                                 NOT FOR PUBLICATION WITHOUT THE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-2264-18T2

DOUGLAS COOK and
GLENN M. DEITZ,

          Plaintiffs-Appellants,

v.

PRIME HEALTHCARE SERVICES –
ST. CLARE'S, LLC,

     Defendants-Respondents.
_________________________________

                   Argued January 23, 2020 – Decided June 29, 2020

                   Before Judges Nugent, Suter and DeAlmeida.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Sussex County, Docket No. L-0497-16.

                   Douglas C. Gray argued the cause for appellants
                   (Morris Downing & Sherred, LLP, attorneys; Paul
                   Gregory Hunczak, of counsel and on the brief; Douglas
                   C. Gray, on the brief).

                   Steven David Gorelick argued the cause for
                   respondents (Garfunkel Wild, PC, attorneys; Steven
                   David Gorelick and Michael J. Keane, of counsel and
                   on the brief).
PER CURIAM

      Plaintiffs, paramedics Douglas Cook and Glenn M. Deitz, appeal from

orders dismissing their amended whistleblower complaint, in part for failure to

state a claim and in part on summary judgment. Their amended complaint

alleges they were constructively discharged when defendant, Prime Healthcare

Services-St. Clare's, LLC (Prime), implemented an operational shift change that

prevented them from working a second job and refused them per diem work.

Because plaintiffs failed to plead a cause of action for constructive discharge,

and because plaintiffs failed to present evidence from which a jury could infer

Prime retaliated against them by subjecting them to an adverse employment

action, we affirm.

      This case commenced in 2016 when plaintiffs filed a two-count complaint

against Prime, the first count alleging they were subjected to an adverse

employment action in violation of the Conscientious Employee Protection Act

(CEPA), N.J.S.A. 34:19-1 to -14, and the second count alleging wrongful

termination contrary to a clear mandate of public policy. Prime moved pursuant

to Rule 4:6-2(e) to dismiss the complaint for failure to state a claim upon which

relief could be granted, and the court granted the motion without prejudice.




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                                       2
      Plaintiffs filed an amended complaint in which they alleged the same two

causes of action but added more detail. On Prime's motion to dismiss for failure

to state a claim, the court granted the motion as to plaintiffs' CEPA theory based

on the operational shift change but denied the motion as to plaintiffs' CEPA

theory based on Prime refusing them per diem work. The court also granted the

motion as to the complaint's second count alleging plaintiffs were constructively

discharged contrary to a strong public policy mandate.

      Following the close of discovery, defendants moved for summary

judgment. The court granted the motion and denied plaintiffs' application for

reconsideration. Plaintiffs filed this appeal.

      The allegations in the amended complaint and the evidence on the

summary judgment motion record disclose the following facts. Plaintiffs were

employed by St. Clare's Health System for more than nine years, and both were

full-time night shift paramedics when Prime acquired St. Clare's in October

2015. Plaintiffs worked in Advanced Life Support (ALS) Unit 504. Each also

worked a second job.

      A few weeks after Prime acquired St. Clare's, plaintiffs asserted Prime had

introduced new policies that were illegal. Cook claimed the policies included

requiring paramedics to "steer" patients to Prime-owned satellite emergency


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                                         3
rooms. Plaintiffs specified neither the source nor the method of communication

of these alleged illegal policies. Prime promptly responded to Cook, noting he

claimed to have expressed these concerns over the past several years, yet implied

he had received this information during recent meetings.           Prime denied

plaintiffs' assertions and politely suggested Cook was acting on misinformation

and rumors.

      Plaintiffs remained employed by Prime from October 2015 until June

2016, when they separated from employment.            They claimed they were

constructively discharged, but they left after Prime restructured shift hours that

were incompatible with plaintiffs' second jobs.

      In May 2016, Prime wrote to all employees assigned to two of its

ambulance units, 504 and 506, and explained that a shift change would occur

effective July 2016. Citing "operational needs," the two units would transition

from a twenty-four-hour schedule to an eighteen-hour schedule to eliminate

overnight hours. As a result, full-time employees in those units would now work

two eighteen-hour shifts per week rather than the current schedule of three

twelve-hour shifts.   Assigned to unit 504, plaintiffs' work hours would be

affected, and they reacted quickly.




                                                                          A-2264-18T2
                                        4
      Cook asserted in a letter to Prime's manager that the shift change would

adversely impact the community's safety, affect Prime's legal and ethical

obligations to the Department of Health, and affect his ability to hold his second

job. He emphasized, "Due to the excessively long shifts I am concerned for my

safety, for that reason I will most likely have to resign, take a [per diem] position

if available or transfer to a truck that is farther away."

