TORDELLA v. COUNTY OF CAPE MAY, BOARD OF CHOSEN FREEHOLDERS

[Doc. No. 28]

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

JOSEPH R. TORDELLA, D.O.,

Plaintiff,

v. Civil No. 18-15101 (RBK/MJS)

COUNTY OF CAPE MAY, BOARD OF

CHOSEN FREEHOLDERS,

Defendant.

O P I N I O N

This matter comes before the Court upon the “Motion for Leave

to File First Amended Complaint” (“Motion”) filed by plaintiff

Joseph Tordella, D.O. (“plaintiff”) [Doc. No. 28]. The Motion is

unopposed. The Court exercises its discretion to decide

plaintiff’s motion without oral argument. See Fed. R. Civ. P. 78;

L. Civ. R. 78.1. For the reasons to be discussed, plaintiff’s

Motion is GRANTED.

Background

Plaintiff filed a two-count complaint against the County of

Cape May, Board of Chosen Freeholders (“defendant”) on May 18,

2018, asserting claims of age discrimination in violation of the

Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621 et

seq., and the New Jersey Law Against Discrimination (“NJLAD”),

N.S.J.A. 10:5-1 et seq. See generally, Compl. [Doc. No. 1]. The

present action stems from the termination of plaintiff’s

employment as Medical Director of Cape May County. Id. According

to plaintiff, he was abruptly terminated without explanation in

April, 2017 then replaced by a physician fifteen years his junior.

Mot. at 1-2. Plaintiff’s complaint alleges that upon seeking an

explanation for his termination from Cape May County for

approximately six months following his termination, on October 17,

2017 the County supplied subjective, false and unsubstantiated

justifications as a pretext for unlawful age discrimination.1

Compl. at ¶ 12.

During the course of discovery, plaintiff’s counsel deposed

Jeffrey Lindsay, Human Resources Director of Cape May County, Linda

Thornton, former Administrator of Crest Haven Nursing and

Rehabilitation Center (“Crest Haven”), a nursing facility run by

Cape May County, and Gerald Thornton, Freeholder Director of Cape

May County, all on January 16, 2020. Plaintiff claims each of these

1 Specifically, the reasons identified in an email from the

County’s Director of Human Resources, Jeffrey Lindsay, included:

(a) the County “. . . was . . . in the process of transitioning

it’s administration . . . and with that the County saw it as an

appropriate time to move in a different direction with the Medical

Director”, and (b) “. . . the County’s desire to have a Medical

Director that is fully engaged in helping Crest Haven become a

premier nursing home in the region . . . ”, and (c) the County

wanted a “Medical Director who would respond promptly and provide

advice to . . . ” the nursing home administrative staff, and (d)

the County wanted a “Medical Director who is present in the

building on a regular basis”, and (e) a “Medical Director who is

willing to call attending physicians and nurses to resolve

compliance issues.” Compl. at ¶ 12.

witnesses stated the reason for termination as being the “change

of direction” set forth in the email from Jeffrey Lindsay. Mot. at

3.

According to plaintiff, two weeks after the January 16, 2020

depositions, on January 30, 2020 “[d]efendant served late

responses to [p]laintiff’s discovery requests by dumping 90 pages

of uncategorized and unidentified documents” in counsel for

plaintiff’s email. Mot. at 3. Plaintiff contends that these emails

contain statements made by Beth Bozzelli, then County

Administrator and Clerk of the Board of Chosen Freeholders,

indicating plaintiff was terminated for his conduct and statements

related to a February 2017 incident in which he supported the

determination of another doctor at Crest Haven, Dr. Salesin, that

a patient was competent to discharge herself from the facility –

a determination that plaintiff contends implicates medical ethics

and New Jersey patients-rights laws and which was opposed by the

Crest Haven administration. Mot. at 4, 7.

Plaintiff then undertook to depose Beth Bozzelli and other

witnesses identified in defendant’s initial response to discovery

requests. Mot. at 6. Those depositions were originally scheduled

for March 9, 2020 but ultimately did not take place until December

11, 2020 due to cancellations and delays, including the COVID-19

pandemic. Mot. at 4, 5. Plaintiff claims that eleven minutes prior

to the start of the depositions on December 11, 2020, defense

counsel sent a second set of documents by email containing

communications relevant to plaintiff’s termination. Id.

Based on the contents of the emails disclosed and Beth

Bozzelli’s deposition testimony, plaintiff seeks to plead in the

alternative that he was terminated for his conduct and statements

related to the Dr. Salesin incident and, to that end, amend the

Complaint to add claims for relief under the First Amendment and

for wrongful discharge in violation of New Jersey public policy.

