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).

NOT FOR PUBLICATION WITHOUT THE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.
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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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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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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. 
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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 tenminute 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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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, parttime 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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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. 
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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 
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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. 
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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 
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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 
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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 
13 A-2264-18T2

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.