SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1726-14T4

GINA MARIE MILLER,

Plaintiff-Appellant,

v.

SHORE MEMORIAL HOSPITAL,

SHORE MEDICAL CENTER AND 

VICTOR GAZZARA,

Defendants-Respondents.

_______________________________

Submitted October 5, 2016 – Decided 

Before Judges Reisner and Koblitz. 

On appeal from Superior Court of New Jersey, 

Law Division, Atlantic County, Docket No. L3333-12.

Richard L. Press & Associates, attorneys for 

appellant (Richard L. Press, on the brief).

Paisner Litvin, attorneys for respondents 

(Richard J. De Fortuna, of counsel and on the 

brief).

PER CURIAM

Plaintiff Gina Marie Miller appeals from an October 31, 2014 

order granting summary judgment, dismissing her complaint under 

NOT FOR PUBLICATION WITHOUT THE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.

November 28, 2016
2 A-1726-14T4

the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-

1 to -14. We affirm.

It is helpful to begin by considering CEPA and its proof 

paradigm. CEPA is remedial legislation designed 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." Abbamont v. Piscataway Twp. Bd. 

of Educ., 138 N.J. 405, 431 (1994). The proof paradigm for a CEPA 

case is similar to that used in cases under the Law Against 

Discrimination, N.J.S.A. 10:5-1 to -42. Kolb v. Burns, 320 N.J. 

Super. 467, 477-79 (App Div. 1999). To establish a prima facie 

case under CEPA, the plaintiff must establish four prongs:

(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.

[Lippman v. Eithicon, Inc., 222 N.J. 362, 380 

(2015) (citation omitted).]

After the plaintiff presents a prima facie case, 
3 A-1726-14T4

[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.

[Winters v. N. Hudson Reg. Fire & Rescue, 212 

N.J. 67, 90 (2012) (citations omitted).]

We consider the issues in this case in light of those legal 

principles. Plaintiff, a social worker employed by the Shore 

Medical Center (Hospital), claimed that the Hospital terminated 

her employment as a reprisal, because she had engaged in whistleblowing activity protected by CEPA. For purposes of the summary 

judgment motion, the trial court found that plaintiff had engaged 

in CEPA-protected whistle-blowing, a finding defendants do not 

challenge on this appeal.1 While there was a four-month gap 

 

1 We note, however, that plaintiff failed to identify any 

applicable law, rule, regulation, or professional code of ethics 

that would support a whistle-blowing claim, with respect to her 

complaint that a masters-degree candidate, serving as a Hospital 

social work intern, delivered some legal papers to a judge's 

chambers. That strict proof requirement - to identify the specific 

basis for the whistle-blowing complaint - was emphasized in 

Hitesman v. Bridgeway, Inc., 218 N.J. 8, 33 (2014), which was 

decided a few months before the summary judgment motion in this 

case. However, because the parties did not brief this issue, we 

do not rest our decision on it. 
4 A-1726-14T4

between plaintiff's alleged whistle-blowing and her termination, 

we will assume for purposes of this appeal that she satisfied the 

relatively low threshold for presenting a prima facie case because 

the manager about whom she complained participated in the decision 

to fire her. See El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. 

Super. 145, 168 (App. Div. 2005) (noting "that the evidentiary 

burden at the prima facie stage of the analysis is 'modest,' or 

even 'slight'") (citation omitted). 

There is no dispute that the Hospital presented proof of 

legitimate non-retaliatory reasons for firing plaintiff. The 

central issue on this appeal is whether the summary judgment record 

could support a finding that the Hospital's reasons were merely a 

pretext for retaliation. See Kolb, supra, 320 N.J. Super. at 478. 

Our review of the trial court's summary judgment order is de 

novo, employing the same Brill2 standard used by the trial court, 

and viewing the motion evidence in the light most favorable to 

plaintiff. See Lippman, supra, 222 N.J. at 367; Kolb, supra, 320 

N.J. Super. at 471. After reviewing the record in light of those 

principles, we conclude that, even giving plaintiff the benefit 

of all favorable inferences from the evidence, no rational jury 

 

2 Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
5 A-1726-14T4

would conclude that the Hospital's reasons for firing her were a 

pretext for retaliation. See Brill, supra, 142 N.J. at 540-41.

The undisputed evidence, meticulously documented in the 

hospital's personnel records, established that plaintiff had 

endemic attendance and punctuality issues, going back several 

years. In fact, on January 19, 2011, about four months prior to 

her termination, plaintiff had been given two warnings, including 

a third-level final disciplinary warning for "poor job 

performance." The third-level notice cited plaintiff for arriving 

late for work or not showing up for work. The warning put her on 

notice that failure to improve could lead to termination. The 

warning had been preceded by at least two written notices from her 

supervisor reminding her that she needed to be at work by 9:30 

a.m. and noting her failure to arrive on time. 

