                                NOT FOR PUBLICATION WITHOUT THE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-2249-17T2

MARA OLIVA,

          Plaintiff-Appellant,

v.

SAINT JOSEPH'S REGIONAL
MEDICAL CENTER, a corporation
or business organization, NARINE
KAPRELIAN, individually, and/or
as agent, servant, or employee of
SAINT JOSEPH'S REGIONAL
MEDICAL CENTER, and TINA
MILES, individually, and/or as agent,
servant, or employee of SAINT JOSEPH'S
REGIONAL MEDICAL CENTER,

     Defendants-Respondents.
___________________________________

                    Submitted March 19, 2019 – Decided May 16, 2019

                    Before Judges Rothstadt, Gilson and Natali.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Bergen County, Docket No. L-9920-15.

                    Mara Oliva, appellant pro se.
             Jackson Lewis PC, attorneys for respondents (Ronald
             V. Sgambati, of counsel and on the brief; Robert J.
             Cino, on the brief).

PER CURIAM

      Plaintiff Mara Oliva filed a complaint against her former employer,

St. Joseph's Regional Medical Center (St. Joseph's)1, and two supervisors,

alleging defendants terminated her employment in violation of the

Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14. After

the completion of discovery, the trial court granted summary judgment to

defendants. Plaintiff appeals from an October 10, 2017 order granting summary

judgment and a December 1, 2017 order denying her motion for reconsideration.

Plaintiff did not establish a prima facie case of a CEPA violation. Accordingly,

we affirm.

                                       I.

      We discern the facts from the summary judgment record, viewing them in

the light most favorable to plaintiff, the non-moving party. See Globe Motor

Co. v. Igdalev, 225 N.J. 469, 479-80 (2016) (citing R. 4:46-2(c)).




1
   According to defendants' brief, St. Joseph's Regional Medical Center was
incorrectly pled as Saint Joseph's Regional Medical Center.
                                                                        A-2249-17T2
                                       2
      Plaintiff worked for St. Joseph's from 2008 until 2015. She was first hired

as a Psychiatric Emergency Services (PES) clinician. In 2012, she was promoted

to the position of Certified Screener, which she held until her termination in

August 2015. As a screener, plaintiff interviewed patients to evaluate whether

they needed to be admitted for involuntary psychiatric treatment. Before a

patient could be committed involuntarily, a number of procedures had to be

followed as required by New Jersey law, regulations, and court rules. See, e.g.,

N.J.S.A. 30:4-27.5 and 27.9; N.J.A.C. 10:31-2.3; R. 4:74-7.             Moreover,

St. Joseph's had its own internal policy governing commitments, which

supplemented the requirements imposed by the State.

      On Tuesday, July 14, 2015, plaintiff sent an email to her manager, Tina

Miles, which thanked her for approving a vacation request and raised an issue

concerning plaintiff's supervisor, Narine Kaprelian.      As to the issue with

Kaprelian, the email stated:

            I would like to mention in this email, that I have
            observed lately that Narine is pushing (me) to write
            reports of evaluations before having the case reviewed
            with the psychiatrist and having a final disposition. I
            understand that sometimes [the Emergency Room] is
            busy and she wants to rush cases, but if we are unable
            to contact the psychiatrist immediately, or [the
            psychiatrist] is busy with other cases, unfortunately the
            cases will have to wait until being able to be completed


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                                       3
            since I do not feel comfortable writing a report when
            there is no[] disposition available.

      The next day, Miles sent a reply email to plaintiff explaining that a

screener can complete part of an evaluation before talking with the psychiatrist.

Miles stated:

            In regards to writing eval[uation]s prior to talking with
            the [p]sychiatrist, I think that part of the eval[uation]
            can always be completed. I know that when we are
            busy during the day and see [patients] quickly, I tell
            staff to complete everything up [to] the diagnosis,
            recommendation, and integration summary until you
            have the chance to speak with the psychiatrist. That
            way, once you do finally speak with them, there is not
            too much to complete. I know that many times on the
            evening shift staff is waiting for [the psychiatrist] to
            come in . . . so this can expedite the process. Many
            times eval[uation]s are done over a period of time, and
            we don't have to have it typed out all at the same time.
            This also shows that we are continually working with
            that patient and documenting information.

