NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

ROBERT B. PATEL, M.D., and MID-ATLANTIC MEDICAL ASSOCIATES, LLC, v. NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Plaintiffs-Appellants, ROBERT WOOD JOHNSON UNIVERSITY HOSPITAL, Defendant-Respondent. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. Argued September 30, 2015 - Decided May 20, 2016 PER CURIAM Before Judges Fuentes, Koblitz and Gilson. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-4020-12. Andrew L. Schlafly argued the cause for appellants. Joseph M. Gorrell argued the cause for respondent (Brach Eichler, L.L.C., attorneys; Mr. Gorrell, of counsel and on the brief; Richard B. Robins, on the brief). Plaintiff Robert B. Patel, M.D., is an Indian American physician, board certified in internal medicine. He also owns Mid-Atlantic Medical Associates (MAMA), a medical group that employs three Indian American physicians, who are also board

certified in internal medicine. Plaintiff was first awarded admitting privileges by defendant Robert Wood Johnson University Hospital ("RWJUH" or "Hospital") in 2005. Commencing in 2006, plaintiff's medical practice, including physicians employed by MAMA, was "out-of-network" with insurance carriers, with the exception of patients covered by Medicare. Over a three-year period commencing in 2009, RWJUH administrators received a number of complaints from patients and their families concerning the billing practices of Dr. Patel and other physicians employed by MAMA. Directors referred the matter to The Hospital's Board of a Sub-Committee of the Credentials Committee for investigation. By letter dated April 10, 2012, Stephen K. Jones, the President and Chief Operating Officer of RWJUH notified Dr. Patel that at a meeting held on April 4, 2012, the Board of Directors voted to accept the recommendations of RWJ's Credentials Committee at its March 9, 2012 meeting to impose a Corrective Action Plan for negatively affecting the quality of care at RWJ through your billing practices. The RWJ Credentials Committee and the Board each reviewed the detailed investigation report from the Sub-Committee of the Credentials Committee. The conclusion of the report from the Sub- Committee of the Credentials Committee is as follows: "The billing practices of Dr. Robert Patel and his employed physician staff adversely affect the quality of the 2

medical care at RWJUH...." Therefore, the Credentials Committee determined, and the Board approved, that as a condition of your continued medical staff privileges at RWJUH, you and your employed physicians must inform all patients cared for by your service at RWJ, prior to initiating medical care, that your service is "out-of-network" and provide the specific rate of billing for hospital services. (Emphasis added). President Jones also directed Dr. Patel to develop, in a "timely" fashion, a "standardized form" to be reviewed and approved by the Hospital's in-house counsel. This "form" had to address and contain eight specifically enumerated areas of information concerning Dr. Patel's billing practices. The final version of the "billing information form" would be reviewed and approved by the RJW Credentials Committee "when [Dr. Patel's] RWJ Medical Staff privileges come up for renewal." In the meantime, Dr. Patel and the physicians employed by MAMA would be subject to "random audits" to ensure compliance with this protocol. President Jones concluded the letter with the following admonition: "Failure to comply with these required actions may result in immediate corrective action, including suspension of your medical staff privileges and termination of your appointment to the Medical Staff." On June 11, 2012, Dr. Patel filed a three count complaint against defendant in the Law Division alleging: (1) discrimination based on his national origin in the form of 3

disparate treatment, in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-3 and N.J.S.A. 10:5-13; (2) breach of contract and violation of RWJUH Bylaws based on the Hospital withholding staff support services and imposing unreasonable time restrictions for examining newly admitted patients; and (3) common law defamation against the RWJUH administrators who made false and defamatory statements about Dr. Patel. Plaintiffs sought injunctive relief in the form of an order restraining defendant from implementing the Corrective Action Plan described in President Jones's April 10, 2012 letter, 1 compensatory and emotional distress damages, punitive damages, and an award of counsel fees. After joinder of issue, the parties engaged in discovery, including depositions of nine witnesses, exchange of five expert reports, document production, and motion practice. On May 22, 2014, defendant moved for summary judgment seeking the dismissal of plaintiffs' cause of action as a matter of law. After considering the arguments of counsel and reviewing a substantial 1 On June 20, 2012, the trial court denied plaintiffs' order to show cause seeking temporary restraints and a preliminary injunction. On May 6, 2013, a different judge denied plaintiffs' motion seeking a temporary injunction to restrain defendant from continuing to require him to obtain billing consent from patients who are in the Medicare program. 4

