WEISMAN et al v. NEW JERSEY DEPARTMENT OF HUMAN SERVICES et al

Filing 53

OPINION FILED. Signed by Judge Joseph E. Irenas on 11/13/13. (js)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

DEBRA WEISMAN and ALBERT
WEISMAN,
HONORABLE JOSEPH E. IRENAS

Plaintiffs,

CIVIL ACTION NO. 11-1856
(JEI/JS)

v.
NEW JERSEY DEPARTMENT OF HUMAN
SERVICES, et al.,

OPINION

Defendants.
APPEARANCES:
GEOFFREY B. GOMPERS & ASSOCIATES
By: Frank Finch III, Esq.
Two Penn Center Plaza, Suite 1850
Philadelphia, Pennsylvania 19102
Counsel for Plaintiffs.
ATTORNEY GENERAL OF NEW JERSEY
By: Noreen P. Kemether, Esq.
Richard J. Hughes Justice Complex
P.O. Box 112
Trenton, New Jersey 08625
Counsel for Defendants.

Irenas, Senior 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

1

Weisman asserts that

The Court exercises subject-matter jurisdiction pursuant to 28 U.S.C. § 1331
and § 1367.

1

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.

I.
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.
19.)

(Compl. ¶ 19; Defs. Mot. Ex. C at 34:10-

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.)

2 Named as Defendants in this action are the New Jersey Department of Human
Services (“DHS”); Ancora; Commissioner of DHS, Jennifer Velez (dismissed from
this case in Weisman v. NJ Dept. of Human Svcs., 817 F.Supp.2d 456, 463
(D.N.J. 2011)); Chief Executive Officer of Ancora, Allan Boyer; and Director
of Human Resources at Ancora, Alfred Filippini (collectively, “Defendants”).

2

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.
3.)

(See, e.g., Defs. Mot. Ex. E; Defs. Mot. Ex. EE at

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 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,
3

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.
at 1.)

(Pls. Opp. Ex. I; Defs. Mot. Ex. M

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.”
Mot. Ex. M at 4-5.)

(Defs.

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

4

“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 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,

3

Weisman suggests that the allegations contained in the report to the New
Jersey Board of Nursing were “manufactured” and were used to “cause Weisman
to lose her job at Kennedy.” (Pls. Opp. Br. at 48.) However, the record
demonstrates that, as detailed in the report, Weisman did telephone Boyer in
March, 2009, and in her own words, characterized Boyer in the following
manner: “I said, I’ve been told that you wear – that you’re skinny, that you
wear polyester suits, and you have greasy hair. I never said rosy hair. I
said greasy hair.” (Defs. Mot. Ex. C at 88:17-24.) As described in the
report, “Ms. Weisman has called the CEO of Ancora Psychiatric Hospital . . .
. and referred to him in a disrespectful manner. The nature of these
telephone calls was highly inappropriate and disconcerting; many of the calls
exhibited anger and rudeness.” (Defs. Mot. Ex. CC.) The report also alleged
that Weisman failed a fitness-for-duty evaluation, which is demonstrated by
the report of Dr. Margolis. Finally, while Weisman disputes the details of
an incident on August 24, 2009 where (during her leave) she taped her
paycheck to her locker and was escorted out of Ancora by police, she
explained at her deposition that she went to Ancora on that date and left a
copy of her paycheck on the desk at the nurse’s station with a note
indicating that she was fired. (Defs. Mot. Ex. C at 156:8-21.) When asked
whether she was escorted off Ancora property by police after doing that, she
responded: “I sure was, yes.” (Id. at 156:21.)
4 The charges included insubordination, inability to
unbecoming a public employee, inability to discharge
or physical incapacity, an additional administrative
insubordination and notoriously disgraceful conduct,
other sufficient cause. (Defs. Mot. Ex. B.)

5

perform duties, conduct
one’s duty due to mental
charge of
violation of a rule, and

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
6

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. § 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, the Defendants moved for summary judgment in
their favor on each of the Plaintiffs’ remaining claims.

II.
“The court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Civ. P. 56(a).

Fed. R.

In deciding a motion for summary judgment, the

court must construe all facts and inferences in the light most
favorable to the nonmoving party.

See Boyle v. Allegheny

Pennsylvania, 139 F.3d 386, 393 (3d Cir. 1998).

The moving

party bears the burden of establishing that no genuine issue of
material fact remains.

See Celotex Corp. v. Catrett, 477 U.S.
7

317, 322-23 (1986).

