GIRIJA SURYA v. ARTHUR J. ROBERTS, M.D. et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2631-05T32631-05T3

GIRIJA SURYA,

Plaintiff-Appellant,

v.

ARTHUR J. ROBERTS, M.D. and

JERSEY SHORE CARDIAC SURGERY

ASSOCIATES,

Defendants-Respondents.

_______________________________

 

Argued January 24, 2007 - Decided

Before Judges A.A. Rodr guez and Collester.

On appeal from Superior Court of New Jersey,

Law Division, Monmouth County, L-2182-89.

Elizabeth Loud-Hayward argued the cause for

appellant (Allegra Nebelkopf, attorney; Ms.

Loud-Hayward, on the brief).

Joel N. Kreizman argued the cause for respondent

Arthur J. Roberts (Evans, Osborne & Kreizman,

attorneys; Mr. Kreizman, on the brief).

Stuart Gold argued the cause for respondent

Ahmad Rajaii-Khorasani (Mandelbaum, Salsburg,

Gold, Lazris & Discenza, attorneys; Michael A.

Saffer and Mr. Gold, on the brief).

PER CURIAM

Plaintiff Girija Surya appeals from the entry of summary judgment dismissing her complaint against defendants Arthur J. Roberts and Ahmad Rajaii-Khorasani for unlawful race and gender discrimination (count one), breach of contract (count two), breach of the implied covenant of good faith and fair dealing (count three), wrongful discharge (count four), intentional infliction of emotional distress (count five), and fraud (count six). We affirm in part and reverse in part.

Viewing the competent evidential materials in the light most favorable to the non-opposing party as required under Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995), the facts are as follows. Plaintiff and defendants are all board certified cardiac surgeons. Cardiac surgery falls within the realm of thoracic surgery, which embraces surgical treatment of the thorax and various organs and structures within. Cardiac surgeons must complete a thoracic residency and enter a fellowship program of one to two years in which they exclusively function in the management of cardiac cases. While cardiac surgeons are also thoracic surgeons, they generally limit their practice to heart cases and do not perform other types of thoracic surgery. Cardiac surgeons may only practice in those hospitals which have the facilities and equipment necessary for heart surgery. The Jersey Shore Medical Center (JSMC) was at all times pertinent to this appeal the only hospital in Monmouth County at which cardiac surgery was performed, and a professional corporation owned by defendants Roberts and Khorasani named the Jersey Shore Heart Institute (JSHI) had the exclusive contract for cardiac surgical services at that hospital.

In 1996 plaintiff lived in Morganville, Monmouth County with her two small children. She had her private practice in Monmouth County, and she had privileges for vascular-thoracic surgery at nearby Bayshore Community Hospital as well as at Raritan Bay Medical Center in Edison. Plaintiff had previously done her fellowship in cardiac surgery and was board certified. She had privileges for cardiac surgery at St. Michaels Medical Center in Newark.

Plaintiff wanted to practice as a cardiac surgeon in Monmouth County for personal and professional reasons. She wanted to practice her specialty in an area near where she lived because she had young children. While she had privileges as a cardiac surgeon at St. Michael's, it was uneconomical and inconvenient for her and her patients to travel to Newark. Moreover, plaintiff had a passion for cardiac surgery and was for some time the only woman board certified cardiac surgeon in New Jersey. Since the only way she could obtain cardiac surgery privileges at JSMC was with JSHI, plaintiff wanted to become employed or associated with that surgical group.

Plaintiff met Dr. Roberts in a social setting in the summer of 1996. She told him she had already had a fellowship in cardiac surgery, was board certified, and was interested in working for him. They met later at Dr. Roberts' office, and he offered her a fellowship with JSHI. He told her that everyone whom he hired to be an attending physician in cardiac surgery had to worked with him as a fellow for a year or more, and that every one who completed the fellowship with JSHI had become an attending physician with the group. Plaintiff said she told Dr. Roberts that her interest in working as a fellow would only be as a prelude to her joining the group as a cardiac surgeon. Dr. Roberts responded that after the fellowship, plaintiff would be an attending cardiac surgeon under the umbrella of the JSHI, and her status, salary, and benefits would be equal to what the physicians on the second tier of JSHI had received when they completed the fellowship. Although plaintiff had already completed a cardiac surgery fellowship and was not interested in repeating one, she agreed because she said that Dr. Roberts expressly promised her that he would offer her membership in the JSHI at the end of the fellowship, which would then enable her to practice cardio-vascular surgery at JSMC.

