                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
         parties in the case and its use in other cases is limited. R.1:36-3.



                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-1726-14T4

GINA MARIE MILLER,

        Plaintiff-Appellant,

v.

SHORE MEMORIAL HOSPITAL,
SHORE MEDICAL CENTER AND
VICTOR GAZZARA,

        Defendants-Respondents.

_______________________________

              Submitted October 5, 2016 – Decided November 28, 2016

              Before Judges Reisner and Koblitz.

              On appeal from Superior Court of New Jersey,
              Law Division, Atlantic County, Docket No. L-
              3333-12.

              Richard L. Press & Associates, attorneys for
              appellant (Richard L. Press, on the brief).

              Paisner Litvin, attorneys for respondents
              (Richard J. De Fortuna, of counsel and on the
              brief).

PER CURIAM

        Plaintiff Gina Marie Miller appeals from an October 31, 2014

order granting summary judgment, dismissing her complaint under
the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-

1 to -14.    We affirm.

     It is helpful to begin by considering CEPA and its proof

paradigm. CEPA is remedial legislation designed to "protect and

encourage   employees     to   report   illegal    or   unethical   workplace

activities and to discourage public and private sector employers

from engaging in such conduct."             Abbamont v. Piscataway Twp. Bd.

of Educ., 138 N.J. 405, 431 (1994).           The proof paradigm for a CEPA

case is similar to that used in cases under the Law Against

Discrimination, N.J.S.A. 10:5-1 to -42.            Kolb v. Burns, 320 N.J.

Super. 467, 477-79 (App Div. 1999).             To establish a prima facie

case under CEPA, the plaintiff must establish four prongs:

            (1) he or she reasonably believed that his or
            her employer's conduct was violating either a
            law, rule, or regulation promulgated pursuant
            to law, or a clear mandate of public policy;

            (2) he or she performed a "whistle-blowing"
            activity described in N.J.S.A. 34:19-3(c);

            (3) an adverse employment action was taken
            against him or her; and

            (4) a causal connection exists between the
            whistle-blowing activity and the adverse
            employment action.

            [Lippman v. Eithicon, Inc., 222 N.J. 362, 380
            (2015) (citation omitted).]

After the plaintiff presents a prima facie case,



                                        2                             A-1726-14T4
          [t]he burden of production then shifts "to the
          employer to articulate some legitimate,
          nondiscriminatory reason" for the adverse
          employment action. Once the employer does so,
          "the presumption of retaliatory discharge
          created by the prima facie case disappears and
          the burden shifts back to the [employee]." At
          that point, the employee must convince the
          fact finder that the employer's reason was
          false "and that [retaliation] was the real
          reason." The ultimate burden of proof remains
          with the employee.

          [Winters v. N. Hudson Reg. Fire & Rescue, 212
          N.J. 67, 90 (2012) (citations omitted).]

     We consider the issues in this case in light of those legal

principles.   Plaintiff, a social worker employed by the Shore

Medical Center (Hospital), claimed that the Hospital terminated

her employment as a reprisal, because she had engaged in whistle-

blowing activity protected by CEPA.   For purposes of the summary

judgment motion, the trial court found that plaintiff had engaged

in CEPA-protected whistle-blowing, a finding defendants do not

challenge on this appeal.1     While there was a four-month gap



1
   We note, however, that plaintiff failed to identify any
applicable law, rule, regulation, or professional code of ethics
that would support a whistle-blowing claim, with respect to her
complaint that a masters-degree candidate, serving as a Hospital
social work intern, delivered some legal papers to a judge's
chambers. That strict proof requirement - to identify the specific
basis for the whistle-blowing complaint - was emphasized in
Hitesman v. Bridgeway, Inc., 218 N.J. 8, 33 (2014), which was
decided a few months before the summary judgment motion in this
case. However, because the parties did not brief this issue, we
do not rest our decision on it.

                                3                          A-1726-14T4
between plaintiff's alleged whistle-blowing and her termination,

we will assume for purposes of this appeal that she satisfied the

relatively low threshold for presenting a prima facie case because

the manager about whom she complained participated in the decision

to fire her.     See El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J.

Super. 145, 168 (App. Div. 2005) (noting "that the evidentiary

burden at the prima facie stage of the analysis is 'modest,' or

even 'slight'") (citation omitted).

       There is no dispute that the Hospital presented proof of

legitimate non-retaliatory reasons for firing plaintiff.           The

central issue on this appeal is whether the summary judgment record

could support a finding that the Hospital's reasons were merely a

pretext for retaliation.    See Kolb, supra, 320 N.J. Super. at 478.

       Our review of the trial court's summary judgment order is de

novo, employing the same Brill2 standard used by the trial court,

and viewing the motion evidence in the light most favorable to

plaintiff.    See Lippman, supra, 222 N.J. at 367; Kolb, supra, 320

N.J. Super. at 471.    After reviewing the record in light of those

principles, we conclude that, even giving plaintiff the benefit

of all favorable inferences from the evidence, no rational jury




2
    Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

                                   4                          A-1726-14T4
would conclude that the Hospital's reasons for firing her were a

pretext for retaliation.       See Brill, supra, 142 N.J. at 540-41.

