DCMH

Delta County Memorial Hospital (DCMH).

Sexism was not a factor in the contracts, pay and eventual dismissal of three female physicians who sued the Delta County Memorial Hospital District, the district said, in a motion for summary judgment.

Doctors Gina Martin (now Miller), Amanda Swanson and Susan Bright, who filed federal suit in 2019, pushed back, through their attorney arguing they have established sufficient evidence for the case to proceed. They asked in a May 14 motion for U.S. District Court to dismiss the hospital’s March motion.

The case alleges violations of the Equal Pay Act; retaliation under the Family Medical Leave Act and sex and pregnancy discrimination under the Colorado Anti-Discrimination Act.

The doctors say they were illegally terminated from DCMH Family Medicine after the hospital acquired the practice; retaliated against for raising questions with new employment contracts that were not equitable to those extended to male doctors in obstetrics; were required to take more call although a male doctor was allowed to bow out of the rotation, and that they were paid less than male doctors with less experience in their field.

Miller further alleges she was punished for using Family Medical Leave Act while dealing with a difficult pregnancy.

The hospital denied the complaint and in its March motion, pointed to reasons other than sex and pregnancy, including scope of practice as a determinant of salary — a pretext, the plaintiffs contend in filings.

The hospital’s motion lays out some background:

In 2014, DCMH agreed to acquire Delta Family Physicians and under that, hired Bright, Swanson, another female doctor and two male doctors. Because Miller was being hired by the practice at the time of acquisition, the hospital decided to employ her, too. One of the male doctors was paid more than Bright, Swanson and Miller because he performed more services, according to the hospital’s pay chart.

In an argument Miller strongly disputes, the DCMH claims she was reprimanded for “poor conduct,” including bad language and allegedly shoving a coloring book with a crude message into the face of a newly hired doctor.

Following a complaint by the clinical supervisor over the coloring book, Miller was notified she was in default of her employment agreement and she responded by “reducing her vocabulary,” the hospital motion states.

The filing also notes a Nov. 16, 2015 malpractice complaint filed against Miller and the hospital and says she was notified of “multiple issues” including “defiant behavior.”

The coloring book report is both “insulting and untrue,” the May 14 response says. Miller was also “shocked” to be reprimanded over the amount of call she took, since she was still on the rotation despite being on leave under the Family Medical Leave Act over pregnancy complications.

Per the filing, without following proper procedures, then-CEO Jason Cleckler allegedly reprimanded Miller for burdening others by taking less call, but then granted a male doctor’s request to be taken off the call rotation entirely.

The reprimand “accused her of a pattern misbehavior and yet, prior to this formal reprimand, neither the hospital nor anyone else had ever told her of any concerns about her workplace behavior,” attorney Benjamin Meade wrote.

Miller informed the hospital in a letter that the reprimand contained false information and that it penalized her for actions protected under the Family Medical Leave Act.

Miller also refuted allegations that she used inappropriate language in front of patients and although she sometimes did so with coworkers, Swanson and Bright didn’t think this rose to the level of inappropriate behavior. Miller stopped swearing at work and no other allegations were made, plus HR “conceded” that the reprimand wasn’t a factor in Miller continuing to work for the hospital district, the May response states.

The parties’ motions do not agree about what happened with respect to contract negotiations for the three physicians.

The hospital filing states  it was trying to standardize physician contracts, but Miller, Swanson and Bright rejected them.

Because Miller said she was not willing to sign the new contract, she was notified the hospital board accepted her resignation. Bright resigned in early 2018 because she could not accept the contract and Swanson ceased negotiations, DCMH says.

The doctors met with management in December 2017 and were told the hospital was attempting to develop “uniform” contracts, according to Meade. Two days later, they were told to sign the documents before March 24, 2018. Their concerns were rebuffed, their filing says.

The women were rattled to receive letters advising that their contract notice period had been activated and they would no longer be employed as of March 27, 2018.

A male doctor who had been given a new contract, but did not sign it, did not receive a termination letter — only the three female doctors did, Meade, the attorney, wrote.

But Miller did not, in fact, verbally resign during a meeting with management, the filing says. She simply said she was in a tough spot because she didn’t want to sign the contract as written and it felt like she would either be fired or forced to resign.

A few days later, Miller received an email stating that the contract had been withdrawn and her resignation was accepted; she was escorted from the building.

Bright tried for months to revise her contract provisions to provide her with greater on-call protection and a longer notice of termination — provisions that had automatically been extended to two male colleagues, her attorney said.

Swanson made similar negotiation attempts and also asked the board to review contracts for inequity. The filing says a man on the hospital board confirmed the contracts differed in the ways she said they did.

Swanson declined to sign the contract before her lawyer could review it, even after the board member reportedly asked her to sign it first and have it reviewed later.

Swanson in January 2018 made a formal report to the hospital of gender discrimination, based on the contract and wrongful termination.

The plaintiffs’ filing says the investigator whose contact information the hospital provided worked for the same firm that had drawn up the contracts and, citing conflict of interest, Swanson declined to speak with him.

The hospital district contends the plaintiffs cannot meet their burden of proof under the Equal Pay Act, which prohibits employers from discriminating on basis of sex, and bars paying employees less than what members of the opposite sex receive for equal work. However, seniority, merit, and factors other than sex can result in people being paid differently, without violating the act, the hospital said.

The women did not prove they were performing substantially similar work for less pay — and the hospital also hired female doctors at greater pay than their starting salaries — or that they were fired because of the contracts they were provided, defendants’ attorney Christina Harney contended.

Miller wasn’t fired for taking leave; she was on “intermittent” leave prior to giving birth and then was given a full 12 weeks off following the birth, the motion says.

The plaintiffs cannot support either their federal or state law claims, Harney argued, asking for summary judgment.

The plaintiffs’ response reiterates DCMH paid them less and offered them worse contracts than their male peers. The contracts for the women offered only “equitable” call protection, which shook out to a ratio of being on call one of every three days, when the men’s call load was limited to one in four days, or even one in seven — “not so-called ‘equitable’ call protection,” Meade wrote.

Prior to the new contracts, Swanson and Bright had call rotation limited to one in four days, per the filing.

Cleckler chose to fire most of the women working at the nine-physician family practice, but none of the four men, the plaintiffs allege in their response.

The women, who were among the top five highest-grossing family practice doctors, in fact established they performed work substantially equal to their male counterparts, under the same basic conditions, and that the men were paid more, Meade argued. Accordingly, their Equal Pay Act claims should stand, he said.

The remaining claims are also valid, he wrote. The hospital’s supposed non-discriminatory reasons for terminating Miller, Swanson and Bright were a mere pretext, Meade argued.

The termination of all three women was unlawful under federal and state law, he wrote, asking the court to deny the hospital’s move to toss the suit.

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