Josephson v. Ganzel
| Decision Date | 08 March 2023 |
| Docket Number | Civil Action 3:19-CV-230-RGJ |
| Parties | ALLAN M. JOSEPHSON Plaintiff v. TONI GANZEL, et al. Defendants |
| Court | U.S. District Court — Western District of Kentucky |
Defendants Charles R. Woods (“Woods”), Bryan D. Carter (“Carter”), William D. Lohr (“Lohr”) Toni M. Ganzel (“Ganzel”), Jennifer F. Le (“Le”), and Kimberly A. Boland (“Boland” together with Woods, Carter, Lohr Ganzel, and Le, “Defendants”), each moved individually for summary judgment. [DE 58-1 (Woods); DE 59-1 (Carter); DE 60-1 (Lohr); DE 61-1 (Ganzel); DE 62-1 (Le); DE 63-1 (Boland)]. Plaintiff Allan M. Josephson (“Josephson”) responded [DE 72] and Defendants replied [DE 74 (Woods); DE 75 (Carter); DE 77 (Lohr); DE 78 (Ganzel); DE 76 (Le); DE 79 (Boland)]. Josephson also moved for summary judgment against all Defendants. [DE 64-1]. Defendants jointly responded to Josephson's motion [DE 71] and Josephson replied [DE 80]. Defendants moved to exclude testimony from Plaintiffs' expert. [DE 56-1]. Plaintiffs responded [DE 69] and Defendants replied [DE 73]. Briefing is complete, and the matters are ripe. For the reasons below, the Court DENIES Wood's Motion for Summary Judgment [DE 58-1] DENIES Carter's Motion for Summary Judgment [DE 59-1], DENIES Lohr's Motion for Summary Judgment [DE 60-1], DENIES Ganzel's Motion for Summary Judgment [DE 61-1], DENIES Le's Motion for Summary Judgment [DE 62-1], DENIES Boland's Motion for Summary Judgment [DE 63-1], DENIES Josephson's Motion for Summary Judgment [DE 64-1], and DENIES Defendants' Motion to Exclude Expert Testimony [DE 56-1].
In January 2003, Josephson, a board-certified psychiatrist, joined the faculty of the University of Louisville as a Professor of Psychiatry and the Chief of the Division of Child and Adolescent Psychiatry and Psychology (“Division”). [DE 64-1 at 1800]. The University of Louisville School of Medicine includes 23 separate departments. [DE 61-1 at 1319]. The departments are further divided into divisions. [Id. at 1320]. Josephson was a non-tenured faculty member in the Department of Pediatrics (“Department”) [DE 58-1 at 942], which included 22 separate divisions. [DE 61-1 at 1320].
During his time as Chief, Josephson added new faculty to the Division, enhanced its national profile, balanced its budget, expanded programing, and increased the number of patients treated. [64-1 at 1800-801]. Josephson maintained a clinical schedule and taught at the medical school. [Id. at 1801]. He also gave numerous presentations and authored or contributed to dozens of works. [Id.]. In light of these achievements, Josephson received awards from the American Psychiatric Association and the American Academy of Child & Adolescent Psychiatry. [Id.]. Josephson's annual performance evaluations improved from 350 and 370 in 2012 and 2013 to a perfect 400 through 2017. [Id. at 1802].
Around 2014, Josephson became interested in gender dysphoria. [64-1 at 1801]. From 2016 to 2017, Josephson served as an expert witness on in several cases regarding gender dysphoria in children. [Id.]. Josephson testified that “children are not equipped to make far-reaching life decisions, how trying to change one's sex poses medical and other consequences that one cannot fully appreciate until adulthood, and how most gender dysphoric children cease to experience it by late adolescence.” [Id. at 1801-802]. After inquiring, Woods told Josephson that testifying in these cases did not require prior approval. [Id. at 1802].
In October 2017, Josephson participated in a Heritage Foundation panel in Washington, D.C., entitled Gender Dysphoria in Children: Understanding the Science and the Medicine. [Id.]. He opined that [Id. at 1802-803].
Woods is a pediatrician focusing on infectious diseases who became a faculty member at the University of Louisville in 2006. [DE 58-1 at 941]. In 2016, Woods became Interim Chair of the Department of Pediatrics in the School of Medicine (“Department”) and Chair of the Department in October 2017. [Id.]. While Chair, Woods oversaw more than 20 divisions within the Department. [Id. at 941-42]. Josephson, like all other division chiefs, reported to Woods and served at the pleasure of the Chair of the Department. [Id. at 942]. Woods testified that the division chiefs served as the faces of their respective divisions. [Id.]. Woods left the University in June 2018. [Id. at 948].
