MYERS v. ATLANTIC HEALTH SYSTEMS et al

Filing 124

OPINION. Signed by Judge John Michael Vazquez on 1/20/17. (jr)

Not for Publication
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

CORINNE MYERS,

Plaintiff
V.

Civil Action No. 13-47 12

ATLANTIC HEALTH SYSTEMS, et al,
Defendants.

OPINLON

John Michael Vazgucz, U.S.D.J.

This matter comes before the Court by way of the motion for summary judgment filed by
Defendants Atlantic Health Systems (“Atlantic”), Joseph Pasquarosa and Dorothy Zadllo
(collectively “Defendants”). D.E. 108. Plaintiff Codnne Myers filed a brief in opposition (D.E.
118) to which Defendants replied (D.E. 121). The Court reviewed the submissions made in support
and in opposition to the motion, and considered the motion without oral argument pursuant to Fed.
R. Civ. P. 78(b) and L. Civ. R. 78.1(b). For the reasons stated below, Defendants’ motion is
GRANTED.

I.

FACTUAL AND PROCEDURAL BACKGROUND

1.

Factual Background’

During the relevant time period, Plaintiff was a part-time nurse on “JI,” the surgical unit
at Morristown Medical Center (“MMC”). MMC is owned by Atlantic. DSOMF

¶jJ

1, 8. As

part

of her duties, Plaintiff “routinely used an automated medication dispensing machine known as a
Pyxis

[1

.

.

.

,

[to] access and withdraw medications.” Id.

¶

15. The Pyxis is a “computerized

device that links electronic medical records to the dispensation of medicines.” PIP s Cert. ¶ 14 n.l.
Atlantic’s Pharmacy Department circulated automated monthly reports, called “Pandora
Data Systems Anomalous Usage Reports,” to department managers that showed nurses’ Pyxis
medication activity. DSOMF

¶

18; see also Certification of Thomas Carlough, Pharm D ¶jJ 3-4,

6, D.E. 121-4 (explaining that he generated monthly reports). After receiving the October 2012
report, the J I manager, Defendant Dorothy Zarillo, contacted Risk Management because she
noticed that Plaintiffs use of Dilaudid, was “significant’ when compared to other nurses on the
unit.”2 DSOMF

¶1J 20-21.

ZaHilo’s report was referred to security officer Manford Ayers, who

created an incident report. Id.

¶J

21, 23. The incident report indicates that Human Resources

The factual background is taken from the record, including the following sources: (I) Defendants’
Statement of Undisputed Material Facts (“DSOMF”), D.E. 108-2; (2) the Certification of Steven
F. Ritardi (“Ritardi Cert.”) and supporting exhibits, D.E. 108-3 to -5; (3) Plaintiffs
Counterstatement to DSOMF (“PIP s Counterstatement”), D.E. 117; and (4) Plaintiffs
Certification Opposing Summary Judgment (“PIP s Cert.”), D.E. 116.
2

Dilaudid, a branded name for hydromorphone, is an opioid pain medication that is used to treat
moderate to severe pain. See Dilaudid, https://www.drugs.com/dilaudid.html (last visited January
19, 2017).
7

representative Kathy Sortino was contacted, “briefed and agreed to [Plaintiffs] suspension,
pending further investigation.” Id.

¶ 24;

Ritardi Cert. Ex. 13. As a result, on November 8, 2012,

Ayers, Sortino, and an additional, unnamed security officer met with Plaintiff

Plaintiff was

advised that Atlantic was investigating an issue with the Pyxis, and she was suspended while the
investigation was pending. DSOMF

¶ 26.

The matter was referred to Atlantic’s corporate investigations unit for further inquiry and
was assigned to Defendant Joseph Pasquarosa. Id.

¶ 27.

The end result of the investigation appears

to be an internal confidential memorandum, dated November 13, 2012. DSOMF
Cert. Ex. 17.

9

29: Ritardi

The report concluded that there was insufficient information to “conclusively

establish diversion,” but that diversion was a possibility. As a result, the report recommended,

¶

31. Pasquarosa then called

¶ 32.

Due to Plaintiff’s statements

among other things, further investigation by security. DSOMF
Plaintiff and asked to meet with her on November 14,2012. Id.
during the November 14 meeting, she was tenTlinated. Id.

¶ 38.

The parties’ have different accounts as to what occurred during the November 14 meeting.
The parties do not dispute that Plaintiff voluntarily attended the meeting, which took place in
Pasquarosa’s office in the MMC security office. Id. ¶933-35; P1? s Cert.