            Please let me know if you have any questions.

      Thereafter, plaintiff and Miles had no further communication regarding

plaintiff's complaint about Kaprelian's instructions for completing evaluation

reports. Moreover, Miles testified that she never forwarded plaintiff's email to

Kaprelian because she did not think that Kaprelian was doing anything wrong.

Kaprelian testified that she was not aware of plaintiff's complaint to Miles until

plaintiff sued her in November 2015.

                                                                          A-2249-17T2
                                        4
        On July 16, 2015, plaintiff began her regular shift at St. Joseph's at 5 p.m.

At approximately 8 p.m., Kaprelian telephoned the PES office, where plaintiff

was working, to assign her a patient. Kaprelian was unable to reach plaintiff.

She explained that she made "multiple calls" to the office where plaintiff was

assigned and called the station where another screener was assigned to ask if

they had seen plaintiff.

        At approximately 9 p.m., two other screeners, J.M. and K.H.,2 informed

Kaprelian that they had observed plaintiff sleeping. At their depositions and in

their certifications, J.M. and K.H. confirmed that they had observed plaintiff

sleeping in the PES office on July 16, 2015, and that they reported that

information to Kaprelian.

        Later that evening, at 10:03 p.m., Kaprelian emailed Miles and another

St. Joseph's employee to report that plaintiff had been sleeping while at work.

In her email, Kaprelian explained she had been attempting to contact plaintiff

for ninety minutes to assign her a case. She had called the PES office multiple

times, but there was no answer, and eventually she assigned the case intended

for plaintiff to a different clinician "because it was taking too long . . . to find

her."


2
    We refer to certain individuals by their initials in order to protect their privacy.
                                                                                A-2249-17T2
                                            5
      Kaprelian also stated that at about 9:25 p.m., she called the PES office on

a different matter and plaintiff answered the phone. Kaprelian reported that she

asked plaintiff where she had been for the past ninety minutes, and plaintiff

responded: "What are you talking about? I have been in the office the whole

time." In her email to Miles, Kaprelian explained that she spoke with J.M., who

informed her that plaintiff had been in the PES office sleeping.

      Five days later, on July 21, 2015, Miles contacted plaintiff to inform her

that she was suspended pending an internal investigation by human resources.

That same day, human resources began its investigation. That investigation was

conducted by Employee Relations Manager L.S. As part of her investigation,

L.S. conducted a series of interviews, including interviewing plaintiff.

      By July 30, 2015, L.S. had completed her investigation. On that date, she

sent an email to the St. Joseph's Vice President of Human Resources explaining

that she was "recommending termination for [plaintiff] . . . for sleeping on the

job." She noted that she had "met with [plaintiff] and also spoken to four other

employees, two of [whom] witnessed [plaintiff] sleeping on that day July 16th."

She explained that plaintiff denied the allegations, however, on the night at

issue, plaintiff's supervisor was unable to contact plaintiff and, thus, could not

assign her a patient to evaluate. L.S. also documented that she had collected


                                                                           A-2249-17T2
                                        6
plaintiff's "ID Badge Report and . . . video footage which refutes [plaintiff's]

explanation that she was in the [Emergency Department] during the time in

which she was being sought by [Kaprelian]."

      On August 3, 2015, Miles and another St. Joseph's employee met with

plaintiff to discuss the human resources investigation. During that meeting,

Miles informed plaintiff that the investigation had revealed a witness who

observed plaintiff sleeping while at work. Miles then informed plaintiff she was

being terminated. Thereafter, in a letter dated August 5, 2015, Miles confirmed

that plaintiff's employment was terminated because she had slept on the job.

      On November 12, 2015, plaintiff filed a complaint against defendants

alleging retaliation and wrongful termination in violation of CEPA.