Discussion

A party may amend its pleading once as a matter of right

within either (1) twenty-one days of serving it; or (2) where the

pleading is one to which a responsive pleading is required, the

earlier of twenty-one days following service of the responsive

pleading or service of a motion under Rule 12(b), (e), or (f) of

the Federal Rules of Civil Procedure. FED. R. CIV. P. 15(a)(1). Once

those deadlines have expired, “a party may amend its pleading only

with the opposing party’s written consent or the court’s leave.”

FED. R. CIV. P. 15(a)(2). “The court should freely give leave where

justice so requires.” Id.

Where a party moves to amend after the deadline in a

scheduling order has passed, the “good cause” standard of Rule

16(b)(4) of the Federal Rules of Civil Procedure applies. Premier

Comp Sols., LLC v. UPMC, 970 F.3d 316, 319 (3d Cir. 2020). “A party

must meet this standard before a district court considers whether

the party also meets Rule 15(a)’s more liberal standard.” Id.

In the instant case, a scheduling Order was entered on March

22, 2019 setting the deadline for completion of pretrial discovery

at November 27, 2019. [Doc. No. 9]. The Order also set the time

within which to seek amendments to expire at August 1, 2019. Id.

Several scheduling orders were entered thereafter extending the

deadline for completion of pretrial discovery; however, at no point

was an extension given for the time to seek amendments. Because

leave to amend is sought beyond the August 1, 2019 deadline in

this case, plaintiff must surmount both Rule 16(b)(4) and Rule

15(a)(2), which will be addressed in sequence.

a. Rule 16(b)(4)

A scheduling order must, among other things, “limit the time

to join other parties, amend the pleadings, complete discovery,

and file motions.” FED. R. CIV. P. 16(b)(3)(A). The requirement of

setting a deadline for amending pleadings in the pretrial

scheduling order “assures that at some point . . . the pleadings

will be fixed.” FED. R. CIV. P. 16(b) advisory committee’s note

(1983 Amendment); see also Harrison Beverage Co. v. Dribeck

Importers, Inc., 133 F.R.D. 463, 469 (D.N.J. 1990) (“The careful

scheme of reasonable framing and enforcement of scheduling orders

for case management would thus be nullified if a party could inject

amended pleadings upon a showing of less than good cause after

scheduling deadlines have expired.”).

Whether “good cause” exists under Rule 16 depends in large

part on the diligence, or lack thereof, of the moving party. See

GlobespanVirata, Inc. v. Texas Instruments, Inc., Civ. No. 03–

2854, 2005 WL 1638136, at *3 (D.N.J. July 12, 2005) (quoting Rent–

A–Ctr. v. Mamaroneck Ave. Corp., 215 F.R.D. 100, 104 (S.D.N.Y.

Apr.9, 2003)); Premier Comp Sols., LLC, 970 F.3d at 319. Put

succinctly, “[a]bsent diligence, there is no ‘good cause.’”

Chancellor v. Pottsgrove Sch. Dist., 501 F.Supp.2d 695, 702

(E.D.Pa. Aug. 8, 2007); see also FED. R. CIV. P. 16(b), advisory

committee’s note (1983 Amendment) (“[T]he court may modify the

schedule on a showing of good cause if it cannot reasonably be met

despite the diligence of the party seeking the extension.”).

When examining a party’s diligence and whether “good cause”

exists for granting an otherwise untimely motion to amend

pleadings, courts typically ascertain whether the movant

possessed, or through the exercise of reasonable diligence should

have possessed, the knowledge necessary to file the motion to amend

before the deadline expired. See Stallings ex rel. Estate of

Stallings v. IBM Corp., Civ. No. 08–3121, 2009 WL 2905471, at *16

(D.N.J. Sept. 8, 2009) (denying plaintiffs’ motion to amend because

they “had sufficient information to state the proposed claims well

in advance of the Scheduling Order deadline”); Kennedy v. City of

Newark, Civ. No. 10–1405, 2011 WL 2669601, at *2 (D.N.J. July 7,

2011) (“The most common basis for finding a lack of good cause is

the party’s knowledge of the potential claim before the deadline

to amend has passed.”). If a movant had the knowledge necessary to

file a motion to amend prior to the expiration of the Court’s

deadline as set forth in the scheduling order, and if the movant

can provide no satisfactory explanation for the delay, the Court

may, in its discretion, deny the motion. See Dimensional Comm’ns,

Inc. v. Oz. Optics, Ltd., 148 Fed. App’x. 82, 85 (3d Cir.2005)

(upholding trial court’s finding that the movant could not show

“good cause” because it was in possession of the facts underlying

its proposed counterclaim well before the deadline for amendment).