amount of documentary material, the court granted defendant's motion and dismissed plaintiffs' complaint with prejudice. As framed by the motion judge, the key question was whether defendant's decision to impose the billing protocol challenged by plaintiff was a legitimate response to complaints by patients of excessive billing practices by plaintiff, or a pretext to disguise discriminatory actions taken against plaintiff and physicians employed by MAMA based on their national origin. The judge concluded "defendant has shown a valid basis for adopting its policy that is non-discriminatory, [but based on] a desire to satisfy patients and to maintain medical fees within a reasonable level[.]" The motion judge also found plaintiff did not present sufficient grounds to question as pretextual the non-discriminatory reasons advanced by defendant for requiring him to follow the billing protocol. We agree with the motion judge and affirm. Because the trial court dismissed plaintiffs' complaint as a matter of law, we will review the record de novo, State v. Perini Corp., 221 N.J. 412, 425 (2015), and in accordance with the standard set forth in Rule 4:46-2(c). Stated differently, we will consider the factual record in the light most favorable to plaintiffs. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). 5

I Dr. Patel and MAMA have been "out-of-network" practitioners with insurance carriers since 2006. Physicians who treat "outof-network" patients admitted to RWJUH are not bound by the fee schedule set by the patient's medical insurance carrier. Dr. Patel explained in his deposition that he did not keep any records nor did he develop any procedures for determining the fees he charged patients he personally treated after they were admitted to the Hospital's emergency room. However, Dr. Patel used "a grid" to determine the fees charged by physicians employed by MAMA. This "grid" took into account the "risk" the patient posed, because they were admitted as emergency room patients, and the "complexity" of the medical services rendered. According to Dr. Patel, "approximately 70%" of the patients he treated at RWJUH were Medicare patients. As explained by Dr. Patel, Medicare patients are not liable to pay any fees for medical services beyond those covered by Medicare. Thus, physicians are expressly prohibited from "balance billing a Medicare patient." 2 However, Dr. Patel acknowledged it was not 2 The practice of collecting directly from the patient the difference between what an insurance carrier pays for the medical service and what the physician charges for this same service is known as "balance billing." 6

his practice to notify Medicare patients in advance what fees he was charging for any of the services he performed. A Patient Complaints At all times relevant to this case, Dr. Joshua Bershad was Senior Vice President, Medical Affairs and Chief Medical Office at RWJUH. In this capacity, Dr. Bershad was responsible for overseeing the quality of care patients received at RWJUH, as well as overseeing the performance of physicians who had admitting privileges to the Hospital. In a certification submitted in support of defendant's summary judgment motion, Dr. Bershad averred that from 2009 to 2012, the Hospital "received numerous complaints" about Dr. Patel's billing practices. The complainants alleged Dr. Patel's fees were "extremely high" and were sent to them without prior notice. According to Dr. Bershad, the patients who complained were not aware that Dr. Patel and the physicians employed by MAMA were "out-of-network," and thus not obligated to accept the fees paid by the patients' insurance companies. Dr. Bershad certified that the fees Dr. Patel and the MAMA physicians charged appeared "to be far in excess of fees charged by comparable physicians." In November 2009, Dr. Bershad met with Dr. Patel to discuss the excessive billing complaints made 7

