WONG v. RWJ BARNABAS HEALTH

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

SUSAN WONG,

Plaintiff,

v. Civ. No. 20-05510 (KM) (AME)

CLARA MAASS MEDICAL CENTER, OPINION

RWJBARNABAS HEALTH, JOHN

DOES 1-10 and XYZ Corporations 1-

10,

Defendants.

KEVIN MCNULTY, U.S.D.J.:

Plaintiff Susan Wong was employed as a registered nurse at Clara Maass

Medical Center (“CMMC”) until she was terminated in April 2018. Two months

prior to her termination, in February 2018, Wong suffered an injury at work

that she claims left her with a number of persistent and disabling symptoms.

After multiple evaluations by two different CMMC doctors and a neurologist

authorized by CMMC to treat her, Wong was cleared to return to work without

restrictions. Nevertheless, Wong did not report to any of her scheduled shifts

between March 17 and April 25, 2018 and was subsequently terminated.

Wong sued CMMC and its affiliate, RWJ Barnabas Health, for violations

of the New Jersey Law Against Discrimination, the New Jersey Workers’

Compensation Statute, the Family Medical Leave Act, and New Jersey common

law. Now before the Court is the defendants’ motion for summary judgment.

(DE 47.)1 For the reasons set forth below, the motion for summary judgment is

GRANTED.

1 Certain citations to the record are abbreviated as follows:

I. Background

I recite the material facts, many of which are undisputed, reserving

certain topics for later discussion. Defendant CMMC is an acute care hospital

in Belleville, New Jersey. (Def. St. ¶1; Pl. Resp. ¶1.) CMMC is part of a network

of health care providers that all operate under the umbrella of defendant RWJ

Barnabas Health (“RWJBH”). (DE 47-4 at 2; Pl. St. ¶156; Def. Resp. ¶156.)

Between 1994 and 1996, Wong worked as a certified nurse assistant at

CMMC and at St. Barnabas Medical Center. (Wong Dep. 54:4-24.) St. Barnabas

Medical Center merged with Robert Wood Johnson Health System in 2016 to

create RWJBH. (DE 54-3 at 11.)

Between 1996 and 2003, Wong was employed at West Hudson Hospital

in Kearny, New Jersey. (Wong Dep. 54:20-55:5, 59:6-8.) In 2003, Wong

DE = Docket entry in this matter

Mot. = Defendants’ brief in support of motion for summary judgment (DE 47-3)

Opp. = Plaintiff’s brief in opposition to motion for summary judgment (DE 54)

Reply = Defendants’ reply brief in further support of motion for summary

judgment (DE 61)

Def. St. = Defendants’ statement of undisputed facts (DE 47-2)

Pl. Resp. = Plaintiff’s response to defendants’ statement of undisputed facts (DE

54-1 at 1)

Pl. St. = Plaintiff’s statement of undisputed facts (DE 54-1 at 9)

Def. Resp. = Defendant’s response to plaintiff’s statement of undisputed facts

(DE 61-1)

Wong Cert. = Certification of plaintiff in opposition to defendants’ summary

judgment motion(DE 55-5)

Wong Dep. = Excerpts from transcript of deposition of Susan Wong conducted

on May 12, July 8, July 9, July 13, July 20, and July 27, 2021 (DE 54-5)

Zuza Dep. = Excerpts from transcript of deposition of Sally Zuza (DE 54-8 at 67)

Vukic Dep. = Excerpts from transcript of Dr. Mario Vukic (DE 47-56)

Weisberg Dep. = Excerpts from transcript of deposition of Dr. Ira Weisberg (DE

54-8 at 62)

returned to CMMC to work as a registered nurse (“RN”). (Id. 59:6-60:2.)

Beginning in 2005, Wong was assigned to work three 12-hour night shifts per

week. (Def. St. ¶12; Pl. Resp. ¶12.)

A. Wong’s injury and treatment by Corporate Care

On her way to work on February 18, 2018, Wong entered the CMMC

building and collided with the revolving glass entry door. (Def. St. ¶40; Pl.

Resp. ¶40.) She worked her full night shift despite the injury, and the following

morning she filled out an incident report regarding the accident. (Def. St. ¶¶41-

42; Pl. Resp. ¶¶41-42.) She also went to Corporate Care, which provides

treatment for work-related injuries to CMMC employees. (Def. St. ¶¶43-44; Pl.

Resp. ¶¶43-44.)

In addition to providing treatment, Corporate Care makes fitness-for-

duty determinations for CMMC employees. (Def. St. ¶46; Pl. Resp. ¶46.) When

appropriate, Corporate Care refers employees to specialists for additional

treatment and/or evaluation. (Def. St. ¶45; Pl. Resp. ¶45.) Human Resources

(“HR”) is guided by the fitness-for-duty determinations made by Corporate Care

in consultation with any referring specialists. (Def. St. ¶48; Pl. Resp. ¶48.)

Wong was initially evaluated by Dr. Corina Smighelschi at Corporate

Care on February 19, 2018. (Def. St. ¶53; Pl. Resp. ¶53; Pl. St. ¶23; Def. Resp.

¶23.) As part of this initial evaluation, Dr. Smighelschi conducted a physical

exam and ordered a CT scan of Wong’s head and brain without contrast. (Def.

St. ¶49; Pl. Resp. ¶49.) The scan revealed “[n]o evidence of intracranial

pathology” or fracture. (Def. St. ¶¶50-51; Pl. Resp. ¶¶50-51.) Based on the

physical exam and CT scan, Dr. Smighelschi concluded that there was no

acute pathology that would keep Wong from returning to work. (Def. St. ¶52;

Pl. Resp. ¶52.) Dr. Smighelschi diagnosed Wong with a “head contusion” and

instructed her to take “Tylenol as needed.” (Pl. St. ¶25; Def. Resp. ¶25.)

Corporate Care thus released Wong to return to work full duty without

restriction. (Def. St. ¶53; Pl. Resp. ¶53.)

Following her initial visit at Corporate Care, Wong utilized unscheduled

paid time off (“PTO”) to cover her shifts on February 21, 23, and 26, 2018. (Def.

St. ¶55; Pl. Resp. ¶55.) On February 26, 2018, she returned to Corporate Care

for a follow-up visit. (Def. St. ¶56; Pl. Resp. ¶56.) During the follow-up, Dr.

Smighelschi ordered an X-Ray and a CT of Wong’s cervical spine. Both the X-

Ray and CT were performed that day. (Def. St. ¶¶57-58; Pl. Resp. ¶¶57-58.) The

CT revealed that Wong had a “disc bulge” in three of her vertebrae. (Pl. St. ¶32;

Def. Resp. ¶32.) After evaluation, Dr. Smighelschi diagnosed Wong with a head

contusion and placed her on modified duty, restricting her to sedentary work.

(Def. St. ¶59; Pl. Resp. ¶59.) Wong was also referred to a specialist for further

neurological evaluation. (Def. St. ¶60; Pl. Resp. ¶60.) She was instructed to

return to Corporate Care following this evaluation. (Def. St. ¶61; Pl. Resp. ¶61.)

On February 27, 2018, Wong presented a health certificate from her

personal physician stating that she was “restricted to home and could not work

/ attend school” from February 27 to March 2, 2018 due to a personal health

problem. (Def. St. ¶¶63-64; Pl. Resp. ¶¶63-64.) Wong thereafter utilized

unscheduled PTO on February 28, 2018, and took an unpaid day off on March

1, 2018. (Def. St. ¶66; Pl. Resp. ¶66.) On March 2, 2018, Wong returned to

work in a sedentary-duty capacity. Because she missed an annual competency

training that was scheduled for March 1, she attended the training on March 2

instead. (Def. St. ¶69; Pl. Resp. ¶¶67, 69.) According to Wong, the training

required her to stand for four hours and thus did not allow her to work in a

sedentary-duty capacity only. (Pl. Resp. ¶69.)

Instead of her regular night shifts, Wong was assigned to work the day

shifts on March 6 and March 8, 2018, again in what was supposed to be a

modified capacity. (Def. St. ¶72; Pl. Resp. ¶72.) According to Wong, her

employers did not adhere to a light duty schedule, as she was asked to make

rounds, required to stand on her feet for extended periods of time, and asked to

make a long trip to the basement of the hospital to pick up medication from the

pharmacy. (Pl. Resp. ¶72.) Wong testified that she had to “drink two cups of

black coffee to stay awake” and that she is ordinarily “not a coffee drinker.”

(Wong Dep. 421:14-15.)

On March 9, 2018, in accordance with her Corporate Care referral, Wong

was evaluated by board-certified neurologist Dr. John E. Robinton. (Def. St.

¶¶74-76; Pl. Resp. ¶¶74-76.) In his report, Dr. Robinton stated that while he

believed that Wong sustained a concussion and cervical strain as a result of

her February 18, 2018, injury, “[s]ymptomatology is disproportionate to the

nature of the injury and multiple complaints were unaccompanied by findings

on today’s examination.” (DE 47-30 at 3.) He continued:

Given the fact that she remains somewhat symptomatic, I believe

it’s best for her recovery, if she stays out of work for a week. At the

end of the week, she’d be able to return to work full duties without

restriction. She requires no neurologic follow up or additional

evaluations despite the fact that she requested performance of

both MRI of the brain and MRI of the cervical spine while here

today.

