NOT FOR PUBLICATION WITHOUT THE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-1205-17T3
CHRISTINA LIRO,
Plaintiff-Appellant,
v.
INSPIRA MEDICAL CENTERS,
INC. and INSPIRA HEALTH
NETWORK, INC.,
Defendants-Respondents.
_____________________________
Argued January 8, 2019 – Decided August 2, 2019
Before Judges Accurso and Vernoia.
On appeal from the Superior Court of New Jersey, Law
Division, Cumberland County, Docket No. L-0567-16.
Edith A. Pearce argued the cause for appellant (The
Pearce Law Firm, PC, attorneys; Edith A. Pearce, on
the brief).
Michael J. Wietrzychowski argued the cause for
respondents (Schnader Harrison Segal & Lewis, LLP,
attorneys; Lisa J. Rodriguez and Michael J.
Wietrzychowski, on the brief).
PER CURIAM
Plaintiff Christina Liro appeals from an October 16, 2017 order for
summary judgment dismissing her complaint against defendants Inspira Medical
Centers, Inc., and Inspira Health Network, Inc., for violations of the New Jersey
Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, breach of contract
and promissory estoppel. We affirm.
I.
We discern the following facts from the parties' Rule 4:46-2 submissions.
Plaintiff was enrolled as a medical resident in defendants' Family
Medicine Residency Program from July 1, 2011, to January 16, 2013. 1 Plaintiff
entered into a Resident Agreement with defendants on May 13, 2011. The
Agreement appointed plaintiff as a resident for a two-year period, from July 1,
2011, to June 30, 2013, and stated defendants could terminate the agreement "at
any point in time for the grounds specified herein."
On August 30, 2011, plaintiff received a verbal counseling, which her
October quarterly evaluation form noted concerned "[d]ifficulty during surgical
1
The program originated with South Jersey Hospital, Inc., which became
defendant Inspira Medical Centers, Inc., on May 1, 2013, the parent corporation
of which is defendant Inspira Health Network, Inc.
A-1205-17T3
2
rotation requiring counseling session." Plaintiff testified the matter was
resolved and should not have been recorded and held against her.
Sometime in August 2011, plaintiff discovered she was pregnant; the
pregnancy was not planned or expected. Plaintiff told four other residents she
was pregnant. Plaintiff said she did not tell anyone else because she did not
want news of her pregnancy "to adversely affect [her] chances for the orthopedic
[residency] program" to which she hoped to be admitted. Plaintiff also contends
Dr. Michael J. Geria, the Director of Medical Education and Director of the
OB/GYN Residency Program, "knew she was pregnant around September
2011," but this contention is based entirely on hearsay and conflicts with the
statements in Dr. Geria's affidavit.
Plaintiff applied to the Orthopedic Residency Program sometime in the
summer or fall of 2011. Plaintiff was one of forty-two applicants selected for
an interview, but she was ultimately not chosen.2
In March 2012, plaintiff was doing an orthopedic rotation with two other
first-year male residents as part of her residency. Plaintiff testified she asked
Jennifer McIntyre, the Residency Coordinator, at the end of February if she
2
Plaintiff states in her brief on appeal that she "does not seek to move forward
with regard to her claims of exclusion from the [orthopedic] program."
A-1205-17T3
3
could be moved off of the orthopedic rotation because it was physically
demanding and she was suffering from swollen legs and feet. Plaintiff testif ied
she told McIntyre that she was pregnant at this time and McIntyre said plaintiff
could not be moved off of the rotation because the two other residents on the
rotation with her had already been switched to other services. Plaintiff states
this is the only instance in which she reported to defendants that she was
disabled or had a condition that could qualify her as disabled. However, in her
deposition, McIntyre denied that plaintiff made any request to be moved off of
the orthopedic rotation and denied that plaintiff told her she was pregnant.
Dr. Fred McAlpin, III, the Director of the Orthopedic Residency Program,
received a complaint that plaintiff failed to make rounds at the hospital at her
scheduled time. Dr. McAlpin met with plaintiff on March 8, 2012. Plaintiff
asserted she had made the rounds, but she had not written anything on the
patients' charts because she saw the attending doctor had already been there and
had made notes. Dr. McAlpin advised plaintiff that she should always make the
appropriate rounds and enter the appropriate documentation on each chart,
regardless of whether the attending doctor had already seen the patients and
written in the charts. Dr. McAlpin also asked plaintiff if there were any issues
that would impact her performance or make it difficult for her to continue the
A-1205-17T3
4
orthopedic rotation. Plaintiff did not report her swollen legs and feet or any
other issues to Dr. McAlpin at this time. Plaintiff never saw a healthcare
provider regarding her swollen legs and feet or submitted medical
documentation regarding any limitations on her ability to perform the orthopedic
rotation at that time.
Plaintiff requested March 16, 2012, off to attend a doctor's appointment.
Plaintiff also requested time off for the week of March 26 to 30, 2012. Plaintiff
did not attend a doctor's appointment on March 16, but believes she took the day
off anyway. Plaintiff attended a wedding in Baltimore, Maryland, on Saturday,
March 17, 2012.
On March 19, 2012, plaintiff asked to move her paid time off request from
March 26 to 30, 2012, up to March 19 to 23, 2012, because of "some health
issues that have become urgent." Plaintiff was expected back at the program on
March 26, 2012. Plaintiff never requested medical leave or other leave with her
pregnancy as the stated reason.
