NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0795-20
TAMARA SEPULVEDA, and LUIS DELEON,
Plaintiffs-Appellants,
v.
TOWNSHIP OF NORTH BERGEN, and DEPUTY CHIEF PRINA,
Defendants-Respondents. _____________________________
Submitted November 15, 2021 – Decided March 14, 2022
Before Judges Rothstadt, Mayer and Natali.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-3325-18.
Mario M. Blanch, attorney for appellants.
Piro, Zinna, Cifelli, Paris & Genitempo, LLC, attorneys for respondents (Daniel R. Bevere, of counsel; Kristen Jones, on the brief).
PER CURIAM Plaintiffs, Tamara Sepulveda and Luis DeLeon, former Emergency
Medical Technicians (EMTs) for the Township of North Bergen (the Township),
appeal an order dismissing their Conscientious Employee Protection Act
(CEPA), N.J.S.A. 34:19-1 to -8, retaliation claims and granting defendants'
motion for summary judgment. We affirm summary judgment as to Sepulveda 1,
as it was undisputed based on the summary judgment record that she did not
engage in protected activity as required by N.J.S.A. 34:19-(3)(a) of CEPA, but
we reverse as to DeLeon and remand for further proceedings.
I.
We detail the relevant facts in the motion record, viewed, as we must, in
the light most favorable to plaintiffs. Brill v. Guardian Life Ins. Co. of Am.,
142 N.J. 520, 523 (1995). On the evening of July 31, 2017, Sepulveda and
DeLeon responded to a domestic dispute involving an alleged intoxicated
individual, F.A.2 At that time, plaintiffs were employed as EMTs with the
Township's Emergency Management Services (EMS). Police had been
1 We refer to the plaintiffs by their surnames for purposes of clarity, intending no disrespect. 2 We use initials to protect F.A.'s confidentiality. A-0795-20 2 dispatched to the scene after receiving a call from F.A.'s wife, who indicated
that she was concerned regarding her husband's behavior.
Officers at the scene, Sergeant Edward Moyano and patrolmen Michael
Whalen and Javier Perez, reported that F.A. admitted to consuming alcoholic
beverages. They observed that his speech was slurred, and his temperament
quickly alternated between "extremely angry" and "mild." Once plaintiffs
arrived, Sergeant Moyano indicated that F.A. stood up, put his shoes on, began
walking towards the front door to exit, and proceeded toward the ambulance.
The officers informed plaintiffs that F.A. was intoxicated and needed to be
brought to the hospital. The officers stated that they observed F.A. sweating,
red-faced and "repeatedly clench[ing] his jaw [with] what appeared to be muscle
spasms." In his report, Officer Whalen noted that F.A. had admitted to drinking
a bottle of alcohol, but had "no scent of that beverage on his breath."
In their depositions, plaintiffs materially disputed the police officers'
version of events that night. They stated F.A. told them that he did not want to
"be checked out by an ambulance." Most importantly, based on their visual
observations, plaintiffs testified they did not believe F.A. needed to be
transported, as he was "alert and oriented," with a steady gait, normal pupil
dilation, and was not slurring his speech. Neither DeLeon nor Sepulveda
A-0795-20 3 measured F.A.'s vitals, however, because, as Sepulveda testified, "the patient
didn't want to be touched."
At this point, plaintiff DeLeon called his supervisor, Deputy Chief David
Prina, to discuss the matter, who purportedly advised him not to transport F.A.
against his will. DeLeon testified that he then explained to Sergeant Moyano
that EMTs cannot transport a patient without his or her permission, as his
training taught him that doing so would be considered kidnapping. In the police
reports prepared after the incident, officers reported that DeLeon began to curse
loudly and threaten to resign as an EMT, and informed the officers that he
planned to file a formal complaint.
Plaintiffs further testified that the officers ostensibly forced F.A. into the
ambulance, stating, "you're going to the hospital or you're going to jail." They
also allegedly physically blocked F.A. from going back into his home and
pushed him towards the ambulance. Based on their statements contained in the
police reports, the officers disputed that version of events and reported F.A.
voluntarily agreed to go to the hospital before the EMTs arrived.
