SHAH v. MEDITAB SOFTWARE, INC. et al

Filing 48

OPINION. Signed by Judge Jerome B. Simandle on 5/23/2019. (rss, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
KUNAL SHAH,
HONORABLE JEROME B. SIMANDLE
Plaintiff,
v.

Civil Action
No. 16-8864 (JBS-JS)

MEDITAB SOFTWARE, INC., et
al.,
OPINION
Defendants.
APPEARANCES:
Kevin M. Costello, Esq.
Drake P. Beardon, Jr., Esq.
COSTELLO & MAINS
18000 Horizon Way, Suite 800
Mt. Laurel, NJ 08054
Attorneys for Plaintiff
David E. Strand, Esq.
Sarah Wieselthier, Esq.
FISHER & PHILLIPS LLP
430 Mountain Avenue, Suite 303
Murray Hill, NJ 07974
Attorneys for Defendant
SIMANDLE, District Judge:
I.

INTRODUCTION
Plaintiff Kunal Shah (“Plaintiff”) brings this action against

Defendants Meditab Software, Inc. (“Meditab”), Medical Supply
Corp., Midesh “Mike” Patel (“Defendant Patel”), and John Does 110 (collectively, “Defendants”) alleging that Defendants breached
its contracts with Plaintiff and/or that Plaintiff was terminated
from his employment with Defendant Meditab in retaliation for

engaging

in

“whistle-blowing”

activity

in

violation

of

New

Jersey’s Conscientious Employee Protection Act (“CEPA”). Currently
pending

before

the

Court

is

Defendants’

motion

for

summary

judgment. For the reasons discussed below, the motion will be
granted in part and denied in part.
II.

FACTUAL AND PROCEDURAL BACKGROUND1
A.

Factual Background

Meditab builds software for doctors. (Patel Dep. [Docket
Item 32-5] at 20:21-22.) Defendant Patel is the Chairman of
Meditab’s Board of Directors. (Id. at 10:5-7.) Medical Supply Corp.
d/b/a Elmhurst Pharmacy, Inc.

was, at all relevant times, a

business with complete control over Meditab and the owner and
operator of Meditab. (Compl. [Docket Item 1] at ¶ 3.)
Plaintiff began working for Meditab in 2001. (Pl.’s Dep.
[Docket Item 38-1] at 39:25-40:3.) When he first started, his job
duties and responsibilities included doing business case review,
testing, and deployment. (Id. at 43:7-12.) Plaintiff was initially

For purposes of the instant motion and pursuant to Local Civil
Rule 56.1, the Court looks to the Complaint [Docket Item 1] when
appropriate, Defendants’ Statement of Undisputed Material Facts
[Docket Item 32-1], Plaintiff’s Counterstatement of Undisputed
Material Facts [Docket Item 38 at 1-14] and Response to Defendants’
Statement of Undisputed Material Facts [Docket Item 38 at 14-19],
Defendants’ Response to Plaintiff’s Counterstatement of Undisputed
Material Facts [Docket Item 40-1], and related exhibits and
documents. The Court distills this version of the record in the
light most favorable to Plaintiff, the non-moving party.
1

2

compensated between $36,000 to $42,000 per year and he was not
paid any commissions at this time. (Id. at 43:13-20.)
According to Plaintiff, in 2004 or 2005, he was promoted to
a sales position and, in this role, he earned around $60,000 in
base salary plus commission for any sales he made. (Id. at 44:2045:15.) At this time, Plaintiff’s commission started at 8% of gross
sales, but could go up to 12% depending on how much volume he sold.
(Id. at 46:4-47:6.) The parties agreed that Plaintiff would invoice
his commissions through Plaintiff’s company, Aqua Healthcare. (Id.
at 23:7-21.) Plaintiff would then receive his commissions as salary
from Aqua Healthcare. (Id. at 23:22-24:7.)
In 2010 or 2011, Plaintiff began running CosmetiSuite, a
division (or “product line”) of Meditab, as its division head.
(Id. at 47:15-48:5.) Defendant Patel agreed to provide Plaintiff
with 25% of the net proceeds of the sale of CosmetiSuite, in the
event it was sold. (See Apr. 20, 2013 Email [Docket Item 32-9] at
2) (“I have mentioned to you that based on your thoughts in
cosmetic, I plan on giving u net proceeds of 25% from that sale.”);
see also Pl.’s Dep. at 51:4-12.) To date, CosmetiSuite has not
been sold and remains one of Meditab’s product lines. (Id. at
55:13-15.) Accordingly, Plaintiff still retains his 25% stake in
the product line.
On or about January 15, 2015, Plaintiff became the President
and CEO of Meditab. (See Jan. 15, 2015 Email [Docket Item 32-10]
3