¶

18; Ritardi Cert. Ex. 4,

121:14-16. Plaintiff. Pasquarosa, Zarillo and at least one additional security officer were present.
DSOMF

¶ 35;

P1? s Cert.

¶

18. The parties also do not dispute that during the meeting Plaintiff

admitted to diverting drugs and signed a written statement admitting to the diversion. DSOMF 91
41-42; PIt’s Cert.

¶9

19-20.

3

Plaintiff alleges that she was forced to falsely confess to diverting drugs at the November
14 meeting and participate in the Recovery and Monitoring Program (“RAMP”). At the time, she
believed that if she did not do so, she would lose her nursing license, her job, and her pension.3
Pit’s Cert.

¶1J

18-21. Plaintiff contends that she thought she could not leave the meeting until she

made this false confession, testifying that Pasquarosa told her that she needed to sign the false
confession before she left. Id.; Ritardi Cert. Lx. 20, 193:9-13. As a result, she “felt it to be
understood that [she] could not leave.” Ritardi Cert. Lx. 4, 166:1-18. Plaintiff also testified that
during the meeting, there was a security officer standing behind her, between her and the door, and
that during the meeting a second officer entered the office. Ritardi Cert. Ex. 20, 189:20-190:10.
Plaintiff does not contend that anyone at the meeting physically touched her, restrained her from
leaving, raised their voice, or verbally threatened her. Ritardi Cert. Ex. 4, 166:12-18. In addition,
Plaintiff was not told that she was prohibited from leaving and did not fear for her safety at any
point. Id., 157:10-15. Finally, Plaintiff also testified that she was told that there were multiple
police officers in the hallway who were prepared to arrest her, and that if she changed her statement
to say that she was giving the drugs to other people she would receive a “lesser” punishment. Id.,
125:23-126:5; PIt’s Counterstatement9 18.

Plaintiff also alleges that she did not understand that she was tenninated when the meeting
concluded. Rather, she believed that by agreeing to participate in RAMP, a voluntary treatment
program that is run by the State Board of Nursing, she would be allowed to continue working at
MMC upon completion of the RAMP program. PIP s Counterstatement ¶ 12. Plaintiff did not
understand that she was terminated until she had a phone conversation with Sortino later in
November 2012. See Ritardi Cert. Ex. 4, 156:1-10.
4

Defendants maintain that Plaintiff was terminated due to poor documentation and
mismanagement of a controlled substance. DSOMF ¶ 38; Ritardi Cert. Ex. 29. Plaintiff, however,
contends that she was terminated in retaliation for two whistleblowing activities.1 DSOMF

¶ 68.

The first incident involved the death of an elderly patient in late summer of 2012. Plaintiff alleges
that she went to the patient’s room to see if her assistance was needed because there was a “code,
meaning she was unresponsive.” P1? s Cert.

¶

8. Plaintiff states that when she got to the

patient’s room, nobody was attending to the patient, the doctor was on the phone discussing a DNR
[Do Not Resuscitate order] with the patient’s family, and the nurses were “standing around,
waiting for orders.” Id. After “a very long phone call,” the family reftised to authorize a DNR so
the treating physician and nurses “began to attend to her and were able to get a pulse.” Id. The
patient was transferred to the ICC but allegedly died about twenty minutes later. Id. Plaintiff
claims that she complained about this patient’s care to three members of the nursing staff the day
the incident occurred. Id.

¶ 9.

Plaintiff also alleges that about a month later, in October 2012, she

told educator Barbara Markt about the incident and that she wanted to report the incident. Id.

¶

10.
The second incident concerned Plaintiffs reftisal to work in “step-down.” Step-down is
“a category of beds on the [s]urgical floor reserved for people who had been moved out of ICC

Defendants address two additional incidents that could potentially form the basis of a New Jersey
Conscientious Employee Protection Act (“CEPA”) claim; complaints regarding a change to the
nurse to patient ratio and an anonymous letter criticizing Zarillo. See Defs’ Br. at 14-15, 19.
Plaintiffs opposition to the motion for summary judgment does not discuss these incidents in the
context of her CEPA claim. The Court, therefore, will not construe these events as forming the
basis of Plaintiffs CEPA claim.

‘

[the intensive care unit], but who were not yet ready for the general [s]urgical floor.” SAC

¶ 7.

