The opinion
THE UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Plaintiff, : Case No. 19-cv-18827 (ES) (CLW)
EAST ORANGE GENERAL HOSPITAL OPINION
and JOHN/JANE DOES A through D,
Defendants.
CATHY L. WALDOR, U.S.M.J.
This matter comes before the Court upon Defendant East Orange General Hospital’s
(“EOGH”) motion for summary judgment. (ECF No. 62). The parties consented to the
undersigned’s authority to resolve this motion. (ECF No. 50). In accordance with Federal Rule
of Civil Procedure 78 and Local Civil Rule 78.1, the Court resolves EOGH’s application without
oral argument. Upon careful consideration of the record for this matter, and for good cause shown,
and for the reasons discussed herein, EOGH’s motion is GRANTED IN PART AND DENIED
IN PART.
1. RELEVANT BACKGROUND!
a. Plaintiff’s Employment with EOGH
Plaintiff Yvan Ducheine began working as a general surgeon at EOGH in 1998. (Def.
Statement of Facts § 1, ECF No. 62-3). In that role, Plaintiff was required to comply with and
abide by EOGH’s medical staff Bylaws. (/d. § 7). Among other things, those Bylaws empowered
' Unless otherwise noted, the factual background discussed herein is adapted from portions of
EOGH’s Statement of Undisputed Material Facts that Plaintiff either expressly admitted or failed
to adequately counter with relevant citations to the record.
EOGH’s Medical Executive Committee to review the qualifications and credentials of applicants
and staff members, including reappointments, terminations, and suspensions, (id. ¶ 8), and to
subject medical staff members to “additional consultation, monitoring or proctoring requirements”
in certain circumstances. (Id. ¶ 9-10).
Plaintiff entered into multiple contracts with EOGH in connection with his employment:
(1) a contract to come on staff and obey the law and the hospital’s procedures; (2) a contract to
take emergency room calls; (3) a contract to take on a physician advisory role; and (4) a contract
to collect outstanding bills from the Essex County Correctional Facility for services rendered to
Essex County inmates. (Id. ¶ 62). Those contracts required Plaintiff to remain in good status
regarding his medical license and privileges. (Id. ¶ 63). At his deposition, Plaintiff did not recall
if any of those contracts addressed the concept of proctoring or what would happen if he was
suspended or placed on probation. (Id. ¶ 64).
b. Discipline Imposed by the New Jersey State Board of Medical Examiners
and the Subsequent Impact on Plaintiff’s Employment With EOGH
In 2003, two patients upon whom Plaintiff operated died either during or shortly after their
procedures. (Id. ¶ 2). The New Jersey State Board of Medical Examiners (“NJSBE”) thereafter
investigated those incidents but did not take any disciplinary action against Plaintiff until
September 2017, when it entered into a Final Consent Order with him. (Id. ¶¶ 3-4). Pursuant to
that Final Consent Order, NJSBE suspended Plaintiff’s New Jersey Medical License for twelve
months. (Id. ¶ 4). More specifically, the Final Consent Order, as modified by a Supplemental
Order dated January 16, 2018, provided that Plaintiff would be actively suspended for two months
and then placed on probation for the following ten months. (Id.; Pl. Statement of Fact ¶ 5.2, ECF
No. 63-3). Under the terms of those orders, Plaintiff’s active suspension would run from
November 1, 2017 through January 16, 2018. (Id.). EOGH’s Chief Executive Officer hired
Plaintiff to work as a Physician Advisor at EOGH during the time of his suspension so that he
would still have a source of income. (Def. Statement of Facts ¶ 6, ECF No. 62-3). In that role,
Plaintiff assisted the hospital with the implementation of electronic health records. (Id.).
On or about May 18, 2018, during the term of Plaintiff’s probationary period, EOGH
appointed Plaintiff to its medical staff with provisional privileges, subject to the condition that he
submit to proctoring. (Id. ¶¶ 12-13). Specifically, EOGH required Plaintiff to complete eight
major surgeries under the supervision of Dr. Lennox Alves and/or Dr. Jamie Soriano. (Id. ¶ 14).
After doing so, Plaintiff “could be advanced to active staff status and become eligible to be placed
on the Department of Surgery on-call schedule.” (Id. ¶ 14). The parties agree that, in accordance
with the Bylaws, EOGH had the authority to impose the proctoring condition on Plaintiff. (Id. ¶
12-13).
