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.