UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

HONORABLE JOSEPH E. IRENAS

CIVIL ACTION NO. 11-1856

(JEI/JS)

OPINION

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 Weisman asserts that 

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

and § 1367.

DEBRA WEISMAN and ALBERT 

WEISMAN,

Plaintiffs,

v.

NEW JERSEY DEPARTMENT OF HUMAN 

SERVICES, et al.,

Defendants.

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

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

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

at 1.) 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.” (Defs. 

Mot. Ex. M at 4-5.) 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 perform duties, conduct 

unbecoming a public employee, inability to discharge one’s duty due to mental 

or physical incapacity, an additional administrative charge of 

insubordination and notoriously disgraceful conduct, violation of a rule, and 

other sufficient cause. (Defs. Mot. Ex. B.)

5

 
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.” Fed. R. 

Civ. P. 56(a). 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. See Anderson v. Liberty Lobby, Inc., 477 U.S. 249, 252

(1986). 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. The Court 

addresses each motion in turn.

8
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.” (Pls. Ex. B at 

2.) 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.” (Pls. Ex. 

C.) 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. Martindale v. Sandvik, Inc., 800 

A.2d 872, 878 (N.J. 2002). 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: “Will be modified to a resignation in good 

standing. 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-cv0842 (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)). While 

17
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 Baig, 2013 WL 1558707 at 

*3. 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. (Defs. Mot. Ex. W 

at 2.) 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.” (Defs. Mot. Ex. W 

at 1.) 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 

19
contained the two letters sent to the Board of Nursing. (Defs. 

Opp. Ex. 1 at 7.) 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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