Plaintiff notified EOGH that he had a “history” with Drs. Alves and Soriano, and while he
tried to complete the required proctoring with them, he believed that they were deliberately
delaying the process by failing to show up for their proctoring duties or complete necessary
paperwork. (Id. ¶ 15). EOGH then approved another physician, Dr. Maheshwari, to proctor
Plaintiff’s remaining surgeries. (Id. ¶ 16). Plaintiff testified that there were delays in getting
physicians to sign off on cases they had previously agreed to proctor. (Id. ¶ 17). Plaintiff further
testified that he did not personally know the reason for the delays, (id. ¶ 17; Ducheine Dep. at
92:19-21, ECF No. 62-2), but that the hospital’s call schedule played a part. (Def. Statement of
Facts ¶ 18, ECF No. 62-3; Ducheine Dep. at 93:6-7, ECF No. 62-2). On or about September 14,
2018, Plaintiff sent a letter to Dr. Alves informing him about the difficulties he was having
completing the proctoring requirement and returning to active staff status. (Def. Statement of Facts
¶ 18, ECF No. 62-3). In that letter, Plaintiff complained that Dr. Alves was “deliberately
delay[ing]” the process, opined that Drs. Alves and Soriano were personally profiting from that
delay, and advising that Dr. Maheshwari had declined to provide further proctoring assistance.
(Cert. of Ivan Novich, Esq. at Ex. M, ECF No. 62-2).
c. The State of New York’s Investigation and Associated Discipline
By letter dated January 24, 2018, the New York State Department of Health advised
Plaintiff that it was investigating his medical conduct. (Def. Statement of Facts ¶ 20, ECF No. 62-
3). New York began that investigation after the State of New Jersey provided it with notice of the
Final Consent Order and Supplemental Order that, as discussed above, resulted in the suspension
of Plaintiff’s New Jersey medical license. (Id. ¶ 21). At the State of New York’s request, Plaintiff
participated in an interview with State officials on April 6, 2018. (Id. ¶¶ 23-24). Plaintiff did not
disclose New York’s investigation to anyone at EOGH. (Id. ¶ 25).
In August 2018, Plaintiff entered into a consent order with the New York State Board of
Professional Medical Conduct, pursuant to which Plaintiff’s New York medical license was
suspended for twelve months, with a twelve month stay. (Id. ¶¶ 29-30). That consent order further
provided that Plaintiff could only practice medicine in New York when supervised by a “practice
monitor” approved in advance by the Board. (Id. ¶ 32). Plaintiff did not advise EOGH of the
change regarding his New York medical license. (Id. ¶ 37). EOGH first learned of Plaintiff’s
consent order with the State of New York when the State sent a copy to the hospital. (Id. ¶¶ 34-
35).
d. Plaintiff’s Suspension From EOGH
By letter dated October 1, 2018, EOGH’s Chief Executive Officer, Paige Dworak, advised
Plaintiff: (1) that it had received the New York consent order; (2) that Plaintiff’s failure to notify
EOGH about the restrictions placed on his New York medical license was a violation of Plaintiff’s
obligations under the hospital’s Bylaws; and (3) as a result of that violation, EOGH was
immediately suspending Plaintiff’s provisional medical staff privileges. (Id. ¶¶ 34, 38). On
October 26, 2018, Plaintiff’s attorney sent a letter to Ms. Dworak “to request a hearing regarding
the ‘automatic suspension’ of [Plaintiff’s] provisional medical state privileges.” (Novich Cert.,
Ex. P, ECF No. 62-2). Plaintiff’s counsel further wrote: “[i]f there is interest in attempting to
resolve this matter without a hearing, we would be interested in doing so, without waiving our
rights to a hearing if a reasonable disposition, satisfactory to each party, cannot be reached.” (Id.).
Between October 26, 2019, and March 2019, the parties’ attorneys had discussions regarding a
potential resolution, but were ultimately unable to reach an agreement. (Def. Statement of Facts
¶¶ 41-42, ECF No. 62-3). Plaintiff did not reiterate his request for a hearing after those
negotiations failed. (Id. ¶ 42).
e. Plaintiff’s Charge of Discrimination Against EOGH
On June 3, 2019, Plaintiff filed a Charge of Discrimination with the Equal Employment
Opportunity Commission, alleging that EOGH discriminated against him based on his Haitian
national origin. (Id. ¶ 43). In that Charge, Plaintiff represented that EOGH permitted other
suspended physicians – later revealed to be Dr. Rae and Dr. Majid -- to have their active privileges
reinstated without proctoring. (Id. ¶¶ 44-45). Plaintiff has conceded, however, that he was actually
unaware if EOGH forced Drs. Rae or Majid to undergo proctoring. (Id. ¶ 47). Unlike Plaintiff,
who is a general surgeon, Dr. Rae specializes in gynecology and Dr. Majid specializes in bariatrics.
(Id. ¶ 46).
Elsewhere in his Charge of Discrimination, Plaintiff alleged that EOGH’s decision to
condition his return to active status on completing proctoring was discriminatory because, on at
least two occasions, the hospital permitted physicians to join its staff without having to go through
proctoring. (Id. ¶ 48). At his deposition, however, Plaintiff clarified that this contention referred
to the aforementioned situation with Drs. Rae and Majid. (Id. ¶ 49).