Plaintiffs testified that they continued to refuse to transport F.A. to the
hospital or provide medical care against his wishes. F.A. nevertheless
eventually entered the ambulance. While in the vehicle, however, plaintiffs
A-0795-20 4 stated that F.A. continued to resist and stated that he "didn't want to go to the
hospital, and that he was being forced to [do so]." When they arrived at the
hospital, Sepulveda stated that F.A. "was still agitated" and "still screaming that
he didn't want to be there."
Plaintiffs also testified that as part of their training as EMTs, they were
required to undergo 250 hours of in-class and ten hours of hospital-based
training, where they learned about medical and trauma assessments, as well as
"the legality of being able to treat a patient." Plaintiffs explained that the
Township follows the same protocols as those provided by the State of New
Jersey, and EMTs were taught that they cannot force a conscious patient to go
to the hospital.
Further, according to plaintiffs, they were instructed that an alert and
conscious patient has the right to refuse treatment and can only be transported
against their will if they are unconscious, as a lack of consciousness is a form of
implied consent. Plaintiffs also testified that if an alert and orientated patient
refuses treatment, they were taught that it is considered assault to touch a patient
against his or her will.
Both plaintiffs testified that after the incident, they were "pulled off the
[work] schedule[s]." Only DeLeon, however, formally reported the incident to
A-0795-20 5 Deputy Chief Prina, his supervisor, via WhenToWork, the computer program
the Township used to assign shifts, enable employee messaging and manage
calendars. DeLeon also testified that the Township threatened to invalidate his
EMT certification, which he believed was retaliatory after his disclosure of the
incident. Sepulveda testified that she was issued a written warning for failing
to take and record F.A.'s vital measurements. That warning is not contained in
the record on appeal, however.
The Township thereafter issued a notice of preliminary disciplinary action
(PNDA) to DeLeon only, charging him with: (1) incompetency, inefficiency,
failure to perform duties; (2) inability to perform duties; (3) conduct
unbecoming a public employee; (4) neglect of duty; and (5) violation of North
Bergen EMS Standard Operating Procedures based upon his failure to complete
a medical assessment of F.A., as well as his inappropriate outbursts and use of
vituperative epithets in front of the patient. Despite the Township's request that
he be removed as an EMT, DeLeon did not request a hearing to challenge the
charges. He testified that he did not recall ever receiving a copy of the PNDA.
The Township issued a final notice of disciplinary action, sustaining the
charges set forth in the PNDA, and DeLeon was later removed from his position.
Sepulveda, however, did not report the incident to any superior and elected to
A-0795-20 6 resign voluntarily, claiming the environment at the Township's EMS department
was "hostile and uncomfortable," and she believed she faced possible "chances
of retaliation from [the] North Bergen [police department] when [EMTs] do not
comply with their wishes on patient care."
Plaintiffs thereafter filed suit alleging the Township and their former
supervisor, Deputy Chief David Prina, violated CEPA. At the conclusion of
discovery, defendants filed a motion for summary judgment, which plaintiffs
opposed.
The court granted defendants' motion without oral argument, despite
plaintiffs' request. In a nine-page written opinion, the court explained that the
motion record failed to create a genuine issue of material fact as to whether
plaintiffs engaged in CEPA protected conduct. The court reasoned that the
"broad stroke claims" of illegal conduct amounted to mere "disagreements"
between the police and the EMTs "about whether F.A. required medical
assistance," which "is not protected activity within the meaning of CEPA."
Relying on Klein v. Univ. of Med. & Dentistry of N.J., 377 N.J. Super.
28, 38 (App. Div. 2005), the court concluded that "[p]laintiffs ha[d] not pointed
to any manual, directive, or law they believe the [d]efendants have violated ."
The court also relied upon Battista v. Olsen, 213 N.J. Super. 137, 142 (App. Div.
A-0795-20 7 1986), concluding that "had the officers not provided medical treatment after
being advised F.A. had ingested illicit substances, the [p]olice [d]epartment
would have been liable for F.A.'s injuries."
Further, despite plaintiffs' proofs that F.A. refused to go to the hospital,
and their reasonable belief that transporting him without his consent would be a
violation of New Jersey law and public policy, the court found that "F.A.
voluntarily went to the hospital." The court also found that "[n]either DeLeon
nor Sepulveda conducted a patient assessment or offered F.A. the right to refuse
medical attention. F.A.'s vitals were not taken." Finally, the court concluded
that Sepulveda failed to establish that she engaged in any protected activity as
she failed to report or object to "any activity that she believed to be infringing
upon patient's rights or in any way affecting patient's safety." This appeal
followed.