A fact is material only if it will affect

the outcome of a lawsuit under the applicable law, and a dispute
of a material fact is genuine if the evidence is such that a
reasonable fact finder could return a verdict for the nonmoving
party.
(1986).

See Anderson v. Liberty Lobby, Inc., 477 U.S. 249, 252
The non-moving party must present “more than a

scintilla of evidence showing that there is a genuine issue for
trial.”

Woloszyn v. Cnty. of Lawrence, 396 F.3d 314, 319 (3d

Cir. 2005).

The court’s role in deciding the merits of a

summary judgment motion is to determine whether there is a
genuine issue for trial, not to determine the credibility of the
evidence or the truth of the matter.

Anderson, 477 U.S. at 249.

III.
The Plaintiffs move for summary judgment in their favor on
Count VIII, which alleges a breach of contract, and as to the
Defendants’ twenty-fifth affirmative defense, which concerns the
Defendants’ obligations under N.J.S.A. 26:2H-12.2c.

In

response, the Defendants move for summary judgment in their
favor on all remaining counts, arguing, among other things, that
all of the remaining counts are precluded by the broad release
contained in the April 16, 2010 settlement agreement.
addresses each motion in turn.

8

The Court

A.
Plaintiffs argue they are entitled to summary judgment on
their claim of breach of contract because the Defendants have
failed to comply with the settlement agreement of April 16,
2010.

(Pls. Mot. Br. at 15.)

The Court previously addressed

this claim in its Opinion issued after considering the
Defendants’ Motion to Dismiss, holding that dismissal of the
breach of contract claim was not warranted for failure to state
a claim.

See Weisman v. N.J. Dept. of Human Svcs., 817

F.Supp.2d 456, 461 (D.N.J. 2011).

With the benefit of

discovery, the Plaintiffs now argue they are entitled to summary
judgment because the settlement agreement was supposed to
reflect that Weisman’s termination was a “resignation in good
standing” immediately after it was signed, but instead it
reflected “resignation not in good standing” for a period of
seven months before the Defendants corrected Weisman’s personnel
file.

(Pls. Mot. Br. at 11-12.)

On the other hand, the

Defendants argue that the Plaintiffs are not entitled to summary
judgment because Weisman’s subsequent employer never received
word of the erroneous designation, therefore the Defendants
never materially breached the agreement and the Plaintiffs’
motion must fail.

(Defs. Opp. Br. at 16.)

A release of claims pursuant to a settlement agreement is a
legal contract that should be enforced “to preclude a lawsuit
9

stemming from the related events provided there is no applicable
exception to the release defense.”

Weisman, 817 F.Supp.2d at

461 (citing Grimes v. Vitalink Commc’n Corp., 17 F.3d 1553, 1557
(3d Cir. 1994)).

A material breach to a bilateral contract

excuses the other party from performing its future obligations
under that contract.

Magnet Res., Inc. v. Summit MRI, Inc., 723

A.2d 976, 981 (N.J. Super. Ct. App. Div. 1998) (citing Nolan v.
Lee Ho, 577 A.2d 143, 146 (N.J. 1990)).

To determine whether a

material breach has occurred, a “court should evaluate the ratio
quantitatively which the breach bears to the contract as a
whole, and secondly the degree of probability or improbability
that such a breach will be repeated.”

Magnet Res., 732 A.2d at

981 (internal quotation marks omitted) (quoting Medivox Prods.,
Inc. v. Hoffmann-La Roche, Inc., 256 A.2d 803, 809 (N.J. Super.
Ct. Law. Div. 1969)).
Under the April 16, 2010 settlement agreement, the sole
obligation of the Defendants was to reflect Weisman’s
termination as a “resignation in good standing.”
2.)

(Pls. Ex. B at

On May 11, 2010, Filippini signed a Final Notice of Major

Disciplinary Action, inaccurately indicating that Weisman’s
termination was a “resignation not in good standing.”
C.)

(Pls. Ex.

The Defendants do not dispute that this disposition was in

error; in his deposition, Filippini described the “resignation
not in good standing” designation as erroneous because it was
10

not in accordance with the terms of the settlement agreement.
(Pls. Ex. I at 66.)

The Defendants corrected this error when it

was brought to their attention on January 4, 2011 by reissuing a
Final Notice of Major Disciplinary Action, which properly
reflected that Weisman’s penalty was amended to “RIGS
[resignation in good standing].”

(Pls. Ex. I at 68; Pls. Ex.

D.)
In light of this error, the incorrect designation over the
course of seven months fails to constitute a material breach of
the settlement agreement.

