Delta County Memorial Hospital

Delta County Memorial Hospital

Delta County Memorial Hospital jettisoned three of four female doctors working at its family medicine clinic in violation of sexual- and pregnancy- discrimination laws, the three physicians allege in a federal lawsuit.

The hospital in response said its actions were lawful and not the result of sex discrimination or retaliation; it called the suit “frivolous.”

Doctors Gina Martin, Amanda Swanson and Susan Bright formerly worked at the DCMH Family Medicine Clinic in obstetrics. At the time they were employed, the clinic also employed one other female doctor and six male doctors.

Martin, Swanson and Bright allege they were paid less than their male counterparts; were obligated to be on call far more often than a less experienced male colleague; were intimidated when they complained about new employment contracts that continued to treat them less equitably than male doctors at the clinic, and ultimately lost their jobs over those complaints.

“Because Drs. Martin, Swanson and Bright were unwilling to accept discriminatory provisions in their employment contracts compared to the contracts of their male colleagues, DCMH effectively ended the employment of 75 percent of the female physicians in its family medicine unit,” Grand Junction attorney Nicholas Mayle wrote in the May 30 complaint.

Further, Bright alleges the hospital retaliated against her for taking time off under the Family Medical Leave Act, as needed, to deal with the effects of a difficult pregnancy in 2017.

The doctors are seeking backpay, damages and punitive damages for sex discrimination in violation of the Fair Labor Standards and Equal Pay acts; for retaliation against Martin; for sex and pregnancy discrimination under Title VII of the 1964 Civil Rights Act and for violations of the Colorado Anti-Discrimination Act.

“As a result of DCMH’s unlawful employment practices, Drs. Martin, Swanson and Bright have sustained economic and non-economic damages including, but not limited, to severe emotional stress, mental pain and suffering, inconvenience, humiliation, loss of income and benefits, back pay and front pay,” Mayle wrote.

Mayle works for Killian Davis, the firm that successfully sued Montrose County in 2015 for terminating a pregnant worker; Mayle, who also worked that case, secured a judgment in excess of $700,000.

The DCMH in a June 21 answer to the doctors’ suit argued the plaintiffs didn’t make a claim for which the courts can grant relief, and further said the allegations are without substantial justification, as well as barred by various legal doctrines and the doctors’ failure to mitigate their own damages.

The U.S. District Court does not have jurisdiction over claims the doctors failed to raise in a timely manner to investigatory bodies, the hospital through its attorney Michael Santo also said.

Bechtel, Santo & Severn was the firm that drafted the contested contracts, the doctors’ complaint says. Despite that, the hospital retained an attorney from the same practice to investigate when Swanson alleged sexual discrimination to hospital officials in January of last year, the suit says, alleging conflict of interest.

Contract provisions allegedly amount to sexism

The doctors’ complaint says that in 2017, the hospital hired a male physician for the clinic, who had no experience beyond his residency, for more than Swanson or Martin were paid, and the same amount Bright was paid, despite her having more experience.

Their male colleague was required to take call no more than once every seven days and his contract required a 90-day notice of termination and far less call requirement, per the suit.

In 2017, Martin requested “rolling” leave under the Family Medical Leave Act — she would continue working, but would be able to take time off when her hyperemesis gravidarum (a severe pregnancy complication) left her too ill.

The hospital “was not pleased” about this and reprimanded Martin for her absences, the suit says. She went on maternity leave after her child was born that August.

The defendants said through the June 21 filing this year that no adverse action was taken because Martin had used FMLA provisions and the hospital treated her the same as other employees in similar situations. Instead, the hospital said, she was subject to action for “reasons unrelated.”

Per the plaintiffs, in October and November of 2017, the hospital provided new employment contracts to them with terms less favorable than what was offered to the male doctors, even though the women had more experience.

Additionally, the hospital allegedly offered a contract to a new male doctor which did not require him to take any call.

When Martin, Swanson and Bright raised concerns about the disparities, the hospital allegedly retaliated by eventually terminating Swanson and Bright, via Nov. 27 letters that gave them an “official 120-day contract termination notice.”

Swanson and Bright say they then filed a grievance with the DCMH board on Dec. 4, 2017.

At that meeting, hospital CEO Jason Cleckler allegedly “falsely told the board that he sent the termination letters because Drs. Swanson and Bright had not yet signed and returned the ‘standard’ contracts” — but, said the suit, those contracts were not “standard” because they were materially different than ones provided to male doctors.