On March 26, 2012, plaintiff did not appear for her rotation. Plaintiff had
miscarried her child at her townhome, where she was found on March 27 and
taken to the hospital.
A-1205-17T3
5
Another resident informed Dr. Geria that plaintiff was a patient in the
hospital. Dr. Geria states this is the first time he learned plaintiff had been
pregnant. Dr. Geria told plaintiff she was entitled to medical leave, and plaintiff
requested and was given medical leave from March 19 to June 4, 2012.
On May 3, 2012, while plaintiff was out on leave, she emailed Dr. Geria,
stating she intended to complete her first year residency with defendants, which
ended in July, but was considering transferring to a program in Texas closer to
her family. Plaintiff called a program at Plaza Medical Center in Texas to make
inquiries, but never applied to that program.
Plaintiff returned to the residency program on June 4, 2012. At this time,
she informed defendants she was going to continue with defendants' residency
program and not transfer to a program in Texas.
Two residents transferred into defendant's Family Medicine Residency
Program during plaintiff's medical leave. Plaintiff alleges defendants hired one
of these residents in her place and "were not sure what to do with her since there
were only so many second-year positions." The residency program was
approved for eighteen residents, and there were only thirteen residents in the
program during plaintiff's medical leave. The resident plaintiff alleges took her
A-1205-17T3
6
place was hired for a first-year position to begin in July 2012, the time at which
plaintiff was scheduled to begin her second year of residency.
Prior to the start of each academic year, a monthly rotation schedule is
created for each resident in the residency program for the entire academic year.
Plaintiff was assigned to a monthly rotation schedule for her first year, which
also included an outpatient clinic for one half-day per week. Because of her
medical leave from March 19 to June 4, 2012, plaintiff did not complete some
of her first-year rotations; she missed one week in orthopedics, four weeks in
OB/GYN, and four weeks in OP/GYN. Defendants indicated that at one point
they intended to have plaintiff make up her remaining first-year rotations during
her elective weeks, which were to be scheduled in fall 2012. It did not matter,
in terms of full program completion, when plaintiff made up her first-year
rotations as long as she completed them before she graduated from the program.
Plaintiff testified that when she returned from medical leave in June 2012,
she did not receive a twelve-month schedule for her second year of residency.
Plaintiff also claimed she asked to make up the first-year rotations she missed
immediately upon returning from leave, but her request was denied. Plaintiff
completed two of her second-year rotations, gastroenterology and emergency
medicine, in July and August after she returned from leave.
A-1205-17T3
7
Upon returning to the program on June 4, 2012, plaintiff was assigned to
a Medicine 3 rotation. Plaintiff was absent on June 14 and 15, 2012. Plaintiff
contacted some of the other residents on those days and emailed the Graduate
Medical Education Office the day after her absences. Plaintiff contends she
called out the same way she had seen another resident do so and disputes that it
was regular procedure and understood by residents that they should
communicate with the attending physician and graduate office if they were not
going to be at a rotation.
Plaintiff was called to a meeting on July 6, 2012, to discuss her June 14
and 15 "no call no shows." Plaintiff was told she must contact the Graduate
Medical Education Office and her attending physician on the day of an absence.
The substance of the meeting was recorded in a July 12, 2012 memorandum that
plaintiff signed. Plaintiff was informed there was a place for her in the program
going forward. Plaintiff testified she thought it was a meeting to address how
to make up the time she missed while on leave, a topic that was not discussed,
and that "[i]t was a disciplinary meeting basically, although no . . . disciplinary
action was written or taken."
Although plaintiff had not yet completed all of her first-year work, in July
2012 plaintiff began her second-year rotations in the residency program and
A-1205-17T3
8
defendants increased her pay to that of a second-year resident. On August 30,
2012, Dr. Geria sent a letter to the New Jersey State Board of Medical Examiners
stating that "[f]ull credit will be granted for the year as of [October 10, 2012]."
On September 5, 2012, Dr. Geria signed and submitted a certification form to
the State of New Jersey stating plaintiff was "being appointed as a member of
the resident staff . . . . for the level PGY2" beginning on "October 10, 2012."
Plaintiff was assigned to complete an outpatient clinic at CompleteCare.
On July 16, 2012, plaintiff emailed Dr. Geria, Dr. Robert J. Smick, Director of
the Family Medicine Residency Program, and her mother regarding her assigned
outpatient clinic, which she was concerned did not have enough room for her,
and how she would make up the time lost during her medical leave. Within half
an hour of his receipt of plaintiff's email, Dr. Geria emailed plaintiff describing
how defendants intended for her to make up her hours, stating they were waiting
to hear from plaintiff as to when she was ready to complete those rotations and
would find an office to make it work, and plaintiff responded, "Ok, thank you."
On July 16, 2012, Dr. Smick confirmed CompleteCare was a good place
for plaintiff to continue her outpatient clinic. Plaintiff was scheduled to work at
CompleteCare each Monday beginning on July 16. Plaintiff was absent from
the site on July 16, 23, 30 and August 6, 2012, four consecutive Mo ndays.
A-1205-17T3
9
Plaintiff testified that, although another resident had told her to report to
CompleteCare on July 16, she did not go because she "was not told by anyone
of authority that that was where [she] was supposed to go," and by the time Dr.
Smick confirmed her assignment, the assigned shift was over. Plaintiff stated
she was "post call" on July 23; that is, she had worked the night before and was
not allowed to work the next day, but she did not contact CompleteCare and
advise its staff that she would not be present.