by these patients. Dr. Bershad told Dr. Patel that the patients who had come forward "uniformly noted" three core complaints: (1) the fees were extremely high; (2) patients were not apprised of the fees and did not agree to pay the fees before services were delivered; and (3) certain patients were not even aware that Dr. Patel, or any physician affiliated with him, participated in their medical care or treatment plan. As an outcome of this meeting, Dr. Bershad asked Dr. Patel to disclose his billing practices to patients in advance of treatment. Dr. Bershad conveyed the significance of these allegations to Dr. Patel by noting that complaints about a physician's billing practices "were rare." Dr. Bershad certified he made clear to Dr. Patel that further complaints of this nature could result in disciplinary action against him. Despite these admonitions, Dr. Bershad averred patient complaints about Dr. Patel's billing practices continued, requiring him to meet with Dr. Patel again in September 2010. Dr. Bershad told Dr. Patel that a review of the complaints revealed Dr. Patel was billing for patient evaluations at the Hospital "at a multiple of ten (10) and fifty (50) times what other comparable physicians would bill for the same services." As an example of the type of "balance billing" found by Dr. Bershad, Dr. Patel billed a patient $55,600 for an initial 8

evaluation and follow up visits over a four-week period. The insurance carrier paid Dr. Patel $4,874.10, for what it considered to be a reasonable and customary fee for such services. Dr. Patel thereafter billed the patient for the balance, which amounted to $50,724.70. The complaint filed by the patient's spouse questioned why the patient was not given the option of finding an "'in-network' physician to provide the services at the hospital." Dr. Bershad noted the patient was deprived of this option when Dr. Patel failed to provide advance notice of his billing practices. In response to what he characterized as "growing concerns and numerous complaints" from patients about Dr. Patel's billing practices, Dr. Bershad formally wrote to the President of the Medical Staff and the President of RWJUH requesting that the Credentials Committee investigate and determine the need for a formal plan of action. In response, the Sub-Committee of the Credentials Committee met with Dr. Patel to obtain his views on the matter. The Sub-Committee thereafter issued a report which described a pattern of overbilling by Dr. Patel over the relevant three-year period. The Sub-Committee also recommended a plan to "Take Action." Dr. Bershad included the relevant sections of the Sub- Committee's Report as part of his certification. The report 9

described over twenty complaints received by the Medical Staff Administrative office from "unrelated patients." The rate and number of complaints received against Dr. Patel far exceeded the number of complaints received regarding any other physician on the staff of RWJUH. From February 18, 2009 to August 23, 2011, the Hospital received eighteen patients' complaints regarding Dr. Patel's billing practices. Broken down by year, there were eight complaints filed in 2009, four in 2010, and six in 2011. According to Dr. Robert M. Eisenstein, the interim Chair of the Department of Medicine and Chief of Ambulatory Service, "the number of complaints generated with respect to Dr. Patel's billing practices [was] more than any other complaint about any other physician group combined in total." Dr. Patel claimed these figures were misleading. As stated in the certification he submitted in opposition to defendant's summary judgment motion, "my practice had a high patient volume, such that a lower complaint rate may still result in a higher overall number of complaints than a less successful practice." B The One-hour Protocol The Hospital Board of Directors instructed the Credential Committee to formally investigate the allegations of improper 10

billing practices by Dr. Patel. The Credentials Committee referred the matter for further consideration to a Sub-Committee of the medical staff. The Sub-Committee interviewed Dr. Patel to obtain his response to the patient complaints. In a formal report issued thereafter, the Sub-Committee found: (1) the rate and volume of complaints against Dr. Patel were greater than those concerning any other RWJUH physician; (2) Dr. Patel's and MAMA physicians' fees for services rendered were 10-50 times the "usual and customary" rate; and (3) Dr. Patel and MAMA continued to see and treat patients after being informed the patient had requested an "in-network" doctor or their own primary care or referring physicians. The Sub-Committee recommended that Dr. Patel and MAMA be required to use a standardized form to inform patients they were "out-of-network" physicians prior to the start of any billable treatment. Under this approach, the patient would be liable to pay the "out-of-network" fees charged by Dr. Patel only after the patient signed the standardized consent form. On March 8, 2012, the Credentials Committee voted to recommend the proposal to the Medical Board and Board of Directors with one additional requirement. The Credentials Committee recommended that Dr. Patel be responsible for obtaining the patient's informed 11