Plaintiff alleges that in September 2012, she refused an assignment to work in step-down because
Plaintiff did not feel competent to work in the unit without prior training. P11 s Cert.

¶ 7.

Plaintiffs

refusal was allegedly reported to Zadulo, “who was angered by [her] refusal of the assignment.”

Id.
2. Procedural History
Plaintiff filed her complaint on August 6, 2013 and filed an amended complaint the
following day. D.E. 1,3. On October 18. 2013, Defendants filed a motion to dismiss, which was
granted in part and denied in part.5 D.E. 25. As a result, Plaintiff filed a second amended complaint
on March 30, 2014 (the “SAC). D.E. 17. The SAC asserts (1) perceived disability claims under
the Americans with Disabilities Act (the “ADA”) and the New Jersey Law Against Discrimination
(the “NJLAD”) based on allegations that Defendants’ perceived Plaintiff to be a drug addict; (2)
wrongful termination claims under the New Jersey Conscientious Employee Protection Act
(“CEPA”) due to the alleged whistleblowing activities; and (3) tort claims for false imprisonment,
defamation, intentional infliction of emotion distress (“lIED”), and negligent investigation. Id.
After discovery was concluded, Defendants filed this motion for summary judgment on May 13,
2016. D.E. 108.
Defendants argue that Plaintiff does not establish the prima fade elements of a CEPA claim
for either of the alleged whistleblowing events because she fails to identify a law, rule, regulation,

In response to Defendants’ motion to dismiss, Plaintiff filed a cross-motion seeking leave to
amend. This motion was denied because the claim that Plaintiff sought to amend, a Section 1983
claim, was dismissed. D.E. 13.
6

or public policy that she reasonably believes Defendants violated.

Defs’ Br. at 8-13, 15-18.

Defendants contend that even if the Court concludes that Plaintiff establishes a prima fade CEPA
claim, she does not raise a genuine issue of material fact demonstrating that Defendants’
legitimate, non-retaliatory reason for her termination, that she mismanaged and poorly documented
her use of a controlled substance. was a pretext. Id. at 19-22. Defendants next argue that summary
judgment should be granted for Plaintiffs ADA and NJLAD claims because “by her own
admission, none of the defendants perceived or believed that she was a drug abuser,” Id. at 24.
As a result, Plaintiff fails to establish aprimafhcie perceived disability claim under either law. Id.
at 22-28. Defendants also posit that Plaintiff cannot establish a claim for false imprisonment
during the November 14 meeting because she cannot establish that she experienced a reasonable
apprehension of the use of force to detain her. Id. at 28-30. As for Plaintiffs defamation claim,
Defendants argue that summary judgment should be granted because she does not establish that
Defendants’ made any defamatory statements. Id. 30-33. Finally, Defendants posit that Plaintiffs
claims for lIED and negligent investigation are waived pursuant to CEPA because they arise out
of the same events that are involved in her CEPA claim. Id. at 36.
Plaintiff argues that her objections regarding the care that was provided to the elderly
patient and her reftisal to work in step-down violated several provisions of the American Nurses
Association (“ANA”) Code of Ethics and New Jersey public policy. Therefore, Plaintiff alleges
that she was a whistleblower under CEPA. PLfs Br. at 6-7. Plaintiff also argues that summary
judgnwnt should be denied for her tort claims because there are material issues of fact. Id. at 7-9.
Plaintiff, however, fails to specifically identify any disputed issues of material fact. Plaintiff does
7

not offer opposition to Defendants’ arguments regarding her perceived disability claims or the
CEPA waiver.
II.

SUMMARY JUDGMENT STANDARD

A moving party is entitled to summary judgment where “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). A fact in dispute is material when it “might affect the outcome of the suit
under the governing law” and is genuine “if the evidence is such that a reasonablejury could return
a verdict for the nonmoving party.” Anderson

i’.

Libert Lobby, Inc., 477 U.S. 242, 248 (1986).

Disputes over irrelevant or unnecessary facts will not preclude granting a motion for summary
judgment. Id. “In considering a motion for summary judgment, a district court may not make
credibility determinations or engage in any weighing of the evidence; instead, the nonmoving
party’s evidence ‘is to be believed and all justifiable inferences are to be drawn in his favor.”
Marino

i’.

Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at

255)). A court’s role in deciding a motion for summary judgment is not to evaluate the evidence
and decide the truth of the matter but rather “to determine whether there is a genuine issue for
trial.” Anderson. 477 U.S. at 249.
A party moving for summary judgment has the initial burden of showing the basis for its
motion and must demonstrate that there is an absence of a genuine issue of material fact. Celotex
C’orp. v. aurett, 477 U.S. 317, 323 (1986). After the moving party adequately supports its motion,
the burden shifts to the nonmoving party to “go beyond the pleadings and by her own affidavits,
or by the depositions, answers to interrogatodes, and admissions on file, designate specific facts
8

showing that there is a genuine issue for trial.” Id. at 324 (internal quotation marks omitted). To
withstand a properly supported motion for summary judgment, the nonmoving party must identi’
specific facts and affirmative evidence that contradict the moving party. Anderson, 477 U.s. at
250. “[hf the non-movant’s evidence is merely ‘colorable’ or is ‘not significantly probative,’ the
court may grant summary judgment.” Messa v Omaha Prop. & Cas. his. Co., 122 F. Supp. 2d
523, 528 (D.N.J. 2000) (quoting Anderson, 477 U.S. at 249-50)).
Ultimately, there is “no genuine issue as to any material fact” if a party “fails to make a
showing sufficient to establish the existence of an element essential to that party’s case.” Celotex
Corp., 477 U.S. at 322. “If reasonable minds could differ as to the import of the evidence,”
however, summary judgment is not appropriate. See Anderson, 477 U.S. at 250-5 1.
III.

ANALYSIS
1.

CEPA Claim

Defendants argue that Plaintiff does not establish the prima facie elements of a CEPA claim
because she fails to identify a law, nile, regulation, or public policy that she reasonably believes
was violated. Defs’ Br. at 8-13, 15-18. Plaintiff counters that both of the whistleblowing activities
implicate various provisions of the ANA Code, and the care that was provided to the elderly patient
violates New Jersey public policy. PIP s Br. at 6-7.
CEPA, N.J.S.A. 34:19-I, ci seq., permits a whistleblowing employee to bring suit against
an employer that retaliated against her through an adverse employment action.

Winters

i.

N.

Hudson Reg? Fire & Rescue, 212 N.J. 67, 89 (2012). Courts use the burden-shifting framework
set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) to analyze CEPA claims. Id.
9

at 90. Thus, the employee carries the initial burden of establishing aprimaJhcie case of retaliation.
The burden then shifis to the employer to “articulate some legitimate, nondiscriminatory reason
for the adverse employment action.” Id. (quoting McDonnell Douglas Corp., 411 U.S. at 802).
Next, the employee must establish that “the employer’s reason was false and that retaliation was
the real reason.” Id. (quoting Blackburn v. United Parcel Sen., Inc., 179 F.3d 81. 92 (3d Cir.
1999)) (internal quotation marks and brackets omitted).
To establish aprima facie case under CEPA, a plaintiff must show that: (1) she reasonably
believed that her employer’s conduct was violating a law, nile, or regulation promulgated pursuant
to law, or a clear mandate of public policy; (2) she performed a “whistleblowing” activity; (3) an
adverse employment action was taken against her; and (4) a causal connection exists between the
whistleblowing activity and the adverse employment action. Brown

i’.

City of Long Branch, 380

F. App’x 235, 239 (3d Cir. 2010).
To satisfy the first element of a prima /hcie case, “a plaintiff must identify the authority
that provides a standard against which the conduct of the defendant may be measured.” Tinio v.
Saint Joseph Reg’l Med. Ctr., 645 F. App’x 173, 178 (3d Cir. 2016) (quoting Hitesman v.
Bridgeway, Inc., 218 N.J. 8, 31 (2014)). A licensed health care professional may satisfy this
element by demonstrating that a defendant’s conduct or policy “constitutes ‘improper quality of
patient care’, that is, ‘violates any law or any nile, regulation or declaratory ruling adopted pursuant
to law, or any professional code of ethics.” Klein v. Univ. of Med. & Dentisr;y of N.J., 377 N.J.
Super. 28,42 (App. Div. 2005) (citing N.J.S.A. 34:19-3(c)(l), -2(f)). A plaintiff may also satisfy
this standard by identifying “a clear mandate of public policy concerning the public health, safety,
10

or welfare.” Hitesman v. Bridgen’av, Inc., 218 N.J. 8, 33 (2014) (citing N.J.S.A. 34:19-3(c)(3)).
The clear public policy “must be clearly identified and firmly grounded.” Id. at 34 (quoting
Melilmati

i

Mobil Oil Corp., 153 N.J. 163, 181 (1993fl; see also Thno. 645 F. App’x at 178 (“In

order for a substantial nexus to exist, the mandate of public policy “cannot be vague” and must
“provide[] [a] standard by which
a.

