University of Louisville Filing in Josephson v. Ganzel Case

Case 3:19-cv-00230-RGJ-CHL Document 96 Filed 11/14/22 Page 1 of 3 PageID #: 5632
UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
ALLAN M. JOSEPHSON )
) Case No. 3:19-CV-230-RGJ-CHL
Plaintiff )
v. )
) (Electronically Filed)
TONI GANZEL, ET AL. )
)
Defendants )
DEFENDANTS’ RESPONSE TO JOSEPHSON’S

CHART OF RECORD EVIDENCE
Pursuant to the Court’s instructions (ECF No. 95), defendants Toni M. Ganzel, Charles R.
Woods, Kimberly A. Boland, Jennifer F. Le, William D. Lohr and Bryan Carter submit this response
to plaintiff Allan M. Josephson’s chart of record evidence (ECF No. 94-1) first presented during this
matter’s oral argument of November 3, 2022. The Defendants response to Josephson’s chart is
attached as Exhibit 1.
Josephson continues to argue that events he never experienced—or even knew about, until
discovery in this case—fostered a “hostile environment.” (ECF No. 94-1, Page ID # 5612–13.) He
relies on Jackson v. Quanex Corp., a single-plaintiff racial harassment case involving “numerous racist
incidents which [the plaintiff] witnessed, experienced, and learned about” during her employment. 191
F.3d 647, 650 (6th Cir. 1999). There, each incident was both “suffered” by “employees of the protected
class” and known to the plaintiff. Id. at 650–56, 662. The Sixth Circuit permitted that plaintiff to
“proceed on a theory that the employer had a general intent to harass all employees of the minority
group.” Id. at 660. Meanwhile, Josephson’s claims do not involve any protected class or trait; they are
about Josephson alone and what he experienced.
It is well-established that “[t]he applicable ‘test for a hostile work environment has both
objective and subjective components.’” Russell v. Univ. of Toledo, 537 F.3d 596, 608 (6th Cir. 2008)
(quoting Williams v. GMC, 187 F.3d 553, 566 (6th Cir. 1999)). On the subjective component, while “a
plaintiff does not need to be the target of, or a witness to harassment” for the incident to be legitimate
evidence, “he does need to know about it.” Berryman v. SuperValu Holdings, Inc., 669 F.3d 714, 718 (6th Cir.
2012) (discussing Jackson, 191 F.3d 647) (emphasis added). “[I]f the victim does not subjectively
perceive the environment to be abusive, the conduct has not actually altered the conditions of the
victim’s employment.” Id. at 717 (quoting Harris v. Forklift Sys., 510 U.S. 17, 21-22 (1993)). “[A]n event
should only be considered part of the totality of the circumstances if an individual employee claimed he
was aware of it.” Id. (emphasis added).
In short, a plaintiff must “marshal basic evidence” to show actual awareness of claimed
harassment. Id. at 719. The Berryman District Court “correctly . . . limited its analysis” to events that
were at least known to a plaintiff. Id. at 717–18 (discussing Jackson, 191 F.3d 647). Furthermore, the
court rightly did not assume any plaintiff’s awareness of events without corresponding deposition
testimony. See id. at 719. This Court should undertake the same analysis. Events that were unknown
to Josephson at the time are immaterial for his claims now. See FED. R. CIV. P. 56(a) (“material” facts).
Furthermore, Josephson’s post hoc declaration (ECF No. 64-3) of assertions wholly absent from his
prior deposition (e.g. ECF No. 59-3) and two verified complaints (ECF Nos. 1, 19) cannot “create a
factual issue for the purpose of defeating . . . summary judgment.” Jones v. Gen. Motors Corp., 939 F.2d
380, 385 (6th Cir. 1991).
2
Respectfully submitted,
/s/ Matthew Barszcz

Donna King Perry
Jeremy S. Rogers
Matthew Barszcz
Chase M. Cunningham
DINSMORE & SHOHL LLP
101 South Fifth Street, Suite 2500
Louisville, Kentucky 40202
Telephone: (502) 540-2300
Facsimile: (502) 585-2207
donna.perry@dinsmore.com
jeremy.rogers@dinsmore.com
matthew.barszcz@dinsmore.com
chase.cunningham@dinsmore.com
Counsel for Defendants
CERTIFICATE OF SERVICE
I hereby certify that on November 14, 2022, I electronically filed the foregoing with the Clerk
of Court using the CM/ECF system, which will send notification of such filing to the following
attorney(s) of record:
David A. Cortman Joshua D. Hershberger

Travis C. Barham Hershberger Law Office
Alliance Defending Freedom 201 East Main Street
1000 Hurricane Shoals Road Northeast, Madison, Indiana 47250
Suite D-1100 Telephone: (812) 274-0441
Lawrenceville, Georgia 30043 Facsimile: (812) 273-2329
Telephone: (770) 339-0774 josh@hlo.legal
Facsimile: (770) 339-6744
dcortman@ADFlegal.org
tbarham@ADFlegal.org
Tyson C. Langhofer
Alliance Defending Freedom
44180 Riverside Parkway
Lansdowne, VA 20176
Telephone: (571) 707-4656
Facsimile (571) 707-4790
tlanghofer@ADFlegal.org
Counsel for Plaintiff

