ALVIN H. MORGENSTERN v. AVENUE E. ANESTHESIA ASSOCIATES LLC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1015-08T31015-08T3

ALVIN H. MORGENSTERN,

Complainant-Appellant,

v.

AVENUE E. ANESTHESIA ASSOCIATES,

LLC,

Respondent-Respondent.

___________________________________

 

Submitted February 22, 2010 - Decided

Judges Rodr guez and Chambers.

On appeal from a Final Decision of Division of Civil Rights, Docket No. EJ01WB-53190-E.

Alvin H. Morgenstern, appellant pro se.

Sharkey & Campisi, attorneys for respondent Avenue E. Anesthesia Associates, LLC (Jeffrey Campisi, of counsel and on the brief).

Paula T. Dow, Acting Attorney General, for respondent Division of Civil Rights, (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Anne Marie Kelly, Senior Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

Complainant Alvin H. Morgenstern, M.D., appeals from the determination of the New Jersey Division on Civil Rights (the Division) that there is no probable cause to support his claim of discrimination against his employer, respondent Avenue E Anesthesia Associates, LLC. We affirm.

Complainant is a board certified anesthesiologist who began working for respondent in February 2000. Respondent is a limited liability company that specializes in the practice of anesthesia at Bayonne Medical Center in Bayonne, New Jersey. In May 2007, complainant filed with the Division a discrimination complaint against respondent contending that in March of that year he had been denied membership in the respondent limited liability company due to his age and his perceived handicap. Complainant was fifty-eight years old at the time of the complaint, the oldest doctor working in respondent's practice. Due to a hip surgery, he contends that he walks with a noticeable gait that causes him to move more slowly than others and requires the use of a cane. He asserted that respondent's director made derogatory remarks about his age and gait.

Respondent disputed complainant's assertions. It explained that the requirements for membership are (1) merit based performance, (2) residence within thirty minutes of Bayonne Medical Center in order to be able to arrive at the hospital within thirty minutes to provide services for nighttime emergencies, and (3) board certification. While it acknowledged that complainant met the board certification requirement, it contended that he did not live within thirty minutes of the hospital nor did he meet respondent's performance based standards.

In accordance with N.J.A.C. 13:4-4.1(b), the Division conducted an investigation to determine whether there was probable cause to believe that respondent had violated the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, by denying complainant membership. The Division's investigator received written submissions from the parties and met with complainant and respondent's director and attorney.

Complainant did not dispute that he did not live within thirty minutes of the practice. However, he argued that the schedules of the doctors had been adjusted to compensate for this. Respondent has a call system whereby doctors on one list are on-call, and doctors on a second list are backup to the on-call doctor. Doctors on first or second call must be able to arrive at the hospital within thirty minutes. When complainant is on first call duty, he stays at the hospital; however, he is not placed on second call duty on nights and weekends because of his distance from the hospital. He contended that in compensation, he works extra weekend call or first-call or later on other days.

The parties hotly contested whether complainant was properly denied membership based on his merit based performance. Complainant disputed respondent's criticism of his performance, noting that he had few complications with his patients at the hospital and identified physicians who had a favorable opinion of his work. Respondent criticized complainant's work ethic, attitude, and level of performance and identified physicians who did not want to work with complainant.

In the course of the investigation, the Division's investigator interviewed two physicians who had worked with complainant and the Director of Invasive Cardiology at the Bayonne Medical Center, a nurse, and these three individuals had negative comments about complainant's work. However, another doctor contacted by the investigator had no complaints about complainant's work. Complainant submitted favorable letters from 2000, written by other doctors on his behalf to the Bayonne Medical Center's credentials committee.

The report of the investigation recommended a finding of no probable cause and stated in conclusion:

The investigation did not support Complainant's claim that Respondent subjected him to unlawful discrimination on the basis of age and perceived disability. The investigation disclosed that Respondent cited Complainant's failure to meet two criteria for partnership, specifically, 30 minute response time and work performance. Respondent identified several doctors who complained about Complainant's work performance. Although Complainant refuted Respondent's characterization of his work, Complainant confirmed that he is not available to work on second call nights or weekends because he lives more than 30 minutes away from the hospital.

On July 28, 2008, the Division issued its findings of no probable cause. See N.J.A.C. 13:4-10.2(a) (providing that upon the completion of an investigation of a complaint of discrimination the Director shall issue a finding of "whether or not probable cause exists to credit the allegations of the verified complaint"). A finding of no probable cause is a final order. N.J.A.C. 13:4-10.2(e). Complainant appeals the Director's finding of no probable cause to this court. N.J.S.A. 10:5-12.

Complainant contends that the Division did not properly investigate and analyze the matter. He asserts that the investigator only interviewed medical staff closely associated with respondent's director and did not interview doctors and nurses suggested by complainant. On appeal, he maintains that he could have met the thirty minute response time requirement by sleeping at the hospital.

Our review of the determination by the Division is limited. Andersen v. Exxon Co., U.S.A., 89 N.J. 483, 501 (1982). We must uphold its findings provided they are supported by "sufficient credible evidence" when "considering the proofs as a whole." Ibid.

Though an independent de novo examination of the record might lead the reviewing court to an opposite conclusion, the court's obligation is to examine the record in order to determine whether the evidence and the reasonable inferences to be drawn from it could reasonably support the decision.

[Ibid.]

It is not our role "to balance the persuasiveness of the evidence on one side as against the other." In re Grossman, 127 N.J. Super. 13, 26 (App. Div. 1974), certif. denied, 65 N.J. 292 (1974). The administrative agency must accept or reject the testimony of the witnesses. Ibid. In our review, we must accord deference to the agency's decision and will reverse only where the agency's determination is "arbitrary, capricious or unreasonable or [if the action] is not supported by substantial credible evidence in the record as a whole." N.J. Soc'y for the Prevention of Cruelty to Animals v. N.J. Dep't of Agric., 196 N.J. 366, 384-85 (2008) (alteration in original) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)).

A finding of no probable cause will be issued when the investigative findings show "that there is not a reasonable ground of suspicion supported by facts and circumstances strong enough in themselves to warrant a cautious person in the belief" that the LAD has been violated. N.J.A.C. 13:4-10.2(c). Here, the Division had evidence that complainant did not satisfy respondent's requirements for membership. He did not meet the thirty minutes response time requirement and respondent had received complaints about his conduct from doctors outside of the practice.

Notably, the record is undisputed that complainant does not live within thirty minutes of the hospital. Thus, he does not satisfy the second criteria for admission into membership, namely, that the anesthesiologist be available at the hospital within that time frame. This criteria appears designed to facilitate compliance with New Jersey's hospital licensing standards that require a hospital "[a]t all times" to have an anesthesiologist "on-site or on-call and available to reach the hospital within 30 minutes under normal transportation conditions." N.J.A.C. 8:43G-6.4. In conformity with this regulation, the anesthesia procedure and policy manual of the Bayonne Medical Center requires that "[a]n Anesthesiologist will be available within 30 minutes for an obstetrical or surgical emergency."

Commenting on this issue, the Division's report on the findings from the investigation states:

Complainant confirmed that he is the only one who is not available to work second call for nights and weekends because he resides too far from Bayonne to insure arrival within 30 minutes. Dr. Klein reiterated that Complainant's lack of availability and flexibility with respect to scheduling was a primary concern in Respondent's decision to deny him membership.

After a careful review of the record, we conclude that the evidence was sufficient to support the Division's conclusion of no probable cause and that respondent had nondiscriminatory reasons for denying complainant membership.

 
Affirmed.

(continued)

(continued)

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A-1015-08T3

April 6, 2010