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Edo Ginsburg, M.D., and Brian P. Yuskevich, M.D. v. Aria Health Physician

August 31, 2012

EDO GINSBURG, M.D., AND BRIAN P. YUSKEVICH, M.D.
v.
ARIA HEALTH PHYSICIAN SERVICES, ARIA HEALTH SYSTEM, AND RANDY K. METCALF, M.D.



The opinion of the court was delivered by: Norma L. Shapiro, J.

MEMORANDUM

Before the court is the motion to dismiss the complaint of plaintiffs Edo Ginsburg, M.D. and Brian P. Yuskevich, M.D. Plaintiffs worked for defendant Aria Health Physician Services ("Aria HPS"), a subsidiary of defendant Aria Health System ("Aria Health"), as staff anesthesiologists at Torresdale Hospital in Northeast Philadelphia. Both Dr. Ginsburg and Dr. Yuskevich worked alongside defendant Randy K. Metcalf, M.D. in the hospital's cardiothoracic operating room.

Dr. Ginsburg was born in Israel, served in the Israeli Navy, and is a disabled veteran. Dr. Yuskevich is Russian and Lithuanian. Both doctors are Jewish. Plaintiffs bring claims for hostile work environment and retaliation based on plaintiffs' national origin and religion, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII") and the Pennsylvania Human Relations Act ("PHRA"), and Dr. Ginsburg claims violation of the Americans with Disabilities Act ("ADA") and the PHRA. Plaintiffs also bring state-law claims for breach of contract, intentional infliction of emotional distress, assault, and violation of the Pennsylvania Whistleblower Law ("PWL"). Defendants move to dismiss all 12 counts of the complaint. The motion to dismiss will be granted as to the breach of contract and PWL claims, and denied for all other claims.

I. Alleged facts

The complaint alleges facts concerning the actions of defendant Dr. Metcalf at Torresdale Hospital and the alleged failure of defendants Aria Health and Aria HPS to take corrective action. Dr. Metcalf referred to Dr. Ginsburg as speaking "the Jews language" on "multiple occasions." Compl.¶ 54. Dr. Metcalf "made derogatory and vulgar comments about Dr. Yuskevich's Russian/Lithuanian heritage and Dr. Yuskevich's sex life with his wife." Id. ¶ 55. Dr. Ginsburg was severely injured while in the Israeli Navy and cannot walk normally; Dr. Metcalf mocked the way Dr. Ginsburg walks. Id. ¶ 57.

Dr. Metcalf made "threats of physical violence against Plaintiffs." Compl. ¶¶ 3, 61. "During a June 2009 incident, Metcalf brandished his fist inches from Dr. Ginsburg's face, verbally assaulting him, stating, 'fuck you motherfucker, let's go finish this business outside now!'" Id. ¶ 60. Dr. Metcalf "verbally attacked Dr. Yuskevich and waived a bloody suction catheter inches from Dr. Yuskevich's face." Id. ¶ 62. During a cardiac procedure, Dr. Yuskevich noticed air in the line of a heart-lung machine and "called out that there was air in the line." Dr. Metcalf said, "I don't fucking care, start the motherfucking pump, she's going to die anyway!" Compl. Ex. O ¶ 5. Plaintiffs claim Dr. Metcalf has caused them to suffer "severe emotional distress and bodily injury including but not limited to PTSD, loss of sleep, anxiety, and heart palpitations." Id. ¶ 203.

Dr. Ginsburg "told Aria administration that Metcalf had referred to him as speaking the 'Jews Language' and that Metcalf had repeatedly harassed him about his disability." Id. ¶ 82. Despite complaints from Dr. Ginsburg, Aria administration "did nothing to discipline Metcalf or otherwise enforce its policies." Id. ¶ 83.

Dr. Ginsburg and Dr. Yuskevich requested a meeting with the Chief Operating Officer of Aria Health in February 2011. The Chief Operating Officer canceled last-minute and refused to reschedule. Id. ¶ 86.

Dr. Ginsburg resigned from Aria in July 2011. Id. ¶ 88. Aria HPS and Aria Health "refus[ed] to provide [Dr. Ginsburg] with an employment reference for purposes of Dr. Ginsburg's search for subsequent employment." Id. ¶ 96.

On August 24, 2011, Dr. Ginsburg and Dr. Yuskevich filed formal charges of employment discrimination with the EEOC and cross-filed the complaint with the Pennsylvania Human Resources Commission ("PHRC"). Id. ¶ 94. After Dr. Yuskevich filed the EEOC/PHRC complaint, Aria "refused to renew the term of his employment agreement, thereby terminating his employment" on November 4, 2011. Id. ¶ 95.

Plaintiffs bring 12 counts, all of which defendants move to dismiss: " Count I: Plaintiffs v. Aria Health and Aria HPS - Title VII (hostile work environment)

" Count II: Plaintiffs v. Aria Health and Aria HPS - Title VII (retaliation for reporting hostile work environment)

" Count III: Dr. Ginsburg v. Aria Health and Aria HPS - ADA (hostile work environment)

" Count IV: Dr. Ginsburg v. Aria Health and Aria HPS - ADA

(retaliation)

" Count V: Plaintiffs v. Aria Health and Aria HPS - PHRA (hostile work environment based on national origin)

" Count VI: Plaintiffs v. Aria Health, Aria HPS, and Dr. Metcalf - PHRA

(retaliation for reporting hostile work environment based on national origin)

" Count VII: Dr. Ginsburg v. Aria Health and Aria HPS - PHRA (hostile work environment based on disability)

" Count VIII: Dr. Ginsburg v. Aria Health, Aria HPS, and Dr. Metcalf -

PHRA (retaliation for reporting disability discrimination) " Count IX: Plaintiffs v. Aria Health and Aria HPS - Breach of contract " Count X: Plaintiffs v. Aria Health and Aria HPS - Pennsylvania

Whistleblower Law, 43 P.S. § 1423(a)

" Count XI: Plaintiffs v. Dr. Metcalf - Intentional infliction of emotional distress " Count XII: Dr. Yuskevich v. Dr. Metcalf - Assault

II. Legal standard

District courts reviewing motions to dismiss under Rule 12(b)(6) must "conduct a two-part analysis":

First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a "plausible claim for relief."

Fowler v. UPMC Shadyside, 578 F.3d 203, 210--11 (3d Cir. 2009). If plaintiff fails to plead facts allowing the court to "infer more than the mere possibility of misconduct," plaintiff has not shown it is entitled to relief. Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1950, 173 L. Ed. 2d 868 (2009).

III. Discussion

A. Aria Health is an ...


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