consent; for patients in the emergency department, the consent form had to be completed within one hour. After considering the complaints and billing issues in a "blind" (anonymous) presentation, the Board of Directors approved the proposal protocol on April 4, 2012. President Jones informed Dr. Patel of the Board's decision via a letter dated April 10, 2012. President Jones also made clear that failure to comply with the requirements imposed by the protocol could result in "immediate corrective action, including suspension of your medical staff privileges and termination of your appointment to the medical staff." Dr. Robert Eisenstein manages the medical component of the Hospital's Emergency Department. After consulting with Dr. Bershad and with the Director of the House Physicians (advanced practice nurses, or APN) Program, Dr. Eisenstein instructed the APNs not to process telephone "orders" on behalf of Dr. Patel or MAMA physicians for new patients who had not yet consented to treatment, as required by the Corrective Action Plan. Dr. Bershad explained in his deposition how the Emergency Department was expected to function after the implementation of this protocol: Q. And explain the process of when a patient transitions from emergency room to the hospital? 12

A. Patient comes into the emergency department, is seen by an emergency medicine physician. If that patient is an unassigned patient, meaning they don't have a physician, they are assigned to the university, Roberts Wood Johnson Medical School, a variety of different services of the Robert Wood Johnson Medical School. If they have an assigned physician, meaning the patient has told the ER doctor here is my doctor, the ER doctor would determine in their belief if there is a need for the patient to be admitted overnight or I should say convert to an inpatient status or an outpatient status depending on the case. They would then call the physician who is assigned, discuss the case, that physician would then say I'll be in to admit the patient or someone else is coming in or can you call the house doctor. Q. Suppose that physician who is called or assigned to the patient is Dr. Robert Patel? A. Since the corrective action or before? Q. Since the corrective action. A. So - - Q. Suppose it's 3:00 in the morning and he says call the house doctor, what happens? A. The house doctor would be waiting for him to provide the consent that was agreed to under the corrective action before we saw the patient. Q. So is your testimony the house doctor will not write the orders on that patient if that patient is assigned to Dr. Patel and it's 3:00 in the morning and Dr. Patel has not yet come into [sic] see the patient? 13

A. Until the patient has been seen by the house doctor or the next provider, the patient belongs to the emergency medicine physician, so they remain under the emergency medicine physician service for the orders and for care until they are seen by somebody else. That's correct, the house doctor would not see the patient until the consent was on the chart but the ED [Emergency Department] doctor would continue to provide the care that they were doing originally so there would be no gap in care. Q. Does that policy apply to anybody else at Robert Wood Johnson University Hospital? A. No. Both Dr. Bershad and Dr. Eisenstein averred the protocol was intended to avoid quality and continuity of care issues that might arise if the patient declined to be treated by Dr. Patel or a MAMA physician due to their billing practices. They also both agreed it was not unreasonable to require Dr. Patel or the responding MAMA physician to reach the hospital and obtain the patient's written consent within one hour. In the course of his deposition, Dr. Patel was asked whether he or the physicians in MAMA had any problems adhering to this protocol. Q. After Robert Wood Johnson instituted the one-hour requirement, were there any instances when you would go to the hospital, talk to the patient, and the patient would refuse to sign the consent form? 14

A. Me, personally? Q. You, personally. A. No. Q. Are there any instances that you're aware of after the one-hour requirement was instituted that another MAMA physician went to Robert Wood Johnson, saw the patient, asked the patient to sign the consent form and the patient refused? A. I think only one. Q. One instance? Are you aware of any instances after the one-hour requirement was instituted that MAMA received a call about a patient at Robert Wood Johnson and no MAMA physician was able to get to the hospital within the one hour to talk to the patient? A. I'm not aware of any. Dr. Patel claims the Hospital's protocol was a "plan to deprive [him] of the support by the House Doctors." He also emphasizes that RWJUH has not required "white physicians" to submit to such a practice. Dr. Patel characterizes the one-hour window to obtain a patient's written consent as a campaign to stigmatize him and the other Indian American physicians in MAMA as uncaring and money-grubbing practitioners. According to Dr. Patel, the protocol has resulted in a decrease in the number of referrals. This has irreparably harmed his reputation as a 15

