SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2496-17T3

CECILE PORTILLA,

Plaintiff-Appellant,

v.

MAXIM HEALTHCARE 

SERVICES, INC., DAWN 

KENNY, LAURA RIDDLE,

and BARBARA VOLTA, 

Defendants-Respondents.

____________________________

Submitted March 13, 2019 – Decided August 20, 2019

Before Judges Nugent, Reisner and Mawla.

On appeal from the Superior Court of New Jersey, Law 

Division, Essex County, Docket No. L-6774-14.

Eldridge T. Hawkins, attorney for appellant.

Ogletree, Deakins, Nash, Smoak & Stewart, PC, 

attorneys for respondents (Thomas J. Rattay and Robin 

Koshy, on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.
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Plaintiff, Cecile Portilla, appeals the summary judgment dismissal of her 

third amended complaint. The complaint alleged six causes of action: common 

law wrongful discharge (count one); constructive discharge (count two); breach 

of contract, including breach of the implied covenant of good faith and fair 

dealing and intentional interference with plaintiff's beneficial economic 

advantage (count three); "NJ Constitutional Violations" (count four); violations 

of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, 

including hostile work environment, retaliation, and aiding and abetting (count 

five); and handicap discrimination in violation of the LAD and other laws (count 

six). We affirm, substantially for the reasons expressed by Judge Dennis F. 

Carey III in his January 5, 2018 oral opinion. We add the following comments.

Plaintiff, a registered nurse and a lawyer, worked for defendant, Maxim 

HealthCare Services, Inc., as Director of Clinical Services (Director) for its 

South Orange office from April 8, 2013, through September 27, 2013, when she 

resigned, claiming she was constructively discharged. In their summary 

judgment motion's statement of material facts—which was fully supported with
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record citations—defendants explained the events leading to plaintiff's 

resignation.1

According to defendants, plaintiff is a self-described "paradigmatic 

whistleblower." She had filed two previous employment complaints against 

previous employers, one of which was dismissed; the disposition of the other is 

unknown. When hired by Maxim, she did not fully disclose her previous 

employment. 

When plaintiff was first hired, Maxim sent her to a four-day training 

program in Virginia and had her attend a ninety-day orientation program to learn 

Maxim's policies and procedures. Maxim also had plaintiff attend in-service 

training programs throughout her employment. Notwithstanding the training, 

plaintiff routinely failed to complete required weekly reports relating to: (1) 

tracking doctor's orders; (2) tracking when patients needed to be re-evaluated; 

(3) tracking employee requirements, such as dates CPR licenses would expire; 

 

1

 Rule 4:46-2(a) requires the party moving for summary judgment to serve "a 

separate statement of material facts . . . [which] shall set forth in separately 

numbered paragraphs a concise statement of each material fact . . . together with 

a citation to the portion of the motion record establishing the fact or 

demonstrating that it is uncontroverted." Rule 4:46-2(b) provides that those 

facts "sufficiently supported will be deemed admitted for purposes of the motion 

only, unless specifically disputed by citation conforming to the requirements of 

paragraph (a) demonstrating the existence of a genuine issue as to the fact."
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and (4) tracking any patient issues, such as outstanding authorizations and the 

time supervisory visits were due. In addition, plaintiff was often absent from 

meetings she was scheduled to lead. Perhaps more significant, plaintiff was 

demeaning and disrespectful to other employees. She also failed to follow 

required policies and procedures. 

Defendants Dawn Kenney and Laura Riddle, Maxim supervisory 

personnel, reassigned a number of plaintiff's responsibilities to others and 

attempted to coach and train her. When her performance did not improve, 

defendants placed plaintiff on a thirty-day Performance Improvement Plan 

(PIP). When her performance still did not improve, Kenney and Riddle decided 

to meet with plaintiff in person at the South Orange office. After Kenny arrived,

she told plaintiff she had to park her car and would then return for the meeting. 

Plaintiff locked her office, exited through the building's back door, and never 

returned. Two days later, she sent a letter saying she had been constructively 

discharged. 

Plaintiff alleged she was retaliated against for engaging in, among other 

conduct, filing internal compliance reports; filing reports with outside agencies;

and complaining that a certain employee was underpaid. She claims the 
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retaliation included the withholding of a bonus. Defendants addressed in their 

statement of material facts each of plaintiff's allegations. 

Plaintiff's job duties included reporting any compliance concerns or 

issues. In their statement of material facts, defendants summarized each 

compliance report plaintiff had filed during the course of her employment. They 

documented their thorough investigation and response to each report, including,

in some instances, taking corrective action. Significantly, defendant never 

alleged in a compliance report that Maxim or its upper-level management had 

engaged in wrongdoing or knew of, authorized, participated in, or ratified any 

of the compliance violations plaintiff noted in her compliance reports. 

