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Debra Weisman and Albert v. New Jersey Department of Human Services et al.

October 5, 2011


The opinion of the court was delivered by: Honorable Joseph E. Irenas


IRENAS, Senior District Judge:

Plaintiffs Debra Weisman ("Weisman") and her husband, Albert Weisman, initiated this action for injuries allegedly suffered in connection with the termination of Weisman's employment at Ancora Psychiatric Hospital ("Ancora").*fn1 Weisman alleges she was retaliated against for making complaints about working conditions at Ancora.*fn2 Pending before the Court is Defendants' Motion to Dismiss the Complaint pursuant to Fed. R. Civ. P. 12(b)(6) and 12(b)(1).


Weisman is a registered nurse licensed by the state of New Jersey since 1994. (Compl. ¶ 15.) From June 1998 to April 2010, Weisman was employed as a charge nurse at Ancora, a DHS-operated facility. (Id. ¶¶ 11, 16.)

Beginning in 2006, Weisman began making complaints about what she perceived to be violations of policies, rules, and regulations at Ancora. (Id. ¶ 18.) Specifically, Weisman complained formally and informally about staffing shortages, co-worker misconduct, falsification of documents, false allegations made against Weisman, and violations of written policies to DHS officials, Ancora officials, and to former Governor Corzine. (Id. ¶¶ 19-29.) Weisman also gave testimony adverse to Ancora at a New Jersey Office of Administrative Law proceeding, and gave a statement regarding alleged staffing shortages and document falsification to the United States Department of Justice in connection with an investigation into alleged civil rights violations. (Id. ¶¶ 18, 38-45, 46-54.) In addition, Weisman gave an interview to the Asbury Park Press about conditions at Ancora, which was published in an article titled "Nurse alleges litany of abuses at troubled hospital" on February 17, 2008. (Id. ¶ 29.)

Weisman alleges that because of her complaints, Ancora and DHS officials attempted to discredit her through false allegations of misconduct, baseless disciplinary actions culminating in her eventual termination, false reports to the New Jersey Board of Nursing, and defamatory accusations regarding her mental state. (Id. ¶¶ 55, 58-61, 72-74, 88-90, 56-71.) As a result of the alleged retaliatory actions, Weisman took a leave of absence beginning on September 30, 2008 because she was suffering post-traumatic stress disorder. (Id. ¶ 62; see also id. Ex. A.)

Weisman's physician approved her to return to work beginning on June 26, 2009. (Id. ¶ 66.) A fitness-for-duty independent medical evaluation was a condition of Weisman's return to duty. (Id. ¶ 67.) Weisman submitted to the evaluation, and the psychiatrist found her unfit to return to work. (Id. ¶ 71.) According to Weisman, the psychiatrist's findings were influenced by false allegations about her conduct made before Weisman even met with the psychiatrist.*fn3 (Id. ¶¶ 68-70.)

Weisman was not permitted to return to work and instead was suspended pending termination. (Id. ¶¶ 72-73.) On July 30, 2009, she was given a Preliminary Notice of Disciplinary Action for "insubordination, inability to perform one's duty, violation of policy, and conduct unbecoming a public employee." (Id. ¶ 73.)

On January 28, 2010, following a departmental hearing on December 7, 2009, Defendants served Weisman with a "Final Notice of Major Disciplinary Action" ("Final Notice"), terminating her employment at Ancora effective November 12, 2009. (Id. ¶ 74.) The following charges were sustained against Weisman: "Insubordination, Inability to Perform Duties, Conduct Unbecoming a Public Employee, Other Sufficient Cause, Inability to Discharge One's Duty Due to Mental or Physical Capacity, Notoriously Disgraceful Conduct, and Violation of Rule, Regulation, Policy, Procedure, Order or Administrative Decision." (Id.)

With the help of her union, Weisman appealed her termination and sought arbitration. (Id. ¶ 75.) Prior to arbitration, the parties reached an agreement through a mediation proceeding that took place on April 16, 2010. (Id. ¶ 76.) The agreement provided that in exchange for Weisman's waiver of all related claims against the State and its agents, her status on the Final Notice would be changed from "removal" to "resignation in good standing." (Id. ¶ 78; see also id. Ex. E.) The settlement agreement was signed on April 16, 2010 by Weisman, employer representative Phoebe Askie, Weisman's union representatives, and the mediator. (Id.)

However, in contravention of the settlement agreement, the Final Notice was changed to read "resignation not in good standing" as opposed to "resignation in good standing." (Id. Ex. E.) According to the Complaint, Defendant Filippini intentionally failed to make the agreed upon change to the Final Notice, and Defendant Boyer was complicit in this action in order to retaliate against Weisman. (Id. ¶¶ 141-42.)

On June 7, 2010, Kennedy Memorial Hospitals ("Kennedy") sent Weisman a letter notifying her that she had been preliminarily accepted as a nurse, contingent upon receipt of satisfactory references. (Id. Ex. F.) On June 17, 2010, Kennedy informed Weisman that they had not received satisfactory references and rescinded the offer of employment. (Id. Ex. G.) According to Weisman, the reason she was not hired by Kennedy was because Defendant Filippini, or a representative of his office acting on his instruction, informed Kennedy that Weisman had resigned "not in good standing" and that Filippini made defamatory statements regarding Weisman's employment at Ancora. (Id. ¶¶ 82-83.)

Weisman filed suit in this Court on March 31, 2011, asserting civil rights violations pursuant to 42 U.S.C. § 1983 as well as various state law claims.*fn4 On June 15, 2011, Defendants filed the instant Motion to Dismiss the Complaint.



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