After the third "no call no show" on July 30, CompleteCare stated it no
longer wished to work with plaintiff. Dr. Smick explained plaintiff had called
out sick, and he emailed plaintiff telling her to add Dr. Ismail, her attending
physician at CompleteCare, to her contact list. Plaintiff did not report to
CompleteCare on August 6 because her air conditioner had broken , but she did
not contact CompleteCare or Dr. Ismail. After the fourth "no call no show," two
CompleteCare employees, one being the Chief Medical Officer, reiterated that
they no longer wanted plaintiff as a resident.
Plaintiff contends that, although she was told to add Dr. Ismail to her
contact list in an email regarding her third absence from CompleteCare, she was
not told to contact Dr. Ismail in the event she could not attend her clinic as
scheduled at CompleteCare.
A-1205-17T3
10
At the end of July 2012, Dr. Smick completed an evaluation form for
plaintiff's first year of residency and noted she was meeting expectations. Dr.
Smick also completed a form sent to the American Osteopathic Association that
stated plaintiff was "making adequate progress at this point."
In August 2012, plaintiff was suspended from the residency program with
pay because of her "no call no show" absences at CompleteCare.
On August 14, 2012, plaintiff filed a Charge of Discrimination with the
Equal Employment Opportunity Commission (EEOC) claiming discrimination
and retaliation on the basis of gender/sex, pregnancy and disability. On August
31, 2012, defendants finalized a remediation plan with plaintiff, which had been
revised and incorporated many of plaintiff's suggested changes. The
remediation plan addressed attendance and procedures for calling out of work,
the issues which had led to plaintiff's suspension, but did not address a plan for
plaintiff to make up the rotations she missed. Plaintiff signed the remediation
plan and returned to the residency program on September 4, 2012.
Plaintiff alleges that four male residents who had "no call no shows"
similar to hers were not disciplined. The allegation is based entirely on hearsay,
and plaintiff testified she did not have personal knowledge or know with
certainty the circumstances surrounding the four residents' absences, including
A-1205-17T3
11
their reasons, whether they contacted anyone, the existence of mitigating
circumstances, or whether they were disciplined. Plaintiff also testified that,
when she referred to these residents not being disciplined, she meant they were
not "suspended or demoted."
Only one resident engaged in conduct similar to that resulting in plaintiff's
suspension with pay—being absent for a month without proper notification to
an outpatient clinic—and that resident was terminated from the program because
of her "no call no show" to her outside clinical rotation. Three other residents
received verbal counseling for various reasons, but they did not have "no call no
show" issues to the extent of plaintiff's.
Sometime in September 2012, plaintiff discovered she was pregnant
again, and she was monitored for high risk pregnancy. On September 19, 2012,
plaintiff notified defendants that her treating physician ordered her to take a
medical leave of absence effective September 19. The medical leave request
form cited depression and a "hostile work environment," but did not mention
plaintiff's second pregnancy and stated pregnancy was not the reason for the
leave requested. Plaintiff provided a physician's note requesting one month of
medical leave to end on October 19, 2012, pending further evaluation.
A-1205-17T3
12
On October 2, 2012, plaintiff emailed a completed leave of absence
request form to Human Resources requesting three months of medical leave
ending on December 19, 2012. Defendants granted plaintiff's medical leave
request. In October 2012, plaintiff broke the lease on her New Jersey townhouse
and moved to Georgia.
On December 4, 2012, Maria DeLiberis, the Human Resources Manager
for plaintiff's residency program, called and emailed plaintiff to obtain an update
on her medical leave, which was due to expire in approximately two weeks. On
December 7, plaintiff emailed back that she had not yet been released to return
to the program by her physician. On December 13, DeLiberis emailed and said
if plaintiff expected her leave to extend past the scheduled December 19, 2012
return date, she needed her physician to provide defendants with an anticipated
return date and a certification. Plaintiff emailed on December 17, 2012, stating
she had forwarded the leave paperwork to her physician. Plaintiff testified she
mailed the leave paperwork to her physician, but never followed up.
Plaintiff's approved medical leave expired on December 19, 2012. On
December 26, 2012, DeLiberis emailed plaintiff and said defendants had not
received leave paperwork from her physician. Plaintiff did not respond. On
January 7, 2013, the Human Resources leave of absence specialist sent a letter
A-1205-17T3
13
to plaintiff stating her approved leave had expired and defendants had not
received any forms from her physician. Plaintiff did not respond.
On January 12, 2013, plaintiff emailed the leave of absence specialist,
stating her short term disability application had been denied and she needed
information on how to file a workers' compensation claim. Two days later,
defendants' employee health manager emailed plaintiff to offer assistance with
filing her workers' compensation claim. Plaintiff never responded.
On January 16, 2013, defendants sent plaintiff a letter informing her that
her resident contract was being terminated. The letter stated that defendants
would consider plaintiff's reapplication to the program if she were able to return.
Plaintiff never responded to the letter, never requested an appeal regarding her
termination as was permitted under defendants' policy and noted in the letter,
and never reapplied to the program.