(Id.) Dr. Robinton thus determined that Wong was “unable to return to work in

any capacity until March 16, 2018,” and that “[a]s of that date she will be

neurologically cleared to return to work full duties without restrictions.” (Def.

St. ¶¶77-78; Pl. Resp. ¶¶77-78.)

As directed, Wong returned to Corporate Care on March 13, 2018. (Def.

St. ¶80; Pl. Resp. ¶80.) Consistent with Dr. Robinton’s recommendation, Dr.

Smighelschi at Corporate Care released Wong to work full duty starting on

March 16, 2018. (Def. St. ¶81; Pl. Resp. ¶81.) Dr. Smighelschi also ordered

MRIs of Wong’s brain and cervical spine based on Wong’s request. (Def. St.

¶¶83-84; Pl. Resp. ¶¶83-84.) The resulting MRI reports indicated that the MRI

of Wong’s brain was “unremarkable.” (Def. St. ¶85; Pl. Resp. ¶85.) As for the

MRI of Wong’s cervical spine, it revealed three “small central protrusion[s]” and

two herniated discs. (DE 47-47 at 2.)

Wong did not report to work for her scheduled shifts on March 17 and

18, 2018. (Def. St. ¶92; Pl. Resp. ¶92.) On March 20, 2018, Wong was

evaluated for a fourth time at Corporate Care by Dr. Ira Weisberg, who released

her to return to work full duty without restrictions. (Def. St. ¶¶93-94; Pl. Resp.

¶¶93-94; Wong Dep. 154:14-16.) Wong annotated the Work Status Form

releasing her to full duty to indicate that she “disagree[d].” (Def. St. ¶95; Pl.

Resp. ¶95.) In a letter dated March 29, 2018, CMMC’s workers’ compensation

carrier notified Wong that no further treatment was authorized under her claim

at this time. (DE 54-4 at 26.) The letter explained that MRIs were ordered at

Wong’s request and that Dr. Weisberg reviewed the findings and discharged

her. (Id.)

Wong claims that during her March 20th visit at Corporate Care, she

complained of dizziness, balance problems and blurred vision, but Dr.

Weisberg did not accept that these symptoms were the result of a concussion

caused by her accident. (Wong Dep. 146:14-147:19.) Instead, he suggested that

her eyeglasses were the wrong prescription. (Id.) When Wong complained about

her neck pain, Dr. Weisberg explained to Wong that her imaging showed age-

related degeneration. (Wong Dep. 154:17-155:19.)

Wong did not report to work for her scheduled shifts on March 22, March

23, March 27, March 28, March 29, April 2, April 3, April 4, April 9, or April 11

of 2018. (DE 47-28 at 2.) On April 5, 2018, HR Director Greg Rivera directed

HR Generalist Lori Onque to send Wong a letter regarding her unauthorized

leave of absence. (Pl. St. ¶49; Def. Resp. ¶49.) By way of letter dated April 11,

2018, Onque advised Wong as follows:

Our records indicate that you have been on an unapproved leave of

absence since March 17, 2018. Since you have failed to return to

work by the agreed date without an approved extension it has been

assumed that you have separated from your position from Clara

Maass Medical Center. Unless we hear from you by Wednesday,

April 18, 2018, your employment will be terminated. You may,

however, reapply for employment in the future.

(Def. St. ¶97; Pl. Resp. ¶97.)

On April 12, 2018, Wong presented Onque with a note from her personal

neurologist, Dr. Mario Vukic. Vukic’s note, dated April 11, 2018, stated that

Wong was seen in Dr. Vukic’s office that day and that “she is unable to return

to work until further notice.” (Def. St. ¶98; Pl. Resp. ¶98.) Onque emailed

Vukic’s note to Alfred Torres, Chief HR Officer, on April 18, 2018. (Def. St. ¶99;

Pl. Resp. ¶99.) Torres then forwarded the note to the head of Corporate Care,

who sent it to CMMC’s workers’ compensation insurance carrier. (Def. St.

¶¶101-02; Pl. Resp. ¶¶101-02.)

The workers’ compensation carrier responded by letter dated April 19,

2018, in which it notified Dr. Vukic that he was not an authorized treating

physician for Wong’s work-related injury. (Def. St. ¶104; Pl. Resp. ¶104.) That

letter cited the New Jersey Workers’ Compensation Statute, which provides

that the carrier has the right to direct medical treatment. (DE 54-8 at 34.) The

letter further advised that if Wong requires further treatment she should return

to Corporate Care. (Def. St. ¶105; Pl. Resp. ¶105.)

On April 24, 2018, Wong was evaluated again at Corporate Care by Dr.

Weisberg, who again cleared her to return to work full duty with no

restrictions. (Def. St. ¶¶106-7; Pl. Resp. ¶¶106-7.) Wong annotated the Work

Status Form releasing her to work full duty to indicate that she “disagree[d]

again.” (DE 47-41 at 2.) According to Wong, she showed Dr. Weisberg the note

from Dr. Vukic and he “flung it back” at her and told her it means nothing.

(Wong Dep. 338:1-6.) Dr. Weisberg testified, however, that he did not see Dr.

Vukic’s note in April 2018, and that if he had he likely would have contacted

Dr. Vukic to understand the basis for the doctor’s differing opinion. (DE 54-8 at

64:3-14.) Wong also claims that she asked Dr. Weisberg to order additional

testing during her visit, and he responded that “he’s not going to order a multi-

million dollar workup on” her. (Wong Dep. 337:19-25.)

After her visit to Corporate Care on April 24, 2018, Wong met with

Onque and Rivera and informed them that she was not ready to return to work.

(Wong Dep. 357:15-358:7; Def. St. ¶114; Pl. Resp. ¶114.) Wong testified that

she complained to Onque and Rivera about her persisting symptoms and

requested temporary disability leave or leave pursuant to the Family Medical

Leave Act (“FMLA”). (Wong Dep. 322:5-15; 359:4-9.) She also presented the

April 11, 2018, letter from Dr. Vukic. (Pl. St. ¶134; Def. Resp. ¶134.) According

to Wong, Onque and Rivera told her that FMLA leave was not available to her.

(Wong Dep. 323:16-22.) They further advised her that if she did not report to

work for her scheduled shift on April 25, 2018, she would be terminated. (DE

47-45.) On April 25, Wong called Onque and stated that she was “still not well

enough to return.” (Def. St. ¶119; Pl. Resp. ¶119.) Onque responded that Wong

would be terminated effective that day and that once she feels better she can

reapply for another position. (DE 47-45.)

On May 1, 2018, following Wong’s termination, Wong was seen again by

Dr. Robinton. (Def. St. ¶¶110-11; Pl. Resp. ¶¶110-11.) Dr. Robinton wrote in

his report that:

On examination today [Wong] scored 38/38 on a formal mental

status exam. Cranial nerve testing revealed no abnormalities. On

motor testing, there was normal bulk and tone. Power was 5 out of

5. Sensory exam was intact. Cerebellar testing was normal. Galt

testing revealed narrow base with equal armswing. Reflexes were

symmetric. Toes were downgoing.

(Def. St. ¶113; Pl. Resp. ¶113.) Dr. Robinton concluded:

Based on today’s examination and the nature of the injury, I

continue to believe that from a neurologic perspective, she has

reached maximum medical improvement and is able to work full

duties in her usual occupation without restriction. Neurologic

follow up is not required.

(Def. St. ¶112; Pl. Resp. ¶112.)

B. Wong’s continued treatment by Dr. Vukic

As noted above, Wong was first evaluated by Dr. Vukic on April 11, 2018.

(Def. St. ¶148; Pl. Resp. ¶148.) During that visit, Dr. Vukic diagnosed Wong

with post-concussive syndrome and concluded that she was unable to return

to work. (Def. St. ¶¶149, 151; Pl. Resp. ¶¶149, 151.) Other than “cognitive

evaluation,” i.e., a formal memory test, Dr. Vukic did not recommend any

course of treatment. (Def. St. ¶150; Pl. Resp. ¶150.)

Dr. Vukic next saw Wong on May 17, 2018, at which time he again

diagnosed her with post-concussive syndrome and concluded that she was

unable to work. (Def. St. ¶152; Pl. Resp. ¶152.) He testified that he based his

diagnosis on her “[d]ifficulty with concentration, tasks that require attention

and tasks that require multiple levels of processing simultaneously.” (Vukic

Dep. 26:2-6.) He recommended again that she undergo cognitive evaluation

and receive physical therapy as a result of a pinched nerve in her neck related

to her concussion. (Def. St. ¶152; Pl. Resp. ¶152.)

On August 8, 2018, Wong received the recommended cognitive

evaluation. (Def. St. ¶153; Pl. Resp. ¶153.) On October 19, 2018, Dr. Vukic

referred Wong for cognitive rehabilitation, which included “memory exercises

and skills to cope.” (Def. St. ¶154; Pl. Resp. ¶154.) Dr. Vukic next evaluated

Wong on January 8, 2019, at which time he again diagnosed her with post-

concussive syndrome and concluded that she was still unable to return to

work. (Def. St. ¶155; Pl. Resp. ¶155.) He concluded the same when he

evaluated her subsequently on April 11, 2019 and a final time on August 14,

2019. (Def. St. ¶¶156-57; Pl. Resp. ¶¶156-57.)

