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Colello v. Bayshore Community Health Services

April 28, 2010

DORIS COLELLO, PLAINTIFF-APPELLANT,
v.
BAYSHORE COMMUNITY HEALTH SERVICES, DEFENDANT-RESPONDENT, AND ARIEL SOLIS, M.D., DEFENDANT.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-3476-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 12, 2010

Before Judges Baxter, Alvarez and Coburn.

Plaintiff Doris Colello appeals from a February 6, 2009 Law Division order that granted summary judgment to defendant Bayshore Community Health Services ("Bayshore" or "the hospital"), thereby dismissing plaintiff's hostile work environment sexual harassment complaint. We agree with plaintiff's contention that the Law Division erred by: 1) finding that the conduct of defendant Ariel Solis, M.D.,*fn1 while "deplorable and disgusting," did not rise to the level of "severe or pervasive" necessary to maintain a cause of action under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49; 2) finding that even if Solis's conduct were to be deemed "severe or pervasive," Solis was not an employee of Bayshore and therefore Bayshore could not be deemed vicariously liable for any unlawful conduct Solis may have committed; and 3) dismissing plaintiff's claims for intentional infliction of emotional distress and assault and battery. However, we affirm the dismissal of plaintiff's retaliation and aiding and abetting claims.

We thus affirm in part, reverse in part and remand for further proceedings.

I.

Plaintiff began working as a nurse at Bayshore in 1987 and enjoyed a good reputation within the hospital. On July 31, 2000, plaintiff was appointed a nursing care coordinator, making her responsible for supervising the nursing staff in the telemetry unit. Solis began his affiliation with Bayshore in 1991. As a thoracic and cardiovascular surgeon, he often attended to patients in plaintiff's unit. Solis had a reputation among the nursing staff for being overbearing and a "bully." Solis also had a reputation for being "touchy-feely" and flirtatious. However, the hospital administration did not view such conduct as "a major issue to make a scene about."

Shortly after plaintiff assumed her duties in the telemetry unit, Solis began to show a romantic interest in her. Between 2000 and 2001, he repeatedly asked her out on dates, which she declined. Solis made comments about her appearance, and initiated physical contact with plaintiff by rubbing her back and shoulders. Solis also frequently demanded that plaintiff assist him with patients, even though other nurses were already assigned to the task. Plaintiff grew increasingly uncomfortable with Solis's attentions.

In November 2002, Solis asked plaintiff to meet privately with him to discuss hospital policies and procedures. Plaintiff discussed Solis's request with her supervisor, Michelle Langevin, the director of nursing. Plaintiff told Langevin that Solis's past conduct made her uncomfortable, and that she could not understand why he wanted to speak with her because the issues were not within her scope of authority. Langevin directed plaintiff to do as Solis asked and attend the meeting.

In the meeting that ensued, Solis asked plaintiff how she had become a manager of the telemetry unit and questioned her about various hospital policies. When she referred Solis to either Langevin, Michael Teehan, the vice-president of nursing, or Raimonda Clark, Bayshore's chief operating officer, Solis stated that he would not speak to any "of them in the high-heeled shoes," and that he would only go to the "the boss man," Thomas Goldman, who was Bayshore's president and chief executive officer.

In 2003, Solis was elected by his peers to serve as the president of Bayshore's medical staff. According to Solis, the role of the medical staff president was to "represent the medical staff and liaison [sic] between the medical staff and [hospital] administration." The medical staff organization was responsible for overseeing its members, "subject to the ultimate authority of the Board of Trustees" (Board) of the hospital, and for providing recommendations to the Board on matters involving the credentials, performance and discipline of medical staff. As the medical staff president, Solis was also a member of the Board, which had the final authority on all matters related to hospital operations.

