BER-L-008657-16 10/28/2019 1:17:33 PM Pg 1 of 11 Trans ID: LCV20191971887

REBECCA MCCARTHY,

SUPERIOR COURT OF NEW JERSEY
LAW DIVISION
BERGEN COUNTY

Plaintiff,
v.

DOCKET NO.: L-8657-16

CAREONE MANAGEMENT, LLC AND
ALISON FITZPATRICK-DURSKI,

CIVIL ACTION

Defendants.

BRIEF IN SUPPORT OF DEFENDANTS’ MOTION FOR INVOLUNTARY DISMISSAL
OF PLAINTIFF’S DEMAND FOR PUNITIVE DAMAGES

FISHER & PHILLIPS LLP
430 Mountain Avenue, Suite 303
Murray Hill, NJ 07974
Christopher J. Capone, Esquire (Atty No. 36692005)

Attorneys for Defendants Care One Management, LLC
and Alison Fitzpatrick-Durski

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Defendants, Care One Management, LLC (“Care One”), and Alison Fitzpatrick-Durski
(“Ms. Fitzpatrick-Durski”) (collectively, the “Defendants”), by and through their undersigned
counsel, submit the instant Motion for Involuntary Dismissal of Plaintiff’s Demand for Punitive
Damages.
STATEMENT OF UNDISPUTED FACTS
Plaintiff’s entire race discrimination claim is premised upon being terminated from her
position the day after, Ms. Fitzpatrick-Durski, allegedly said to Plaintiff that she “did not want
a black person walking around in a suit as a Vice President.”
Plaintiff admitted at trial, among other things:


Ms. Fitzpatrick-Durski made no other comments, nor engaged in any other
conduct, which Plaintiff considered to be racially motivated, derogatory or
offensive.



No other employee of Care One made any type of comment, nor engaged in any
form of conduct, which Plaintiff considered to be racially motivated, derogatory
or offensive.



Plaintiff did not believe Care One was a company which discriminated against
employees and Plaintiff would not have re-applied for a position with Care One
in 2016 (having previously worked for the Company from 2007-2009) if that
were the case.



As the Vice President of Clinical Leadership, Plaintiff was the person ultimately
responsible for addressing and correcting any Clinical problems or errors at the
Center.

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

Despite: (1) having e-mailed Executive Vice President Elizabeth Straus (“Ms.
Straus”), General Counsel Alberto Lugo (“Mr. Lugo”) and Chief Strategy
Officer Timothy Hodges (“Mr. Hodges”) the day before Ms. FitzpatrickDurski’s alleged comment was made; and (2) having personal contact
information for Ms. Straus, Mr. Lugo and Mr. Hodges – she made no effort to
contact any of these three individuals to report Ms. Fitzpatrick-Durski’s alleged
comment on October 31, 2016.



Despite having an obligation as a member of Care One’s Management Team to
report Ms. Fitzpatrick-Durski’s alleged comment through any number of
available reporting channels she never did.



After being terminated from her employment on November 1, 2016, Plaintiff
did not contest the basis for her firing i.e. deficient performance or report Ms.
Fitzpatrick-Durski’s alleged comment to anyone including Ms. Straus, Mr.
Lugo, Mr. Hodges, Director of Nursing (“DON”) Guirlande Valcin (“Ms.
Valcin”), Regional Director of Operations (“RDO”) Jean Joseph (“Mr.
Jospeh”), anyone in Human Resources or anyone else at Care One.



Plaintiff admitted in part to the existence of some of the deficiencies identified
by Ms. Fitzpatrick-Durski as the basis for the termination of Plaintiff’s
employment.

As for Ms. Fitzpatrick-Durski the undisputed evidence at trial reveals, among other
things:


In early October 2016, Ms. Fitzpatrick-Durski was assigned to address and
correct a number of operational and clinical care deficiencies at the Center.

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

Ms. Fitzpatrick-Durski had been tasked with similar assignments at various
Care One facilities during her career.



On the same day Plaintiff claims Ms. Fitzpatrick-Durski made the above
referenced statement, October 31, 2016, Ms. Fitzpatrick-Durski, requested that
Byron Wilson (“Mr. Wilson”) who is African-American, serve as her Assistant
Administrator i.e. as the Center’s second highest ranking employee.



All five (5) direct reports hired by Ms. Fitzpatrick-Durski, each of whom was
hired before November 1, 2016, are minorities, two (2) of whom are AfricanAmerican.



Ms. Fitzpatrick-Durski was previously married to an African-American man
and is the mother of three (3) children who partake of African-American
heritage.



