Bithoney v. Fulton-DeKalb Hosp. Auth.
| Decision Date | 30 November 2011 |
| Docket Number | No. A11A0934.,A11A0934. |
| Citation | 313 Ga.App. 335,721 S.E.2d 577,11 FCDR 3880 |
| Parties | BITHONEY v. FULTON–DeKALB HOSPITAL AUTHORITY et al. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Buckley & Klein, Daniel M. Klein, Atlanta, for appellant.
Rogers & Hardin, Richard H. Sinkfield, Catherine M. Bennett, Holland & Knight, Charles S. Johnson III, Robert Sparks Highsmith, Jr., Joshua I. Bosin, for appellees.
Dr. William Bithoney, M.D., relocated from New York to Atlanta after accepting employment in an executive capacity at Grady Memorial Hospital. But the night before his anticipated start date, Bithoney was informed that Grady's governing body, the Fulton–DeKalb Hospital Authority (the “Authority”), did not approve of his hiring and would not permit him to commence work. Bithoney subsequently filed suit against the Authority and Pamela Stephenson, the chair of the Authority's board of trustees (the “Board”), for breach of an oral contract for severance, fraud, and negligent misrepresentation. Thereafter, appellees successfully moved for summary judgment on the grounds that the oral contract was barred by the Statute of Frauds and, further, that Bithoney's claims for fraud and misrepresentation failed as a matter of law. Bithoney appeals the grant of summary judgment to the Authority. For the reasons set forth infra, we affirm.
Viewing the evidence and construing all inferences in the light most favorable to Bithoney,1 the facts show that in early 2007, he served as the physician-in-chief of St. Vincent Catholic Medical Centers of New York 2 and vice dean of New York Medical College. Because Bithoney was hired for the purpose of navigating St. Vincent through a bankruptcy and major reorganization resulting in the sale and/or closing of six of the seven hospitals, his employment in that capacity was, by its very nature, finite in duration.
Around April 2007, Otis Story, the then-CEO of Grady—who had previously worked with Bithoney in New York—contacted Bithoney to gauge his interest in coming to work for Grady. Story indicated to Bithoney that he had been given the authority to create an executive team,3 and that he hoped Bithoney would consider running the day-to-day operations of the hospital. Bithoney was familiar with Grady and its commitment to treating poor and underserved ethnic and cultural minorities (a cause about which he was passionate), and he was excited about the employment opportunity.
Bithoney made several trips to Atlanta during the summer of 2007 to visit Grady and explore the possibility of his employment there. During their discussions, Story indicated that it was his practice to have potential job applicants meet the members of the Board, and requested that Bithoney do so “as a courtesy.” On June 5, 2007, Bithoney traveled to Atlanta to meet with various Board members, including the Board's vice president. After Bithoney's meeting, the vice president left a voicemail on Story's cell phone (which Story later played for Bithoney) expressing enthusiasm about Bithoney's qualifications and opining that he should be hired immediately.
Following his visit, Bithoney sent an e-mail to Story dated June 9, 2007, in which he communicated his “deeply” held belief in Grady's mission and expressed his excitement about the prospect of working for the hospital. Bithoney further acknowledged that, having just navigated St. Vincent's through bankruptcy, he was “nervous about Grady's finances.” Bithoney nonetheless stated that he would be willing to consider a “solid” employment offer, which he expressly stated must include “appropriate not[-]for[-]cause severance payments.”
During the months of June and July, Bithoney and Story had ongoing telephone discussions regarding Bithoney's salary needs and other desired employment terms, and Bithoney repeatedly stressed that, because working for Grady would require him to uproot his family (his wife was also a working professional), it was critical to him that he have an appropriate severance package in the event he was terminated from Grady without cause. Story indicated that Grady would be willing to provide him an appropriate severance.
Bithoney made at least two additional trips to Atlanta in July 2007 during his generalized employment discussions with Story. One such visit was for the specific purpose of meeting Stephenson, chair of the Board. During that visit, Stephenson told Bithoney, “[W]elcome to the Grady family, we are looking forward to your joining us.”
