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The New Jersey Supreme Court held June 7 that the Conscientious Employee Protection Act protects whistle-blowers from firing even if they did not follow the employer’s chain of command in complaining of illegal or unethical workplace conduct. The court reversed and remanded a trial judge’s dismissal of a nurse’s claim for retaliatory termination, finding that to “allow firing for insubordination when a whistle-blowing employee sidesteps an involved supervisor contradict[s] the express language of CEPA and its broad remedial purpose.” Justices Daniel O’Hern, Gary Stein, James Coleman Jr., Virginia Long and Jaynee LaVecchia joined in the unsigned per curiam ruling, Fleming v. Correctional Healthcare Solutions, A-39-99. Justice Peter Verniero dissented, along with Chief Justice Deborah Poritz. They agreed with the majority holding but said there was no support for plaintiff’s argument that she bypassed her direct supervisor because the supervisor was engaged in wrongdoing. Verniero emphasized that it was not until after discharge that Fleming, at her deposition, first identified the supervisor as involved. Fleming was a nurse employed at Edna Mahan Correctional Facility for Women in Clinton, N.J. She was retained when the state privatized medical services at the prison in 1996 by hiring Correctional Healthcare Solutions. Regulations implementing privatization require inmates to pay a nominal fee for medical services and medication and to complete a medical request form. According to the majority, Fleming complained several times to Sally Simpson, her immediate supervisor, that medical services and medications were being provided to inmates who had not completed the required forms and consequently were not charged the copayment. Fleming also complained to Simpson that CHS employees were providing medications to inmates under expired orders, which she believed violated state and federal law. Fleming then wrote to Donald Moore, CHS’s director of the medical department at the prison. Simpson’s supervisor, Jennifer Miers, responded that Fleming should first go to Simpson, who would then take it to Miers, who would pass it up the chain to Moore. Instead of going through Simpson, Fleming wrote a letter with the same complaints to Miers, who fired Fleming a week later, on July 12, 1996, for willful disobedience, citing the letter as the “most important thing.” CHS contended that it fired Fleming for insubordination, combined with poor job performance exacerbated by her refusal to follow orders. Simpson and Miers acknowledged that Fleming made the complaints and that copayment forms were often not completed. A trial judge dismissed the suit on summary judgment, finding that although a jury could conclude that she had a reasonable belief there was illegal conduct, her whistle-blowing was not protected because she didn’t complain through proper channels. The New Jersey Appellate Division affirmed, holding that Fleming did not produce sufficient evidence to show that she was terminated for her complaints, rather than for her failure to follow instructions regarding submission of complaints and the dispensing of medication. In reversing last week, the Court was guided by CEPA’s broad definition of “supervisor,” finding that it encompassed Miers and that CHS had “no right to limit CEPA’s definition by mandating that its employees submit CEPA complaints to their immediate supervisor.” Although the ruling limits how employees can make CEPA-shielded complaints, it seems to allow considerable leeway. An unreasonable departure from the chain of command might be “a state employee who repeatedly called the Governor at the Governor’s residence late at night to report violations of law at a state agency [and that employee] could justly be said to be insubordinate if requested not to do so,” the justices wrote. Still, they stopped short of outlawing an employer’s chain-of-command defense. “[I]t might be raised as a valid nondiscriminatory reason for an employee’s firing, that, like any other defense, would have to be resolved by a factfinder.” The majority also addressed what it termed “the more difficult question”: If CHS cannot rely on insubordination as the basis for discharge, would the other nondiscriminatory reasons it alleges for firing the plaintiff bar her CEPA claim. These reasons include her alleged refusal to provide medication to inmates. Rejecting a mixed-motive analysis in favor of the burden-shifting approach set forth in McDonnell Douglas v. Green, 411 U.S. 792 (1973), the Court held that “a jury could infer that Simpson’s negative evaluation of Fleming was a pretext designed to cover up CHS’s retaliation against Fleming for blowing the whistle on its sloppy and illegal practices.” Though the ruling gives the plaintiff no automatic right to trial, her attorney, John McDonnell, a partner in Morristown, N.J.’s Rand, Algeier, Tosti & Woodruff, doesn’t see how the trial court could grant summary judgment in light of the state Supreme Court’s ruling. The court’s reconsideration of the summary judgment motion will only delay the plaintiff in getting before a jury, he says. He has requested a conference with the court in an attempt to move the case along. CHS’s attorney, Alan Gold, a partner in Philadelphia’s Monaghan & Gold, also finds the decision confusing in that the Court identifies issues of fact as to the plaintiff’s prima facie case but still wants the trial court to consider the summary judgment motion. Gold says he doesn’t think he has to file a new motion but will do so if necessary. Gold, who appeared pro hac vice, predicts that the Fleming decision “will create havoc” because employers will reconsider whether they want to be in New Jersey. Another attorney who represents employers, Peter Hughes, however, doesn’t see the case as breaking new ground. A partner at Stanton Hughes Diana Salsberg Cerra & Mariani in Morristown, Hughes says Verniero’s dissent has the better argument because Fleming never told anyone at the company why she went outside the chain of command. Employer attorney James Flynn of Newark, N.J.’s Epstein Becker & Green agrees not only with the dissent but with the majority holding to the extent it allows a CEPA plaintiff to go outside the chain of a command where the supervisor is involved in the misconduct. But Flynn says it’s legitimate for employers who have set up effective procedures for handling such complaints to insist that employees use those mechanisms if it does not mean going through the alleged wrongdoer. A belief of wrongdoing, he says, “doesn’t justify going directly to the president of the company saying I need to be heard today.” One attorney sees the case as more significant with regard to summary judgment standards than to CEPA. In the view of Gregory Schaer, a sole practitioner in Freehold, N.J., Fleming “sends a signal to lower courts that factual issues are best left to the jury.”

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