Plaintiff said her duties as a fellow included covering the cardiac care unit at JSMC every third night, seeing patients pre-operatively and post-operatively, and assisting in the operating room during surgery. The fellowship required her to work forty hours or more per week at a fixed salary of $44,000. Plaintiff explained to Dr. Roberts that since the salary as a fellow was low, she wanted to maintain her private practice in thoracic surgery. Dr. Roberts agreed, and plaintiff started the fellowship shortly before July 1, 1996. She said that during her one year fellowship Dr. Roberts frequently praised the quality of her work and encouraged her, leaving her to reasonably believe she would be offered the position she was promised.

Plaintiff began her fellowship without a written contract after Dr. Roberts assured her that he would "get a letter going and all that." His secretary also told plaintiff, "Don't worry about their contract, they always delay their paperwork." Plaintiff said she had numerous conversations with both defendants after she began the fellowship, and was repeatedly given verbal assurances that she would become an attending surgeon after the fellowship. However, no letter or other document was forthcoming. Since plaintiff felt she needed some writing to give her assurance that she would receive what she had been promised and nothing materialized, she told both defendants on a Friday in December 1996 that she was leaving the fellowship.

The following Sunday plaintiff got a call from Dr. Khorasani saying he was in desperate need and asked her to help him with a case. Plaintiff responded to the hospital and assisted him. Afterwards she told him she did not want to continue the fellowship unless assurances were given to her. She said that Khorasani assured her something would be done about it and that he and Dr. Roberts had talked about it. Plaintiff called Dr. Roberts that night, and he told her he did not want her to quit. She told him the $44,000 salary was inadequate because of the enormous time she was spending at the hospital. She also wanted reassurance that there would be no problem at the end of the fellowship term about her continuing with the group as an attending physician. She said Dr. Roberts offered her an increase in salary to $100,000 and once again assured her she would become an attending physician when the fellowship ended. During her year term as a fellow, plaintiff discerned that while the two defendants were the major principals in the JSHI, they were running separate practices and that there were tensions in their relationship. She thought that the delay in memorializing her agreement with JSHI was because the potential split between the two defendants. However, she was never told that this would affect her agreement.

On January 6, 1997, after she had returned to the fellowship, plaintiff received a memorandum from Dr. Khorasani with reference to a telephone conversation earlier that day. The memorandum stated,

CONFIDENTIAL

This is to confirm our telephone conversation of this date, which was a continuation of our previous discussion initiated by a message from you. Basically, the Jersey Shore Heart Institute needs personnel, and you are interested in working with the JSHI. However, you are unhappy with the contract given you by Dr. Arthur Roberts. You mentioned that either a higher salary or a hope for future participation would make you interested in continuing your work. I told you that I have discussed this matter with Dr. Roberts and we have come to an agreement that you can continue your work as a fellow until July 1997. In June, 1997, we will form an agreement with you that will allow you to become a Junior Attending. Your professional skills can be used on a per-diem basis, and you will be paid according to the agreement that will be made.

We have discussed that the reason for this is that the JSHI needs personnel who are available full-time and available twenty-four hours a day, and since you cannot do that, perhaps this is something that will satisfy your professional needs, and also help the JSHI, in terms of emergencies and vacations.

I expect you to meet with Dr. Lawrence Wood on Tuesday at 7 a.m., and arrange for your on-call schedule and also participate in the pre-operative, operative and post-operative care of our patients.

I hope this arrangement will be acceptable to you and we will see an improvement on your part.

cc: Arthur J. Roberts, M.D.

Two days later, on January 8, 1997, plaintiff sent a handwritten letter to Dr. Khorasani, which stated:

As I spoke to your earlier, I would like to continue to work with you and I'm willing to continue as a fellow til June 30, 1997. The last six months has made me aware that JSHI and its expectations from the fellowship and my expectations have to be spelled out on paper to avoid any confusions and disappointments and to avoid repeat of what happens with me now at the end of the first six months.

