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N.J.: Whistleblower Not Fired Illegally

By Diane Cadrain  7/10/2014
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A nurse who complained about the spread of infectious diseases in a nursing home, reporting his concerns to governmental agencies and to the press, was not fired in violation of the state’s whistle-blower protection statute, the New Jersey Supreme Court held.

James Hitesman worked as a staff nurse in a nursing home operated by Bridgeway Inc. By 2006, plaintiff was a shift supervisor, with responsibility for overseeing nursing staff throughout the facility. In that capacity, he created records that he called "administrative logs," in which he documented patient admissions and hospitalizations, employee absences, facility maintenance issues, and similar events.

In January 2008, Hitesman recorded in his administrative log that five staff members had missed work due to respiratory and gastrointestinal symptoms, and noted a prevalence of similar symptoms among patients. Thereafter, he complained to the facility's management about the rate of infectious diseases among patients, reported his concerns to governmental agencies and the press, and ultimately disclosed partially-redacted patient records to a television reporter. On Jan. 25, 2008, Bridgeway fired him because of his contact with the media and his disclosure of Bridgeway records, which violated a confidentiality policy which he had signed when he was hired.

Hitesman sued Bridgeway under the state’s Conscientious Employee Protection Act (CEPA), claiming a violation of CEPA's prohibition on employer retaliatory action against a health care employee who reports on, or objects to, an employer activity that the employee reasonably believes is improper quality of patient care.

His claims went to a jury, which found Bridgeway liable under CEPA, but awarded no damages. Bridgeway appealed, and the Appellate Division reversed the liability verdict, holding that the CEPA claim failed because the authorities that Hitesman relied upon—the Code of the American Nursing Association (ANA), the Bridgeway Employee Handbook, and the Bridgeway Statement of Resident Rights—neither measured the adequacy of patient care, nor expressed a clear mandate of public policy. He appealed to the state’s highest court.

The New Jersey Supreme Court stated that the issues before it were 1) whether Hitesman reasonably believed that Bridgeway either provided inadequate patient care or acted in a manner incompatible with a clear mandate of public policy and 2) whether there was a causal connection between his whistle-blowing activity and his termination.

In order to prove the first element, the court said, Hitesman had to show the court some kind of authority that would serve as a standard for Bridgeway’s conduct. Here, he showed the ANA Code, Bridgeway's Employee Handbook, and its Statement of Resident Rights.

Evaluating these sources, the court stated that the ANA Code provided no standard for Bridgeway's control of infectious disease, and thus was not a sufficient basis to support a CEPA claim. Similarly, the Bridgeway policy documents neither defined acceptable patient care nor stated a clear mandate of public policy for purposes of a CEPA action. Because none of plaintiff's purported sources of authority meet the statutory criteria that serve as a standard for the employer's conduct, they cannot form the basis of a retaliation claim.

The court reversed the judgment of the trial court.

Hitesman v. Bridgeway, N.J., A-73 September Term 2012, 072466 (June 16, 2014).

Diane Cadrain is an attorney who has been writing about employment law issues for more than 20 years.
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