at 2.) The terms of Plaintiff’s compensation as President and CEO
of Meditab are set forth in an email thread exchanged between
Plaintiff and Defendant Patel, dated February 4, 2015, wherein
Plaintiff states, in relevant part:
My compensation as president & CEO: We have agreed too
[sic] 10% of the net profits of Meditab with a min wage
of $3,36,0000 [$336,000]2 a year if the net profit does
not meet the mentioned salary Am currently drawing
$1,80,000 [$180,000] a year. (For any reason If the net
profit does not meet $1,56,000 [$156,000] a year this
amount will be added to my salary as a part of my salary
compensation & the min compensation I will make is Three
Hundred & Thirty Six Thousand dollars [$336,000] per
calendar year.
(Agreement [Docket Item 32-11] at MediTab-Shah 62-63.) Plaintiff’s
February 4, 2015 employment agreement was for a term of three years
and required that he provide at least 3 months (90 days) notice of
his resignation. (Id. at MediTab-Shah 63) (“3 months [notice]
minimum or forfeit 6 months of bonus. Sorry but we cannot bend on
this as you are too valuable and time consuming to replace.”).
On December 10, 2015, Plaintiff sent an email to the Meditab
Board of Directors with the subject “Time to Move on,” wherein he
wrote:
Please let this letter serve as my resignation as
President & CEO of Meditab Software Inc effective March
10th with 90 day notice.
* * * *
I assure you that you will continue to enjoy same
commitment from me during this transition period. Please
The parties appear to be in agreement that the numbers in
brackets are correct.
2

4

advise me who I should work with to transition my
responsibilities. I wish you and the company the best in
the future.
(Dec. 10, 2015 Email [Docket Item 32-13] at 2.) Plaintiff testified
that he contemplated resigning at this time due to “day-to-day
interference

of

Mike

Patel”

and

“the

operations,

you

know,

aggressive behavior, you know, which does not help stabilize the
company.” (Pl.’s Dep [Docket Item 38-3] at 125:16-25.) According
to Plaintiff, however, he did not actually resign on March 10,
2016 (90 days after he sent the December 10, 2015 email) because
his resignation was never accepted. (Id. at 134:9-14.)
Plaintiff’s alleged whistle-blowing activity, which is said
to have occurred between June and July of 2016, can be summarized,
in the light most favorable to Plaintiff, as follows:
•

Bribing an Indian public official: On June 9, 2016,
Plaintiff learned from Jay Shah (via email) that one of
Defendants’ employees, Vikas (Last Name Unknown), had
paid a bribe to a labor official in India. (Pl.’s Answer
to Defs.’ First Set of Interrog. [Docket Item 38-6] at
5.)

Plaintiff

conducted

an

investigation

into

the

payment of the labor officer and confirmed from Sunil
Lodha that a bribe was in fact paid to the official.
(Pl.’s

Dep.

[Docket

Item

38-3]

at

186:2-24.)

When

Plaintiff learned of this, he wrote an email stating
that next time the company’s attorneys will take care of
any issues with the labor officer. (Id. at 186:20-25.)
He also had a conversation with Paragi Patel, Sunil
Lodha, Dipal Patel, and Jay Shah and told them that “this
5

is not the way to complete an investigation,” and that
if there were fines they had to pay, they need to pay
the fines and “cleanup the records,” so they will not be
fined

in

the

future.

(Id.

at

185:2-24.)