Carter is a psychologist in the Division at the University of Louisville School of Medicine. [DE 59-1 at 1051]. Carter served as the section chief of psychology, meaning Carter reported to Josephson until December 4, 2017. [Id.].
The Endocrinology Division of the Department, overseen by Chief Kupper Wintergerst (“Wintergerst”), established a gender clinic to treat pediatric patients experiencing gender dysphoria. [Id. at 1052]. The endocrinology gender clinic enlisted Christine Brady (“Brady”), a psychologist who worked in the Division. [Id.]. As a member of the psychology faculty, Brady reported to Carter, the section chief. One day, Josephson shadowed Brady in the endocrinology gender clinic. [Id. at 1053]. Brady believed Josephson was attempting to insert himself into the gender clinic without permission from Wintergerst and questioned Josephson's judgment about clinical approaches to treating gender dysphoria in children. [Id.]. Brady reported these concerns to Carter, her section chief, but Carter did not take any action at the time.
In 2017, Lohr was a regular faculty member of the Division, the same period when Josephson was Division Chief. [DE 60-1 at 1254]. After Josephson resigned as Division Chief, Lohr, Le, and Carter were appointed to serve jointly in the position on an interim basis. [Id.]. During this time, Josephson reported to Lohr, Le, and Carter jointly in their capacities as Interim Co-Chiefs. [Id.].
Ganzel is a pediatric otolaryngologist surgeon who served as the Dean of the School of Medicine at the University of Louisville since May 2013. [DE 61-1 at 1319]. As Dean, Ganzel's primary duties are to oversee all aspects of the academic mission of the School of Medicine and achieve the School of Medicine's objectives, including those associated with education, research, clinical care, and community engagement. [Id.]. Ganzel oversees 23 separate departments, including five “basic science” departments and 18 “clinical science” departments. [Id. at 131920]. Ganzel also oversees the Office of Faculty Affairs, Diversity, Student Affairs, Curriculum, and Finance. [Id. at 1320]. Due to the scope of her responsibilities, Ganzel is heavily reliant on her leadership team, which includes the 23 department chairs. [Id.]. Ganzel testified that it is primarily the department chairs, not Ganzel, who make faculty decisions. [Id.]. Although Ganzel ultimately approves non-renewals, department chairs have the discretion to renew or not renew faculty appointments. [Id. at 1320-21].
Le is a psychiatrist in the Division who began working at the University of Louisville in 2008. [DE 62-1 at 1426]. From 2008 to 2017, Le reported to Josephson in his capacity as Division Chief. [Id.]. In December 2017, Le was appointed to serve as one of the three interim co-chiefs of the Division alongside Carter and Lohr. [Id. at 1424]. Approximately one year later, Le became the only permanent Division Chief, making him Josephson's direct supervisor. [Id.].
Boland, a pediatric hospitalist, has been a member of the University of Louisville's medical practice since 1997. [DE 63-1 at 1579]. In 2017, Boland was Executive Vice Chair for the Department. [Id.]. Boland's responsibilities, among other things, included assisting with some division chiefs' annual reviews (not including Josephson's) and assisting Woods as needed. [Id.]. Boland indicates that Josephson's poor performance eventually led her to recommend the nonrenewal of Josephson's appointment. [Id.].
Josephson alleges that the campaign against him started five days after news of his presentation at the Heritage Foundation reached Brian Buford (“Buford”), the director of the University of Louisville's LGBT Center. [DE 64-1 at 1803]. Buford eventually emailed Ganzel to complain about Josephson's remarks. [Id.]. Although Ganzel did not act on Buford's email, she expressed concern that students may have been hurt by Josephson's comments or actions. [DE 68-38, Ganzel Dep. Tr. at 3914].
Following Josephson's presentation at the Heritage Foundation individuals outside the Division began circulating videos of the presentation and discussing it with others at the University of Louisville. [DE 59-1 at 1053]. Josephson concedes that Carter received a handful of phone calls and inquiries from outside the Division, but Josephson claims that “[t]hey were no big deal.” [DE 72 at 4573]. These discussions dovetailed with concerns about Josephson's work as an expert witness in childhood gender dysphoria cases. [DE 58-1 at 943]. Brady informed Carter of the presentation before receiving additional inquiries from outside the Division, which were concerned about Josephson's approach to treatment of childhood gender dysphoria and how this reflected on the Division. [DE 59-1 at 1053]. Carter spoke with other faculty members in the Division who also expressed concern that Josephson's opinions...
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