SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1675-19T3

JANAK SARKARIA, M.D.,

Plaintiff-Appellant,

v.

SUMMIT ANESTHESIA 

ASSOCIATES, P.A.,

Defendant-Respondent,

and

OVERLOOK MEDICAL 

CENTER,

Defendant.

_________________________

Submitted January 4, 2021 – Decided

Before Judges Fasciale and Mayer.

On appeal from the Superior Court of New Jersey, Law 

Division, Middlesex County, Docket No. L-6481-16.

Jean-Marc Zimmerman, attorney for appellant. 

NOT FOR PUBLICATION WITHOUT THE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.

January 22, 2021
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Bressler Amery & Ross, P.C., attorneys for respondent 

(Lauren Fenton-Valdivia and Michael T. Hensley, of 

counsel and on the brief; Justin E. Condit, on the brief).

PER CURIAM 

Plaintiff appeals from two orders: one granting summary judgment in 

favor of defendant and dismissing plaintiff's breach of contract and punitive 

damages claims for alleged age discrimination under the New Jersey Law 

Against Discrimination (LAD); and another granting a directed verdict in favor 

of defendant on plaintiff's remaining LAD claim. Plaintiff claims that her 

employer, defendant Summit Anesthesia Associates (SAA), forced her 

termination based on her age and high salary when Mednax acquired the practice

and that defendant used unfounded and unproven allegations that she deviated 

from the applicable professional standard of care to oust her from the practice. 

Plaintiff produced no evidence in support of her discrimination case and failed 

to show that defendant's business reason for termination was pretextual. We 

therefore affirm. 

Plaintiff is a sixty-nine-year-old anesthesiologist who began working at 

SAA in 1977. SAA employed plaintiff as an attending physician to provide 

anesthesia services at both Overlook Hospital (Overlook) and other outpatient 

centers. Plaintiff executed an employment agreement with SAA (the 
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employment agreement) with an effective date of December 31, 2013, and a term 

of three years, ending December 31, 2016. Pertinent to this appeal, the 

employment agreement provided that SAA could terminate plaintiff "in the 

event [plaintiff] shall have a [d]isability for ninety-one . . . days or more in any 

one hundred twenty . . . consecutive day period." In January 2014, Mednax, a 

large national company that acquires medical practices, acquired SAA. Around 

this time, co-workers began asking plaintiff when she was going to retire, slow 

down, or take fewer calls. 

On October 2, 2015, plaintiff participated in a caesarian section at 

Overlook and rendered care to a patient after an attending physician found the 

patient was exhibiting signs of post-partum hemorrhage. Doctors and nurses not 

affiliated with SAA filed complaints about plaintiff's handling of the patient, 

characterizing plaintiff's care as "chaotic" and "threatening." Thereafter, 

Overlook made a request that plaintiff be temporarily removed from the 

obstetrics (OB) call schedule until an investigation could be completed. SAA 

kept plaintiff on the regular anesthesiology schedule as a full-time employee. 

Plaintiff worked her regular daytime shifts from October 5, 2015 to 

October 8, 2015. On October 8, 2015, SAA scheduled plaintiff for an OB call 

shift, which she worked under the supervision of another attending physician 
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because she was not allowed to take calls without supervision. On October 9, 

2015, plaintiff met with Dr. Paris, then-director of SAA, who reiterated that 

plaintiff was not to take OB calls temporarily. Plaintiff believed this decision 

was permanent, that she was effectively terminated between October 13 and 

October 28, 2015, and was therefore only working per diem. Plaintiff's pay and 

benefits did not change during the time frame that she was temporarily removed 

from the OB call schedule. 

On October 9, 2015, plaintiff left on a pre-planned vacation and returned 

to Overlook on October 26, 2015 for her scheduled shift. Plaintiff was "nervous 

and so shaky," "didn't feel comfortable" administering anesthesia, was unable to 

perform her job, and asked to be relieved from her shift. Plaintiff reported 

becoming anxious after her removal from the OB call schedule, having panic 

attacks, and having difficulty sleeping. She began treatment in October 2015 

with a psychiatrist, Dr. Syeda Hasan, M.D., who diagnosed her with posttraumatic stress disorder (PTSD). 

On October 28, 2015, after completion of all investigations, SAA decided 

plaintiff would not be terminated and could return to the OB call schedule upon 

completion of an obstetrics training simulation. Plaintiff said she "was not in 

any shape [or] form" to participate in the simulation and never did. 
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Plaintiff did not return to work at SAA after her October 26, 2015 shift. 