      Prime personnel met with Cook the first week in June and offered him a

full-time position in another unit where he could return to three twelve-hour

shifts per week. Cook declined because the 7:00 p.m. to 7:00 a.m. shift Prime

offered did not fit his schedule—he had been working a 6:00 p.m. to 6:00 a.m.

shift—and the new unit was fifty-minutes away compared to his current ten-

minute commute. Cook requested a per diem shift. Prime claimed there were

none available. Cook followed up the meeting with a letter stating that he "still

contend[s] that the reduction of [his] specific unit is a direct retaliation for [his]

past correspondence regarding [St. Clare's] EMS violations and the Certificate

of Need (CN) and the administrative code surrounding the operations of a

satellite ED."

      In a subsequent email, after reiterating these and other accusations, Cook

stated: "At this time due to the safety and hardship that accompanies the only


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                                          5
options that have been presented I have to decline the 504, 505, and 502

positions and anxiously await my [per diem] opportunity." Cook stated that

"[t]his is by no means a resignation, as I have no intention of resigning my

position. I have been an employee for 10 years, as I am being forced out, part-

time employees with less seniority currently occupy Per Diem positions, as well

as positions that are both at the same location, same rotation and same hours as

I currently [have]."

      Prime responded that because Cook had declined all options and no per

diem positions were available, it would "consider this a voluntary resignation."

Cook replied that he never resigned from his position, and Prime had simply

"changed the terms of my employment in such a way that it is impossible for me

to do my job, hence this is a termination." Cook then gave his two weeks' notice

and set his "termination day" for June 24, 2016.

      Deitz also objected to the shift change. He too had a meeting in early June

2016 with Prime management, asked about per diem availability, and was told

there were no per diem positions available. Deitz followed up with an exchange

of emails accusing Prime of retaliating against him because of his complaint

concerning the new ambulance procedures. He told Prime, "[y]ou have left me

no choice but to resign my position under duress."          After further email


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                                       6
exchanges, Deitz gave his two weeks' notice and set his termination for June 23,

2016.

        Plaintiffs filed their initial two-count complaint in September 2016. In

count one, they alleged retaliation in violation of CEPA, claiming they

"reasonably believed that [St. Clare's] and Prime's conduct, activities, directives,

practices and procedures," had "(i) constituted violations of a law, or a rule or

regulation promulgated pursuant to law, (ii) constituted fraudulent or criminal

acts, and/or (iii) were incompatible with a clear mandate of public policy

concerning the public health, safety or welfare." Specifically, they alleged this

conduct included "the overall contraction of [St. Clare's] EMS Services to

Sussex County, the use of ALS units to transport patients in Sussex County, the

'steering' of patients to Prime facilities, and the 'steering' of patients to the

facilities not appropriate for their care including the Sussex SED." Plaintiffs

asserted that "[a]s a result of [p]laintiffs' objection to, refusal to participate in,

and threats to report such conduct, [d]efendants took adverse employment

actions against [p]laintiffs including but not limited to constructively

terminating them," and as such, they violated CEPA.             Count two alleged

wrongful termination in violation of public policy.




                                                                              A-2264-18T2
                                          7
      The court granted Prime's motion to dismiss the complaint pursuant to

Rule 4:6-2(e) for failure to state a claim on which relief could be granted. The

dismissal was without prejudice.      Plaintiffs filed an amended complaint in

March 2017 that mirrored the first complaint but provided additional

information about the per diem shift structure and made further allegations of

targeting and retaliation. Plaintiffs alleged Prime "preclud[ed] them from

moving into per diem positions consistent with [d]efendants' standard

practices," in addition to their claim of constructive termination.

      Prime filed another motion to dismiss for failure to state a claim. The

court granted Prime's motion in part as to the CEPA shift change and

constructive discharge claims but denied the motion as to plaintiffs' retaliation

claims based on per diem hiring. For the shift change claim, the court found

"the record [did] not demonstrate plaintiffs suffered an adverse employment

action related to the shift change." The court noted there was no controlling

New Jersey case law finding a shift change implemented by management as to

classes of employees to be in and of itself an adverse employment action. No

case law suggested an employer had to consider individual employees when

setting departmental policies, so the record did "not demonstrate plaintiffs

suffered an adverse employment action due to the implementation of a


                                                                         A-2264-18T2
                                        8
department-wide shift change." As such, the court found plaintiffs failed to

plead a cause of action for constructive discharge that was "so intolerable that a

reasonable person subject to [those conditions] would resign."

