Spragg v. Shore Care

• Decision Date: 19 July 1996
• Citation: 293 N.J.Super. 33,679 A.2d 685
• Parties: Dale SPRAGG, Plaintiff-Respondent, v. SHORE CARE and Shore Memorial Hospital, Defendants-Appellants, and Judith Demby, Defendant.
• Court: New Jersey Superior Court — Appellate Division

Page 33

293 N.J.Super. 33

679 A.2d 685

Dale SPRAGG, Plaintiff-Respondent, v. SHORE CARE and Shore Memorial Hospital, Defendants-Appellants and Judith Demby, Defendant.

Superior Court of New Jersey Appellate Division.

Argued June 12, 1996.

Decided July 19, 1996.

Kathleen M. Connelly, Livingston, for appellants (Genova, Burns, Trimboli & Vernoia, attorneys; Ms. Connelly, on the brief).

Mary J. Maudsley, Atlantic City, for respondent (April, Maudsley & Goloff, attorneys; Ms. Maudsley, on the brief).

Before Judges SHEBELL, STERN and NEWMAN.

The opinion of the court was delivered by

SHEBELL, P.J.A.D.

Defendants, Shore Care and Shore Memorial Hospital, a licensed home health care agency and a hospital, respectively, are the former employer of plaintiff, Dale Spragg, a male certified home health aide (CHHA). Plaintiff sued defendants alleging sex discrimination in violation of the New Jersey Law Against Discrimination ("LAD"), N.J.S.A. 10:5-1 through -42, because of their gender-based policy of assigning male aides to male patients only, whereas female aides were allowed to care for patients of both genders. Defendants contended that there was a bona fide occupational qualification ("BFOQ") justification for the policy premised on the privacy rights of its female patients who refused to be treated by male aides. Defendants moved for summary judgment. After denial of the summary judgment motion, the action was tried to a jury which rejected the BFOQ defense and awarded plaintiff $3,657 for lost wages, $42,500 for emotional distress, and $27,000 for punitive damages. On or about November 28, 1994, defendants filed a motion for a new trial or for judgment notwithstanding the verdict. On December 16, 1994, the judge denied the motion.

On appeal, defendants contend that the court should have ruled as a matter of law that they proved the BFOQ defense, that the court erred in excluding from evidence affidavits signed by female patients who refused to be seen by male aides and in submitting to the jury the issue of punitive damages, and that the emotional distress award constitutes a miscarriage of justice.

Plaintiff, a resident of West Cape May, earned his business degree from Stockton State College in 1985. He held numerous jobs in different fields, including that of retail sales clerk, landscaper, hotel desk clerk, and life insurance agent. The longest he was in any one position appears to be two years.

In May 1992, plaintiff, while unemployed, became interested in the health care field, as he had a couple of female friends who were nurses. He began training with defendant, Shore Care, for the job of home health aide. Shore Care is a home health agency that provides health care services to patients in their own homes. Among other services, health aides provide personal care to patients, including bathing them either in the bed, shower, or tub; taking care of their toileting needs; brushing their teeth; shampooing their hair, and the like. If time allows, the aides may perform housekeeping functions for the patients. A standard patient visit lasts two hours, three-quarters of the time being spent on providing personal services.

The training class for the home health aides lasted approximately three weeks, at the conclusion of which the trainees took their tests for state certification. Plaintiff took and passed this test, received his certification, and was hired as a home health care aide by defendant. Plaintiff was certified, by the State. His certification was good for one year and plaintiff allowed it to expire without renewing it, after termination of his employment by defendant.

According to plaintiff, there was no difference in the training given to male and female home health aides. All trainees were taught how to administer personal care to both male and female patients. Plaintiff asserted he was never told that defendant assigned patients according to their sex. However, a supervising registered nurse who taught the trainees, claimed that another male aide in plaintiff's training class asked about defendant's assignment policy and that she specifically told the class that male aides cared for male patients only.