/s/ Matthew Barszcz
Counsel for Defendants
3
Case 3:19-cv-00230-RGJ-CHL Document 96-1 Filed 11/14/22 Page 1 of 54 PageID #: 5635
EXHIBIT 1
I. Defendant Toni Ganzel

Action Primary Record: Action Discussed at: Toni M. Ganzel Response
 Ganzel was concerned that students
Ganzel declared Dr. Josephson’s felt hurt and devalued and that there
 Pl.’s Br. 7, 31–32, 38, Doc. 64-1,
speech “clearly doesn’t reflect PageID.1805, 1829–30, 1836. was a perception they had felt
the culture we are trying to so  Pl.’s Ex. 03, Doc. 64-5, PageID.1868.  Pl.’s Resp. 3, 7–8, 15, 22, 27–28, 47, Doc.
hard to promote” and called for devalued; not because of Josephson’s
72, PageID.4573, 4577–78, 4585, 4592,
“next steps.” 4597–98, 4617. speech (PageID 5410-12). This was in
2017.
 Woods made the decision to ask

Ganzel approved Woods’
Josephson to resign as Division Chief
 Pl.’s Br. 10, Doc. 64-1, PageID.1808.
decision to demote Dr.  Pl.’s Ex. 291, Doc. 68-38, PageID.3887.  Pl.’s Resp. 15, 22, Doc. 72, PageID.4585, and Ganzel supported that decision as
Josephson. 4592. it was Woods’ to make (PageID 3887).
This was in 2017.
 Ganzel trusted Boland’s reporting

regarding Josephson’s productivity
figures and absences. Ganzel did not
 Pl.’s Ex. 291, Doc. 68-38, PageID.3899 feel the need to second guess or
(Ganzel acted on Boland’s productivity micromanage these decisions and
Ganzel credited Boland’s assessment).
selective analysis of Dr.  Pl.’s Br. 19, 23, 40–41, Doc. 64-1, PageID. typically does not micromanage these
 Pl.’s Ex. 210, Doc. 67-8, PageID.2859 1817, 1821, 1838–39.
Josephson’s productivity while (underperforming faculty).
taking no action against six  Pl.’s Resp. 18, 20–21, 28, Doc. 72, decisions (PageID 3899). Ganzel was
 Pl.’s Ex. 276, Doc. 68-24, PageID.3262–70
underperforming colleagues. PageID.4588, 4590–91, 4598. not copied on the emails at PageID
(showing productivity data); Pl. Ex. 281,
Doc. 64-3, PageID.1858 (interpreting 2859. PageID 3262-70 are documents
data). prepared by Josephson and/or his
counsel and nothing in the record
suggests Ganzel even saw this data.
Action Primary Record: Action Discussed at: Toni M. Ganzel Response

 This statement is from Kim Boland,
Ganzel was “supportive of what not Toni Ganzel, on an email thread
[other Defendants] [we]re doing”  Pl.’s Br. 20, 37–38, Doc. 64-1, about a letter concerning Josephson’s
(i.e., gathering “strong  Pl.’s Ex. 106, Doc. 65-36, PageID.2056– PageID.1818, 1835–36.
documentation” “to avoid Allan’s 57.  Pl.’s Resp. 16, 18, 22, 47, Doc. 72, productivity and work performance
reappointment”). PageID.4586, 4588, 4592, 4617. (PageID 2056-57; see also PageID 2059-
60).
 Ganzel testified that Boland “did

discuss with me her concerns about
[Josephson’s] low productivity and
performance, but I don’t know --
again, I don’t know specifically on
In regular meetings with
Boland, Ganzel ignored Dr.  Pl.’s Ex. 291, Doc. 68-38, PageID.3939–40  Pl.’s Br. 21–23, 41, Doc. 64-1, November numbers or October
Josephson’s improving (Ganzel relied on Boland’s account). PageID.1819–21, 1839. numbers.” (PageID 3939). The
productivity in the second half  Pl.’s Ex. 281, Doc. 64-3, PageID.1856–58  Pl.’s Resp. 16, 20, 28, 53 Doc. 72, remaining document cited here is
of 2018. (Boland’s account ignored improvement). PageID.4586, 4590, 4598, 4623.
Josephson’s declaration concerning
how, several years after the non-
renewal of his appointment, he
calculated his productivity against other
faculty members (PageID 1856-58).
 Ganzel testified that performance

improvement plans “can be” used, not
 Pl.’s Ex. 291, Doc. 68-38, PageID.3935 (PIP
Ganzel failed to follow normal generally used); id. at PageID.3891  Pl.’s Br. 20, 32, 42, Doc. 64-1, PageID.1818, that they are required to be used
procedures (e.g., performance (recalling no talk of PIP for Dr. Josephson). 1830, 1840. (PageID 3935). She testified “I would
improvement plan, followed by  Pl.’s Ex. 99, Doc. 65-30, PageID.2043  Pl.’s Resp. 16, 20, 28, 52–53, Doc. 72,
probation). think [they are used] fairly frequently,
(Boland says M. Jones on PIP but not Dr. PageID.4586, 4590, 4598, 4622–23.
Josephson). but I can’t give you an exact number
on that.” (PageID 3936).
 Ganzel elected not to renew

