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May 19, 2013

UPMC to judge: Throw out bias claim

FARRELL — UPMC Horizon has asked a federal judge to throw out a former employee’s claim that he was discriminated against because of his gender.

The ex-employee, Terry Gale, responded that the case should proceed toward trial because UPMC “twisted and distorted” its own policy to justify his firing so much that there must be another reason behind it.

Gale, of 260 Shenango Blvd., Farrell, said he was hired in April 1991 as a radiologic technologist at UPMC’s Farrell hospital. He said he was fired March 30, 2011, for using profane or inappropriate language, particularly when patients or visitors were nearby. Gale denied the charge, saying it was fabricated by a female employee.

The retaliation charges stem from a March 10, 2011, complaint Gale said he filed alleging female employees were subjecting him to a hostile work environment by telling him his line of work might not be for him, asking him if he’s been a “good little boy,” referring to his penis and making derogatory comments about being a man in a female-dominated department. These comments caused anxiety and depression, he said.

UPMC outlined these events that led to Gale’s firing:

“After completing a portable x-ray on a patient in (the critical care unit), (Gale) returned to the radiology department and discovered that the same doctor had put in a second order for a portable x-ray in the same unit. The doctor had not informed him of the second exam while he was on the unit. When he returned to the unit to perform the exam, he asked the nurses at the station, ‘Is someone trying to be inconsiderate?’ while pointing at the doctor.”

According to Gale, no patients heard the comment.

Gale argued the doctor was “inconsiderate” for making him run back and forth between departments, but he did not question the need for the exam.

“It is also obvious from the language used in the policy cited as the reason for his termination that it was aimed at words or conduct with a, shall we say, lascivious nature,” Gale said. “Saying that someone was inconsiderate is hardly profane or indecent by any standard.”

UPMC said there was a patient in the room, 15 to 20 feet away, and he also said, within earshot of the doctor, that “someone was being purposely disrespectful. She saw me in here earlier.”

In her complaint to UPMC administration, Dr. Tracy McCoy also wrote about an incident the previous month in which she ordered abdominal films for patients with small bowel obstructions.

Gale called McCoy and complained that she had ordered so many films at the same time, so early in the day, and he had to start two hours earlier to get them all done.

McCoy called Gale “disrespectful,” and said it is “not his decision on timing of films.”

The only apparent reference to his gender that Gale made in his complaint was a 2009 comment by a female co-worker that “he was part of the bigger problem in that he was born with a penis,” UPMC said.

Gale had been disciplined previously and had been warned in July 2009 about “further occurrences,” UPMC said. In his deposition, Gale said he knew her comment “was not directed at me, personally, but rather at other male persons either at work or outside of work,” UPMC said.

In his lawsuit, Gale failed to explain how UPMC’s actions discriminated against him, UPMC said.

The comments Gale complained of apparently didn’t bother him at the time they were made, UPMC said. Gale never filed a harassment complaint under UPMC’s policy, looked for another job, asked for a different shift or a different position, and he wrote in performance reviews that he was satisfied with the work he was doing, UPMC said.

Gale responded that he grew up near UPMC’s Farrell hospital and plays in a band there.

“Given that there is likely little demand for radiologists in Farrell outside (UPMC’s) facility, leaving his job would have meant uprooting his life and restarting his established medical career elsewhere,” he said.

The performance review was written “based on suggestions made to him by” his supervisor, “making them a weak reflection, as best, of his own feelings,” Gale said.

Gale worked the night shift, giving him minimal contact with his supervisors.

“It would certainly be desirable to have minimal contact with the individuals who were harassing him,” Gale said.

U.S. District Court Judge Terrence F. McVerry, Pittsburgh, will decide whether to grant judgment to UPMC based on the available information, or let the case move toward trial.

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