Preliminary Statement
This litigation does not arise out of plaintiff’s failure to chart properly in patients' medical records, however plaintiff readily acknowledges that he unintentionally failed to make seven record keeping entries during the course of eight weeks. This litigation does not arise because plaintiff removed narcotics without a physician's order, namely a 30mg vial of morphine and a 2mg morphine syringe, which were removed under his PIN on 7 January 2001 which resulted in his immediate suspension, because such actions were never taken by him. This litigation arises because of the retaliation taken against plaintiff by his employer Community Medical Center and the Saint Barnabas Health Care System after his registration of a complaint with the NJ State Board of Health and Senior Services about the application of diapers to patients at Community Medical Center.
STATEMENT OF FACTS
Plaintiff David Miller began his employment as a staff nurse at Community Medical Center in Toms River, NJ on 11 June 1991.
On 21 November 2000 plaintiff registered a complaint with the New Jersey State Board of Health and Senior Services (1a) regarding the application of diapers to bedridden patients at Community Medical Center (hereinafter Community) who were known to be incontinent and in many cases were also mentally-impaired. Plaintiff registered the complaint about diaper use after making two written requests over the course of a year that this issue be addressed (2a).
In a letter dated Monday 27 November 2000 plaintiff notified the Executive Director of Community, Nancy Wollen, that he had registered a complaint with the State Board of Health (3a); notification of the complaint was also copied to four Community nursing administrators who were immediately subordinate to Community nursing administrator Lauren Burke (hereinafter Burke), as well as to a nurse whose specialty is skin care and the treatment of wounds.
Plaintiff was summoned the following week on Monday 4 December 2000 to a meeting in Burke’s office in order to discuss his concern about the use of diapers and to be instructed to follow proper channels when bringing his issues to the fore (80a). The only other attendants at the meeting on 4 December were plaintiff's two immediate supervisors Sherry Margolies and Christine Dodds (81a/12:23-25, 82a/13:1-14).
When staff nurses at Community need to administer a narcotic to a patient, the narcotic is obtained from a computerized medication cabinet known as Pyxis which is kept in a locked medication room on each nursing unit. The Pyxis cabinet keeps an automatic record of the nurse who made a narcotic removal, the patient for whom the narcotic was removed, the time and date of the removal, and the name and amount of the narcotic that was removed. In order to gain access to the Pyxis cabinet a nurse in January 2001 entered by way of a keypad a PIN that was unique to her; that PIN has been replaced by a fingerprint-recognition system (4a). The keypad-entry of a PIN was easily seen by someone who was standing nearby which was a common occurrence (4a).
According to Pyxis records, on 7 January 2001 at 6:54PM and at 6:58PM a 2mg morphine syringe and a 30mg morphine vial respectively were stolen from the Pyxis cabinet under plaintiff's PIN. Pyxis records show that two 2mg morphine syringes and two 30 mg morphine vials were left behind after the theft of a single 2mg syringe and a single 30mg vial.
A policy-mandated narcotic inventory/count was not conducted on the evening of the morphine incident under plaintiff's PIN (6a/103:11-15). When a narcotic inventory/count is conducted at the end of a shift, a Pyxis printout of the shift's narcotic usage is obtained and is examined by the charge nurse (6a/103:2-6, 7a/16:6-10) who supervises the conduct of the nursing unit.
At 9PM on 7 January 2001 Community staff nurse Delia Caballero (hereinafter Caballero) obtained a Pyxis summary (9a) for one of her patients who has been designated for confidentiality reasons as Patient A. As a result of obtaining the Pyxis summary for Patient A, the morphine thefts under plaintiff's PIN were discovered (10a). At that time an incident report by the security representative who responded to the discovered morphine thefts was informed that plaintiff read gun magazines and spoke to the nursing staff about a gun collection (11a).
Shortly after reporting for duty at 7AM on 8 January 2001, plaintiff was summoned to a meeting attended by Burke, Dodds, Community Director of Human Resources Jane Palaia, Community pharmacist Peter Chiodo, and an unidentified security representative. At this meeting plaintiff was confronted with the morphine thefts that were made under his PIN. When plaintiff could not explain the morphine thefts under his PIN he was suspended by Burke pending investigation of the incident which turned out to be an investigation of his nursing records (12a/11:2-25, 13a/12:1-9).
