Denver Health has worked hard to position itself at the forefront of LGBT-friendly health care, even receiving recognition for four consecutive years from the Human Rights Campaign for its culture of inclusion for both patients and staff.
But the hospital seems to have done an about-face on its LGBT protections in statements made during a drawn-out discrimination lawsuit brought by Brent Houchin, an openly gay employee who says he was fired in September 2016 after being targeted for his sexual orientation.
Merrily Archer, the attorney representing Houchin, says that her client was a much-beloved employee-relations manager. He headed up the human-resources department for the hospital and had consistently received stellar performance reviews. But when a longtime chief human-resources officer abruptly retired in 2016, an interim executive was brought in.
Houchin alleges in his lawsuit that this interim executive, after learning about his sexual orientation in a get-acquainted meeting, began making disparaging comments about him to other employees, stopped making eye contact with him or greeting him, and cut him out of important meetings pertinent to his job. Houchin was later fired while he was investigating potential drug theft by an employee at the hospital's methadone clinic.
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A supervisor in the clinic allegedly came into the hospital as a patient and, during her care, was given a toxicology screening. It came up positive for methadone. That employee did not have a prescription for the narcotic. An employee made the discovery and ran it up the chain of command, and it came across Houchin's desk. He requested that the employee be put on investigative leave as he looked into the possibility of drug theft from the clinic, according to Houchin's lawsuit. Since the employee was off-duty and a patient at the time, the hospital is arguing that using the employee's private patient record was a federal medical-privacy violation.
Houchin's attorney is arguing that, per federal drug laws and the hospital's own policy, her client had an obligation to investigate the potential drug theft, and the medical-records disclosure was legal in that context.
“It was not a HIPAA violation. In fact, [the Drug Enforcement Administration] regulations require them as a dispenser of narcotics to investigate all reasonable suspensions of diversion, and Brent acted in full accordance of the policy," Archer says.
In the lawsuit, Houchin claims that he was being set up and that the alleged policy violation was a pretext to fire him for being gay. He filed an initial complaint with the Colorado Civil Rights Commission in December 2016, and after waiting six months without any determination made by the agency, Houchin launched his civil suit against both Denver Health and Tim Hansen, the interim human-resources executive who fired him.
Houchin listed eight complaints in his Denver District Court lawsuit, which is still ongoing. Two of those complaints were against Hansen, and six were against the hospital. The court dismissed three employment-related complaints against the hospital but refused to dismiss the three complaints of discrimination. So Denver Health is appealing to the Colorado Court of Appeals.
Denver Health made its appeal on March 20, arguing in its opening brief that the hospital is immune from discrimination lawsuits. Its rationale? The legislature's amendment to the Colorado Anti-Discrimination Act, the state’s anti-discrimination law, which took effect in 2015, has turned claims of discrimination into torts since victims have access to more compensation. (A tort, at its core, is a personal-injury lawsuit by which victims can seek compensation for a plethora of damages.) The hospital is arguing that because it is a governmental entity created by state statute, it is immune from claims of personal injury and other torts, with few exceptions.
Denver Health was part of the City of Denver until 1997, when it became a public entity through state statute. The state itself has expressly waived its immunity to claims of discrimination through the amended statute, but the hospital is arguing that because it is a political subdivision of the state and not a state agency, its own argument of governmental immunity can stick. The district court took two jabs at Denver Health, ruling that it is indeed a state agency and that discrimination cases are not torts subject to governmental immunity. Denver Health is appealing both of those decisions.
The recently revamped Colorado Anti-Discrimination Act allows victims of discrimination the ability to recoup future lost earnings, compensatory damages for emotional pain and suffering, and attorney fees through civil litigation, as well as the right to a jury trial.
"What Denver Health is arguing now, much to our horror, is that because of those amendments, Denver Health employees no longer have a remedy for unlawful discrimination under CADA," Archer says. "Protection against discrimination, harassment and retaliation is a fundamental employment right."
Denver Health is adamant that it fired Houchin for two patient-privacy violations within six months, but the hospital is pushing the courts to agree with its legal argument: that even if Houchin was fired because he was gay, the hospital can't be liable for monetary damages via a civil suit. Following the hospital's logic, all governmental entities — cities, counties, school districts, special districts, etc. — could be immune from enhanced monetary damages, except for the state, which waived its own immunity.
The hospital didn't specifically say in court that it is completely immune from anti-discrimination law, only that it is immune from the part of the law that would allow individual claims to be made in civil court and where large monetary claims could be won. It speculated that discrimination claims may, perhaps, be enforceable only by the Colorado Civil Rights Commission, which is far more limited in the damages it can award victims.
Houchin and his lawyer are expected to respond to the hospital's appeal in the coming weeks.
Denver Health declined an interview but sent this statement to Westword in response to the lawsuit now being considered on appeal:
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"Denver Health values diversity in the community and in its workforce. Mr. Houchin was terminated for actions that Denver Health considered to be in violation of its policies protecting a patient’s privacy rights, despite having been previously advised not to take such actions. We will defend ourselves against claims that we believe are unfounded, both factually and legally, and protect the excellent reputation we have earned over many years with the LGBT community."
While Denver Health is now fighting the three discrimination complaints on appeal, Houchin's attorney is trying to slide one last complaint into the ongoing district court case by amending the initial lawsuit, which requires permission by the judge. Archer is trying to include a complaint of fraud against Denver Health to point out a supposed contradiction: The hospital claims that it protects LGBT employees from unlawful discrimination but is arguing in favor of legal immunity from discrimination claims.
"The horror to us is they're continuing to misrepresent themselves to their LGBT employees, and beneath this all is an ongoing diversion problem that needs to be addressed there, because when they fired their employee relations manager summarily for attempting to investigate it in accordance with their policy, there's something wrong there,” Archer says.