Plaintiff also indicated in his Charge that EOGH returned non-Haitian physicians to work
with surgical privileges once their suspensions had ended. (Id. ¶ 50). Plaintiff, however, has not
been able to identify any such physicians. (Id. ¶ 51).2
f. Facts Relevant to Plaintiff’s Retaliation Claim
During his deposition, Plaintiff testified that he submitted a complaint to EOGH’s human
resources department indicating that he was being slandered and libeled. (Def. Statement of Facts
¶ 53, ECF No. 62-3). He could not recall, however, complaining to human resources about
discrimination based on his national origin. (Id. ¶ 54). While Plaintiff testified he also spoke to
Dr. Mehta regarding potential discrimination, Plaintiff described his comments to Dr. Mehta as
follows:
I am in my community and the fact I’m getting a fair amount of
business from the community and these guys are delaying getting
my privileges done. That’s, you know, unfair. That’s
discriminatory. And, mainly, because I speak the same language, I
can get a better bit of business that these guys can.
(Id. ¶ 55). Plaintiff does not recall speaking to Dr. Mehta about his being from Haiti or anything
else related to his national origin. (Id. ¶ 56).
Plaintiff has further conceded that he never told EOGH’s CEO, Paige Dworak, that he was
being discriminated against and is not aware that anyone else informed her that he had complained
2 In its Statement of Fact number 51, EOGH stated: “Dr. Ducheine was unable to identify any
physicians/surgeons to support [the contention that EOGH permitted non-Haitian physicians to
return to work post-suspension].” (Id. ¶ 51). In his responsive statement, Plaintiff wrote:
“Plaintiff denies, [sic] that Plaintiff was unable to recall does not mean that he was unable to recall
after some research and refresh of mind.” (Pl. Statement of Fact ¶ 51, ECF No. 63-3). The portions
of the record EOGH has cited, however, demonstrate that Plaintiff was unable to recall any such
physicians during his deposition, and Plaintiff has not identified any in response to EOGH’s
motion for summary judgment.
about discrimination. (Id. ¶¶ 57-58). Plaintiff instead told Ms. Dworak that people at the hospital
were “retaliating” against him, giving him a difficult time, and keeping him off the Emergency
Room call schedule. (Pl. Statement of Fact ¶ 57, ECF No. 63-3). Plaintiff further conceded that
he did not have any direct evidence that Ms. Dworak had a bias against people of Haitian national
origin. (Def. Statement of Facts ¶ 59, ECF No. 62-3). Plaintiff testified, however, about his belief
that the fact that Ms. Dworak signed the letter suspending him and permitted the suspension to
take effect without giving Plaintiff a hearing is proof of her bias. (Pl. Statement of Fact ¶ 59, ECF
No. 63-3). Plaintiff also testified generally that another physician of Haitian descent, Dr.
Jeanlouie, was treated unfairly by EOGH during Ms. Dworak’s tenure. Finally, Plaintiff testified
that he did not recall anyone from EOGH ever making any comments, derogatory or otherwise,
about Haiti. (Def. Statement of Facts ¶¶ 60-61, ECF No. 62-3).
g. Procedural History
Plaintiff asserted three distinct causes of action based on his employment with EOGH.
First, Plaintiff alleges that, by giving non-Haitian physicians active staff privileges, without
proctoring, at the conclusion of their suspensions, EOGH engaged in unlawful employment
discrimination against him based on his Haitian origin, in violation of Title VII of the Civil Rights
Act of 1964 and the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et. seq. (“NJLAD”)
(Compl. ¶¶ 22-23, ECF No. 1). Second, Plaintiff alleges that EOGH unlawfully retaliated against
him, in violation of the NJLAD, after he submitted a “a complaint to Human Resources about the
differential treatment he was receiving, as well as the improprieties and toxic atmosphere at East
Orange General.” (Id. ¶ 25). Third, Plaintiff contends that EOGH breached the covenant of good
faith and fair dealing by failing to provide a hearing regarding his suspension and termination. (Id.
¶ 28). The parties have since completed discovery, and EOGH has moved for summary judgment
on all of Plaintiff’s claims. (Generally Def. Br., ECF No. 62-1). That motion is fully briefed,
(ECF Nos. 63, 64), and ripe for resolution.
II. LEGAL DISCUSSION
a. Summary Judgment Standard
A party is entitled to summary judgment pursuant to Federal Rule of Civil Procedure 56
when it “shows that there is no genuine dispute as to any material fact and [it] is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A factual dispute is material when it ‘might
affect the outcome of the suit under the governing law,’ and genuine when ‘the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.’” Ewing v. Cumberland
Cnty., 152 F. Supp. 3d 269, 288 (D.N.J. 2015) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A party moving for summary judgment must
support its position by directing the Court to “particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or declarations, stipulations .