The actual terms of Weisman’s

resignation was never shared with her subsequent employer.
Debra Boos, the human resources generalist responsible for
hiring Weisman at Kennedy, never spoke with anyone from Ancora
regarding Weisman, nor did she receive records from Ancora
regarding Weisman’s employment there.

(Pls. Ex. J at 28-29.)

Boos withdrew Kennedy’s offer of employment to Weisman after
receiving the background investigation that Kennedy required.
(Id. at 44.)

This background investigation, dated June 9, 2010,

indicated that Weisman’s resignation from Ancora was classified
as a “voluntary resignation.”

(Pls. Ex. M at 2.)

This comports

with the Defendants’ obligation to show Weisman’s resignation in
good standing under the settlement agreement. 5

5

The Plaintiffs argue that the Defendants have materially breached the terms
of the settlement agreement by failing to revoke the November 20, 2009 letter

11

Given the Defendants’ compliance with their obligation
under the settlement agreement, the Plaintiffs cannot
demonstrate that they are entitled to summary judgment on their
breach of contract claim.

B.
The Defendants’ Motion for Summary Judgment, relying upon
the release included in the parties’ settlement agreement,
raises basic issues of New Jersey contract law.

If the

Defendants breached the settlement agreement, the Plaintiffs are
entitled to Summary Judgment on their breach of contract claim
and the Court must address the Plaintiffs’ other remaining
claims to rule on the Defendants’ Motion for Summary Judgment.
On the other hand, if the Defendants have complied with their
obligation under the settlement agreement, Weisman is also
obligated to comply with her obligation under the settlement
agreement; namely, that she released all the Defendants from
liability for all claims arising before April 16, 2010.

sent to the New Jersey Board of Nursing, which indicated that Weisman had
been suspended pending termination on November 12, 2009. (Pls. Mot. Br. at
16-17.) However, New Jersey law requires that health care entities, upon the
request of other health care entities, truthfully disclose whether they have
reported an employee to a state board of licensing regarding job performance
as that performance impacts patient care. N.J.S.A. 26:2H-12.2c(a)(2).
Health care entities are required to report employees to the appropriate
board who have their privileges revoked or suspended, even if temporarily.
N.J.S.A. 26:2H-12.2b(a)(1)(a). Filing the November 20, 2009 letter comported
with New Jersey law and does not bear on the Defendants’ obligation under the
settlement agreement.

12

As explained above, a release of claims pursuant to a
settlement agreement is simple legal contract, which “should be
enforced to preclude a lawsuit stemming from the related events
provided there is no applicable exception to the release
defense.”

Weisman, 817 F.Supp.2d at 461 (citing Grimes v.

Vitalink Commc’n Corp., 17 F.3d 1553, 1557 (3d Cir. 2004)).
Because a settlement agreement is a simple legal contract, the
resolution of disputed terms would be settled by applying
principles of New Jersey contract law.

Mortellite v. Novartis

Crop Protection, Inc., 460 F.3d 483, 492 (3d Cir. 2006) (citing
Haledon v. N. Haledon, 817 A.2d 965, 975 (N.J. Super. Ct. App.
Div. 2003)).
As a preliminary matter, a contractual promise is only
enforceable if the promisor gave the promise some consideration
in exchange for the promise.
A.2d 872, 878 (N.J. 2002).

Martindale v. Sandvik, Inc., 800
The “essential requirement” of the

consideration doctrine is that there is some “bargained-for
exchange of promises,” which could consist of an act,
forbearance, or the creation, modification, or destruction of a
legal relation.

Id. (quoting Shebar v. Sanyo Bus. Sys. Corp.,

544 A.2d 377, 383 (N.J. 1988)).

The bargained-for exchange need

not be large in value; rather, “[a] very slight advantage to one
party, or a trifling inconvenience to the other, is a sufficient
consideration to support a contract when made by a person of
13

good capacity, who is not at the time under the influence of any
fraud, imposition, or mistake.”

Martindale, 800 A.2d at 879

(alteration in original) (quoting Traphagen’s Ex’r v. Vorhees,
12 A. 895, 901 (N.J. Eq. 1888)).
Consideration is not in doubt in the April 16, 2010
settlement agreement.

The terms of the settlement agreement

explicitly describe the bargained-for exchange that each party
received.

The settlement agreement noted that Weisman’s

original penalty was “Removal,” and then included the following
handwritten terms:
standing.

