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

> District Court, D. New Jersey · August 12, 2021

URL: https://www.frixlaw.com/law-library/cases/10271278

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** August 12, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

[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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10271278. Public record. Not legal advice.