CECILE PORTILLA VS. MAXIM HEALTHCARE SERVICES, INC. (L-6774-14, ESSEX COUNTY AND STATEWIDE) ( 2019 )


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  •                                 NOT FOR PUBLICATION WITHOUT THE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
    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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    2
    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."
    A-2496-17T3
    3
    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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    8
    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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