Plaintiff filed a complaint against defendants on August 17, 2016, alleging
the following causes of action: discrimination and retaliation on the basis of
gender, pregnancy, and disability in violation of the LAD (Count I); breach of
contract as to plaintiff's Resident Agreement (Count II); and promissory
estoppel and detrimental reliance regarding defendants' failure to issue plaintiff
a First Year Certificate of Completion and recommend the issuance of her
A-1205-17T3
14
physician's license (Count III).3 Plaintiff claimed defendants' discriminatory
and/or retaliatory conduct included "treating individuals without a disability
more favorably than [p]laintiff and terminating and/or constructively
discharging [p]laintiff because of her known and accepted and approved
disabilities . . . who is an otherwise qualified individual with a disability and an
employee." Plaintiff also alleged defendants' "employment practices . . . created
a discriminatory work environment which was hostile and harassing to female
employees and employees with disabilities, including [p]laintiff, and that
[d]efendants failed to stop, continued, and/or encouraged the . . . discriminatory
practices."
Defendants filed an answer to the complaint and subsequently moved for
summary judgment, arguing plaintiff did not suffer any adverse action on
account of her gender, pregnancy, or disability. Rather, they argued plaintiff
was given program rotations following her medical leave for her miscarriage
and engaged in a series of "no call no shows," which resulted in a short
suspension with pay, after which she went out on leave again a few weeks later
3
Plaintiff previously filed a complaint against defendants in the United States
District Court for the District of New Jersey. Plaintiff's federal claims were
dismissed with prejudice and her state law claims were dismissed without
prejudice on July 21, 2016. Plaintiff timely refiled her state law claims within
thirty days of the court's dismissal pursuant to 28 U.S.C. 1367(d).
A-1205-17T3
15
and ultimately ceased communicating with defendants concerning her return
date, leaving defendants no choice but to terminate her contract. Plaintiff
opposed the motion arguing that, despite promises to the contrary, defendants
had no intention of assigning plaintiff to the rotations necessary to complete her
First Year Certificate, knew she could not finish these rotations by the end of
her first year, and treated her differently than other residents. Plaintiff also
argued defendants retaliated against her for taking leave due to her disability
and filing an EEOC complaint, and she was constructively discharged.
The motion court heard argument and issued a decision from the bench
and an order granting defendants summary judgment as to all of plaintiff's
claims.
Plaintiff appeals and presents the following arguments.
POINT I
THE TRIAL COURT ERRED IN GRANTING
SUMMARY JUDGMENT TO DEFENDANT[]S BY
APPLYING AN IMPROPER LEGAL STANDARD IN
DECIDING THE MOTION FOR SUMMARY
JUDGMENT[.]
POINT II
THE TRIAL COURT ERRED IN GRANTING
SUMMARY JUDGMENT TO DEFENDANT[S], BY
ACTING AS THE FACT FINDER AND
IMPROPERLY WEIGHING EVIDENCE[.]
A-1205-17T3
16
POINT III
THE TRIAL COURT ERRED IN GRANTING
SUMMARY JUDGMENT TO DEFENDANT[S], BY
OVERLOOKING/IGNORING FACTS IN THE
RECORD REGARDING PLAINTIFF’S CLAIMS OF
BREACH OF CONTRACT AND CLAIMS OF
VIOLATIONS OF THE NEW JERSEY LAW
AGAINST DISCRIMINATION[.]
A. Breach of Contract Claim[.]
B. Defendants violated the New Jersey Law Against
Discrimination by harassing and discriminating against
Plaintiff, thereby creating a hostile work environment,
because of her gender, pregnancy and/or disability,
ultimately resulting in her constructive discharge.
II.
"An appellate court reviews an order granting summary judgment in
accordance with the same standard as the motion judge." Bhagat v. Bhagat, 217
N.J. 22, 38 (2014). We review a grant of summary judgment de novo and
determine whether there are any genuine issues of material fact when the
evidence is viewed in the light most favorable to the non-moving party. Rowe
v. Mazel Thirty, LLC, 209 N.J. 35, 38-41 (2012). Summary judgment is
appropriate when there is no genuine issue of material fact, and the evidence "is
so one-sided that one party must prevail as a matter of law." Brill v. Guardian
Life Ins. Co. of Am., 142 N.J. 520, 540 (1995) (quoting Anderson v. Liberty
A-1205-17T3
17
Lobby, 477 U.S. 242, 252 (1986)). We accord no deference to the motion court's
legal conclusions and review issues of law de novo. Kaye v. Rosefielde, 223
N.J. 218, 229 (2015).
There are disputed facts in the parties' Rule 4:46-2 submissions, but none
of the factual disputes claimed by plaintiff rise to the level of a genuine issue of
material fact, see Brill, 142 N.J. at 530, 540, as we will explain. Plaintiff
contends that both Dr. Geria and McIntyre were aware of her first pregnancy
prior to her miscarriage. Plaintiff's assertion regarding Dr. Geria's knowledge
is unsupported by competent evidence and thus does not give rise to a genuine
issue of material fact. See ibid.
With regard to plaintiff's claim she informed McIntyre she was pregnant,
while "genuine" issues of material fact preclude the granting of summary
judgment, R. 4:46-2, those "of an insubstantial nature" do not, Brill, 142 N.J. at
530 (citation omitted). The undisputed facts establish that plaintiff d id not tell
her supervisors, Dr. Geria and Dr. Smick, or anyone in management that she was
pregnant prior to her miscarriage and that she purposefully avoided doing so. In
addition, although plaintiff mentions events prior to her miscarriage in her
complaint, on appeal she has explicitly abandoned her claim of discrimination
regarding the orthopedic residency hiring process and does not argue defendants'
A-1205-17T3
18
actions prior to her miscarriage were motivated by discriminatory animus. Thus
the timing of any earlier knowledge of her pregnancy on defendants' part,
including by McIntyre, has no bearing on plaintiff's claims at issue, all of which
are based on actions occurring after plaintiff's pregnancy and miscarriage were
known. "If there exists a single, unavoidable resolution of the alleged disputed
issue of fact, that issue should be considered insufficient to constitute a 'genuine'
issue of material fact for purposes of Rule 4:46-2." Id. at 540.