. . admissions, interrogatory answers, or other materials.” Fed. R. Civ. P. 56(c)(1)(A). “Once a
properly supported motion for summary judgment is made, the burden shifts to the non-moving
party, who must set forth specific facts showing that there is a genuine issue for trial”, Ewing, 152
F. Supp. 3d at 287 (citing Anderson, 477 U.S. at 250); accord Indus. Corner Corp. v. Pub. Serv.
Mut. Ins. Co., No. 20-cv-06677 (KM), 2023 WL 1860626, at *4 (D.N.J. Feb. 8, 2023) (“the
nonmoving party must identify specific facts and affirmative evidence that contradict the moving
party.”), and not just “some metaphysical doubt as to the material facts.” Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). A
party’s speculation, conclusory allegations, and unsupported assertions cannot create questions of
material fact sufficient to withstand summary judgment. E.g., Venneman v. BMW Fin. Servs. NA,
LLC, 990 F. Supp. 2d 468, 471 (D.N.J. 2013) (citing Ridgewood Bd. of Educ. v. N.E. ex rel. M.E.,
172 F.3d 238, 252 (3d Cir. 1999)).3
“In considering a motion for summary judgment, a district court may not make credibility
determinations or engage in any weighing of the evidence; instead, the non-moving party's
evidence ‘is to be believed and all justifiable inferences are to be drawn in his favor.’” Marino v.
Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at 255).
Ultimately, there is “no genuine issue as to any material fact” if a party “fails to make a showing
sufficient to establish the existence of an element essential to that party's case.” O'Toole v. Tofutti
Brands, Inc., 203 F. Supp. 3d 458, 463 (D.N.J. 2016) (quoting Celotex Corp. v. Catrett, 477 U.S.
317, 322-23, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986)). “‘If reasonable minds could differ
as to the import of the evidence,’ however, summary judgment is not appropriate.” Id. (quoting
Anderson, 477 U.S. at 250-51).
b. Plaintiff’s Discrimination Claims
While Plaintiff has asserted discrimination claims under both Title VII and the NJLAD,
the Court notes that “[t]he analysis . . . applied in Title VII claims is equally applicable to actions
brought under other civil rights statutes . . . and thus the Title VII analysis applies to claims brought
under the NJLAD as well.” Cortes v. Univ. of Med. & Dentistry of New Jersey, 391 F. Supp. 2d
298, 311 (D.N.J. 2005) (citing Abrams v. Lightolier, Inc., 50 F.3d 1204, 1212 (3d Cir.1995));
accord Tourtellotte v. Eli Lilly & Co., 636 F. App'x 831, 842 (3d Cir. 2016). Where a plaintiff’s
Title VII and NJLAD discrimination claims rely on circumstantial evidence, Tourtellotte, 636 F.
3 In the District of New Jersey, the parties must present the facts and evidence relevant to the
summary judgment proceedings in statements prepared in accordance with Local Civil Rule 56.1
(requiring, among other things, that the parties address the relevant facts in separately numbered
paragraphs, with appropriate citations to the record in support of each).
App’x at 841, “[c]ourts evaluate motions for summary judgment on [those] claims under a
specialized burden-shifting regime . . . set out in the Supreme Court’s decision in McDonnell
Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).” Edmond v. Plainfield
Bd. of Educ., 171 F. Supp. 3d 293, 305 (D.N.J. 2016). As one Court is this District described that
process:
The McDonnell Douglas framework has three basic steps. First, the
plaintiff must put forward a prima facie case of . . . discrimination
by a preponderance of the evidence. Sarullo v. U.S. Postal Serv.,
352 F.3d 789, 797 (3d Cir. 2003). “Once a plaintiff makes a prima
facie case of discrimination,” the analysis moves to the second step:
“the burden shifts to the [defendant] to provide a legitimate,
nondiscriminatory reason for its actions.” Tucker v. Thomas
Jefferson Univ., 484 F. App'x 710, 712 (3d Cir. 2012). “If the
defendant does so,” the analysis proceeds to the third step: “the
inference of discrimination drops and the burden shifts back to the
plaintiff to show that the defendant's proffered reason is merely
pretext for intentional discrimination.” Makky v. Chertoff, 541 F.3d
205, 214 (3d Cir. 2008). If each party meets its burden at each stage,
summary judgment is inappropriate. Whishkin v. Potter, 476 F.3d
180, 185 (3d Cir. 2007).
Graham v. Univ. Radiology Grp., No. 18-CV-8616 (BRM), 2020 WL 5640705, at *9 (D.N.J. Sept.
22, 2020) (citations in original). “Each step in the framework requires its own separate analysis.”
Id.
To establish a prima facie case of employment discrimination, “a plaintiff must first
establish that: (1) she is a member of a protected class; (2) she was qualified for the position in
question; (3) she suffered an adverse employment action; and (4) that adverse employment action
gives rise to an inference of unlawful discrimination.” Tourtellotte, 636 F. App’x at 842. While
making a prima facie case represents a relatively “low bar”, Scheidemantle v. Slippery Rock Univ.