When asked directly, Mr. Joseph (who is African American and among other
things celebrated Thanksgiving with Ms. Fitzpatrick-Durski) specifically
affirmed that Ms. Fitzpatrick-Durski is NOT a racist.



Each of: (1) Mr. Hodges; (2) Ms. Straus; (3) Mr. Joseph; (4) Former Care One
Head of Human Resources Maureen Montegari (“Ms. Montegari”); (5) Former
Center Administrator Matthew Schottlander (“Mr. Schottlander”); (6) Former
Center Clinical Services Coordinator (“CSC”) and DON Kim Komoroski
(“Kim Komoroski”); and (7) Former Assistant Director of Nursing (“ADON”)
and Facility Educator (“FE”) Cynthia Merkin – all confirmed that Ms.
Fitzpatrick-Durski has never previously been the subject of any type of
complaint, much less any allegation of discrimination.

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The undisputed evidence at trial revealed among other things:


Neither Defendant has ever been accused, much less found liable for engaging
in race discrimination.



Subsequent to resigning after having worked for just thirty-one (31) days,
Plaintiff was promoted to the position of Vice President of Clinical Leadership
and provided a raise by Ms. Straus and Mr. Hodges – two of the three highest
ranking employees at Care One.



In mid-October 2016, well before Ms. Fitzpatrick-Durski’s alleged comment,
in response to complaints from among others, hospital administration, doctors
and staff about the quality of care in October 2016, Ms. Komoroski was asked
by Ms. Straus and Mr. Lugo to assist at the Care One Center to which Plaintiff
was assigned, with a number of clinical failings which Plaintiff was ultimately
responsible for.



Multiple witnesses independently corroborated the existence of the following
problems which formed the basis for the termination of Plaintiff’s employment:
o The Center was months behind in Accident and Incident Reporting
(“A&I Reports”) and documentation was lacking for A&I Reports.
o Patient care planning and grievances had not been addressed for
months.
o Plaintiff failed to transfer a federal Drug Enforcement Agency
(“DEA”) form/application1 to the new Vice President of Clinical
Services in September 2016, resulting in a depleting supply of
narcotics and other medication.
o Patients were delayed in receiving their medication.

1

A DEA form/application is needed to obtain certain narcotics for the Center’s patients.
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

The Center’s Administrator Mr. Schottlander, who is Caucasian, was demoted
five (5) days before Plaintiff was terminated from her employment on
November 1, 2016, and then terminated himself on November 4, 2016.



The third member of the Center’s leadership team (along with Plaintiff and Mr.
Schottlander), Ms. Valcin, who is African American, continued to remain
employed.
STANDARD OF REVIEW

Rule 4:37-2 governs motions for “Involuntary Dismissals.” The rule states:
After having completed the presentation of the evidence on all
matters other than the matter of damages (if that is an issue), the
plaintiff shall so announce to the court, and thereupon the defendant,
without waiving the right to offer evidence in the event the motion
is not granted, may move for a dismissal of the action or of any claim
on the ground that upon the facts and upon the law the plaintiff has
shown no right to relief. Whether the action is tried with or without
a jury, such motion shall be denied if the evidence, together with the
legitimate inferences therefrom, could sustain a judgment in
plaintiff’s favor.
R. 4:37-2(b). A dismissal under R. 4:37-2(b) “operates as an adjudication on the merits.” R. 4:372(d). This standard is applied to motions made at the close of plaintiff’s case in jury trials.
Verdicchio v. Recca, 179 N.J. 1, 30 (2004)
Dismissal is appropriate when no rational juror could conclude from the evidence that an
essential element of plaintiff’s case is present. Pitts v. Newark Bd. of Educ., 337 N.J. Super. 331,
340 (App. Div. 2001).
The trial court to whom such motion is made should permit the motion to be argued and
should place on the record its reasons for its action rather than perfunctorily denying it without
affording the movant an opportunity a basis therefore. Atlas v. Silvan, 128 N.J. Super. 247 (App.
Div. 1974). The motion made at the conclusion of the plaintiff’s case is required to be then decided
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since this rule provides no authorization for reserving the decision. Castro v. Helmsley Spear,
Inc., 150 N.J. Super. 160 (App. Div. 1977).
LEGAL ARGUMENT
I.