Plaintiff also contends she did not know until the July 6, 2012 meeting
with her supervisors that she was required to communicate with her attending
physician and the Graduate Medical Education Office on the days she was absent
and could not make a rotation. This is, again, a dispute "of an insubstantial
nature" and does not rise to the level of a genuine issue of fact. Id. at 530.
Plaintiff concedes that during the July 6 meeting she was informed of
defendants' expectations concerning reporting absences, defendants stated there
was a place for plaintiff in the program going forward, and "no . . . disciplinary
action was written or taken." Thus, whether plaintiff knew she was required to
communicate with certain individuals concerning her absences prior to July 6 is
irrelevant because it is undisputed plaintiff was made aware of the requirements
A-1205-17T3
19
at the July 6 meeting and plaintiff's claims of discriminatory conduct are based
on events that occurred thereafter.
Likewise, while plaintiff contends a particular male resident was hired in
her place while she was on leave, the undisputed facts establish that the resident
was just beginning his first year of residency when plaintiff returned from her
medical leave and was scheduled for promotion to a second-year resident, and
that the residency program contained sufficient openings to permit an additional
resident without forcing plaintiff out. Because there "exists a single,
unavoidable resolution" of this dispute—that the first-year resident plaintiff
contends replaced her at the start of her second year of residency could not have
taken her place in the program—it also fails to rise to the level of a genuine issue
of material fact. Id. at 540.
We turn then to an analysis of the claims before us and whether "one party
must prevail as a matter of law." Ibid. (citation omitted). Plaintiff argues the
motion court applied an improper legal standard in deciding the motion for
summary judgment and improperly weighed the evidence. Because we apply
the same standard as the motion judge and review grants of summary judgment
de novo without deference to the motion judge's legal interpretations, Kaye, 223
N.J. at 229, we do not address those arguments. Instead, we limit our discussion
A-1205-17T3
20
to plaintiff's assertion that, based on the record presented, defendants are not
entitled to judgment as a matter of law on her claims that defendants breached
their contract with plaintiff, impermissibly harassed and discriminated against
her, and created a hostile work environment resulting in plaintiff's constructive
discharge.
We first consider plaintiff's argument that defendants breached the terms
of her Resident Agreement by failing to provide her with the remainder of her
first-year rotations and failing to provide "a fair and consistent method for
review of [p]laintiff's concerns without the fear [of] reprisal." The essential
elements of a prima facie case for breach of contract are: "a valid contract,
defective performance by the defendant, and resulting damages." Coyle v.
Englander's, 199 N.J. Super. 212, 223 (App. Div. 1985).
It is undisputed that plaintiff's Resident Agreement constituted a valid
contract. However, plaintiff cites to no provision in the contract requiring that
defendants provide the first-year rotations she missed while on leave before
plaintiff began her second-year rotations. Plaintiff's Resident Agreement
covered a two-year program ending on June 30, 2013. The contract does not
require that she be given the rotations in any particular order, or that specific
A-1205-17T3
21
rotations be scheduled at the time plaintiff wishes to have them. The contract is
simply bereft of any contractual obligation supporting plaintiff's claim.
Plaintiff similarly offers no evidence supporting her assertion that
defendants failed to provide a fair and consistent method for reviewing
plaintiff's concerns without fear of reprisal, or that such alleged conduct
constituted deficient performance under the contract. Section 3.9 of the
Resident Agreement states defendants are obligated "[t]o provide a fair and
consistent method for review of the Resident's concerns and/or grievances,
without the fear of reprisal." However, the undisputed facts establish that
whenever plaintiff voiced concerns, they were dealt with promptly and plaintiff
never expressed dissatisfaction with defendants' responses until after her
termination. When plaintiff emailed Dr. Geria regarding her missed first-year
rotations, Dr. Geria responded within a half hour and plaintiff's reply to his
stated plan was "Okay, thank you." When plaintiff emailed defendants
regarding concerns about whether the CompleteCare clinic would provide her
with sufficient time and patients, Dr. Smick reached out to CompleteCare and
then to plaintiff, addressing all of her stated concerns, that same day. Even
defendants' letter terminating plaintiff's employment noted that plaintiff had five
A-1205-17T3
22
days within which to avail herself of defendants' appeal procedures, and plaintiff
did not do so or respond to the termination letter in any fashion.
Moreover, we note that plaintiff's attempt to analogize the instant matter
to that in Kass v. Brown Boveri Corp., wherein an electrical engineer was
accorded management responsibilities under a contract and the employer forced
him into a lesser job without managerial authority, is inapplicable. 199 N.J.
Super. 42, 47 (App. Div. 1985). Plaintiff was not demoted or prevented from
moving forward with her residency; she was promoted to a second-year resident
position with a higher salary and was continuously assigned to rotations when
not on leave or suspended with pay. Plaintiff fails to present any evidence
establishing defendants breached any duties arising under the Resident
Agreement. The court correctly granted summary judgment dismissing the
claim.
Plaintiff also argues defendants are liable under a theory of promissory
estoppel for promising adequate and appropriate means to complete her
residency program and an accompanying First Year Certificate of Completion,
but failing to provide the necessary rotations to do so.