For approximately one year following this date, plaintiff was on short-term 

disability, long-term disability, and received leave under the Family Medical 

Leave Act. Plaintiff continued to be a full-time employee of SAA during the 

time she was on a medical leave of absence from October 26, 2015 until 

November 7, 2016. SAA contacted plaintiff multiple times to determine when 

she would be able to rejoin the practice, complete the simulation, and return to 

the regular anesthesia call schedule. On November 7, 2016, SAA served 

plaintiff with a letter terminating her employment pursuant to the long-term 

disability provision of her employment agreement. 

On November 4, 2016, plaintiff filed her complaint alleging age 

discrimination and breach of contract related to her removal from the OB call 

schedule and the termination of her employment agreement. On April 12, 2019,

defendant moved for summary judgment seeking dismissal of plaintiff's 

complaint with prejudice. On May 10, 2019, after hearing oral argument, the 

motion judge granted defendant's motion with respect to plaintiff's breach of 

contract and punitive damages claims. The motion judge allowed part of 

plaintiff's age discrimination claim under the LAD to proceed because he found 

a genuine issue of material fact existed as to whether the termination of 
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plaintiff's employment in November 2016 violated the LAD. Although he found 

that part of the age discrimination claim survived summary judgment, he ruled 

that plaintiff's removal from the OB call schedule did not constitute an adverse 

employment action. 

Trial began on December 2, 2019 before Judge Lisa M. Vignuolo. After 

plaintiff presented her case-in-chief, defendant moved for a directed verdict, 

which the trial judge granted. The trial judge held that plaintiff had failed to 

prove a prima facie claim of discrimination because the evidence established 

that she was not able to perform her job towards the end of October 2015, the 

record was devoid of any evidence of age discrimination, and there was no 

evidence of a causal connection between plaintiff's damages and some adverse 

employment action by defendant. In granting defendant's motion, the trial judge 

recognized the motion judge's prior ruling on summary judgment that 

defendant's conduct in October 2015 did not constitute adverse employment 

action as the law of the case. 

On appeal, plaintiff raises the following points for this court's 

consideration: 

POINT I

THE [MOTION JUDGE] COMMITED ERROR IN 

FINDING THAT [DEFENDANT'S] ACTION IN 
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OCTOBER 2015 DID NOT CONSTITUTE AN

ADVERSE EMPLOYMENT ACTION[.]

A. [Plaintiff] Established A Prima Facie LAD Case[.]

B. [Plaintiff] Demonstrated That [Defendant's] 

Business Reason Was Pretext[.]

POINT II 

THE [MOTION JUDGE] ERRED IN DISMISSING 

[PLAINTIFF'S] CLAIM FOR PUNITIVE DAMAGES 

UNDER THE LAD[.]

POINT III 

THE TRIAL [JUDGE] ERRED IN GRANTING [A]

DIRECTED VERDICT[.]

We disagree and affirm. 

I.

We reject plaintiff's argument that the motion judge erred in granting 

summary judgment in favor of defendant because SAA's actions in October 2015 

constituted an adverse employment action, plaintiff established a prima facie 

LAD case, and plaintiff established that defendant's business reason for the 

termination was pretext. 

We review a grant of summary judgment using the same standard that 

governs the motion judge's decision. RSI Bank v. Providence Mut. Fire Ins. 

Co., 234 N.J. 459, 472 (2018) (citing Bhagat v. Bhagat, 217 N.J. 22, 38 (2014)). 
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Under that standard, summary judgment will be granted when "the competent 

evidential materials submitted by the parties," viewed in the light most favorable 

to the non-moving party, show that there are no "genuine issues of material fact" 

and that "the moving party is entitled to summary judgment as a matter of law." 

Grande v. Saint Clare's Health Sys., 230 N.J. 1, 24 (2017) (quoting Bhagat, 217 

N.J. at 38); accord R. 4:46-2(c). "An issue of material fact is 'genuine only if, 

considering the burden of persuasion at trial, the evidence submitted by the 

parties on the motion, together with all legitimate inferences therefrom favoring 

the non-moving party, would require submission of the issue to the trier of fact.'" 