Plaintiff was summoned by Burke to respond to unknown allegations in a letter dated 26 February 2001 (14a). Plaintiff responded that he would be happy to cooperate with Burke's investigation with his lawyer in attendance (15a). Plaintiff was then informed by Burke that his lawyer would not be allowed to be present at a meeting at which he was to respond to unknown allegations that resulted from an investigation into alleged morphine theft by him (16a). Plaintiff strongly suspected that the morphine incident under his PIN was orchestrated by the defendants, and did not present at Community to respond to unknown allegations without his attorney, and he was terminated from Community shortly thereafter (17a) for substandard charting of dispensed narcotics.
Plaintiff demanded reinstatement in a letter dated 20 April 2001 (18a); a letter dated 18 May 2001 from Corporate Director of Labor Relations for the Saint Barnabas Health Care System Arnold Manzo (hereinafter Manzo) stated that plaintiff's termination status was unchanged (19a).
Plaintiff filed a 15-Count Complaint against Community Medical Center and the Saint Barnabas Health Care System in July 2001 (20a-27a). Thereafter defendants filed a Motion to Partially Dismiss in October 2001.
In January 2002 trial court Judge Edward Oles dismissed with prejudice the First, Sixth, Seventh, Eighth, Ninth, Tenth, and Twelfth Counts of the Complaint, and dismissed with prejudice shortly thereafter the Fifth and Fourteenth Counts. In February 2002 defendants filed their ANSWER and AFFIRMATIVE DEFENSES (46a). On 24 October 2003, plaintiff did not oppose dismissal with prejudice of Counts Two, Three, Eleven, Thirteen, and Fifteen. In a decision dated 27 October 2003 (54a-55a) Judge Oles granted defendants’ motion for Summary Judgment regarding the remaining Counts One and Four of the Complaint, which addressed the violation of the Conscientious Employee Protection Act (CEPA), on the grounds that plaintiff did not establish pretext for his termination and did not establish a causal link between his whistle-blowing and his termination (Trial Court Opinion, 56a-63a).
LEGAL STANDARD
Rule 4:46-2 provides that Summary Judgment is appropriate when the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgement or order as a matter of law. Summary Judgment can be defeated by the opposing party when material and substantial facts in dispute are presented; those material and substantial facts in dispute appear in the following pages. Model Civil Jury Charges section 2.32 provides the four legal elements that must be proven by a preponderance of the evidence regarding a claim of Conscientious Employee Protection Act (CEPA) violation.
LEGAL ARGUMENT
POINT ONE
PLAINTIFF HAS ESTABLISHED A PRIMA FACIE CASE
OF A CEPA VIOLATION, THEREFORE THE FIRST
AND FOURTH COUNTS OF PLAINTIFF’S COMPLAINT
MUST BE RETAINED
The Legal Standard under CEPA
In order to prevail in a CEPA violation claim, plaintiff must prove by a preponderance of the evidence each of four legal elements.
First Element
The first element is established by plaintiff’s reasonable belief as a certified health care professional (NJSA 34:19-3a) that the application of diapers to bedridden, mentally-impaired individuals at Community who were known to be incontinent is a violation of Provision 3.5 of the Code of Nursing Ethics and constitutes improper quality of patient care (NJSA 34:19-3a). The application of diapers to incontinent, bedridden patients serves no purpose except to conceal wastes, and will result in skin excoriation at least and infection at most because of the prolonged concealment of wastes (2a/third paragraph).
Second Element
In order to establish the second element, plaintiff must show that Burke, who first suspended him then terminated him, was aware of his complaint to the State Board of Health (1a). The following summarizes how plaintiff establishes the second element. A full explanation of each item follows at the end of the summary associated with Element Four.
THIRD ELEMENT
There is no dispute that plaintiff was first suspended after the morphine incident and then terminated.
FOURTH ELEMENT
Plaintiff must prove that there was a causal link between his complaint to the State Board of Health and the retaliation. Plaintiff must adduce tangible support for his belief that the action taken against him was retaliatory; the following summarizes how plaintiff establishes this fourth and last element. A full explanation of each item follows the summary.
