NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-2496-17T3
SERVICES, INC., DAWN
KENNY, LAURA RIDDLE,
and BARBARA VOLTA,
Submitted March 13, 2019 – Decided August 20, 2019
Before Judges Nugent, Reisner and Mawla.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Docket No. L-6774-14.
Eldridge T. Hawkins, attorney for appellant.
Ogletree, Deakins, Nash, Smoak & Stewart, PC,
attorneys for respondents (Thomas J. Rattay and Robin
Koshy, on the brief).
Plaintiff, Cecile Portilla, appeals the summary judgment dismissal of her
third amended complaint. The complaint alleged six causes of action: common
law wrongful discharge (count one); constructive discharge (count two); breach
of contract, including breach of the implied covenant of good faith and fair
dealing and intentional interference with plaintiff's beneficial economic
advantage (count three); "NJ Constitutional Violations" (count four); violations
of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49,
including hostile work environment, retaliation, and aiding and abetting (count
five); and handicap discrimination in violation of the LAD and other laws (count
six). We affirm, substantially for the reasons expressed by Judge Dennis F.
Carey III in his January 5, 2018 oral opinion. We add the following comments.
Plaintiff, a registered nurse and a lawyer, worked for defendant, Maxim
HealthCare Services, Inc., as Director of Clinical Services (Director) for its
South Orange office from April 8, 2013, through September 27, 2013, when she
resigned, claiming she was constructively discharged. In their summary
judgment motion's statement of material facts—which was fully supported with
record citations—defendants explained the events leading to plaintiff's
According to defendants, plaintiff is a self-described "paradigmatic
whistleblower." She had filed two previous employment complaints against
previous employers, one of which was dismissed; the disposition of the other is
unknown. When hired by Maxim, she did not fully disclose her previous
When plaintiff was first hired, Maxim sent her to a four-day training
program in Virginia and had her attend a ninety-day orientation program to learn
Maxim's policies and procedures. Maxim also had plaintiff attend in-service
training programs throughout her employment. Notwithstanding the training,
plaintiff routinely failed to complete required weekly reports relating to: (1)
tracking doctor's orders; (2) tracking when patients needed to be re-evaluated;
(3) tracking employee requirements, such as dates CPR licenses would expire;
1 Rule 4:46-2(a) requires the party moving for summary judgment to serve "a
separate statement of material facts . . . [which] shall set forth in separately
numbered paragraphs a concise statement of each material fact . . . together with
a citation to the portion of the motion record establishing the fact or
demonstrating that it is uncontroverted." Rule 4:46-2(b) provides that those
facts "sufficiently supported will be deemed admitted for purposes of the motion
only, unless specifically disputed by citation conforming to the requirements of
paragraph (a) demonstrating the existence of a genuine issue as to the fact."
and (4) tracking any patient issues, such as outstanding authorizations and the
time supervisory visits were due. In addition, plaintiff was often absent from
meetings she was scheduled to lead. Perhaps more significant, plaintiff was
demeaning and disrespectful to other employees. She also failed to follow
required policies and procedures.
Defendants Dawn Kenney and Laura Riddle, Maxim supervisory
personnel, reassigned a number of plaintiff's responsibilities to others and
attempted to coach and train her. When her performance did not improve,
defendants placed plaintiff on a thirty-day Performance Improvement Plan
(PIP). When her performance still did not improve, Kenney and Riddle decided
to meet with plaintiff in person at the South Orange office. After Kenny arrived,
she told plaintiff she had to park her car and would then return for the meeting.
Plaintiff locked her office, exited through the building's back door, and never
returned. Two days later, she sent a letter saying she had been constructively
Plaintiff alleged she was retaliated against for engaging in, among other
conduct, filing internal compliance reports; filing reports with outside agencies;
and complaining that a certain employee was underpaid. She claims the
retaliation included the withholding of a bonus. Defendants addressed in their
statement of material facts each of plaintiff's allegations.
Plaintiff's job duties included reporting any compliance concerns or
issues. In their statement of material facts, defendants summarized each
compliance report plaintiff had filed during the course of her employment. They
documented their thorough investigation and response to each report, including,
in some instances, taking corrective action. Significantly, defendant never
alleged in a compliance report that Maxim or its upper-level management had
engaged in wrongdoing or knew of, authorized, participated in, or ratified any
of the compliance violations plaintiff noted in her compliance reports.