Since she was terminated on April 25, 2018, Wong has not sought to

return to work at CMMC. (Def. St. ¶123; Pl. Resp. ¶123.) She testified at her

July 9, 2021, deposition that as of that date, she was still medically unable to

resume employment as a nurse. (DE 49-5 at 353:21-24.)

C. Wong’s father’s earlier hospitalization at CMMC and Wong’s

complaints of racist comments

In July 2016, Wong’s father was hospitalized at CMMC in the same unit

to which Wong was assigned as an RN. (Def. St. ¶¶14-15; Pl. Resp. ¶¶14-15.)

Wong’s mother had previously also been hospitalized at CMMC. (Def. St. ¶¶16-

17; Pl. Resp. ¶¶16-17.)

At some point while her father was in the hospital, Wong approached

Sam Inu, a nurse treating her father, and expressed concerns about his

neurological status. (Pl. St. ¶82; Def. Resp. ¶82.) Wong also expressed concern

about the fact that her father was originally placed on a ventilator in the

Emergency Room and admitted to the Intensive Care Unit, but then was

subsequently moved to a “regular medical floor” despite constant wheezing.

(Id.)

According to Wong’s deposition testimony, Inu asked Wong if it was

acceptable, in her culture, to look directly into a person’s eyes when speaking

to them. (Pl. St. ¶83; Def. Resp. ¶83.) Inu also asked Wong if her father spoke

English. (Id.) Wong reported these comments to Ronnie Castro, Director of

Cardiac Services and Primary Stroke Program, who responded that it is

necessary to look into a person’s eyes when conducting a neurological exam.

(Pl. St. ¶38; Def. Resp. ¶38; Wong Dep. 624:1-15.) Castro agreed to take a look

at Wong’s father’s chart when he had a chance. (Id.)

Wong testified that she later called Castro to see if he had looked at her

father’s chart, but Castro did not answer her calls or follow up. (Wong Dep.

624:15-24.) In a certification submitted in response to the defendants’

summary judgment motions, Wong stated that she “made attempts to follow up

with Castro about my complaints of racism, but Castro never responded nor

took remedial measures.” (Wong Cert. ¶23.) She also explained that when she

complained to Castro about Inu’s comments, Castro “repeatedly made clear to

me that his main priority was not my complaints of racist remarks, but rather

a hospital director who was currently in the [Medical] ICU.” (Wong Cert. ¶22.)

Wong testified that she reported her concerns about Inu to Kim Byrne,

Director of Critical Care, Rose Giachetti, her then-supervisor, and some of her

colleagues. (Wong Dep. 616:14-18, 625:21-626:3, 627:21-25.) In her post-

discovery certification, Wong stated that she also told Sally Zuza, an HR

employee, about Inu’s racist comments, and that Zuza said that she would

notify Rivera of Wong’s complaint. (Wong Cert. ¶48.)

On July 19, 2016, Wong sent a letter to CMMC Chief Executive Officer

Mary Ellen Clyn and then-Chief Medical Officer Dr. Frank Mazzarella

expressing concern about her parents’ care at CMMC. (Def. St. ¶19; Pl. Resp.

¶19.) In response to the letter, on July 27, 2016, Dr. Mazzarella and several

other CMMC employees met with Wong to discuss her concerns. (Def. St. ¶20;

Pl. Resp. ¶20.) As a follow up to the meeting, then-Director of Patient

Experience Sabratha Thomas sent Wong a letter stating that Wong’s concerns

regarding her parents’ experiences were “thoroughly reviewed and

investigated.” (DE 47-12 at 2.) Wong’s father passed away on July 27, 2016.

(Def. St. ¶21; Pl. Resp. ¶21.)

Wong testified that several other hospital employees made racist remarks

to her during her time working at CMMC. According to Wong, Dr. Mehul Shah

approached her in October 2016 and stated that “the Chinese are taking over

the world.” (Wong Dep. 714:3-23.) In addition, Wong testified that Dr. Louis

Petracca “regularly made comments in his medical notes on my race, and went

out of his way to emphasize my racial differences.” (Wong Cert. ¶25; Wong Dep.

695:1-20.) For instance, Dr. Petracca once described a printer that was

malfunctioning as “slow like a slow boat to China.” (Id.) Wong further stated

that she was allowed to review her father’s medical notes and that those notes

included racist comments Dr. Petracca had made, as Dr. Petracca had treated

her father on one occasion. (Id. ¶26; Wong Dep. 694:13-16.) Wong testified that

Dr. Petracca wrote in her father’s medical chart that her father is “a Chinese

man from China, who speaks Chinese.” (Wong Dep. 690:1-8.)

On December 14, 2016, Wong drafted a note addressed to Dr. Mazzarella

in which she expressed concern about Dr. Shah’s and Dr. Petracca’s

comments. (DE 47-16; Wong Dep. 718:19-23.) Wong testified that she left the

note with Dr. Mazzarella’s assistant, though Dr. Mazzarella testified that he

does not recall receiving the note. (Def. St. ¶¶32-33; Pl. Resp. ¶¶32-33.) Wong

testified that she never received a response from Dr. Mazzarella and that she

never raised the issue of Dr. Shah’s comment with anyone else. (Wong Dep.

720:21-721:6.)

In an October 31, 2017 email to Dr. Mazzarella, Wong reported a

subsequent interaction with Dr. Petracca. (DE 54-3 at 30-31.) Wong testified

that in October 2017, Dr. Petracca approached Wong and asked her if she

wanted to hear a “famous Chinese proverb by a famous Chinese person.”

(Wong Dep. 629:2-10.) He then said, with a feigned accent, “Life is cheap, toilet

paper is expensive.” (Id. 629:20-25.) Dr. Mazzarella testified that he had “no

reason to believe” that he did not receive Wong’s email relaying this interaction.

(Pl. St. ¶125; Def. Resp. ¶125.)

Wong testified that Dr. Shah and Dr. Weisberg made additional

concerning comments to her during her time at CMMC. According to Wong, Dr.

Shah confronted her in the hallways, said that he was “border patrol,” and

made references to Donald Trump. (Id. at 724:4-10, 725:5-19.) With respect to

Dr. Weisberg, Wong testified that he at one point “put his hands together like a

steeple, like he’s praying and then he bowed and he was hunched over, he

leaned over and he was kowtowing.” (Wong Dep. 807:18-21.) In addition, when

Wong told Dr. Weisberg that she needed another referral, Dr. Weisberg

allegedly referenced, in a mocking manner, a “Dr. Chen Cheng Chung.” (Id.

808:17-20.)

In her certification, Wong stated that she complained about race

discrimination to her supervisor, Heather Reginio, in December 2017. (Wong

Cert. ¶27.) Wong also asserted that on April 24, 2018, the day before she was

terminated, she spoke with Onque and detailed the racist remarks and actions

of Dr. Weisberg. (Wong Cert. ¶28.) Her certification suggests that Rivera was

present during this conversation. (Id. ¶34.)

II. Procedural history

Wong commenced this action in New Jersey Superior Court on April 10,

2020. (DE 1 at 2.) On May 4, 2020, the defendants removed the matter to

federal court on the ground that the complaint contains federal claims and

pendent state-law claims. (Id. at 2-3.) The parties proceeded to discovery,

which concluded on January 20, 2023. (DE 39.) On February 17, 2023, the

defendants filed their motion for summary judgment. (DE 47.) The motion is

now fully briefed and ripe for decision.

III. Legal standard

Federal Rule of Civil Procedure 56(a) provides that summary judgment

should be granted “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.”

See Kreschollek v. S. Stevedoring Co., 223 F.3d 202, 204 (3d Cir. 2000);

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). In deciding a motion

for summary judgment, a court must construe all facts and inferences in the

light most favorable to the nonmoving party. See Boyle v. Cnty. of Allegheny

Pennsylvania, 139 F.3d 386, 393 (3d Cir. 1998) (citing Peters v. Delaware River

Port Auth. of Pa. & N.J., 16 F.3d 1346, 1349 (3d Cir. 1994)).

The moving party bears the burden of establishing that no genuine issue

of material fact remains. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23

(1986). “[W]ith respect to an issue on which the nonmoving party bears the

burden of proof . . . the burden on the moving party may be discharged by

‘showing’ — that is, pointing out to the district court — that there is an

absence of evidence to support the nonmoving party’s case.” Id. at 325. Once

the moving party has met that threshold burden, the non-moving party “must

do more than simply show that there is some metaphysical doubt as to

material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.

574, 586 (1986). The opposing party must present actual evidence that creates

a genuine issue as to a material fact for trial. Anderson, 477 U.S. at 248; see

also Fed. R. Civ. P. 56(c) (setting forth types of evidence on which nonmoving

party must rely to support its assertion that genuine issues of material fact

exist). “A fact is material if—taken as true—it would affect the outcome of the

case under governing law. And a factual dispute is genuine if the evidence is

such that a reasonable jury could return a verdict for the nonmoving party.”

M.S. by and through Hall v. Susquehanna Twp. Sch. Dist., 969 F.3d 120, 125

(3d Cir. 2020) (quotation marks and citation omitted).

IV. Discussion

Wong’s theory is that she was terminated from her position at CMMC for

discriminatory and retaliatory reasons. Specifically, Wong claims that she was

terminated because of her race and disability, and also in retaliation because

she complained about race discrimination, requested a reasonable

accommodation, and sought workers’ compensation benefits. Apart from her

claims of unlawful termination, Wong alleges that the defendants violated the

law by failing to accommodate her disability and interfering with her attempt to

take FMLA leave. Finally, she alleges that the defendants are liable for breach

of contract and breach of the implied covenant of good faith and fair dealing.