.

.

.

a deficiency can be ascertained.”).

The Elderly Patient Incident

Plaintiff contends that the ANA Code of Ethics supports her whistleblowing claim, arguing
that in Hitesman, the court concluded that the ANA Code could be a sufficient source to support a
CEPA claim.6 PIP s Br. at 7. In Hitesnian, a nurse brought a CEPA claim after he was allegedly
terminated for voicing concerns about patients’ rate of infectious diseases to the defendant
employer’s management. Hitesman, 219 N.J. at 14. The court, however, concluded that the ANA
Code “does not constitute a source of law or other authority bearing a ‘substantial nexus’ to
[Defendant’s] conduct” because it did not govern defendant’s patient care. Id. at 36. As a result,
the plaintiff’s CEPA claim failed as a matter of law. Id. at 15. Plaintiffs reliance on the ANA
Code here is lacking for the same reasons. The ANA Code does not provide any general standards
for obtaining a DNR or treating patients while a DNR is obtained, and it does not govern Atlantic’s
policies as to patient care. Thus, “it provides no standard under which a factfinder could determine
whether plaintiff held an objectively reasonable belief that [Atlantic] delivered an ‘improper
quality of patient care.” Id. at 37. In addition, the ANA Code does not represent a clear expression

6

Plaintiff references three subsections of the ANA Code: (I) Section 1.4— the patient’s right to
seLf-determination; (2) Section 2.1 primacy of patient’s interests; and (3) Section 3.5—protection
of patient health and safety. PIP s Br. at 7.
II
—

of public policy.

Id. at 37 (“Nor does the ANA Code prescribe for [defendant] a ‘readily

discernible course of action that is recognized to be in the clear public interest,’ from which we
can discern a ‘clear mandate of public policy.’”).
Plaintiff also argues that “it is public policy of this state to care for hospital patients who
have not given DNR orders[.]” Pit’s Br. at 6. Plaintiff maintains that In re Quinlan, 70 N.J. 10
(1976), and Betancourt v. Triniras Hosp., 415 N.J. Super. 301 (App. Div. 2010), are the source of
this public policy. Quinlan and Betancourt address the continuation of medical care for patients
who are in a persistent vegetative state. Quinlan, 70 N.J. at 23-26; Betancotirt, 415 N.J. Super. at
305. While Quilan and Betancourt do generally address patients’ right to life neither discusses the
parameters of DNR orders. Therefore, neither case is a sufficient expression of a clear public
policy regarding procedures for obtaining a DNR or specific aspects of patient treatment.
“[M]erely couching complaints in terms of a broad-brush allegation of a threat to patients’ safety
is insufficient to establish the first prong of a CEPA claim.” KIei,z, 377 N.J. Super. at 42.
Therefore, Plaintiff fails to satisfy the first element of a CEPA claim with respect to this
alleged whistleblowing incident.
b.

Refusal to Work in Step-Down

Plaintiff also alleges that her refusal to work in step-down is consistent with ANA Code
4.4. which addresses the assignment and delegation of nursing activities or tasks. Pit’s Br. at 7.
But again, as discussed, the ANA Code does not provide any standards for hospital staffing policies
and does not represent a clear expression of public policy regarding nurse staffing. As a result,
Plaintiff fails to satisfy the first element ofaprimafacie CEPA claim.
12

Because Plaintiff fails to establish the first element ofapnmafacie CEPA claim the Court
need not address the remaining prinzajhcie elements or Defendants’ burden under the McDonnell
Douglas framework.7 Defendants’ motion for summary judgment is granted as to the CEPA claim.
2.

Perceived Disability Claims

Defendants argue that summary judgment should be granted for the perceived disability
claims under the ADA and NJLAD because Plaintiff fails to establish that Atlantic believed she
was a drug abuser. Defs’ Br. at 22-25. Plaintiff does not address Defendants’ arguments as to her
ADA and NJ LAD claims.
In the SAC, Plaintiff asserted perceived disability claims under the ADA, 42 U.S.C.

§

12101, etseq., and NJLAD, N.J.S.A. 10:5-2. “Both the ADA and the NJLAD afford protections
to a person who does not have a disability, but is ‘perceived as’ or ‘regarded as’ having a
disability.” Dennis

§

12l02(3)(A)).

i.