     The    undisputed    evidence,    meticulously    documented   in   the

hospital's    personnel     records,   established    that   plaintiff   had

endemic attendance and punctuality issues, going back several

years.     In fact, on January 19, 2011, about four months prior to

her termination, plaintiff had been given two warnings, including

a   third-level     final     disciplinary   warning     for    "poor    job

performance."     The third-level notice cited plaintiff for arriving

late for work or not showing up for work.        The warning put her on

notice that failure to improve could lead to termination.                The

warning had been preceded by at least two written notices from her

supervisor reminding her that she needed to be at work by 9:30

a.m. and noting her failure to arrive on time.

     On January 26, 2011, plaintiff received a memo dated January

25, 2011, from Victor Gazzara, the Hospital's Director of Patient

Relations and Social Services, and Christine Gabrielli, Manager

of Social Services, once again reminding her of the need to arrive

at work at the assigned hour, and reminding her to review her

email on a daily basis.

     On January 27, 2011, plaintiff made her "whistle-blowing"

allegations to the Human Resources Department.               She complained

that on January 19, 2011, Gazzara had allowed a social work intern,

                                       5                            A-1726-14T4
rather   than   a   social    worker,    to    deliver   a   civil   commitment

application to a judge.        She also complained that on January 14,

2011, Gazzara had made comments to her which she found insulting.

She further expressed concern that she received the third-level

warning "only 1 week after my job was changed and Victor came into

the dept."3

     The Human Relations (HR) Department investigated plaintiff's

complaint and sent her a letter concluding that further action was

not warranted.      The letter, dated February 10, 2011, memorialized

plaintiff's admission that she had discussed with Gazzara her

concerns about his comments and he had "apologized if he offended

[her] in any way."       The letter also advised that the leadership

of each department was responsible for deciding whom to assign to

deliver court papers, and the HR department could not intervene

in those decisions.       The letter also noted plaintiff's pending,

separate challenge to the disciplinary notices.

     On February 22, 2011, the Hospital's Vice President of Medical

Affairs,    Peter    Jungblut,    sent      plaintiff    a   detailed    letter

rejecting     her   appeals   from   the      second   and   third   corrective



3
  The record reflects that plaintiff was transferred into a new
assignment, where she was required to arrive at work an hour
earlier than she had previously been used to arriving. The record
also reflects that she did not comply with that new requirement,
but instead was repeatedly late to work.

                                        6                               A-1726-14T4
counseling     notices.       Jungblut's         letter   reviewed       plaintiff's

history of attendance problems since 2009, and noted that future

failure to follow Hospital guidelines could result in termination.

     Plaintiff's      employment         was     terminated     after    a    patient

complained,      on   April    20,       2011,     that      plaintiff       disclosed

confidential medical information to the patient's family without

the patient's consent.        If true, that would constitute a violation

of   federal     patient    privacy       law     (HIPAA).      When     plaintiff's

supervisor checked the patient's record, it did not contain any

documentation from plaintiff noting the required consent.                         At her

deposition, plaintiff testified that she did obtain the patient's

consent    and   documented        the   consent.     However,     the       patient's

records,     which    are     in    the        appendices,     contain       no    such

documentation, and defendant submitted undisputed evidence that a

patient documentation note, once placed in the computer system,

could not be deleted.

     According to the supervisor, a check of additional patient

records revealed that plaintiff did not document, or failed to

timely document, actions taken with respect to other patients.

Based on our review of the records in the appendices, it appears

that some of them do not document any contacts between plaintiff

and the patient and some of them do.                 Apparently, neither side

presented any legally competent evidence explaining each record,

                                          7                                    A-1726-14T4
other than the record of the patient who complained about lack of

consent.

     On May 5, 2011, the same day that plaintiff's supervisors

were meeting to discuss the HIPAA problems, they received notice

that a patient's family member had complained that plaintiff had

treated the family rudely.         During discovery, the woman who made

the complaint was deposed.          She testified that she spoke to a

hospital social worker about her daughter's serious drug and mental

health problems, and that the social worker was rude, unsympathetic

and, in the woman's view, treated her family like "trash."               The

woman testified that she complained about this treatment to the

Hospital administration.          At her deposition, plaintiff admitted

speaking to the woman, and admitted that the woman had complained

about her; however, plaintiff denied that she had been rude to the

woman.

     In    a   May   6,    2011   letter   to   plaintiff   confirming   her

termination, Gazzara noted the complaint from a patient about

plaintiff's unauthorized release of her medical information, and

plaintiff's failure to properly or timely document her contact

with patients.       Gazzara further noted plaintiff's admission that

she spoke to the patient whose family complained she was rude.             He

also stated that plaintiff failed to note the contact in that

patient's record.         Gazzara also cited the "extensive corrective

                                       8                            A-1726-14T4
actions within [plaintiff's] employee file over the years for both

time and attendance and poor job performance."

       Based on our review of the record, we conclude that plaintiff

failed    to   present   evidence    that     the   employer's     reasons    for

terminating her were not true or that they were merely an excuse

to retaliate against her.           Even if defendant was incorrect in

asserting that plaintiff failed to document all of the files

defendant cited, it is undisputed that she failed to document the

files of the patients who complained about her.             And, those HIPAA

errors and patient complaints occurred at a point where plaintiff

had already been warned several times that she would be terminated

if there were continued lapses in her job performance.                   See El-

Sioufi, supra, 382 N.J. Super. at 171. On this record, no rational

jury   could    conclude   that   the       employer's   reasons   for    firing

plaintiff were not only untrue but were motivated by retaliatory

intent.    Id. at 173-74.

       Affirmed.




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