On January 6, 2003, Solis unexpectedly entered the office that plaintiff shared with another nurse, Lori Romano, and requested a meeting to "follow up" on their prior November 2002 meeting. Romano was present initially, but left the office shortly after Solis arrived. After discussing hospital matters, Solis told plaintiff that he had been in love with her for the past fifteen years. Plaintiff told Solis that his feelings for her were not reciprocated and that he was upsetting her.

Solis then leaned over and kissed plaintiff's cheek. She immediately rose from her seat and attempted to leave the office, but Solis followed her and proposed that they have an affair. He then grabbed plaintiff and forcibly kissed her, thrusting his tongue into her mouth. When plaintiff pushed him away, Solis smirked, and as he left her office, said "this is not over."

Romano later saw plaintiff, and noticed that she was "extremely upset and visibly shaken." Plaintiff told Romano she did not wish to discuss what had just happened, but stated, "[p]lease don't ever leave me alone with him again."

When plaintiff returned to work on January 13, 2003, she reported the incident to Langevin. Langevin responded that she was not surprised because Solis had always been "touchy feely." Langevin scheduled a meeting with plaintiff and other hospital administrators to discuss the January 6, 2003 incident.

On January 21, 2003, Solis approached plaintiff again and acted as if nothing had occurred. He told plaintiff that she was "looking good," and rubbed her back until she walked away. On January 22, 2003, plaintiff met with Langevin, Teehan, Cohen, and Emro Krasovec, Bayshore's vice president of human resources. Plaintiff gave a statement describing what Solis had done to her on January 6 and the day before. During the meeting, plaintiff agreed to take time off while the matter was under investigation.

Beginning on February 1, 2003, plaintiff commenced a paid leave of absence for a period of six months. While on leave, plaintiff received free counseling at a center operated by Bayshore, where the physician who treated plaintiff during this time diagnosed her as suffering from symptoms of post-traumatic stress disorder (PTSD).

Shortly after her leave began, Bayshore asked plaintiff to attend a meeting on February 14, 2003, with Krasovec, Solis, Langevin, Teehan, and Cohen. Plaintiff was uncomfortable facing Solis, but believed that she was obligated to attend. In the meeting, Solis continued to deny plaintiff's allegations, asserting that he had only lightly "grabbed each of her arms" and kissed her on her cheeks as a friendly gesture. Solis apologized if plaintiff had misconstrued his actions and for upsetting her. Plaintiff refused his apology, and the meeting concluded.

Plaintiff returned from her leave of absence on August 13, 2003. To minimize her contact with Solis, plaintiff accepted Bayshore's offer to fill a recently-created clinical admissions coordinator position. Bayshore acknowledged at appellate oral argument that this was a less prestigious position than the one she occupied before her leave of absence, but maintained that her salary was maintained at its prior level.

After the February 14, 2003 meeting between plaintiff, Bayshore administration and Solis, the hospital commenced an investigation. Bayshore's sexual harassment policy did not specifically address the harassment of its employees by attending physicians. Instead, the policy more generally stated that Bayshore would "not permit any employee to illegally harass others with whom he/she has business interactions, including but not limited to other employees, customers and vendors, or permit any outsider to harass its employees." It prohibited "[a]ctions, words, jokes or comments" based on an individual's sex, and expressly forbade "sexual conduct (both overt and subtle)." If a complaint was filed, Bayshore was obligated to conduct an investigation to determine whether any corrective action was warranted. Such corrective action could include discharge of the offending employee.

According to Teehan, investigations of employee-on-employee incidents normally concluded with final determinations of whether the alleged harassment had actually occurred. However, the incident involving Solis's treatment of plaintiff was viewed as being unique, because as an attending physician Solis was not regarded as a Bayshore employee. Because Solis was a member of the medical staff, Krasovec and Cohen determined that the medical staff bylaws should control the hospital's response.

The medical staff bylaws specified that if a complaint alleged that a physician's "professional performance" was "impaired" by "mental or emotional illness" or other causes, the medical staff president was required to appoint members to conduct an investigation and determine if "there is sufficient reason to believe that impairment may be an issue" and whether "corrective action" was required. If so, the bylaws specified that authorized "corrective actions" would range from a referral for treatment to a reduction or suspension of clinical privileges, or a suspension or expulsion from the medical staff.