Punitive Damages Standard.
“[P]unitive damages are only to be awarded in exceptional cases even where the LAD has

been violated.” Saffos v. Avaya, Inc., 419 N.J. Super. 244, 263 (App. Div. 2011) (quoting Catalane
v. Gilian Instrument Corp., 271 N.J. Super. 476, 500-01 (App. Div. 1994)); Maiorino v. ScheringPlough Corp., 302 N.J. Super. 323, 353 (App. Div. 1997) (“punitive damages are not automatically
available simply on the basis of a LAD violation”); Miller v. Beneficial Mgmt. Corp., 855 F. Supp.
691, 718 n.33 (D.N.J. 1994) (“mere violation of [an employment statute] is an insufficient basis
on which to award punitive damages”). Two requirements must be met in addition to the bare fact
of an LAD violation: “(1) ‘actual participation in or willful indifference to the wrongful conduct
on the part of upper management’ and (2) ‘proof that the offending conduct [is] “especially
egregious.”’” Cavuoti v. N.J. Transit Corp., 161 N.J. 107, 113 (1999) (quoting Rendine v. Pantzer,
141 N.J. 292, 314 (1995); emphasis added); Baker v. Nat’l State Bank, 161 N.J. 220, 223 (1999)
(same); accord, e.g., Longo v. Pleasure Prods., Inc., 215 N.J. 48, 58 (2013).
The plaintiff must establish both requirements by “clear and convincing evidence,”
N.J.S.A. §2A:15-5.12(a) (emphasis added); Longo, 215 N.J. at 64, which is “evidence which leaves
no serious or substantial doubt about the correctness of the conclusions drawn from the evidence.
It is a standard which requires more than a preponderance of evidence, but less than beyond a
reasonable doubt, to draw a conclusion.” N.J.S.A. §2A:15-5.10.
The last two statutory citations are to the New Jersey Punitive Damages Act, N.J.S.A.
§2A:15-5.9 et seq. (“Act”), which expresses “a pervasive legislative intent to curb, rather than
expand, the availability of punitive damages,” Dong v. Alape, 361 N.J. Super. 106, 118-19 (App.
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Div. 2003); see also, e.g., Pavlova v. Mint Mgmt. Corp., 375 N.J. Super. 307, 403 (App. Div. 2005)
(“The Legislature’s purpose in enacting the Act was to establish more restrictive standards with
regard to the awarding of punitive damages”). Application of the Act in LAD cases is “mandated.”
Baker, 161 N.J. at 229.
Bluntly, the testimony and evidence established through Plaintiff’s case in chief,
conclusively demonstrated Plaintiff’s complete inability, among numerous other failings, to meet
the heightened requirements necessary to establish an award for punitive damages.
II.

Plaintiff Doesn’t Even Qualify for Compensatory Damages.
Preliminarily, the Punitive Damages Act prohibits an award of punitive damages unless

“compensatory damages have been awarded in the first stage of the trial. An award of nominal
damages cannot support an award of punitive damages.” N.J.S.A. §2A:15-5.13(c). Thus, a finding
of liability is insufficient by itself even to raise the question of punitive damages. But here, even
if Plaintiff could somehow establish a basis for liability, Plaintiff: (1) simply failed to use any
diligence or reasonable efforts to mitigate her alleged damages after the termination of her
employment on November 1, 2016; and (2) at best has a claim for nominal emotional distress
damages.
With respect to her failure to mitigate, as Plaintiff admitted on cross-examination, after
November 10, 2016, a mere ten days after she was terminated from her employment, Plaintiff has
no recollection or any documentation concerning any application which she submitted or
interviews which she went on. Rather, her mitigation efforts since November 10, 2016, have been
limited to leaving her resume posted with what she described as “recruiters” i.e. indeed.com,
glassdoor.com and monster.com. Plaintiff did not seek the assistance of an employment agency
or hire an independent recruiter or “headhunter.” In short, Plaintiff wholly failed to mitigate and
has thus forfeited any claim to economic recovery. Goodman v. London Metals Exchange, Inc.,
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86 N.J. 19, 35 (1981) (“unreasonable refusals to accept other proffered employment or failure to
exercise reasonable diligence in seeking other suitable available positions” act to bar recovery).
As to emotional distress damages, Plaintiff admitted that she has not sought counseling, or
medical attention as a result of the alleged conduct in this matter, nor has she been prescribed any
medication or therapy.2 For the preliminary reason, that Plaintiff has nominal damages, there is
consequently no opportunity for the jury to reach the question of punitive damages.
III.

