                                                                   NOT PRECEDENTIAL

                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT
                                    __________

                                       No. 13-4656
                                       __________

                      DEBRA WEISMAN; ALBERT M. WEISMAN,

                                                  Appellants
                                             v.

                   NEW JERSEY DEPARTMENT OF HUMAN SERVICES;
               JENNIFER VELEZ, Esq., In her official capacity as Commissioner;
      ANCORA PSYCHIATRIC HOSPITAL; ALLAN BOYER, Individually, and in his
    official capacity as Director, Human Resources; ALFRED FILIPPINI, Individually, and
                       in his official capacity as Director, Human Resources
                                             __________

                      On Appeal from the United States District Court
                               for the District of New Jersey
                          (D.C. Civil Action No. 1-11-cv-01856)
                        District Judge: Honorable Joseph E. Irenas

                        Submitted Under Third Circuit LAR 34.1(a)
                                     June 24, 2014

        BEFORE: FUENTES, GREENAWAY, JR., and NYGAARD, Circuit Judges

                                (Filed: December 2, 2014)
                                        __________

                                        OPINION*
                                       __________

NYGAARD, Circuit Judge.
                                             I.

*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Weisman is a registered nurse. She was employed as a charge nurse at Ancora

Psychiatric Hospital from 1998 until 2010. Weisman took a medical leave of absence

from Ancora in late September, 2008, due to a diagnosed panic disorder. In June of

2009, as her medical leave neared an end, Ancora officials notified Weisman that she

needed to secure her physician’s approval before returning to work. She would also have

to undergo a fitness-for-duty evaluation by a psychiatrist. Although she was cleared for

duty by her doctor, Weisman was deemed unfit to return to work by the examining

psychiatrist. Ancora informed Weisman that she was suspended pending the termination

of her employment. Pursuant to New Jersey law, hospital officials also notified the New

Jersey Board of Nursing that Weisman’s privileges had been suspended. See N.J. Stat.

Ann. § 26:2H-12.2b(a)(1)(a). The hospital officially terminated her employment in

January of 2010 and Ancora also informed the Board of Nursing of Weisman’s

termination.

       Weisman’s union appealed the termination and the parties proceeded to

arbitration. In August of 2010, the parties entered into a settlement agreement. The

terms were simple: Weisman agreed to waive all claims arising from her employment

with Ancora and in return, the hospital agreed to designate her departure as one based on

a “resignation in good standing” instead of the more punitive designation of “removal.”

An error on the final Notice of Disciplinary Action indicated that her resignation was

“not in good standing,” but this error was later corrected by the hospital. A month after

resigning from Ancora, Weisman interviewed at another hospital, Kennedy Memorial,

and she was offered a position there, conditioned on a satisfactory background check.

                                             2
Kennedy Memorial hired an investigatory firm, which in turn sent Ancora a

questionnaire, seeking a reference for Weisman. Ancora reported that Weisman had

resigned voluntarily from her position and that her job performance met Ancora’s

standards for patient care. However, in response to the question whether Ancora had ever

reported Weisman to a professional review board, Ancora responded that it had, attaching

copies of its letters to the New Jersey Board of Nursing. Kennedy Memorial

subsequently withdrew its offer of employment.

       Weisman blamed Ancora for the withdrawal of Kennedy Memorial’s employment

offer, and filed an action against the hospital in the District Court under various federal

statutes, seeking back pay, damages, and injunctive relief. She also asked for equitable

relief from the District Court to address Ancora’s alleged failure to properly implement

the provisions of the settlement agreement. After the District Court denied motions to

dismiss, and discovery had concluded, both parties filed for summary judgment.

Weisman asked for partial summary judgment on her state-law breach of contract claim;

Ancora sought relief on all counts. The District Court denied Weisman’s motion and

granted summary judgment to Ancora on all counts. Weisman timely appealed and we

will affirm.

                                             II.

       The District Court had jurisdiction under 28 U.S.C. § 1331. We exercise

jurisdiction pursuant to 28 U.S.C. § 1291. We review the District Court’s grant of

summary judgment de novo and “view inferences to be drawn from the underlying facts

in the light most favorable to the nonmoving party.” Montanez v. Thompson, 603 F.3d

                                              3
243, 248 (3d Cir. 2010) quoting Bayer v. Monroe Cty. Children & Youth Servs., 577 F.3d

186, 192 (3d Cir. 2009). “Summary judgment is appropriate where the [c]ourt is satisfied

‘that there is no genuine [dispute] as to any material fact and that the moving party is

entitled to judgment as a matter of law.’” Celotex Corp. v. Catrett, 477 U.S. 317, 330

(1986).

                                             III.