Plaintiff has not specifically addressed Rule 16(b)(4) in the

present unopposed Motion, however, “the fact that neither party

specifically names Rule 16 or its required good-cause showing does

not preclude the Court from applying that standard to plaintiff’s

motion to amend.” Sabatino v. Union Twp., No. CIV.A. 11-1656 JLL,

2013 WL 1622306, at *3 (D.N.J. Apr. 15, 2013).

Here, plaintiff submits that the facts occasioning the need

to amend the Complaint were initially learned upon the disclosure

of communications authored by Beth Bozzelli, which were produced

by defendant on January 30, 2020. Based on the record, the Court

cannot not find plaintiff possessed, or through the exercise of

reasonable diligence should have possessed, the knowledge

necessary to file a motion to amend before the August 1, 2019

deadline. While plaintiff does not deny that certain relevant facts

were learned approximately one year and one month before the

present Motion was ultimately filed,2 the Court recognizes that

Ms. Bozzelli’s deposition was promptly scheduled for March 9, 2020

and that its postponement to December 11, 2020 occurred by no fault

of plaintiff and was undoubtedly impacted by the COVID-19 pandemic.

Plaintiff represents he was cautious not to move for leave to amend

before taking Ms. Bozzelli’s deposition and confirming that

sufficient evidence existed to warrant the proposed additional

claims. Mot. at 11. The Court notes that Rule 16(b)(4) does not

require a party to exercise an advanced or superior level of

diligence, but rather requires only reasonable diligence.

Sabatino, No. CIV.A. 11-1656, 2013 WL 1622306, at *5 (citation

omitted). In consideration of the foregoing, the Court is satisfied

that plaintiff exercised reasonable diligence in bringing the

Motion upon acquiring the operative information underlying his

proposed claims and confirming sufficient evidence existed to

bring them. Accordingly, the Court finds “good cause” exists under

Rule 16(b)(4) to permit leave to amend the Complaint.

b. Rule 15(a)(2)

2 The Court notes “the passage of time, by itself, does not

preclude a finding of good cause.” Harding v. Jacoby & Meyers,

LLP, No. CV 14-5419, 2018 WL 3377159, at *4 (D.N.J. July 11,

2018).

Where “good cause” has been shown, a court must then evaluate

whether the movant has satisfied Rule 15(a)(2). See Premier Comp

Sols., LLC, 970 F.3d at 319. “Federal Rule of Civil Procedure

15(a)(2) provides a liberal standard for motions to amend: ‘The

court should freely give leave when justice so requires.’” Spartan

Concrete Prod., LLC v. Argos USVI, Corp., 929 F.3d 107, 115 (3d

Cir. 2019) (quoting FED. R. CIV. P. 15(a)(2). Notwithstanding this

liberal standard, denial of leave to amend can be based on undue

delay, bad faith or dilatory motive on the part of the movant,

repeated failure to cure deficiencies by amendments previously

allowed, prejudice to the opposing party, or futility.3 Mullin v.

Balicki, 875 F.3d 140, 149 (3d Cir. 2017) (citing Foman v. Davis,

371 U.S. 178, 182 (1962)). Under Rule 15, the decision to amend

rests within the sound discretion of the Court. Id. at 150; Heyl

& Paterson Int’l Inc. v. F.D. Rich Hous. of Virgin Islands, Inc.,

663 F.2d 419, 425 (3d Cir. 1981). “Pursuant to their discretion

under Rule 15, courts generally grant leave to amend where, during

the course of discovery, a party discovers new evidence.” Sabatino,

No. CIV.A. 11-1656, 2013 WL 1622306, at *6 (internal quotations

omitted); see, e.g., Kronfeld v. First Jersey Nat’l Bank, 638

F.Supp. 1454, 1460 (D.N.J. June 20, 1986) (granting motion to amend

3 The present Motion represents plaintiff’s first attempt to

amend the Complaint. Therefore, failure to cure deficiencies of

amendments previously allowed is not implicated here.

upon discovery of new evidence where it did “not appear that the

amendment would cause undue delay or that plaintiffs [had] a

dilatory motive”).