This claim is barred by well settled law. "Quasi-contract liability will not
be imposed . . . if an express contract exists concerning the identical subject
A-1205-17T3
23
matter. The parties are bound by their agreement, and there is no ground for
implying a promise as long as a valid unrescinded contract governs the rights of
the parties." Suburban Transfer Serv., Inc. v. Beech Holdings, Inc., 716 F.2d
220, 226-27 (3d Cir. 1983); see also Moser v. Milner Hotels, Inc., 6 N.J. 278,
280 (1951) ("Having pleaded an express contract, the plaintiff cannot without
showing a rescission, recover on quasi-contract."). As we discussed above,
plaintiff's employment was governed by a valid contract which did not require
the precise rotation schedule she desired and permitted defendants to terminate
plaintiff's employment at any time, regardless of whether plaintiff had
completed the program. We also note that the promissory estoppel claim
articulated in plaintiff's complaint—that, "[d]espite plaintiff satisfying all of the
[first year] requirements, [d]efendants have failed to issue the First Year
Certificate"—is inconsistent with the undisputed facts and plaintiff's own Rule
4:46-2 submissions, both of which establish plaintiff had not completed certain
first-year rotations at the time of her termination. We therefore find summary
judgment was properly granted to defendants on this claim as well.
Plaintiff also argues the trial court erred in granting summary judgment
because, when viewed with all inferences in plaintiff's favor, the facts clearly
show defendants harassed and discriminated against plaintiff, creating a hostile
A-1205-17T3
24
work environment because of her gender, pregnancy and disability, and resulting
in plaintiff's constructive discharge. It is first necessary to distill plaintiff's
argument into its separate parts as plaintiff's brief is at times unclear in its
recitation of same.
We first note that, although plaintiff alleged harassment by a fellow
resident in her complaint, that argument is absent from her brief on appeal, and
thus is waived. Jefferson Loan Co. v. Session, 397 N.J. Super. 520, 525 n.4 (App.
Div. 2008); Zavodnick v. Leven, 340 N.J. Super. 94, 103 (App. Div. 2001). Plaintiff
also does not separately argue that the retaliation she alleged in her complaint
occurred, apart from an inference of retaliation with regard to plaintiff's alleged
constructive discharge, and thus that argument is waived as well. 4 Therefore,
we limit our discussion of plaintiff's LAD argument to her claims of
discrimination and constructive discharge.
Plaintiff asserts that defendants' conduct constituted "discrimination and
their actions in doing so were harassing" and created a "hostile work
4
The standard for retaliation under the LAD requires plaintiff to show that she
was engaged in protected activity known to the employer, was thereafter subject
to an adverse employment action, and there is a causal link between the activity
and the adverse employment consequence. Woods-Pirozzi v. Nabisco Foods,
290 N.J. Super. 252, 274 (App. Div. 1996). Plaintiff neither addresses these
elements nor presented evidence to the motion court establishing them.
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environment." Plaintiff argues in her brief that she has established a prima facie
case of discrimination, but cites to the standard for a hostile work environment
and makes arguments partially based thereon, conflating the two claims and their
respective standards. We will therefore separately address both plaintiff's
claims of discrimination and of a hostile work environment under the correct
standards.
Because plaintiff does not attempt to prove discrimination by direct
evidence, we analyze her claims under the three-step, burden-shifting
McDonnell Douglas5 framework, which our courts have adopted. See Zive v.
Stanley Roberts, Inc., 182 N.J. 436, 447 (2005). Once the plaintiff succeeds in
establishing a prima facie case of discrimination, the burden shifts to the
defendant to "articulate a legitimate, non-discriminatory reason for the adverse
employment action." Viscik v. Fowler Equip. Co., 173 N.J. 1, 14 (2002). If the
defendant does so, the burden shifts back to the plaintiff to prove the employer's
proffered reason was merely pretext for the discrimination. Bergen Commercial
Bank v. Sisler, 157 N.J. 188, 211 (1999).
To prove a prima facie case of discrimination, plaintiff must demonstrate
that she "(1) belongs to a protected class; (2) applied for or held a position for
5
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
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which . . . she was objectively qualified; (3) was not hired or was terminated
from that position; and (4) the employer sought to, or did fill the position with
a similarly-qualified person." Gerety v. Atl. City Hilton Casino Resort, 184 N.J.
391, 399 (2005).
"The evidentiary burden at the prima facie stage is 'rather modest: it is to
demonstrate to the court that plaintiff's factual scenario is compatible with
discriminatory intent—i.e., that discrimination could be a reason for the
employer's action.'" Zive, 182 N.J. at 447 (quoting Marzano v. Comput. Sci.
Corp., 91 F.3d 497, 508 (3d Cir. 1996)). Plaintiff alleges that she became
pregnant, suffered a miscarriage, developed disabilities as a result and
encountered what she perceived as a hostile work environment upon her return
to work, and was subject to various instances of discipline, including termination
of her employment contract. The facts show, and defendants do not dispute, that
plaintiff demonstrated a prima facie case of employment discrimination.
The burden therefore shifts to the defendant to "articulate a legitimate,
non-discriminatory reason for the adverse employment action." Viscik, 173 N.J.
at 14. As our discussion of the undisputed facts illustrates, defendants
articulated legitimate, non-discriminatory reasons for each instance of
disciplinary action, including the termination of plaintiff's contract.