Items 1-18 from the above are further explained as follows:
POINT TWO
ESTABLISHMENT OF SUBSTANTIVE FACTS IN DISPUTE
In his letter in support of granting Summary Judgment to defendants, Judge Oles repeatedly ignores that there are genuine issues regarding material facts in dispute, and grants Summary Judgment to defendants in disregard of Rule 4:46-2. The facts in dispute follows:
Facts in Dispute
Defendants claim that they did not retaliate against plaintiff; Judge Oles too claims that there is absolutely no evidence of retaliation in this case (62a). However plaintiff has tangible evidence of retaliation: the orchestration of the morphine incident; the suspension against policy despite the complete absence of indicators that plaintiff needed to steal morphine; no drug testing; suspension against policy in order to preclude the only legitimate investigation of plaintiff’s alleged narcotic theft; irrelevant investigation of plaintiff’s nursing records; false allegations against plaintiff by Burke; and termination against policy for a fabricated reason regarding meaningless and unintentional record keeping errors that are inherent to staff nursing despite documented above-average nursing performance.
Fact in Dispute
Defendants claim that Community nurses keep perfect records and that the charting standard is perfect charting, however there is evidence of as many as thirty four record keeping violations during two years regarding the Patient Controlled Analgesia (PCA) narcotic vials on nursing unit 2D; these violations involve unaccounted-for discontinued narcotics at the end of PCA therapy and involve only a small part of record keeping on a single nursing unit and were pointed out without conducting a detailed examination of the nursing records of the nurses on unit 2D. At least eight additional policy violations by others can also be addressed by plaintiff supported only by the few records provided to him by the NJ Attorney General’s office which in turn received them from Community; because of the morphine incident, the Attorney General’s office became involved in this case; that involvement has been concluded with no action being taken against plaintiff (133a-134a).
Fact in Dispute
Plaintiff claims that record keeping omissions are inherent to staff nursing; perhaps the best support for this claim is the fact that Burke conducted an irrelevant yet detailed and time-consuming examination of plaintiff’s nursing records because she knew that the record keeping practice of any staff nurse could be attacked; this investigation according to Burke was a formal investigation (142a/10:8-16) that was not set forth by policy and required neither drug testing or the preparation of a written report. Yet this irrefutable logic exposing harassment by Burke was ignored by Judge Oles.
Fact in Dispute
No evidence has been presented that establishes a charting standard at Community, therefore no definition exists for substandard charting practice for which plaintiff was terminated.
Defendants claim that a charting standard is established by policy M-03 (132a) which merely instructs that administered medications are to be entered into the patient record as GIVEN. Defendants claim that the charting standard is perfect charting which in turn defines substandard charting which in turn makes obsolete the policy that establishes disciplinary guidelines for documentation errors (141a). According to defendants’ definition of substandard charting, termination is automatic when a nurse makes a single record keeping omission despite the reasoned argument by plaintiff that such errors are inherent to staff nursing. The Unreported Scheduled Meds (131a) printout lists medications that were detected by the computerized MIS record keeping system that were not entered into the patient record; obviously, this printout was not developed solely for plaintiff’s benefit. According to defendants’ definition of substandard charting, the Unreported Scheduled Meds list(131a) identifies nurses who are to be terminated since it cannot be credibly argued that there is a clinical difference between the charting of an administered medication three hours after the fact (131a) and the charting of an administered medication three months after the fact.
Fact in Dispute
Plaintiff claims that his record keeping omissions were meaningless; this claim is of course disputed by defendants. Plaintiff’s unintentional record keeping omissions were detected only because of a deliberate effort many weeks after the fact. At the time that the record keeping omissions occurred they were not detected by a physician or by plaintiff’s nursing colleagues, therefore it cannot be credibly argued that the patients’ medication records that were kept by plaintiff were consulted by anyone at that time. If the patients’ medication records were not consulted, it cannot be credibly argued that the medication records had any influence on the patients’ hospital care, therefore it cannot be credibly argued that plaintiff’s record keeping omissions were anything other than meaningless. It is a misconception that all patient records, including medication records kept by the nursing staff, are equally significant and that they all influence a patient’s hospital care. The Unreported Scheduled Medication printout (131a) exists specifically because the patient medication record is not checked routinely by anyone; if such routine checks were made, there would be no need for this printout; if such routine checks were made, record keeping omissions would be promptly discovered making a special LATE ENTRY charting option obsolete (note: the LATE ENTRY charting option exists specifically to make record keeping entries on a date after the fact, and does not exist to make late time notations); indeed, the Unreported Scheduled Meds printout exists specifically because record keeping omissions occur. However, plaintiff’s nursing unit 5C did not employ the Unreported Scheduled Meds printout to remind a nurse of record keeping omissions.
