A former North Bergen emergency medical technician’s whistleblower lawsuit was reinstated earlier this month due to a “procedural error committed by the court.” This came from a ruling by the Appellate Division of the Superior Court of New Jersey, from a panel that included Judges Gary Rothstadt, Jessica Mayer, and Arnold Natali, Jr.
“We would be remiss if we did not address a procedural error committed by the court,” the panel wrote. “Because this application involved resolution of a dispositive issue, oral argument should have been granted.”
Wrongful termination alleged
Back in 2018, two former North Bergen EMTs filed a lawsuit against the township and Emergency Medical Services Chief Dave Prina, alleging they were wrongfully terminated over an incident involving an allegedly drunken individual in 2017.
In the suit, plaintiffs Tamara Sepulveda and Luis DeLeon claimed the North Bergen Police Department called them to an emergency scene in August of 2017. On site, they claimed they encountered an intoxicated person who did not require their services, only identified as F.A.
According to the lawsuit, the EMTs asked the man if he wanted to go the hospital. They alleged he subsequently declined medical attention and declined to go to the hospital.
However, members of the North Bergen Police Department allegedly demanded the EMTs take the individual to the hospital against his will, the suit alleged. The EMTs refused the order, as they “believed that it is a moral, ethical and legal obligation to allow a person to refuse medical treatment if they are capable of making such a decision.”
The plaintiffs claim they have refused before to transport people to the hospital after a police request . They also complained to their superiors that their vehicles didn’t have enough radios and the officers were acting “unprofessionally” by distracting EMTs and dictating patient care without training, putting lives at risk, the suit alleged.
DeLeon was terminated that same month, the suit alleged. Sepulveda was suspended Aug. 28, 2017, but was allegedly subject to a hostile work environment after returning to work, and resigned in January 2018, the suit alleged. The two were seeking compensatory and putative damages and legal fees and costs.
According to the lawsuit, they were both retaliated against “illegally and without justification” because they are “whistleblowers who complained about illegal activity and or unethical activity that violated the law and/or put patients’ lives at risk.” They alleged that the reason that the North Bergen police and the township “mandate that EMS transport people against their will is to generate revenue from ambulance transports,” per the suit.
The lower court dismissed their complaint on Nov. 13, 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 F.A. voluntarily went to the hospital. However, the appellate court’s decision breathes new life into the case.
Following a decision on March 14, the appellate court reinstated the case but with a caveat. On appeal, the court agreed that Sepulveda had no claim since she resigned voluntarily and did not file a report of the incident, but also found that DeLeon has enough of a case to merit further proceedings.
“We affirm summary judgment as to Sepulveda, as it was undisputed based on the summary judgment record that she did not engage in protected activity as required by N.J.S.A. 34:19-(3)(a) of CEPA, but we reverse as to DeLeon and remand for further proceedings,” the panel ruled.
New information was also made public regarding the allegations, including the police officers allegedly involved: Police Sergeant Edward Moyano, Police Officer Michael Whalen and Police Officer Javier Perez. They allegedly responded to a possible domestic violence incident where F.A. had allegedly been founded drunk, sweating, red-faced, and repeatedly clenching his jaw, which the police identified as “muscle spasms.”
“In their depositions, plaintiffs materially disputed the police officers’ version of events that night,” the panel wrote. “They stated F.A. told them that he did not want to ‘be checked out by an ambulance.’ Most importantly, based on their visual observations, plaintiffs testified they did not believe F.A. needed to be transported, as he was ‘alert and oriented,’ with a steady gait, normal pupil dilation, and was not slurring his speech. Neither DeLeon nor Sepulveda measured F.A.’s vitals, however, because, as Sepulveda testified, ‘the patient didn’t want to be touched.'”
At this point, DeLeon called his supervisor, Deputy Chief David Prina, to discuss the matter, who purportedly advised him not to transport F.A. against his will. DeLeon testified that he then explained to Moyano that EMTs cannot transport a patient without his or her permission, as his training taught him that doing so would be considered kidnapping.
The EMTs testified that the officers forced F.A. into the ambulance, regardless, stating: “You’re going to the hospital or you’re going to jail.” The EMTs also said the officers physically blocked F.A. from going back into his home and pushed him towards the ambulance, according to the court documents. In the police reports prepared after the incident, officers reported that DeLeon began to curse loudly and threaten to resign as an EMT, and informed the officers that he planned to file a formal complaint.
DeLeon, who was later fired for alleged incompetence, inability to perform duties and conduct unbecoming of a public employee, only has to prove that “a casual connection” exists between his whistle blowing and the adverse employment action, according to the appellate court ruling.
“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 panel wrote. “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.’”
As a result, DeLeon’s case has been remanded back to Hudson County Superior Court. According to court documents, a trial has been scheduled for June 13, 2022 before Judge Joseph Turula.
“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 panel wrote. “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.’”
For updates on this and other stories, check www.hudsonreporter.com and follow us on Twitter @hudson_reporter. Daniel Israel can be reached at firstname.lastname@example.org.