procedures not covered during orientation which are relevant to the
employee's job," and plaintiff's contention the DSPs were not adequately trained
in an area where testing was required of them suggests a "fundament of a cause
of action" likely to be assisted by further discovery, and worthy of surviving the
pleading stage. See Printing Mart-Morristown, 116 N.J. at 746.
B. Plaintiff's Common Law Claim.
Likewise, we reverse dismissal of plaintiff's complaint and remand the
matter to the trial court because we conclude plaintiff has sufficiently pled a
prima facie common law claim for wrongful discharge. A common law cause
of action for retaliatory discharge was first recognized in the seminal Supreme
Court case of Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58 (1980). Pierce
provides a plaintiff with "a cause of action for wrongful discharge when the
discharge is contrary to a clear mandate of public policy." 84 N.J. at 72. "The
4 Although plaintiff's complaint does not refer to N.J.A.C. 10:44A-2.7(b), we may consider this provision to determine whether she held a reasonable belief defendants were violating a law, rule, or regulation to state a claim upon which relief may be granted. See Chiofalo, 238 N.J. at 541 ("[E]ither 'the court or the plaintiff' must identify the statute, regulation, rule, or public policy that closely relates to the complained-of conduct" to establish a prima facie CEPA claim (quoting Dzwonar, 177 N.J at 464)).
A-1532-23 15 sources of public policy include legislation; administrative rules, regulations or
decisions; and judicial decisions." Ibid. "However, not all such sources express
a clear mandate of public policy." Ibid.; see also Macdougall v. Weichert, 144
N.J. 380, 391 (1996) ("A basic requirement of the wrongful discharge cause of
action is that the mandate of public policy [must] be clearly identified and firmly
grounded.").
"Like the CEPA remedy to which it gave rise, [common law wrongful
discharge claims] require[] . . . an expression by the employee of a disagreement
with a corporate policy, directive, or decision based on a clear mandate of public
policy derived from [legislation, administrative rules, or judicial decisions]."
Tartaglia v. UBS PaineWebber, Inc., 197 N.J. 81, 109 (2008). A plaintiff must
show "a sufficient expression of that disagreement to support the conclusion that
the resulting discharge violates the mandate of public policy and is wrongful."
Ibid.
Unless a plaintiff can sufficiently show their discharge was contrary to a
clear mandate of public policy, "[a]n employer remains free to terminate an at -
will employee who engages in grousing or complaining about matters falling
short of [this standard] or who otherwise interferes with the ordinary operation
of the workplace by expressions of personal views on matters of no real
A-1532-23 16 substance." Ibid.; see also, Pierce, 84 N.J. at 72 ("[U]nless an employee at will
identifies a specific expression of public policy, he may be discharged with or
without cause."). Likewise, "[b]aseless [grievances] or expressions of purely
personal views about the meaning of public policies will not meet the test for a
clear mandate regardless of the manner or mode in which they are voiced."
Tartaglia, 197 N.J. at 110 (internal quotation marks omitted). However, at the
pleading stage, plaintiff has sufficiently set forth facts which may support her
allegation that her termination was an adverse employment action taken because
she filed a complaint with the DOL or expressed concern regarding violations
of N.J.A.C. 10:44A-2.7(a).
Although CEPA and Pierce "ha[ve] continued to exist side by side with"
one another, Tartaglia, 197 N.J. at 103, CEPA includes a waiver provision which
precludes a plaintiff from bringing a common law action for wrongful discharge
if the plaintiff institutes a CEPA claim challenging the discharge, see N.J.S.A.
34:19-8; see also Young v. Schering Corp., 141 N.J. 16, 27-31 (1995). However,
we have interpreted this rule to apply only after the plaintiff has had the
opportunity to complete discovery when she is "in a position to make a knowing
and meaningful election" of remedies. Maw v. Advanced Clinical Commc'ns,
A-1532-23 17 Inc., 359 N.J. Super. 420, 441 (App. Div. 2003), rev'd on other grounds, 179
N.J. 439 (2004).
Plaintiff's complaint asserts she "reported and complained about
[d]efendants' unlawful behavior"—including her grievances to defendants about
their alleged violations of N.J.A.C. 10:44A-2.5(b) and N.J.A.C. 10:44A-2.7(a)
and her DOL complaint—and was terminated as a result. When analyzing these
allegations to determine if plaintiff had sufficiently pleaded that she was
discharged in violation of a "clear mandate of public policy" pursuant to Pierce,
the trial court construed plaintiff's complaint too narrowly and did not
adequately apply the liberal standard it must employ.
Plaintiff's complaint suggests a "fundament of a cause of action" as to her
allegation of defendants' improper training may prove to be a violation of
N.J.A.C. 10:44A-2.7(b). In this case, an employee's termination for reporting
an employer's action they reasonably believed violated N.J.A.C. 10:44A-2.7(b)
establishes a "clear mandate of public policy" because that provision dictates the
necessary training for staff caring for developmentally disabled individuals,
rules which are sufficiently "clearly identified and firmly grounded" as they
ensure developmentally disabled individuals are cared for properly. See
Macdougall, 144 N.J. at 391; N.J.A.C. 10:44A-1.1 ("The purpose of [Title 10,
A-1532-23 18 Chapter 44A of the N.J.A.C.] is to establish minimum requirements for the
provision of residential services to people with developmental disabilities.").
Therefore, we reverse the trial court's dismissal of Counts I and II as
plaintiff had adequately stated claims upon which relief may be granted pursuant
to CEPA and the common law. We reinstate her complaint, permitting her to
amend as permitted by the rules of court. We take no position as to the ultimate
viability of any of plaintiff's claims.
Reversed and remanded. The complaint is reinstated. We do not retain
jurisdiction.
A-1532-23 19