Jon Campisi Sep. 6, 2012, 10:14am

A federal judge has granted in part, and denied in part a defense motion seeking to

dismiss a complaint initiated by two physicians against a former colleague and the Philadelphia-based healthcare agency where the plaintiffs allege they experienced discriminatory treatment.

Edo Ginsburg and Brian P. Yuskevich brought a civil action this past spring against Aria Health Physician Services, Aria Health System and Dr. Randy K. Metcalf alleging civil rights violations, as well as various state claims, arising out of alleged mistreatment the plaintiffs experienced at the hands of the defendants.

Ginsburg, Israeli-born and a disabled veteran of the Israeli Navy, and Yuskevich, who is Russian and Lithuanian, claim in their lawsuit that their respective Jewish backgrounds was the basis for discriminatory treatment at the hands of Metcalf.

The two, who worked as staff anesthesiologists at Torresdale Hospital in Northeast Philadelphia, which is run by Aria, claim that Metcalf made derogatory and vulgar comments about Yuskevich’s eastern European heritage, mocked the way Ginsburg walks due to his disability, and made violent threats against both plaintiffs.

The plaintiffs also allege that the hospital and healthcare agency failed to take corrective action against Metcalf.

The plaintiffs previously worked alongside Metcalf in the hospital’s cardiothoracic operating room.

The complaint alleges that the plaintiffs requested a meeting with hospital administration in February 2011 to discuss the treatment, but that the chief operating officer canceled a scheduled meeting at the last minute and refused to reschedule.

In an Aug. 31 order, U.S. District Judge Norma L. Shapiro, of the Eastern District of Pennsylvania, partially granted the defendants’ motion to dismiss, agreeing to throw out a breach of contract claim and a Pennsylvania Whistleblower Law claim, but denied the motion to dismiss with respect to the remaining claims in the lawsuit, which include the federal civil rights claims and various state law claims such as intentional infliction of emotional distress, assault, retaliation and hostile work environment.

In agreeing to dismiss the breach of contract claim, Shapiro wrote that the plaintiffs have failed to state a claim of alter ego liability for Aria Health.

The judicial memorandum states that under Pennsylvania law, a plaintiff may pierce a corporate veil only when the corporation is the “alter ego” of another party.

The defendants had argued that the employment agreements were contracts between the plaintiffs and Aria Health Physician Services only, and not between the plaintiffs and Aria Health.

The plaintiffs, however, argued that discovery would show that Aria Health is, indeed, the alter ego of Aria HPS.

Shapiro wrote that the plaintiffs have failed to allege facts relevant to the factors laid out by appeals courts that relate to determining whether or not to pierce the corporate veil.

As for the dismissal of the Pennsylvania Whistleblower Law claim, the judge wrote that the plaintiffs had reported Dr. Metcalf to the hospital’s administration with “consideration of personal benefit.”

To state a claim under the PWL, however, a plaintiff has to assert that he or she was the victim of discrimination or retaliation after he or she made a “good faith report,” verbally or in writing to the employer or appropriate authority involving instances of wrongdoing or waste.

A “good faith report,” the memorandum states, is defined as a “report of conduct defined in this act as wrongdoing or waste which is made without malice or consideration of personal benefit and which the person making the report has reasonable cause to believe is true.”

In this case, however, Shapiro ruled that the plaintiffs reported Metcalf with consideration of personal benefit, and that there was no good faith report with respect to the plaintiff’s complaint, which are reasons to dismiss the PWL claim.

All other claims were allowed to proceed and the litigation will move forward.

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