On Dec. 6, 2017, the hospital sent Swanson and Bright letters saying they would need to return signed contracts before March 24, 2018, but did not appear to invite negotiations, Mayle wrote in the complaint.

On Dec. 10, 2017, Swanson and Bright sent a detailed letter about their concerns; they received no response and the hospital also advertised for a new physician.

“As evinced by this posting, DCMH’s intention was to terminate the employment of Drs. Martin, Swanson and Bright,” the complaint says.

Bright later met with hospital board president David Lane to discuss her concerns; she said she didn’t want to be fired, and requested the opportunity to resign if the board was intending to terminate her. Lane reportedly said that request would require board approval.

Martin alleges that when she met with hospital and board officials Dec. 14, 2017, she was denied her request to have her attorney present and was offered a “take it or leave it” contract.

Even though Martin also said she would like the option of resigning if her job was on the line and to continue working at least until June of 2018, just a few days after the meeting, she was informed her employment had been resigned immediately. A member of human resources arrived that afternoon, told Martin to pack up, and then walked her out of the clinic, the suit states.

“DCMH has never treated a male physician the same way — never ended a male physician’s employment and then, that same day, directed him to pack his things and escorted him from the premises,” Mayle wrote.

The way Martin was treated served to intimidate Swanson and made her fearful of what would happen if she tried to have the discriminatory terms removed from her contract, the suit further says, and a “dismayed” Bright also saw it as an intimidation tactic.

The hospital “stonewalled” for about a month before firing Bright after she asked for greater call protection, the complaint further alleges.

Ultimately, “with a heavy heart,” Bright ended negotiations with the hospital. In a letter the complaint cites, Bright said her objections to the new contract resulted in a correspondence from the hospital terminating her current contract and spelling out the loss of benefits.

“This was clearly aimed at intimidating me. … My colleague, Dr. Martin, was summarily walked out of the clinic after she tried to negotiate this new contract,” Bright’s letter stated. She said her overall treatment “has been shameful.”

The hospital further “stonewalled” and terminated Swanson, the complaint goes on to say.

Swanson declined to sign a new contract before her lawyer could review it. She then was told the hospital might consider some call protection for her but, “as a result of her request, her peers would be affected, the schedule would become unsustainable and the obstetrics department would have to be shut down,” the lawsuit says.

On Jan. 25, 2018, Swanson told Cleckler, human resources and Lane that she felt she was being subjected to sex discrimination and requested an investigation.

The hospital went on to indefinitely postpone contract discussions without removing the discriminatory terms, she further alleged.

Hospital rejects allegations

The hospital in its June response denied the substance of the doctors’ complaints and said it “specifically denies” the practitioners had filed a grievance over the termination letters. It also denied terminating Martin and escorting her off premises.

“Delta County Memorial Hospital undertook actions in good faith that were based on legitimate, lawful, justified, nondiscriminatory and non-retaliatory reasons and were based on reasonable factors other than the plaintiffs’ sex or Dr. Martin’s use of FLMA leave. … (DCMH) would have reached the same decision with respect to the plaintiffs regardless of their gender,” Santo wrote.

The hospital did not discriminate or act with malice, willful disregard or willful indifference to federally protected rights, therefore, the plaintiffs have no claim for punitive or liquidated damages, Santo also said.

“At all times, (DCMH’s) actions were lawful, justified and made in good faith,” the answer says.

The hospital further denied vicarious liability for what its agents may have done and said any allegedly unlawful acts that may have occurred “were outside the scope or course of the alleged actor’s employment and were not authorized, ratified or sanctioned by Delta County Memorial Hospital.”

The hospital further made a good faith effort to implement and enforce its policies. The entity was deprived of the opportunity to investigate and take action with respect to any alleged conduct of which it was not notified, Santo wrote.

In 2018, Swanson, Bright and Martin separately filed charges of discrimination with the Colorado Civil Rights Division and U.S. Equal Employment Opportunity Commission. The U.S. Department of Justice on May 17 of this year issued them notices of “right to sue” over those charges.

But Santo said “no reasonable person could interpret the conduct alleged as severe or pervasive and/or based on a protected classification, or otherwise unlawful.”

The work conditions were not so intolerable that they would have driven away a reasonable person, he also said.

“Even if (hospital) paid the plaintiffs less than men doing the same work, which the Delta County Memorial Hospital denies, such payment decisions were based on factors other than sex,” the answer states.

A pre-trial conference has been set for next August.

Katharhynn Heidelberg is the Montrose Daily Press assistant editor and senior writer.

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