PHILADELPHIA – The case of an anesthesiologist who filed an age-based employment discrimination lawsuit against the Children’s Hospital of Philadelphia is heading to trial, with the defendant claiming that the case is without evidentiary support.
Dr. Joseph Denham first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on Feb. 25, 2019 versus the Children’s Hospital of Philadelphia, Children’s Anesthesiology Associates and the Trustees of the University of Pennsylvania.
Denham, a CHOP employee for more than 18 years and 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.
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 prior summary judgment motion.
However, Denham did not select an employment model and was the only one of 120 faculty members in the Department of Anesthesiology and Critical Care who refused to participate in the process.
He went on a medical leave of absence on after filing his employment discrimination claim through the EEOC on May 22, 2018 and currently remains on long-term disability, with benefits continuing through November 2023.
UPDATE
In a Nov. 23 pre-trial memorandum, CHOP argued that the suit was baseless and came down to the plaintiff’s alleged wishes to continue working a reduced schedule while collecting benefits.
“In essence, this case is about plaintiff not wanting to go to a meeting because his preferred working conditions ‘might’ be changed. So, because plaintiff had grown comfortable not carrying his weight in the department and otherwise slacking off so he could pursue his non-medical professional pleasures, he has cynically used jokes between him and his friend to falsely claim that a hostile work environment existed,” the defense memorandum stated.
“To further his scheme to keep his preferred easy position in a non-busy location for CHOP’s Department of Anesthesiology and Critical Care Medicine, plaintiff filed this preemptive lawsuit alleging age and disability discrimination without having suffered any adverse employment action. 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 and wanted to continue working his reduced schedule indefinitely, with full benefits.”
CHOP added that while the plaintiff has conceded that he is not seeking economic damages in this case, the plaintiff has received 100 percent of his salary while on FMLA time, 100 percent of his salary while on short-term disability and 60 percent of his salary while on long-term disability, offset only by the Social Security disability benefits he has received.
“Plaintiff is slated to continue receiving long-term disability benefits through November 2023 and will have received over $600,000 from Penn and CHOP by that time. Here, plaintiff claims emotional damages only. These damages, if any, are nominal. Simply put, plaintiff has created a fiction with this lawsuit, like the books he spends time writing instead of caring for sick and dying children. By order of this Court dated July 8, 2020, plaintiff’s claims for punitive and liquidated damages were dismissed,” CHOP’s memorandum stated.
The plaintiff is represented by Laura Carlin Mattiacci, Colin Patrick Saltry, Holly W. Smith and Lane Schiff of Console Mattiacci Law, in Philadelphia.
The defendants are represented by Joe H. Tucker Jr. and Leslie Miller Greenspan of 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