II.
On appeal, plaintiffs raise three arguments. First, they contend the court's
factual findings in support of summary judgment are unsupported by the record.
Specifically, they maintain the court impermissibly concluded F.A. voluntarily
accepted transport to the hospital and that plaintiffs failed to conduct a patient
A-0795-20 8 assessment.3 Plaintiffs also argue the record contained genuine and material
questions of fact as to whether they held a reasonable belief under CEPA that
treating and transporting F.A. to the hospital would have violated New Jersey
law and public policy. Finally, they maintain the court improperly relied upon
our holdings in Klein, 377 N.J. Super. at 38 and Battista, 213 N.J. Super. at 142.
For the reasons that follow, we are satisfied that the motion record
contains disputed issues of material fact sufficient to establish a prima facie case
of retaliation under CEPA as it related to DeLeon. We reach a contrary
conclusion as to Sepulveda. As to her claim, it was undisputed that she never
reported the incident to her superiors. We also note she resigned voluntarily,
based upon speculative future conduct by the Township's police department.
We would be remiss if we did not address a procedural error committed
by the court. Because this application involved resolution of a dispositive issue,
oral argument should have been granted as of right under Rule 1:6-2(d). To the
extent the court denied the request, it was obligated to state its reasons on the
record. R. 1:6-2(d). On remand, and in the event an application is filed within
3 We also note that plaintiffs contend the court incorrectly characterized Sepulveda's testimony with respect to an intoxicated patient's ability to consent to medical treatment. We need not reach that issue inasmuch as we find summary judgment was properly granted as to Sepulveda on separate grounds. See, infra, at pp. 21-22. A-0795-20 9 the purview of Rule 1:6-2(d), oral argument should be granted, or the court
should comply with that Rule and state the reasons for denying the request
should it do so. See LVNV Funding, L.L.C. v. Colvell, 421 N.J. Super. 1, 5
(App. Div. 2011).
Although we note there was no oral argument, we find "no prejudice has
resulted from the [court's] failure to comply with the rule," because we are
reversing and remanding as to DeLeon. Spina Asphalt Paving v. Borough of
Fairview, 304 N.J. Super. 425, 427, n.1 (App. Div. 1997). We also conclude,
for the reasons discussed in this opinion, that the motion record failed to create
a genuine and material question of fact that Sepulveda established a prima facie
case under CEPA, and oral argument would not have altered the outcome,
inasmuch as a party cannot supplement the record during such a proceeding.
As to the merits of plaintiffs' arguments, we recite the applicable standard
of review. When reviewing an order granting summary judgment, we apply the
same standards the trial court applies when ruling on a summary judgment
motion. Townsend v. Pierre, 221 N.J. 36, 59 (2015). Thus, we review "the
competent evidential materials submitted by the parties to identify whether there
are genuine issues of material fact and, if not, whether the moving party is
entitled to summary judgment as a matter of law." Bhagat v. Bhagat, 217 N.J.
A-0795-20 10 22, 38 (2014); R. 4:46-2. Summary judgment should be denied unless the
moving party's right to judgment is so clear that there is no room for controversy.
Akhtar v. JDN Props. at Florham Park, L.L.C., 439 N.J. Super. 391, 399 (App.
Div. 2015).
The trial court and the reviewing court must view the evidence in the light
most favorable to the non-moving party. Manahawkin Convalescent v. O'Neill,
217 N.J. 99, 115 (2014). This means summary judgment should be denied if the
competent evidential materials, viewed in the light most favorable to the non -
moving party, permit a rational factfinder to resolve the disputed issue of
material fact in favor of the non-moving party. Townsend, 221 N.J. at 59.
The court's function is not to weigh the evidence to determine the final
outcome, but only to decide if a material dispute of fact exists. Suarez v. E. Int'l
Coll., 428 N.J. Super. 10, 27 (App. Div. 2012). It is not the judge's role to assess
credibility or determine the truth of the evidence, DeWees v. RCN Corp., 380
N.J. Super. 511, 522 (App. Div. 2005), or to examine whether the preponderance
of the evidence weighs towards one side or the other, Mandel v.