State Sys. of Higher Educ., 470 F.3d 535, 539 (3d Cir. 2006), the Court finds that Plaintiff has
failed to clear it.
EOGH has not presented any arguments regarding the first three elements and the Court
finds that Plaintiff has satisfied them in any event. First, given his Haitian national origin, Plaintiff
is a member of a protected class. Next, while Plaintiff encountered medical licensing issues related
to two incidents in 2003, nothing in the record suggests that Plaintiff lacked the qualifications
necessary to work as a general surgeon during the relevant period. Turning to the third element,
Plaintiff has identified two different adverse employment events. In the first, Plaintiff alleges that
EOGH unfairly delayed his return to active status at the hospital following the reinstatement of his
New Jersey medical license. In the second, Plaintiff contends that EOGH suspended his staff
privileges after it learned that the State of New York had suspended his medical license. Plaintiff
has therefore established the first three elements of a prima facie case of discrimination. He has
not, however, demonstrated that either of the adverse employment actions he identified give rise
to an inference of unlawful discrimination. The Court will consider each in turn.
First, Plaintiff alleged that EOGH unfairly delayed his return to active staff status by
requiring him to undergo a lengthy proctoring process after the NJSBE reinstated his medical
license, and that non-Haitian surgeons who returned from suspension did not face similar
proctoring requirements. (Compl. ¶¶ 22-23, ECF No. 1; Def. Statement of Facts ¶¶ 44-45, ECF
No. 62-3). Plaintiff has not, however, directed the Court to any evidence in the record that supports
his contention. Instead, Plaintiff testified that he was unsure of whether either of the non-Haitian
physicians he identified (Drs. Rae and Majid) underwent post-suspension proctoring. (Def.
Statement of Facts ¶¶ 44-45, 47, 49, ECF No. 62-3). Nor was Plaintiff able to identify any other
non-Haitian physicians who returned to active status, without proctoring, following a suspension.
(Id. ¶¶ 50-51).
Turning to the second adverse employment action, EOGH’s decision to suspend Plaintiff
for his alleged violation of the hospital’s Bylaws (i.e., for failing to advise the hospital of the
suspension of his New York medical license), Plaintiff has similarly not directed the Court to any
evidence that might support an inference of discrimination. Addressing this issue in his brief,
Plaintiff made a circular argument: “[t]he suspension occurred under the circumstances that give
rise to an inference of discrimination. [sic] Because there was no other reason to suspend him
other than his Haiti national origin.” (Pl. Br. at 6, ECF No. 63). Plaintiff’s suspicion, standing
alone, is not sufficient to withstand a motion for summary judgment. Venneman, 990 F. Supp. 2d
at 471. In his brief, Plaintiff also refers, without citation, to deposition testimony about how a
situation in which “another [physician of] Haitian descent had been terminated outlined the
discrimination framework for [Plaintiff]”. (Pl. Br. at 6, ECF No. 63). It appears that Plaintiff may
be referring to Dr. Jeanlouis, a Haitian physician whom, Plaintiff testified, had been stripped of
certain responsibilities at EOGH. (Ducheine Dep. at 239:7-240:12, ECF No. 63-2). Plaintiff has
not, however, provided any evidence – let alone admissible evidence – regarding the specifics Dr.
Jeanlouis’ situation or how it might support an inference of discrimination in Plaintiff’s case.
For these reasons, the Court finds that Plaintiff has not presented an evidentiary basis from
which a reasonable factfinder might infer unlawful discrimination in connection with the adverse
employment actions EOGH took against him. Plaintiff has, therefore, failed to establish a prima
facie case of discrimination and EOGH is entitled to summary judgment on Count One of
Plaintiff’s Complaint.
c. Plaintiff’s Retaliation Claim
The Court next considers Plaintiff’s claim that EOGH retaliated against him in violation of
the NJLAD. The relevant portion of that statute, generally speaking, makes it unlawful for
employers to discriminate against current or potential employees on the basis of “race, creed, color,
national origin, ancestry, age, marital status, civil union status, domestic partnership status,
affectional or sexual orientation, genetic information, pregnancy or breastfeeding, sex, gender
identity or expression, disability or atypical hereditary cellular or blood trait of any individual,”
N.J.S.A. 10:5-12(a), as well as an individual’s military status or willingness to submit to, or
disclose the results of, genetic testing. Id. The NJLAD’s anti-retaliation provision, in turn, makes
it unlawful
[f]or any person to take reprisals against any person because that
person has opposed any practices or acts forbidden under [the
NJLAD] or because that person has sought legal advice regarding
rights under [the NJLAD], shared relevant information with legal
counsel, shared information with a governmental entity, or filed a
complaint, testified or assisted in any proceeding under [the
NJLAD] . . .
N.J.S.A. 10:5-12(d).
