Partners R. Armen McOmber and Peter D. Valenzano and Associate Lauren M. Hill successfully argued before the New Jersey Superior Court, Appellate Division on behalf of Plaintiff Margaret Gathman, overturning the lower court’s dismissal of Plaintiff’s Complaint on Summary Judgment.

The Complaint alleges that Defendant Care One Management LLC (“Defendant Care One”), terminated Gathman after she blew the whistle on Defendant Care One’s unlawful failure to return overpayments made by Medicare, Medicaid, and other entities and individuals. In January 2020, Defendants filed a motion for summary judgment. The Trial Court granted Defendants’ Motion, determining that Gathman failed to establish a causal connection between her report about the refunds and her termination less than one week later.

Gathman appealed and the Appellate Division reversed. The Court determined that there were “genuine issues of material fact” which precluded summary judgment, and the Trial Court “should not have made credibility assessments of the proffered facts and applied those findings more favorably to defendants to find that Gathman did not establish a prima facie CEPA claim of retaliation.” Such issues of material fact included conflicts between the deposition testimony and a “sham affidavit” from Alberto Lugo, Defendant Care One’s former executive vice president, inconsistencies in the testimony of Defendant Care One Management, and the temporal proximity between Gathman’s report that she had returned $3 million in overpayments and her unlawful termination. Gathman’s case will be remanded to the Law Division, where it will be scheduled for trial.

“We are pleased that our client will get to see her day in court. It was certainly not lost on the Appellate Division that Alberto Lugo, executive vice president and general counsel of CareOne, literally denied knowing our client and the reason for her termination at his deposition, despite signing her termination letter, and then submitted a certification in support of summary judgment detailing the precise reason why she was terminated. Thankfully, the Appellate Division saw right through this ‘sham affidavit’ and acknowledged that issues of fact are best left to a jury.”  R. Armen McOmber, McOmber McOmber & Luber, P.C.