Plaintiff

testified that after the bribe was paid, he specifically
told

Defendant

Patel

that

Defendants

should

not

be

participating in the payment of bribes to the Indian
Labor Office. (Pl.’s Dep. [Docket Item 38-4] at 227:421.)
•

Terminating Jay Shah’s employment without cause: Jay
Shah is Plaintiff’s cousin. On December 1, 2015, Jay
Shah signed an employment contract with Meditab that
stated once he passed a three-month probation period,
his employment “can be terminated on two months’ notice
on either side.” (Shah Employment Offer [Docket Item 389) at MediTab-Shah 1231.) The contract also stated Jay
Shah could be “terminated without notice” if he engaged
in any number of different infractions. (Id. at MediTabShah 1232, ¶ 6.) On July 12, 2016, Defendant Patel
instructed Plaintiff to terminate Jay Shah for cause
because Jay Shah had, according to Defendant Patel,
hired employees who did not meet the minimum aptitude
test score. (Pl.’s Dep. [Docket Item 38-3] at 194:2195:2; see also July 12-14, 2016 Emails [Docket Item 3810]

at

MediTab-Shah

83-91.)

Plaintiff

explained

to

Defendant Patel that this was incorrect because Jay Shah
was

not

[Docket

responsible
Item

38-3]

for
at

hiring

people.

195:4-10.)

(Pl.’s

Another

Dep.

employee,

Avinash Vyas, conducted an independent investigation and
determined there was no cause to fire Jay Shah. (July
12-14, 2016 Emails [Docket Item 38-10] at MediTab-Shah
89.) Defendant Patel still insisted that Plaintiff fire
6

Jay Shah. (Id. at MediTab-Shah 90.) Plaintiff threatened
to resign rather than terminate Jay Shah without cause.
(Pl.’s Dep. [Docket Item 83-4] at 202:17-21.)
On July 14, 2016, Plaintiff’s last day of employment with
Meditab, Defendant Patel sent Plaintiff an email stating:
I understand you left in the middle of the day yesterday
because you were upset. Today also you came in for a few
minutes.
Jay [Shah] will not be coming back. We have to have a
conversation about hand over if you are planning on
quitting. If you want to stay we will need to agree on
how we will work together. I will not have my [CEO]
disrespect me or us. I will not have my [CEO] telling
others whether they should ignore or not respond to my
communication.
(July 12-14 Emails [Docket Item 38-10] at MediTab-Shah 100.)
Plaintiff responded:
I did not leave in the middle of the day I was forced to
leave with political & unlawful decisions made. I was
still working from home until 3.00AM IST time. Today I
came inn [sic] as Dipal wanted to see me and team leads
had questions. I was not there for few mins was there
for 2 hrs.
With the way you have had me work and want me [to] work
[I] am sorry I cannot agree as I cannot act as your
puppet and cannot continue to work with your unlawful &
Predatory actions. . . .
(Id.) Plaintiff testified about this email exchange:
The thing is I just wanted to cool down. I just wanted
[Defendant Patel] to cool down. I just wanted him to
rethink that [terminating Jay Shah] is not the right
way. You know, it’s just trying to create more friction.
It’s just trying to create more friction. And even after
I wrote that, I was still working. I was still
processing, you know, emails. I was still working with

7

the teammates, etc. It’s just that I wanted him to cool
down.
(Pl.’s Dep. [Docket Item 38-4] at 213:13-22.) Plaintiff also
testified that he told staff in the India office that he was not
stepping down, but that if Defendant Patel continued to act in an
illegal manner, Plaintiff had no choice but to leave the company.
(Id. at 206:23-207:11.)
Plaintiff sent an email to Human Resources at 1:20 P.M. on
July 14, 2016, requesting one week off because he needed treatment
for his back. (July 14, 2016 Email [Docket Item 38-12] at 2-3.)
This email was forwarded by Paragi Patel to Defendant Patel at
1:53 P.M. (Id. at 2.) Defendant Patel then emailed Human Resources,
Paregi Patel, and Plaintiff at 5:29 P.M. the following:
Dear hr,
Kunal has been terminated effective immediately. Not
sure why we are getting this email.
Kunal please plan to turn in all of your equipment
tomorrow. Someone will come to your home to pick it up.
Let’s try to get this transition done smoothly for the
sake of all.
Your sick days and vacation pay will be reimbursed. I
think you were on vacation in india for a few days last
week. Your commissions and bonus will also be taken care
of. Work with paragi and hr to compete [sic] this.
Please do not email other staff or clients going forward.
Wish you the very best.
(Id.) Defendant Patel later testified he believed Plaintiff “fired
himself” when he learned Defendants terminated the contract of Jay
Shah. (Midesh Patel Dep. [Docket Item 38-14] at 43:17-44:1.)
8

B.

