Week Ending 5/23/14: Spina v. Board of Review

Alan Schorr’s Employment Case of The Week ending May 23, 2014

Spina v. Board of Review and Spina v. Developmental Disabilities Health Alliance, Inc. (Consolidated) 2014 N.J. Super. Unpub. LEXIS 1192 (App. Div., May 23, 2014)

In my humble legal opinion, the Appellate Division completely blew it this week in its horrible decision in the consolidated appeals of a CEPA claim and a related appeal of a disqualification for misconduct. Kelly Spina was a conscientious employee who was completely denied legal protection and then had her unemployment taken away to boot.

Ms. Spina worked as a respite worker, providing part-time care for a severely handicapped child in the child’s home. This poor child had enough challenges in her life, and to make matters worse, her mother died and her father was apparently overwhelmed and unable and perhaps uninterested in properly caring for this child. Ms. Spina worked for a private company who contracted with Defendant. Defendant is a private company that sub contracts with the New Jersey Division of Developmental Disabilities (NJDDD) to provide in home family support services to people with developmental disabilities and their families.

Ms. Spina’s duties were not medical in nature, although she did administer medicine as part of her daily duties. She fed and bathed the child, changed her diapers, prepared her for school, administered medication through a gastrostomy tube (G tube), and put her to sleep. During the day, the child went to school, where the school nurse would perform those same functions. Ms. Spina complained to her supervisor that the child was starting to act out and that the child’s father was screaming at the child, was not refilling her medication, and refused to take her to the doctor when she was sick.

In December 2009, Ms. Spina called the child’s school nurse and told her that the child had been vomiting and pulling out her G tube for the past three days, and asked if the child had been vomiting in school. Ms. Spina also told her own mother about her concerns and Ms. Spina’s mother called DYFS and anonymously reported the alleged abuse and neglect. (There are conflicting stories about whether the allegations were substantiated). The end result of her actions to protect this child is that she was terminated for violating HIPAA by disclosing “medical” information to the school nurse and to her mother.

She applied for unemployment, and, through a series of appeals, was disqualified for misconduct for violating HIPAA. Based upon the date, which pre-dated the severe misconduct statute, this must have been the 6 week penalty. She filed suit under CEPA, and the Trial Court granted summary judgment, holding that Ms. Spina was not a whistleblower subject to CEPA protection.

The Appellate opinion is full of glaring deficiencies in its legal analysis, some of which the Court blamed on the Plaintiff’s counsel for not submitting transcripts from the Motion for Reconsideration, which would have addressed the more important issues to be addressed. While I do not excuse counsel for not submitting the transcript, I also fault the Appellate Division. Each case has an assigned case manager. It should not be too much trouble for a case manager to pick up a phone or send an e-mail to advise a party that a very significant document is missing from the submission. Isn’t the object of appeals to get it right? I find that, more and more often, the Appellate Division places form over substance, which leads to bad decisions or non-decisions that could easily be avoided with a minimal amount of care and assistant from the App. Div. staff. But I digress.

Ultimately, this Appellate panel found that Ms. Spina had violated HIPAA, and therefore was properly denied unemployment. That decision is simply unsupportable by law. The Appellate Division relied upon Administrative Code, N.J.A.C. 10:41 5.2(d)1 9, which outlines the situations where medical information can be released. First of all, it is disputed whether this Code would even apply to Ms. Spina. She was hardly a medical provider, and her concerns were about abuse and neglect. More importantly, however, this Code appears to clearly permit disclosure under these circumstances.

N.J.A.C. 10:41-5.2(d)5 provides that disclosure can be made to “Medical staff outside of the Department who have assumed temporary medical responsibility for the individual shall have access to information and records as necessary for the treatment of the individual.” How could the school nurse not fit that description? The Appellate Division held that this did not protect Ms. Spina, because the report to the school nurse was "necessary for the treatment of the individual." How could that be? The call was to advise the school nurse that the child had been vomiting and pulling out her G tube. How is that not necessary for the child’s treatment? With regard to having her mother call DYFS, reports of abuse and neglect to DYFS are expressly exempted by N.J.A.C. 10:41-5.2(d)7. Here, the Appellate Division refused to excuse the report because her mother reported the concerns to DYFS instead of her. This ignores CEPA law that if you have someone else blow the whistle for you, it is still a protected act of whistleblowing. See Rivera v. City of Camden Bd. of Educ., 634 F. Supp. 2d 486 (D.N.J. 2009).

The bottom line is that the Appellate Division has again failed to protect a whistleblower, and have instead opted to punish the whistleblower. This will have a chilling effect on conscientious workers who try to protect the safety and well-being of others and is just another misreading of the law. It is very frustrating to see how far the Appellate Division was willing to go to deny CEPA protection to this conscientious employee.

One last note about Judge Fuentes, who participated in this decision. Judge Fuentes has been involved in some of the more egregious anti-CEPA opinions over the past couple of years. He was part of the majority in State v. Saavedra, where it was ruled (over Judge Simonelli’s dissent) that a whistleblower could be criminally prosecuted even where her actions were protected by CEPA. That case is currently before the Supreme Court, which granted interlocutory certification. He was also on the panel for White v. Starbucks, which denied CEPA protection to a conscientious employee who, the panel ruled, was just doing her job. Then, Judge Fuentes contradicted himself in the case of Lippman v. Ethicon, in which his panel protected an employee who blew the whistle even though it was his job to do so. The panel called the employee a “watchdog employee” entitled to special protection. Certification was also granted on that case. So if the Plaintiff appeals this case, Judge Fuentes will have three CEPA decisions before the Supreme Court simultaneously.

The inconsistency and sudden disfavor by some New Jersey Courts against whistleblowers is a frustrating and very serious trend. Hopefully the Supreme Court, during the next year, will clear up some confusion and support this very important public protection statute.

Plaintiff/Appellant’s Counsel: Andrea Fischer (Sadowski Fischer PLLC) of the New York bar, admitted pro hac vice, argued the cause for appellant (Cecile D. Portilla, Ms. Fischer and Robert W. Sadowski (Sadowski Fischer PLLC) of the New York bar, admitted pro hac vice, attorneys; Ms. Fischer, Ms. Portilla and Mr. Sadowski, on the briefs).

Defendant/Appellee’s Counsel: Bradley M. Wilson argued the cause for respondents Developmental Disabilities Health Alliance, Inc., Developmental Disabilities Health Services, P.A., and Developmental Disabilities Health Management, Inc. (Nowell Amoroso Klein Bierman, P.A., attorneys; Mr. Wilson, on the briefs).

Counsel for the Board of Review: John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review, Department of Labor (Alan C. Stephens, Deputy Attorney General, on the statement in lieu of brief).

Judges: Judges Fuentes, Simonelli, and Haas.

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