Friday, July 1, 2011

Retaliatory Discharge for Prior Complaints of Sexual Discrimination

A couple of years ago an amazing verdict came down in the matter of Gerzten v. University of Pittsburgh Cancer Institute.  The plaintiff, Gerzten, brought suit against the defendant, University of Pittsburgh Cancer Institute, under Title VII of The Civil Rights Act of 1964 and the Pennsylvania Human Relations Act, alleging sexual discrimination, retaliatory employment actions and retaliatory discharge.  Gerzten was a 44-year-old female radiation oncologist employed by the defendant.  In 2007 the defendant informed her that her employment contract would not be renewed. The plaintiff alleged that the defendant refused to promote her and not to renew her contract based on her gender and/or complaints she had previously made regarding alleged sexual discrimination in the workplace.

Gerzten was hired by the defendant in 1992.  In April 2006, the plaintiff complained to the vice chairman of the department that women were given less opportunity for advancement within her department. The plaintiff was advised to go to the defendant's Human Resources Department which arranged a meeting between the plaintiff, the vice chairman of the Radiation Oncology Department and a representative from the Human Resources Department. The plaintiff testified that she voiced her complaints in the meeting, including the belief that qualified women were not being placed in positions of higher authority and salary within the department.
The plaintiff alleged that the defendant failed to fully and adequately investigate her complaints and did not interview other females in the department who had similar complaints. During the remainder of 2006, the plaintiff was passed over for two promotions to positions of medical director to which she had applied; one at University of Pittsburgh Medical Center Saint Margaret and the other at the defendant's hospital in Natrona Heights, Pennsylvania.

In January of 2007, the plaintiff was told that her one year employment contract at a salary of $ 275,000, which was expiring at the end of May 2007, would not be renewed by the defendant. The plaintiff alleged that the adverse employment actions and her ultimate termination were based on the complaints that she had lodged regarding sexual discrimination. The plaintiff contended that an 18 month non-compete clause in her contract with the defendant prevented her from obtaining another job for a period of time.
She currently works as a radiation oncologist for the Department of Veterans Affairs at a salary lower than she earned with the defendant. The plaintiff asserted claims for past loss of earnings, as well as a future diminished earning capacity as a result of the defendant's actions. The plaintiff also contended that her termination caused emotional injuries, including depression, for which she required treatment for approximately two years.

The defendant argued that it fully investigated the plaintiff's complaints of sexual discrimination and found them without merit. The defense pointed out that one of the medical director positions for which the plaintiff had applied had been given to another woman. The defense argued that the decision not to renew the plaintiff's employment contract stemmed from indications that she was not happy with her job and the changing needs of the oncology department.

The jury found for the defendant on the gender discrimination count, but found for the plaintiff on her claims of retaliation in denial of promotions and failure to renew her contract. The plaintiff was awarded $ 3,107,292 in damages. Post-trial motions are pending.

One of the most interesting aspects of this Title VII action is that the jury rendered a substantial punitive damage award, despite a finding that there was no sexual discrimination by the defendant. The $ 500,000 punitive damage award was based solely on the eight-member federal jury's finding that the defendant acted in retaliation for the plaintiff's complaints. The plaintiff stressed that the same administrator, whom the plaintiff had accused of being discriminatory, was then permitted to make decisions regarding the plaintiff's rejection for two promotions and in ultimately not renewing her employment contract.
The defendant maintained that positions were given to the best suited candidate, regardless of gender. The fact that one of the medical director positions sought by the plaintiff was given to another woman seemed to lend credibility to the defense position in that regard. However, evidence also showed that the plaintiff had worked for the defendant, with no apparent problems, for some 15 years prior to the decision not to renew her contract. This, and the timing of her termination, may have helped to negate the defense assertions that the plaintiff's termination was not retaliatory.

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