Procedural History

Plaintiff’s Complaint was removed to this Court on November
30, 2016. [Docket Item 1.] In the Complaint, Plaintiff alleges:
breach of contract relating to unpaid commissions and compensation
earned (Count One); breach of implied covenant of good faith and
fair dealing (Count Two); violation of CEPA as to Defendants
Meditab and Medical Supply Corp. (Count Three) and Defendant Patel
(Count Four); wrongful termination under Pierce v. Ortho Pharma.
Corp., 84 N.J. 58 (1980) (Count Five); and “request for equitable
relief” (Count Six). [Id.]
Following discovery, Defendants filed the pending motion for
summary judgment on all counts. [Docket Item 32.] Plaintiff opposed
the motion [Docket Item 38], and Defendants filed a reply brief.
[Docket Item 40.] Plaintiff subsequently filed an unauthorized
sur-reply [Docket Item 41], which the Court will not consider
because Plaintiff did not seek leave of Court before filing this
brief, as required by Local Civil Rule 7.1(d)(6).3 See, e.g.,
Carroll v. Delaware River Port Auth., 2014 WL 3748609, at *1 n.2
(D.N.J.

July

29,

2014)

(disregarding

sur-reply

because

“[d]efendant failed to ask for, much less receive, permission to

As described in the Court’s Order dated May 2, 2019 [Docket
Item 45], the Court will, however, consider Exhibit P from the
sur-reply [Docket Item 41-1 at 4-48], for the limited purpose of
attempting to narrow the parties’ dispute with regard to the
contracts from 2010 through 2015 that form the basis of Plaintiff’s
claim of unpaid commissions for the time of trial.
3

9

file a sur-reply prior to filing the sur-reply”). On April 26, the
Court convened oral argument on the motion for summary judgment.
[Docket Item 44.] The motion is now fully briefed and ripe for
disposition.
III. STANDARD OF REVIEW
At summary judgment, the moving party bears the initial burden
of demonstrating that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter
of law. Fed. R. Civ. P. 56(a); accord Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). Once a properly supported motion for
summary judgment is made, the burden shifts to the non-moving
party, who must set forth specific facts showing that there is a
genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250 (1986).
A factual dispute is material when it “might affect the
outcome of the suit under the governing law,” and genuine when
“the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Id. at 248. The non-moving party “need
not match, item for item, each piece of evidence proffered by the
movant,” but must present more than a “mere scintilla” of evidence
on

which

a

jury

could

reasonably

find

for

the

non-moving

party. Boyle v. Cty. of Allegheny, 139 F.3d 386, 393 (3d Cir.
1998) (quoting Anderson, 477 U.S. at 252).

10

IV.

DISCUSSION
A.

Breach of Contract Claims (Count One)

In Count One, Plaintiff alleges that Defendants breached
contracts with Plaintiff for commissions and compensation earned.
(Compl. at ¶¶ 11-15, 43-44.) In New Jersey, a party alleging a
breach of contract must establish: “(1) a valid contract; (2)
breach of that contract; and (3) damages resulting from that
breach.” Bruck v. Gorman, 2015 WL 9459920, at *5 (D.N.J. Dec. 23,
2015) (quoting Lee v. A to Z Trading LLC, 2014 WL 7339195, at *2
(D.N.J.

Dec.

23,

2014)).

The

Court

first

addresses

whether

Defendants are entitled to summary judgment on Plaintiff’s breach
of contract claims for unpaid commissions before turning to whether
Defendants are entitled to summary judgment as to Plaintiff’s
separate breach of contract claims related to compensation earned.
1.

