In spring 2014, I was approached by the director (the “health care facility’s director,” the “director” or “my director client”) of a large health care facility owned and operated by a county within the State of New Jersey. Days earlier, the chief officer of the county’s health services department had brought a disciplinary proceeding charging the director with supposed “inefficient management,” “inability to perform duties,” “ineffective leadership,” and “insubordination.”
Because of these major disciplinary charges, the health care facility’s director faced termination, suspension, or other punishment. The director retained my law firm to defend him in this disciplinary proceeding.
The chief officer of the county’s health services department — in issuing a euphemistically-termed “employee counseling statement” seeking discipline against my director client — relied on a facility patient’s unfortunate, unremarkable fracturing of her right hip and a bone in her left foot several weeks earlier.
I interviewed the health care facility’s director at length. In addition, I obtained from the director, and reviewed, the employee counseling statement, medical records of the injuries incurred by the health care facility’s patient, the facility’s supervisor of nursing’s report to the State about the patient’s injuries, and documents about the director’s three-year tenure at the health care facility.
My interviews of the director and my review of the relevant documents suggested that the director fully had carried out his supervisory responsibilities with respect to the injuries incurred by the health care facility’s resident, and that he had done so promptly and effectively.
Further, the evidence tended to show that the true reasons that the county’s health services department’s chief officer sought to discipline my director client had nothing to do with the injured patient at all.
Rather, the evidence suggested that the county’s health services department’s chief officer, in violation of the New Jersey Conscientious Employee Protection Act (“NJ CEPA”) and the New Jersey Civil Service Act (the “Civil Service Act” or the “NJCSA”), vindictively had issued the employee counseling statement to retaliate against the director for, among other things, recently disclosing and objecting, to the county administrator and to the county executive’s chief of staff, that the health care facility and the health services department’s chief officer intransigently were failing, in violation of U.S. Food and Drug Administration (“FDA”) regulations, to remedy the dire hazards of bed entrapment existing at the facility.
Specifically, 77% of the health care facility’s beds placed the facility’s sick or disabled patients at high risk of becoming entrapped in, and injured by, the side rails attached to their beds.
I learned that, despite these known hazards of bed entrapment which threatened the health care facility’s patients, the county’s health services department’s chief officer flatly had rejected my director client’s recommendation to retrofit or replace the facility’s beds that violated FDA guidelines on bed entrapment. I found out that the health services department’s chief officer callously had asserted that retrofitting or replacing the facility’s non-compliant beds was too expensive.
I drafted, and submitted to the county, a written response to the county’s employee counseling statement. Further, I prepared the director to speak, concerning the county’s disciplinary charges against him, at a lengthy, in-person meeting among the county’s human resources (“HR”) administrator, the county’s assistant HR administrator, the director, and me. After I so prepared him, the director did, in fact, speak at length at that meeting.
In the written statement to the county which I prepared responding to the county’s disciplinary charges against the director, and in the director’s testimony at our meeting with the county’s HR administrator and assistant HR administrator, I and the director explained, in great detail, that (i) my client’s service as director of the health care facility had been exemplary, (ii) the involved patient of the facility had fractured her right hip and a bone in her left foot without any fault by the facility’s staff, and (iii) the director and the facility’s staff had responded promptly and appropriately.
Under the Civil Service Act, the county was required to show sufficient cause to fire, suspend, or otherwise impose discipline on the director. My written statement to the county persuasively maintained that the county had not showed such sufficient cause.
Moreover, my written statement responding to the county’s employee counseling statement, and the director’s testimony, set forth at length that the county’s health services department’s chief officer’s unfounded disciplinary charges against the director constituted unlawful retaliation against the director for reporting and objecting to, among other things, (i) bed entrapment hazards violating FDA regulations, (ii) the health services department’s chief officer’s refusal, in violation of New Jersey regulations, to perform criminal background checks on the health care facility’s staff, and (iii) the same chief officer’s refusal to alleviate the facility’s multi-million dollar budget deficit by implementing cost-saving and revenue-generating policies.
NJ CEPA prohibits all public and private employers from retaliating against employees who disclose, object to, or refuse to participate in certain actions that the employees reasonably believe are either illegal or in violation of public policy. Similarly, the Civil Service Act prohibits a public employer, such as the county or the county’s health care facility, from taking or threatening to take any action against an employee in the career, senior executive or unclassified service in retaliation for the employee’s lawful disclosure of information on the violation of any law or rule, governmental mismanagement or abuse of authority.
My written statement to the county convincingly maintained that the health services department’s chief officer’s spiteful issuance of disciplinary charges against the director, because the director repeatedly disclosed and objected to actions of the chief officer and the county that the director reasonably believed were illegal, blatantly violated NJ CEPA and the Civil Service Act. In my written statement, I warned that, if the county imposed discipline against the director, the director would sue the county under NJ CEPA and the Civil Service Act.
After reviewing and considering my written statement responding to the county’s disciplinary charges — and after interviewing the director, the county’s health services department’s chief officer, the health care facility’s supervisor of nursing, and other witnesses, the county’s HR administrator decided to drop the county’s disciplinary charges against the director. That is, I successfully persuaded the county not to fire, suspend, or otherwise discipline the director.
Especially given the gravity and breadth of the county’s disciplinary charges against my director client, this dismissal, without penalty, of the county’s disciplinary proceeding against the director was the best result obtainable.
Providentially, and as a result of the discontinuance which I obtained for my director client of the county’s disciplinary charges, my client maintained his career as the health care facility’s director, and continued to support his family.
If your company needs assistance or guidance on a labor and employment issue and your company is located in the Manhattan City area, call Attorney David S. Rich at (347) 941-0760.
David S. Rich is the founding member of the Law Offices of David S. Rich, LLC,
a Manhattan Employment and Business Litigation Law Firm, in New
York City and in Englewood Cliffs, New Jersey...View Profile