UBS/PaineWebber, Inc., 373 N.J. Super. 55, 71 (App. Div. 2004). A motion
judge may not abrogate the jury's exclusive role as the finder of fact. Suarez,
428 N.J. Super. at 27.
A-0795-20 11 Plaintiffs maintain they were subjected to retaliatory acts by defendants
in violation of CEPA, which makes it "unlawful for an employer to retaliate
against an employee who 'report[s] illegal or unethical workplace activities.'"
Donelson v. DuPont Chambers Works, 206 N.J. 243, 256-57 (2011) (alteration
in original) (quoting Dzwonar v. McDevitt, 177 N.J. 451, 462 (2003)). CEPA
is designed to "protect and encourage employees to report illegal or unethical
workplace activities and to discourage public and private sector employees from
engaging in such conduct." Abbamont v. Piscataway Twp. Bd. of Educ., 138
N.J. 405, 431 (1994). Thus, considering this purpose, CEPA claims "should be
construed liberally." Ibid.
CEPA prohibits an employer from taking retaliatory action when an
employee "[d]iscloses, or threatens to disclose to a supervisor or to a public body
an activity, policy or practice of the employer . . . that the employee reasonably
believes" is unlawful or fraudulent. N.J.S.A. 34:19-3(a). Specifically, an
activity is unlawful when it "is in violation of a law, or a rule or regulation
promulgated pursuant to law," N.J.S.A. 34:19-3(a)(1). An employee is also
protected where he or she "[o]bjects to, or refuses to participate in any activity,
policy or practice which the employee reasonably believes . . . is incompatible
A-0795-20 12 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(c)(3).
A plaintiff asserting a CEPA claim must establish that:
(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(c);
(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.
[Lippman v. Ethicon, Inc., 222 N.J. 362, 380 (2015) (quoting Dzwonar, 77 N.J. at 462).]
If the plaintiff meets the burden of demonstrating a prima facie case, "the
defendant must then come forward to advance a legitimate reason for
discharging [the] plaintiff." Massarano v. N.J. Transit, 400 N.J. Super. 474, 492
(App. Div. 2008). If the defendant provides a legitimate reason, the plaintiff
must demonstrate why the reason defendant provided for the adverse action is
not credible. Kolb v. Burns, 320 N.J. Super. 467, 479 (App. Div. 1999).
Against this legal background, and for purposes of completeness, we turn
to a consideration of each of the four prongs a plaintiff must meet to establish a
A-0795-20 13 prima facie case under CEPA, noting, however, that plaintiffs have briefed only
the first prong.
A.
To satisfy the first prong of CEPA, a plaintiff must prove that he or she
reasonably believed the conduct at issue was against a law under N.J.S.A. 34:19-
3(a)(1) or was incompatible with a "clear mandate of public policy" under
N.J.S.A. 34:19-3(c)(3). See Estate of Roach v. TRW, Inc., 164 N.J. 598, 611
(2000).
Both plaintiffs testified at their depositions that they had learned in the
course of their formal training that transporting a patient against his or her will
is illegal and tantamount to kidnapping and or assault under New Jersey law.
When the North Bergen police forced plaintiffs to ferry F.A. to the hospital
against his wishes, plaintiffs allege they had a reasonable belief that such actions
violated the false imprisonment statute as well as New Jersey's public policy
protecting a competent patient's right to refuse medical treatment.
CEPA's goal is "not to make lawyers out of conscientious employees but
rather to prevent retaliation against those employees who object to employer
conduct that they reasonably believe to be unlawful or indisputably dangerous
to the public health, safety or welfare." Mehlman v. Mobil Oil Corp., 153 N.J.
A-0795-20 14 163, 193-94 (1998). Accordingly, it is not plaintiffs' "burden to show that the
defendant actually violated the law, rule, regulation, or other authority cited, but
only to demonstrate that he or she held a reasonable belief that such a violation
occurred." Hitesman v. Bridgeway, Inc., 218 N.J. 8, 30 (2014).
Further, plaintiffs need not present evidence that the employer's conduct
was actually unlawful, rather a plaintiff must set forth facts that would support
an objectively reasonable belief that a violation has occurred. Dzwonar, 177
N.J. at 462. The trial court must then "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." Id. at 464. If a nexus can be
established, it is a question of fact for the jury to "determine whether the plaintiff
actually held such a belief and, if so, whether that belief was objectively
reasonable." Ibid.