 Pl.’s Ex. 142, Doc. 65-47, PageID.2147  Pl.’s Br. 22–24, 35, Doc. 64-1,
Ganzel terminated Dr. (Ganzel sent nonrenewal letter). PageID.1820–22, 1833. Josephson’s appointment, not to
Josephson.  Pl.’s Ex. 291, Doc. 68-38, PageID.3902  Pl.’s Resp. 24–25, 46–47, Doc. 72, terminate his employment (PageID
(Ganzel had authority to veto nonrenewal PageID.4594–95, 4616–17.
decision, had she wished to do so).  Pl.’s Reply 9, Doc. 80, PageID.5457. 2147).
 Josephson testified he was not aware of

any actions Ganzel took that harassed
him or that made a hostile work
environment for him (PageID 5388).
II. Defendant Charles Woods

Action Primary Record: Action Discussed at: Charles R. Woods Response
 Ganzel was concerned that students
felt hurt and devalued; not because of
Josephson’s speech (PageID 5410-
12). She did not condemn or
address Josephson’s views on
gender dysphoria.
 Woods met with Brian Buford
because “I would have been
listening to his concerns, and that
would have been the primary part
 Pl.’s Ex. 3, Doc. 64-5, PageID.1868 of that conversation.” (PageID
Once Ganzel condemned what she (responding to Ganzel; setting
understood to be Dr. Josephson’s views on meeting).  Pl.’s Br. 5–7, Doc. 64-1, PageID.1803– 3532). Buford did not discuss any
gender dysphoria, Woods met with  Pl.’s Ex. 38, Doc. 64-26, PageID.1934 05.
Ganzel and LGBT Center officials to courses of action with Woods
(Woods resolves complaint against Dr.  Pl.’s Resp. 3–4, 6–8, 23, 47, Doc. 72,
discuss what actions to take against him Josephson). PageID.4573–74, 4576–78, 4593, during their meeting (PageID 3672).
and allowed complaints he had resolved  Pl.’s Ex. 115, Doc. 65-38, PageID.2062 4617. Nothing about this meeting
to be resurrected. (Woods copied on emails recirculating
complaint he had resolved). impacted any decision Woods made
concerning Josephson (PageID
3534-3535).
 Woods separately met with Ganzel
to discuss a number of issues,
including his concerns about
Josephson’s leadership (PageID
3548-3552). Woods could not
control what information other
individuals addressed about
Josephson, including prior

complaints. This was all in 2017.
 Woods, the Department Chair, met

with Carter at Carter’s request to
discuss Carter’s concerns about a
number of issues involving
 Pl.’s Ex. 6, Doc. 64-6, PageID.1871–72 Josephson (PageID 1871-72). Carter
(Carter requests “urgent meeting” to later emailed Woods to discuss his
discuss Dr. Josephson; Woods
Woods encouraged Carter’s agitation accepts).  Pl.’s Br. 7–9, Doc. 64-1, PageID.1805– desire to meet because of Carter’s
regarding Dr. Josephson’s views,  Pl.’s Ex. 8, Doc. 64-8, PageID.1876 07. concerns about Josephson meeting
coordinating with him about confronting (meeting “to address with Alan  Pl.’s Resp. 3–5, 23, 29, Doc. 72,
Dr. Josephson. with attorneys in his office and
Josephson the significance and PageID.4573–75, 4593, 4599.
gravity of the concerns that we and Josephson becoming aggressive
the university have” because of his with another faculty member and
speech).
trying to insert himself into her
work with other divisions in the
Department of Pediatrics (PageID
1876-77). This was in 2017.
 Woods told Josephson “that his

comments at the end of Grand
Rounds with a speaker on
Woods chided Dr. Josephson for his transgender care had a harsher tone
speech, warned against being “promoted” than perhaps he realized[.]”
by “the religious right,” and baselessly  Pl.’s Resp. 5, 8–10, 28, Doc. 72,
concluded that Dr. Josephson’s “ability to  Pl.’s Ex. 42, Doc. 72-8, PageID.4655. PageID.4575, 4578–80, 4598. (PageID 4655). Woods “told him
lead the Division” may be in jeopardy over that he must realize, once he starts
his speech.
down a path like this as an ‘expert’,
even if he believes he is just
presenting a scientific perspective,
that he will be ‘promoted’ in ways

he might not anticipate by those on
the religious right (who see
themselves fighting a culture war
and who do not generally exhibit
compassion for those with whom
they disagree)–that he will be
saddled with this baggage if he
continues to pursue these
engagements–and that it will be
hard to disconnect all of this from
his ‘day job’.” (PageID 4655).
Woods also noted that “I am
concerned that his ability to lead the
Division of Pediatric Psychiatry and
Psychology forward may be in
jeopardy over this issue, and
possibly others not directly related.”
(PageID 4655). This meeting took
place on November 2, 2017, before
the contentious November 15, 2017
faculty meeting.
 Woods was concerned that, “[i]f