physician and reduced the economic value of his medical practice. 3 In the course of a deposition taken on October 17, 2012, Dr. Bershad acknowledged that the "billing consent" protocol the Hospital imposed on Dr. Patel was "difficult to comply with" and may have discouraged Dr. Patel from seeing patients at Robert Wood Johnson. Dr. Patel's revenues from services provided at RWJUH for the three-year period from 2009 to 2012 declined as follows: $1,977,069.66 in 2009; $974,237.15 in 2010; $304,638.79 in 2011; and $168,123.32 in 2012. In 2013, the year after the corrective action protocol was implemented, Dr. Patel's revenues from services rendered at RWJUH totaled $345,692.97. According to Dr. Patel, on March 31, 2014, he "was driven off" the medical staff at RWJUH "based on a few missing consent forms from Medicare patients[.]" Dr. Patel had received prior 3 Dr. Patel submitted a certification of a Dr. Dev. Lahiri, who described himself as "a physician who refers patients to Robert B. Patel, M.D., at Robert Wood Johnson University Hospital (RWJUH)." Dr. Lahiri stated that "in late June or early July, [2012] [he] referred a longtime nursing home patient to RWJUH to be seen by Dr. Patel." He claimed the emergency room physician "did not want to admit the patient to be seen by Dr. Patel, and instead requested that he refer the patient" to another doctor. He had a similar problem with a different patient in mid-july 2012. Dr. Lahiri averred the conduct of the RWJUH staff "misled" him to wonder about the quality of Dr. Patel's medical abilities. 16

notice that the Credentials Committee would recommend denial of his reappointment on February 12, 2014. II As a member of the statute's protected class, the motion judge found plaintiff established a prima facie case of national origin discrimination under the LAD. However, the judge also found defendant asserted valid non-discriminatory grounds for taking the action it took against plaintiff. The judge found defendant produced valid evidence showing plaintiff's patients were not informed of his extravagant billing practice, and consequently felt cheated or taken advantage of at a time when they were most vulnerable to this particular type of economic abuse. The record shows that, in some cases, patients were not aware of plaintiff's role in their treatment plan or did not have any recollection of even meeting plaintiff or a MAMA physician during their hospital stay. The receipt of plaintiff's high bill at the end of their hospital stay compounded these patients' sense of being unfairly billed. The motion judge considered defendant to be the institution entrusted by patients to safeguard their physical, emotional, and in this case, economic welfare. In this role, defendant acted properly by investigating complaints filed by patients, and thereafter crafting and implementing a billing protocol that 17

provided patients with prior notice of plaintiff's billing practices and required plaintiff to obtain their informed consent to pay these fees. Addressing directly plaintiff's allegations of discrimination, the judge found the billing protocol was facially and as applied unrelated to plaintiff's ethnic background or national origin. The judge found plaintiff did not prove defendant's actions were pretextual; plaintiff also proffered "no evidence which would suggest that those [patient billing] complaints were motivated by ethnic animus or otherwise used as a pretext to conceal invidious discrimination." There was also no evidence supporting plaintiff's claim of racial jealously. Shifting the focus of the analysis to the breach of contract claim, the motion judge found "[t]he one-hour deadline for consultation with a patient was limited only to obtaining consent to commence treatment with a patient. It did not shorten the 24-hour time limit within which to begin treating the patient." Under these circumstances, there was no evidential basis to sustain a breach of contract claim. With respect to the defamation claim, the judge found the April 10, 2012 letter authored by President Jones, and sent directly to plaintiff, was not defamatory because it was not published and disseminated to a third party. The judge also did 18

not consider communications between "hospital staff relating to the fact that they were not to honor orders of Dr. Patel until they obtained informed billing consent" defamatory. There was nothing in this directive from which a reasonable person could rationally infer any negative connotations regarding the quality of Dr. Patel's work as a physician. III We review a grant of summary judgment by applying the same standard used by the trial court. Bhagat v. Bhagat, 217 N.J. 22, 38 (2014). Summary judgment should be granted when "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). In making this determination, the judge must decide "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Manahawkin Convalescent v. O'Neill, 217 N.J. 99, 115 (2014) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)). 19

