DR. ROY STEINBERG v. UNIVERSITY OF MEDICINE AND DENTISTRY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0841-04T50841-04T5

DR. ROY STEINBERG,

Plaintiff-Appellant,

v.

UNIVERSITY OF MEDICINE AND DENTISTRY

OF NEW JERSEY,

Defendant-Respondent.

________________________________________________

 

Submitted October 26, 2005 - Decided

Before Judges Weissbard and Francis.

On appeal from Superior Court of New

Jersey, Law Division, Camden County,

L-1305-02.

F. Michael Daily, Jr., attorney for appellant.

Peter C. Harvey, Attorney General, attorney for

respondent (Michael J. Haas, Assistant Attorney

General, of counsel; Saju C. Mathew, Deputy

Attorney General, on the brief.

PER CURIAM

Plaintiff Dr. Roy Steinberg appeals a grant of summary judgment dismissing his discrimination suit against defendant University of Medicine and Dentistry of New Jersey (UMDNJ). We reverse.

We set forth the facts in the light most favorable to plaintiff and grant him the benefit of all favorable inferences. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Plaintiff is a psychologist who was hired by defendant on May 12, 1997 to provide "outpatient psychological physician services to the Center for Aging - UMDNJ - SOM [School of Osteopathic Medicine]." Plaintiff's contract was renewed in succeeding years until he was notified by letter of February 13, 2001 that his contract would not be renewed effective July 1, 2001.

During his employment, plaintiff reported to Dr. Chopra, the Director for the Center of Aging. Plaintiff would meet with patients at nursing homes based upon referral from other physicians. His position was "similar" to that of two psychiatrists, Dr. Scheinthal and Dr. Greenberg, who would also visit nursing homes. They would usually provide medication management, while plaintiff would provide psychological services. If plaintiff felt medication management was appropriate, he would recommend it to them, and if they felt psychological services were appropriate, they would recommend the patient to him. He would also perform neuropsychological evaluations at the Center.

In September 2000, Chopra formally evaluated Steinberg. She found that he was meeting her reasonable expectations and gave him an overall evaluation of satisfactory. She noted at that time that, "Dr. Steinberg has joined the faculty at the center effective November 1999. His expertise in psychology provides a valuable service for the patients and families. He continues to expand his clinical practice at the center." Her goals and objectives for 2000-2001 were:

1. Continue to expand consultative role within the Center for Aging and in long term care facilities.

2. Increase involvement in teaching of medical students and residents.

3. Participate in at least one research project.

Part of the Evaluation was a Faculty Data Form which listed as a factor to be considered by the evaluator under the category of "Patient Care," the "total faculty billings" of the employee. In respect to this element of the evaluation, plaintiff received a "satisfactory" from Chopra. Although Chopra conceded that certain issues, such as billing, which eventually led to her non-renewal of plaintiff's contract, were present in September 2000, she admitted that no mention of that was made in the evaluation.

In November 2000, plaintiff suffered from an onset of major depression due to the breakdown of his marriage. He was admitted to the Carrier Clinic and spent fifteen days as an inpatient, being released just prior to Thanksgiving. From the outset, plaintiff's condition caused concern with the administration and generated adversarial behavior. On November 16, 2001, Anne Hanan, defendant's faculty coordinator, placed a memo in plaintiff's file stating that the department did not want to pay Steinberg during his illness, that "Dr. Steinberg will need to be sent a letter" and that "Legal may also need to become involved." On November 28, 2000, Chopra sent a letter to plaintiff demanding that he submit a physician's note "by the close of business on Friday, December 8, 2000." On December 11, 2000, Julie Kligerman, Esq., Counsel for UMDNJ, emailed Hanan reminding her that a letter had to be sent to plaintiff advising him that he had exhausted his paid leave.