Specifically, plaintiff alleged that she was terminated for complaining that

Kaprelian had been pressuring her "to complete her mental health evaluations

without consulting with the staff psychiatrist for final disposition," which

plaintiff had objected to in her July 14, 2015 email to Miles.

      The parties then engaged in discovery, which included depositions of

plaintiff, Miles, Kaprelian, and L.S. At the close of discovery, defendants

moved for summary judgment.




                                                                        A-2249-17T2
                                        7
      The motion court heard oral argument and, on October 10, 2017, it issued

an order and written decision granting defendants' motion for summary

judgment and dismissing plaintiff's complaint with prejudice.         In granting

summary judgment to defendants, the court focused on CEPA's requirement that

plaintiff reasonably believed that her employer's conduct violated a law, rule , or

regulation.   The court noted that in opposing summary judgment, plaintiff

contended that certain statutes and regulations required a screener to consult

with a psychiatrist before completing the screener's recommendation.

Specifically, plaintiff pointed to N.J.S.A. 30:4-27.1 to -27.5 and Rule 4:74-7.

The court analyzed those statutes and the rule and concluded that neither the

statutes nor the rule required a screener to consult with a psychiatrist before

making the screener's recommendation.         Instead, the court noted that the

requirement plaintiff was relying on was set forth in an internal policy

established by St. Joseph's. The court pointed out that an internal policy does

not constitute a law, rule, or regulation for purposes of CEPA. Accordingly, the

court granted summary judgment because plaintiff had not demonstrated "a

substantial nexus between the complained of conduct" and a law, regulation, or

public policy. The court also found that plaintiff's belief that a violation had

occurred was not objectively reasonable.


                                                                           A-2249-17T2
                                        8
      Plaintiff moved for reconsideration, which the court denied after hearing

oral argument. In its oral decision placed on the record on December 1, 2017,

the court considered and rejected plaintiff's arguments as to N.J.S.A. 30:4-27.5

and Rule 4:74-7, finding plaintiff was presenting the same arguments she

previously presented at summary judgment, and thus, was not entitled to

reconsideration. The court also considered two new regulations that plaintiff

argued she reasonably believed Kaprelian's conduct had violated. Specifically,

plaintiff directed the court to N.J.A.C. 13:35-6.5(b) and N.J.A.C. 10:31-2.3(j).

The court analyzed both regulations and determined those regulations did "not

indicate that Kaprelian's instructions were illegal." Thereafter, the court found

"there is no rule, regulation, or statute that was violated in this case." After

granting plaintiff the benefit of all legitimate inferences, the court concluded

that she had only shown an objectively reasonable belief that "one or more

members of the hospital staff did not follow [St. Joseph's] internal policy."

                                       II.

      Plaintiff now appeals from the October 10, 2017 order granting summary

judgment to defendants, and the December 1, 2017 order denying

reconsideration.   She argues the motion court erred in granting summary

judgment to defendants because she established a prima facie claim of a CEPA


                                                                          A-2249-17T2
                                        9
violation.   Specifically, she contends that the court misunderstood the

requirements for bringing a claim under CEPA, and that its misunderstanding

led it to grant summary judgment to defendants. Moreover, she argues that the

court failed to view the facts in the light most favorable to her and, thus, failed

to recognize genuine disputes as to material facts.

      We review a grant of summary judgment using the same standard that

governs the motion court's decision. RSI Bank v. Providence Mut. Fire Ins. Co.,

234 N.J. 459, 472 (2018) (citing Bhagat v. Bhagat, 217 N.J. 22, 38 (2014)).

Under that standard, summary judgment will be granted when "the competent

evidential materials submitted by the parties," viewed in the light most favorable

to the non-moving party, show that there are no "genuine issues of material fact"

and that "the moving party is entitled to summary judgment as a matter of law."