A. Discriminatory discharge under the NJLAD

I begin with Wong’s claims of discriminatory discharge under the New

Jersey Law Against Discrimination (“NJLAD”). “The NJLAD, codified at N.J.S.A.

10:5–1 et seq., was enacted to reflect ‘the clear public policy of [New Jersey] ...

to abolish discrimination in the work place.’” Broad v. Home Depot U.S.A., Inc.,

16 F. Supp. 3d 413, 419 (D.N.J. 2014) (quoting Shaner v. Horizon

Bancorp., 116 N.J. 433, 436 (1989)). The NJLAD makes it unlawful for an

employer to discharge any individual on the basis of race and disability, among

other protected characteristics. N.J. Stat. Ann. § 10:5-12.

The critical element in an employment discrimination case is the

employer’s intent. See Zive v. Stanley Roberts, Inc., 182 N.J. 436, 446 (2005)

(citing Marzano v. Computer Sci. Corp., 91 F.3d 497, 507 (3d Cir. 1996)).

“Employment discrimination cases thus suffer from the difficulty that inheres

in all state-of-mind cases—the difficulty of proving discriminatory intent

through direct evidence, which is often unavailable.” Zive, supra (citing

Marzano, supra at 499). “To address the difficulty of proving discriminatory

intent, New Jersey has adopted the procedural burden-shifting methodology

articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).” Zive,

supra at 447.

Under the McDonnell Douglas framework, the plaintiff must first produce

evidence sufficient to establish a prima facie case. See Rogers v. Alternative Res.

Corp., 440 F. Supp. 2d 366, 369 (D.N.J. 2006). “The evidentiary burden at the

prima facie stage is ‘rather modest: it is to demonstrate to the court that

plaintiff's factual scenario is compatible with discriminatory intent—i.e., that

discrimination could be a reason for the employer's action.’” Zive, 182 N.J. at

447 (quoting Marzano, 91 F.3d at 508). Once the plaintiff has established a

prima facie case, the burden of production shifts to the employer to articulate a

legitimate, non-discriminatory reason for the employer’s action. Id. at 449. “In

the third stage of the burden-shifting scheme, 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 true reason for the employment decision.” Id.

To establish a prima facie case of discriminatory discharge, the

plaintiff must show by a preponderance of the evidence that the plaintiff (1)

belongs to a protected class, (2) was performing in the position from which she

was terminated, (3) was discharged, and (4) the employer sought someone else

to perform the same work after she left. Grande v. Saint Clare’s Health Sys.,

230 N.J. 1, 17-18 (2017); Zive, 182 N.J. at 471. Here, it is undisputed that

Wong was terminated, and neither party claims that the hiring, or not, of a

replacement is pertinent to the summary judgment motion. For the purposes of

this motion, the defendants also do not contest that Wong is a member of a

protected class to the extent that she alleges she had at least a temporary

disability and identifies ethnically as a Chinese American. (Mot. 51.) CMMC

here focuses on whether Wong has made out a prima facie case on the second

prong of the analysis: that she was performing in the position from which she

was terminated.

The New Jersey Supreme Court has clarified that, with respect to this

second prong, the plaintiff need not show that she was performing perfectly at

the time she was terminated. See Zive, 182 N.J. at 455. Rather, “[a]ll that is

necessary is that the plaintiff produce evidence showing that she was actually

performing the job prior to the termination.” Id. at 454. If the plaintiff has a

disability, she may satisfy this requirement by putting forth evidence that she

was able to perform her job with a reasonable accommodation. Grande, 230

N.J. at 21.

It is undisputed that at the time she was fired, Wong was not working.

After the conclusion of her week-long medical leave of absence, which was

ordered by Dr. Robinton, Wong did not report to any of her scheduled shifts

from March 17 through April 25, 2018. (DE 47-28, DE 47-46.) On April 11,

Onque sent Wong a warning letter informing her that she was on an

unauthorized leave of absence, and on April 24, Onque and Rivera advised

Wong that if she did not report to her shift the following day she would be

terminated. (Def. St. ¶97; Pl. Resp. ¶97; DE 47-45.) On April 25, 2018, Wong

stated that she was unable to return to work, and on that same date she was

fired. (DE 49-5 at 353:21-24.) It is thus clear that Wong was not performing in

the position from which she was terminated for over a month prior to her

termination.

Given that Wong claims a disability, however, the analysis cannot end

there. If Wong can show that, despite some period of disability, she would have

performed the essential functions of her job if she had been given a reasonable

accommodation, a prima facie case of discriminatory discharge could still be

established. Sheldon v. Cooper Health Sys., No. A-4954-18, 2021 WL 1115986,

at *4 (N.J. Super. Ct. App. Div. Mar. 24, 2021). At this stage, the analysis of

Wong’s discriminatory discharge claim overlaps with the analysis of her NJLAD

failure-to-accommodate claim, to which I now turn.

B. Failure to accommodate under the NJLAD

In Count 2 of the complaint, Wong alleges that the defendants violated

the NJLAD by failing to reasonably accommodate her disability. In Count 3,

she asserts a related claim that the defendants failed to engage in an

interactive process aimed at arriving at such an accommodation.

“To establish a failure-to-accommodate claim under the LAD, a plaintiff

must demonstrate that he or she ‘(1) qualifies as an individual with a disability,

or [ ] is perceived as having a disability, as that has been defined by statute’; (2)

‘is qualified to perform the essential functions of the job, or was performing

those essential functions, either with or without reasonable accommodations’;

and (3) that defendant ‘failed to reasonably accommodate [his or her]

disabilities.’” Royster v. New Jersey State Police, 227 N.J. 482, 500 (2017)

(quoting Victor v. State, 203 N.J. 383, 410 (2010)). “If the employee cannot

perform the essential functions of the job because of the disability, ‘then the

court must consider whether reasonable accommodations would enable the

person to perform those functions; however, an accommodation is not

reasonable if it imposes undue financial and administrative burdens or

requires fundamental changes in the nature of the employment.’” Sheldon,

2021 WL 1115986, at *11 (quoting Svarnas v. AT&T Commc'ns., 326 N.J.

Super. 59, 75-76 (App. Div. 1999)).

The New Jersey Administrative Code expressly includes “leaves of

absence” as a reasonable accommodation, and “[s]ome courts have held that

leaves of absence and allowance of time-off for medical care or treatment may

constitute reasonable accommodations for disability-related absences.”

Svarnas, 326 N.J. Super. at 79. “Nevertheless, an indefinite unpaid leave is not

a reasonable accommodation, especially where the employee fails to present

evidence of the expected duration of her impairment.” Id. (citation omitted;

emphasis added). “Whether a leave request is reasonable will turn on the facts

of each particular case.” Id.

In her post-discovery certification, Wong denies that she ever requested

“indefinite” leave. (Wong Cert. ¶39.) According to Wong, Dr. Vukic’s letter

merely “evidences the preliminary stage of medical evaluation and an intention

to investigate my symptoms.” (Wong Cert. ¶40.) Whatever Dr. Vukic’s

subjective intent may have been, it remains true that the letter did not project

any length of time that Wong would be out of work. Instead, Dr. Vukic stated

that Wong “is unable to return to work until further notice.” (DE 47-37.) Leave

“until further notice” is by definition “indefinite” leave; the end date of the

requested leave period is unspecified and undefined.2

When Dr. Vukic wrote his letter, CMMC had already approved a medical

leave of absence for Wong for approximately one week, from March 10 through

March 16, 2018. (DE 47-28.) After this approved leave, Wong was again

2 Wong may be implying that her employer has unfairly seized on an incomplete

or tentative evaluation by Dr. Vukic to claim that the requested leave was indefinite.

Such a contention would have more force if she had submitted evidence that Dr. Vukic

later revised the request or suggested a definite time limit for the requested leave. She

did not. Even today, Wong does not state what period was or would have been

reasonable.

evaluated at Corporate Care by Dr. Smighelschi, who ordered MRIs of Wong’s

brain and cervical spine at Wong’s request, despite Dr. Robinton’s conclusion

that such testing was not necessary. (Def. St. ¶¶83-84; Pl. Resp. ¶¶83-84; DE

47-30 at 3.) This evidence suggests that CMMC took Wong’s medical

complaints seriously and took reasonable steps to ascertain whether, from a

medical standpoint, she had recovered and was capable of returning to work.

Moreover, there is every indication that CMMC gave due consideration to

the Vukic/Wong request for leave, despite its indefiniteness. Dr. Smighelschi,

Dr. Weisberg, and Dr. Robinton had already separately concluded that Wong

was able to work without restrictions. Nevertheless, CMMC did not dismiss the

Vukic/Wong request for leave outright. Instead, CMMC sent Wong back to

Corporate Care for a fifth evaluation. (Def. St. ¶106; Pl. Resp. ¶106.) Following

that evaluation, on April 24, 2018, Dr. Weisberg again cleared Wong to return

to work without restrictions. (Def. St. ¶107; Pl. Resp. ¶107.)