Grande, 230 N.J. at 24 (quoting Bhagat, 217 N.J. at 38). We owe no special 

deference to the motion judge's legal analysis. RSI Bank, 234 N.J. at 472 (citing 

Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co., 224 N.J. 189, 199 

(2016)).

The LAD, N.J.S.A. 10:5-12, prohibits employment discrimination based 

on an employee's age. In pertinent part, N.J.S.A. 10:5-12(a) provides as follows:

It shall be an unlawful employment practice, or, as the 

case may be, an unlawful discrimination . . . [f]or an 

employer, because of the . . . age . . . of any individual 

. . . to refuse to hire or employ or to bar or to discharge 

or require to retire, unless justified by lawful 

considerations other than age, from employment such 

individual or to discriminate against such individual in 
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compensation or in terms, conditions or privileges of 

employment[.]

[See also N.J.S.A. 10:5-4.]

"All LAD claims are evaluated in accordance with the United States 

Supreme Court's burden-shifting mechanism" established in McDonnell 

Douglas Corp. v. Green, 411 U.S. 792 (1973). Battaglia v. United Parcel Serv., 

Inc., 214 N.J. 518, 546 (2013). A plaintiff claiming age discrimination must 

first present evidence establishing a prima facie case of discrimination by 

showing age played a determinative role in the adverse employment action. 

Bergen Commer. Bank v. Sisler, 157 N.J. 188, 212-13 (1999). Upon plaintiff's 

demonstration of a prima facie case, the burden shifts to the employer to 

articulate a legitimate non-discriminatory reason for the adverse employment 

action. Id. at 210-11.

"[T]o successfully assert a prima facie claim of age discrimination under 

the LAD, plaintiff must show that: (1) she was a member of a protected group; 

(2) her job performance met the 'employer's legitimate expectations'; (3) she was 

terminated; and (4) the employer replaced, or sought to replace, her." Nini v. 

Mercer Cty. Cmty. Coll., 406 N.J. Super. 547, 554 (App. Div. 2009) (quoting 

Zive v. Stanley Roberts, Inc., 182 N.J. 436, 450 (2005)), aff'd, 202 N.J. 98, 

(2010). Satisfaction of the fourth element "require[s] a showing that the plaintiff 
10 A-1675-19T3

was replaced with 'a candidate sufficiently younger to permit an inference of age 

discrimination.'" Bergen Commer. Bank, 157 N.J. at 213 (quoting Kelly v. 

Bally's Grand, Inc., 285 N.J. Super. 422, 429 (App. Div. 1995)), or that 

otherwise creates an inference of age discrimination, Reynolds v. Palnut Co., 

330 N.J. Super. 162, 168-69 (App. Div. 2000). A plaintiff must "show that the 

prohibited consideration[, age,] played a role in the decision[-]making process 

and that it had a determinative influence on the outcome of that process." Garnes 

v. Passaic Cty., 437 N.J. Super. 520, 530 (App. Div. 2014) (first alteration in 

original) (quoting Bergen Commer. Bank, 157 N.J. at 207). "Although the 

discrimination must be intentional, an employee may attempt to prove 

employment discrimination by using either direct or circumstantial evidence." 

Ibid. (quoting Bergen Commer. Bank, 157 N.J. at 208). 

If a plaintiff establishes a prima facie case, creating an inference of 

discrimination, the burden of production then shifts to the defendant to 

"articulate a legitimate, nondiscriminatory reason for the employer's action." 

Zive, 182 N.J. at 449 (citing Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 596

(1988)). Where the defendant does so, "the burden of production shifts back to 

the employee to prove by a preponderance of the evidence that the reason 

articulated by the employer was merely a pretext for discrimination and not the 
11 A-1675-19T3

true reason for the employment decision." Ibid. "To prove pretext, a plaintiff 

may not simply show that the employer's reason was false but must also 

demonstrate that the employer was motivated by discriminatory intent." Ibid. 

(citing Viscik v. Fowler Equip. Co., 173 N.J. 1, 14 (2002)). At all times, 

however, the burden of proof that the employer engaged in intentional 

discrimination remains with the employee. Clowes, 109 N.J. at 596. 

The employer is entitled to summary judgment if, after proffering a 

nondiscriminatory reason for its decision, plaintiff cannot "point to some 

evidence, direct or circumstantial, 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 v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994)).