1. Undue Delay

“While simple delay cannot justify denying leave to amend by

itself, delay that is ‘undue’ — a delay that is protracted and

unjustified — can place a burden on the court or counterparty, or

can indicate a lack of diligence sufficient to justify a

discretionary denial of leave.” Mullin v. Balicki, 875 F.3d at

151. There is no presumptive period in which delay becomes undue.

Id. Thus, an assessment of undue delay requires courts to “focus

on the movant’s reasons for not amending sooner” while “bearing in

mind the liberal pleading philosophy of the federal rules.” Cureton

v. Nat’l Collegiate Athletic Ass’n, 252 F.3d 267, 273 (3d Cir.

2001) (internal citations omitted).

Plaintiff represents that the predicate facts for the

proposed claims were initially learned when defendant produced

emails authored by Beth Bozzelli on January 30, 2020. While

plaintiff does not deny that certain relevant information was

acquired approximately one year and one month before the present

Motion was ultimately filed, the Court does not find this lapse in

time to be indicative of undue delay under the circumstances. Upon

receipt of the discovery on January 30, 2020 plaintiff represents

that he promptly scheduled Ms. Bozzelli’s deposition for March 9,

2020. There are no facts to indicate counsel for plaintiff could

have anticipated that cancellations and multiple delays would have

resulted in the deposition’s postponement to December 11, 2020. To

the contrary, the facts available to this Court suggest the delays

resulted by no fault of plaintiff or plaintiff’s counsel. Indeed,

defendant has filed no response to the Motion challenging

plaintiff’s claims or otherwise alleging that plaintiff caused the

delays. Moreover, plaintiff represents he was cautious not to move

for leave to amend before taking Ms. Bozzelli’s deposition and

confirming that sufficient evidence existed to warrant the

proposed additional claims. Mot. a 11. Accordingly, the Court finds

plaintiff has provided a reasonable explanation for not amending

earlier, and this factor, therefore, weighs in favor of granting

leave. See Adams v. Gould Inc., 739 F.2d 858, 868 (3d Cir. 1984)

(“The question of undue delay . . . requires that we focus on the

plaintiffs’ motives for not amending their complaint to assert

this claim earlier . . . ”).

2. Bad Faith or Dilatory Motive

The Court finds there are no facts in the record to merit a

finding of bad faith or dilatory motive on the part of plaintiff.

As previously discussed, while certain relevant information

underlying the proposed claims was learned approximately one year

and one month before the present Motion was filed, the Court does

not judge this lapse in time to be attributable to plaintiff’s

improper motives. As such, this factor weighs in favor of granting

leave.

3. Prejudice

When evaluating prejudice to the non-moving party in the

context of a motion to amend, courts in the Third Circuit consider

whether amendment would impair the non-moving party’s “ability to

present its case.” Dente v. Saxon Mortg., Civ. A. No. 11–6933,

2012 WL 1664127, at *2 (D.N.J. May 11, 2012) (citing Heyl &

Patterson Int’l, Inc., 663 F.2d at 426). Specifically, courts

evaluate “whether the amendment would force the opponent to expend

significant additional resources to conduct discovery and prepare

for trial, as well as whether it would significantly delay

resolution of the action.” Ezaki Glico Kabushiki Kaisha v. Lotte

Int’l Am. Corp., No. CV155477, 2017 WL 4404567, at *3 (D.N.J. Oct.

4, 2017).

Here, the circumstances do not suggest defendant would suffer

undue prejudice if plaintiff were permitted to amend. First,

defendant has filed no opposition suggesting prejudice. Second,

the proposed amendment does not add new parties. Third, plaintiff

represents he requires no additional depositions and agrees to

submit to a second deposition at the request of defendant. The

Court notes that significant discovery has already taken place in

this litigation. However, should defendant identify a specific

need for additional discovery limited to information pertaining to

the proposed claims, it may timely raise this issue with the Court

at the appropriate juncture. To the extent further discovery is

necessitated by the addition of plaintiff’s proposed claims and/or

upon the anticipated filing of a motion to compel by plaintiff as

per his representation, any such discovery would be confined to

relatively discreet matters and therefore would not require

defendant to expend significant additional resources or

significantly delay resolution of the action. Lastly, the record

does not indicate that the plaintiff has acted in any way to obtain

a tactical advantage by adding the proposed additional claims at

this time. For these reasons, the Court finds defendant would not

be unduly prejudiced by the amendment, and this factor therefore

weighs in favor of granting leave.