On January 26, 2011, plaintiff received a memo dated January 

25, 2011, from Victor Gazzara, the Hospital's Director of Patient 

Relations and Social Services, and Christine Gabrielli, Manager 

of Social Services, once again reminding her of the need to arrive 

at work at the assigned hour, and reminding her to review her 

email on a daily basis. 

On January 27, 2011, plaintiff made her "whistle-blowing" 

allegations to the Human Resources Department. She complained 

that on January 19, 2011, Gazzara had allowed a social work intern, 
6 A-1726-14T4

rather than a social worker, to deliver a civil commitment 

application to a judge. She also complained that on January 14, 

2011, Gazzara had made comments to her which she found insulting. 

She further expressed concern that she received the third-level 

warning "only 1 week after my job was changed and Victor came into 

the dept."3

The Human Relations (HR) Department investigated plaintiff's 

complaint and sent her a letter concluding that further action was 

not warranted. The letter, dated February 10, 2011, memorialized 

plaintiff's admission that she had discussed with Gazzara her 

concerns about his comments and he had "apologized if he offended 

[her] in any way." The letter also advised that the leadership 

of each department was responsible for deciding whom to assign to 

deliver court papers, and the HR department could not intervene 

in those decisions. The letter also noted plaintiff's pending, 

separate challenge to the disciplinary notices. 

On February 22, 2011, the Hospital's Vice President of Medical 

Affairs, Peter Jungblut, sent plaintiff a detailed letter 

rejecting her appeals from the second and third corrective 

 

3 The record reflects that plaintiff was transferred into a new 

assignment, where she was required to arrive at work an hour 

earlier than she had previously been used to arriving. The record 

also reflects that she did not comply with that new requirement, 

but instead was repeatedly late to work. 
7 A-1726-14T4

counseling notices. Jungblut's letter reviewed plaintiff's 

history of attendance problems since 2009, and noted that future 

failure to follow Hospital guidelines could result in termination. 

Plaintiff's employment was terminated after a patient 

complained, on April 20, 2011, that plaintiff disclosed 

confidential medical information to the patient's family without 

the patient's consent. If true, that would constitute a violation 

of federal patient privacy law (HIPAA). When plaintiff's 

supervisor checked the patient's record, it did not contain any 

documentation from plaintiff noting the required consent. At her 

deposition, plaintiff testified that she did obtain the patient's 

consent and documented the consent. However, the patient's 

records, which are in the appendices, contain no such 

documentation, and defendant submitted undisputed evidence that a 

patient documentation note, once placed in the computer system, 

could not be deleted. 

According to the supervisor, a check of additional patient 

records revealed that plaintiff did not document, or failed to 

timely document, actions taken with respect to other patients. 

Based on our review of the records in the appendices, it appears 

that some of them do not document any contacts between plaintiff 

and the patient and some of them do. Apparently, neither side 

presented any legally competent evidence explaining each record, 
8 A-1726-14T4

other than the record of the patient who complained about lack of 

consent.

On May 5, 2011, the same day that plaintiff's supervisors 

were meeting to discuss the HIPAA problems, they received notice 

that a patient's family member had complained that plaintiff had 

treated the family rudely. During discovery, the woman who made 

the complaint was deposed. She testified that she spoke to a 

hospital social worker about her daughter's serious drug and mental 

health problems, and that the social worker was rude, unsympathetic 

and, in the woman's view, treated her family like "trash." The 

woman testified that she complained about this treatment to the 

Hospital administration. At her deposition, plaintiff admitted 

speaking to the woman, and admitted that the woman had complained 

about her; however, plaintiff denied that she had been rude to the 

woman. 

In a May 6, 2011 letter to plaintiff confirming her 

termination, Gazzara noted the complaint from a patient about 

plaintiff's unauthorized release of her medical information, and 

plaintiff's failure to properly or timely document her contact 

with patients. Gazzara further noted plaintiff's admission that 

she spoke to the patient whose family complained she was rude. He 

also stated that plaintiff failed to note the contact in that 

patient's record. Gazzara also cited the "extensive corrective 
9 A-1726-14T4

actions within [plaintiff's] employee file over the years for both 

time and attendance and poor job performance." 

Based on our review of the record, we conclude that plaintiff 

failed to present evidence that the employer's reasons for 

terminating her were not true or that they were merely an excuse 

to retaliate against her. Even if defendant was incorrect in 

asserting that plaintiff failed to document all of the files 

defendant cited, it is undisputed that she failed to document the 

files of the patients who complained about her. And, those HIPAA 

errors and patient complaints occurred at a point where plaintiff 

had already been warned several times that she would be terminated 

if there were continued lapses in her job performance. See ElSioufi, supra, 382 N.J. Super. at 171. On this record, no rational 

jury could conclude that the employer's reasons for firing 

plaintiff were not only untrue but were motivated by retaliatory 

intent. Id. at 173-74. 

Affirmed.