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Weisman v. New Jersey Department of Human Services

United States District Court, D. New Jersey

November 13, 2013


Page 387

Appearances: GEOFFREY B. GOMPERS & ASSOCIATES, Frank Finch III, Esq., Philadelphia, Pennsylvania, Counsel for Plaintiffs.

ATTORNEY GENERAL OF NEW JERSEY, Noreen P. Kemether, Esq., Trenton, New Jersey, Counsel for Defendants.


Page 388

HONORABLE Joseph E. Irenas, Senior United States District Judge.

Plaintiffs Debra Weisman (" Weisman" ) and her husband, Albert Weisman, initiated this civil suit for injuries allegedly sustained in connection with the termination of her employment at Ancora Psychiatric Hospital (" Ancora" ). [1] Weisman asserts that she was retaliated against for making complaints about working conditions at Ancora. [2] Pending before the Court are Plaintiffs' Motion for Partial Summary Judgment and Defendants' Motion for Summary Judgment. For the reasons set forth below, the Plaintiffs' Motion will be denied and the Defendants' Motion will be granted.


Weisman is a registered nurse, licensed by the State of New Jersey, and between June 1998 and April 2010 was employed as a charge nurse at Ancora. Weisman v. NJ Dept. of Human Svcs., 817 F.Supp.2d 456, 458 (D.N.J. 2011). The Court reviews only those facts relevant to deciding the instant motions.

Beginning in 2006, Weisman began making complaints regarding staffing shortages and other violations of various policies at Ancora. (Compl. ¶ 19; Defs. Mot. Ex. C at 34:10-19.) Initially, these complaints consisted of informing her supervisors and filling out forms indicating that staffing shortages had occurred. (Defs. Mot. Ex. C at 34-37.) Eventually, Weisman elevated these concerns to Ancora management by telephone and at community-wide meetings. ( Id. at 44-45.) Through June of 2008, Weisman continued to escalate her complaints at Ancora, providing testimony adverse to Ancora at a New Jersey Office of Administrative Law proceeding, writing letters to DHS officials, and participating in a Department of Justice investigation. (Pls. Opp. Ex. F; Defs. Mot. Ex. K; Compl. Ex. C.)

Beginning on September 30, 2008, Weisman took a leave of absence from her position at Ancora as a result of a diagnosed panic disorder. (Defs. Mot. Ex. I at 1-2.) During the course of her leave, Weisman telephoned her superiors at Ancora, including Defendants Boyer and Filippini, on a number of occasions. ( See, e.g., Defs. Mot. Ex. E; Defs. Mot. Ex. EE at 3.) The calls were not simply related to complaints regarding patient care at Ancora; for example, in March of 2009, Weisman made a number of disturbing comments on voicemails left at all hours of the night, including references to taking " a fist

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full of drugs." (Defs. Mot. Ex. E at APH00490). In July, she left a voicemail for Boyer, calling him the " skinny guy, polyester suit guy." (Defs. Mot. Ex. E at APH00501.) Though Weisman disputes the contents of some transcriptions, she does not dispute that she called Boyer " greasy hair[ed]," or that she referred to him as the " polyester suit guy." (Defs. Mot. Ex. C at 88:17-24.) In her deposition, Weisman also noted that while she did not phone in a bomb threat to Ancora during her leave of absence, she did in fact call the patient ward one day to ask how the staff would respond to an emergency like a bomb threat. (Defs. Mot. Ex. C at 83:16-18.)

As the end of Weisman's leave of absence approached, Filippini wrote to Weisman on June 12, 2009 following a conversation between the two of them. (Defs. Mot. Ex. L.) Filippini informed Weisman that in addition to her doctor's permission to return to work, Weisman would also have to undergo a fitness-for-duty evaluation. ( Id. ) Weisman's physician cleared her to return to work at Ancora on June 26, 2009, and Weisman underwent a fitness-for-duty evaluation by Dr. Gerald Margolis on July 13, 2009. (Pls. Opp. Ex. I; Defs. Mot. Ex. M at 1.) Margolis reported that Weisman was unfit to return to Ancora as a result of a delusional disorder, concluding that her return " would be harmful to patients under her care." (Defs. Mot. Ex. M at 4-5.) Following this examination, Weisman never returned to work at Ancora.

On November 20, 2009, Maureen Long, Director of Nurses at Ancora, reported Weisman's suspension pending termination to the New Jersey Board of Nursing. (Defs. Mot. Ex. R at 1.) Long's letter explained that during Weisman's suspension, Weisman trespassed on the patient ward at Ancora, made a number of " inappropriate" and " disrespectful" phone calls, and failed a fitness-for-duty evaluation. [3] ( Id. at 1-2.)

On January 28, 2010, Weisman received a Final Notice of Major Disciplinary Action, indicating that Weisman would be terminated effective November 12, 2009 as a result of eight charges. [4] (Defs. Mot. Ex. B.) Following this notice, Long filed a second letter with the New Jersey Board

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of Nursing on March 30, 2010, in which she provided a copy of the November 20, 2009 letter and also enclosed a Health Care Professional Responsibility and Reporting Enhancement Act Reporting Form that indicated Weisman was " Discharged from the staff" on January 28, 2010. (Defs. Opp. Ex. 1.) On March 31, 2010, Long sent a copy of the two letters to Weisman, which Weisman received on April 2, 2010 according to her signature on a United States Postal Service Receipt. ( Id. at 7.)

Weisman appealed her termination and sought arbitration through her union, which resulted in a settlement agreement on April 16, 2010. (Defs. Mot. Ex. W.) In exchange for a waiver of all claims against the state and its agents, Weisman's termination would be changed from " removal" to " resignation in good standing." ( Id. at 1.)

As previously detailed in this litigation, the subsequent Final Notice of Major Disciplinary Action, dated May 11, 2010, indicated that Weisman's termination was a " resignation not in good standing" in contravention of the settlement agreement. (Defs. Mot. Ex. X.) On January 4, 2011, Filippini signed a new Final Notice of Major Disciplinary Action with the designation " resignation in good standing," finally bringing Weisman's termination in compliance with the terms of the settlement agreement. (Defs. Mot. Ex. Z.)

On June 7, 2010, Kennedy Memorial Hospitals (" Kennedy" ) offered Weisman a position as a part time Registered Nurse. (Defs. Mot. Ex. AA at 1.) Ten days later, Kennedy rescinded Weisman's position as a result of receiving unsatisfactory job references. ( Id. at 2.) Specifically, a background investigation performed by Tabb, Inc. demonstrated that Weisman had voluntarily resigned from her position at Ancora, but that Ancora checked the box that Weisman had been reported to the New Jersey Board of Nursing in the past seven years, pursuant to N.J.S.A. 26:2H-12.2c. (Defs. Ex. CC.)

Weisman and her husband filed suit in this Court on March 31, 2011, asserting civil rights violations pursuant to 42 U.S.C. ยง 1983 and various state law claims. On February 15, 2013, Weisman moved for summary judgment in her favor on her claim for breach of contract stemming from the Defendants' failure to comply with the April 16, 2010 settlement agreement. On the same date, ...

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