PHILADELPHIA – The Children’s Hospital of Philadelphia and other agencies have filed a motion for summary judgment in opposing an employment discrimination action filed by an anesthesiologist who believes he suffered age- and disability-related unfair treatment.
On April 29, the hospital, Children’s Anesthesiology Associates and the Trustees of the University of Pennsylvania brought the motion in response to the discrimination lawsuit brought by Dr. Joseph Denham, a CHOP for more than 18 years.
Denham, over the age of 60, alleged that he faced age-based discrimination after spinal injuries limited his ability to work shifts at the hospital, and the very same discrimination later led him to take a medical leave of absence from his duties.
The defendants feel differently.
“Joseph Denham filed this preemptive lawsuit alleging age and disability discrimination under local, state, and federal statutes without having suffered any adverse employment action. Plaintiff cannot identify any material facts that suggest that his age or disability support a basis for his claims,” per the summary judgment motion.
“Plaintiff, a CHOP anesthesiologist with a Penn faculty appointment, has suffered no adverse employment action. He has not been terminated. He has not been demoted. His pay has not been reduced. His assignments at CHOP have not changed in any way. Plaintiff worked a reduced schedule over many years – more than he was entitled to under Penn’s policies for faculty – and wanted to continue working his reduced schedule indefinitely, with full benefits.”
Starting in 2004, CHOP says it allowed Denham to have an alternate and reduced schedule because of injuries he allegedly sustained in a motor vehicle accident. Further, in 2014, CHOP granted plaintiff permission to further reduce his schedule because of injuries he allegedly sustained in two more motor vehicle accidents.
“In July 2016, Dr. Dean Kurth became CHOP’s Anesthesiology Department Chair. Dr. Kurth met with every doctor in the Department and learned of the multiple alternate arrangements and schedules. In an effort to create fairness, equity, transparency, uniformity, and operational sustainability within the Department, Dr. Kurth introduced the concept of categorizing the doctors into employment models. These models would encompass work schedules and benefits that would allow each doctor to select the model that best suited their overall professional goals while assuring fairness,” according to the hospital.
“Plaintiff was not forced into any model. Every doctor was given an opportunity to select a model, and everyone did, except one: Plaintiff. Rather, plaintiff refused to meet with Dr. Kurth to discuss the models. Plaintiff instead made a number of assumptions about his own employment path based solely on introductory documents about the models and feared that the outcome of an in-person meeting with Dr. Kurth would not comport with his own desired schedule. Plaintiff then went on medical leave in May 2018 and filed this lawsuit. He has been on leave since May 2018 and is currently on long-term disability leave.”
In choosing the path of litigation, the hospital claims the plaintiff made “numerous false assumptions”, such as assuming that the documents introducing the models were complete and final when they were not and refusing to take an in-person meeting to determine what he wanted as compared with what the Department could provide.
“Plaintiff also assumed that he would be forced into a model he did not want and would lose certain benefits he enjoyed. Had plaintiff merely agreed to meet with Dr. Kurth, he very well may have been able to continue in his reduced schedule with no call and other benefits that were important to him,” per the hospital’s motion.
“Plaintiff’s actions unilaterally shut down the interactive process. The undisputed fact remains: Plaintiff suffered no adverse employment action. His fear of a potential adverse action is not enough to sustain this lawsuit. Moreover, plaintiff’s age and disability played no role in any of the neutral business decisions that plaintiff may identify that potentially impacted him.”
The plaintiff is represented by Laura Carlin Mattiacci and Lane Schiff of Console Mattiacci Law, in Philadelphia.
The defendants are represented by Joe H. Tucker Jr. and Leslie Miller Greenspan of The Tucker Law Group, also in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania case 2:19-cv-00794
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com