County ofAtlantic, 863 F. Supp. 2d 372, 378 (D.N.J. 2012) (citing 42 U.S.C.

To prove either claim, a plaintiff must establish a prima fade case of

discriminatory discharge by showing (I) she is disabled or perceived to have a disability; (2) she
was otherwise qualified to perform the essential functions of the job, with or without reasonable
accommodations; (3) she was fired; and (4) the employer sought someone else to perform the same
work. Id.

In addition, the Court notes that Plaintiff fails to provide evidence that creates a genuine issue of
material fact as to whether either of the individual Defendants were even aware of Plaintiffs
alleged whistleblowing activities. Plaintiff does not address either Defendants’ knowledge
regarding the elderly patient incident. And although Plaintiff alleges that ZadIlo “was angered”
by her reftzsal to work in step-down, Plaintiff testified that she does not know if her refusal was in
fact reported to Zarillo. See Ritardi Cert. Ex. 4, 231:2-7.
13

A person may be regarded as disabled under the ADA even if they “have none of the
impairments covered by the ADA” so long as she is perceived to have such an impairment. Walker
v. U.S. Sec. oft/xe Air Force. 7 F. Supp. 3d 438, 454 (D.N.J. 2014) (quoting Buskirk v. Apollo
Metals, 307 F. 3d 160, 166 (3d Cir. 2002)) (internal brackets omitted). “[T]he regarded-as analysis
‘focuses

.

.

.

on the reactions and perceptions of the persons interacting or working with him.” Id.

(quoting Kelly v. Drexel Univ., 94 F.3d 102. 108-09 (3d Cir. 1996)). Thus, the relevant inquiry is
whether the employer perceived the plaintiff “as disabled within the meaning of the ADA, not
whether [plaintiff] was actually disabled.” Es/xe/man ic Agere Ss., I,zcc, 554 F.3d 426, 434 (3d
Cir. 2009) (citing Capobianeo v City ofNew York, 422 F.3d 47, 57 (2d Cir. 2005)). To establish
a perceived disability claim under the NJLAD, “the plaintiff must show that the employer
entertained misperceptions about the plaintiff,

.

.

.

believing that the individual has a substantially

limiting impairment that he or she does not have.” Jnconari v. Best Bu Co., Inc., No. 10-1939,
2010 WL 4807062, at *5 (D.N.J. Nov. 16, 2010) (quoting Ec/dzaus

i’.

Consot Rail Corp., No. 00-

5748. 2003 WL 23205042, at *9 (D.N.J. Dec. 24, 2003)).
Plaintiff alleges that Atlantic perceived her as having a substance abuse problem. A drug
addiction may constitute a disability. Skinner v. Cit-v of Amsterdam. 824 F. Supp. 2d 317, 330
(N.D.N.Y. 2010); In

C’ahill, 245 N.J. Super. 397, 400 (App. Div. 1991). Plaintiff, however,

fails to provide evidence establishing that Atlantic actually thought that she had such a problem.
Rather, through her deposition testimony, “Plaintiff tacitly.
no merit.

.

.

concedes” that her allegations have

Defs’ Br. at 25; see, e.g., Ritardi Cert. Ex. 4, 179:22-180:7 (“1 believe that I was

terminated out of revenge and that did they

—

do I feel like they truly thought I was a drug addict,
14

no.”); Id. 125:23-126:5 (“He said.

.

.

not one of them felt orwas convinced as well ashimselfthat
); Ritardi Cert. Ex. 20, 182:7-12. Because

I was a drug addict using drug, abusing drugs

Plaintiff does not provide facts upon which a reasonable jury could conclude that Atlantic
perceived her to be disabled, she does not set forth a prima fade claim under the ADA or NJ LAD.
Summary judgment, therefore, is granted to Defendants for Plaintiffs claims under the ADA and
NJ LAD.
3.

False Imprisonment

Defendants argue that Plaintiff fails to establish that she experienced a reasonable
apprehension of force such that summary judgment should be granted as to Plaintiffs claim for
false imprisonment. Defs’ Br. at 28-30. In response, Plaintiff contends that summary judgment
should be denied because there are numerous issues of fact. Plfs Br. at 7-8.
“A person is falsely imprisoned when that person’s freedom of movement is constrained.”
Maietta

i’.