4. Futility

Futility means the complaint, as amended, would fail to state

a claim upon which relief could be granted. Shane v. Fauver, 213

F.3d 113, 115 (3d Cir. 2000)(citation omitted). To determine

whether a claim is futile, district courts apply the same standard

of legal sufficiency as applies under Federal Rule of Civil

Procedure 12(b)(6). See id. (citation omitted); Travelers

Indemnity Co. v. Dammann & Co., Inc., 594 F.3d 238, 243 (3d Cir.

2010) (citation omitted). The Court must accept as true all well-

pleaded factual allegations raised in plaintiff’s proposed amended

pleading and must determine whether the facts, as alleged, support

a facially plausible claim on the grounds asserted. See Warren

Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011).

It is well settled that a pleading will suffice if it contains

a “short and plain statement of the claim showing that the pleader

is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 677-78

(2009) (quoting Fed. R. Civ. P. 8(a)(2)). “While a complaint

attacked by a Rule 12(b)(6) motion to dismiss does not need

detailed factual allegations, a plaintiff’s [Rule 8] obligation to

provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires

more than labels and conclusions, and a formulaic recitation of

the elements of a cause of action will not do.” Bell Atlantic Corp.

v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). “Rule 8

. . . demands more than an unadorned, the-defendant-unlawfully-

harmed-me accusation.” Iqbal, 556 U.S. at 678. In other words, in

order to withstand a Rule 12(b)(6) motion, a complaint’s factual

allegations “must be enough to raise a right to relief above the

speculative level.” Id.; Mayer v. Belichick, 605 F.3d 223, 230 (3d

Cir. 2010) (citing Twombly, 550 U.S. at 555).

Plaintiff seeks leave to amend the Complaint to add a count

for retaliatory discharge in violation of the First Amendment and

42 U.S.C. § 1983 as well as a count for wrongful discharge in

violation of public policy under New Jersey law.

i. Count Three: Retaliatory Discharge in Violation of

The First Amendment and 42 U.S.C. § 1983

To state a First Amendment retaliation claim under 42 U.S.C.

§ 1983, a plaintiff must plead “(1) he engaged in constitutionally

protected conduct, (2) the defendant engaged in retaliatory action

sufficient to deter a person of ordinary firmness from exercising

his constitutional rights, and (3) a causal link [existed] between

the constitutionally protected conduct and the retaliatory

action.” Baloga v. Pittston Area Sch. Dist., 927 F.3d 742, 752 (3d

Cir. 2019) (quoting Palardy v. Twp. of Millburn, 906 F.3d 76, 80-

81 (3d Cir. 2018), cert. denied, 139 S. Ct. 2011 (2019)) (internal

quotations omitted).

In evaluating whether a public employee’s conduct is deemed

“protected”, Courts in the Third Circuit consider (1) whether the

employee spoke as a citizen; (2) whether the statement involved a

matter of public concern; and (3) whether the government employer

nevertheless had “an adequate justification for treating the

employee differently from any other member of the general public”

based on its needs as an employer. Id. at 753. The Supreme Court

held in Garcetti v. Ceballos that “when public employees make

statements pursuant to their official duties, the employees are

not speaking as citizens for First Amendment purposes, and the

Constitution does not insulate their communication from employer

discipline.” Garcetti v. Ceballos, 547 U.S. 410, 421 (2006); see

also Jaworski v. New Jersey Tpk. Auth., No. CIV.A.05-4485, 2007 WL

275720, at *4 (D.N.J. Jan. 29, 2007).

Viewing the allegations raised in the proposed amended

complaint in a light most favorable to the plaintiff, the Court is

satisfied that plaintiff has pleaded sufficient factual matter to

support a facially plausible claim for Retaliatory Discharge in

Violation of The First Amendment and 42 U.S.C. § 1983. Plaintiff’s

proposed amended complaint alleges “Defendant considered

Plaintiff’s conduct of speaking out in support of Dr. Salasin’s

handling of his patient and his refusal to write a letter

sanctioning Dr. Salasin, in deciding to terminate his employment.”

Proposed First Amended Complaint and Jury Demand, at p. 11, ¶ 9.

Plaintiff further proposes to allege that “[d]ue to his position

that Dr. Salasin acted appropriately in honoring the patient’s

rights, Plaintiff did not draft a letter to Dr. Salasin revoking

his privileges[,]” as requested by the County in an email. Id. at

¶ 7. Instead, plaintiff simply forwarded the email to Dr. Salasin.

Id. Given that the proposed amended complaint alleges the Nursing

Home Administration effectively restricted plaintiff’s discretion

to make a determination about whether the sanction against Dr.