Wong contends that, during that April 24 evaluation, Dr. Weisberg was

dismissive of her symptoms. Her account, if credited, suggests that Weisberg

was brusque, impatient, or even rude, but does not undermine his medical

conclusions. Weisberg’s conclusion that Wong was able to work without

restrictions was in line with those of Dr. Robinton, a specialist in neurology,

and Dr. Smighelschi. These three doctors based their conclusions on physical

examinations, multiple CT scans, an X-Ray, and two MRIs of Wong’s head and

cervical spine.3 Considering the extent of medical evaluation that Wong

received at Corporate Care and the unanimous conclusion of the three doctors

authorized to treat her that she was medically capable of working, it was not

unreasonable for CMMC to act on that basis. Particularly given this medical

evidence, a rational jury could not plausibly interpret the Vukic/Wong letter as

a request for a reasonable accommodation of a disability so that Wong could

3 Although she did not believe MRIs were called for, Dr. Smighelschi acceded to

Wong’s requests and ordered MRIs of her brain and cervical spine. (Def. St. ¶¶83-84;

Pl. Resp. ¶¶83-84.) These showed nothing remarkable.

return to work.

Wong’s interactive-process claim fails on similar grounds. Pursuant to

the NJLAD, “[m]aking a reasonable accommodation for a disabled employee

requires an ‘interactive process’ in which ‘both [the] employer and employee

bear responsibility for communicating with one another to identify the precise

limitations resulting from the disability and potential reasonable

accommodation that could overcome those limitations.’” Sheldon, 2021 WL

1115986, at *5 (quoting Jones v. Aluminum Shapes, Inc., 339 N.J. Super. 412,

422 (App. Div. 2001)). In order to show that an employer failed to participate in

the interactive process, the plaintiff must demonstrate that (1) the employer

knew of her disability, (2) the plaintiff requested an accommodation or

assistance, (3) the employer did not make a good faith effort to assist her in

seeking an accommodation, and (4) the plaintiff could have been reasonably

accommodated but for the employer’s lack of good faith. Sheldon, supra (citing

Jones, supra at 423). All four factors are required, and Wong fails to establish

at least three of them.

First, while CMMC conceded and accommodated a temporary period of

disability, it did not “know” of any ongoing disability after the initial grant of

temporary leave. Indeed, CMMC was on solid ground in believing the contrary,

i.e., that Wong had no such disability. Even now, the record before the Court is

one-sided: On one side are three medical opinions, supported by repeated

consultations and appropriate medical testing; on the other, Dr. Vukic’s

conclusory note without supporting medical data. Even now, there is no clear

statement of what job-related functions Wong is or was unable to perform. The

duty to engage in an interactive process is not triggered unless it is established

that there is some condition that requires accommodation. See Bosshard v.

Hackensack Univ. Med. Ctr., 345 N.J. Super. 78, 91, 783 A.2d 731, 739 (App.

Div. 2001) (“Summary judgment was properly granted in this case because the

overwhelming evidence was that despite plaintiff's hearing impairment and

desire for a special stethoscope, the defendants were completely satisfied that

the impairment did not affect her ability to perform her job.”) Once Wong had

been cleared for work without restrictions, interactive discussions about

whether there were reasonable alternatives to indefinite leave became moot.

Second, as discussed above, Wong’s request for indefinite leave might—

barely—be seen as opening the door to a request for an accommodation,

although indefinite leave cannot be seen as a “reasonable” accommodation. The

record does not reveal any other proposed accommodation; the most obvious

alternative, temporary leave, was not advanced by Wong. See p. 17 n.2, supra.

In any event, the employer had found, with good support, that there was no

ongoing disability.

Third, the record shows that CMMC responded in good faith to the

Vukic/Wong request by instructing that she again return to Corporate Care for

evaluation, despite the well supported opinions of multiple doctors that she

was medically able to work. In that context, a generalized allegation that Dr.

Weisberg took a “dismissive” attitude on April 24th is not sufficient to permit a

rational jury to find that CMMC did not make a good faith effort to analyze

Wong’s condition or respond to her request for an accommodation.

And fourth, as noted, Wong herself does not proffer any good reason to

believe that any alternative to indefinite leave, such as temporary leave, would

have sufficed. She denies that Vukic’s letter was a request for indefinite leave,

but she testified three years later, in July 2021, that she was still unable to

return to work as a nurse.

The claims related to failure-to-accommodate, asserted in Counts 2 and

3, must therefore be rejected. Turning back to Wong’s claims related to

discriminatory discharge, asserted in Counts 1 and 4, I find for similar reasons

that she has failed to show that she was able to perform her job or was

prevented from doing so by lack of a reasonable accommodation.

I therefore grant summary judgment to the defendants on Wong’s claims

of discriminatory discharge, Counts 1 and 4, and of failure to accommodate

and engage in the interactive process, Counts 2 and 3.

C. NJLAD retaliation

In Counts 4 and 5 of the complaint, Wong alleges that she was retaliated

against for complaining about race discrimination and for requesting a

reasonable accommodation. The NJLAD makes it unlawful “[f]or any person to

take reprisals against any person because that person has opposed any

practices or acts forbidden under” the NJLAD. N.J. Stat. Ann. § 10:5-12(d).

The McDonnell Douglas framework applies to claims for retaliation under

the NJLAD. That is, the plaintiff must present a prima facie case; the employer

may respond by demonstrating a reasonable, nondiscriminatory basis for the

termination; and the plaintiff may then attempt to rebut that basis as a mere

pretext. See Part IV.A, supra.

1. McDonnell Douglas step one: Prima facie case

To establish a prima facie case, Wong must demonstrate: “(1) that she

engaged in protected activity; (2) the activity was known to the employer; (3)

[Wong] suffered an adverse employment decision; and (4) there existed a causal

link between the protected activity and the adverse employment action. Young

v. Hobart W. Grp., 385 N.J. Super. 448, 465, (App. Div. 2005) (citing Craig v.

Suburban Cablevision, 140 N.J. 623, 629–30 (1995)). “Pursuant to N.J.S.A.

10:5–12d, a person engages in protected activity under the LAD when that

person opposes any practice rendered unlawful under the LAD.” Young, supra

at 466.

Defendants do not dispute that a complaint about race discrimination or

a request for accommodation would constitute protected activity under the

NJLAD. (Mot. 18, 20.) Defendants argue, however, that no causal link exists

between either of these protected activities and Wong’s termination. “Cases in

which the required causal link has been at issue have often focused on the

temporal proximity between the employee's protected activity and the adverse

employment action, because this is an obvious method by which a plaintiff can

proffer circumstantial evidence ‘sufficient to raise the inference that her

protected activity was the likely reason for the adverse action.’” Kachmar v.

SunGard Data Sys., Inc., 109 F.3d 173, 177 (3d Cir. 1997) (quoting Zanders v.

National R.R. Passenger Corp., 898 F.2d 1127, 1135 (6th Cir. 1990)). “[W]here

there is a lack of temporal proximity, circumstantial evidence of a ‘pattern of

antagonism’ following the protected conduct can also give rise to the inference.”

Kachmar, supra (quoting Robinson v. Southeastern Pa. Transp. Auth., 982 F.2d

892, 895 (3d Cir. 1993)).

I focus initially on Wong’s claim of retaliation for her complaints about

racist comments. Wong argues that the record reveals a pattern of antagonism

by defendants following her complaints. (Opp. 8-10.) Wong testified that in July

2016, she complained to her then-supervisor, Rose Giachetti, about nurse

Inu’s allegedly racist comments. (Wong Dep. 616:14-617:17.) Seven months

later, in February 2017, Wong received a disciplinary writeup, the first one she

had ever received in her fourteen years of employment as an RN at CMMC.

(Wong Dep. 74:2-19.) This consisted, however, of no more than a “verbal

warning” for failing to ensure that a patient was seen by a primary doctor. (Id.

74:20-76:23.)

In her post-discovery certification, Wong stated for the first time that she

had also complained about race discrimination to Heather Reginio, another

supervisor, in December 2017. (Wong Cert. ¶27.) Two months later, in

February 2018, Wong received her second-ever disciplinary writeup. According

to the disciplinary notice, Wong failed to infuse IV fluids for over 1 hour and

failed to take vital signs every 15 minutes during a “Code Green,” which

indicates sepsis. She also failed to notify her nurse manager of the Code Green.

(Def. St. ¶39; Pl. Resp. ¶39; DE 54-3 at 45.)4

4 In addition to these disciplinary writeups, Wong was suspended from her

position in March 2017 because her ACLS certification had lapsed. (Def. St. ¶36; Pl.

Resp. ¶36.) The record reveals that Heather Reginio was the person who wrote up

Wong’s disciplinary form in this instance. (DE 54-3 at 43.) There is no evidence that

this disciplinary action was retaliatory, however, because Wong claims that she did

not complain to Reginio about race discrimination until December 2017—nine months

later. Wong was reinstated to her position once she took the required course to

maintain her ACLS certification. (Wong Dep. 69:19-21.)

