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Morris J. Washington, M.D v. Plaintiff

April 13, 2011


The opinion of the court was delivered by: Thompson, U.S.D.J.




This matter comes before the Court upon the Motion to Dismiss [docket # 6] filed by Defendants CentraState Healthcare Systems, Inc., John Gribbin, Daniel Messina, Kim Kelly, and Rich Mackesy (collectively, "Defendants"). Plaintiff Morris J. Washington, M.D., opposes the motion [9]. The Court has decided the matter upon consideration of the parties' written submissions and without oral argument, pursuant to Fed. R. Civ. P. 78(b). For the reasons given below, Defendants' Motion to Dismiss is denied.


Plaintiff Washington is an African-American surgeon who alleges that he was discriminated against by CentraState Healthcare Systems, Inc., ("the Hospital") and key hospital personnel because of his race and in retaliation for complaints he made about inappropriate behavior by hospital employees. He brings his discrimination and retaliation claims under 42 U.S.C. § 1981 and the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1, et seq., and he also alleges that Defendants engaged in a civil conspiracy and slander per se in violation of New Jersey state law. Defendants now move to dismiss the case and compel Plaintiff to participate in mediation and arbitration, which they believe is required by the parties' contractual agreements.

Plaintiff is an accomplished doctor who has provided surgery services to the Hospital since 2002. (Compl. ¶ 14) [1]. In 2006, Plaintiff-on behalf of Endo-Surgical Associates of Central New Jersey, LLC ("Endo-Surgical"), a company wholly-owned by Plaintiff-contracted with the Hospital to provide bariatric medical services.*fn2 (Id. at ¶¶ 20--21.) Under the parties' contract, the Bariatric Services Agreement ("BSA"), Plaintiff would serve as the Medical Director for the Hospital's Bariatric Program from July 2006 to June 2009, and Plaintiff's company, Endo-Surgical, would provide bariatric management and consulting services from March 2006 to February 2010. (Id. at ¶ 22.) The contract expressly states that it does not create an employer--employee relationship. (Aff. of Vincent Cino, Esq., Ex. A, Services Agreement 5-- 6) [6-2]. The BSA also contains a "Mediation and Arbitration" clause that provides:

The parties agree to attempt to resolve any disputes under this Agreement in good faith through mediation. . . . Any controversy or claim arising out of or relating to this Agreement or the breach thereof which cannot be resolved or concluded in a timely fashion by mediation, shall be settled by arbitration . . . .(Id. 6.)

Plaintiff alleges that he has been the target of harassment ever since he became affiliated with the Hospital in 2002. For instance, Hospital employees or affiliates discouraged new surgeons from joining Plaintiff's practice, made false accusations about his treatment of patients, and subjected his colleagues to unreasonable oversight. (Compl. at ¶ 32.) Plaintiff also asserts that the Hospital has tolerated inappropriate behavior by its employees. In particular, Plaintiff alleges that the Chief of Surgery, Dr. Charles Dinerstein, has often made derogatory sexual and racial comments. (See id. at ¶¶ 40--43.) In 2006, Plaintiff and three other African-American professionals were performing surgery when Dr. Dinerstein entered the operating room and quipped that he now understood "what it's like to operate in the 'hood.'" (Id. at ¶ 48.) In April 2008, during a departmental meeting about upcoming diversity training, Dr. Dinerstein offered that the purpose of the training was so the staff could "learn the ways of the gentiles." (Id. at ¶ 49.) Another doctor joked that the staff would "have to listen to Arab music." (Id.) Plaintiff complained about Dr. Dinerstein to Defendant John Gribbin, the Hospital's Chief Executive Officer, and was told, "[T]hat's just Chuck," and that next time Plaintiff should respond by saying "something clever back about the Jews." (Id. at ¶ 51.) Plaintiff followed up by sending a letter to the Hospital's Chief of Staff detailing the various inappropriate incidents; he received no response. (Id. at ¶¶ 56--57.) After writing a second letter, Plaintiff was told that his complaints would be investigated, but Plaintiff does not believe any action was ever taken. (Id. at ¶¶58--60.)

