CECILE PORTILLA v. MAXIM HEALTHCARE SERVICES, INC.

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                               APPROVAL OF THE APPELLATE DIVISION
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-2496-17T3

CECILE PORTILLA,

           Plaintiff-Appellant,

v.

MAXIM HEALTHCARE
SERVICES, INC., DAWN
KENNY, LAURA RIDDLE,
and BARBARA VOLTA,

     Defendants-Respondents.
____________________________

                    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).

PER CURIAM
      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




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record citations—defendants explained the events leading to plaintiff's

resignation.1

      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

employment.

      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."
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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

discharged.

      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




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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.




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      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


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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

delusional disorder.

      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,

same cite."


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      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,


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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).

      Affirmed.




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