There is no evidence in the record that the disciplinary writeups Wong

received were invalid or based on false information, undercutting any inference

that they were retaliatory. Of course, it is possible that even if valid, they were

motivated by a desire to retaliate against Wong for complaining about race

discrimination. But this conclusion is not particularly plausible. Receiving a

deserved verbal warning on a valid basis would not tend to intimidate a

reasonable employee from complaining about racism. And in any event a mere

verbal warning would not rise to the level of retaliation. Thomas v. Indep. Twp.,

463 F.3d 285, 296 (3d Cir. 2006) (retaliatory action must be “sufficient to deter

a person of ordinary firmness from exercising his constitutional rights”);

Starnes v. Butler Cnty. Ct. of Common Pleas, 971 F.3d 416, 429 (3d Cir. 2020)

(same); Joyce v. City of Sea Isle City, No. CIV. 04-5345RBK, 2008 WL 906266,

at *19 (D.N.J. Mar. 31, 2008) (“ordinary firmness” standard applies to NJLAD

retaliation claim). With particular reference to Wong’s complaint to Giachetti,

the alleged retaliation did not occur until seven months after the event. That

lapse in time between the complaint and the alleged retaliation, absent further

evidence, undercuts any inference that the two were causally connected.

In her post-discovery certification, however, Wong also recalled that she

complained to Onque (with Rivera potentially present) about Dr. Weisberg’s

allegedly racist comments. She made that complaint on April 24, 2018, the day

before she was terminated. (Wong Cert. ¶¶28, 34.)5

Before discussing the substance, I deal with the defendants’ threshold

5 Wong also states that she reported her concerns about race discrimination to

Kim Byrne, Director of Critical Care; Ronnie Castro, Director of Cardiac Services and

Primary Stroke Program; Dr. Mazzarella, Chief Medical Officer; and Sally Zuza in HR.

But there is no evidence that these individuals ever disciplined Wong, nor is there any

evidence that Byrne, Mazzarella, or Castro were involved in the decision to terminate

Wong. As for Zuza, Wong allegedly complained to her about nurse Inu’s comments,

which were made while Wong’s father was in the hospital in July 2016. (Wong Cert.

¶48.) While the record does not indicate when Wong complained to Zuza, the

implication is that she did so around that time, which was nearly two years before she

was terminated.

argument that Wong’s belated certification constitutes a “sham affidavit” and

should therefore be disregarded. (Reply 1.) They point out that Wong was

extensively questioned during her deposition about any reports she made of

discrimination. Despite this extensive testimony, it was not until her

certification in opposition to summary judgment that Wong recalled having

complained to Onque.

Under the sham affidavit doctrine, “‘a party may not create a material

issue of fact to defeat summary judgment by filing an affidavit disputing his or

her own sworn testimony without demonstrating a plausible explanation for

the conflict.’” Jiminez v. All American Rathskeller, Inc., 503 F.3d 247, 251

(2007) (quoting Baer v. Chase, 392 F.3d 609, 624 (3d Cir. 2004)). Underlying

the doctrine is the recognition that the “‘deposition of a witness will usually be

more reliable than his affidavit.’” Jimenez, supra (quoting Perma Research &

Development Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir. 1969)). Depositions

are adversarial in nature and provide the opportunity for cross-examination.

Affidavits, on the other hand, are typically drafted by counsel and often consist

of “‘efforts to patch up a party’s deposition with his own subsequent affidavit.’”

Jimenez, supra (quoting Russell v. Acme-Evans Co., 51 F.3d 64, 67-68 (7th Cir.

1995)).

“To be covered by the sham affidavit doctrine, the affidavit testimony

must actually contradict previous deposition testimony, not merely differ from it

or be in tension with it.” Ramirez v. Lora, No. CV1811230KMMAH, 2022 WL

1539176, at *8 (D.N.J. May 16, 2022) (citing SodexoMAGIC, LLC v. Drexel Univ.,

24 F.4th 183, 210 (3d Cir. 2022) (“the sham affidavit rule permits striking only

contradictory statements in later-provided affidavits or declarations”)). In this

instance, while Wong’s certification certainly differs from her deposition

testimony, the two are not directly contradictory. Wong did not testify, for

instance, that she never reported her concerns about discrimination to Onque

and Rivera.

It would have been natural for Wong to mention these reports during her

deposition. Her failure to do so may arouse suspicion and provide fodder for

cross-examination. Exclusion of the affidavit, however, is strong medicine,

usually reserved for cases of unexplained outright contradiction.

The close temporal proximity between the complaint and Wong’s

termination one day later, unless explained, could support an inference of

causality. With the certification as part of the record, I will assume that Wong

is able to establish a prima facie case of wrongful termination in retaliation for

having complained about Dr. Weisberg’s alleged racist comments the day

before.

2. McDonnell Douglas step two: Employer’s

nondiscriminatory basis for termination

In response to this prima facie case, the defendants have offered a

legitimate, non-retaliatory reason for Wong’s termination: her unexcused

absence after she had repeatedly been medically cleared to work.

As Wong presents the facts, she complained about Dr. Weisberg’s racial

comments on April 24 and was dismissed in retaliation for that complaint on

the following day, April 25. The undisputed facts, however, demonstrate that

her account, even if wholly credited, is misleadingly incomplete. (The facts are

related in more detail at pp. 3–8, supra.)

On March 9, 2018, Dr. Robinton found Wong’s complaints of symptoms

to be disproportionate to the injuries, but authorized one week’s leave until

March 16. Dr. Smighelschi confirmed that return date and ordered MRIs of the

brain and cervical spine, but found nothing of particular concern. Wong

nevertheless did not report for work on March 17 or thereafter. On March 20,

she was examined by Dr. Weisberg, who agreed with Dr. Robinton and Dr.

Smigelschi that Wong was fit to return to work full duty.

Again, Wong did not report to work at all. On April 11, Onque advised

her by letter that she had been on unapproved leave since March 17, that it

was assumed she had separated from her position, and that if the employer did

not hear from her by April 18, she would be terminated. It was shortly

thereafter that she presented the Vukic note, requesting leave for an indefinite

period of time.

That is the background for yet another medical reevaluation on April 24

by Dr. Weisberg, who again cleared Wong to return to work, and her meeting

with Onque the same day, in which she was told that if she did not return to

work the following day, April 25, she would be terminated. She did not report

for work on April 25, and was dismissed.

I find that CMMC presented ample evidence of a non-discriminatory

basis for the termination: specifically, that Wong had refused to return to work

despite being repeatedly medically cleared to do so.6

3. McDonnell Douglas step three: Employee’s showing of

pretext

The burden then shifts to Wong to show that the proffered basis for her

termination (absence without leave) was a pretext for the actual reason

(retaliation for complaining about racial comments by Dr. Weisberg on April

24). See Young, 385 N.J. Super. at 465 (explaining that once plaintiff

establishes a prima facie case of retaliation, the burden shifts to defendants to

articulate a legitimate reason for the decision, after which the plaintiff must

demonstrate that the legitimate reason was merely a pretext for the underlying

6 There was nevertheless yet another follow up visit to Dr. Robinton on May 1,

2018. Def. St. ¶¶110-11; Pl. Resp. ¶¶110-11.) Dr. Robinton, who is not alleged to have

made any racial comments, found as follows:

On examination today [Wong] scored 38/38 on a formal mental

status exam. Cranial nerve testing revealed no abnormalities. On motor

testing, there was normal bulk and tone. Power was 5 out of 5. Sensory

exam was intact. Cerebellar testing was normal. Galt testing revealed

narrow base with equal armswing. Reflexes were symmetric. Toes were

downgoing.

(Def. St. ¶113; Pl. Resp. ¶113.) Dr. Robinton concluded as follows:

Based on today’s examination and the nature of the injury, I

continue to believe that from a neurologic perspective, she has reached

maximum medical improvement and is able to work full duties in her

usual occupation without restriction. Neurologic follow up is not

required.

(Def. St. ¶112; Pl. Resp. ¶112.)

retaliatory motive).

A plaintiff may show pretext and defeat a summary judgment motion “by

either (i) discrediting the proffered reasons, either circumstantially or directly,

or (ii) adducing evidence, whether circumstantial or direct, that discrimination

was more likely than not a motivating or determinative cause of the adverse

employment action.” Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994). The

plaintiff “must demonstrate such weaknesses, implausibilities, inconsistencies,

incoherencies, or contradictions in the employer's proffered legitimate reasons

for its action that a reasonable factfinder could rationally find them unworthy

of credence and hence infer that the employer did not act for the asserted non-

discriminatory reasons.” Id. (Quotations omitted.)

Wong’s evidence of pretext does not come close to rebutting the evidence

that CMMC had a legitimate basis for termination. I do not repeat the evidence,

cited above, that CMMC’s analysis of the medical facts was conscientious and

well supported by exhaustive medical consultations and objective medical

evidence. Wong offers little in response beyond a bare, conclusory diagnosis in

Dr. Vukic’s letter, which neither cited supporting medical evidence nor

prescribed any course of treatment beyond cognitive testing. Wong argues,

however, that pretext is apparent from the fact that the doctors at Corporate

Care disregarded Dr. Vukic’s letter stating that Wong was unable to work,

despite the letter’s invitation to contact Vukic if they had “any questions or

concerns.” (Opp. at 11; DE 47-37.) According to Wong, this evidences the

defendants’ desire to manufacture an alternative reason to terminate Wong.

The record shows that Onque sent Dr. Vukic’s note to Chief Human

Resources Officer Alfred Torres, who forwarded it to Caryl Russo, the head of

Corporate Care.7 (DE 47-39.) To properly analyze the significance of Corporate

Care’s failure to contact Dr. Vukic, it helps review the roles of Corporate Care

7 Wong also states in her opposition brief that Human Resources failed to send

Dr. Vukic’s letter to Corporate Care, but both the record and Wong’s own responsive

statement of material facts belie this assertion. (Def. St. ¶101; Pl. Resp. ¶101.).

and HR in dealing with an employee who has a workers’-compensation-covered

injury.