Plaintiff Cannot Meet the Exacting Standard for a Punitive Damages Award.
As already observed, “punitive damages are only to be awarded in exceptional cases even

where the LAD has been violated.” Saffos, 419 N.J. Super. at 263; accord, e.g. Maiorino, 302 N.J.
Super. at 353; Miller, 855 F. Supp. at 718 n.33. A plaintiff seeking punitive damages also must
prove, by clear and convincing evidence that the “offending conduct” was “especially egregious.”
Cavuoti, 161 N.J. at 113; Baker, 161 N.J. at 223; Longo, 215 N.J. at 58; N.J.S.A. 2A:15-5.12(a).
That is a tall order. It requires the plaintiff to prove either that the actor who supposedly engaged
in the “offending conduct” was “actuated by actual malice” or acted with a “wanton and willful
disregard” for the rights of the plaintiff. N.J.S.A. §2A:15-5.12(a) (emphasis added); Longo, 215
N.J. at 59; Quinlan v. Curtiss-Wright Corp., 204 N.J. 239, 274 (2010).

2

While Plaintiff it is anticipated will inevitably claim that the New Jersey Supreme Court has
elevated the potential recovery for garden variety emotional distress claims, the case at bar is not
by any stretch of the imagination Cuevas v. Wentworth Grp., No. A-3079-11T3, 2014 WL
4494166, at *6-8 (N.J. Super. Ct. App. Div. Sept. 15, 2014), aff'd, 226 N.J. 480 (2016) for among
other reasons Plaintiff: (1) never complained about any alleged conduct as in Cuevas; (2) did not
file for unemployment and had the application opposed as in Cuevas; (3) did not lose a subsequent
job as a result of false information provided by her former employer as in Cuevas; (4) did not get
divorced as a result of being fired as in Cuevas; and (5) was not forced to move from her home to
a friend’s apartment where she slept on a sofa in a spare bedroom as in Cuevas. Ibid.

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“Actual malice” means “an intentional wrongdoing in the sense of an evil-minded act”;
“wanton and willful disregard” means “a deliberate act or omission with knowledge of a high
degree of probability of harm to another and reckless indifference to the consequences of such act
or omission.” N.J.S.A. §2A:15-5.10.
There is not a hint, let alone clear and convincing evidence, that anything malicious,
wanton, or willful took place here especially against the backdrop where it is undisputed inter alia:


Plaintiff’s entire race discrimination claim is based on a single alleged statement
by Ms. Fitzpatrick-Durski purportedly occurring on October 31, 2016.



Plaintiff admittedly never reported the alleged statement despite having an
obligation to do so through numerous available reporting channels.



On the same day Plaintiff claims Ms. Fitzpatrick-Durski made the statement
at issue, October 31, 2016, Ms. Fitzpatrick-Durski, requested that Byron Wilson
(“Mr. Wilson”) who is African-American, serve as her Assistant Administrator
i.e. as the Center’s second highest ranking employee.



In mid-October 2016, well before Ms. Fitzpatrick-Durski’s alleged comment,
in response to complaints from among others, hospital administration, doctors
and staff about the quality of care in October 2016, Ms. Komoroski was asked
by Ms. Straus and Mr. Lugo to assist the Center with a number of clinical
failings which Plaintiff was ultimately responsible for.



Multiple witnesses independently corroborated the existence of the clinical
problems which formed the basis for the termination of Plaintiff’s employment:



Plaintiff acknowledged in part some of the deficiencies identified by Ms.
Fitzpatrick-Durski as the basis for Plaintiff’s termination.

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

The Center’s Administrator Mr. Schottlander, who is Caucasian, was demoted
five (5) days before Plaintiff was terminated from her employment on
November 1, 2016, and then terminated himself on November 4, 2016.



The third member of the Center’s leadership team (along with Plaintiff and Mr.
Schottlander), Ms. Valcin, who is African American, continued to remain
employed.



Neither Defendant has ever been accused, much less found liable for engaging
in race discrimination. See Liptak v. Rite-Aid, 289 N.J. Super. 199, 217 (App.
Div. 1996) (holding that punitive damages serve the admonitory function of
expressing society's disapproval of intolerable conduct, and deterring such
conduct where no other remedy would suffice.)

In short, there can be no award of punitive damages assessed against Defendants since
Plaintiff wholly failed to establish that Defendants acted with evil motive or intent, or that
Defendants were reckless or were callously indifferent to Plaintiffs rights. To the contrary, among
other things, the Trial Record is replete with evidence that Defendants' actions with regard to
Plaintiff were at all times reasonable, lawful, appropriate and conducted in good faith.
CONCLUSION
For the foregoing reasons, Defendants’ Motion for Involuntary Dismissal of Plaintiff’s
Demand for Punitive Damages respectfully should be granted.
Respectfully submitted,
FISHER & PHILLIPS LLP
Attorneys for Defendants
Dated: October 28, 2019
By:

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s/Christopher J. Capone
Christopher J. Capone