Unpaid Commissions

In the Complaint, Plaintiff alleges “[f]rom 2009 to 2014, as
part of his compensation, plaintiff was to receive commissions,”
and that “[d]espite [the] clearly outlined contractual agreement,
defendant

was

not

paid

either

the

full

commission,

or

any

commission at all from the years 2009 until 2014.” (Compl. at ¶¶
12-13.) According to Plaintiff’s testimony, beginning in 2004 or
2005 his contract with Defendant Meditab stated that he would
receive commission on 8% of gross sales, and the percentage would
increase up to 12% depending on how much volume he sold. (Pl.’s
11

Dep. [Docket Item 38-1] at 46:4-47:6.) Plaintiff would invoice his
commissions through his company, Aqua Healthcare, and Plaintiff
would then receive his commissions as salary from Aqua Healthcare.
(Id. at 23:7-24:7.) Plaintiff testified that in 2009 he started
noticing he was not being paid all commissions, and that in 2012,
2013, 2014, and 2015 he complained to Defendants about not being
paid

his

full

commission.

(Id.

at

242:23-243:10.)

Plaintiff

further identified, in Exhibit P of his motion papers [Docket Item
41-1 at 4-48], a schedule containing the proposed contracts that
he negotiated and for which he claims a commission was due when
the contracts were ratified. At oral argument it became clear that
Plaintiff was unable, through the course of normal discovery, to
determine which proposed contracts were finalized and upon which
a commission was not paid to him. For these reasons, on May 2,
2019, the Court ordered that:
Defendants search their records with regard to all
proposed contracts listed in Exhibit P, and indicate for
each: (1) whether the proposed contract was eventually
finalized, or whether there is no record of such a
contract having been finalized, and (2) whether, if the
contract was finalized, it already gave rise to a full
commission payment to Plaintiff.
[Docket Item 45 at 2.] Thereafter, the parties were instructed to
meet-and-confer and identify the matters that remain in dispute
regarding underpaid commissions for the time of trial. Examining
the evidence in the light most favorable to Plaintiff, and with
this limited discovery process still ongoing, the evidence could
12

reasonably suggest that there are outstanding commission payments
owed to Plaintiff. This material fact is in dispute. Accordingly,
the Court will deny Defendants motion for summary judgment on
Plaintiff’s claims for breach of contract as to unpaid commissions.
2.
In

Compensation Earned

addition

to

the

unpaid

commission

claims,

Plaintiff

separately alleges that “[f]rom 2015 until 2016, as part of his
compensation, plaintiff was to receive a portion of the year’s
profit distribution from the defendants,” but that he “did not
receive the full profit distribution, or any distribution at all
from 2015 until 2016 when he was terminated.” (Compl. at ¶¶ 1213.) Ultimately, this dispute centers around a very poorly drafted
contract between the parties, the meaning of which the Court is
unable to discern as a matter of law.
The terms of Plaintiff’s compensation as President and CEO of
Meditab are set forth in a confusing e-mail thread exchanged
between Plaintiff and Defendant Patel dated February 4, 2015, which
states, in relevant part:
My compensation as president & CEO: We have agreed too
10% of the net profits of Meditab with a min wage of
[$336,000] a year if the net profit does not meet the
mentioned
salary
Am
currently
drawing
$1,80,000
[$180,000] a year. (For any reason If the net profit
does not meet [$156,000] a year this amount will be added
to my salary as a part of my salary compensation & the
min compensation I will make is [$336,000] per calendar
year.
(Agreement [Docket Item 32-11] at MediTab-Shah 62-63.)
13

In 2015 and 2016, 10% of Meditab’s profits were $169,851.14
and $236,923.57, respectively, and Meditab paid Plaintiff (via
Aqua Healthcare) $336,000 in each of those years. (Meditab Profit
& Loss Statements [Docket Item 32-12].) Defendants argue that
Plaintiff was properly compensated because, under the agreement
set

forth

above,

“Plaintiff’s

total

compensation

as

CEO

and

President was 10% of the net profits of Meditab, with a minimum
compensation of $336,000 a year if 10% of the net profits did not
meet this amount.” (Defs.’ SMF [Docket Item 32-1] at ¶ 19.)
Plaintiff,