Defendants noted plaintiff had filed four reports with the Division of Child
Protection and Permanency and a report to the Inspector General. Not only was
plaintiff required to report to the Division any instances of abuse or patient
neglect, but in the instance of one report, personnel in Maxim's Compliance
Department told plaintiff, "if this is an abuse, neglect, theft or exploitation
matter, please report this matter immediately to [child protective services]."
Plaintiff did not send a copy of her letter to the Inspector General to Maxim.
Maxim knew nothing about it.
Plaintiff once complained that an employee who was not Caucasian was
not being paid as much as a similarly-situated Caucasian employee. As it turned
out, plaintiff did not know how much the Caucasian employee was being paid.
Nevertheless, Maxim responded and resolved the issue.
Maxim also established in its record-documented statement of material
facts that plaintiff had the same job duties as other Directors; plaintiff was not
asked to perform duties not expected of other Directors; and in other offices,
Directors performed more duties than plaintiff.
Plaintiff alleged that in retaliation for her engaging in the foregoing
protected activities, she was harassed and a bonus was withheld. In their
statement of material facts, defendants demonstrated plaintiff was not eligible
for a bonus. Plaintiff further alleged the following retaliation: Maxim
employees were very cold to her; she felt disrespected; she was not permitted to
decide what duties nurses would perform; nurses bypassed her and reported to
others instead; she was precluded from hiring additional staff; and she was
placed on the PIP.
Defendants documented numerous interpersonal problems plaintiff had
with other employees, including her demeaning and disrespectful attitude
toward them. This caused others not to want to interact with her, and in one
instance, a supervisor reported she was resigning from Maxim because of the
way plaintiff treated her.
Defendants also documented plaintiff was being treated for significant
psychological issues, including a possible thought disorder and a delusional
disorder. Medical records documented that plaintiff had "a suspicious demeanor
and other signs of paranoid process." An independent medical examiner
concluded plaintiff exhibited symptoms consistent with a diagnosis of a
Plaintiff's response to defendants' eighty-nine paragraphs of material facts
was non-compliant with Rule 4:46-2(b), mostly unsupported by citations to the
record or competent evidence in the record. For example, in response to
defendants' paragraph fourteen, which stated that plaintiff remained in the
position of Director of Clinical Services only five and one-half months when
she resigned and alleged she had been constructively discharged, plaintiff stated:
"14. Denied that she remained in that position until Sept. 27, 2013, as she was
terminated by defendant's [sic] before then. (See )[.]" No citation is included
in the parenthesis, yet plaintiff's response to the next eleven paragraphs, fifteen
through twenty-six, is: "Admit objection, statement taken out of full content,
Plaintiff also submitted a 169-paragraph "Counterstatement of Material
Facts Not in Dispute." Many of the facts were not material. Many that were
material contained references to the record but the references did not support the
facts asserted. Some contained no references to the record. Many others cited
for support allegations in a proposed amended complaint containing plaintiff's
conclusory allegations and other incompetent evidence.
We agree with the trial court that the evidence on the summary judgment
motion was so one-sided that defendants had to prevail as a matter of law. Petro-
Lubricant Testing Labs., Inc., 233 N.J. 236, 257 (2018); Brill v. Guardian Life
Ins. Co. of Am., 142 N.J. 520, 540 (1995). Plaintiff's claims for wrongful
discharge fail because, indisputably, plaintiff was not discharged; she resigned.
Her claims for constructive discharge also fail, because plaintiff did not
establish through competent evidence that the conduct of Maxim or its
supervisory employees was "so intolerable that a reasonable person would be
forced to resign rather than continue to endure it." Sheppard v. Hunterdon
Developmental Ctr., 174 N.J. 1, 28 (2002) (quoting Jones v. Aluminum Shapes,
Inc., 339 N.J. Super. 412, 428 (App. Div. 2001)).
Plaintiff's generic claims of "N.J. Constitutional Violations," as well as
her generic allegations that her "rights to privacy, freedom of speech, property,
equal protection, due process right to grieve, complain and petition fo r redress
of grievance" also fail, because under the New Jersey Civil Rights Act, N.J.S.A.
10:6-1 to -2, a private cause of action only may be pursued against persons
acting under color of law. Plaintiff has not demonstrated that either Maxim or
its supervisory personnel were acting under color of law at the time of the events
plaintiff complained of.
We have considered plaintiff's remaining arguments and determined they
are without sufficient merit to warrant further discussions. R. 2:11-3(e)(1)(E).