A New Jersey appeals court has thrown out a $1.27 million award against a hospital and two of its top executives who had been blamed for forcing out a trio of physicians.
In a published decision, the three-judge Appellate Division panel said an employer’s “nasty” behavior is not actionable.
Appellate Division Judge Victor Ashrafi, joined by Judges Joseph Yannotti and George Leone, said the allegations against St. Joseph Regional Medical Center in Paterson, N.J.; its chairman of obstetrics and gynecology, Dr. Roger Kierce; and its chief executive officer, William McDonald, should have been dismissed at summary judgment or by a directed verdict.
“Our common law recognizes no cause of action for a hostile work environment because an employee is mistreated by a nasty boss,” Ashrafi wrote on Aug. 27, in Vosough v. Kierce. “[T]he trial court should have viewed with more circumspection the tenuous nature of plaintiffs’ allegations in a common-law contract and tort case.”
The plaintiff physicians—Khashayar Vosough, Charles Haddad and Mahipa Pallimulla—are partners in a medical group, Comprehensive Women’s Healthcare. They alleged in their lawsuit that they were forced to withdraw from their professional relationship with the hospital because of Kierce’s abusive behavior.
After about an hour of deliberations, a Bergen County jury in 2012 ordered the three defendants to pay each of the plaintiffs $500,000 as compensation. Superior Court Judge Kenneth Slomienski ordered the verdict trimmed to about $1.27 million—divided equally among the three defendants—to reflect the amount of revenue the plaintiffs actually claimed they had lost after they severed their relationship with the hospital.
The plaintiffs’ attorney, Barry D. Epstein, said it is likely that he will ask the state Supreme Court to hear an appeal.
“They were severely mistreated,” Epstein, who runs a firm in Rochelle Park, N.J., said. “The hospital wanted them to stay, but the hospital and its key people rendered that impossible.”
The attorney for Kierce, Lance Kalik of Riker Danzig Scherer Hyland & Perretti in Morristown, N.J., and the attorney for the hospital, Thomas Hastings, of Smith, Stratton, Wise, Heher & Brennan in Princeton, N.J., said only that they were gratified by the appeals court’s ruling.
The plaintiffs were independent contractors who entered into a contract with the hospital in 2002 to provide obstetric and gynecological services, according to the appeals court.
Kierce, Ashrafi said, “had a reputation of striving for an unreasonable level of perfection and being a hard-headed and belligerent taskmaster.”
“He was inclined to disparage and insult physicians and staff under his supervision,” Ashrafi added.
According to the plaintiffs, three incidents stood out in particular.
The first occurred when Kierce accused Vosough, in public, of committing perjury on the stand in a medical malpractice case, the opinion said.
The second incident occurred when Kierce announced a change in policy as to how physicians on duty were to handle patients. When Vosough protested, Kierce said “don’t let the door slap your ass” on the way out, according to the opinion.
Lastly, the plaintiffs said they felt threatened by Kierce’s response when told they were not at a mandatory meeting he had called. They quoted Kierce as saying, “‘Tell them if they don’t attend the meeting, I’m going to rip off their skulls from their skeletons and keep a head count,’” according to the opinion.
Ashrafi said that while that behavior might not have been pleasant and violated the hospital’s own by-laws, it was not actionable under the state’s Law Against Discrimination, the Conscientious Employee Protection Act or common law.
“It is important to keep in mind that plaintiffs did not and could not allege constructive discharge resulting from unlawful discrimination or from conduct that was protected by law or clear mandate of public policy,” Ashrafi said.
Further, he said, it was improper for the jury to assign blame to Kierce and McDonald individually since they were not acting outside the scope of their employment.
Kierce “was motivated, however misguidedly, by his desire to supervise in his own way the work and performance of physicians and employees in his department,” Ashrafi said. “Whether his methods were good or bad does not change their nature and purpose as acts performed on behalf of the employer.”
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