on

the

other

hand,

maintains

that,

under

the

compensation agreement, “Plaintiff was paid a base salary of
$180,000 per year plus 10 percent of the net profits for Meditab,”
and “[t]he agreement also stated Plaintiff would receive a minimum
salary of $336,000 per year total, so if 10 percent of net profits
was not at least $156,000, Plaintiff would automatically receive
the $336,000 per year. (Pl.’s CMF [Docket Item 38] at ¶¶ 23-24.)
According to Plaintiff, “[s]ince 10 percent of the profits for
2015 and 2016 were more than $156,000, . . . Plaintiff should have
earned $349,851.14 ($180,000 + [$]169,851.14) for 2015 . . . [and]
Plaintiff should have earned $416,923.57 ($180,000 + $236,923.57)
for 2016.” (Pl.’s Opp. Br. at 6.) In other words, if Plaintiff’s
interpretation of the contract is correct,

he is still owed

approximately $14,000 for 2015 and $81,000 for 2016.

14

“Where the meaning of contract language is at issue, a party
is entitled to summary judgment ‘only if the contract language is
unambiguous,’ such that it ‘is subject to only one reasonable
interpretation.’” 2000 Clements Bridge, LLC v. OfficeMax North
America, Inc., 2013 WL 3821461, at *4 (D.N.J. July 23, 2013)
(quoting Arnold M. Diamond, Inc. v. Gulf Coast Trailing Co., 180
F.3d 518, 522 (3d Cir. 1999)). “While ‘the threshold inquiry as to
whether contract terms are ambiguous is a legal question,’ the
interpretation of an ambiguous contract term is left to the fact
finder.” 2000 Clements Bridge, 2013 WL 3821461, at *4 (quoting
Teamsters Indus. Employees Welfare Fund v. Rolls-Royce Motor Cars,
Inc., 989 F.2d 132, 135 n.2 (3d Cir. 1993).
The Court finds that the terms of Plaintiff’s compensation
agreement are ambiguous, at best. Giving Plaintiff the benefit of
all favorable inferences, the evidence could fairly suggest that
Plaintiff’s interpretation of the contract is the correct one and
a reasonable jury could, therefore, find that Defendants breached
its

compensation

suffered

damages

agreement
as

a

with

result

Plaintiff
thereof.

and

that

Accordingly,

Plaintiff
summary

judgment will be denied as to Plaintiff’s breach of contract claims
related to unpaid compensation.

15

B.

Breach of the Covenant of Good Faith and Fair Dealing
Claim (Count Two)

In Count Two, Plaintiff alleges that Defendants breached the
implied covenant of good faith and fair dealing. (Compl. at ¶¶ 1620; 45-46.) “In every contract there is an implied covenant that
neither party shall do anything which will have the effect of
destroying or injuring the right of the other party to receive the
fruits of the contract; which means that in every contract there
exists an implied covenant of good faith and fair dealing.” Sons
of Thunder, Inc. v. Borden, Inc., 690 A.2d 575, 587 (N.J. 1997)
(internal citations omitted). Under New Jersey law, “a breach of
the covenant of good faith and fair dealing must not arise out of
the

same

conduct

underlying

an

alleged

breach

of

contract

action.” TBI Unlimited, LLC v. Clear Cut Lawn Decisions, LLC, 2013
WL 6048720, at *3 (D.N.J. Nov. 14, 2013). The Court does not
discern in the pleading or any of Plaintiff’s filings a distinct
factual predicate for a breach of the implied covenant of good
faith and fair dealing that is separate from the conduct underlying
Plaintiff’s

breach

of

contract

allegations

in

Count

One.

Accordingly, the Court will grant Defendants' motion for summary
judgment as to Count Two as duplicative of Count One. See Oravsky
v. Encompass Ins. Co., 804 F. Supp. 2d 228, 239 (D.N.J. 2011)
(dismissing plaintiff's claim of breach of the implied covenant of

16

good faith and fair dealing because “it is duplicative of the
breach of contract claim”).
C.