 Pl.’s Ex. 45, Doc. 65-1, PageID.1949 you really see this work as your
Woods concluded that, if Dr. Josephson (continuing to speak will place Dr.
continued to express his views, he would Josephson, “at odds enough with your  Pl.’s Br. 9, Doc. 64-1, PageID.1807.
Pl.’s Resp. 5, 8, 28–29, Doc. 72,
personal calling, you will be at odds
be unfit to lead. Divisional colleagues [such] that you with enough of your Divisional
PageID.4575, 4578, 4598–99.
will not be able to continue to lead
them.”). colleagues that you will not be able
to continue to lead them. This will

become to [sic] dominant a focus in
your psyche and theirs in all settings
where you are together, if it has not
already. It doesn’t mean you don’t
care for them or them for you, but
it sets up a conflict that is unhealthy
from a management perspective.”
(PageID 1949).
 Woods testified that, “this is at the
end of the day, not about Allan’s
views, but whether I felt like he
could lead where he personally was
going forward.” (PageID 4433).
 Woods perceived a “visceral anger”
about Josephson that “gave me
concern that, if this continues, it’s
only going to get worse, for him
and the group.” (PageID 4430-31).
This was in 2017.
 Woods told Josephson “[y]ou are

entitled to your views on this topic
 Pl.’s Ex. 45, Doc. 65-2, PageID.1950 within both free speech and
Woods concluded that even if Dr. (Dr. Josephson’s leadership
Josephson complied with Woods’ newly compromised “if you continue to  Pl.’s Resp. 29, 33, Doc. 72, academic freedom perspectives, as
concocted conditions, continued speaking pursue your extra-university PageID.4599, 4603.
would still render him unfit to lead. outlined with the policies of the
testimonies, even in compliance with
the above policies”). University of Louisville. You are
free to express differences in
opinion among colleagues,

preferably via open and data-driven
discussion and debate.” (PageID
1950). He also told Josephson that,
“[w]hen in a leadership role, such as
Division Chief, there are times
when the leader has a disagreement
on a single issue that is of such
importance to the rest of the
Division members as a whole–with
impacts 1) on retention and
recruitment of the needed faculty
workforce, and 2) the perceptions
of faculty and trainees that the
clinical and academic environment
is being negatively affected–that the
ability to effectively lead the
Division (team) in its missions is
lost. It is my personal conclusion
that, if you continue to pursue your
extra-university testimonies, even in
compliance with the above policies,
your ability to lead your Division
will be severely compromised.”
(PageID 1950). This was in 2017.
Woods consulted with Le, Lohr, and  Pl.’s Ex. 286, Doc. 68-33, PageID.3515  Pl.’s Br. 9–10, Doc. 64-1,  Woods asked Boland to speak with
Carter (to assess faculty sentiment) and (consulting Boland) 3555–56
(consulting others); Pl.’s Ex. 291, Doc. PageID.1807–08. faculty members he was not able to
with Ganzel and Boland (to assess  Pl.’s Resp. 13, 15, 28, Doc. 72,
support for the demotion). 68-38, Page ID.3887–89 (consulting speak with personally regarding
PageID.4583, 4585, 4598.
Ganzel).

concerns they had about Josephson
(PageID 3515).
 Woods spoke with Ganzel to notify
her of his decision to ask Josephson
to resign as Division Chief and to
confirm he had the authority to
make this decision (PageID 3515).
 Woods spoke with multiple faculty
members to determine the level of
concern with respect to Josephson’s
leadership. This included David
Lohr, who Woods felt was “even
keel” and could provide an
objective perspective (PageID 3555-
56). Woods did not have any
discussions with Le about
Josephson during this time period
(PageID 3753-54; PageID 1467-68).
These discussions all occurred in
2017.
 Woods requested that Josephson

resign as Division Chief because of
 Pl.’s Br. 9–10, Doc. 64-1,
Woods demoted Dr. Josephson due to his PageID.1807–08. “the nature of this and area of
views on gender dysphoria and faculty  Pl.’s Ex. 56, Doc. 65-5, PageID.1957.  Pl.’s Resp. 11–13, 23–24, 28–29, 47, disagreement and your increasingly
response to his views. Doc. 72, PageID.4581–83, 4593–94, public promotion of your approach
4598–99, 4617.
as an expert witness, and other
issues, most notably perceptions of

gender bias among your faculty,
there is clearly limited confidence
among your divisional colleagues in
your leadership.” (PageID 1957).
 Woods testified that this decision
was “at the end of the day, not
about Allan’s views but about
whether I felt like he could lead
from where he personally was going
forward.” (PageID 4433). This
decision occurred in 2017.
 These are Josephson’s notes from a