Plaintiff then set forth the specific terms as to what she offered to JSHI for the following six months starting with the days and hours of employment as to which she concluded,

When I put the hours and week together, it exceeds a regular a full-time job, but I'm willing to do it because of my interest in practicing in this area as a cardiac surgeon.

Now, my expectations from [JSHI] are (1) at the end of the six-month period I shall be accepted as a junior attending in cardiac surgery. The financial arrangements for that time will be discussed shortly and come to an agreement with, prior to my starting the second half of my fellowship.

After accepting the offer of a $100,000 salary for the remaining six months of her fellowship plus employee benefits, plaintiff added:

At the end of the fellowship time, as a junior attending, I will have the responsibility of being available to assist either team on a per diem basis, for a negotiated salary. If I had cases referred to me that I brought here under either team, I would able to operate on my own patients with assistance from either group and collect a percentage of the surgeon's fee.

The letter concludes with an acknowledgement that JSHI has split into two. It states

If all the above is acceptable to both teams of Jersey Shore Heart Institute, please call me tonight and okay it and I will start on my calls tomorrow. If its not acceptable, please call me so I can move on arranging for my malpractice, etc.

Plaintiff testified at her deposition that she had conversations with both defendants after her July 8 letter. She said that they both agreed to the salary requirement of $100,000 for the remaining six months of her fellowship and also agreed to her requirement of future employment as an attending cardiac surgeon. The only thing not resolved in any detail was her salary for her position as an attending surgeon. She said the defendants indicated they would discuss it and get back to her. When she raised the issue, she did not receive a response except for further statements by defendants that they were talking about it or preparing it and that it would be completed shortly. Plaintiff said she did not press the issue because she knew that the defendants were worried about their individual practices and patient care. She was told by Dr. Roberts in June that, "There's a contract sitting on my table. I haven't had a chance to look at it." However, when the year fellowship was over, she met with both defendants who told her, "You know, we are so sorry. At this time I don't think we are offering you a contract." Plaintiff was shocked and angered by this statement. She stated,

I'm just offended by the betrayal in this information that they were candidly making promises to use my services, constantly for the first six months and then calling, having the gall to call me back with the same promise.

When asked how she was discriminated against, she stated:

ANSWER: I believe I was discriminated because I was a woman and maybe I don't match the way they imagine a cardiologist should look, because I'm not tall enough, big enough . . . When I trained it was .1 percent not one percent, .1 percent of woman surgeons become cardiac surgeons. You go to a meeting, nine surgeons were men. They all have had the same experience as I have had and that's why I feel it has to do with the fact that I am a woman.

QUESTION: Did Dr. Roberts every say anything to you of that nature, that, "We are not hiring you because you are a woman?"

ANSWER: No, he did not.

When asked how she was damaged, she stated that her personal damage was that her name in the referring community of physicians within Monmouth County was adversely affected because she was not hired as an attending surgeon. Moreover, she was not able to practice cardiac surgery in Monmouth County, which was the whole reason that she agreed to the fellowship. Because St. Michaels Hospital in Newark was too far from her practice in Monmouth County, she had to essentially switch from what she wanted to be, a cardiac surgeon, to thoracic and vascular surgery.

. . . Because I have to start all over in a new way. Thoracic was not my forte. I'm certified by the American Board of Thoracic Surgeons, but that's not the way I trained, and that's not the way I wanted to practice, so had to switch and make a whole new setup to do.

Plaintiff argues that defendants refused to judge her on the basis of her ability and merit, failed or refused to make available to her equal opportunity to promotion and advancement, failed and refused to consider her merit and ability and judged her not on her performance while she completed the fellowship but rather on her gender and ethnicity. She claims she suffered loss of income because she was denied employment as a cardiac surgeon and would suffer future loss as well.

Plaintiff's first amended complaint was filed on May 13, 1999. Subsequently, defendants answered the complaint and discovery was conducted. Dr. Khorasani stated in his deposition that Dr. Surya had not successfully completed her fellowship because of problems with the nursing staff, her failure to follow directions, and because she was "generally unreliable." Both defendants moved for summary judgment.