       As the District Court did, we begin our analysis with the parties’ settlement

agreement. There can be no dispute that the settlement agreement is a valid, bargained-

for exchange between Weisman and Ancora. The agreement originally noted that

Weisman’s penalty was one of “removal.” But, handwritten notations indicated Ancora’s

agreement to modify that penalty to a “resignation in good standing.” Weisman, for her

part, agreed to waive “all appeals, claims, demands, damages, causes of actions or suits,”

which she might bring against “the state, its employees, agents, or assigns arising out of

or relate to the subject matter of this disciplinary action . . . .” The gist of Weisman’s

case, before the District Court and on appeal, is her belief that by agreeing to characterize

her departure as a “resignation in good standing,” Ancora also agreed not to divulge its

negative reports to the Board of Nursing to any prospective future employer. Ancora

agreed to do nothing of the sort, and we find all of Weisman’s claims meritless.

                                             A.

       Weisman first argues that the District Court erroneously interpreted the provisions

of her settlement agreement with Ancora. Focusing on the Amended Final Notice of

Disciplinary Action (which mistakenly stated that Weisman’s resignation was “not” in

                                              4
good standing), Weisman argues that the District Court erred by construing Ancora’s

responsibilities solely to the correction of this error. Her larger point is that by agreeing

to change her departure designation to a resignation in good standing, Ancora agreed to

either rescind its negative reports to the Board of Nursing or to omit any reference to

those reports when queried by prospective employers. We reject Weisman’s contentions.

       The District Court did not construe the settlement agreement as narrowly as

Weisman suggests. Ancora’s responsibility under the settlement agreement, as the

District Court correctly noted, was to record that Weisman resigned her position “in good

standing.” Ancora met that responsibility. In response to Kennedy Memorial’s

background investigation, Ancora indicated that Weisman voluntarily resigned her

employment with the hospital. Weisman’s argument that the initial error on her

termination notice was a breach of the settlement agreement is equally as unavailing.

While the error may have violated the terms of the agreement, the violation was not a

material one. As we see it, Ancora’s obligation under the settlement agreement was to

report to any interested future employer that Weisman resigned her employment “in good

standing” with the hospital. The fact that her initial termination notice mistakenly

indicated that she had not left in good standing is irrelevant because Ancora never sent

the flawed notice to any future employment prospect.

       Further, nothing in the settlement reveals Ancora’s agreement to revoke its letters

to the Board of Nursing, or to omit reference to them upon any inquiry by a prospective

employer of Weisman. Nor could Ancora bargain away this statutory obligation. See

N.J. Stat. Ann. § 26:2H-12.2b(a)(1)(a); N.J. Stat. Ann. 26:2H-12.2c(a)(2). Weisman

                                              5
additionally maintains that the parties actually agreed that the disclosure of Ancora’s

reports to the Board of Nursing would violate the settlement agreement and that the

District Court overlooked testimony in support of this contention. That is not so.

Weisman points to testimony of Ancora CEO Boyer in support of her claim. When asked

whether a negative reference by Ancora would be consistent with Weisman’s resignation

“in good standing,” CEO Boyer indicated that such a conclusion was “not in the

agreement.” Further, Boyer did not testify that the designation “in good standing” left

Weisman with a clean employment record, as she asserts on appeal. To the contrary,

Boyer never made such a pronouncement; indeed, he was never asked whether

Weisman’s resignation exempted the hospital from its statutory obligations.

         Lastly, the record repudiates Weisman’s argument that the settlement agreement

was a contract of adhesion. There simply is no evidence that Weisman was confused or

dissatisfied with the agreement’s terms. Nor can we find any evidence of duress or fraud

that would lead us to a conclusion that the settlement negotiations were unfairly one-

sided.

                                             B.

         Next, Weisman argues that the District Court erred by dismissing her retaliation

claim. Weisman also maintains that the District Court abused its discretion by refusing to

rescind the agreement. We disagree on both points. As to the retaliation claim, which

Weisman brought under the New Jersey Conscientious Employee Protection Act, and the

First Amendment to the Constitution, we find those claims waived. The settlement

agreement specifically waives any claims brought by Weisman under the CEPA and 42

                                              6
U.S.C. § 1983. Having previously found the agreement to be a valid one, we hold

Weisman to its terms.1

       Nor did the District Court abuse its discretion by refusing to rescind the settlement

agreement. Weisman argues that the agreement should be rescinded because she was

unaware that Ancora had reported her to the Board of Nursing. We first note that a

“unilateral mistake of a fact unknown to the other party is not ordinarily grounds for

avoidance of a contract,” and that, in order to grant rescission in the case of a factual

mistake, “the mistake must have occurred notwithstanding the exercise of reasonable care

by the party making the mistake.” Intertech Assocs., Inc. v. City of Paterson, 604 A.2d

