McCarthy v. Care One Management, LLC
| Decision Date | 12 July 2021 |
| Docket Number | A-2542-19 |
| Parties | REBECCA MCCARTHY, Plaintiff-Respondent, v. CARE ONE MANAGEMENT, LLC, and ALISON FITZPATRICK-DURSKI, Defendants-Appellants. |
| Court | New Jersey Superior Court — Appellate Division |
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 10, 2021
On appeal from the Superior Court of New Jersey, Law Division Bergen County, Docket No. L-8657-16.
Bruce H. Nagel and Thomas P. Scrivo argued the cause for appellants (Nagel Rice, LLP, Fisher & Phillips, LLP, and O'Toole Scrivo, LLC, attorneys; Bruce H. Nagel, Robert H. Solomon Brian Gershengorn, and Christopher J. Capone, of counsel and on the briefs; Thomas P. Scrivo, on the brief).
Paul Castronovo and Thomas A. McKinney argued the cause for respondent (Castronovo & McKinney, LLC, attorneys; Thomas A. McKinney, Paul Castronovo, and Edward W. Schroll, of counsel and on the brief).
Before Judges Rothstadt and Mayer.
A jury found that defendant Care One Management, LLC (Care One) and one of its managers, defendant Alison Fitzpatrick-Durski violated the New Jersey Law Against Discrimination (LAD) N.J.S.A. 10:5-1 to -49, and it awarded plaintiff Rebecca McCarthy compensatory and punitive damages.[1] The trial court also awarded counsel fees. The total judgment entered against defendants approximated six million dollars.
Defendants appeal from the judgment entered on the verdicts and argue the award of punitive damages must be vacated for several reasons, including the insufficiency of the evidence of liability or damages; the verdict was the result of the jury's confusion or mistake; and the trial court erred by denying their motions for directed verdicts or judgment notwithstanding the verdict (JNOV) or for a new trial and by awarding counsel fees. For the reasons that follow, we affirm the award of compensatory damages, but vacate the award of punitive damages and counsel fees and remand for a new trial on punitive damages only and reconsideration of the counsel fee award.
The facts developed at trial leading to Care One's termination of plaintiff's employment are summarized as follows. Plaintiff, a Black woman, holds a Master of Science degree in nursing, is a registered nurse, a board-certified geriatric nurse, a certified director of nursing, and a certified resident assessment coordinator. At the time of trial, she had worked in the nursing field for twenty-three years and served as a nursing director at several facilities. She testified that before Care One terminated her, she planned to work for "something like" ten more years and expected to earn no less than $222, 000 annually.
In her complaint, plaintiff alleged that Care One terminated her employment on the basis of her race in violation of the LAD and that Fitzpatrick-Durski aided and abetted Care One's unlawful discrimination. The allegations supporting plaintiff's complaint arose from her employment with Care One in 2016, initially as a Clinical Services Coordinator and then two months later, after a quick promotion, as a Vice President of Clinical Leadership. Her last salary at Care One was $190, 000, with the potential for up to $32, 000 in bonuses. Plaintiff remained employed at Care One until November 1, 2016, when she was fired by Fitzpatrick-Durski, who is Caucasian.
Following her promotion, Care One asked plaintiff to lead the interdisciplinary clinical team at its Somerset Valley facility (SV), a senior living facility that offered assisted living and skilled care and which was not performing well. It assigned plaintiff to help improve customer service and patient count, and to reduce staff turnover. Her direct supervisors were Executive Vice President Elizabeth Straus and Alberto Lugo, who served as Executive Vice President and General Counsel.
In order to address SV's deficiencies, plaintiff intended to develop a program for improvement after she analyzed "what was going on" there. She described the process as "ongoing," and that she continued to assess the situation during her ten-week tenure at SV.
During plaintiff's tenure, she was not disciplined or given notice about any deficiencies in her job performance. According to Matthew Schottlander, SV's administrator, he was satisfied with her performance as she improved overall customer satisfaction, increased the number of patients, and reduced the facility's dependence on nursing staff. According to Guirlande Valcin, the Assistant Director of Nursing, plaintiff "was great" at her job and was "hands-on" in treating patients and addressing problems. In mid-September 2016, Straus sent plaintiff a text message that stated:
Plaintiff's success was also verified at an October 6, 2016 review by managers of SV's progress. The review concluded that SV's condition improved since plaintiff's promotion. Straus and Lugo praised plaintiff for her work. According to Schottlander, both Straus and Care One's Chief Strategy Officer Timothy Hodges were satisfied with plaintiff's job performance and "happy that clinically things were heading in the right direction."
