On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket Number L-872-99.
Before Judges Braithwaite, Parker and Bilder.
The opinion of the court was delivered by: Bilder, J.A.D. (retired and temporarily assigned on recall)
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This case arises under the Law Against Discrimination, N.J.S.A. 10:5-1 et seq. Plaintiffs Dr. Roberta Rubin and Dr. Roger Adlersberg appeal from an order of the Law Division granting summary judgment dismissing with prejudice count one of their complaint alleging age discrimination. Because the remaining count was dismissed with prejudice by stipulation, the matter is ripe for appeal.
Plaintiffs are medical doctors specializing in the practice of pathology. Together with a third pathologist, Dr. Irving Weiss, they have provided pathology services to defendant Chilton Memorial Hospital for many years, Rubin since 1968 and Adlersberg since 1972. Until 1992 they provided these services pursuant to annual contracts. In 1992 the three pathologists entered into an agreement for an indefinite term, terminable by either party without cause on ninety days advance notice. By a letter of June 25, 1997, the Hospital notified the doctors of its intention to enter into an exclusive contract with Dr. Robert McCord to operate the Pathology Department and terminated plaintiffs' contract as of October 20, 1997. The plaintiffs were advised they could continue to perform pathology services if they arrived at an arrangement with Dr. McCord. Apparently they made such arrangements because the record shows resignations addressed to him in April and May of 1998.
At the time of the termination Dr. Rubin was 63 and Dr. Adlersberg was 68. In their complaint they allege that the contract was terminated for reasons relating to their ages in violation of the LAD; to permit their replacement with 55 year old Dr. McCord.
In a letter opinion of December 11, 2001, the trial judge, finding there were no issues of fact existing, Brill v. Guardian Life Ins. Co. of America, 142 N.J. 520, 539-540 (1995), applied the standards set forth in Pukowsky v. Caruso, 312 N.J. Super. 171, 182-183 (App. Div. 1998), and determined that plaintiffs were independent contractors and, as such, were not protected by the LAD. Ibid. Accordingly he dismissed the LAD claim.
On appeal plaintiffs claim error in summarily finding they were independent contractors rather than employees, and that, in any event, as independent contractors they are entitled to the protection of the LAD by virtue of N.J.S.A. 10:5-12l.
On appeal plaintiffs do not argue that independent contractors are afforded the protection of N.J.S.A. 10:5-12a, a section of the LAD which protects against discrimination in hiring, discharging, and the terms and conditions of employment. Rather they contend they were employees and not independent contractors.
As already noted, in his letter opinion the trial judge examined the standards set forth in Pukowsky and held that plaintiffs were not employees but independent contractors. We agree. The undisputed facts compel that conclusion; a reasonable jury could not have found to the contrary. Brill v. Guardian Life Ins. Co. of America, supra at 142 N.J. 539-540 (when deciding summary judgment motions trial courts are required to engage in the same type of analysis as is required by Rule 4:37-2(b), a directed verdict at end of plaintiff's case, i.e. whether evidence exists from which the jury could find for plaintiff).
The written agreement entered into by plaintiffs in 1992 provided, inter alia:
In the performance of the work, duties and obligations undertaken by the Pathologists, it is mutually acknowledged, understood and agreed that the Pathologists are at all times acting and performing as independent contractors to the Hospital practicing the profession of medicine. The Hospital shall neither have nor exercise any control or direction over the methods by which the Pathologists shall perform their professional work and function, the sole interest and responsibility of the Hospital being to provide that the service covered by this Agreement shall be performed and rendered in a competent, efficient, and satisfactory manner and in accordance with the medical staff Hospital By-Laws, rules and regulations. Accordingly, it is understood that the Hospital will not ...