      Regarding the availability of per diem shifts, however, the court found

"there [was] a question of material fact as to whether plaintiffs were denied a

per diem position due to whistle-blowing activity." The court found the record

was unclear as to whether per diem positions existed at that time, whether

plaintiffs would have been denied per diem positions prior to the complaint, and

whether such a denial would have qualified as an adverse employment action

under CEPA.

      Discovery disclosed that a per diem paramedic position had opened and

had been posted internally on June 23, 2016. Prime filled the position with an

employee who had emailed Prime on May 24, 2016, and expressed interest in

the next available per diem position. Though Prime invited plaintiffs to monitor

the employment website for per diem openings, plaintiffs conceded they did not

apply for any per diem openings after their resignations because of Prime's

allegedly retaliatory attitude. Plaintiffs considered Prime's hiring of the other

person for the June 2016 per diem position, instead of either of them, to be

further evidence of retaliation.


                                                                          A-2264-18T2
                                        9
      Following discovery on the "per diem issues," Prime moved for summary

judgment. The trial court granted the motion and issued an order accompanied

by a written decision. In its decision, the court found "[p]laintiffs fail[ed] to

raise a triable issue of material fact as to whether an adverse employment action

occurred."   The court explained Prime had not deviated from its standard

procedures for assigning employees to per diem shifts, and plaintiffs could not

demand a per diem position if one was not available. The court found plaintiffs

"offer[ed] only their own self-serving assertions to support their contention that

full-time employees were entitled to [per diem] assignments as a matter of

right."

      The court acknowledged Prime had hired a per diem paramedic instead of

either plaintiff. However, this employee had expressed interest in the next

available position as early as May, and plaintiffs did not express interest in per

diem positions until early June, a time when no per diem positions were

available. The court found the other employee held priority over plaintiffs for

the next available position, having expressed interest in the position first in time.

The court further found plaintiffs terminated their own employment by declining

two options for continued work offered by Prime. Despite management inviting




                                                                             A-2264-18T2
                                        10
plaintiffs to apply for other positions after their resignations, they did not make

any further attempts to apply.

      The court found "no evidence in the record that Cook or Deitz applied for,

inquired about, or took any action to seek a [per diem] position after resigning

on June 9th," and that plaintiffs conceded that fact because they "believed that

taking further effort to seek employment with Prime would be 'unavailing.'"

This did not constitute an adverse employment decision because plaintiffs

"elected to end the employment relationship."

      This appeal ensued. We affirm, substantially for the reasons expressed by

the trial court in its opinions dismissing the amended complaint in part for

failure to state a claim upon which relief could be granted and thereafter

dismissing the complaint in its entirety on summary judgment. We add the

following comments.

      First, plaintiffs resigned. Prime did not terminate their employment. Nor

were plaintiffs constructively discharged.       To prevail on a constructive

discharge claim, a plaintiff must prove "not merely 'severe or pervasive

conduct,'" but also "conduct that is so intolerable that a reasonable person would

be forced to resign rather than to continue to endure it." Shepherd v. Hunterdon

Developmental Ctr., 174 N.J. 1, 28 (2002). Plaintiffs were subject to no such


                                                                           A-2264-18T2
                                       11
conduct. Rather, they were dissatisfied with an operational change in the

structure of shifts, a managerial prerogative and decision that affected all

employees who worked the restructured shifts, not merely plaintiffs.

      Next, as the trial court determined, plaintiffs pleaded and proffered no

facts, but rather only conclusory assertions and unsupported suppositions, that

they were targeted by the managerial decision to restructure the shifts and

suffered an adverse employment action.     To establish a CEPA claim, a plaintiff

must allege and prove, among other elements, that "an adverse employment

action was taken against him or her. . . ." Lippman v. Ethicon, Inc., 222 N.J.

362, 380 (2015). Plaintiffs neither pleaded nor proffered proofs of facts from

which a reasonable juror could conclude management's operational change was

directed against them. Moreover, as the trial court noted, plaintiffs have cited

no precedent that managerial decision-making must include consideration of the

possible impact of managerial decisions on jobs one or two employees might

have with other companies.

      Last, as to plaintiffs' claims concerning per diem work, they offered no

competent evidence on the summary judgment motion from which a reasonable

juror could have concluded either that per diem work was available at the time

they rejected Prime's offers to work different shifts, or that under the standing


                                                                         A-2264-18T2
                                      12
policy, plaintiffs were entitled to priority over other employees who had

requested and been promised per diem work before plaintiffs requested it.

      In short, plaintiffs neither pleaded nor proffered competent evidence they

were constructively discharged, targeted for an adverse employment action, or

deprived of per diem work due to whistle-blowing activity. Their arguments to

the contrary are without sufficient merit to warrant further discussion. R. 2:11-

3(e)(1)(E).

         Affirmed.




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                                      13
