Twist & Shout: Supervisor’s Termination for Shouting Match With Subordinate Upheld Despite Alleged Whistleblowing Activity

On February 16, 2024, the New Jersey Appellate Division in Ugarte v. Barnabas Health Med. Group, upheld the dismissal of a whistleblowing claim filed by a former supervisor. The Court affirmed the trial court’s decision dismissing the employee’s claim under the Conscientious Employee Protection Act (CEPA), finding that she was properly terminated for mistreating her subordinate. Ultimately, the supervisor could not establish a retaliation claim because there was no causal link between her termination and reporting HIPAA concerns.

Facts

Tatiana Ugarte was employed by Barnabas’ West Orange Medical Center as an office supervisor from 2015 to 2018. In 2014, Barnabas purchased the medical practice from Primary Medical Care (Primary) where Dr. Salese was the President and joint owner. However, after the acquisition, Dr. Salese no longer had the ability to fire employees without the approval of a regional manager. As office supervisor, Ugarte oversaw the daily operations of the office and supervised several other employees, including Delmis Macias. Additionally, she held monthly staff meetings, at which she discussed protocols, procedures and compliance with the Health Insurance Portability and Accountability Act (HIPAA).

In the summer of 2018, Ugarte stated that she approached Dr. Salese with concerns about two potential HIPAA violations at the office, including how Macias and other employees often took patient documents home for training purposes. Dr. Salese denied the conversation ever took place.

A few months later, on September 26, 2018, Ugarte and Macias got into a verbal altercation in the office. According to a witness, Macias was quietly walking to her desk when Ugarte began yelling at her and accusing her of looking through her desk. Dr. Salese entered the room after hearing the screams and promptly directed an employee to call the police in fear that matters would escalate and get physical. Ugarte claimed that Macias was the one who began yelling at her. Two days later, Ugarte was placed on paid leave pending an investigation into the incident. Macias continued to work in the office and emailed HR complaining of several incidents where Ugarte’s behavior created a hostile work environment. Dr. Salese maintained it was Ugarte’s responsibility, as a supervisor, to deescalate the situation. Ultimately, Barnabas terminated Ugarte’s employment due to her mishandling of the altercation with her subordinate and promoting a hostile and unprofessional work environment. None of the decision makers involved in Ugarte’s firing had knowledge of the HIPAA concerns reported to Dr. Salese.

Ugarte thereafter filed suit alleging she was terminated as a result of reporting HIPAA violations in violation of CEPA. The trial court dismissed her complaint as it found that she failed to present evidence of a causal nexus between her alleged whistleblowing and the termination. Additionally, the trial court found that her employers were able to demonstrate a legitimate nondiscriminatory reason for her termination. Ugarte thereafter appealed.

Appellate Division Decision

For Ugarte to prevail on her CEPA claim, she had to demonstrate: (1) she reasonably believed that her employer’s conduct was violating the law, rule, or regulation established by law or a clear mandate of public policy; (2) she engaged in whistleblowing activity; (3) an adverse employment action was taken against her; and (4) a causal connection exists between the whistleblowing activity and the adverse employment action. The question before the Appellate Division was whether prong four was satisfied.

Ultimately, the Appellate Division agreed with the trial court that the record as a whole overwhelmingly discredited any inference that Ugarte was fired as a result of her whistleblowing activity. Deciding factors included that none of the decisionmakers had knowledge of Ugarte’s conversation with Dr. Salese, Dr. Salese lacked firing authority and did not recommend Ugarte’s termination. Additionally, the Court found that employers have a reasonable expectation that a supervisor will not get into a “shouting match” with subordinates. Therefore, Barnabas sufficiently demonstrated that they had a legitimate nondiscriminatory reason for firing Ugarte.

Bottom Line

Where an employer has legitimate nondiscriminatory reasons for firing an employee and has well documented performance deficiencies, a court is less likely to entertain an employee’s whistleblowing claim. Here, the Court also acknowledged that a supervisor’s failure to deescalate an incident with a subordinate is a reasonable grounds for termination. In addition, the employer’s prompt and thorough investigation into the employee’s conduct allowed them to clearly establish that the employee was terminated as the result of their own actions/mismanagement. Had the employer not been able to support its legitimate nondiscriminatory actions, the Court may not have dismissed the employee’s claims.

For more information regarding this decision and for strategies on how to properly conduct workplace investigations and document performance deficiencies, please contact Dina M. Mastellone, Esq., Partner and Chair of the firm’s Human Resources Counseling & Compliance practice via email here or call 973.533.0777.