“Will be modified to a resignation in good

Also Ms. Weisman is ban [sic] from the entire dept of

Human Services, may not apply or accept future employment.”
(Defs. Mot. Ex. W at 1.)

In addition, the pre-printed Mediation

Disposition form includes the following printed terms:
Appellant [Weisman] waives all appeals,
claims, demands, damages, causes of action or
suits (hereinafter referred to collectively as
“Appeals/Claims”)
which
he/she
may
have
against the State, its employees, agents, or
assigns arising out of or related to the
subject matter of this disciplinary action,
regardless of whether such Appeals/Claims are
known or unknown, have been or could have been
brought, and regardless of what forum, court
or other venue could be used for such
Appeals/Claims from the beginning of time to
the date of this agreement.
Further,
Appellant waives all claims/appeals resulting
from anything which has happened up until now
in his/her employment with the State including
but not limited to Claims/Appeals arising
under Title VII of the Civil Rights Act of
1964, the Civil Rights Act of 1991, the New
14

Jersey
Law
Against
Discrimination,
the
Americans with Disabilities Act, the Equal Pay
Act, the Conscientious Employee Protection
Act, the Family and Medical Leave Act, the New
Jersey Family Leave Act, the Civil Service
Act, 42 USC 1981, 42 USC § 1983, New Jersey
wage and hour laws, retaliation claims under
Workers Compensation laws, but not any
unrelated workers compensation claim for
injury on the job, the U.S. Constitution, the
New Jersey Constitution, tort law or contract
law.
This waiver includes all claims
involving any continuing effects of actions or
practices which arose prior to the date of
this Settlement Agreement and bars the use in
any way of any past action or practice in any
subsequent claim.
(Id. at 1-2.)

At the end of the settlement agreement, Weisman’s

signature appears along with the signatures of her local and
national union representatives, a representative of DHS, and the
mediator.

(Id. at 2.)

In short, in exchange for surrendering

her claims against the state and accepting a ban on state
employment, Weisman was granted a resignation in good standing,
constituting a bargained-for exchange of promises.
Weisman argues that she would not have granted such an
expansive release to the Defendants had she known that the
Defendants intended to provide information regarding her
termination to potential future employers, regardless of the
terms of the settlement.

(Pls. Mot. Br. at 19 n.7.)

As the

parties clarified at oral argument, Weisman believed that the
settlement would mean that no future employers would know of the
circumstances of her termination at Ancora, which would require
15

DHS to amend or withdraw Maureen Long’s November 20, 2009 letter
to the New Jersey Board of Nursing and Long’s subsequent update
of that letter on March 30, 2010. 6

(Id.)

In other words, the

essence of the present dispute at this summary judgment stage is
whether the state, in agreeing to change Weisman’s status to a
resignation in good standing, had to also withdraw the
notifications that were previously sent to the New Jersey Board
of Nursing. 7

6

Health care entities,
upon the inquiry of another health care entity, shall
truthfully (1) disclose whether, within the seven years
preceding the inquiry, it provided any notice to the
division pursuant to [26:2H-12.2b], or to the review
panel [Board of Nursing], as required by [26:2H-12.2a],
with respect to the health care professional about whom
the inquiry has been made, providing a copy of the form
of notification and any supporting documentation that
was provided.
N.J.S.A. 26:2H-12.2c (emphasis added). In arguing that she understood
“resignation in good standing” to require other actions, Weisman essentially
argues that she expected the state to either disobey the law (by not
indicating Long had filed two reports with the Board of Nursing) or to
mislead Weisman’s prospective employers by having the state somehow indicate
that Weisman had been reported but then omit the notification and supporting
documentation. No language to this effect appears in the terms of the
settlement agreement, described above. Moreover, in complying with the terms
of the settlement agreement, when Weisman applied for a position with Kennedy
and Tabb, Inc. undertook a background investigation on Kennedy’s behalf,
Ancora checked the box indicating that Weisman’s separation from Ancora was a
“voluntary resignation,” and the Defendants also checked the box indicating
that they had reported Weisman to the Board of Nursing during the past seven
years, pursuant to N.J.S.A. 26:2H-12.2c. (Defs. Mot. Ex. CC at APH00057.)
Such an act complied with the settlement agreement and Ancora’s obligation
under N.J.S.A. 26:2H-12.2c.
7 At oral argument, Weisman indicated that she was pursuing an appeal of the
allegations in the November 20, 2009 and March 30, 2010 letters before the
Board of Nursing in an effort to clear the allegations from the Board of
Nursing’s records. Neither party has submitted any documentation of this
ongoing appeal process, but none is necessary for purposes of determining the
rights of the parties under the settlement agreement, which is all that is
required in deciding the instant motions for summary judgment.