Because Solis was the medical staff president, Cohen requested that Dr. Shuber Fan, the vice president of the medical staff, appoint two doctors to investigate plaintiff's allegations. Fan selected Drs. Amal Azer and Douglas Chudzik, whom Cohen contacted to explain the purpose of the investigation.

Chudzik testified at his deposition that Cohen provided him with no guidance on conducting the investigation. Azer testified that Cohen simply directed her to follow the bylaws in investigating the matter. She also asserted that she had not been given any information regarding appropriate conduct in the workplace or any definitions of sexual harassment. In fact, none of the physicians at Bayshore, including Solis, were ever required to attend any sexual harassment training.

Azer and Chudzik each spoke separately to plaintiff, but neither spoke with Romano or Solis. Cohen had already spoken with Solis, at which time Solis admitted only to having greeted plaintiff by kissing her cheeks. Therefore, Azer and Chudzik concluded that their investigation would not "gain anything more" by discussing plaintiff's allegations with Solis.

Azer and Chudzik met with Cohen on January 31, 2003, and reported that while they found plaintiff to be sincere, they were unable to conclusively determine what had happened. Azer explained that she was unsure about the truthfulness of plaintiff's version of events because Azer believed plaintiff should have repelled Solis's alleged January 6, 2003 assault more aggressively.

Cohen memorialized his discussion with Azer and Chudzik in a confidential memo dated January 31, 2003, and deemed Solis impaired. Consistent with the impaired physician provisions of the bylaws, Cohen contacted the New Jersey Board of Medical Examiners (BME), and learned that the BME offered two methods for reporting impaired physicians. After discussing the options with Solis, Cohen "cajoled" Solis to enroll in a treatment program through the BME's confidential reporting route for impaired physicians. According to Cohen, the purpose of the program was to rehabilitate impaired physicians without "destroying their careers."

Solis initially submitted to anger management treatment, but interfered with Cohen's efforts to obtain information about his progress. Cohen eventually became frustrated by Solis's refusal to cooperate, and filed a formal complaint against Solis with BME, resulting in proceedings that were potentially open to the public.

On March 13, 2006, the BME issued a private letter to Solis expressing concern with Solis's admission that he had "kissed [plaintiff] on both cheeks and grabbed her arms." However, instead of initiating formal action against Solis's medical license, BME proposed to "close" the matter if Solis agreed to submit to "an evaluation and counseling for sexual harassment and anger management."*fn2 Solis accepted the BME's terms in September 2006.

On November 29, 2007, Bayshore issued a letter advising plaintiff that it deemed her harassment complaint against Solis resolved. Solis retained his attending privileges at the hospital and was never disciplined or punished by Bayshore for his actions. According to plaintiff, she was upset whenever she saw Solis in the hospital, and deliberately took steps to avoid him.

Plaintiff believed that Bayshore retaliated against her for filing a complaint against Solis. She maintained that Clark had expressed a desire to transfer her to an undesirable position in the hospital to induce her to leave her employment. Her allegation is supported by the deposition testimony of Gerald Costa, who became vice president of medical affairs when Cohen retired; however, the details of Clark's alleged intentions, such as when and why Clark made the statement, are not clear from the portions of the deposition transcript in the record.

Plaintiff also complained that in 2004 Dr. Yong Choo, another attending physician, had made a series of inappropriate comments to her and another nurse. On one occasion, Choo expressed his frustration at having to wait for a nurse to provide him with information from a patient's medical chart, describing his experience of being interrupted at home by nurses: "I could just be getting out of the shower and they're on the phone and I'm sitting there naked and waiting for answers and responses and I'm just waiting and waiting and waiting and nobody is getting back to me." Choo also asked ...


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