On December 16, 2000, plaintiff submitted a medical leave of absence form in which he indicated that the need for the leave resulted from "situation stressors which have caused decline in functions" and that he expected to return by January 15, 2001. In a letter dated December 18, 2000, he also requested a meeting with Chopra at a location away from the facilities. At that meeting, held in a diner, Chopra told plaintiff that UMDNJ was very supportive of him and that his job was still there when he was ready; she did not mention that there were any problems and assured him that "we take care of our own."

By letter dated January 3, 2001, Chopra was advised by plaintiff's treating physician, Dr. Lederman, that plaintiff would not be returning to work prior to February 26, 2001. Subsequently, at Steinberg's next appointment with Lederman on January 22, 2001, plaintiff was able to convince Lederman that he was recovered sufficiently to return to work sooner. As a result, Lederman wrote to Chopra authorizing plaintiff to return to work on February 5, 2001. However, when plaintiff was served with his divorce papers, he fell back into a depressive state, and therefore he remained unable to return to work on February 5 as scheduled.

Although the Family/Medical Leave of Absence Form, after being processed by the employer, indicated that plaintiff's leave was originally approved until February 26, 2001, the failure of plaintiff to appear for work on February 5 due to his disability generated immediate reactions by the employer. A phone message slip documented that as a result of the events of February 5, Michelle Bunion of the administration left instructions that Steinberg "report[s] to work immediately or will be terminated." On February 7, 2001, a letter was sent to plaintiff by Chopra demanding that he contact her within twenty-four hours. This was followed on February 8, 2001 by a fax transmission from Michelle Bunnion of Chopra's staff to Karen Muller, Assistant to Dr. Putterman, Vice President of Academic Affairs, which included letters, notes and other records documenting the course of Steinberg's condition and work situation since the onset of his depression. The cover sheet of this fax referred to the fact that Steinberg had failed to appear when scheduled, and the fact that he had provided changing return dates and then asked if "it would be legal" to not renew his contract. The document did not mention any problems, concerns or reasons unrelated to plaintiff's disability.

Finally, by letter dated February 13, 2001, plaintiff was advised that his contract would not be renewed, effective July 1, 2001. No reason was provided.

Plaintiff responded to the termination letter on February 25, 2001, advising Chopra as follows:

I was very saddened to receive your letter stating my contract with the Center would not be renewed. This came on the heels of my plan to return to the office and caught me off guard, given your repeated statements during our meeting, and subsequently, that you would help me to return to my previous level of involvement.

With this in mind, please accept my resignation effective February 25, 2001. I do so regretfully, but hope that this will allow you the opportunity to direct your efforts toward establishing a solid foundation for the Center.

Please accept my genuine appreciation for all that you have done for me and on my behalf. I hope that our paths may cross under more positive circumstances.

Following plaintiff's departure, the two psychiatrists, Scheinthal and Greenberg, apparently took over his duties of performing psychological services, as evidenced by the fact that the procedure code used to bill for services provided by a psychologist is 90801, and according to the records provided by the Center for Aging, the Center continued to bill for services using this code twenty-two times from March to June 2001. In addition, the Center later hired another psychologist, Dr. Libon, as a full-time faculty member in 2002. According to the written job description covering the appointment of Libon, his duties included "psychotherapy for older adults in the ambulatory and long term care settings."

On February 5, 2002, plaintiff filed suit alleging that as a result of his major depression, he suffered from a disability, N.J.S.A. 10:5-5(q), and that his discharge violated the Law Against Discrimination (LAD), N.J.S.A. 10:5-4.1. In a separate count, plaintiff alleged breach of an implied contract of employment which included an agreement that UMDNJ would not fail to renew his contract without just cause. Following discovery, defendant moved for summary judgment. In an oral decision of July 23, 2004, the judge granted the motion, stating:

THE COURT: All right. Thank you, counsel. All right. This matter arises from an employment relationship between the defendant and the plaintiff as an adjunct professor and treater at the defendant.

The plaintiff alleges in his complaint a violation of the law against discrimination. Plaintiff had a one year contract for qualified appointment as an adjunct professor with the defendant. Plaintiff took medical leave as a result of depression.