16

Under New Jersey contract law, a contract term is generally
binding if “the contract has been mutually agreed upon by the
parties, is supported by valid consideration, and does not
violate codified standards or offend public policy.”

Hoffman v.

Supplements Togo Mgmt., LLC, 18 A.3d 210, 216 (N.J. Super. Ct.
App. Div. 2011) (citing W. Caldwell v. Caldwell, 138 A.2d 402,
410-11 (N.J. 1958)).

To have a mutual agreement, there must be

a meeting of the minds, which “signifies that each party to the
contract must have been fairly informed of the contract’s terms
before entering into the agreement.”

Hoffman, 18 A.3d at 216;

Johnson & Johnson v. Charmley Drug Co., 95 A.2d 391, 397 (N.J.
1953).
A party who enters into a written contract, without being
induced by fraud “or imposition being practiced upon him, is
conclusively presumed to understand and assert to its terms and
legal effect.”

Baig v. Nuclear Regulatory Comm’n, No. 10-cv-

0842 (FLW), 2013 WL 1558707, at *3 (D.N.J. April 10, 2013)
(quoting Rudbart v. N. Jersey Dist. Water Supply Comm’n, 605
A.2d 681, 685 (N.J. 1992)); see also Raiczyk v. Ocean Cnty.
Veterinary Hosp., 377 F.3d 266, 270 (3d Cir. 2004) (“[I]t is
well settled that signing a contract creates a ‘conclusive
presumption that the signer read, understood, and assented to
its terms.’”) (quoting Fleming Cos., Inc. v. Thriftway Medford
Lakes, Inc., 913 F.Supp. 837, 842-43 (D.N.J. 1995)).
17

While

rescission may be available in cases of unilateral mistake, such
relief cannot be granted where the mistake occurs as a result of
the mistaken party’s own negligence. 8
*3.

Baig, 2013 WL 1558707 at

Thus, unless there is some mistake, fraud, duress, or other

“imposition,” the unambiguous terms of the settlement agreement
are binding.
There is no dispute that Weisman voluntarily submitted to
the arbitration process that resulted in the settlement
agreement.

(See, e.g., Compl. ¶¶ 76-78.)

Moreover, there is no

dispute that Weisman signed a written contract, as the April 16,
2010 settlement agreement appears in writing.
at 2.)

(Defs. Mot. Ex. W

Finally, there is no dispute that each party exchanged a

bargained-for promise.

Thus, the Court looks to see if there is

some ambiguity that precluded a meeting of the minds and would
therefore invalidate the settlement agreement.
In looking at the terms of the settlement agreement, the
Court finds no ambiguity.

The settlement agreement clearly

8

Where a party seeks rescission of a contract due to unilateral mistake, four
conditions must be present to grant such relief:
(1) The mistake must be of so great a consequence that
to enforce the contract as actually made would be
unconscionable; (2) the matter as to which the mistake
was made must relate to the material feature of the
contract;
(3)
the
mistake
must
have
occurred
notwithstanding the exercise of reasonable care by the
party making the mistake, and; (4) it must be able to
get relief by way of rescission without serious
prejudice to the other party, except for loss of his
bargain.
Villanueva v. Amica Mut. Ins. Co., 864 A.2d 428, 432 (N.J. Super. Ct. App.
Div. 2005).

18

manifests that Weisman agreed to a change in termination from
“Removal” to “resignation in good standing.”
at 1.)

(Defs. Mot. Ex. W

Removal is a form of discipline, defined in N.J.A.C.

4A:2-2.2(a).

Resignation in good standing is a status defined

in N.J.A.C. 4A:2-6.1.

The terms of the settlement agreement use

the words “removal” and “resignation in good standing” in a
clear and plain fashion; in other words, there is no ambiguity
as to their meaning in the settlement agreement given their
definition in the administrative regulations governing civil
service employees.

In the absence of mistake, fraud, duress, or

other imposition, Weisman is bound to the release that she
granted to the state under the settlement agreement.
Weisman cannot obtain rescission of the settlement
agreement on a theory that she is the victim of a unilateral
mistake – specifically, that she agreed to the amended
designation of her termination as a resignation in good standing
but did not realize that such a term would not require the state
to rescind the two letters that Long wrote to the New Jersey
Board of Nursing.

