Whistleblower Claim a No-Go for Employee who Voluntarily Resigned

The New Jersey Appellate Division in Portilla v. Maxim Healthcare Services, Inc., recently upheld the dismissal of a constructive discharge lawsuit by a registered nurse, lawyer, and self-described “paradigmatic whistleblower.”

September 26, 2019


The New Jersey Appellate Division in Portilla v. Maxim Healthcare Services, Inc., recently upheld the dismissal of a constructive discharge lawsuit by a registered nurse, lawyer, and self-described “paradigmatic whistleblower.” The Appellate Division affirmed the trial court’s decision dismissing the employee’s claims finding that the employee had in fact, voluntarily resigned. Thus, the employee could not claim she was constructively discharged as there was no showing that her workplace was so intolerable that she was forced to resign.


Cecile Portilla worked for Maxim Healthcare Services as a Director of Clinical Services for approximately five months. When Portilla was first hired, Maxim sent her to a four-day training to learn Maxim’s policies and procedures. Portilla also attended in-service training programs throughout her employment. Despite these trainings, according to Maxim, Portilla routinely failed to complete required weekly reports, was often absent from meetings she was scheduled to lead, was demeaning and disrespectful to other employees, and failed to follow required policies and procedures.

As a result, members of Maxim’s supervisory personnel reassigned many of Portilla’s job duties to others and attempted to coach and train her. However, Portilla’s performance did not improve, and she was placed on a 30-day Performance Improvement Plan. When still no improvement was made, Maxim decided to meet with Portilla at Maxim’s South Orange office for a face-to-face discussion. However, as her supervisor was parking her car before the meeting, Portilla locked her office, left the building through the backdoor, and never returned.

Two days after the aborted meeting, Portilla filed a complaint against Maxim, alleging she had been constructively discharged and included a host of additional claims that her constitutional rights had been violated. Portilla also claimed violations of the New Jersey Law Against Discrimination as well as breach of contract. According to Portilla, she was retaliated against for, among other conduct, filing internal compliance reports, filing reports with outside agencies, and complaining that a certain employee was underpaid. Portilla further claimed that in retaliation for her internal complaints, Maxim employees were cold to her, she felt disrespected, she was not permitted to decide what duties nurses would perform, nurses bypassed her and reported to others instead, she was precluded from hiring additional staff, and she was placed on a performance improvement plan. Portilla also claimed that Maxim withheld her bonus. The trial court granted Maxim’s motion to dismiss Ms. Portilla’s complaint.

Appellate Division’s Decision

The Appellate Division affirmed the ruling of the trial court and ruled that the evidence submitted by both Maxim and Portilla was so one-sided that the court had no choice but to grant Maxim’s request to dismiss the complaint, as a matter of law. Specifically, Portilla’s claim for wrongful discharge was dismissed because the evidence showed she voluntarily resigned from her employment. Portilla simply failed to provide any evidence that Maxim’s conduct, or that of its supervisory employees, was “so intolerable that a reasonable person would be forced to resign rather than continue to endure it,” the standard required by New Jersey case law to establish constructive discharge. The Appellate Division also found that Portilla was not eligible for a bonus.

Bottom Line

New Jersey courts are reluctant to entertain claims for wrongful discharge where the evidence shows that the employee left voluntarily and absent a showing that the workplace was so intolerable that the employee was forced to resign. Moreover, Maxim also demonstrated that it had avenues of relief available for its employees to complain and Portilla did not avail herself of those avenues. Moreover, Maxim was able to demonstrate that it investigated each issue identified in Portilla’s compliance reports, documented their response and where fault was found, took corrective action. Had Maxim not been able to support its legitimate, non-discriminatory actions with documentation, it is possible that the court may not have dismissed Portilla’s retaliatory constructive discharge claim.

For more information regarding this decision and best practices, please contact John C. Petrella, Esq., Chair of the firm’s Employment Litigation Practice Group or Dina M. Mastellone, Esq., Chair of the firm’s Human Resources Practice Group.

Tags: Genova Burns LLCLatiqua M. LilesEmployment Law & LitigationLabor LawHuman Resources Counseling & ComplianceWhistleblowerDina M. MastelloneJohn C. Petrella