Appeal court hears age discrimination case

Arguments in the University's appeal of an age discrimination suit filed by a former employee of the Hospital of the University of Pennsylvania were heard last week by the Third Circuit District Court of Appeals in Philadelphia. Janet Smithgall, a former HUP employee, filed suit in 1992 claiming that the University and HUP had discriminated against her because of her age and retaliated against her for a previous age discrimination complaint. A jury found the University and HUP not guilty of age discrimination or retaliation but did find the University in violation of a 1990 settlement reached in response to Smithgall's first charge of age discrimination. The settlement called for the University to re-hire Smithgall for 10 months, reimburse her for certain lost benefits and consider her for a future permanent position. A jury found in December 1993 that the University had failed to fulfill its contractual obligations to Smithgall and awarded her $70,000 in compensatory damages, according to Smithgall's attorney Glenn Clark. The damages stemmed from the University's failure to allow her to be considered for other positions, he said. Post-trial motions filed by Hope Cominsky, the University's attorney in the case, asking the judge to reverse the jury's decision, were denied last May. Cominsky said the University disagrees with the jury's decision. "Our argument to the Third Circuit was that we had complied with all three provisions," she said. "I think the judges are very concerned [with the jury's decision]." She added that judges of the Third Circuit do not always agree to hear arguments in this type of case. But Clark claims the University did not comply with the 1990 settlement, characterizing the University's contention that employing Smithgall for 10 months was sufficient as "the most ludicrous theory that you could imagine." The original complaint filed by Smithgall in 1992 alleged that the University had retaliated against her for filing an age discrimination complaint in 1990. According to the original complaint, Smithgall was discharged in 1989 from her position at HUP, supposedly due to a lack of funding. But the complaint alleged that three days later, a 23-year-old was hired to replace Smithgall. Ten months after reaching a settlement with the University, the now 65-year-old Smithgall filed suit, claiming that the University had failed to comply with the settlement. The suit accused the University of retaliation for "unilaterally and arbitrarily changing [Smithgall's] job description so as to exclude all professional duties?[reducing] her position to that of a clerk." The Third Circuit is expected to rule on the University's appeal within the next six weeks.

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