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Rose Solis v. Jay Sher

December 5, 2011

ROSE SOLIS, PLAINTIFF-APPELLANT,
v.
JAY SHER, DDS, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-7032-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 31, 2011

Before Judges Parrillo and Skillman.

Plaintiff Rose Solis appeals the summary judgment dismissal of her adverse employment action based on pregnancy discrimination. We affirm.

The facts viewed most favorably to plaintiff, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), are as follows. For a twenty-one month period beginning February 10, 2006 and ending November 9, 2007, plaintiff was employed as a dental hygienist by Jay Sher, DDS, LLC, a dental practice solely owned by defendant Jay Sher. Plaintiff married shortly after commencement of her employment and around May 2007, learned she had become pregnant. At the time of her discharge, she was in her eighth month of pregnancy.

On the day she was terminated, two patients complained about plaintiff's work performance and, according to defendant, these complaints were the "last straw" leading to his decision to fire her. Two days earlier, on November 5, 2007, defendant was obliged to re-treat another patient at no charge "due to plaintiff's inferior work[,]" as he had done only one month before. These re-treatments followed a number of other patient complaints expressing dissatisfaction with plaintiff's demeanor and her teeth cleaning services. Among the deficiencies cited by defendant were plaintiff's "failing to give oral hygiene instruction to patients, leaving teenagers and children alone in the chair, [and] failing to sharpen her instruments . . . ."

In addition to patient complaints, staff members criticized plaintiff's general lack of professionalism. According to defendant's financial coordinator:

[Plaintiff] would bring patients to my desk after completing her treatment and 'slap' the patient's chart on my desk, turn to the patient and say 'see ya' in the most unprofessional way. . . .

[Plaintiff] was trained to pass the patient off to me and to explain the importance of the next visit, but this was rarely if ever done.

One Saturday morning I had a mild altercation with [plaintiff]. While walking away from me and about to enter her operatory with a patient waiting in her chair, [plaintiff] called me a 'bitch' loud enough so that I heard it while sitting at my desk approximately 20 feet away.

I observed that our cancellation rate for hygiene appointments during [plaintiff's] employment tenure was quite high.

Several of our patients spoke to me directly and threatened to leave the practice solely because they were unhappy with [plaintiff].

Defendant discussed her job performance with plaintiff in a series of meetings and informal discussions wherein he attempted to explain what was expected of her. Although plaintiff characterizes these reviews as favorable, defendant's contemporaneous handwritten notes of these meetings documented some of the problems he claims persisted throughout her employment. These problems became serious enough that in January 2007, four months before he learned of plaintiff's pregnancy, ...


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