McVey v. Atlanticare Med. Sys. Inc.
| Decision Date | 20 May 2022 |
| Docket Number | DOCKET NO. A-0737-20 |
| Citation | 472 N.J.Super. 278,276 A.3d 677 |
| Parties | Heather J. MCVEY, Plaintiff-Appellant, v. ATLANTICARE MEDICAL SYSTEM INCORPORATED, and Geisinger Health System Incorporated, Defendants-Respondents. |
| Court | New Jersey Superior Court — Appellate Division |
Louis M. Barbone, Atlantic City, argued the cause for appellant (Jacobs & Barbone, PA, attorneys; Louis M. Barbone, on the brief).
Jennifer B. Barr argued the cause for respondents (Cooper Levenson, PA, attorneys; Russell L. Lichtenstein and Jennifer B. Barr, Atlantic City, on the brief).
Before Judges Haas, Mitterhoff and Alvarez.
The opinion of the court was delivered by
HAAS, P.J.A.D.
The issue raised in this appeal is whether the First Amendment or Article I, Paragraph 6 of the New Jersey Constitution prevents a private employer from terminating one of its at-will employees for posting racially insensitive comments about the Black Lives Matter movement on her personal Facebook account. Defendants AtlantiCare Medical System Incorporated and Geisinger Health System Incorporated (AtlantiCare) employed plaintiff Heather J. McVey as a Corporate Director of Customer Service. During the height of the nationwide protests concerning the murder of George Floyd by police in Minnesota, McVey posted that she found the phrase "Black Lives Matter" to be "racist," believed the Black Lives Matter movement "causes segregation," and asserted that Black citizens were "killing themselves." McVey's Facebook profile prominently stated she was an AtlantiCare Corporate Director. After it discovered the comments, AtlantiCare fired McVey and she filed a complaint alleging wrongful discharge. The trial court concluded that the First Amendment and Article I, Paragraph 6 of the New Jersey Constitution did not bar a private employer from terminating an at-will employee and dismissed McVey's complaint. For the following reasons, we affirm.
McVey began working as a nurse at AtlantiCare in 2005. She was an at-will employee. AtlantiCare promoted McVey several times during her career and eventually she assumed the position of Corporate Director of Customer Service.
AtlantiCare had a written social media policy that covered its employees’ use of social media controlled by AtlantiCare, as well as the employees’ personal social media platforms. The policy stated:
While AtlantiCare encourages physicians and staff to participate in communication through online social media, it is important for those who choose to do so to understand what is recommended, expected[,] and required when they discuss AtlantiCare-related topics, whether at work or, under certain circumstances, on their own time. AtlantiCare employee use of social media [a]ctivities, inside or outside of the workplace, has the potential to affect AtlantiCare employee job performance, the performance of others, AtlantiCare's brand and/or reputation, and AtlantiCare's business interests.
The policy further explained that each employee was "personally responsible" for the content they posted on social media.
The policy advised employees:
Be aware of your association with AtlantiCare. When you identify yourself publicly as being employed by/and or affiliated with AtlantiCare, ensure your profile and related content is consistent with how you wish to present yourself with colleagues and clients. Proper identification includes your name and, when relevant, your role at AtlantiCare.
The policy also stated:
When using social media to publicly post a communication[,] respect your audience and your coworkers. AtlantiCare physicians, staff, volunteers, vendors, customers[,] and partners reflect a diverse set of customs, values[,] and points of view. Do not be afraid to be yourself, but do so respectfully. This includes the obvious (no ethnic slurs, personal insults, obscenity[,] etc.) but also proper consideration of privacy and of topics that may be considered objectionable or inflammatory—such as politics and religion. ...
McVey was a member of Facebook, a social networking website, and maintained a personal account. McVey's profile listed her name as "Jayne Heather," but included her photograph. The profile prominently stated she was a "Corporate Director at Atlanti[C]are Regional Medical Center," and also listed her former position as an AtlantiCare nurse.