Our Supreme Court has recognized that in the context of a CEPA claim,
"a 'clear mandate' of public policy suggests an analog to a constitutional
provision, statute, and rule or regulation promulgated pursuant to law such that
. . . there should be a high degree of public certitude in respect of acceptable
versus unacceptable conduct." Maw v. Advanced Clinical Commc'ns, Inc., 179
N.J. 439, 444 (2004). A "vague, controversial, unsettled, and otherwise
A-0795-20 15 problematic public policy does not constitute a clear mandate." MacDougall v.
Weichert, 144 N.J. 380, 391 (1996) (A plaintiff must identify a violation of a
public policy that is "clearly identified and firmly grounded."). Further, an
employee who argues under N.J.S.A. 34:19-3(c)(3) "must make the additional
showing that the 'clear mandate of public policy' he or she reasonably believes
the employer's [conduct] to be incompatible with is one that 'concern[s] the
public health, safety or welfare or protection of the environment.'" Maimone v.
City of Atl. City, 188 N.J. 221, 231 (2006) (quoting Estate of Roach, 164 N.J.
at 609-11).
In addition, any "determination whether the plaintiff adequately has
established the existence of a clear mandate of public policy is an issue of law "
for the court. Mehlman, 153 N.J. at 187. The sources of public policy that a
court may rely upon "include legislation; administrative rules, regulations or
decisions; and judicial decisions." Pierce v. Ortho Pharm. Corp., 84 N.J. 58, 72
(1980).
In New Jersey, there exists well-settled public policy protecting a patient's
right to make his or her own healthcare decisions. In Matter of Quinlan, 70 N.J.
10, 51 (1976), our Supreme Court first recognized a constitutional "right of
choice" with respect to medical decisions and a "right of privacy that might
A-0795-20 16 permit termination of treatment" in certain circumstances. In Matter of Conroy,
98 N.J. 321, 347 (1985), the Court reaffirmed this right, holding that a
"competent adult person generally has the right to decline to have any medical
treatment initiated or continued." See also Matter of Farrell, 108 N.J. 335 (1987)
(holding that a patient holds the right to refuse medical attention even if
treatment is necessary for survival).
The right of a competent person to refuse unwanted medical care is also
recognized as a liberty interest under the Fourteenth Amendment. See Cruzan
v. Director, Missouri Dept. of Health, 497 U.S. 261, 271 (1990). This right is
also recognized explicitly in the New Jersey Advance Directives for Health Care
Act, in which the Legislature declared, "[t]his State recognizes, in its law and
public policy, the personal right of the individual patient to make voluntary,
informed choices to accept, to reject, or to choose among alternative courses of
medical and surgical treatment." N.J.S.A. 26:2H-54(a).
Applying this authority, we are satisfied that plaintiffs presented sufficient
evidence to meet the requirements of the first prong of the CEPA test, as they
identified a clear mandate of public policy that concerns the public's health and
safety. Specifically, that a patient may, under certain circumstances, refuse
medical care. Indeed, here, both parties acknowledge that New Jersey public
A-0795-20 17 policy supports a competent patient's right to refuse medical treatment, provided
the patient is alert and oriented.
Additionally, the circumstances surrounding F.A.'s voluntary transport
were critical to determining whether the officers' conduct, and defendants'
apparent acceptance of their actions, was a violation of this well-settled public
policy. In this regard, we are satisfied that the motion record, specifically
plaintiffs' deposition testimony as compared to the police reports, and other
proofs, contain genuine and material questions of fact as to whether F.A. was in
need of medical care and was transported to the hospital voluntarily .
We are also satisfied that the cases relied upon by the court and
defendants, Klein and Battista, do no warrant a contrary result. In Klein,
plaintiff, a radiologist, based his CEPA claim on a disagreement with internal
decisions made by the hospital at which he was employed, including requests
for "additional staffing, more space, and special procedure rooms permanently
stocked with equipment and supplies rather than generic rooms with portable
machinery and supplies." Klein, 377 N.J. Super. at 44. He alleged retaliation
resulting in "revoc[ation of] his clinical responsibilities for several days and
requiring observation [once] restored after he refused to be assigned to the
Radiology Department based upon his 'reasonable belief that such anesthesia
A-0795-20 18 assignments were a threat to patients' safety' in violation of N.J.S.A. 34:19-3(c)."