628, 632 (N. J. Super. Ct. App. Div. 1992). Here, we agree with the District Court that

Weisman presented no evidence to support her claim that she did not know that Ancora

had reported her to the Board of Nursing. Now, with the benefit of hindsight, Weisman

argues that she agreed to the “in good standing” designation but thought that by so doing,

Ancora would be obligated to rescind its letters to the Board of Nursing. She claims that

the hospital did not notify her that they had reported her to the Board of Nursing before

she signed the settlement agreement and that she would not have done so had she known

of the reports. The record, however, tells a different story. Weisman, in fact, signed a

1
  Weisman also argues that even if the waiver provision is enforceable, Weisman’s
retaliation claim stemming from Ancora’s June 2010 disclosure of the reports to the
Board of Nursing is still viable because this claim arose after the Settlement Agreement
was signed, and the waiver provision only bars claims that accrued before the parties
entered the agreement. This claim is also without merit because it is predicated on the
incorrect assumption that such disclosure violated Ancora’s obligations under the
agreement. We have already decided that this disclosure did not violate the Settlement
Agreement and was, in fact, legally required. Any retaliation claim based on this
disclosure must fail.
                                              7
mail receipt on April 2, 2010, just two days after Ancora had sent her a letter enclosing

the two reports it had made to the Board of Nursing. Further, Weisman herself

acknowledged that she did indeed have notice of the hospital’s reports---she specifically

stated so in her complaint. Therefore, the District Court did not err by finding that

Weisman’s own failure to exercise reasonable care by reviewing her own mail precludes

rescission of the agreement.2

                                             C.

       Weisman also maintains that the District Court incorrectly resolved several issues

of material fact. We disagree and will briefly review Weisman’s arguments. To begin

with, Weisman argues that the District Court improperly resolved the question of when

she received notice that Ancora had reported her to the Board of Nursing. We have

already disposed of this argument. To be plain, the record specifically contradicts

Weisman’s position that she received no notice of Ancora’s reports before starting

arbitration. The District Court committed no error. Weisman points to further instances

where she believes the District Court improperly resolved issues of material fact. These

include her assertion that there was no “meeting of the minds” on essential terms of the

settlement agreement; that the District Court’s construction of the term “resignation in

good standing” is inconsistent with the intent of the parties; that Ancora’s disciplinary

actions against her lacked predicate facts; whether she truly was unfit for duty as

determined by Dr. Margolis, the examining psychiatrist; whether Dr. Margolis’ report

2
 Our review of the record convinces us that any allegation of fraud made by Weisman
must fail as well. As the District Court correctly noted, the record reveals no allegations
of fraud, duress or any other imposition that might have negated the agreement.
                                             8
was based on accurate information; and whether Weisman undertook actions (leaving

voicemail messages, etc.) and whether those actions were inappropriate or disrespectful.

We reject all of these contentions.

       First of all, these alleged “genuine issues of material fact” all transpired before the

creation of the settlement agreement on April 16, 2010. Since the District Court

concluded that Ancora had not breached the Settlement Agreement, the agreement’s

waiver proviso bars claims arising before April 16, 2010. Moreover, the District Court

did not base its opinion on these alleged factual disputes, but instead provided Weisman’s

counsel with generous opportunities to rebut Dr. Margolis’ evaluation of her fitness for

duty. The bottom line here is that the District Judge did not resolve disputed issues of

fact but instead relied on undisputed facts in resolving this case. These undisputed facts

included Weisman’s own admissions of her conduct; conduct which provided the basis

for Ancora’s report to the Board of Nursing. We, therefore, find no error on the part of

the District Court.

                                             D.

       Weisman lastly contends that the District Court erred by denying her motion for

partial summary judgment as moot. Specifically, she believes the District Court should

have granted her partial summary judgment on Ancora’s affirmative defense that New

Jersey law required them to report Weisman to the Board of Nursing. We see no error in

the District Court’s decision to deny her motion. Weisman’s argument on appeal suffers

from a lack of supporting evidence. She points to no evidence that Ancora could have

legally concealed its reports from the Board of Nursing or that they could have omitted

                                              9
notifying Kennedy Memorial without violating New Jersey law. Indeed, Weisman

concedes this point.

       In short, Weisman has not demonstrated an entitlement to summary judgment---

partial or otherwise--- on her breach of contract claim or on Ancora’s affirmative defense

of statutory compliance.

                                            IV.

       In sum, and having considered all arguments raised by the Appellant, we find no

merit to them and will affirm the decision of the District Court.




                                             10