Defendant moved for summary judgment seeking dismissal of plaintiff's 

complaint with prejudice and arguing that plaintiff failed to set forth evidence 

to support her claim for breach of contract; plaintiff's temporary removal from 

the OB call schedule in October 2015 was not an adverse employment action; 

plaintiff failed to show that defendant's legitimate business decision was a 

pretext for age discrimination; and plaintiff failed to set forth any evidence to 
12 A-1675-19T3

support a claim for punitive damages. In opposition, plaintiff contended that 

her temporary removal from the OB call schedule was effectively termination 

and that a genuine issue of disputed material fact existed as to whether that 

removal constituted an adverse employment action under the LAD. 

On May 10, 2019, after hearing oral argument, the motion judge granted 

defendant's motion for summary judgment with respect to plaintiff's claims for 

breach of contract and punitive damages.1 In dismissing these claims, the 

motion judge held: 

There is no question that defendant did company with

. . . the employment agreement and I find that there is 

no basis, no factual basis upon which a reasonable 

finder of fact could determine that there was a breach 

of the agreement itself . . . . I didn't hear really any 

objection to the punitive damages claims being 

dismissed because there really is no evidence of an 

intentional decision on the part of [SAA], Dr. Paris or 

anyone else to terminate her employment for alleged 

deficiencies. So therefore, the breach of contract 

claims and the punitive damage claims are dismissed. 

The motion judge allowed part of plaintiff's age discrimination claim to 

proceed because he found a genuine issue of material fact existed as to whether 

the termination of plaintiff's employment in November 2016 violated the LAD. 

1 Plaintiff does not contest the dismissal of her breach of contract claim on 

appeal. 
13 A-1675-19T3

Although part of plaintiff's age discrimination claim survived summary 

judgment, the motion judge ruled that plaintiff's temporary removal from the 

call schedule did not constitute an adverse employment action. Applying our 

standard of review, we conclude that the motion judge's grant of summary 

judgment in favor of defendant was proper because plaintiff failed to show she 

suffered an adverse employment action or that age played a role in her

termination. 

Plaintiff cannot establish that she suffered an adverse employment action 

as a matter of law. She was not discharged, suspended, or demoted in October 

2015. There is no dispute that she did not suffer any reduction in rank, 

compensation, or title. The record makes clear that plaintiff was temporarily 

removed from the overnight OB call schedule after well-grounded complaints 

were filed by both physicians and nurses not affiliated with SAA after she 

rendered substandard treatment to a patient, which necessitated an involuntary 

hysterectomy. Plaintiff admitted that she continued to work her regular 

scheduled shifts and that her pay and benefits did not change. Three weeks later, 

following investigations into plaintiff's care, she was permitted to be restored to 

the OB call schedule provided she complete simulation training. At this point, 
14 A-1675-19T3

plaintiff was medically unable to perform the simulation. Plaintiff said she "was 

not in any shape [or] form" to take the simulation and never did. 

To the extent that plaintiff claims that her subjective feelings of 

embarrassment or ridicule due to either being supervised, removed from the 

schedule, or required to complete a simulation are sufficient to constitute an

adverse employment action, this claim also fails as a matter of law. See Heyert 

v. Taddese, 431 N.J. Super. 388, 413-14 (App. Div. 2013) (noting that selfserving statements are insufficient to preclude summary judgment); Horizon 

Blue Cross Blue Shield of N.J. v. State, 425 N.J. Super. 1, 32 (App. Div.), certif. 

denied and appeal dismissed, 211 N.J. 608 (2012) (finding that summary 

judgment will not be precluded by "[b]are conclusory assertions[] without 

factual support in the record"). We therefore agree with the motion judge's 

finding that the October 2015 events did not amount to an adverse employment 

action. 

Taking away the temporary removal of plaintiff from the OB call schedule 

in October 2015, the only other event left was plaintiff's termination under the 

employee agreement in November 2016. On November 7, 2016, SAA served 

plaintiff with a letter terminating her employment with SAA pursuant to the

provision that "[SAA] may terminate [plaintiff's] employment under [the] 
15 A-1675-19T3

Agreement upon written notice to [plaintiff] in the event [plaintiff] shall have a 

[d]isability for ninety-one days . . . or more in any one hundred twenty . . .

consecutive day period." After October 2015, when plaintiff began treatment

with Dr. Hasan for her PTSD, she was not able to continue working as an 

anesthesiologist. She turned down other offers because she was medicated and 

felt her mental health status precluded her ability to perform the work required. 