meeting with Woods and do not
reflect that he was prohibited from
 Pl.’s Ex. 195, Doc. 66-27, PageID.2833 treating LGBTQ patients (PageID
After the demotion, Woods ordered Dr. (“no more pts [sic] finish case”); Pl.’s
 Pl.’s Br. 12, 33, Doc. 64-1, 2833). In fact, Josephson continued
Josephson to stop treating LGBTQ Ex. 281, Doc. 64-3, PageID.1849 PageID.1810, 1831.
patients, a restriction imposed on no (explaining: treat no more LGBT to treat LGBTQ patients and was
patients and finish single LGBT case).  Pl.’s Resp. 13, 15, 21, 47, Doc. 72,
other professor. PageID.4583, 4585, 4591, 4617.
 Pl.’s Ex. 287, Doc.68-34, PageID.3629 still treating that patient population
(no other faculty similarly restricted). in November 2018 (PageID 4553-
55). Josephson alleges this
discussion took place in 2017.
 Woods did not remove Josephson’s

teaching duties as a result of
After the demotion, Woods approved  Pl.’s Ex. 63, Doc. 65-10, PageID.1971  Pl.’s Br. 11–12, 33, 39, Doc. 64-1,
removing Dr. Josephson’s teaching duties (removal of various teaching duties). PageID.1809–10, 1831, 1837. Josephson’s views on gender
due to his views on gender dysphoria.  Pl.’s Ex. 286, Doc. 68-33, PageID.3572  Pl.’s Resp. 9, 13–14, 28, 49, Doc. 72, dysphoria. The cited document is a
(confirming content of Ex. 63). PageID.4579, 4583–84, 4598,4619.
draft work assignment that was not
approved or provided to Josephson

(PageID 3572-73).
 The work plan that Woods gave
Josephson after Josephson’s
resignation as Division Chief
continued to include teaching duties
for Josephson (PageID 4685-86).
Woods gave Josephson this work
assignment in February 2018.
 Josephson testified that Woods

asked him not to attend faculty
meetings until February 2018
(PageID 1009). Woods asked
 Pl.’s Br. 12, 15, 32, Doc. 64-1, Josephson not to attend faculty
Woods ordered Dr. Josephson not to  Pl.’s Ex. 193, Doc. 66-25, PageID.1810, 1813, 1830.
attend faculty meetings. PageID.2831.  Pl.’s Resp. 13, 15, 28, 47–48, Doc. 72, meetings to allow the new
PageID.4583, 4585, 4598, 4617–18. leadership time to have necessary
discussions without any lingering
tensions (PageID 2831). This all
occurred before March 28, 2018.
 Woods told Josephson “[w]hen you

are teaching trainees at any level,
and you knowingly provide teaching
Woods ordered Dr. Josephson to give a  Pl.’s Ex. 51, Doc. 65-2, PageID.1950  Pl.’s Br. 12–13, 32–33, Doc. 64-1, or opinions on a topic (of any kind)
disclaimer whenever he discussed views (listing disclaimer requirement).
PageID.1810–11, 1830–31.
on gender dysphoria that differed from a  Pl.’s Ex. 61, Doc. 65-9, PageID.1965  Pl.’s Resp. 15, 28, 48, Doc. 72, that differ from the official
nonexistent curriculum. (ad hoc “curriculum” from by PageID.4585, 4598, 4618. curriculum of the School of
Steinbock).
Medicine or the Department, when
such exist,” that he had a duty to
advise he was expressing a differing

opinion and direct them to the
official curriculum (PageID 1950)
(emphasis added). This occurred in
2017.
 Woods asked Josephson not to

discuss the demotion with
colleagues “[j]ust to say give people
a chance to recover from all of this,
Woods ordered Dr. Josephson not to  Pl.’s Ex. 193, Doc. 66-25, PageID.2831 but not -- that you would not ever
discuss his demotion with colleagues and (cancelling meeting; promising more).  Pl.’s Br. 14, 31–32, Doc. 64-1, be able to talk to people.” (PageID
faulted him for having done so, after  Pl.’s Ex. 66, Doc. 65-12, PageID.1998 PageID.1812, 1829–30.
specifically authorizing these (Boland promising she and Woods will  Pl.’s Resp. 17, 28, 33, 47–48, Doc. 72, 4449). Woods told Josephson only
conversations. “be addressing” Dr. Josephson’s PageID.4587, 4598, 4603, 4617–18. that “I deem it best to cancel the
meetings).
meeting with the clinic staff on
Monday that you have requested.”
(PageID 2831). This occurred in
2017.
 Woods’ schedule prevented him

from meeting with Josephson on a
timeline Josephson might have
preferred (PageID 2023-24; 2844).
 Pl.’s Ex. 87, Doc. 65-23, PageID.2023–
Woods refused to meet with Dr.  Pl.’s Br. 15–16, 31–32, Doc. 64-1, Woods met with Josephson at
24 (cancelling); Pl.’s Ex. 200, Doc. 67- PageID.1813–14.
Josephson without multiple requests and 1, PageID.2844 (delaying) Pl.’s Ex. Josephson’s request on February 28,
substantial delays.  Pl.’s Resp. 15, 47–48, Doc. 72,
295, Doc. 72-32, PageID.4713 2018 (PageID 4455-56). Josephson
PageID.4585, 4617–18.
(cancelling).
has identified one meeting after
March 28, 2018 that was canceled as
a result of conflicts with both
Josephson’s and Woods’ schedules

