PHILADELPHIA – An anesthesiologist who filed an employment discrimination lawsuit against the Children’s Hospital of Philadelphia never suffered adverse employment action against him, the hospital claims.
On June 3, 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 employee 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 hospital disagrees.
“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 hospital’s 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 said 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’s motion.
In a supplemental brief to their summary judgment motion, the hospital rejected what it indicated was Denham’s speculation-based inferences as to the events in question.
“Plaintiff’s subjective belief of what may have happened, might have happened, or could have happened had plaintiff met with his supervisors and selected a model requires summary judgment to be entered against him. This Circuit and its District Courts have uniformly dismissed claims based upon a plaintiff’s speculative beliefs,” the hospital said in its brief.
“Equally, plaintiff’s futile attempt to establish a hostile work environment does not support an adverse action. Plaintiff’s deposition testimony identified seven or eight instances in which Dr. Bailey allegedly made negative comments and two instances in which Dr. Kurth allegedly made negative comments. These conversations occurred over a seven-year period of time that plaintiff now, during litigation, categorizes as ‘hurtful. Absent an adverse action, plaintiff’s discrimination claims fail as a matter of law.”
The hospital added Denham was not targeted by the University of Pennsylvania either, in its view.
“Plaintiff devotes but one paragraph of his opposition to the argument about Penn, stating that a jury could conclude that Penn is also plaintiff’s employer. Defendants never argued that Penn was not plaintiff’s employer; Defendants argue that Penn imposed no adverse action upon plaintiff,” the hospital said in its brief.
“The employment models at issue were introduced in CHOP’s Division of General Anesthesiology by the CHOP Division Chief, Dr. Bailey, and the CHOP Department Chair, Dr. Kurth. The fact that Dr. Bailey and Dr. Kurth were also employees of Penn – holding no leadership positions at Penn – is of no moment.”
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