Following oral argument on December 2, 2005, the motion judge granted summary judgment and dismissed plaintiff's complaint. R. 4:46-2(c) specifies that an issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together will all legitimate inferences therefrom favoring the non-moving party, would require submission of the issues to the trier of fact.

Summary judgment is appropriate if "there is no genuine issue as to any material fact challenged and . . . the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). Without assessing credibility, weighing the evidence or determining its truth, the motion judge must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). See also Judson v. Peoples Bank & Trust Company of Westfield, 17 N.J. 67, 75 (1954). A party may defeat a motion for summary judgment by demonstrating "that the evidential materials relied upon by the moving party, considered in light of the applicable pertinent proof, raise sufficient credibility issues 'to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.'" D'Amato v. D'Amato, 305 N.J. Super. 109, 114 (App. Div. 1997) (quoting Brill, supra, 142 N.J. at 523). A trial court must not decide issues of fact; it must only decide whether there are such issues. Brill, supra, 142 N.J. at 540; Judson, supra, 17 N.J. at 75; R. 4:46-5.

On appeal we are governed by the same standards. We must decide whether there was a genuine issue of fact and, if not, determine whether the lower court's ruling on the law was correct. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).

With respect to count one alleging race and gender discrimination under N.J.S.A. 10:5-12(a), the motion judge pointed out that plaintiff was born in India, Dr. Khorasani was born in Iran, and JSHI employed Brook Dejene, and African-American, as an attending physician. With regard to gender discrimination, defendants argued that if JSHI discriminated against women, it would have declined plaintiff's request for employment and privileges in the first instance. Moreover, the record is barren as to any indication of discriminatory actions by defendants or JSHI. Indeed, the only indication of discrimination in plaintiff's deposition was a conversation she had with Dr. Khorasani in which she stated:

He also mentioned to me that even though I had worked with the Heart Institute and he had been with Dr. Roberts for a long time, he tried to make me understand that Jersey Shore Medical Center itself was quite discriminatory in many ways and they would eventually look for a male, someone who was more appropriate for the position, and he told me more than once and he warned me and he said, "You know, I don't know, you may not fit their image," but he never said, "You don't fit their image." He said may not fit their image.

Therefore, the only discussion with respect to gender discrimination was as to JSMC, not the individual defendants or JSHI.

Our Supreme Court outlined the elements necessary to establish a prima facie case of unlawful discrimination as follows:

The plaintiff must demonstrate by a preponderance of the evidence that he or she (1) belongs to a protected class, (2) applied and was qualified for a position for which the employer was seeking applicants, (3) was rejected despite adequate qualifications, and (4) after rejection the position remained open and the employer continued to seek applicants for persons of plaintiff's qualifications. Establishment of the prima facie case gives rise to a presumption that the employer unlawfully discriminated against the applicant. The burden of going forward then shifts to the employer to rebut the presumption of undue discrimination by articulating some legitimate, non-discriminatory reason for the employee's rejection. The plaintiff then has the opportunity to prove by a preponderance of the evidence that the legitimate non-discriminatory reason articulated by the defendant was not the true reason for the employment decision but was merely a pretext for discrimination.

[Anderson v. Exxon, 89 N.J. 483, 491 (1982).]

See also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). Here there is no dispute that plaintiff satisfied the first two conditions for a prima facie case of discrimination. As to the third requirement that plaintiff was rejected for the position of attending physician despite adequate qualifications, the defense articulated two non-discriminatory reasons for the decision not to hire her for that position: (1) Her performance as a fellow was unsatisfactory. She had problems with the nursing staff as well as patient care problems. She would not follow Khorasani's directions as to how to perform a procedure. She was unreliable and needed constant supervision. (2) It was well known to plaintiff that Dr. Roberts and Dr. Khorasani had a "strained relationship" and that during the time of her fellowship they were going in different directions, splitting JSHI into two separate practices. Ultimately, this led to JSHI losing it's exclusive privileges for cardiac surgery with JSMC.

It therefore becomes plaintiff's burden to show that the reason given by defendants was pretextual. In DeWees v. RCN Corp., 380 N.J. Super. 511 (App. Div. 2005) we discussed what a plaintiff must show on a summary judgment motion to rebut the employer's non-discriminatory reasons. We stated:

(A) plaintiff may defeat a motion for summary judgment "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 motivation or determinative cause of the adverse employment action. (Quoting from Fuentes v. Perskie, 32 F.3d 759, 761-62 (3rd Cir. 1994)).