On May 25, 2020, a police officer killed George Floyd, a Black man, while taking him into custody in Minneapolis, Minnesota. In demonstrations that drew millions of participants in cities across the country and abroad, protestors mourned the death of Floyd and other victims of police violence and called for law enforcement reform.
In the midst of these protests, McVey participated in a Facebook discussion of the Black Lives Matter movement. This movement was BLACK LIVES MATTER , MERRIAM-WEBSTER (2022), https://www.merriam-webster.com/dictionary/Black%20Lives%20Matter.
Another Facebook member posted a question: In response, McVey wrote:
The other Facebook member posted McVey responded: "[T]hey are not dying ... they are killing themselves." McVey later wrote that she "support[ed] all lives ... as a nurse they all matter[,] and [she] d[id] not discriminate." McVey added she did "not condone the rioting that ha[d] occurred in response to ‘this specific [B]lack man[’]s death.’ "
An AtlantiCare administrator discovered McVey's Facebook posts. On June 17, 2020, an AtlantiCare Vice President called McVey to discuss her remarks. McVey acknowledged the posts and discussed some of their content. The Vice President told her, "[it] was bad[,]" and AtlantiCare suspended McVey that same day pending an investigation.
On June 23, 2020, AtlantiCare's Senior Vice President of Administrative Services and the Chief Administrative Officer met with McVey. After McVey revealed she was recording the conversation, "the meeting ended and plaintiff was terminated." AtlantiCare told McVey the firing was due to her "repeated instances of poor management judgment – a failure to uphold AtlantiCare values."1
McVey later filed a one-count complaint against AtlantiCare and alleged her "termination ... was punishment for [her] exercise of those rights protected by the free speech amendment and the equivalent entitlement under the New Jersey Constitution." Based upon her allegation that she was wrongfully discharged from her position "in direct violation of a clear mandate of New Jersey [p]ublic [p]olicy[,]" McVey sought "compensatory, consequential, and punitive damages[,]" and reinstatement to her former position.
AtlantiCare filed a motion to dismiss, arguing that a wrongful termination complaint against a private employer cannot be based on a constitutional free speech claim in cases where, as here, there is no state action. Following argument, the trial court rendered an oral decision, accepting AtlantiCare's contention and dismissing McVey's complaint.
In support of its decision, the court relied upon multiple out-of-state precedents, as there are no New Jersey cases directly on point. See Grinzi v. San Diego Hospice Corp., 120 Cal.App.4th 72, 14 Cal. Rptr. 3d 893, 896, 899 (Ct. App. 2004) (); Edmondson v. Shearer Lumber Prod., 139 Idaho 172, 75 P.3d 733, 739 (2003) (); Petrovski v. Fed. Express Corp., 210 F. Supp. 2d 943, 948 (N.D. Ohio 2002) (); Prysak v. R.L. Polk Co., 193 Mich.App. 1, 483 N.W.2d 629, 634 (1992) (). The court also noted that the New Jersey Legislature had not created a cause of action that subjects private employers to liability for discharging an employee for the exercise of protected First Amendment speech, as the Connecticut Legislature had in Conn. Gen. Stat. Ann. § 31-51q (West 2022). Under these circumstances, the court found that McVey could not assert a wrongful discharge claim against her private employer.
On appeal, McVey argues the trial court erred by dismissing her complaint because her discharge was contrary to a clear mandate of public policy set forth in the First Amendment of the United States Constitution2 and its counterpart in the New Jersey Constitution.3 We review de novo a trial court's decision to dismiss a complaint for failure to state a claim. Teamsters Local 97 v. State, 434 N.J. Super. 393, 413, 84 A.3d 989 (App. Div. 2014). We owe no deference to the trial court's conclusions of law. Rezem Fam. Assocs. L.P. v. Borough of Millstone, 423 N.J....
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