Despite those accolades, one day after Fitzpatrick-Durski began her assignment at SV, she fired plaintiff. Fitzpatrick-Durski began working at SV on or around October 31, 2016, and served as Interim Administrator, responsible for enforcing Care One's anti-discrimination policy, and had the authority to hire and fire employees. She first met plaintiff when she attended the October 6 performance review.
On October 31, 2016, Fitzpatrick-Durski and plaintiff had a conversation during which no one else was present. According to plaintiff, Fitzpatrick-Durski asked "[i]n a very demeaning way," whether plaintiff planned on accepting a demotion by resuming plaintiff's former position or some other subordinate position. Plaintiff did not respond and Fitzpatrick-Durski continued by stating Plaintiff asked Fitzpatrick-Durski whether the conversation was over, and then left the room.
Plaintiff did not report the incident to Care One's human resource department even though plaintiff was aware of and received training about Care One's anti-discrimination policy that required her to report discriminatory conduct to human resources, which she could have done anonymously. She explained that she believed Fitzpatrick-Durski was only at SV temporarily, and she did not want to start "causing waves." In addition, plaintiff had recently applied for another promotion and hoped to grow with the company.
Fitzpatrick-Durski, who was also trained on Care One's antidiscrimination policies and procedures, had a different view of what transpired between her and plaintiff. According to Fitzpatrick-Durski, she spoke to plaintiff about a backlog in paperwork at SV, and then told plaintiff that she should perform patient care if she was unwilling to address that backlog. Specifically, Fitzpatrick-Durski said, "[I]f you don't want to do that, maybe you can come in in scrubs and do the treatments and be hands-on care." Fitzpatrick-Durski explained that she wanted plaintiff to wear scrubs because staff felt less intimidated when senior leadership members did not wear business attire.
According to Fitzpatrick-Durski, plaintiff did not alleviate all of SV's issues. In mid-October 2016, before Fitzpatrick-Durski arrived at SV, Straus and Lugo allegedly informed Kimberly Komoroski, a Clinical Services Coordinator who was in charge of five other Care One facilities, that SV had "clinical issues," in that physicians, staff, families, and residents were all unhappy with the conditions there. According to Komoroski, who is Caucasian, Straus and Lugo asked her whether she would add SV to the facilities she oversaw. When she eventually took over for plaintiff, Komoroski discovered that accident and incident reports, patient care plans and patient grievances were not only backlogged but were never even investigated.
According to Fitzpatrick-Durski, plaintiff failed to address the problems at SV that she was assigned to remedy, explaining that the facility had months of backlogs for grievance, accident, and incident reports, and that plaintiff was unable to address even the recent reports, let alone the older ones. She stated that plaintiff was unable to present any plan to her regarding either the backlog or resident care and safety. However, she, Komoroski, and the rest of the interdisciplinary team were able to "address[] everything" and eliminate the backlog in approximately one week.
Prior to firing plaintiff, Fitzpatrick-Durski informed Lugo, Vice President of Human Resources Maureen Montegari, and Jean Joseph, the Regional Director of Operations, that she decided to terminate plaintiff's employment. Thereafter, at a meeting attended by Montegari and Byron Wilson, Fitzpatrick-Durski's Administrator-in-Training, she presented plaintiff with a termination letter that noted "[r]ecent examples of poor performance," including "failure to (i) hold staff accountable for performance issues; (ii) identify and remedy operational and staffing issues impacting resident care; and (iii) follow through on expectations identified by senior management, e.g., incident/accident reports and outstanding grievances. "Afterward, on November 5, 2016, Komoroski began performing the same duties at SV as plaintiff, although it was not clear whether Care One "replaced" plaintiff with Komoroski or merely asked Komoroski to add plaintiff's former duties to her own.
Fitzpatrick-Durski acknowledged that plaintiff's alleged...
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