(PageID 4713). There is no
evidence to suggest that any delay in
meetings was motivated by
Josephson’s views on gender
dysphoria or his presentation at the
Heritage Foundation.
 Woods was the Chair of the

Department of Pediatrics and he
received several complaints about
Woods collected and conveyed complaints  See Pl.’s Br. 13 n.124, Doc. 64-1,  Pl.’s Josephson (PageID 1972; 2825;
Br. 13–15, Doc. 64-1,
against Dr. Josephson that he never PageID.1811 (collecting complaints). PageID.1811–13. 3575). Woods neither investigated
investigated, including those coordinated  Pl.’s Ex. 64, Doc. 65-11, PageID.1972.  Pl.’s Resp. 5, 15, 17, 28, 32, 47–48,
by Steinbock and those in Le’s “Allan  Pl.’s Ex. 286, Doc. 68-33, these complaints nor did he take
Doc. 72, PageID.4575, 4585, 4587,
Tracking document.” PageID.3575 (not investigating 4598, 4602, 4617–18. any actions against Josephson as a
complaint).
result of any of these complaints.
Woods’ receipt of these complaints
all occurred before March 28, 2018.
 Woods did not have the ability to

determine who sent an email from a
fake email address announcing
Josephson’s resignation as Division
Woods refused to investigate well-  Pl.’s Ex. 281, Doc. 64-3, PageID.1850;  Pl.’s Br. at 16–17, 34, Doc. 64-1. Chief (PageID 3586). Josephson
founded complaints of retaliation against Pl.’s Ex. 286, Doc. 68-33, PageID.1814–15, 1832.
 Pl.’s Resp. 15–17, 28, 48–49, Doc 72, then told Woods that he had
Dr. Josephson. PageID.3586.
PageID.4585–17, 4598, 4618–19. recently obtained some additional
information about the potential
identity of the individual who sent
this email and that “I will let the
dust settle on this for now as new

information may come to light. At
that time, I would like to discuss
further with you.” (PageID 5223).
Woods responded that he would be
glad to discuss this whenever
Josephson was ready (PageID
5223). There is nothing in the
record that suggests Josephson ever
sought further action from Woods
on this issue. All of this occurred
before March 28, 2018.
III. Defendant Kimberly Boland

Action Primary Record: Action Discussed at: Kimberly A. Boland Response
 Boland recommended not renewing

Josephson’s faculty appointment in
Boland recommended Ganzel end Dr.  Pl.’s Ex. 287, Doc. 68-34, PageID.3655  Pl.’s Br. 22–23, Doc. 64-1,
Josephson’s appointment. (admitting Boland recommended PageID.1820–21. light of the documented
nonrenewal).  Pl.’s Resp. 49, Doc. 72, PageID.4619. shortcomings in his performance
(PageID 1620–21).
 Boland “was a sounding board”
(Page ID 1615) for Woods’s
 Pl.’s Ex. 287, Doc. 68-34, PageID.3595 decision. She had no original
Boland approved demoting Dr. (“I agree” with Woods’ decision). decision-making authority or
 Pl.’s Br. 10. Doc. 64-1, PageID.1808.
Josephson’s because of his views on  Id. at PageID.3622 (acknowledging  Pl.’s Resp. 12–13, Doc. 72, authority to direct Woods’s
gender dysphoria. her email describing the basis for the
PageID.4582–83 decision. Josephson was not asked
demotion referred to “his views on the
subject in general”). to resign his role as Division Chief
because of his views on gender
dysphoria (PageID 1957).
 PageID 1849 is Josephson’s post hoc

declaration. The assertion that
Woods and Boland “instructed
[him] not to attend faculty
meetings” was not made in his
deposition testimony, amended
verified complaint, or original
verified complaint.
 PageID 2011 is simply a calendar
entry for a meeting on December 7,
After the demotion, Boland approved 2017. It contains no representations
banning Dr. Josephson from faculty  Pl.'s Ex. 281, Doc. 64-3, PageID.1849.  Pl.’s Br. 15, Doc. 64-1, PageID.1813.
meetings.  Pl.’s Ex. 82, Doc. 65-18, PageID.2011.  Pl.’s Resp. 13, Doc. 72, PageID.4583. of what took place that day.
 Josephson testified that Woods
asked him not to attend faculty
meetings until February 2018
(PageID 1009). Woods asked
Josephson not to attend faculty
meetings to allow the new
leadership time to have necessary
 PageID 1971 is a draft work