Like his discrimination claims, Plaintiff’s retaliation claim is “controlled by the three-step
burden-shifting framework set forth in [McDonnell Douglas].” Tourtellotte, 636 F. App’x at 841.
The Court therefore begins its analysis by determining whether Plaintiff has established a prima
facie case of retaliation. Plaintiff must do so “by showing ‘(1) that he engaged in a protected
activity; (2) that he suffered an adverse employment action; and (3) that there was a causal
connection between the protected activity and the adverse employment action.’” Sgro v.
Bloomberg L.P., 331 F. App'x 932, 939 (3d Cir. 2009) (quoting Cardenas v. Massey, 269 F.3d
251, 263 (3d Cir.2001)).
Upon careful consideration of the motion record, the Court finds that Plaintiff has failed to
make the necessary prima facie showing, as he has not established that he engaged in a “protected
activity” within the meaning of the NJLAD. As the United States Court of Appeals for the Third
Circuit has observed, “not every complaint or letter entitles its author to protection from retaliation
under the NJLAD. Rather, only challenges to discrimination prohibited by the NJLAD—such as
discrimination on the basis of race, age, or gender, constitute ‘protected activity.’” Ogunbayo v.
Hertz Corp., 542 F. App'x 105, 106–07 (3d Cir. 2013) (citations omitted). While the record reflects
that Plaintiff has certainly complained about his treatment at EOGH, he has not directed the Court
to facts suggesting that those complaints fall within the ambit of the NJLAD’s anti-retaliation
provision.
In his pleading, Plaintiff alleged that EOGH retaliated against him for filing a complaint
with the hospital’s human resources department “about the differential treatment he was receiving,
as well as the improprieties and toxic atmosphere at East Orange General.” (Compl. ¶ 25, ECF
No. 1). During his deposition, however, Plaintiff testified that his complaint to human resources
concerned him being slandered and libeled by others at the hospital, and that he did not recall ever
complaining to that department about discrimination based on his national origin. (Def. Statement
of Facts ¶¶ 53-54, ECF No. 62-3). That evidence does not reflect that Plaintiff engaged in a
protected activity under the NJLAD.
In his brief, Plaintiff argues that he directly complained to Dr. Mehta about his national
origin playing a role in the hospital’s delay in returning him to active status post-suspension, citing
a passage from his deposition transcript. (Pl. Br. at 11-12, ECF No. 63) (citing Ducheine Dep. at
196, ECF No. 63-2).4 Indeed, when EOGH’s counsel repeatedly sought a “yes or no” answer to
the question of whether Plaintiff explicitly told Dr. Mehta that the hospital had discriminated
against Plaintiff on account of his being from Haiti, Plaintiff responded: “The answer is yes. The
exact words I used, I don’t remember at this time.” (Ducheine Dep. at 197:15-20). When EOGH’s
counsel asked Plaintiff to elaborate on that interaction, (id. at 198:17-199:2), however, Plaintiff
described his comments to Dr. Mehta as follows:
I am in my community and the fact I’m getting a fair amount of
business from the community and these guys are delaying getting
my privileges done. That’s, you know, unfair. That’s
discriminatory. And, mainly, because I speak the same language, I
can get a better bit of business that these guys can.
(Def. Statement of Facts ¶ 55, ECF No. 62-3; Ducheine Dep. at 198:17-199:10, ECF No. 63-2).
When asked directly thereafter whether he mentioned his national origin or being from Haiti during
that interaction, Plaintiff testified that he did not recall doing so. (Def. Statement of Facts ¶ 56,
ECF No. 62-3; Ducheine Dep. at 199:11-14, ECF No. 63-2). In essence, Plaintiff complained to
Dr. Mehta that EOGH’s delay in returning him to active status was unfair, as it prohibited Plaintiff
from using an inherent advantage (shared language with the Haitian members of the community)
to earn business. That is not a complaint of discrimination based on national origin and does not
appear to be any other type an NJLAD-protected activity.
Plaintiff also argues that his September 14, 2018 letter to Dr. Alves constitutes a “protected
activity.” (Pl. Br. at 12, ECF No. 63). Plaintiff did not propose any statements of undisputed
material fact regarding that letter or provide any citations in his briefing. The Court has
4 Plaintiff’s argument on this point directly contradicts the responsive Statement of Facts he
submitted in connection with his opposition. Specifically, EOGH’s Statement of Fact number 56
stated: “Dr. Ducheine does not recall every [sic] saying anything to Dr. Mehta about his being
from Haiti or about his national origin.” (Def. Statement of Facts ¶ 56, ECF No. 62-3). Plaintiff
admitted that statement without further comment. (Pl. Statement of Fact ¶ 56, ECF No. 63-3). In
the interests of justice, the Court will nevertheless consider the merits of Plaintiff’s argument.
nevertheless reviewed the letter, which EOGH submitted as an exhibit to its attorneys’
certification. In that letter, Plaintiff wrote, in pertinent part: “it is evidently clear that after 40+
surgical cases at EOGH from May 2018 to now, my progression from Provisional Staff to Active
Staff Status is being deliberately delayed by you. A delay that you and Dr. Soriano are financially
benefitting from to the rate of $6,000+/month.” (Novich Cert., Ex. M, ECF No. 62-2). Nowhere
in that letter did Plaintiff suggest that anyone at EOGH was discriminating against him, let alone
doing so based on his Haitian national origin. (Generally id.). Rather, Plaintiff was accusing Dr.