Id. at 33. We held that plaintiff had "not sufficiently identified any illegal,
unethical, or public policy violation sufficient to satisfy the first prong of a
prima facie case of a CEPA claim under the language or intent of N.J.S.A. 34:19-
3(c)." Id. at 45.
Though the doctor in that case alleged specific violations of Hospital
Licensing Standards, we concluded that "merely couching complaints in terms
of a broad-brush allegation of a threat to patient's safety is insufficient to
establish the first prong of a CEPA claim." Id. at 42. We also commented that
the "whistle-blower legislation is not intended to shield a constant complainer
who simply disagrees with the manner in which the hospital is operating one of
its medical departments, provided the operation is in accordance with lawful and
ethical mandates." Ibid.; see also Young v. Schering Corp., 275 N.J. Super. 221,
237 (App. Div.1994) (observing that "[a]lthough CEPA protects a broader
category of employee behavior than the common law, the Act nevertheless was
not intended to provide a remedy for wrongful discharge for employees who
simply disagree with an employer's decision, where that decision is entirely
lawful").
A-0795-20 19 Rather than a debate over quality of care and the proper use of hospital
resources, this case involves circumstances under which plaintiffs contend the
patient, F.A., was not in need of any medical attention. Unlike Klein, the issue
before us is whether a patient, who shows no indicia of acute or chronic distress,
requiring medical attention, can refuse unnecessary treatment.
In Battista, we affirmed the trial court's finding of a police officer's partial
liability in a wrongful death action, after he failed to summon medical
assistance, despite his knowledge of the decedent's condition. Here, as noted,
there remains a question of fact as to whether F.A. required medical attention.
Further, Battista did not involve a CEPA claim.
B.
Under prong two, a plaintiff must establish that "he or she performed a
'whistle-blowing' activity described in N.J.S.A. 34:19-3(c)." Lippman, 222 N.J.
at 380. A "whistle-blowing" activity "refers to notification, or threatened
notification, to an outside agency or supervisor . . . and also permits a claim to
be supported by evidence that the employee objected to or refused to participate
in the employer's conduct." Tartaglia v. UBS PaineWebber, Inc., 197 N.J. 81,
106 (2008). The whistle-blowing activity must reflect a "threat of public harm,
not merely a private harm or harm only to the aggrieved employee." Maw v.
A-0795-20 20 Advanced Clinical Commc'n, Inc., 179 N.J. 439, 445 (2004). "Vague and
conclusory complaints, complaints about trivial or minor matters, or generalized
workplace unhappiness are not the sort of things that the Legislature inten ded to
be protected by CEPA." Battaglia v. United Parcel Serv., Inc., 214 N.J. 518,529-
31 (2013).
Here, the motion judge found that Sepulveda did not satisfy this
requirement. We agree. Plaintiffs allege only that Sepulveda documented the
incident in her patient care report from the night of July 31, 2017. The record
on appeal does not contain this report, however, and there is no indication that
Sepulveda's supervisor, or the Township EMS department, received that report.
Moreover, in her deposition testimony, Sepulveda denied having reported the
incident to any superiors, as evidenced by the following colloquy.
DEFENSE COUNSEL: [Regarding the July 31, 2017 incident] Who did you report it to?
SEPULVEDA: I didn't. [DeLeon] did to our deputy chief.
DEFENSE COUNSEL: But you personally never made any sort of incident report?
SEPULVEDA: Just my patient care report.
DEFENSE COUNSEL: Okay . . . You never made any formal complaint to Deputy Chief Prina or [the Chief] about the incident with [F.A.], meaning you never filled
A-0795-20 21 out a separate form, like [DeLeon] did, on WhenToWork about what happened?
SEPULVEDA: Not that I recall.
Plaintiffs have pointed to nothing in the record to dispute this testimony.
As such, we agree with the court that Sepulveda's CEPA claims fail because she
did not make the requisite disclosure under N.J.S.A. 34:19-3(a). As noted,
however, plaintiff DeLeon formally reported the July 31, 2017 incident to his
supervisor, Deputy Chief Prina, via WhenToWork, thereby satisfying N.J.S.A.