Grande v. Saint Clare's Health Sys., 230 N.J. 1, 23-24 (2017) (quoting Bhagat,

217 N.J. at 38); accord R. 4:46-2(c). "An issue of material fact is 'genuine only

if, considering the burden of persuasion at trial, the evidence submitted by the

parties on the motion, together with all legitimate inferences therefrom favoring

the non-moving party, would require submission of the issue to the trier of fact.'"

Id. at 24 (quoting R. 4:46-2(c)). We owe no special deference to the motion




                                                                           A-2249-17T2
                                       10
court's legal analysis or its interpretation of a statute. RSI Bank, 234 N.J. at

472; Hitesman v. Bridgeway, Inc., 218 N.J. 8, 26 (2014).

      CEPA is a remedial statute that promotes the public policy of New Jersey

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." Hitesman, 218 N.J. at 27 (first quoting Battaglia v. United

Parcel Serv., Inc., 214 N.J. 518, 555 (2013); then quoting Dzwonar v. McDevitt,

177 N.J. 451, 461 (2003)). Accordingly, the statute "shields an employee who

objects to, or reports, employer conduct that the employee reasonably believes

to contravene the legal and ethical standards that govern the employer's

activities." Ibid. See also N.J.S.A. 34:19-3(a) and (c).

      To demonstrate a prima facie CEPA violation, a plaintiff must establish:

            (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.


                                                                        A-2249-17T2
                                      11
            [Lippman v. Ethicon, Inc., 222 N.J. 362, 380 (2015)
            (quoting Dzwonar, 177 N.J. at 462); accord Puglia v.
            Elk Pipel)ine, Inc., 226 N.J. 258, 280 (2016).]

"[T]he court decides, as a matter of law, whether or not a plaintiff has carried

his or her burden of demonstrating the elements of [a] prima facie case[.]"

Tartaglia v. UBS PaineWebber Inc., 197 N.J. 81, 125 (2008).

      In evaluating whether a CEPA plaintiff has offered sufficient evidence to

prove his or her claim, New Jersey courts apply the three-step burden shifting

framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

See Winters v. N. Hudson Reg'l Fire & Rescue, 212 N.J. 67, 90 (2012) (citing

Grigoletti v. Ortho Pharm. Corp., 118 N.J. 89, 97 (1990)).            Under that

framework, once the plaintiff has satisfied her or his initial burden of showing

the elements of a prima facie case,

            [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.

            [Ibid. (second and third alterations in original)
            (citations omitted) (first quoting McDonnell Douglas
            Corp., 411 U.S. at 802; and then quoting Blackburn v.

                                                                         A-2249-17T2
                                      12
            United Parcel Serv., Inc., 179 F.3d 81, 92 (3d Cir.
            1999)).]

      Here, plaintiff's claim fails because she had no evidence to support the

fourth prong needed to establish a prima facie case under CEPA. In other words,

she made no causal connection between her complaint about Kaprelian and her

termination. In her complaint, and at her deposition, plaintiff identified her

whistleblower activity as objecting to Kaprelian pressuring her to complete her

evaluations before speaking with a psychiatrist. In that regard, she s tated she

made that complaint in an email she sent to Miles on July 14, 2015.

      Miles testified that she never forwarded plaintiff's July 14, 2015 email to

Kaprelian because she considered it a "non-issue" since, in Miles' view,

Kaprelian "wasn't doing anything wrong." Moreover, Miles pointed out at her

deposition that she had responded to plaintiff and had taken the position that

Kaprelian was acting appropriately. Accordingly, Miles testified that she did

not communicate with Kaprelian regarding the contents of plaintiff's email.

Miles also testified that after sending her response email to plaintiff, plaintiff

never raised any questions and, therefore, Miles thought the issue had been

resolved.