CEPA Claims (Counts Three and Four)

In Counts Three and Four, Plaintiff alleges he engaged in
“whistle-blowing” activity, as summarized above, and that he was
terminated by Defendants on July 14, 2016 as a result of this
activity, in violation of New Jersey’s Conscientious Employee
Protection Act (“CEPA”). (Compl. at ¶¶ 21-41, 47-52.)
In analyzing a claim made under CEPA, the court conducts a
three-step
plaintiff

analysis.
has

First,

established

a

the

court

prima

must

facie

determine

case

of

if

the

retaliatory

discharge. See Blackburn v. United Parcel Serv., Inc., 179 F.3d
81, 92 (3d Cir. 1999). To set forth a prima facie case, a plaintiff
must establish:
(1) he or she reasonably believed that his employer’s
conduct was violating either a law, rule, or regulation
promulgated pursuant to law, or a clear mandate of public
policy; (2) he or she performed a “whistle-blowing”
activity described in N.J.S.A. 34:19-3c; (3) an adverse
employment action was taken against him or her; and (4)
a causal connection exists between the whistle-blowing
activity and the adverse employment action.
Battaglia v. United Parcel Serv., Inc., 70 A.3d 602, 625 (N.J.
2013). Second, once a plaintiff has shown a prima facie case, the
burden shifts to defendant to articulate some legitimate nondiscriminatory

reason

for

making

the

adverse

employment

decision. See Blackburn, 179 F.3d at 92 (citing Kolb, 727 A.2d

17

525, 530–31 (N.J. Super. Ct. App. Div. 1999)). Finally, the burden
shifts back to the plaintiff who, in order to survive summary
judgment, must raise a genuine issue of fact that the articulated
reason is a pretext for the retaliation or that a discriminatory
reason more likely motivated the employer. See Blackburn, 179 F.3d
at 92 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973)).
Defendants have moved for summary judgment on one basis: that
Plaintiff cannot meet the third prong of his prima facie case
because, according to them, Plaintiff voluntarily resigned from
Meditab in December 2015, before any of the alleged “whistleblowing” activity took place, and it was Plaintiff’s choice to
finally leave his employment in July 2016. (Defs.’ Br. [Docket
Item 32-2] at 4-7.) At this stage, and given the genuine disputes
of material fact surrounding the circumstances of Plaintiff’s
departure from Meditab, the Court cannot find, as a matter of law,
that

Plaintiff

voluntarily

resigned

(i.e.,

that

he

was

not

“terminated” by Defendants).
The Court recognizes that Plaintiff’s December 10, 2015 email
very clearly put Defendants on notice of Plaintiff’s intent to
resign on March 10, 2016. But all parties agree that Plaintiff, in
fact, continued to work for Meditab until July 14, 2016. According
to Plaintiff, this was because “[w]e did follow-through, and there
was a mutual meeting between me, Mike, Paragi and Kal to continue.”
18

(Pl.’s Dep [Docket Item 38-3] at 136:7-14.) A reasonable jury could
credit Plaintiff’s testimony and find that Defendants chose not to
accept Plaintiff’s resignation in December 2015. Moreover, viewing
the

evidence,

including

emails

exchanged

between

Plaintiff,

Defendants, and others,4 in the light most favorable to Plaintiff,
a reasonable jury could also conclude that he was “terminated” on
July 14, 2016 (i.e., that Plaintiff suffered an “adverse employment
action”). Finally, this same jury could reasonably conclude that,
prior to his termination, Plaintiff had engaged in “whistleblowing” activity (by complaining about the alleged bribe of an
Indian

official,

or

for

resisting

the

purportedly

unlawful

termination of his cousin, or both), and that this activity caused
his termination. For these reasons, summary judgment will be denied
as to Plaintiff’s CEPA claims.
D.

Remaining Claims (Counts Five and Six)

Finally, at oral argument, Plaintiff voluntarily withdrew
Counts Five and Six. [Docket Item 44.] Accordingly, the Court will
dismiss these counts without prejudice to Plaintiff’s right to
seek “equitable relief” as to the remaining claims.

For example, on July 14, 2016, Defendant Patel emailed Human
Resources stating that Plaintiff “has been terminated effective
immediately” and instructing Plaintiff to “please plan to turn in
all of your equipment tomorrow.” (July 14, 2016 Email [Docket Item
38-12] at 2-3.)
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V.

CONCLUSION
For the foregoing reasons, the Court will grant Defendants’

motion for summary judgment as to Count Two and deny Defendants’
motion as to Counts One, Three, and Four. Counts Five and Six were
withdrawn by Plaintiff at oral argument and will be dismissed. The
accompanying Order will be entered.

May 23, 2019
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge

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