Tomasini v. Mount Sinai Medical Center of Florida, Inc.

• Decision Date: 20 February 2004
• Docket Number: No. 02-22044-CIV.,02-22044-CIV.
• Parties: David TOMASINI, Plaintiff, v. MOUNT SINAI MEDICAL CENTER OF FLORIDA, INC., a Florida corporation, d/b/a Mount Sinai Medical Center, Defendant.
• Court: U.S. District Court — Southern District of Florida

Page 1252

315 F.Supp.2d 1252

David TOMASINI, Plaintiff, v. MOUNT SINAI MEDICAL CENTER OF FLORIDA, INC., a Florida corporation, d/b/a Mount Sinai Medical Center, Defendant.

No. 02-22044-CIV.

United States District Court, S.D. Florida.

February 20, 2004.

Neil F. McGuinness, Frank Howard Henry, Bennett Aiello Henry & McGuinness, Miami, FL, for David Tomasini, M.D., plaintiff.

Richard L. Lapidus, Miami, FL, for Mount Sinai Medical Center of Florida, Inc., a Florida corporation dba Mount Sinai Medical Center, defendant.

ORDER ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

ALTONAGA, District Judge.

THIS CAUSE came before the Court on Plaintiff, David Tomasini, M.D.'s (hereinafter "Dr. Tomasini") Motion for Summary Judgment on Counts I & II of the Complaint and on MSMC's Affirmative Defenses and Counterclaims (D.E.67). The undersigned has carefully reviewed the parties' memoranda, statements of undisputed and disputed facts, applicable law, and the record.

I. FACTUAL BACKGROUND

In late December of 1998, Defendant, Mount Sinai Medical Center (hereinafter "Mount Sinai"), executed a contract with the executive search firm of Heidrick & Struggles ("H & S") to assist it in the search for a chief medical officer ("CMO"). By early 1999, a job specification had been finalized by both the Mount Sinai search committee and H & S, and a lengthy search process for the CMO began. A Mount Sinai search committee and Mount Sinai physicians interviewed prospective candidates, and at the conclusion of the process, Dr. Tomasini was selected.

As part of the selection process, H & S prepared a brochure that Dr. Tomasini did not see or approve, containing information about him that had been provided to H & S by Dr. Tomasini as a result of an interview by H & S recruiter, Chris Clark. According to Mount Sinai, it made its decision to hire the doctor based on the H & S brochure.¹ The brochure stated that "under no circumstances should the evaluation contained herein be transmitted to the candidate." During the interview, Clark did not ask Dr. Tomasini whether he had been terminated in the past. Indeed, Mount Sinai had not instructed Clark to focus on whether any of the candidates, including Dr. Tomasini, had been previously terminated from prior employers. With respect to his notes of the interview, Clark stated that "[t]hey're a combination of my notes of what he was telling me and my paraphrasing and impression of what he was telling me."

After his selection, Dr. Tomasini negotiated an employment agreement with Mount Sinai dated May 6, 1999. On May 20, 1999, after having entered into the employment agreement with Mount Sinai, Dr. Tomasini completed a Mount Sinai application form. In explaining why he had been "discharged or asked to resign" from Community Hospital, his previous employer, Dr. Tomasini wrote as the reason: "Change in Administration." Dr. Tomasini began working for Mount Sinai on or about June 7, 1999.

Bruce M. Perry, at that time Mount Sinai's Chief Executive Officer, amended Dr. Tomasini's employment agreement on October 13, 2000. It is undisputed that Perry had the authority to enter into the amendment and was not required to obtain approval for the amendment from the Mount Sinai Board of Trustees or anyone else. Although Mount Sinai has certainly indicated that "[a]n issue of fact exists as to whether the `amendment' was ... authorized or is binding on the Hospital," no factual issue has been presented² by way of citations to the record, to rebut the evidence presented by Dr. Tomasini that Mr. Perry had the full and unrestricted authority to set compensation and enter into the amendment. The agreement was amended as follows:

The following paragraph contained in your letter of Agreement dated May 6, 1999 is being changed from:

• In the event you are asked to resign other than for cause, defined as conviction of a felony, moral turpitude or gross neglect of duties, you would be entitled to eighteen months of base salary as severance.

to:

• In the event you are asked to resign other than for cause, defined as conviction of a felony, moral turpitude or gross neglect of duties, you will be entitled to eighteen [sic] of base pay, paid monthly, plus 30% of base pay paid in one lump sum in lieu of benefits.

The lump sum payment was to be calculated based on eighteen months of base pay. According to Mount Sinai, "the sole effect [of the amendment] was to give Dr. Tomasini not only the 18 months base pay as severance, but 30 percent of that amount in addition as a lump sum." (See Countercl. II ¶ 18).