Fact in Dispute
Burke and/or Manzo have quantified plaintiff’s seven record keeping omissions during an eight week period as being numerous even though plaintiff made an estimated minimum 1000 medication entries during that time. No evidence of a study or a policy has been presented which defines numerous and establishes the maximum number of record keeping omissions during a particular period of time that mandates the termination of a nurse; only the word of either Burke or Manzo defines numerous. Plaintiff disputes that seven record keeping omissions during the course of eight weeks are numerous. Regardless of the definition of numerous, plaintiff claims that the only relevant issue is the meaningfulness of each of his omissions.
Fact in Dispute
Disregarding the demonstrable perjury of Burke and Manzo, their position that plaintiff was responsible for serious errors is inconsistent with the documentation about plaintiff that he had an above-average knowledge base for delivering safe and responsible care to his patients and that he had a sincere interest in the welfare of his patients(105a-120a). It is consistent with both the documentation about plaintiff and with examples of his letters to hospital administrators which demonstrate his concern for the patient that his record keeping omissions were in fact meaningless; otherwise, it is reasonable to state that he would have ensured in order to protect his patients that record keeping omissions did not occur. Further, no evidence was presented that either Burke or corporate director Manzo was competent let alone proficient regarding knowledge of physiology and pharmacology thereby qualifying them to make clinical pronouncements such as serious nursing errors; the fact that Burke is a nursing administrator does not prove her clinical competence. Plaintiff however was a Staff Level Three (the highest rated) certified critical care nurse who was known for his above-average technical knowledge base (106a).
Fact in Dispute
Regarding serious nursing errors, in no instance was a patient given a duplicate dose (double-dosed) because of plaintiff’s supposedly numerous record keeping omissions, therefore it would seem that the probability that a patient was at risk for being double-dosed was negligible if not zero. No evidence was presented to show that patients at Community, where medications are given to the patients only by their assigned nurse or by a specially-designated medication nurse, were double-dosed as a result of record keeping omissions. No evidence was presented other than ominous rhetoric by defendants, for example ‘death from over-medication’, that a patient’s hospital care was in any way adversely affected or could have been adversely affected as a result of record keeping omissions by staff nurses.
Plaintiff’s seven record keeping omissions involved Xanax, Valium, and a single dose of the analgesic Percocet. Regarding the patient at risk in the unlikely event of his being double-dosed because of plaintiff’s record keeping omissions, it cannot be credibly argued via the use of pharmacological and physiological fact, nor was evidence presented, that double-dosing could have caused the patient to suffer any adverse effects including mild adverse effects; this can be extended by stating that it cannot be credibly argued that double-dosing could have caused adverse effects such as respiratory depression, adverse cardiovascular effects, decreased level of consciousness, or as Judge Oles fears (180a/7:24) addiction to narcotics. Valium and Xanax are both known for their intrinsic safety which is due to their pharmacokinetics; further, the doses involved were well below the recommended daily maximum doses. Although maximum daily doses regarding Percocet have not been established, nor have doses been established which can cause adverse effects, it is unquestionably true that the double-dosing of Percocet could not have caused adverse effects.
In all seven instances regarding plaintiff’s record keeping omissions, the involved patients received regular doses throughout their hospitalization of either Xanax, Valium, or Percocet; for example, the patient associated with the single Percocet record keeping omission was given five other recorded doses of Percocet by plaintiff. It cannot be credibly argued that a record keeping omission among multiple recorded doses was other than meaningless.
Fact in Dispute
In his letter in support of Summary Judgment, Judge Oles demonstrates his clear bias and states without any supporting evidence other than testimony by Burke and/or Manzo that plaintiff's record keeping omissions were manifestations of poor nursing practice (62a). There is especially no excuse for Judge Oles to falsely state (62a) that plaintiff admitted his poor nursing practices; such a false statement by Judge Oles is verified by the court transcript(178a-186a); plaintiff admitted his record keeping omissions, but he did not admit that they were examples of poor nursing practice. Indeed, plaintiff claims that his record keeping omissions were meaningless and may never have been discovered if not for Burke’s harassing investigation. As stated, plaintiff’s documented nursing performance was above average, however it is unreasonable to suggest that plaintiff never before made record keeping omissions which are inherent to staff nursing.