As an appellate court, we "should first decide whether there was a genuine issue of material fact, and if none exists, then decide whether the trial court's ruling on the law was correct." Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010) (citing Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.) certif. denied, 154 N.J. 608 (1998)). Although we are "bound by the summary judgment factual record developed before the trial court and applies to that record the governing legal standards," Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 378 n.3 (2010), we are not similarly bound by the trial court's "interpretation of the law and the legal consequences that flow from established facts[.]" Manahawkin, supra, 217 N.J. at 115. The LAD prohibits discrimination on the basis of "race, creed, color, national origin... or nationality[.]" N.J.S.A. 10:5-3. Because "[t]he LAD is remedial social legislation... it should be liberally construed." Nini v. Mercer Cty. Cmty. Coll., 202 N.J. 98, 108-09 (2010). Here, Dr. Patel has asserted he has received disparate treatment because of his ethnic background and was discriminatorily burdened and denied equal treatment because of his national origin as an Indian American. The parties agree that there is no direct evidence of discrimination in this case. To prove disparate treatment 20

discrimination in the absence of direct discrimination, Dr. Patel must first establish a prima facie case by a preponderance of the evidence, as outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668, 677 (1973). He must show: "(1) that he or she is a member of a protected class; (2) that he or she was qualified for the job; (3) that he or she was negatively affected by the defendant's employment decisions; and (4) that he or she was treated less favorably than employees not within the protected class." Mandel v. UBS/PaineWebber, Inc., 373 N.J. Super. 55, 70 (App. Div. 2004), certif. denied, 183 N.J. 213 (2005). Once "plaintiff establishes a prima facie case, it creates a presumption of discrimination, and the burden [of production] shifts" to defendant RWJUH to proffer a non-discriminatory and legitimate reason for its action. Ibid. Once produced, "the presumption of discrimination disappears, and the burden then shifts back to the plaintiff to prove that the employer's reasons were a pretext for discrimination[.]" Ibid. Here, it is undisputed that Dr. Patel has established a prima facie case of discrimination under the McDonnell Douglas paradigm. On appeal, Dr. Patel challenges the trial court's finding that the billing complaints constituted a legitimate, non-discriminatory reason for the corrective action; he argues the plan and billing 21

protocol were nothing more than a mere pretext for discrimination. Given his inability to present direct evidence of discrimination - the proverbial "smoking gun" - Dr. Patel argues he needs only to "cast doubt" on defendant's proffered reasons for instituting the billing protocol. Plaintiff thus argues the motion judge's reliance on Seman v. Coplay Cement Co., 26 F.3d 428 (3d Cir. 1994) was misplaced, because Seman concerned the standard for a judgment as a matter of law in a jury trial, not the standard applicable to summary judgment. Dr. Patel cites instead to a case from the Third Circuit for the proposition that, if plaintiff can... produce evidence to cast doubt on the employer's stated reason, the case should go to trial.... Employment discrimination cases center around a single question: why did the employer take an adverse employment action against plaintiff? Because this is clearly a factual question, summary judgment is in fact rarely appropriate in this type of case. Simply by pointing to evidence which calls into question the defendant's intent, the plaintiff raises an issue of material fact which, if genuine, is sufficient to preclude summary judgment. [Marzano v. Comput. Sci. Corp., 91 F.3d 497, 509-10 (3d Cir. 1996) (citations omitted).] To survive summary judgment once a defendant has offered a legitimate reason for their action, 22