Plaintiff believes that his complaints caused him to become the subject of a campaign of retaliatory harassment by Hospital personnel. The key instances are as follows: (1) the Hospital refused to renew Plaintiff's directorship of the Bariatric Program and replaced him with a less-qualified doctor for no rational reason; (2) the Hospital breached the terms of the BSA; (3) the Hospital refused to renew the BSA for no rational reason; and (4) Plaintiff was personally harassed, marginalized, and discriminated against by Hospital personnel. (Id. at ¶ 61).

In February 2009, Plaintiff was told that the Hospital would not be renewing his directorship of the Bariatric Program once the BSA expired in June 2009. (Id. ¶ 62.) When Plaintiff asked why, Hospital personnel told him it was because he had begun providing bariatric services at another hospital, Bayshore, in July 2008. (Id. at ¶ 72.) Plaintiff states that he spoke with Defendant Daniel Messina when he first began his relationship with Bayshore Hospital and told Messina that the reason he was branching out was the ongoing harassment at CentraState Hospital. (Id. at ¶ 74.) Messina responded that Plaintiff would "regret" this "bad decision." (Id.) However, Plaintiff maintains that the BSA did not forbid his work at Bayshore and that it is common practice for other CentraState physicians to provide services at other hospitals. (Id. at ¶¶ 75--76.) Plaintiff later offered to quit working at Bayshore if the Hospital would renew the BSA; the Hospital refused but offered no explanation. (Id. at ¶¶ 79--80.)

In addition to the Hospital's refusal to renew the BSA, Plaintiff also details numerous instances of alleged harassment after he began providing services at Bayshore, including the following: he was denied the use of a conference room to conduct a routine seminar, (id. at ¶ 81); his name was excluded from a weight-loss fair hosted by the Hospital, (id. at ¶ 82); his picture was removed from a wall featuring members of the Hospital's advisory board, (id. at ¶ 83); he was not named a co-applicant on the Hospital's application to certify its bariatric program as a surgery "Center of Excellence" even though the application cited statistics from Plaintiff's surgeries, (id. at ¶ 84); the Hospital terminated one of Plaintiff's assistants but failed to allege poor performance as required by the BSA, (id. at ¶ 85); prospective patients were told that Plaintiff was no longer affiliated with the Hospital, (id. at ¶ 86); Plaintiff was forced to pay for training that was provided free to other Hospital surgeons, (id. at ¶¶ 89--94); the Hospital stopped referring bariatric patients from the Hospital's service line to Plaintiff, (id. at ¶¶ 97--98); Plaintiff was not invited to a bariatric symposium, (id. at ¶ 100); he stopped receiving survey questionnaires on the Hospital's mortality performance, (id. at ¶¶ 102--103); his authorization to perform bariatric surgeries on adolescents was revoked, (id. at ¶¶ 104--105); and the Hospital refused to consent to the assignment of his business, Endo-Surgical, to a third-party, (id. at ¶ 107).

In late July 2010, Plaintiff filed employment discrimination charges with the U.S. Equal Employment Opportunity Commission (EEOC) and the New Jersey Division on Civil Rights (NJDCR) alleging employment discrimination. Plaintiff subsequently dropped the NJDCR charges; the EEOC is currently investigating Plaintiff's claims. (Id. ¶ 13.)

On December 3, 2010, Plaintiff filed the Complaint in this Court. Defendants now move to dismiss and compel Plaintiff to participate in mediation and arbitration. They argue that the BSA's mediation and arbitration clause is valid and enforceable under the Federal Arbitration Act and a similar New Jersey statue, and they further argue that Plaintiff's claims in this lawsuit fall within the scope of the BSA's clause. Plaintiff ...

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