The director of the facility, Dr. Chopra, notified plaintiff that his contract would not be renewed. Apparently, defendant has a four-month notice requirement, and this notice was given by Dr. Chopra to the plaintiff who -- and that notice was the four-month notice that she would not renew the contract or that the defendant would not renew the contract.

Dr. Chopra states that she changed the psychiatrist model being used to one for the use of a neuropsychologist under a psychiatrist. Plaintiff alleges that the defendant violated the Law Against Disability -- Discrimination and that he had a handicap or disability.

That in Count 1 plaintiff alleges this violation, says that he was discharged because of a handicap, his depression. Depression is a disability recognized under the LAD. However, the Court finds that the defendant had a nondiscriminatory basis for

the discharge; that is, the changed model.

Count 2 alleges a breach of contract. Plaintiff alleges that there is an implied covenant to act in good faith. The defendant could not refuse to renew the plaintiff's term of employment without just cause. However, I find that there is no implied covenant, that plaintiff's contract would not be renewed. Nothing in the contract requires the defendant to renew the contract by the terms. Cannot find anything in the law that requires someone to renew a contract under an implied good faith covenant. And, defendant did not have a right to the renewal of the contract, so long as the non-renewal was not for a discriminatory purpose.

In order to establish a prima facie case of discrimination, the plaintiff must show the following:

That he was a member of a protected class, that he was performing the job at a level which met the employer's legitimate expectations, that he was discharged or suffered an adverse employment action, and that the defendant employer sought another to perform the same work after the plaintiff was removed from that position. Maiorino v. Schering Plough Corp., 302 N.J. Super. 326 (App. Div. 1997).

The Court finds that the plaintiff has not met the burden of establishing a prima facie case of discrimination. While the plaintiff was a member of the protected class; that is, he suffered from a disability, his depression, and he also shows -- and while he also shows that he was performing the job at a level which met the employer's legitimate expectations; that is, he received periodic satisfactory reviews. And, further, he did suffer an adverse employment action; that is, the contract was not renewed.

However, I find that the plaintiff does not meet the fourth requirement of the test; that is, whether another person was asked to do the same work that the plaintiff was doing. I disagree that psychologists and psychiatrists do the same work. They absolutely do different work, particularly the psychiatrist is permitted to prescribe certain medications. A psychiatrist is a medical doctor. They provide a different type of care for patients.

But, I further find that even if the plaintiff does meet the fourth test of the four prong test, that the defendant did have a nondiscriminatory reason for not renewing the plaintiff's contract; that is, the defendant put into place a different protocol for handling of services of this type to the patients. The Center decided to return to the previous protocol; that is, using a psychiatrist, who has different practice privileges than a psychologist to treat patients.

Therefore, even if the plaintiff had met the test of a prima -- met the burden of a prima facie case, the burden does shift back to the plaintiff to prove that the defendant did not have a nondiscriminatory reason for non-renewal of the plaintiff's contract, and I find that the plaintiff does not do that. But, I think that defendant has shown that the change of model for treatment was not pretextual. But, mostly this is based on the fact that I do not think the plaintiff has met the prima facie case. Therefore, . . ., the motion is granted.

Plaintiff contends that summary judgment was not proper because material issues of fact existed as to whether his functions were assumed by other individuals and whether his disability was a motivating factor in the non-renewal of his contract. He also argues that he presented sufficient evidence to establish a "mixed motives" case.