assignment that was not approved
or provided to Josephson (PageID
3572-73). The work plan that
After the demotion, Boland participated  Pl.’s Ex. 63, Doc. 65-10, PageID.1967,  Pl.’s Br. 11–12, 33, 39, Doc. 64-1, Josephson received in February
in removing Dr. Josephson’s teaching 1971 (“Remove from . . . lectures”). PageID.1809–10, 1831, 1837. 2018 included teaching duties
duties due to his views on gender  Pl.’s Ex. 287, Doc. 68-34, PageID.3627  Pl.’s Resp. 49–50, Doc. 72,
dysphoria. (agreeing Ex. 63 reflects Le’s notes (PageID 4685-86). There is nothing
PageID.4619–20.
from meeting that included Boland). in the record to suggest that this
draft work assignment or the
assignment he actually received
were based on Josephson’s views on
gender dysphoria.
 Joephson’s handwritten notes

(PageID 2833) simply do not
indicate that Boland administered
any such instruction.
 PageID 1849 is Josephson’s post hoc
declaration. The assertion that
Boland “instructed” him “to treat
no more LGBTQ patients” was not
 Pl.’s Ex. 195, Doc. 66-27, PageID.2833
After the demotion, Boland participated (“no more pts [sic] finish case”); Pl.’s  Pl.’s Br. 12, 33, Doc. 64-1, made in his deposition testimony,
in banning Dr. Josephson from treating Ex. 281, Doc. 64-3, PageID.1849 amended verified complaint, or
PageID.1810, 1831.
LGBTQ patients, a restriction imposed on (explaining: treat no more LGBT
 Pl.’s Resp. 13, 15, 21, 49–50, Doc. 72, original verified complaint.
no other professor. patients and finish single LGBT case). PageID.4583, 4585, 4591, 4619–20.
 Pl.’s Ex. 287, Doc.68-34, PageID.3629  Boland testified (PageID 3629),
(no other faculty similarly restricted).
without any assertion regarding
Josephson, that other faculty
members were not “recused from
treating certain patient groups.”
 Josephson continued to treat
LGBTQ patients and was still
treating that patient population in
November 2018 (PageID 4553-55).
 Boland found a nonparty’s

representations of Josephson’s
comments, if accurate, “pretty
concerning” (PageID 2018). She
never watched Josephson’s Heritage
To Le, Carter, and Lohr, Boland  Pl.’s Ex. 85, Doc. 65-21, PageID.2018  Pl.’s Br. 13–14, 38, Doc. 64-1. Foundation presentation (PageID
expressed direct opposition to Dr. (saying Josephson’s speech was PageID.1811–12, 1836. 1608), and she took no action in
Josephson’s speech. “pretty concerning”).  Pl.’s Resp. 49, Doc. 72, PageID.4619. response.
 Josephson was not aware of
Boland’s email, and he has testified
that Boland exhibited no hostility or
harassing behavior towards him
(PageID 1684–85).
 At the time of this November 2017
 Pl.’s Ex. 78, Doc. 72-15, PageID.4671–
Before and after the demotion, Boland 72 (Boland passes complaint to Woods email (PageID 4671–72), Boland
collected and conveyed complaints after Le notes Boland asked her to  Pl.’s Br. 13–15, 21, 39, Doc. 64-1, was executive vice chair (PageID
send “any new information that PageID.1811–13, 1819, 1837.
against Dr. Josephson that she never  Pl.’s Resp. 9, 13, 17, 28, 31–32, 49, 1604). Because in that capacity she
investigated, including those in Le’s related to Allan”).
 Pl.’s Ex. 287, Doc. 68-.4, PageID.3626, Doc. 72, PageID.4579, 4583, 4587, assisted Woods (PageID 1628–29),
“Allan Tracking document.” 4598, 4601–02, 4619.
3636 (admitting Boland did not she simply relayed Le’s message to
investigate various complaints).
him.
Boland targeted Dr. Josephson, assuring  Pl.’s Ex. 133, Doc. 65-45,  Pl.’s Br. 17–19, 38, Doc. 64-1,  Boland was neither the sender nor a
Le, Carter, and Lohr that their “excellent PageID.2142. PageID.1815–17, 1836.
sleuthing” to find performance issues was  Pl.’s Resp. 15, 21–22, 28, 49, Doc. 72, recipient of this email (PageID
“a huge help.” PageID.4585, 4591–92, 4598, 4619. 2142).