Defendants noted plaintiff had filed four reports with the Division of Child

Protection and Permanency and a report to the Inspector General. Not only was 

plaintiff required to report to the Division any instances of abuse or patient 

neglect, but in the instance of one report, personnel in Maxim's Compliance 

Department told plaintiff, "if this is an abuse, neglect, theft or exploitation 

matter, please report this matter immediately to [child protective services]." 

Plaintiff did not send a copy of her letter to the Inspector General to Maxim. 

Maxim knew nothing about it. 
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Plaintiff once complained that an employee who was not Caucasian was 

not being paid as much as a similarly-situated Caucasian employee. As it turned 

out, plaintiff did not know how much the Caucasian employee was being paid. 

Nevertheless, Maxim responded and resolved the issue. 

Maxim also established in its record-documented statement of material 

facts that plaintiff had the same job duties as other Directors; plaintiff was not 

asked to perform duties not expected of other Directors; and in other offices, 

Directors performed more duties than plaintiff. 

Plaintiff alleged that in retaliation for her engaging in the foregoing 

protected activities, she was harassed and a bonus was withheld. In their 

statement of material facts, defendants demonstrated plaintiff was not eligible 

for a bonus. Plaintiff further alleged the following retaliation: Maxim 

employees were very cold to her; she felt disrespected; she was not permitted to 

decide what duties nurses would perform; nurses bypassed her and reported to 

others instead; she was precluded from hiring additional staff; and she was 

placed on the PIP. 

Defendants documented numerous interpersonal problems plaintiff had 

with other employees, including her demeaning and disrespectful attitude 

toward them. This caused others not to want to interact with her, and in one 
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instance, a supervisor reported she was resigning from Maxim because of the 

way plaintiff treated her. 

Defendants also documented plaintiff was being treated for significant 

psychological issues, including a possible thought disorder and a delusional 

disorder. Medical records documented that plaintiff had "a suspicious demeanor 

and other signs of paranoid process." An independent medical examiner 

concluded plaintiff exhibited symptoms consistent with a diagnosis of a 

delusional disorder. 

Plaintiff's response to defendants' eighty-nine paragraphs of material facts 

was non-compliant with Rule 4:46-2(b), mostly unsupported by citations to the 

record or competent evidence in the record. For example, in response to 

defendants' paragraph fourteen, which stated that plaintiff remained in the 

position of Director of Clinical Services only five and one-half months when 

she resigned and alleged she had been constructively discharged, plaintiff stated: 

"14. Denied that she remained in that position until Sept. 27, 2013, as she was 

terminated by defendant's [sic] before then. (See )[.]" No citation is included 

in the parenthesis, yet plaintiff's response to the next eleven paragraphs, fifteen 

through twenty-six, is: "Admit objection, statement taken out of full content, 

same cite." 
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Plaintiff also submitted a 169-paragraph "Counterstatement of Material 

Facts Not in Dispute." Many of the facts were not material. Many that were 

material contained references to the record but the references did not support the 

facts asserted. Some contained no references to the record. Many others cited 

for support allegations in a proposed amended complaint containing plaintiff's 

conclusory allegations and other incompetent evidence. 

We agree with the trial court that the evidence on the summary judgment 

motion was so one-sided that defendants had to prevail as a matter of law. PetroLubricant Testing Labs., Inc., 233 N.J. 236, 257 (2018); Brill v. Guardian Life 

Ins. Co. of Am., 142 N.J. 520, 540 (1995). Plaintiff's claims for wrongful 

discharge fail because, indisputably, plaintiff was not discharged; she resigned. 

Her claims for constructive discharge also fail, because plaintiff did not 

establish through competent evidence that the conduct of Maxim or its 

supervisory employees was "so intolerable that a reasonable person would be 

forced to resign rather than continue to endure it." Sheppard v. Hunterdon 

Developmental Ctr., 174 N.J. 1, 28 (2002) (quoting Jones v. Aluminum Shapes, 

Inc., 339 N.J. Super. 412, 428 (App. Div. 2001)).

Plaintiff's generic claims of "N.J. Constitutional Violations," as well as 

her generic allegations that her "rights to privacy, freedom of speech, property, 
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equal protection, due process right to grieve, complain and petition for redress 

of grievance" also fail, because under the New Jersey Civil Rights Act, N.J.S.A. 

10:6-1 to -2, a private cause of action only may be pursued against persons 

acting under color of law. Plaintiff has not demonstrated that either Maxim or 

its supervisory personnel were acting under color of law at the time of the events 

plaintiff complained of. 

We have considered plaintiff's remaining arguments and determined they 

are without sufficient merit to warrant further discussions. R. 2:11-3(e)(1)(E). 

Affirmed.