Salasin was appropriate, the Court finds plaintiff can plausibly

establish that his speech was outside the scope of his ordinary

job responsibilities.4 “The critical question under Garcetti is

4 Yet as the Third Circuit reminds us, “That such a dispute exists

at this stage does not mean that one will, after discovery,

remain for trial, and we do not imply that summary judgment will

whether the speech at issue is itself ordinarily within the scope

of an employee’s duties, not whether it merely concerns those

duties.” Lane v. Franks, 573 U.S. 228, 240 (2014). Moreover, the

Court finds plaintiff has alleged sufficient facts to plausibly

show that he acted, or refused to act, based upon his belief that

it would be dishonest and/or in violation of his ethical duties or

legal obligations as a physician in New Jersey to sanction Dr.

Salasin for honoring a patient’s rights. “An employee’s refusal to

make dishonest or fraudulent statements has been held to be within

the scope of First Amendment protection.” D’Ambola v. Lakewood Bd.

of Educ., No. CV 16-2735, 2017 WL 1206011, at *8 (D.N.J. Mar. 31,

2017). Plaintiff’s decision to forward the email (as opposed to

ignoring it) also suggests his refusal to sanction Dr. Salasin

personally was conduct directed at a matter of public concern,

rather than in disregard of his job duties. Based on the foregoing,

the Court finds plaintiff has adduced sufficient factual matter to

support a facially plausible claim for Retaliatory Discharge in

Violation of The First Amendment and 42 U.S.C. § 1983 premised on

the theory that he was terminated without justification for

speaking as a citizen, in his individual capacity, on a matter of

public concern for patients’ rights. Thus, plaintiff’s proposed

amendment is not futile with respect to this additional claim. The

necessarily be inappropriate.” Flora v. Cty. of Luzerne, 776

F.3d 169, 175 n.9 (3d Cir. 2015).

Court further notes that defendant has filed no response in this

case alleging futility or providing any support for such a finding.

ii. Count Four: Wrongful Discharge in Violation of

Public Policy under New Jersey Law

To state a claim for wrongful discharge in violation of public

policy under New Jersey law, the Pierce doctrine requires a

plaintiff to plead he or she was wrongfully discharged for

“refusing to perform an act that violates a clear mandate of public

policy.” Pierce v. Ortho Pharm. Corp., 84 N.J. 58, 72 (1980). “An

employee who is wrongfully discharged may maintain a cause of

action in contract or tort or both.” Day v. Wells Fargo & Co., No.

CV176237, 2018 WL 1891476, at *2 (D.N.J. Apr. 20, 2018). “An action

in contract may be predicated on the breach of an implied provision

that an employer will not discharge an employee for refusing to

perform an act that violates a clear mandate of public policy.”

Pierce, 84 N.J. at 72. “An action in tort may be based on the duty

of an employer not to discharge an employee who refused to perform

an act that is a violation of a clear mandate of public policy.”

Id. “The sources of public policy include legislation;

administrative rules, regulations or decisions; and judicial

decisions. In certain instances, a professional code of ethics may

contain an expression of public policy.” Id.

Here, the Court is satisfied that the pleadings contained in

plaintiff’s proposed amended complaint are sufficient to plausibly

allege a cause of action for wrongful discharge in violation of

public policy under New Jersey law for the purposes of the present

Motion. The proposed amended complaint alleges (1) plaintiff was

employed by defendant, giving rise to a duty not to discharge

plaintiff in violation of public policy and/or an implied covenant

of good faith and fair dealing; and, (2) defendant breached its

duty and the implied covenant when it discharged plaintiff for his

statements and conduct supporting Dr. Salesin’s decision to

discharge the subject patient from Crest Haven. It further

identifies N.J.A.C. 8:36-4.1 and 8:43G-41.1, and N.J. Rev Stat §

30:13-5 (2019) as the specific expressions of public policy which

grounded those statements and conduct. Based on the foregoing, the

Court finds plaintiff has adduced sufficient factual matter to

support a facially plausible claim for Wrongful Discharge in

Violation of Public Policy under New Jersey Law. The Court again

notes that defendant has raised no futility argument to the

contrary.

Conclusion

For the reasons stated above, plaintiff’s Motion seeking

leave to file the proposed amended complaint [Doc. No. 28] is

granted. An appropriate order shall issue.

s/ Matthew J. Skahill

MATTHEW J. SKAHILL

United States Magistrate Judge

At: Camden, New Jersey