While Weisman now disputes that she received

notice of Long’s letters prior to the April 16, 2010 settlement
agreement, the Defendants have provided a United States Postal
Service receipt signed by Weisman on April 2, 2010,
approximately two weeks before the mediation session,
acknowledging receipt of a March 31, 2010 letter from Long that
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contained the two letters sent to the Board of Nursing.
Opp. Ex. 1 at 7.)

(Defs.

Moreover, there is no actual dispute

regarding Weisman’s receipt of this notice, as Weisman alleged
in her complaint that she was notified of Long’s two letters to
the Board of Nursing by a letter from Long dated March 31, 2010.
(Compl. ¶ 89; Compl. Ex. K.)

Weisman’s failure to exercise

reasonable care to review the contents of Long’s notification
precludes Weisman from obtaining rescission of the settlement
agreement under the doctrine of unilateral mistake, which is
inapplicable in cases where the mistaken party was negligent.
Finally, no allegation of fraud, duress, or other
imposition is present in the undisputed facts produced in
discovery.

To establish a prima facie state law claim for

fraud, Weisman would have to demonstrate “(1) a material
misrepresentation of a presently existing or past fact; (2)
knowledge or belief by [the state] of its falsity; (3) an
intention that [Weisman] rely on it; (4) reasonable reliance
thereon; and (5) resulting damages.”

Port Liberte Homeowners

Ass’n v. Sardoni Const. Co., 924 A.2d 592, 507 (N.J. Super. Ct.
App. Div. 227) (quoting Gennari v. Weichert Realtors, 691 A.2d
350, 367 (N.J. 1997)).
In support of partial summary judgment in her favor on the
breach of contract claim, Weisman argues that she never would
have signed the settlement agreement had she known that the
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“resignation in good standing” designation would not have
revoked Long’s two letters to the New Jersey Board of Nursing.
(Pls. Mot. Br. at 19 n.7.)

However, this argument does not

constitute grounds for invalidating the unambiguous terms of the
contract.

Though it might be true that the Defendants never

intended to grant Weisman a clean employment record (because
Long’s letters would remain on record with the New Jersey Board
of Nursing), the terms of the settlement agreement only required
the Defendants to provide Weisman with a resignation in good
standing.

This is an unambiguous term, defined in the New

Jersey Administrative Code governing civil service employees,
which Weisman counted herself among.

Thus, the Defendants did

not make any misrepresentation of their obligation under the
contract, and therefore there are no grounds for invalidating
the settlement agreement.

Weisman is therefore bound by the

release granted under the settlement agreement.
Because the terms of the settlement agreement grant the
Defendants a release from all claims arising from Weisman’s
employment, the Defendants are entitled to summary judgment on
Count I for a violation of her First Amendment rights, Count III
for a violation of her New Jersey constitutional rights, Count
IV for her claim under the New Jersey Conscientious Employee
Protection Act, Count V for the state law claim of tortious
interference with prospective economic advantage, Count VI for
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the state law claim of defamation, Count VII for the state law
claim of intentional interference of mental and emotional
distress, Count VIII for the state law claim of breach of
contract, and Count IX for the state law claim of breach of the
implied covenant of good faith and fair dealing.

C.
Plaintiff Albert Weisman brings Count X to recover for a
loss of consortium resulting from the allegedly tortious conduct
of the Defendants.

A loss of consortium claim is “derivative of

the injured spouse’s personal injury cause of action.”

Kibble

v. Weeks Dredging & Const. Co., 735 A.2d 1142, 1149 (N.J. 1999).
Where the spouse fails to allege a cognizable claim, derivative
claims for loss of consortium fail.

See, e.g., Acevedo v.

Monsignor Donovan High Sch., 420 F.Supp.2d 337, 349 (D.N.J.
2006).

Here, as a result of the broad waiver under the

settlement agreement, Debra Weisman fails to allege any
cognizable claim in tort, contract, or by statute.

The

Defendants are therefore entitled to summary judgment in their
favor on Albert Weisman’s derivative loss of consortium claim.

V.
Based on the foregoing, the Court will deny Plaintiffs’
Motion for Partial Summary Judgment on Count VIII, and will
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grant Defendants’ Motion for Summary Judgment.

The Plaintiffs’

Motion for Partial Summary Judgment on the Defendants’ Twentyfifth Affirmative Defense is rendered moot in light of the
Defendants’ Motion for Summary Judgment.

An appropriate Order

accompanies this Opinion.

Date: November 13, 2013
/s/ Joseph E. Irenas
Joseph E. Irenas, S.U.S.D.J.

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