A former North Bergen EMT’s whistleblower suit was reinstated today after a “procedural error committed by the court,” the Superior Court of New Jersey Appellate Division ruled.
By John Heinis/Hudson County View
“Both plaintiffs testified at their depositions that they had learned in the course of their formal training that transporting a patient against his or her will is illegal and tantamount to kidnapping and or assault under New Jersey law,” Appellate Court Judges Gary S. Rothstadt, Jessica R. Mayer, and Arnold L. Natali, Jr. wrote.
“When the North Bergen police forced plaintiffs to ferry F.A. to the hospital against his wishes, plaintiffs allege they had a reasonable belief that such actions violated the false imprisonment statute as well as New Jersey’s public policy protecting a competent patient’s right to refuse medical treatment.”
In August 2018, Tamara Sepulveda and Luis DeLeon filed a lawsuit in Hudson County Superior Court alleging that they had been fired from North Bergen EMS after they had a spat with police officers when responding to a call for service a year prior.
Today’s decision revealed new information that had not previously been listed in their complaint.
Police Sgt. Edward Moyano, along with Police Officers Michael Whalen and Javier Perez, responded to a possible domestic violence incident where a man, identified as F.A., had been founded drunk, sweating, red-faced, and repeatedly clenching his jaw, which the police identified as “muscle spasms.”
They allegedly told the man “you’re going to the hospital or you’re going to jail,” forcing him into the ambulance after the EMTs both told them doing so would be akin to kidnapping since a conscious person could not be forced to do so.
Sepulveda and DeLeon also said touching a person who refused treatment could also be considered assault.
The lower court dismissed their complaint on November 13th, 2020, stating that there was no clear record of whistleblower protected conduct, as well as that Sepulveda never documented the incident with her superiors and that FA voluntarily went to the hospital.
On appeal, the court agreed that Sepulveda had no claim since she resigned voluntarily and did not alert her employer of the incident, but also found that DeLeon has enough of a case to merit further proceedings.
“An adverse employment action can include “making false accusations of misconduct, giving negative performance reviews, issuing an unwarranted suspension, and requiring pretextual mental-health evaluations—causing the employee to suffer a mental breakdown and rendering him unfit for continued employment,” the ruling says.
“Additionally, retaliation can be ‘many separate but relatively minor instances of behavior directed against an employee that may not be actionable individually but that combine to make up a pattern of retaliatory conduct.'”
DeLeon, who was fired for alleged incompetency, inability to perform duties and conduct unbecoming of a public employee, only has to prove that “a casual connection” exists between the whistleblowing activity and the adverse employment action.
“Based upon our de novo review of the record, we conclude that DeLeon presented sufficient evidence to meet the requirements of the fourth prong to survive defendants’ summary judgment application,” the court said.
“Despite the reasons set forth in the final notice of disciplinary action, there remain factual disputes in the record that call into question whether DeLeon’s termination was based upon the conduct described in the PNDA or whether he was discharged in retaliation for his ‘whistle-blowing.'”
As a result, his case is remanded back to Hudson County Superior Court.