Chief HR Officer Torres testified that “HR doesn’t clear an employee from

a medical injury”; rather, the physicians at Corporate Care are solely

responsible for determining whether an employee is medically capable of

working. (DE 49-6 at 38:1-8.) If Corporate Care clears an employee to return to

work, it is generally mandatory for that employee to return. (Id. at 38:9-11.) If

that employee nevertheless does not return, the employee will be terminated by

HR. (Id. at 38:13-15.)

Torres also testified that the actual decision to terminate an employee is

made by him in consultation with his team in HR and “[n]obody else.” (DE 49-6

at 44:24-45:13.) In the case of Wong’s termination, Torres testified without

contradiction that he made the decision with Onque and Rivera. (Id. 45:14-25.)

In short, then, the doctors at Corporate Care evaluate the employee’s medical

condition and ability to work, and HR makes the resulting personnel decisions,

e.g., whether to terminate.

The following excerpt from Torres’s deposition suggests that Corporate

Care (as opposed to HR) had a practice of considering the opinion of the

employee’s personal physician in evaluating the employee’s fitness to work:

Q: Now, what would happen in a situation where Corporate Care

states the employee is cleared to return to work, but the

employee’s own treating physician disagrees and states that

employee is not cleared to return to work?

A: Since HR doesn’t do any clinical evaluations, we would send it

back to the Corporate Care leadership team to follow up with their

normal procedures of following up with the employee’s physician

and whatever other experts are working with them.

Q: So you would have Corporate Care then interact with the

employee’s treating doctor and then Corporate Care after

consulting with the treating doctor would make a final

determination whether this employee could return to work or not,

correct?

A: That is correct.

Q: And then it would be based on Corporate Care’s final

determination after consulting with that employee’s personal

doctor that would then govern whether or not, number one, you

would mandate that employee to return to work, number two, if

that employee didn’t return to work, then terminate the employee,

correct?

A: Yes. Corporate Care would have the final determination after

they completed the medical evaluation whether the employee was

cleared to return to work or not.

(DE 49-6 at 38:16-39:25.)

Now a rational jury hearing Torres’s testimony could conclude that the

Corporate Care doctors might have been well advised to contact Dr. Vukic in

order to explore the basis for his opinion. Nevertheless, their failure to do so is

not a sufficient basis for a jury to find that HR’s stated basis for terminating

Wong was pretextual. As noted, the supporting medical evidence was very

substantial. Even now, Wong asserts no more than a sterile claim of failure-to-

consult; she does not offer actual medical evidence that would reasonably have

refuted, or even swayed, the opinions of the Corporate Care doctors. And

Torres’s testimony reveals that where an employee is medically cleared to

return to work but does not do so, the decision to terminate the employee for

job abandonment is virtually automatic. (DE 49-6 at 46:13-47:2.) That the

medical evidence could have been more complete does not undermine the

conclusion that the basis for HR’s decision was substantial and not pretextual.

Wong’s claim that she was retaliated against for requesting an

accommodation fails for the same reason. As noted above, a request for

indefinite leave is not a request for a reasonable accommodation. And even if

Wong could make out a prima facie case of retaliation for requesting leave, the

record would not support a conclusion that the defendants’ termination of

Wong based on her continued absence was pretextual. Denial of a request for

accommodation is not “retaliation” for making the request, provided the denial

was for a legitimate reason.

I will therefore grant summary judgment to the defendants on the NJLAD

retaliation claims asserted in Counts 4 and 5.

D. Workers’ compensation retaliation

In a similar vein to the NJLAD, the New Jersey workers’ compensation

statute prohibits an employer from discharging an employee because that

employee filed a workers’ compensation claim. N.J. Stat. Ann. § 34:15-39.1. To

make out a prima facie case of retaliatory discharge under the statute, Wong

must prove: (1) that she made or attempted to make a claim for workers’

compensation; and (2) that she was discharged in retaliation for making that

claim. Cerracchio v. Alden Leeds, Inc., 223 N.J. Super. 435, 442–43 (App. Div.

1988).

The day after she was injured, Wong filled out an incident report

notifying CMMC of her workplace injury. (Def. St. ¶¶41-42; Pl. Resp. ¶¶41-42.)

CMMC thereafter notified its workers’ compensation insurance carrier of the

incident. Although Wong did not file a formal petition for workers’

compensation benefits until after she was terminated, her earlier action “set

into motion the filing of a workers’ compensation claim.” Cerracchio, 223 N.J.

at 443. Her action thus constitutes an attempt to make a claim for benefits

within the meaning of the workers’ compensation statute. Id.

Nonetheless, there is insufficient evidence from which a jury could

conclude that Wong was discharged in retaliation for exercising her rights

under the workers’ compensation statute. Wong initiated her claim on

February 19, 2018, but was not terminated until April 25. Between those two

dates, Wong was repeatedly cleared to return to work, encouraged to do so, and

warned that her continued absence would result in termination. There is no

evidence that the defendants even contemplated terminating her until April 5,

2018, when Rivera directed Onque to send Wong a letter regarding her

unauthorized leave of absence. (Pl. St. ¶49; Def. Resp. ¶49.) At that point, she

had missed ten scheduled shifts in a row. (DE 47-28 at 2.)

Wong argues that the defendants’ retaliatory animus can be gleaned from

the fact that the Corporate Care doctors (Weisberg in particular) were

dismissive of her symptoms. (Opp. 17-18.) As discussed above, there is no

evidence that any of the Corporate Care doctors participated in the decision to

terminate Wong. Thus, even assuming the truth of Wong’s contention that a

doctor or doctors took a dismissive attitude, that would not be sufficient to

demonstrate that Wong was terminated for setting in motion, if not actually

filing, a workers’ compensation claim. I will therefore grant summary judgment

to the defendants on Wong’s workers’ compensation retaliation claim, asserted

in Count 6.8

E. FMLA interference

The FMLA entitles employees to take job-protected leave for medical

reasons or to care for family members with serious health conditions. 29 U.S.C.

§ 2601(b). Pursuant to the FMLA, an eligible employee is entitled to a total of

12 workweeks of unpaid leave during any 12-month period. 29 U.S.C.

§ 2612(a)(1), (c). On return from such leave, the employee is entitled “to be

restored by the employer to the position of employment held when the leave

commenced,” or “to be restored to an equivalent position with equivalent

employment benefits, pay, and other terms and conditions of employment.” 29

U.S.C. § 2614(a)(1). It is unlawful “for any employer to interfere with, restrain,

or deny the exercise of or attempt to exercise” any rights provided under the

statute. 29 U.S.C. § 2615(a)(1).

8 Wong also points to a letter she received from Kelly Yeager, a claims

representative for PMA Companies, CMMC’s workers’ compensation carrier. That

letter, dated March 29, 2018, states that MRIs were ordered per Wong’s request and

that Dr. Weisberg reviewed the findings with Wong and discharged her on March 20,

2018. (DE 54-4 at 26.) As a result, the letter states that no further treatment was

authorized on Wong’s claim at the time. It concludes by directing Wong to contact her

attorney with any questions or concerns.

Wong argues that Yeager’s directive to contact a lawyer was inappropriate and

evidences the defendants’ retaliatory animus towards Wong. (Opp. 18.) It is far from

clear that the letter was inappropriate by any means, but more importantly, Yeager is

not an employee of CMMC or RWJBH, and there is no evidence that Yeager played any

role in Wong’s termination. Accordingly, Yeager’s letter does not support Wong’s

workers’ compensation retaliation claim.

Count 7 of the complaint asserts that the defendants unlawfully

interfered with the protections afforded to Wong under the FMLA. To prevail on

an FMLA interference claim, a plaintiff must show that she was entitled to

benefits under the FMLA and that her employer denied them. Lichtenstein v.

Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 312 (3d Cir. 2012).

Wong claims that the defendants interfered with her FMLA rights by

inaccurately stating that she was ineligible for FMLA leave following her

February 2018 injury. In addition to speaking with Onque and Rivera about

her desire to take FMLA leave, Wong spoke to Sally Zuza in HR. Zuza told her

that the hospital has a policy that prohibits employees from taking more than

12 weeks of FMLA leave in any two-year period. (Zuza Dep. 39:6-40:21.) Zuza

stated that, because Wong had already taken leave to care for her mother

between February and May 2016, she was ineligible for job-protected leave

after her February 2018 injury. (Wong Dep. 72:10-21.)

Wong notes that under the New Jersey Family Leave Act (“NJFLA”), an

employee is only entitled to 12 weeks of leave during a 24-month period, but

under the FMLA, an employee may take up to 12 weeks per year. According to

Wong, the defendants misled her in advising her of rights under the NJFLA

rather than the FMLA. (Opp. 25-26.)

It is important to keep in mind that leave, whether under the FMLA or

the NJFLA, is unpaid leave. The defendants argue that Wong’s claim fails

because she cannot show that she suffered any harm from being misled. The

defendants point out that, according to her own testimony, Wong has not

sought to return and is still unable to work as an RN. (DE 49-5 at 353:21-24.)