Fact in Dispute
Defendants, like Judge Oles, claim that pretext can only be established (184a/15:14-22) by plaintiff’s provision of evidence that other nurses have not been discharged after making record keeping omissions; plaintiff has reasonably established herein (pages 43-44 following) the dishonesty of this claim.
Fact in Dispute
Defendants claim than plaintiff has not established pretext (184a/14:21-25); plaintiff supports his claim of pretext with established policy (141a) that indicated a written reprimand for his first record keeping citation. It is also a fact that no charting standard exists without which there can be no definition of substandard charting for which plaintiff was terminated; only the word of Burke and/or Manzo establishes the definition of substandard.
Fact in Dispute
Plaintiff readily admitted that he unintentionally failed to make seven record keeping entries over the course of eight weeks which were meaningless; defendants as well as Judge Oles (62a) cite this admission as proof that plaintiff’s termination was justified; plaintiff disputes that his termination was justified on those grounds and supports his position by established policy (141a).
Fact in Dispute
Defendants claim that Burke was unaware of plaintiff’s complaint to the State Board of Health shortly before the morphine incident under plaintiff’s PIN, however plaintiff disputes this claim and has clear evidence to support his position. Regarding the time lag between plaintiff’s meeting with Burke on 4 December and the morphine incident one month later, it cannot be credibly argued that the orchestration of the morphine incident could have been authorized, arranged, and executed before the holiday season. Yet Judge Oles states that plaintiff failed to establish a causal link (62a) between his complaint to the State Board of Health and the harassment that began on the first weekend after the end of the Christmas/New Year Day holiday season.
POINT THREE
ESTABLISHMENT THAT PLAINTIFF’S TERMINATION
WAS A PRETEXT FOR RETALIATION
#1 PLAINTIFF WAS TERMINATED AGAINST POLICY AFTER HIS FIRST CITATION FOR RECORD KEEPING OFFENSES (156a/72:13-21). A WRITTEN REPRIMAND WAS INDICATED RATHER THAN TERMINATION (141a).
#2 PLAINTIFF WAS TERMINATED FOR A FABRICATED REASON, NAMELY SUBSTANDARD CHARTING (17a), SINCE NO CHARTING STANDARD EXISTS
Despite the clear establishment of pretext, Judge Oles claims that pretext can only be established by plaintiff’s provision of evidence that other nurses have not been terminated after their first citation for making meaningless record keeping omissions (184a/15:14-22); the only source of such evidence is obviously defendants; assuming that such evidence existed, Judge Oles incredibly suggests that defendants would willingly provide plaintiff upon request with damaging and incriminating evidence of pretext such as ’15 nurses who have not been discharged’ (184a/15:14-22); such evidence does not exist, but it is not because Community nurses have a 35-year history of keeping perfect records.
Policy M-15-6 states that unused narcotics are to be officially wasted, but records show(124a-127a) that policy M-15-6 was repeatedly violated on nursing unit 2D during the course of at least two years yet plaintiff is unaware of mass terminations as a result; plaintiff made Judge Oles aware of these violations prior to his granting of Summary Judgment. Judge Oles places the burden on plaintiff to obtain further proof that Community nurses were not discharged as a result of their failure to keep perfect records; such proof required plaintiff’s access to hospital patient records which were denied to him by defendants and by Judge Oles on the grounds of protecting patient confidentiality.
Unless defendants produce evidence of legitimate and impartial research that show otherwise, it cannot be credibly argued that plaintiff was the first nurse in Community’s 35-year history to make record keeping omissions for which a policy has been established (141a) of which Judge Oles was aware (185a/16:12-14); therefore defendants, who have access to hospital records unlike plaintiff, could have easily negated plaintiff’s existing legitimate claim of pretext by providing a verifiable list of the names of nurses who were terminated after their first citation for making meaningless record keeping omissions, and surely Judge Oles knows this, however no evidence was presented that Community has ever terminated a nurse after her first citation for making demonstrably meaningless and unintentional record keeping errors which have been shown to be inherent to staff nursing.
