The Appellate Division recently affirmed a finding of whistleblower retaliation in a case involving two employees’ objections to their employer’s fraudulent billing practices. A New Jersey jury found in 2012 that Defendants Advanced Pain Management Specialists, P.C. (“APM”), Amgad Hessein (“Hessein”), and Ashraf Sami (“Sami”), violated New Jersey’s Law Against Discrimination (“LAD”) and Conscientious Protection Act (“CEPA”), by retaliating against two employees for objecting to overbilling for patient care. Plaintiffs Samirah McDaniel (“McDaniel”) and Dolores Gilmore (“Gilmore”) worked for APM, which was headquartered in Union Township. Their duties included preparing patient bills.
Hessein and Sami, brothers, were a doctor and office manager, respectively, for APM. They blatantly overbilled Medicare and patients for services not rendered, including services allegedly performed when patients were not in the office, services allegedly performed when the doctor was out of the country, and services for which the office did not have the requisite equipment.
When McDaniel and Gilmore objected to and complained about these fraudulent practices, Defendants told them that they had to keep submitting the bills in order to keep their jobs. Patients eventually noticed and complained about the overbilling, but Defendants kept up their illegal scheme, which apparently gained them around $5 million. Gilmore and McDaniel continued to object, but also continued to submit the bills, for fear of losing their jobs.
Defendants then retaliated against the two employees by using racial epithets, not allowing them to use the restroom, and threatening to fire them if they did not prepare bills in the manner that Sami and Hessein demanded. Eventually, the retaliation became too much for McDaniel and Gilmore to bear, and they were forced to resign.
The jury found that Defendants had created a hostile work environment in violation of the LAD, retaliated against Plaintiffs in violation of CEPA, and constructively discharged the two employees. Trial Judge James Rothschild awarded counsel fees of more than $130,000, in addition to the jury award.
Judge Rothschild denied Defendants’ motion to vacate judgment, and Defendant Sami appealed that denial. On August 17, 2016, the Appellate Division affirmed Judge Rothschild’s denial of the motion to vacate judgment.
In doing so, the Court considered and rejected several arguments by Defendants:
This is a strong case for workers who blow the whistle on their employers’ wrongdoing. It should prove instructive and helpful for plaintiffs, because the Appellate Division further confirmed and clarified the scope of CEPA and the process of awarding counsel fees.
By Jennifer Vorih, Esq. and Ty Hyderally, Esq.
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