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Specifically, defendants assert that plaintiff could not be reached during a
surgical rotation, did not complete patient charts, engaged in recurrent "no call
no show" practices, and failed to respond to defendants' communications
regarding her medical leave and return date. See Bergen Commercial Bank, 157
N.J. at 211 (explaining when an employer articulates legitimate, non-
discriminatory reasons for adverse employment actions, the burden shifts to the
plaintiff to establish such reasons are no more than pretext).
Plaintiff argues defendants' proffered legitimate business reasons are
merely pretext for discrimination. While "the burden of production shifts
throughout" the McDonnell Douglas analysis, "the employee at all phases
retains the burden of proof that the adverse employment action was caused by
purposeful or intentional discrimination." Ibid. Plaintiff "'need not prove that
[her sex, pregnancy and/or disability] was the sole or exclusive consideration'
in the determination[s]" to discipline her; she "need only show 'by a
preponderance of the evidence that it made a difference' in that
decision." Ibid. (quoting Murray v. Newark Hous. Auth., 311 N.J. Super. 163,
174 (Law Div. 1998)).
[I]f the employer proffers a non-discriminatory reason,
plaintiff does not qualify for a jury trial unless . . . she
can "point to some evidence, direct or circumstantial,
from which a factfinder could reasonably either (1)
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disbelieve the employer's articulated legitimate
reasons; or (2) believe that an invidious discriminatory
reason was more likely than not a motivating or
determinative cause of the employer's action."
[Zive, 182 N.J. at 455-56 (quoting Fuentes v. Perskie,
32 F.3d 759, 764 (3d Cir. 1994)).]
However, "plaintiff cannot simply show that the employer's decision was wrong
or mistaken, since the factual dispute at issue is whether discriminatory animus
motivated the employer, not whether the employer is wise, shrewd, prudent, or
competent." Fuentes, 32 F.3d at 765. Plaintiff "must demonstrate such
weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions
in the employer's proffered legitimate reasons for its action that a reasonable
factfinder could rationally find them 'unworthy of credence,' and hence infer
'that the employer did not act for [the asserted] non-discriminatory reasons.'"
Ibid. (alteration in original) (emphasis omitted) (citations omitted).
Here, plaintiff failed to present any evidence establishing the discipline
she received or the termination of her employment occurred because of her
protected status. Plaintiff first contends her August 2011 counseling for
"[d]ifficulty during surgical rotation" after a supervisor could not reach her
during the rotation was merely a misunderstanding and does not claim the
counseling was motivated by any improper factors. Plaintiff "cannot simply
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show that the employer's decision was wrong or mistaken" or argue that the
employer is incompetent, but that is what plaintiff asserts. Ibid. Plaintiff
contends she followed the same procedures as other residents in failing to notify
her attending physician or the Graduate Medical Education Office when she was
absent on June 14 and 15, 2012, but the only competent evidence supporting her
assertion was that plaintiff had observed one resident do so on one occasion.
There is insufficient evidence for "a reasonable factfinder" to "rationally find
[defendant's proffered reason] 'unworthy of credence'" and infer a
discriminatory motivation. Ibid. (citation omitted).
Plaintiff also claims her suspension with pay for "her alleged continued
failure to contact CompleteCare regarding her absences" was unwarranted
because she "did not know that she was supposed to" contact the attending
physician at CompleteCare when she failed to appear on four separate occasions
for her scheduled rotation. The undisputed facts establish plaintiff had attended
several prior meetings concerning her communication with attending physicians,
and plaintiff's supervisor sent her an email instructing her to add the
CompleteCare attending physician to her contact list in response to her email
calling out sick—an instruction plaintiff says "could mean anything" and did not
say to contact that attending physician in the case of future absences. Indeed,
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plaintiff's continuing failure to appear for her scheduled rotation without
providing any notice to anyone at CompleteCare resulted in CompleteCare's
directive that plaintiff not return. Defendants' articulated reason for the
suspension—plaintiff's failure to contact CompleteCare when she was absent for
four separate rotations—is established by the undisputed facts. Plaintiff points
to no evidence from which "a factfinder could reasonably either (1) disbelieve
the employer's articulated legitimate reasons; or (2) believe that an invidious
discriminatory reason was more likely than not a motivating or
determinative cause of the employer's action." Zive, 182 N.J. at 455-
56 (quoting Fuentes, 32 F.3d at 764).
Plaintiff asserts disparate treatment and claims four male residents who
committed similar attendance infractions were not disciplined to the same
extent, but this assertion is unsupported by competent evidence in the record and
thus cannot support plaintiff's discrimination claim. See Brill, 142 N.J. at 530,
540. Plaintiff claims she was singled out for her use of unscheduled time off,
but the undisputed facts establish that only one resident engaged in conduct
similar to plaintiff's and that resident was terminated from the program. In
addition, three other residents whose infractions did not rise to the level of
plaintiff's conduct received verbal counseling.
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Plaintiff bears the burden to "demonstrate such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions" in
defendants' asserted reasons for disciplining, suspending, and terminating
plaintiff "that a reasonable factfinder could rationally find them 'unworthy of
credence,' and hence infer that the employer did not act for [the asserted] non-
discriminatory reasons." Fuentes, 32 F.3d at 765 (alteration in original)
(emphasis omitted) (citations omitted). Here, the undisputed facts establish that
defendants consistently required plaintiff to communicate with her supervisors
and attending physicians regarding her absences, plaintiff consistently did not
perform, and the residents who engaged in similar conduct were disciplined or
terminated. In conclusory fashion, plaintiff asserts "it is clear that [she] was
being treated differently than others, with the only remaining explanation being
that it was because of her sex, pregnancy and/or disability." But the evidence
and undisputed facts do not support her assertion and wholly undermine it. The
"issue is whether discriminatory animus motivated the employer," and plaintiff
fails to present evidence permitting a rational inference that her protected status
was a motive or one of the motives for the complained-of conduct. Ibid. Thus,
we find the trial court properly granted defendants summary judgment as to
plaintiff's discrimination claim.
