Let’s Go to the Video Tape: NJ Appellate Division Rules Video Dooms Nurse’s Age Discrimination Case
March 19, 2021
On March 3, 2021, the New Jersey Appellate Division upheld the dismissal of a 49-year old Nurse’s age discrimination case against St. Peter’s University Hospital. The Nurse, who was fired after using force to restrain a hospital patient, claimed the incident with the patient was merely a pretext for age discrimination, even though the surveillance video demonstrated otherwise.
On June 3, 2015, Susan Patikowski, a registered nurse working at St. Peter’s University Hospital Emergency Department, was terminated for using unnecessary force to restrain a patient. At the time, Patikowski was 49 years old. According to Patikowski, the Hospital then replaced her with an employee that Patikowski claimed was younger than her. Based upon that alone, Patikowski filed a lawsuit claiming that the Hospital unlawfully terminated her in violation of the New Jersey Law Against Discrimination (NJLAD).
On May 28, 2015, a patient was sitting on the floor refusing to return to her room and yelling loudly at hospital staff and other patients. Patikowski then stepped in to help return the patient to her room. That much was agreed upon by both parties. What happened next was the subject of much debate. Witnesses on behalf of the Hospital testified that Patikowski placed her hands around the patient’s neck to force the patient to the ground. Patikowski initially claimed that she never put her hands on the patient’s neck, and was only responding to the fact that the patient tried to hit Patikowski. Nevertheless, Patikowski conceded that putting hands on a patient’s neck was against the Hospital’s policy, and could result in termination.
While normally this kind of dispute may require a jury to resolve, the Hospital provided the court with surveillance footage of the incident. The video, and still images drawn from it, clearly showed that Patikowski placed her hands on the patient’s neck and proceeded to take the patient down to the ground. The video further demonstrated that the patient never tried to hit Patikowski. Thus, the Hospital terminated Patikowski’s employment on June 3, 2015.
Before commencing litigation, Patikowski filed an internal appeal with the Hospital. At no point during the appeal process, which included a written submission from Patikowski, did she ever mention age as the reason for her termination. The focus was entirely on the May 28, 2015 incident. The Hospital’s Vice President for Patient Care Services, who also had 35 years of nursing experience, reviewed Patikowski’s appeal. After watching the surveillance video countless times, the Hospital concluded that Patikowski’s conduct was in violation of the Hospital’s policy against using unnecessary force on a patient and upheld the termination.
Thereafter, Patikowski filed a complaint against the Hospital for age discrimination in violation of the NJLAD. Believing it did nothing wrong, the Hospital filed a motion for summary judgment requesting that the trial court dismiss Patikowski’s claims. The Trial Court agreed with the Hospital and granted the motion. Patikowski then appealed the Trial Court’s decision.
Appellate Division Decision
The Appellate Division affirmed summary judgment in the Hospital’s favor finding that ruled that the Hospital had a legitimate, non-discriminatory reason to terminate Patikowski. The opinion hinged upon three key elements: (1) Patikowski had to prove that she was replaced by a younger employee, but she provided no evidence beyond her own testimony to prove the age of her replacement; (2) the video confirmed that Patikowski put her hands around the patient’s neck; and (3) Patikowski offered no evidence to show that age, and not the May 28th incident, had any impact on the Hospital’s decision to terminate her employment.
When examining discrimination claims, the courts rely heavily on the facts. The law is, and always will be, an inextricable part of the puzzle as it defines what an employee must prove when raising these issues. But, without the necessary facts, the law is of no help. In this case, the facts, and specifically the video, were not on the employee’s side. As a result, Patikowski could not possibly prove what the law requires.
Although Patikowski’s case suffered from a few different issues, the video was undeniably the Hospital’s “smoking gun.” However, surveillance footage won’t always be available or applicable. Had that been the case here, the Hospital should have interviewed employees who witnessed the incident after learning of it in order to be aware of the situation, obtain statements from employees while it was still fresh in their minds, and document their findings if/when a lawsuit is filed.
For more information regarding this decision and best practices to implement effective policies for your workforce, please contact John C. Petrella, Esq., Chair of the firm’s Employment Law & Litigation Practice Group via email here or Dina M. Mastellone, Esq., Chair of the Human Resources, Counseling & Compliance Practice Group via email here or 973-533-0777.