the plaintiff generally must submit evidence which: 1) casts sufficient doubt upon each of the legitimate reasons proffered by the defendant so that a factfinder could reasonably conclude that each reason was a fabrication; or 2) allows the factfinder to infer that discrimination was more likely than not a motivating or determinative cause of the adverse employment action. [Fuentes v. Perskie, 32 F.3d 759, 762 (3d Cir. 1994).] In Mandel, supra, 373 N.J. Super. at 75-76, we adopted the Fuentes standard in assessing a grant of summary judgment in a disparate treatment LAD case. Here, Dr. Patel could have survived defendant's motion for summary judgment on the issue of pretext by either (i) discrediting the proffered reasons, either circumstantially or directly, or (ii) adducing evidence, whether circumstantial or direct, that discrimination was more likely than not a motivating or determinative cause of the adverse employment action. The non-moving plaintiff must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence, and hence infer that the employer did not act for [the asserted] nondiscriminatory reasons. 23

[Mandel, supra, 373 N.J. Super. at 75 (citations omitted) (first emphasis omitted).] Dr. Patel argues the motion judge erred in granting summary judgment to defendant because when the inferences are construed in his favor, it could be found that RWJUH's proffered reason was pretextual. As a starting point, Dr. Patel argues the motion judge should have rejected the written billing complaints relied upon by RWJUH as inadmissible hearsay. He maintains "RWJUH provided no evidence that the complaints were genuine patient complaints." In response, RWJUH argues Rule 4:46-2(c) governing the adjudication of summary judgment motions expressly permits a moving party to include out-of-court statements such as "answers to interrogatories, admission on file, depositions, and affidavits." See Jeter v. Stevenson, 284 N.J. Super. 229, 233 (App. Div. 1995). Defendant also argues the patient complaints are not hearsay evidence because they were not offered "to prove the truth of the matter asserted." We agree with defendant's argument. N.J.R.E. 801(c) defines hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." See also Carmona v. Resorts Int'l Hotel, Inc., 189 N.J. 354, 376-77 (2007) ("[W]here statements are offered, not for the 24

truthfulness of their contents, but only to show that they were in fact made and that the listener took certain action as a result thereof, the statements are not deemed inadmissible hearsay."). RWJUH submitted the patient complaints to show that it in fact received complaints and, as a result, took the action required under the circumstances. The complaints provide a rational, non-discriminatory basis for defendant initiating the corrective action and developing the billing consent protocol. Moreover, independent of these legally sound reasons, Dr. Patel has admitted many of the facts contained in the patient complaints, namely that: (1) he does not inform patients of his fees; and (2) he does not disclose he is "out-of-network" prior to initiating treatment. It is equally undisputed that RWJUH received eighteen complaints of this nature during the period of time at issue in this case. It is entirely reasonable for a hospital to investigate and seek to address complaints that directly affect the patients under its care, as well as impugn its reputation. The report completed by the RWJUH Sub-Committee investigating the complaints determined the "rate and volume of complaints [against plaintiffs] is many multiples the complaints received regarding any other physician on the staff of RWJUH," and 25

"dollar amounts for [their] services at RWJUH... is 10-50 times usual and customary." We agree with the motion judge that RWJUH presented competent evidence for investigating the complaints and thereafter initiating legitimate, nondiscriminatory corrective action. The trial judge properly granted defendant's motion for summary judgment. None of the reasons advanced by defendant for the corrective action, and to support plaintiff's subsequent termination, were based on or even suggested racial or discriminatory animus. "[A]n employer can legally discharge an employee without violating employment discrimination statutes 'for good reason, bad reason, or no reason at all,' as long as there is no intentional discrimination." Maiorino v. Schering- Plough Corp., 302 N.J. Super. 323, 345 (App. Div.) (quoting Walker v. AT&T Techs., 995 F.2d 846, 850 (8th Cir. 1993)), certif. denied, 152 N.J. 189 (1997); see also Fuentes, supra, 32 F.3d at 765 (stating that a "plaintiff cannot simply show that the employer's decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent"). The remaining arguments raised by plaintiffs lack sufficient merit to warrant discussion in a written opinion. R. 2:11-26

3(e)(1)(E). We affirm the Law Division's decision to grant summary judgment dismissing plaintiffs' claim for breach of contract and defamation substantially for the reasons expressed by the motion judge. Affirmed. 27