Alves of delaying his reinstatement for personal financial gain. (Id.). While Plaintiff argues that
this reflects “whistleblowing on Dr. Alves and Dr. Soriano’s unethical or possible unlawful
practice”, (Pl. Br. at 13, ECF No. 63), he does not explain how that might constitute a NJLAD-
protected activity.
Finally, while Plaintiff does not address the issue in his brief, it bears noting that Plaintiff
conceded at deposition that he never told EOGH’s Chief Executive Officer, Paige Dworak, that he
was being discriminated against and is not aware that anyone else informed her that he had
complained about discrimination. (Def. Statement of Facts ¶ 57-58, ECF No. 62-3). Plaintiff
instead told Ms. Dworak that people at the hospital were “retaliating” against him, giving him a
difficult time, and keeping him off the Emergency Room call schedule. (Pl. Statement of Fact ¶
57, ECF No. 63-3).
In conclusion, the Court finds that Plaintiff has not demonstrated that he engaged in a
protected activity within the meaning of the NJLAD. The portions of the record Plaintiff cited in
his opposition do not create a genuine issue of material fact on this issue. As Plaintiff has failed
to establish a necessary element of his retaliation claim, the Court will enter summary judgment
in EOGH’s favor on that cause of action.
d. Plaintiff’s Claim for Breach of the Implied
Covenant of Good Faith and Fair Dealing
In the final count of his Complaint, Plaintiff alleges that EOGH violated the covenant of
good faith and fair dealing implied in the parties’ agreements by failing to provide him with a
hearing in connection with his suspension or termination. (Compl. ¶ 28, ECF No. 1). “Under New
Jersey law, in every contract there is an implied covenant that ‘neither party shall do anything
which will have the effect of destroying or injuring the right of the other party to receive the fruits
of the contract; in other words, in every contract there exists an implied covenant of good faith and
fair dealing.’” Harmon v. Borough of Belmar, No. 17-cv-2437 (PGS), 2020 WL 833061, at *5
(D.N.J. Feb. 20, 2020) (quoting Wade v. Kessler Inst., 343 N.J. Super. 338, 345 (App. Div. 2001);
accord Fields v. Thompson Printing Co., 363 F.3d 259, 270 (3d Cir. 2004) (citations omitted).
“To recover for breach of the implied covenant, a plaintiff must prove that: (1) a contract exists
between the parties; (2) the plaintiff performed under the terms of the contract; (3) the defendant
acted in bad faith with the purpose of depriving the plaintiff of rights or benefits under the contract;
and (4) the defendant's actions caused the plaintiff to sustain damages.” Luongo v. Vill.
Supermarket, Inc., 261 F. Supp. 3d 520, 531-32 (D.N.J. 2017) (citation omitted).
While the parties have entered into multiple contracts, (Def. Statement of Facts ¶ 62, ECF
No. 62-3; Pl. Statement of Fact ¶¶ 62, 65, ECF No. 63-3), they agree that, to the extent Plaintiff
has a right to a pre-suspension hearing, it derives from EOGH’s Bylaws, which apply to every
member of the hospital’s medical staff. (Def. Br. at 22-23, ECF No. 62-1; Pl. Br. at 14-17, ECF
No. 63; Def. Statement of Facts ¶ 7, ECF No. 62-3). EOGH does not argue that the terms of the
Bylaws are insufficient to support an implied covenant of good faith and fair dealing (i.e., the first
element of the cause of action). Nor does EOGH offer any arguments regarding the third
(defendant acting in bad faith) or fourth (Plaintiff suffering damages) elements of Plaintiff’s claim
for breach of that covenant. Rather, EOGH’s argument is focused on the second element: whether
Plaintiff satisfied the conditions necessary to require EOGH to provide a hearing under the Bylaws.
(Def. Br. at 22-23, ECF No. 62-1).
The relevant provisions of the Bylaws are not in dispute. The parties agree that Section
7.2 “provides the suspension of staff membership, suspension of clinical privileges exceeding 14
days, denial of medical staff reappointment, and involuntary impositions of significant
consultation or monitoring requirements, are all grounds for a hearing.” (Def. Statement of Facts
¶ 39, ECF No. 62-3; Cert. of John Herbert, Ex. 1 at 73, ECF No. 63-2 ). Section 7.3-1 requires
EOGH to provide affected individuals with written notice of any decision that might constitute
grounds for a hearing under Section 7.2, and to include specific information therein, including the
individual’s right to request a hearing. (Cert. of John Herbert, Ex. 1 at 73, ECF No. 63-2). Section
7.3-2, titled “Request for Hearing”, provides:
The member shall have thirty (30) days following receipt of notice
of such action to request a hearing. The request shall be in writing
addressed to the Medical Executive Committee with a copy to the
Board of Directors. In the event the member does not request a
hearing within the time and manner described, the member shall be
deemed to have waived any right to a hearing and to have accepted
the recommendation or action involved.
