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Morgenstern v. Avenue E. Anesthesia Associates

April 6, 2010

ALVIN H. MORGENSTERN, COMPLAINANT-APPELLANT,
v.
AVENUE E. ANESTHESIA ASSOCIATES, LLC, RESPONDENT-RESPONDENT.



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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 22, 2010

Judges Rodríguez and Chambers.

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 ...


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