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George E. Piper, D.O v. the University of Medicine

June 8, 2011

GEORGE E. PIPER, D.O., PLAINTIFF-APPELLANT,
v.
THE UNIVERSITY OF MEDICINE AND DENTISTRY OF NEW JERSEY, SCHOOL OF OSTEOPATHIC MEDICINE, AND DEAN R. MICHAEL GALLAGHER, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-2629-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 5, 2011

Before Judges Fuentes, Gilroy and Ashrafi.

Plaintiff, Dr. George Piper, appeals from two November 6, 2009 orders that granted summary judgment to defendants, University of Medicine and Dentistry of New Jersey, School of Osteopathic Medicine (UMDNJ-SOM) and R. Michael Gallagher, a former Dean of UMDNJ-SOM. We affirm.

I.

Plaintiff resigned from his employment at UMDNJ-SOM in the fall of 2005. On March 21, 2006, plaintiff filed a complaint in the Law Division alleging: retaliation and constructive discharge in violation of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8 (count one); a wrongful discharge (count two); tortious interference with his economic advantage (count three); breach of contract (count four); breach of the covenant of good faith and fair dealing (count five); defamation (count six); and intentional infliction of emotional distress (count seven). In August and October 2009, UMDNJ-SOM and Gallagher filed motions for summary judgment. At the commencement of oral argument on November 6, 2009, plaintiff abandoned all causes of action except the CEPA claims. On that date, the court entered the two orders appealed from supported by an oral decision.

II.

Viewed most favorably to plaintiff, see R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), the motion record discloses the following. Plaintiff, a physician, was employed by UMDNJ-SOM as Associate Dean for the Graduate Medical Education (GME) Department since 1994. At several meetings of the Executive Council Meeting between April and June 2004, plaintiff was asked to change certain statistics UMDNJ-SOM reported to U.S. News and World Report magazine to reflect a higher percentage of the UMDNJ-SOM graduates going into primary care medicine. Plaintiff was asked to count traditional rotating interns as entering primary care medicine although, according to plaintiff, those students generally entered specialty residencies. Plaintiff objected and indicated that he believed changing the statistics would be fraudulent.

On August 11, 2004, Gallagher announced that he was establishing a task force to determine the future direction of the GME Department. The task force began its investigation on September 9, 2004. On November 16, 2004, the task force interviewed GME staff, including Louise Tulina, n/k/a Louise Tulina-Dunn, who complained about the demeanor of the office manager. Task force members asked Tulina-Dunn whether plaintiff and the office manager ate lunch together and whether they worked together behind closed doors. Tulina-Dunn answered both questions in the affirmative. On November 23, 2004, plaintiff prepared Tulina-Dunn's performance evaluation, giving her a "1", as compared to her previous rating of "4," out of a possible total of "5."

In December 2004, following the task force review, Gallagher requested the University Office of Business Conduct (OBC) and the Office of Affirmative Action (OAA) to investigate whether plaintiff had showed favoritism to GME's office manager and/or created a hostile work environment by virtue of the poor performance evaluation plaintiff had given to Tulina-Dunn. Plaintiff was not permitted to participate in the investigation. The investigation resulted in a finding of an "appearance of" retaliation by plaintiff against Tulina-Dunn.

On January 19, 2005, Gallagher informed plaintiff that he was removing plaintiff from the Associate Dean position and returning him to regular faculty status as an Associate Professor in the Department of Psychiatry where he would be required to participate in clinical detox units. On January 21, 2005, Gallagher confirmed in a letter to plaintiff that "effective January 20, 2005, [plaintiff's] administrative appointment as Associate Dean for [GME] is deleted." The letter further advised plaintiff that "[w]ith [the] return to regular faculty status[,] your current academic base salary will decrease from $186,533.00 to $171,610.00, a decrease of 8% equaling a reduction of $14,923. Your new academic base is above the applicable maximum for your bargaining title of Associate Professor. . . . The change described in this letter will be reported to the University's Board of Trustees."

On February 4, 2005, plaintiff's then-attorney wrote to the UMDNJ's Vice President of Legal Management objecting to the actions taken against plaintiff, including plaintiff being required to perform clinical work in detox units, which he had not done for over fifteen years. On February 22, 2005, plaintiff's attorney sent a second objection letter concerning plaintiff having to relocate his outpatient practice from Stratford to Cherry Hill and the requirement that plaintiff's Department Chair report to Gallagher regarding plaintiff's work.

By letter dated March 22, 2005, Gallagher notified plaintiff that the OBC and OAA had found that an "appearance of both retaliation and hostile work environment" existed within the GME Department. The OBC and OAA recommended: "[d]issolving the reporting structure between [plaintiff] and the Department's Administrative Coordinator I"; deleting plaintiff's Associate Dean title; reassigning plaintiff to another position within UMDNJ-SOM; and "[p]roviding [plaintiff] with ...


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