34:19-3(a) and the second prong under Lippman.
C.
The third CEPA prong requires a plaintiff to demonstrate that "an adverse
employment action was taken against . . . h[im]" by defendant. Lippman, 222
N.J. at 380. Under N.J.S.A. 34:19-2(e), "retaliatory action" is defined as "the
discharge, suspension or demotion of any employee, or other adverse
employment action taken against an employee in the terms and conditions of
employment." "What constitutes an 'adverse employment action' must be
viewed in light of the broad remedial purpose of CEPA, and [a court 's] charge
to liberally construe the statute to deter workplace reprisals against an employee
speaking out against a company's illicit or unethical activities." Donelson, 206
N.J. at 257-58.
A-0795-20 22 An adverse employment action can include "making false accusations of
misconduct, giving negative performance reviews, issuing an unwarranted
suspension, and requiring pretextual mental-health evaluations—causing the
employee to suffer a mental breakdown and rendering him unfit for continued
employment." Id. at 258. Additionally, retaliation can be "many separate but
relatively minor instances of behavior directed against an employee that may
not be actionable individually but that combine to make up a pattern of
retaliatory conduct." Green v. Jersey City Bd. of Educ., 177 N.J. 434, 448
(2003).
Here, we are satisfied that DeLeon presented sufficient evidence to satisfy
the third prong under Lippman. After the Township issued the final notice of
disciplinary action, which encompassed the charges set forth in the PNDA,
DeLeon was terminated from his employment as an EMT. For purposes of
summary judgment, that discharge clearly qualifies as "an adverse employment
action" under the third Lippman prong.4
4 Plaintiffs allege Sepulveda was "allowed to return after she was given a written warning," a document which, as noted, is not contained in the record. She also stated the reasons for her resignation included the "overall behavior" at the EMS department, which made her "really uncomfortable." Because we find Sepulveda's claims fail under the second Lippman prong, we need not address whether this written warning, or the alleged behavior of her employer, constituted adverse action under the statute. A-0795-20 23 D.
To satisfy the fourth prong of the CEPA test, plaintiffs must demonstrate
that "a causal connection exists between the whistle-blowing activity and the
adverse employment action." Lippman, 222 N.J. at 380. A causal connection
"can be satisfied by inferences that the trier of fact may reasonably draw based
on circumstances surrounding the employment action." Maimone, 188 N.J. at
237 (citing Estate of Roach, 164 N.J. at 612). Therefore, the plaintiff does not
need to show a "direct causal link" between the whistle-blowing activity and the
retaliation. Battaglia, 214 N.J. at 558. "The temporal proximity of employee
conduct protected by CEPA and an adverse employment action is one
circumstance that may support an inference of a causal connection." Maimone,
188 N.J. at 237; Estate of Roach, 164 N.J. at 612.
Based upon our de novo review of the record, we conclude that DeLeon
presented sufficient evidence to meet the requirements of the fourth prong to
survive defendants' summary judgment application. Despite the reasons set
forth in the final notice of disciplinary action, there remain factual disputes in
the record that call into question whether DeLeon's termination was based upon
A-0795-20 24 the conduct described in the PNDA or whether he was discharged in retaliation
for his "whistle-blowing."
We note that these factual issues are substantial because DeLeon alleges
the PNDA was a pretext for his discharge. Indeed, his claims and attendant
proofs that the Township terminated his employment as a consequence of his
reporting invoked the burden-shifting paradigm addressed in Massarano, 400
N.J. Super. at 492. Burden shifting was neither addressed by the parties, nor
explored further by the court, and as such, we do not address it, and we are
satisfied that as far as establishing a prima facie case, the record contains
sufficient questions of fact regarding causation.5
To the extent we have not specifically addressed any of plaintiffs'
arguments, it is because we have considered those contentions of insufficient
merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed in part and remanded in part. We do not retain jurisdiction.
5 Again, we need not address whether Sepulveda's resignation was causally related to any reporting, as we have concluded, based upon the competent materials before the motion court, she did not disclose the officers' conduct to her supervisor. We note, however, that unlike DeLeon, she was not terminated following the incident, nor in her resignation did she specifically identify any complaint regarding the July 31, 2017 incident.
A-0795-20 25