      At her deposition, Kaprelian testified that Miles did not relay plaintiff's

complaint to her and that she was not aware of the complaint until plaintiff filed

                                                                          A-2249-17T2
                                       13
her lawsuit, which was well after Kaprelian reported plaintiff for sleeping while

at work and well after plaintiff had been fired.        Moreover, the adverse

employment action in this case—plaintiff's termination—only occurred after

human resources conducted an investigation. Kaprelian testified that she was

not involved in the human resources investigation beyond providing the initial

report that plaintiff had been sleeping at work. Likewise, Miles testified that

she did not participate in the human resources investigation beyond providing

requested documentation. Furthermore, both Kaprelian and Miles testified that

they had not been involved in the decision to terminate plaintiff. Consequently,

after completing discovery, plaintiff had no evidence showing a causal

connection existed between her whistleblowing activity and her termination.

      On this appeal, plaintiff argues that the trial court incorrectly granted

summary judgment because it found there had been no violation of a law, rule,

or regulation.   Plaintiff contends that the correct focus is on whether she

reasonably believed that her employer's conduct was violating a law, rule , or

regulation. Because we conclude that plaintiff cannot establish the fourth prong

of the prima facie showing of a CEPA violation, we need not reach that issue.

See Shim v. Rutgers, 191 N.J. 374, 378 (2007); State v. Williams, 444 N.J.

Super. 603, 617 (App. Div. 2016) ("It is well-established that a reviewing court


                                                                         A-2249-17T2
                                      14
can affirm a decision on different grounds than those authorities offered by the

court being reviewed.").

      We do point out, however, that plaintiff has changed her position

concerning what law, rule, or regulation she reasonably believed was being

violated. On the initial summary judgment motion, plaintiff argued that she

believed Kaprelian had violated N.J.S.A. 30:4-27.5 and Rule 4:74-7. Thereafter,

on her motion for reconsideration, plaintiff argued that she reasonably believed

that Kaprelian had pressured her to violate N.J.S.A. 30:4-27.5, Rule 4:74-7,

N.J.A.C. 13:35-6.5(b), and N.J.A.C. 10:31-2.3(j).

      Before us, plaintiff does not argue that any of those statutes were violated

or that she reasonably believed they were being violated; rather, she relies on

two new statutes: N.J.S.A. 2C:21-4.1, which makes it a fourth-degree crime to

purposefully falsify a medical record, and N.J.S.A. 30:4-27.9(c), which limits

involuntary commitment to seventy-two hours without a temporary court order.

We decline to consider these new arguments because they were not properly

presented to the trial court. See Correa v. Grossi, ___ N.J. Super. ___, ___ n.2

(App. Div. 2019) (slip op. at 4); State v. Robinson, 200 N.J. 1, 20 (2009)

("[A]ppellate courts will decline to consider questions or issues not properly

presented to the trial court when an opportunity for such a presentation is


                                                                          A-2249-17T2
                                      15
available unless the questions so raised on appeal go to the jurisdiction of the

trial court or concern matters of great public interest." (quoting Nieder v. Royal

Indem. Ins. Co., 62 N.J. 229, 234 (1973)). Here, plaintiff is not raising a matter

of great public interest that would warrant our review of her new arguments.

      Finally, we also affirm the summary judgment in favor of defendants

because plaintiff cannot survive the burden-shifting paradigm under CEPA.

Even if plaintiff had presented a prima facie showing of a CEPA violation,

St. Joseph's articulated a legitimate non-discriminatory reason for plaintiff's

termination. In that regard, St. Joseph's presented evidence that plaintiff was

fired because she was sleeping while at work.        A review of the summary

judgment record establishes that plaintiff did not and could not raise a genuine

issue of material fact that her termination for sleeping while at work was

pretextual. She presented no evidence showing Kaprelian knew of the July 14,

2015 complaint plaintiff made to Miles.       Moreover, plaintiff presented no

evidence that the investigation conducted by human resources was not

legitimate. L.S. testified at her deposition that she based her recommendation

to terminate plaintiff on statements made by two employees who had observed

plaintiff sleeping, phone call logs showing Kaprelian had repeatedly called the

PES office where plaintiff was assigned, and security video footage that


                                                                          A-2249-17T2
                                       16
independently verified plaintiff was not in the emergency department where she

claims she was when Kaprelian was looking for her.

      Affirmed.




                                                                      A-2249-17T2
                                     17