United Parcel Sen., Inc., 749 F. Supp. 1344, 1367 (D.N.J. 1990). The tort of false

imprisonment has two elements: (I) detention of the person against her will; and (2) lack of proper
legal authority or legal justification. Leang v. Jersey CTh’ Bd. of Educ.. 198 N.J. 557. 591(2009).
Detention “may be effectuated by force or by threats of force communicated through conduct or
words.” Maietta, 749 F. Supp. at 1367. Threats of force “must be such as would ‘induce a
reasonable apprehension of force, and the means of coercion must beat hand.” Id. (quoting Earl
v. Whine. 14 N.J. 119, 127 (1953)).
Plaintiff does not allege that anyone physically touched or prevented her from leaving the
November 14 meeting. Therefore. Plaintiffs claim hinges on whether Defendants’ words or
15

conduct created a reasonable apprehension that force would be used to restrain her. Plaintiff
testified that she was never told she could not get up from her chair or leave the meeting. Ritardi
Cert. Ex. 4, 157:10-15. In addition, Plaintiff does not allege that anyone raised their voice or
verbally threatened her. Id., 166:12-18. Plaintiff, however, “felt it to be understood that [she]
could not leave,” and Pasquarosa told her that she needed to sign the false confession before she
left. Id., 166:1-18. Plaintiff also testified that there was a security officer standing behind her, a
second officer entered the office during the meeting, and police officers were waiting in the
hallway.8 fd.. 189:20-190:10.
Giving credence to Plaintiffs version at this stage, she clearly felt pressure to stay.
However, there is not a genuine issue of material fact as to whether there was a threat of force.
The record is devoid of facts demonstrating that Plaintiff feared for her safety or believed that
Defendants would physically prevent her from leaving the meeting. See. e.g., Maietta, 749 F.
Supp. at 1367 (granting summary judgment to defendant for false imprisonment claim where
plaintiff was never told he could not leave the room, did not request to leave or fear for his safety,
and defendants did not scream, yell, or verbally threaten him). At best, the facts demonstrate that
Plaintiff felt internally compelled to stay and sign the confession in order to keep herjob. The
threat of losing a job, however, does not constitute a threat of force. See Zavala

i’.

Wal-Mart

Stores, Inc.. 393 F. Supp. 2d 295, 334 (D.N.J. 2005): see also Leang, 198 N.J. at 591 (concluding
that Plaintiff was not falsely imprisoned where she voluntarily went to office and chose to remain

Plaintiffs allegation as to the police officers is a red herring. Plaintiff does not allege that she
believed that the police officers would use force to keep her in Pasquarosa’s office. Instead, she
infers that the officers were waiting to arrest her.
16

8

in order to better her chances of being rehired). Consequently, Defendants’ motion for summary
judgment is granted as to this claim.
4.

Defamation

Defendants argue that summary judgment should be granted for Plaintiffs defamation
claim because Plaintiff fails to identify the source of the alleged defamatory statement and because
the alleged statement was true. Defs’ Br. at 31-32. Plaintiff again responds that there are jury
questions such that summary judgment should be denied. PIP s Br. at 9.
To prove defamation, a plaintiff must establish that the defendant made a defamatory
statement of fact concerning the plaintiff that was false and communicated to a person other than
the plaintiff. A plaintiff must also establish fault. Govito v. [V

JerSey

Health .Svs.. Inc., 332 N.J.

Super. 293, 305 (App. Div. 2000) (citing Peggans v Biffington, 291 N.J. Super. 382, 390-91 (App.
Div. 1996)). Statements that are substantially true are not defamatory. Ta br v. Amcor Flexibles
Inc.,

669 F. Supp. 2d 501, 513 (D.N.J. 2009). Here, Plaintiff alleges that “[bJy falsely accusing

Plaintiff of drug diversion and/or substance abuse, and by staining her professional record with her
designation for RAMP, Defendants have libeled and slandered her, and damaged her personal and
professional reputation.” SAC

¶ 30.

Plaintiff does not identify any specific defamatory statements

in her complaint, but testified in her deposition that a man from an employment agency based in
New York brought up her lawsuit and that it had something to do with drug diversion. Ritardi
Cert. Ex. 20, 26:13-28:24; 30:10-31:9. Plaintiff, however, does not know how the employment
agency learned of the lawsuit and provides no evidence suggesting that Defendants communicated
this information to the unnamed employment agency. Id., 27:22-24. Moreover, Plaintiff initially
17

made information about her alleged drug diversion public by filing this lawsuit. As a result, to the
extent this unnamed agency learned about the lawsuit by reading Plaintiffs complaint, it does not
constitute an actionable statement because it was made by Plaintiff, not Defendants. If, however,
the agency learned about the lawsuit by reading Defendants’ answer or other document related to
this litigation it is bared by the doctrine of judicial immunity. “A statement made in the course
of judicial

.