Dr. Vukic also concluded that Wong was unable to return to work when he last

examined her in August 2019. (Def. St. ¶¶156-57; Pl. Resp. ¶¶156-57.)

According to the defendants, because Wong would not have returned to her

position following exhaustion of 12 weeks of FMLA leave, she was not harmed

by any alleged interference with her FMLA rights. (Mot. 32-33.)

Here, we are in a looking-glass war, in which each side may accuse the

other of inconsistency. Defendants, after all, maintain that they terminated

Wong for refusing to work when she was medically cleared to do so. For FMLA

purposes, however, they assume arguendo Wong’s position that she would not

have been able to return to work, even at the conclusion of 12 weeks of leave.

I will return to the inconsistency issue in a moment. For now, I observe

that the views of Wong and Dr. Vukic regarding Wong’s ability to work were

assuredly at odds with the views of the Corporate Care physicians. The record

demonstrates conclusively, however, that in deciding whether to report to work,

Wong was guided by the former and not the latter. In the context of this FMLA

issue, we must consider whether there is any evidence that Wong would have

resumed her duties, or felt herself able to do so, after the hypothetical 12

weeks of FMLA leave had expired (presumably around June 2018). It is clear

that she would not; her doctor, Vukic, said so in August 2019, and even three

years after the event, in July 2021, she testified that she was still unable to

work as a nurse.

“The failure to restore an employee to her position at the conclusion of

her leave does not violate the FMLA if the employee remains unable to perform

an ‘essential function’ of the position.” Budhun v. Reading Hosp. & Med. Ctr.,

765 F.3d 245, 254 (3d Cir. 2014) (citing 29 C.F.R. § 825.216(c)). In addition,

“[t]he FMLA does not require an employer to provide a reasonable

accommodation to an employee to facilitate his return to the same or

equivalent position at the conclusion of his medical leave.” Rinehimer v.

Cemcolift, Inc., 292 F.3d 375, 384 (3d Cir. 2002). Consequently, had the

defendants permitted Wong to take FMLA leave and then terminated her at the

conclusion of such leave because she declared herself still unable to work,

Wong would have no claim for FMLA interference.

The issue here, however, is whether the defendants violated the FMLA by

interfering with Wong’s ability to take leave in the first instance. If the

defendants had refused Wong’s request to take FMLA leave but did not

terminate her, she could endeavor to show that she was harmed by having to

work when she was medically incapable of doing so. Less clear is whether

Wong can show that she was harmed by defendants’ interference with her right

to take leave where she was terminated—and thus did not work while medically

incapable of doing so—and further where, by her own account, she would have

remained incapable of returning to her position at the conclusion of the 12-

week period.

“[T]he FMLA does not provide leave for leave's sake, but instead provides

leave with an expectation an employee will return to work after the leave ends.”

Throneberry v. McGehee Desha Cnty. Hosp., 403 F.3d 972, 978 (8th Cir. 2005).

Unpaid leave is not a benefit as such; the gist of the benefit is the right to take

such leave with the assurance that one’s job is protected upon her return.

Here, then, Wong has no claim that she was harmed merely by being denied

the right to take FMLA leave. Instead, her claim must be that she was harmed

by being denied the right to take FMLA leave and subsequently return to her

job. Given that Wong herself claims that she could not have returned to her RN

position after the statutory leave period had expired, it is difficult to see how

Wong was harmed by the defendants’ interference with her FMLA rights.

I return to the inconsistency issue. Does it matter that, at the time Wong

was terminated, the defendants did not believe her claim that she was

medically unable to return to work? Although I am not aware of any controlling

authority on point, persuasive authority leads me to conclude that it does not

matter.

Edgar v. JAC Prod., Inc., 443 F.3d 501 (6th Cir. 2006), is not precisely on

point, but its approach is suggestive. There, the plaintiff was terminated from

her position after she was absent from work for several weeks because of a

medical condition. Id. 503-05. Although the plaintiff had requested FMLA leave,

her leave of absence was considered unauthorized because she failed to timely

submit the required medical documentation. Id. Several days after her

termination, in October 2002, the plaintiff’s doctor evaluated her and initially

projected her return to work after three months, but ultimately did not clear

her to work at full capacity until some 15 months after the expiration of the 12-

week FMLA leave period. Id.

The Sixth Circuit held that the plaintiff had no claim for FMLA

interference on these facts. Id. at 514. The Court explained that whether an

employee is denied an FMLA benefit to which she is entitled is an objective

inquiry. Id. at 511. In contrast to a retaliation claim, the employer’s motives are

not at issue in an interference claim. Thus it is irrelevant whether the employer

knew at the time of termination that the employee could not return to work by

the end of the 12-week period; the fact, as it turned out, is that she could or

would not. Id.9 The Court reasoned that the FMLA “is concerned not with how a

serious physical or medical ailment occurred, but with whether that ailment

precluded the employee from performing an essential function of his or her job

at the end of the leave period.” Id. at 516. Indeed, it does not even matter

whether the condition that prevents the employee from returning to work “is

the same one that forced the employee to take a medical leave in the first

place.” Id. What matters is the bare fact that the employee was not returning at

the end of the leave period.

I am persuaded by the Sixth Circuit’s straightforward approach in Edgar.

By her own account, Wong was not at work, and was not being paid, for 12

weeks (and long thereafter), just as she would have been if leave had been

granted. By her own account, Wong was unavailable to work, for whatever

reason, at the conclusion of the 12-week leave period. The FMLA guarantee

that her job would be waiting is thus irrelevant; there is no evidence in the

record that she would have returned to her position at that time. Accordingly, I

conclude that Wong possesses no claim for FMLA interference. Summary

judgment is granted to the defendants on Count 7.

F. Common law claims

Counts 8 and 9 of the complaint assert claims under New Jersey

9 For similar reasons, the Sixth Circuit also rejected an argument that Wong

advances here: that the termination “exacerbated” plaintiff’s condition and thus

prevented her from being able to return to work following the statutory leave period.

Id. at 517.

common law for breach of contract and breach of the implied covenant of good

faith and fair dealing. Wong cannot succeed on these claims because there is

no contract between herself and CMMC.

It is undisputed that there is no employment agreement as such. The

parties dispute, however, whether the CMMC employee handbook created a

binding contract. The New Jersey Supreme Court has held that “absent a clear

and prominent disclaimer, an implied promise contained in an employment

manual . . . may be enforceable against an employer. See Woolley v. Hoffmann-

La Roche, Inc., 99 N.J. 284, 285–86 (1985) (emphasis added). A disclaimer is

effective if it is sufficiently prominent to attract the reader’s attention and if it is

“expressed in clear, straightforward terms, and not ‘confusing legalese.’”

Zawadowicz v. CVS. Corp., 99 F. Supp. 2d 518, 535 (D.N.J. 2000) (quoting

Nicosia v. Wakefern Food Corp., 136 N.J. 401, 560 (1994)). “[W]hen the facts

surrounding the content and placement of a disclaimer are themselves clear

and uncontroverted . . . the effectiveness of a disclaimer can be resolved by the

court as a question of law.” Nicosia, supra at 416.

A contract is created by mutual assent. CMMC’s employee handbook

contains a section on “The Employment Relationship,” which expressly

disclaims contractual status:

The information in this Handbook is intended to serve only as a

guide or summary digest of Barnabas Health policies, rules,

regulations, benefit plans, and programs. Nothing contained in this

Handbook or in any policy, rule or regulation of the Company shall

constitute a contract of employment, nor constitute an inducement

for employment. No promise of any kind by the Company is made in

this Handbook.

(DE 61-13 (italics in original).)

On December 31, 2003, Wong signed a paper titled, “Receipt of Employee

Handbook,” which contains two paragraphs of text. (DE 47-48.) In addition to

explaining that Wong is an at-will employee, the text provides:

I understand that the Employee Handbook which I have received

constitutes management guidelines only and is not to be

interpreted as a contract between me and Clara Maass Medical

Center. Moreover, Clara Maass Medical Center reserves the right to

modify or delete any of its policies without notice, at any time,

whether or not in existence at the time of my initial employment.

I understand that neither this Handbook nor any other

communications by a management representative, manual, policy,

practice or procedure is intended to create a contract of

employment, express or implied.

(Id.)

I conclude that the section of the CMMC employee handbook cited above,

in conjunction with the signed receipt of handbook form, clearly and effectively

disclaimed any contractual rights arising from the handbook. Wong therefore

has no claim for breach of contract based on the employee handbook. Nor does

she have any claim for breach of the implied duty of good faith and fair dealing,

which is dependent on the existence of a contract. See Nolan v. Control Data

Corp., 243 N.J. Super. 420, 429 (App. Div. 1990) (“In the absence of a contract,

there is no implied covenant of good faith and fair dealing.”).

Summary judgment is therefore granted to the defendants on Counts 8

and 9 of the complaint.

V. Conclusion

For the reasons set forth above, the defendants’ motion for summary

judgment is GRANTED in its entirety and all claims asserted by Wong in this

action are dismissed. Given this outcome, I need not address the arguments

raised in points seven, eight, and nine of the defendants’ moving brief, which

seek dismissal of Wong’s claims against RWJBH on the ground that she was

not employed by that defendant, as well as dismissal of her claims for lost

wages and punitive damages. An appropriate order accompanies this opinion.

Dated: September 7, 2023

/s/ Kevin McNulty

____________________________________

Kevin McNulty

United States District Judge