Plaintiff claimed that he had been told, when hired, that he would be working in lower Cape May County. When that did not happen, he complained. The company then divided the home health aides into teams in order to reduce their travel time. Plaintiff was assigned to Team 3, which comprised all of Cape May County as well as Margate and Longport, and plaintiff found he was going mostly to the upper end of his team's geographic area. Plaintiff felt that every time he asked to be assigned to patients closer to his home, he got the "runaround." Plaintiff maintained that, because he was assigned only to male patients, there were times when there were no patients for him to see. The female home health aides, however, were assigned to both sexes. Plaintiff spoke to several representatives of defendant about this policy.

First, plaintiff spoke to Isabel Mosca, who told plaintiff that she worked in personnel and had no involvement with the patient scheduling. Plaintiff next spoke to his immediate supervisor, Deborah Canty. Plaintiff told her that the policy was unfair and demeaning because it prevented him from doing his job. According to plaintiff, she said there was nothing she could do. Canty testified that she told plaintiff to talk to Joseph Aiello, defendant's director of home and convalescent services. When plaintiff continued to complain about the distances he had to travel, Canty also spoke to Judith Demby, director of clinical services, on his behalf and asked if plaintiff's first and last scheduled visits each day could be assigned closer to his home. Plaintiff went to another supervisor nurse, Ann Hall, on several occasions. According to plaintiff, Hall told him there was nothing she could do and said, "This is just a job. It's not a career." Plaintiff said he was hurt by this comment because he considered the job a career and he had had a lot of hopes and expectations for it. Hall testified that she could not remember ever making such a statement. Moreover, she asserted that plaintiff's complaints had to do mostly with the amount of travelling he was doing and the financial burdens such travel put upon him. She said he complained that his car was old, did not get good mileage, and needed frequent repairs. Hall suggested some budgeting ideas to him. When plaintiff asked Hall if he could be assigned female patients closer to him, Hall told him that she had never known a female patient willing to be cared for by a male aide.

Plaintiff claimed that when he spoke to Demby, she agreed with him that he was being discriminated against, but she told him that it would eventually work in his favor because male nurses were promoted to administrative and managerial positions more quickly than female nurses. Demby denied ever making such a statement. Rather, she said that when plaintiff told her he was thinking about a career in nursing, she told him that nursing was a good career and that he should pursue it. She told him to talk to the male registered nurses at Shore Memorial Hospital, one of whom had become a vice president of the hospital.

Plaintiff claimed that Demby also told him the segregation policy was for his own "protection." Plaintiff took this to mean that defendant was afraid of getting sued by female clients. Demby admitted that she made this statement, and that she told plaintiff it was not defendant's intent to discriminate, but that the nature of the work required female patients to be cared for by only female aides. She pointed out that he chose to live where he did and that he got reimbursed for his travel. Nonetheless, she agreed to speak to the person who did the scheduling in order to have his first and last patients assigned closer to home. She said that, after her conversation with plaintiff, she spoke to both the scheduler and Aiello. Aiello assured her that it was impossible to change the gender segregation policy. Plaintiff admitted that, after he complained, defendant did try to accommodate him by giving him male patients closer to home. Plaintiff never spoke to Aiello directly, as had been recommended.

Plaintiff maintained that no one ever told him that the reason for the policy was the privacy interests of the female patients or that female patients had refused home health care from male aides. Plaintiff claimed that the gender segregation policy for male aides forced him to travel greater distances than the female aides. Although plaintiff was reimbursed for both his travel time and his travel expenses, he claimed that it took a month to get reimbursed and that, in the meantime, he had to put money out of his own pocket for the added gasoline and car phone expenses. Plaintiff believed that these expenditures would have been less if he had been assigned to care for patients of both sexes because there were female patients in areas closer to where he lived.

Plaintiff admitted he had no firsthand knowledge of anyone else's assignments, and that many factors went into assigning and scheduling patients, not just distance from the patients' homes to the aides' homes. Plaintiff agreed that he would not have complained about the gender policy if he had been assigned to all male patients closer to home in lower Cape May County, but noted this solution would not have resolved his "personal feelings" about being discriminated against. Plaintiff also agreed that if any particular female patient preferred not to be seen by a male home health aide, that was her right.

On February 25, 1993, after plaintiff had been working for defendant for nine months, plaintiff was at a patient's home in Ocean City when he received a call from his scheduler to report next to a patient's home in Mizpah. Plaintiff believed this location was outside of his team's geographic area, even...