The employment discussions between Bithoney and Story became more focused throughout July and it is undisputed that by August, they had reached a verbal agreement pursuant to which Bithoney was to begin work as Grady's senior vice president of administration on October 15, 2007. It is further undisputed that they agreed on Bithoney's annual salary, an annual incentive bonus, and the amount Bithoney would receive as reimbursement for relocation and temporary housing expenses. Finally, Bithoney contends that he and Story agreed that he would receive “a severance payment of 15 months' salary if Grady terminated [his] employment without cause.”
As Bithoney awaited a written draft employment contract, he became “worried” that the “politics at Grady” were causing a delay in the contracting process. Nevertheless, after receiving Story's assurances that “[w]e will get this done,” Bithoney accepted an offer on his home in New York and began looking at homes in Atlanta to purchase.
By mid-August, Bithoney received a draft employment contract from Grady. This draft included a provision that, in the event Bithoney was terminated without cause,4 he would receive “full severance payments” which would be “payable for 15 months from the effective date of said termination.” Bithoney coordinated with Michael Black, Grady's then-vice president of human resources, to construct a final draft of the agreement, which was then approved by Story and submitted to Grady's legal department for approval.5
Bithoney informed Story that, based upon Story's “verbal guarantee that we shall move forward on signing the ... contract,” he made an offer on a home in Atlanta. And because the employment contract was not yet executed, Bithoney and Story signed an offer letter to effectuate the home closing, in which Grady “confirm[ed]” Bithoney's acceptance of Grady's offer of employment (the “Offer Letter”).6 The Offer Letter included Bithoney's agreed upon title, start date, salary, annual incentive payment, and reimbursement of moving/relocation expenses. It concluded, “[t]his letter is intended only to confirm your initial employment status as an employee at-will and serves as a framework for the development of a [f]ormal [c]ontract.” Upon receipt of the Offer Letter, Bithoney sent an e-mail to Black acknowledging that the offer letter did not include certain terms, including the not-for-cause severance provision, which Bithoney had been advised needed to be left for the formal contract. Bithoney nonetheless reiterated his intent that the severance provision be included in any such contract.
Despite not having an executed employment agreement, Bithoney moved to Atlanta in early October 2007 in anticipation of his October 15 start date. On October 14, the night before he was to begin work, Story informed Bithoney that his employment had been blocked by the Board, and Bithoney was never permitted to begin work with Grady in the position for which he was hired.
Thereafter, Bithoney filed suit against the Authority and Stephenson, alleging breach of contract, fraud and negligent misrepresentation, and asserting entitlement to punitive damages and attorney fees. Specifically, Bithoney alleged that he and Story entered into an oral contract pursuant to which he was entitled to “a severance payment equal to 15 months' salary” for not-for-cause termination, the existence of which he asserted was “re-confirmed” in the draft employment agreement which “contain[ed], among other things, the severance terms agreed upon.” Bithoney further alleged that Stephenson's statement, “[W]elcome to the Grady family, we are looking forward to your joining us,” amounted to fraud and/or negligent misrepresentation insomuch as it communicated that the Board was agreeable to Bithoney's employment and otherwise concealed the existence of the Board's opposition to his hiring.
The Authority served Bithoney with discovery, which included an interrogatory question asking him to explain the basis of his contention that he had entered into a contract with Story. As he had in his complaint, Bithoney maintained in a verified response that he and Story orally agreed that he would receive “a severance payment of 15 months' salary if [Grady] terminated [his] employment without cause,” the “terms” of which were “contain[ed]” in the draft employment agreement.
The Authority also conducted a videotaped deposition of Bithoney. Again in his deposition, Bithoney contended that he and Story orally agreed to “a severance payment of 15 months' salary” for termination without cause. The Authority then directed Bithoney to the assertion in both his complaint and interrogatory response in which he alleged that the draft employment agreement “contain[ed]” the “severance terms” agreed upon. The Authority handed Bithoney four draft employment contracts that had been exchanged between he and Black, and asked him to identify which document contained language describing the severance to which he and Story had agreed:
[Authority]: Look at these four documents and tell me, please, whether you can identify either one of them as containing or as being the document that you referred to as having been sent to you ... which contain[s] language that you contend describes the severance arrangement that you claim to have reached with Mr. Story.
[Bithoney]: Well, in going over these as you handed them to me, I immediately looked at the one that...
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