To establish a prima facie case of discrimination under the LAD, a plaintiff/employee must show that: "(1) he was member of the protected class; (2) he was performing the job at the level that met the employer's legitimate expectations; (3) he was discharged; and (4) the employer sought another to perform the same work after the complainant had been removed from the position." Catalane v. Gilian Instrument Corp., 271 N.J. Super. 476, 496-97 (App. Div.), certif. denied, 136 N.J. 298 (1994). In granting summary judgment, the motion judge correctly found that plaintiff had presented sufficient evidence on the first three prongs. However, she found that plaintiff had failed to meet the fourth prong because the psychiatrists who took over the work plaintiff had been doing were in fact not doing the same work since, as a result of their different training, "[t]hey provide a different type of care for patients." In Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 597 (1988) (quoting Loeb v. Textron, Inc., 600 F.2d 1003, 1014 (1st Cir. 1979)), the Court rephrased the fourth element as being "that [the employer] sought someone to perform the same work after he left." We agree with plaintiff that the fourth prong does not require a showing that plaintiff was replaced by someone with the same credentials. Plaintiff's job was to evaluate and counsel patients with mental health problems who lived in extended care facilities. Both psychiatrists and psychologists are qualified to perform that work. The fact that, as the judge noted, psychiatrists can prescribe medication while psychologists cannot is not at all determinative. The inference that the psychiatrists performed plaintiff's work was supported by the fact that the billings for the psychiatrists' services were submitted to the insurers under the billing code utilized by plaintiff. In addition, albeit a year later, defendant hired another psychologist to "provide neuropsychological testing and psychotherapy for older adults in the ambulatory and long term care settings." The fact that Chopra testified that the psychologist was not hired to perform the same work as plaintiff need not be accepted on a motion for summary judgment. The same may be said for Chopra's testimony that the Center for Aging no longer provided "psychology services" for the nursing home patients after plaintiff left. Plaintiff was entitled to the benefit of all inferences supporting his case; testimony tending to support defendant's case need not be accepted. We are satisfied that plaintiff presented sufficient evidence with respect to the fourth prong, thereby establishing his prima facie case.

The motion judge also found that plaintiff did not meet the fourth prong of the McDonnell Douglas test since defendant had advanced a non-discriminatory reason for not renewing plaintiff's contract and plaintiff had not met his burden of establishing that defendant's reason was pretextual. Greenberg v. Camden County Vocational & Technical Sch., 310 N.J. Super. 189, 200 (App. Div. 1998). We conclude, however, that plaintiff presented sufficient evidence from which a rational fact-finder could conclude that the reason advanced by Chopra, that plaintiff did not fit with her "model," was a post-hoc fabrication designed to provide cover for the discriminatory animus behind plaintiff's non-renewal. Significantly, Chopra never expressed any such concerns in her evaluation of plaintiff's performance in September 2000, nor were any such concerns expressed in the communications among defendant's administrators in the period leading up to the non-renewal letter. Indeed, the letter itself provided no such explanation. Rather, the communications among the administrators were solely concerned with plaintiff's disability. The change in Chopra's "model," eliminating the need for a psychologist, apparently remained only in her mind and was never committed to writing. A fact-finder could readily disbelieve her. There was sufficient evidence from which it could be inferred that the reasons advanced by defendant, through Chopra, were false and "motivated by discriminatory intent." Viscik v. Fowler Equip. Co., 173 N.J. 1, 14 (2002). This is not to say that a jury will find discrimination but only that the evidence is adequate to support such a finding. See Sheridan v. DuPont de Nemours & Co., 100 F.3d 1061, 1066-67 (3rd Cir. 1996) (en banc), cert. denied, 521 U.S. 1129, 117 S. Ct. 2532, 138 L. Ed. 2d 1031 (1997); Fuentes v. Perskie, 32 F.3d 759, 763-65 (3rd Cir. 1994).

 
Finally, we also conclude that the same evidence is sufficient to support plaintiff's claim under the "mixed motives" analysis of Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S. Ct. 1775, 104 L. Ed. 2d 268 (1989), adopted in McDevitt v. Bill Good Builders, Inc., 175 N.J. 519, 527-28 (2003); see also Fleming v. Corr. Healthcare Solutions, Inc., 164 N.J. 90, 100 (2000). The documentary evidence, in the form of letters and faxes in February 2001, leading up to plaintiff's non-renewal, could be found to reflect direct evidence of discrimination. McDevitt, supra.

Reversed and remanded for trial.

Plaintiff does not appeal the dismissal of his implied contract cause of action.

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).

(continued)

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A-0841-04T5

December 9, 2005