During his tenure at Mount Sinai, Dr. Tomasini received two performance-based bonuses, one on August 24, 2000 and one on February 5, 2001. He remained employed at Mount Sinai for approximately two years and five months, and until October 8, 2001, he reported to Perry. After Perry was terminated, Dr. Tomasini, too, was terminated by Perry's replacement, Steven Sonenreich. Other members of the management team were also later discharged.

At the time of Dr. Tomasini's termination, Mount Sinai was unaware of any grounds that would support a resignation for "moral turpitude or gross neglect of duties."³ The Plaintiff has also identified ten "key" witnesses who have testified they are not aware of any act or omission of Dr. Tomasini that would constitute "gross neglect of duties" or "moral turpitude." Nonetheless, Mount Sinai maintains that,

[a]lthough the corporate officer who terminated Plaintiff's employment was unaware at the time or [sic] the facts constituting "moral turpitude," Dr. Tomasini in fact, took monies to which he was not entitled from the Defendant, and received, without authority of the Board of Trustees or the Compensation Committee, an amendment to his Contract of Employment, for which there was no justification.

(See Def.'s Resp. to Pl.'s Req. for Admis. ¶ 2). Also,

[t]he Defendant's Officer who made the decision to terminate Dr. Tomasini was, in fact, unaware of the facts constituting "gross neglect of duties." The Defendant corporation, however, was aware of these facts since the knowledge was possessed by a person who held that office prior to the officer who fired Dr. Tomasini.

(See Def.'s Resp. to Pl.'s Req. for Admis. ¶ 4). Dr. Tomasini did accept payment of a $41,625 bonus in February 2001 that Mount Sinai maintains he was not entitled to because it overlaps with a bonus he had earlier received in August of 2000. At the time he terminated Dr. Tomasini, Sonenreich was unaware that the bonus in question had been paid.

As it pertains to Dr. Tomasini's vacation, sick and holiday pay, his agreement with Mount Sinai provides: "You will be entitled to up to four weeks of paid vacation time per annum and other standard holiday and sick pay benefits." (May 6, 1999 Letter of Agreement). By the time he was terminated by Mount Sinai, Dr. Tomasini had accrued 173 hours of earned time off. At termination, an executive is entitled to be paid his earned time off.

Although the Vice President of Human Resources for Mount Sinai drafted a severance agreement for Dr. Tomasini that included amounts for salary, base pay, earned time off and deferred compensation, that agreement was not made final and Dr. Tomasini did not receive severance pay or other accrued and earned benefits. Dr. Tomasini therefore filed suit for breach of contract seeking to recover in Count I: 18 months of salary, for a total of $468,000; 173.6 hours of earned (but unpaid) vacation time, for a total of $26,040; and attorney's fees and costs. In Count II, he seeks the recovery of a lump sum payment of 30% of his base salary for eighteen months, as provided for in the October 13, 2000 amendment to the employment agreement, for a total of $140,400, as well as attorney's fees and costs. By Order dated January 2, 2004, summary judgment was denied as to Count III, pertaining to Dr. Tomasini's claim for supplemental retirement benefits. Count IV of the Complaint was earlier dismissed on October 27, 2003 pursuant to the parties' stipulation.

Mount Sinai, in Count I of its Counterclaim, alleges fraud in the inducement. It maintains it hired Dr. Tomasini in reliance upon misrepresentations contained in the H & S brochure, misrepresentations that the doctor allegedly made to the H & S recruiter. In Count II, incorrectly⁴ labeled "Gross Neglect of Duties," Mount Sinai alleges that Dr. Tomasini, without authority, enriched himself by amending his employment agreement and converting funds of Mount Sinai (by accepting a duplicate bonus). These issues are also raised as affirmative defenses. Mount Sinai has raised as "issues of fact" that need to be tried the following:

A. Whether during his tenure, as Executive Vice President of Mount Sinai Hospital, David Tomasini took $41,625 from the Hospital that he was not entitled to.

B. Whether anyone, who was aware that David Tomasini had received an annual bonus in the summer of 2000, authorized an additional annual bonus to be paid to him in February of 2001.

C. Whether a Senior Vice President of a charitable corporation commits gross neglect of duties, or an act condemned as moral turpitude by unlawfully taking $41,625 of the institutions [sic] money.

D. Whether anyone authorized the Addendum to the Contract increasing the severance for the Plaintiff.

E. Whether the Addendum to the Contract increasing the severance was supported by any consideration whatsoever.

F. Whether Dr. Tomasini deliberately lied to the search firm that recruited him regarding the termination of his employment at his prior job and when the Hospital knew or should have known of the lie.

(Def.'s Statement of Material Facts at 3-4).

II. LEGAL ANALYSIS

A. Summary Judgment Standard

Under Rule 56(c), Fed.R.Civ.P., a motion for summary judgment "shall be rendered forthwith if 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...