Plaintiff did not present any evidence showing that her age played a role 

in defendant's actions. Although plaintiff claims that a few of her colleagues 

had asked her when she was going to retire, she testified during her deposition 

that such discussion "was just a general talk . . . in the anesthesia lounge" and 

such remarks were made six to twelve months prior to the incident and her last 

shift on October 26, 2015. In contrast, defendant presented evidence showing 

that plaintiff was unable to return work in the capacity required as of October 

2015. Without the ability to perform work, her LAD claim fails. See Zive, 182 

N.J. at 455-56. We therefore conclude that the motion judge properly granted 

summary judgment in favor of defendant. 

II. 

Next, plaintiff argues that the motion judge erred by dismissing her claim 

for punitive damages. Plaintiff maintains that the motion judge's dismissal of 
16 A-1675-19T3

punitive damages on summary judgment while allowing part of her LAD claim 

to survive was "logically inconsistent." 

"In exceptional cases punitive damages are awarded as a punishment of 

the defendant and as a deterrent to others from following his [or her] example." 

Di Giovanni v. Pessel, 55 N.J. 188, 190 (1970); Catalane v. Gilian Instrument 

Corp., 271 N.J. Super. 476, 500 (1994). Punitive damages under the LAD are 

governed by N.J.S.A. 10:5-3, which authorizes the award of punitive damages 

for an LAD violation, and New Jersey's Punitive Damages Act, N.J.S.A. 2A:15-

5.9 to -5.17. There are two essential prerequisites to an award of punitive 

damages under the LAD: proof of actual participation of upper management or 

willful indifference; and proof that the conduct was especially egregious. 

Quinlan v. Curtiss-Wright Corp., 204 N.J. 239, 274 (2010) (citing Rendine v. 

Pantzer, 141 N.J. 292, 313-14 (1995)).

The Court in Rendine, 141 N.J. at 314, described the conduct that is 

sufficiently egregious to warrant punitive damages as follows: 

[T]he defendant's conduct must have been wantonly 

reckless or malicious. There must be an intentional 

wrongdoing in the sense of an "evil-minded act" or an 

act accompanied by a wanton and wil[l]ful disregard of 

the rights of another . . . . The key to the right to 

punitive damages is the wrongfulness of the intentional 

act.
17 A-1675-19T3

[(quoting Nappe v. Anschelewitz, Barr, Ansell & 

Bonello, 97 N.J. 37, 49-50 (1984)).]

In dismissing plaintiff's claim, the motion judge held: 

I didn't hear really any objection to the punitive 

damages claims being dismissed because there really is 

no evidence of an intentional decision on the part of 

[SAA], Dr. Paris or anyone else to terminate her 

employment for alleged deficiencies. So therefore, the 

breach of contract claims and the punitive damage 

claims are dismissed. 

The dismissal was warranted here where plaintiff did not show 

participation by management, willful indifference, or especially egregious 

conduct. Plaintiff nevertheless contends that because an issue of material fact 

existed as to whether SAA violated the LAD, she therefore sustained her burden 

of alleging sufficient facts to state a claim for punitive damages. Plaintiff cites 

to no authority—and indeed none exists—that a plaintiff is entitled to present a 

claim for punitive damages by showing an alleged violation of the LAD. Rather, 

case law demonstrates that a deficient claim for punitive damages may be 

dismissed, even where a LAD claim survives summary judgment. See WoodsPirozzi v. Nabisco Foods, 290 N.J. Super 252, 273 (App. Div. 1996) (affirming 

the grant of summary judgment dismissal of plaintiff's punitive damages claim 

where defendant's conduct was not "especially egregious" or "willfully 

indifferent," despite reversing the dismissal of plaintiff's sexual harassment 
18 A-1675-19T3

claim under the LAD). The motion judge's dismissal was therefore proper where 

plaintiff did not show participation by management, willful indifference, or 

especially egregious conduct, regardless of whether part of plaintiff's LAD claim 

survived summary judgment. 

III.

Lastly, we reject plaintiff's argument that the trial judge erred both "in 

following as the law of the case the motion [judge's] rulings" and "on that basis 

granting SAA a directed verdict." 

In deciding a motion for directed verdict at the close of the evidence, the 

trial judge must "accept as true all evidence presented . . . and the legitimate 

inferences drawn therefrom, to determine whether the proofs are sufficient to 

sustain a judgment[.]" Prioleau v. Kentucky Fried Chicken, Inc., 434 N.J. Super. 