.

.

proceedings is absolutely privileged and wholly immune from liability.” Kidd v.

Sup. Nursing Care, Inc., No. 08-504, 2008 WL 2945960, at *2 (D.NJ. July 28, 2008) (quoting

Erickson v. Mars/i & AicLennan Co.. 117 N.J. 539, 563 (1990)). As a result, Plaintiffs defamation
claim fails with regard to any statement involving the employment agency.
Plaintiff also testified that her defamation claim is premised on the fact that Atlantic was
not returning reference calls from potential employers and that employers are able to find out that
she participated in RAMP. Ritardi Cert. Ex. 20, 29:3-23; 31:10-18. These allegations, however,
Thus, Plaintiffs

do not involve any affirmative statements that were made by Defendants.
defamation claim fails and summary judgnwnt is granted to Defendants.
5.

Intentional Infliction of Emotional Distress and Negligent Investigation

Defendants argue that by asserting a CEPA claim, Plaintiff waived her right to bring the
intentional infliction of emotional distress (“lIED”) and negligent investigation claims. DeEs’ Br.
at 33-37. Plaintiff does not address Defendants’ arguments as to waiver.
“[O]nce a CEPA claim is ‘instituted,’ any rights or claims for retaliatory discharge based
on a contract of employment; collective bargaining agreement; State law

.

.

.

; or regulations or

decisions based on statutory authority, are all waived.” Young v. Schering Cop., 141 N.J. 16,29
18

(1995). Causes of action that fall into this waiver provision are those that “are directly related to
the employee’s termination due to disclosure of the employer’s wrongdoing.” han v. County qf
Middlesex, 595 F. Supp. 2d 425, 465 (D.N.J. 2009) (quoting Ealco v. Cmty. Med. Ctr., 296 N.J.
Super. 298, 318 (App. Div. 1997)). Causes of action that are “substantially independent” are not
waived. Id. In this instance, Plaintiff alleges that she suffers severe emotional distress because
“Defendants were reckless and negligent in their accusations that Plaintiff had either diverted
Dilaudid or consumed it personally.” SAC ¶132-35. Similarly, Plaintiff alleges that Defendants
breached their duty to exercise reasonable care and thoroughness when investigating the alleged
diversion of controlled substances.

Id.

¶fflJ

36-39.

These allegations are directly relevant to

Plaintiffs CEPA claim; specifically, they pertain to Defendants’ burden to establish a legitimate,
nondiscriminatory reason for Plaintiffs termination. The fact that the Court did not actually reach
this issue does not matter because the CEPA complaint was actually litigated and decided on the
merits. Thus, the LIED and negligent investigation claims are bared.’3 See, e.g., Falco, 296 N.J.
Super. at 3 17-18 (affinting dismissal of related state law claim as preempted due to decision on
the merits for CEPA claim); Urbanski v. Township of Edison, No. A-2129-12T2, 2014 WL

Even if it were not bared, summary judgment would be granted as to Plaintiffs negligent
investigation claim because such a cause of action does not exist under New Jersey law. See
Campbelli’. Supreme Court ofNew Jersey, No. 11-555,2012 WL 1033308, at *3 n.5 (D.N.J. Mar.
27, 2012) (“[T]his Court concludes that New Jersey law does not recognize ‘negligent
investigation’ as an independent cause of cause.”). Summaryjudgrnent would also be granted for
Plaintiffs lIED claim because Plaintiff does not establish facts upon which a jury could conclude
that Defendants’ actions were “so outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in
a civilized community.” Buckley v. Trenton Saving Fund Soc., 111 N.J. 355, 366 (1988).
19

‘

183966, at *7 (App. Div. Jan. 17, 2014) (concluding that lIED claim was barred even though
CEPA claim was dismissed at summary judgment).
IV.

CONCLUSION

For the foregoing reasons and for good cause shown, Defendants’ motion for summary
judgment(D.E. 108) is GRANTED. An appropriate form of order accompanies this opinion.

Dated:

January

20,

2017

John Michael Vazquez,

20