(Id. at 74).
Here, EOGH advised Plaintiff of its decision to suspend him by letter dated October 1,
2018. (Novich Cert. Ex. J, ECF No. 62-2). That letter invoked multiple provisions of the Bylaws
and, among other things, notified Plaintiff of his right to request a hearing under Section 7.3, as
well as directions on how to do so. (Id. at 2). EOGH contends that Plaintiff failed to effectively
request a hearing in response to its notice of suspension. (Def. Br. at 22-23, ECF No. 62-1).
Specifically, EOGH argues (1) that Plaintiff failed to request a hearing at all; and (2) assuming
Plaintiff did make such a request, he nevertheless failed to send a copy to the hospital’s board of
directors as required under Section 7.3-2 of the Bylaws.
As to the first point, the record reflects that Plaintiff’s counsel sent a letter with the subject
line “Hearing Request – Yvan Ducheine, M.D.” to EOGH’s Chief Executive Officer on or about
October 26, 2018. (Novich Cert. Ex. P, ECF No. 62-2). In that letter, counsel wrote:
[Plaintiff] has engaged our law firm to request a hearing
regarding the “automatic suspension” of his provisional medical
staff privileges at East Orange General Hospital. If there is
interest in attempting to resolve this matter without a hearing, we
would be interested in doing so, without waiving our rights to a
hearing if a reasonable disposition, satisfactory to each party,
cannot be reached. Please do not hesitate to call or to have your
legal counsel call to discuss if there is interest.
(Id.). EOGH contends that, because Plaintiff’s counsel’s letter raised the idea of a pre-hearing
resolution, it was insufficient to serve as a hearing request pursuant to Section 7.3-2 of the bylaws.
This Court disagrees. While counsel’s letter expressed a hope for an amicable resolution, it also
unequivocally sought a hearing regarding Plaintiff’s suspension. At the very least, there is a
question of fact as to whether Plaintiff’s letter sought negotiations in lieu of a hearing.
Turning to EOGH’s second argument- that Plaintiff’s counsel’s October 26, 2018 letter
failed to function as hearing request under the Bylaws because counsel failed to send a copy to the
hospital’s board of directors – the Court finds that at least one issue makes summary judgment
inappropriate. The relevant portion of the evidentiary record is clear. Counsel addressed his letter
to EOGH’s CEO, Paige Dworak and sent copies to Plaintiff, the East Orange Medical Executive
Committee, Ms. Padmaji Kodali, and Dr. Anuj Mehta. (Id.). Thus, Plaintiff did not send a copy
to the hospital’s Board of Directors, as required under the Bylaws. The Court cannot ignore,
however, the explicit directions that EOGH provided in its October 1, 2018 letter:
If you wish to request a hearing, you must do so in writing to Paige
Dworak, Chief Executive Officer, East Orange General Hospital,
300 Central Avenue, East Orange, NJ 07018. You must request a
hearing by 5:00 p.m., October 30, 2018, thirty (30) days from the
date of this letter, or your right to a hearing will be waived . . .
(Novich Cert. Ex. J, ECF No. 62-2). Plaintiff’s counsel followed Ms. Dworak’s directions, which
contradicted those set forth in the Bylaws. (Compare id. with Cert. of John Herbert, Ex. 1 at 74,
ECF No. 63-2) (“The request shall be in writing addressed to the Medical Executive Committee
with a copy to the Board of Directors.”). The parties have not explored the legal ramifications of
EOGH’s advice, which came in a letter intended to inform Plaintiff of his right to request a hearing.
This is particularly significant given the nature of Plaintiff’s claim – that EOGH acted in a manner
that interfered with his ability to enjoy the fruits of the parties’ agreement. The Court cannot grant
summary judgment on this record.
III. CONCLUSION
Based on the foregoing, the Court will grant EOGH’s motion for summary judgment in
part and deny it in part. Specifically, the Court GRANTS EOGH’s motion with regard to Counts
One and Two of Plaintiff’s Complaint and will enter judgment in EOGH’s favor as to those claims.
The Court DENIES EOGH’s motion with regard to Count Three of Plaintiff’s Complaint. A
separate form of Order will follow this Opinion.
SO ORDERED
s/ Cathy L. Waldor
CATHY L. WALDOR, U.S.M.J.
Date: March 15, 2023
cc: Hon. Esther Salas, U.S.D.J.