558, 569 (App. Div. 2014), aff'd, 223 N.J. 245 (2015). The trial judge is not 

concerned with "the worth, nature or extent (beyond a scintilla) of the evidence, 

but only with its existence, viewed most favorably to the party opposing the 

motion." Ibid. (quoting Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969)).

If reasonable minds could reach different conclusions, the motion must be 

denied. Id. at 569-70. However, if the evidence is such that one party must 

prevail as a matter of law, then a directed verdict is appropriate. Frugis v. 
19 A-1675-19T3

Bracigliano, 177 N.J. 250, 269 (2003). We will apply the same standard that 

governed the trial judge when reviewing an order granting or denying a motion 

for directed verdict. Ibid. 

The law of the case doctrine generally prohibits a second judge, in the 

absence of additional developments or proofs, from differing with an earlier 

ruling. See Lombardi v. Masso, 207 N.J. 517, 538-39 (2011). The doctrine is a 

"non-binding rule intended to 'prevent re[-]litigation of a previously resolved 

issue.'" Id. at 538 (quoting In re Estate of Stockdale, 196 N.J. 275, 311 (2008)). 

"A hallmark of the law of the case doctrine is its discretionary nature, calling 

upon the deciding judge to balance the value of judicial deference for the rulings 

of a coordinate judge against those 'factors that bear on the pursuit of justice 

and, particularly, the search for truth.'" Id. at 539 (quoting Hart v. City of Jersey 

City, 308 N.J. Super. 487, 498 (App. Div. 1998)). While the law of the case 

doctrine is a discretionary, non-binding rule, "[p]rior decisions on legal issues 

should be followed unless there is substantially different evidence at a 

subsequent trial, new controlling authority, or the prior decision was clearly 

erroneous." Sisler v. Gannett Co., 222 N.J. Super. 153, 159 (App. Div. 1987). 

After plaintiff presented her case-in-chief, defendant moved for a directed 

verdict arguing that plaintiff failed to prove a prima facie case of age 
20 A-1675-19T3

discrimination under the LAD; present any evidence of pretext; and prove that 

she suffered any damages as a result of the alleged age based discrimination. 

The trial judge granted defendant's motion for a directed verdict and held that 

plaintiff had failed to prove a prima facie case of age discrimination because the 

evidence established that she was not able to perform her job at SAA beginning 

in the end of October 2015; the record was devoid of any evidence of age 

discrimination; and there was no evidence of a causal connection between 

plaintiff's damages and some adverse employment action by defendant. In 

granting defendant's motion for a directed verdict, the trial judge recognized the 

motion judge's prior ruling on summary judgment that defendant's conduct in 

October 2015 did not constitute an adverse employment action as the law of the 

case. The trial judge expanded upon the issue of plaintiff's removal from the 

OB call schedule: 

[T]he record is clear that plaintiff never received a 

reduction in her salary or anything associated with 

actions that were taken following the [patient] incident 

that had a disparaging effect upon her ability to collect 

her salary and to proceed under the terms of the 

contract, which is what she did. 

There was no reason for the trial judge to depart from the motion judge's findings 

on summary judgment because there was no new controlling legal authority and 

the ruling was not "clearly erroneous" because it was based on the prevailing 
21 A-1675-19T3

case law and the evidence in the record. Plaintiff attempts to assert that there 

was substantially different evidence presented at trial, which would warrant a 

departure from the motion judge's ruling. Specifically, plaintiff asserts for the 

first time that SAA testified that it sought to terminate plaintiff before any 

formal investigation had concluded. This contention is belied by the record, 

which clearly reflects that no adverse employment action occurred in October 

2015. Specifically, the record shows that after complaints were made about her 

substandard care plaintiff continued to work all of her regular shifts, plaintiff 

was only temporarily removed from the OB call schedule for safety reasons, 

plaintiff continued to work her October 26, 2015 shift even after she believed 

she was terminated, SAA decided not to terminate plaintiff after completing its 

investigation, plaintiff's pay and benefits did not change when she was removed 

from the OB call schedule, and plaintiff remained an employee of SAA and was 

on medical leave until her employment was terminated pursuant to the terms of 

the employment agreement in November 2016. We therefore conclude that 

judge's grant of defendant's motion for a directed verdict was proper. 

Affirmed.