Further still, it is ludicrous to suggest that Community routinely conducts detailed and time-consuming investigations of nursing records; if such investigations were conducted, it is suggested that few if any staff nurses would survive the resulting carnage at Community if the standards imposed upon plaintiff were maintained. Judge Oles is fooling no one regarding his intellectually dishonest claim regarding the establishment of pretext(184a/15:14-22).
Judge Oles is fooling no one when he ignores clear evidence that the issue in this case is retaliation which explains plaintiff’s termination for any reason including, for example, not making special time notations that are mentioned herein. It is suggested that because of both plaintiff’s above average nursing performance and the complication introduced by Peer Review that he would not have been terminated for no reason (at will), therefore an incident such as the morphine theft was required. It is further suggested that after the morphine incident, defendants required an excuse to terminate plaintiff which is the only explanation for the irrelevant investigation of his nursing records which was guaranteed to provide an excuse. Judge Oles is fooling no one regarding his ignoring the true reason for Burke’s irrelevant investigation of plaintiff’s nursing records when he states that there is absolutely no evidence of retaliation in this case (62a).
PLAINTIFF’S INTERNAL COMPLAINTS
A. Education
Because of the multiple physicians who are associated with each patient at Community, quite often two medications with different names that perform the same pharmacological function will be ordered for a patient by two physicians. It was plaintiff’s experience that many of his colleagues gave ordered medications to the patients without knowledge of the medications' specific actions. In the case of blood thinners, plaintiff clearly remembers numerous instances in which two blood thinners, each working by the same mechanism, were given at the same time by his colleagues; this of course is equivalent to double-dosing, and in the case of blood thinners could lead to excessive bleeding by a cutting injury. The double-dosing of blood thinners is certainly more of a concern because of the impairment of the clotting mechanism than the double-dosing of either Xanax, Valium, or Percocet
Defendants as well as Judge Oles (62a) have stated that plaintiff never joined a committee at Community; this is true, and it is also irrelevant to his claim of CEPA violation, however the following explanation will describe how plaintiff's unsolicited advice was received by Community administrators.
Plaintiff did not have an opportunity to respond to an emergency at Community known as a 'code' until several years after he became a nurse. A 'code' refers to the instance in which a patient expires with the resultant efforts to resuscitate him. Used during a 'code' is an emergency piece of equipment known as a bag-valve device, and it is used to deliver oxygen to a patient who has stopped breathing. A rule of thumb is that the likelihood of irreversible brain injury increases exponentially after two minutes of respiratory arrest. It is also a fact that the respiratory arrest of a patient is most often not immediately discovered, and by the time resuscitation equipment arrives at the bedside this two-minute period is close to an end. The bag-valve device was kept at one time in a stand-by state of complete disassembly into four pieces. When plaintiff responded to his first code, he could not assemble the bag-valve device quickly which was primarily due to the stress involved in that type of situation but was in part also due to his unfamiliarity with the bag-valve device’s assembly. Over the years plaintiff had witnessed other unnecessary delays by other nurses regarding the assembly of the bag-valve device; it cannot be credibly argued that the combination of stress, even by experienced personnel, and the unfamiliarity with the device’s assembly could not cause a delay of up to 30 seconds in the delivery of oxygen to a patient who had stopped breathing. Plaintiff’s suggestion that the bag-valve device be completely assembled and ready to be put into immediate action, a measure that could have decreased the chances of a patient suffering irreversible brain injury, was rejected based on a majority vote by a committee (89a-90a). Regarding Judge Oles irrelevant statement about plaintiff’s failure to join a committee (62a), it is absurd to suggest that plaintiff’s concerns would not be addressed unless he joined a committee.
Plaintiff made clear his experience regarding the inadequacy of nursing education (3a and 80a); it is questionable that a committee ruled by majority vote would support plaintiff regarding his call for more rigid educational requirements rather than maintaining a system whereby educational credentials could be literally purchased through the mail.
Plaintiff’s repeated internal complaints regarding educational concerns, the use of diapers, and his concern about the bag-valve device may not have caused the retaliation evidenced by the morphine incident, but they were without doubt contributory to the decision to get rid of him once and for all after his complaint to the State Board of Health, therefore they must be allowed to remain part of this case. Plaintiff’s internal complaints were not opinions, but were reflections of observations of fact.