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Plaintiff also argues that defendants' acts created a hostile work
environment. To establish a hostile work environment claim, a plaintiff must
show that "the complained-of conduct (1) would not have occurred but for the
employee's protected status, and was (2) severe or pervasive enough to make a
(3) reasonable person believe that (4) the conditions of employment have been
altered and that the working environment is hostile or abusive." Shepherd v.
Hunterdon Developmental Ctr., 174 N.J. 1, 24 (2002) (citing Lehmann v. Toys
'R' Us, Inc., 132 N.J. 587, 603-04 (1993)).
Plaintiff's chief complaints relate to her suspension following her
CompleteCare absences, her termination, and that defendants failed to provide
the first-year rotations she missed during her first medical leave before she went
on leave again in September 2012. For the reasons already noted, plaintiff has
failed to present evidence that the alleged conduct of which she complains
occurred as a result of or based on her protected status as a woman, a pregnant
woman, or an individual with a disability. For this reason alone, plaintiff's
hostile work environment claim fails. Ibid.
We also consider whether defendants' conduct is sufficiently severe or
pervasive based on an objective standard and the totality of the circumstances,
including how frequent, severe, physically threatening, humiliating, or offensive
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the harassment is and whether it unreasonably interferes with plaintiff's work
performance. Cutler v. Dorn, 196 N.J. 419, 431-32 (2008). We assess whether
the conduct itself "is sufficiently severe or pervasive to create a hostile work
environment," and neither a plaintiff's subjective response to the complained-of
conduct nor a defendant's subjective intent in engaging in such conduct is
determinative of whether a hostile environment claim exists. Id. at 431.
Plaintiff claims defendants' conduct from the time she returned from
medical leave in June 2012 to the time she went on leave in September 2012
constituted a hostile work environment. Plaintiff argues defendants' conduct
was severe and pervasive enough to alter the conditions of her employment
because "she was required to take medical leave" as a result of the hostile work
environment and "was not given state-mandated rotations in order to complete
her residency." Our objective standard requires that we determine whether a
reasonable person in plaintiff's position would consider the work environment
hostile or abusive and will not take into account plaintiff's subjective response.
Id. at 431. As for plaintiff's contention that defendant failed to reschedule her
missed first-year rotations at the time she desired, we cannot find a reasonable
person would believe this circumstance to so alter the conditions of employment
that he or she would find the workplace hostile or abusive. The evidence shows
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defendants were willing to work with plaintiff so she could make up the missed
rotations, plaintiff had in fact been promoted and granted a pay raise on schedule
following her medical leave, and plaintiff had another year of residency in which
to complete the missed rotations. We find summary judgment was properly
granted to defendants as to plaintiff's hostile work environment claim as the
evidence "is so one-sided that [defendants] must prevail as a matter of law."
Brill, 142 N.J. at 540 (citation omitted).
While plaintiff neglects to brief the issue in full, we also address her claim
that she was constructively discharged. "A constructive discharge claim arises
when an employee leaves the workplace because the 'employer knowingly
permit[s] conditions of discrimination in employment so intolerable that a
reasonable person subject to them would resign.'" Toto v. Princeton Township,
404 N.J. Super. 604, 615 (App. Div. 2009) (alteration in original) (quoting
Shepherd, 174 N.J. at 27-28). Plaintiff must show she did everything reasonably
necessary to remain employed rather than quit, and we take into consideration
the nature of the alleged harassment, whether plaintiff engaged in internal
grievance procedures, the employer's responsiveness to plaintiff's complaints,
and any other relevant circumstances. Shepherd, 174 N.J. at 28.
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Here, plaintiff requested and was granted medical leave through
December 19, 2012. Plaintiff argues defendants' failure to provide the missed
first-year rotations at this time resulted in a constructive discharge. However,
plaintiff's contract continued through June 2013 and there is no evidence
indicating she could not have completed these rotations upon returning from
leave. The conditions when plaintiff took leave were such that, although she
had not yet completed her first-year rotations, she had been promoted to a
second-year resident and received a raise as a result. The remediation plan
plaintiff signed following her suspension with pay detailed procedures for
minimizing the unscheduled use of paid time off and properly notifying
attending physicians and defendants when plaintiff was unable to do a rotation.
These conditions are not so onerous or intolerable that a reasonable person
subject to them would resign. See Toto, 404 N.J. Super. at 615.
In addition, plaintiff did not follow up with her physician regarding the
paperwork necessary to extend her medical leave. Plaintiff did not respond to
defendants' email offering to help her with filing a workers' compensation claim.
Plaintiff did not appeal her termination, and plaintiff did not reapply to
defendants' program. Plaintiff has not shown she did everything reasonable and
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necessary to remain employed rather than quit or, in this instance, be terminated.
See Shepherd, 174 N.J. at 28.
For these reasons, we are not convinced, based on the record presented,
that a reasonable jury could find defendants' conduct was so unbearable that it
forced plaintiff to abandon the workplace and choose not to return. Plaintiff
failed to present evidence sufficient to support her constructive discharge claim.
Affirmed.
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