As to the first means of proof, the Fuentes court explained: "The non-moving 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'," Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509, 531 (3rd Cir. 1992), cert. denied, 510 U.S. 826, 114 S. Ct. 88, 126 L. Ed. 2d 56 (1993), and hence infer "that the employer did not act for [the asserted] non-discriminatory reasons."

Josey v. John R. Hollingsworth, 966 F.2d 632, 638 (3rd Cir. 1993).

We have adopted and constantly applied this standard.

[DeWees, supra, 380 N.J. Super. at 528-29.]

Furthermore, in order to prove pretext, a plaintiff must do more than simply show that the employer's reason was false; he or she must also demonstrate that the employer was motivated by discriminatory intent. Viscik v. Fowler Equip. Co., 173 N.J. 1, 14 (2002).

In this case plaintiff does not set forth any facts to prove that the defendants' proffered reason was merely a pretext for discrimination. That is, while she asserts facts to show that the defendants' reasons were false, she does not put forth facts that they were motivated by a discriminatory intent. Viscik, supra, 173 N.J. at 14. Accordingly, count one was properly dismissed.

The motion judge dismissed count two of plaintiff's complaint alleging breach of contract after finding there was never a meeting of the minds with regard to plaintiff's post-fellowship employment. We disagree with the grant of summary judgment on this count. Plaintiff has alleged in her deposition that both defendants assured her verbally that upon termination of the fellowship she would be given a position as an attending cardiac surgeon. She states that she would never have taken another fellowship, having completed one and been board certified, unless she had that assurance. While defendants argue that at most that there was an agreement to make an agreement and that the conditions outlined by plaintiff lacked specificity as to necessary items including salary, it is out view that there are factual issues which cannot be resolved on summary judgment. For the same reason we find it was error to dismiss the third count charging breach of implied covenant of good faith and fair dealing since there are factual issues as to whether there was an enforceable contract. See Noye v. Hoffmann-La Roche, Inc., 238 N.J. Super. 430 (App. Div. 1990).

As to the fraud count of plaintiff's complaint, under the central case of Jewish Center of Sussex County v. Whale, 86 N.J. 619, 624 (1981) a complainant must demonstrate: (1) a material misrepresentation of a presently existing or past fact; (2) knowledge of the falsity of the material misrepresentation and with the intent that the other party rely upon it; and (3) actual detrimental reliance on that misrepresentation.

Giving plaintiff the benefit of the facts and legitimate inferences on a motion for summary judgment, a factual issue could arise as to whether defendants misrepresented to her that she would be an attending physician, knowing that she would rely upon that misrepresentation, which caused her damage and detrimental reliance. Therefore, the matter cannot be disposed of on summary judgment.

On the other hand, we concur in the ruling of the motion judge that there is no factual issue as to plaintiff's claim of wrongful discharge since plaintiff was not discharged but reached the end of her fellowship, and was not offered a position as an attending surgeon. That is, her factual assertions were directed toward a breach of contract in the failure to appoint her as an attending physician and not a wrongful discharge from that position. Furthermore, the motion judge properly granted summary judgment dismissing count five alleging intentional infliction of emotional distress since plaintiff provided no facts tending to show "extreme and outrageous conduct" by defendants. As stated in Borecki v. Eastern Intern. Mgmt. Corp., 694 F. Supp. 47 (D.N.J. 1988),

It is not enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress or even that his conduct has been characterized by "malice," or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is won in which the recitation of facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, "Outrageous!"

Plaintiff has not set forth evidence to satisfy the elements for either intentional infliction of emotional distress or negligent infliction of emotional distress. Therefore, summary judgment was properly granted as to this claim.

This dismissal of counts one, four, and five is affirmed, the dismissal of counts two, three, and six is reversed and the matter is remanded to the Law Division, Monmouth County for trial. We do not retain jurisdiction.

Affirmed in part. Reversed in part.

(continued)

(continued)

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A-2631-05T3

December 11, 2007