Plaintiff’s complaint about the bag-valve device is relevant to this case because one of his letters about its disassembly in the stand-by mode was the only one of his letters that Burke allegedly remembered (66a/46:2-11).
CONCLUSION
Plaintiff has shown numerous times that there are genuine issues regarding material facts in dispute which were ignored by Judge Oles. The facts in dispute by the plaintiff are in every case supported by reasoned explanations in synergy with established fact.
Plaintiff has overwhelmingly established a basis for legal action against the defendants, namely the establishment of all four legal elements regarding a CEPA claim plus the establishment of pretext. Because of demonstrably clear perjury by several hospital administrators, their testimony cannot be considered to be credible; at best, their testimony results in facts in dispute, yet Judge Oles based his decision regarding Summary Judgment on these individuals.
Defendants have a propensity to fabricate, disregard, and tailor policy to suit the occasion, and examples of this propensity are: the denial of requested legal representation when plaintiff was called to respond to allegations by Burke; the fabrication of a non-existent charting standard; plaintiff’s suspension against policy after the morphine incident; disregarding policy-mandated drug testing; disregarding a policy-mandated drug theft detection method which checks for patterns of unusual narcotic removals from Pyxis; fabricating an irrelevant and fraudulent, but formal, investigation into alleged narcotic theft that was not set forth by protocol, that did not include drug testing, that did not include the preparation of a written report, and that did not include relevant questions about plaintiff; and disregarding policy regarding disciplinary guidelines for documentation errors. When an employer tailors, fabricates, and disregards policies in order to effect a negative outcome for a long-time, above average employee who recently engaged in whistle-blowing activity, the employer is guilty of violating New Jersey law (NJSA 34:19-1 et seq.); Burke’s testimony that she was unaware of plaintiff’s Board of Health complaint, until the first deposition in this case. will surely not fool a jury. Because of the clear evidence that a jury will find in favor of plaintiff, the Appellate Court is requested to allow plaintiff to continue his quest for justice because of the wrong that has been done to him by the defendants, and the Appellate Court is requested to retain Counts One and Four of plaintiff’s complaint (22a-23a).
This appeal cannot exclude mention of Judge Oles’ clear attempt to conceal not only defendants’ unquestionably clear violation of CEPA, but that he is also clearly attempting to conceal on behalf of defendants evidence of a violation of federal law (Identity Theft Act, USC Title 18 section 1028) as well as evidence of violation of NJSA 2C:21-17(theft of identity), NJSA 2C:2-6/2C:5-2 (conspiracy), and NJSA 2C:28-1 (perjury); Judge Oles completely ignored strong evidence that supported the allegation that the morphine theft was orchestrated (trial court opinion, 56a-63a). Further, despite seemingly overwhelming evidence to support an orchestration scenario, Judge Oles states that, regarding the morphine incident, plaintiff was held responsible (57a) for all transactions that occurred under his PIN as if to underline plaintiff's guilt for allowing his PIN to be stolen by a trusted colleague who was tasked with that mission.
Instead of addressing relevant issues such as facts in dispute, Judge Oles addresses irrelevant topics such as plaintiff’s failure to join a committee (62a), the arguably incompetent conclusion (174a) of the State Board of Health who determined that plaintiff’s concern about diaper usage was unwarranted, and plaintiff’s failure to seek Peer Review (62a) in an atmosphere in which he strongly believed that the morphine incident was orchestrated; the ultimate outcome of Peer Review incidentally would have been decided, according to policy, by Manzo. Of course, as mentioned previously, Judge Oles lists (56a-63a) in detail each of plaintiff’s undisputed and demonstrably meaningless record keeping errors. Each of the irrelevant topics mentioned by Judge Oles were of course previously addressed by defendants.
It is no small concern that Judge Oles’ clear bias, which is clearly unfounded by the evidence in this case, is motivated by an obvious reason which is outside a court of law. If Summary Judgment is denied to defendants, plaintiff requests that a Change of Venue be ordered to Cape May County; a request for a Change of Venue has already been denied by Judge Oles. It is feared by plaintiff that the clear bias demonstrated by Judge Oles in favor of defendants is not a coincidence but is rather exemplary of politically-influenced judges at the Ocean County Superior Court in Toms River where Community Medical Center is located.
___________________
David A. Miller