Boland instructed Le, Carter, and Lohr to  Pl.’s Ex. 106, Doc. 65-36, PageID.2056  Pl.’s Resp. 15, 18–19, Doc. 72,  The comment in Boland’s email
obfuscate their work expectations for Dr. (instructing to “leave the crystal out of PageID.4585, 4588–89.
Josephson in their July 2018 letter. clear”). (PageID 2056) and the
corresponding section of the draft
correspondence to Josephson
(PageID 2060) are clearly about the
School of Medicine’s policy for
“self-paying patients.” Boland
recommended language of “the
chair’s office” rather than her name
or Woods’s. This generalized the
source of the directive (i.e. the
chair’s office) rather than making it
personal to the holder of the office;
it did not make the directive itself,
or any other instruction for
Josephson, ambiguous.
Boland focused on Dr. Josephson’s  Pl.’s Ex. 94, Doc. 65-26, PageID.2031  Pl.’s Br. 19–20, 23, 32, 42 Doc. 64-1,  A performance improvement plan
productivity in the first half of 2018, (saying Boland will meet with Dr. PageID.1817–18, 1821, 1830, 1840.
ignoring the poor performance of six other Josephson “talk about a timeline for a  Pl.’s Resp. 18–21, 28, 49–50, Doc. 72, is not a mandatory procedure for
subordinates, and failing to follow Performance Improvement Plan”). PageID.4588–91, 4598, 4619–20. addressing faculty under-
procedures she knew were normal and  Pl.’s Ex. 287, Doc. 68-34,
applicable (e.g., performance PageID.3641–42 (admitting Boland performance (PageID 3935–96).
improvement plan, followed by neither developed a PIP nor met with
probation). Dr. Josephson about any productivity
concerns); id. at 3645 (describing
“process improvement plan” and
probation used for other faculty).
 Pl.’s Ex. 281, Doc. 64-3, PageID.1854–
55 (six other faculty shortfalls).

Boland supported the other Defendants  Pl.’s Ex. 106, Doc. 65-36, PageID.2056  Pl.’s Br. 20, 37, Doc. 64-1,  Boland indicated (PageID 2056)
in their quest to collect “strong (replying to Carter's urging to collect PageID.1818, 1835.
documentation” to “avoid Allan’s “strong documentation” by noting that  Pl.’s Resp. 16, 18, 22, 28, 49, Doc. 72, that Dean Ganzel supported the
reappointment.” “the Dean is supportive of what we PageID.4586, 4588, 4592, 4598, 4619. efforts to address Josephson’s
and you are doing”).
underperformance—the efforts
culminated in the July 2018 letter to
Josephson. Nothing about
supporting efforts to improve a
low-performing faculty member’s
performance has anything to do
with Josephson’s views on gender
Boland coordinated the “ambush”  Pl.’s Ex. 102, Doc. 65-35, PageID.2049  Pl.’s Br. 22, Doc. 64-1, PageID.1820.  Boland’s email (PageID 2049)
termination meeting, instructing Le to (coordinating meeting).
conceal its purpose with a false  Pl.’s Ex. 289, Doc. 68-36, PageID.3796 simply schedules the February 2019
explanation. (Le describing the meeting as a “bit of meeting. At that meeting, Boland
an ambush”).
informed Josephson that his faculty
appointment would not be renewed
(PageID 1622).
 Le’s testimony that the meeting
might have “come off as a little bit
of an ambush” to Josephson
(PageID 3796) is unremarkable.
Any employee who is notified in a
review meeting that his employment
will end might feel “ambushed.”
Le’s testimony does not describe
Boland’s agenda or intentions for
the meeting.
 Josephson testified that Boland did

not take any actions that created a
hostile work environment for him
(PageID 1684-85).
Defendant Jennifer Le
Action Primary Record: Action Discussed at: Jennifer F. Le Response
 PageID 1877 is a November 3, 2017

email from Carter to Woods (Le is
not even copied on the email).
Carter claims Le, among many
others, agrees Josephson should
cease and desist “activities” that are
damaging the division, training
programs, patient care, and UofL.
The activities referenced in the
email are “about Josephson
“meeting in his office in Bingham
on several occasions with the
After the Heritage Foundation event, Le  Pl.’s Ex. 8, Doc. 64-8, Page ID.1877  Pl.’s Br. 9, 38, Doc. 64-1, PageID.1807, attorney(s) involved in the cases in
insisted Dr. Josephson “must cease and (Carter reports that Le joins him in 1836. which he is providing expert
desist in these activities in his role as our insisting that Dr. Josephson must  Pl.’ Resp. 6, 9, 12, 30, Doc. 72,
division chief and UofL faculty member.” testimony, which clearly violates the
“cease and desist”). PageID.4576, 4579, 4581, 4600.
boundaries between his academic
role and his consultations.
Additionally, Allan has been getting
much more aggressive in his
approach with Christine regarding
his desire, actually what he describes
as his plans, to unilaterally (without
any discussion with Dr.
Wintergerst) insert himself into the
clinical activities at the Peds Endo
Clinic with the (to be named)
Pediatric Gender Affirmation
Support System (PeGASus).” This

does not involve Josephson’s
presentation at the Heritage
Foundation and there is no
evidence Josephson was aware of
this email.
 PageID 3730-31, 3734. Le testified

 Pl.’s Ex. 289, Doc. 68-36,
that, during the contentious
PageID.3730–31, 3734 (admitting November 15, 2017 division faculty
In November 2017, Le demanded that Dr.
Josephson apologize for his views on saying Dr. Josephson should make  Pl.’s Br. 9, 33, 38. Doc. 64-1, meeting, she expressed the desire
PageID.1807, 1831, 1836. for Josephson to make clear that his
gender dysphoria or issue a disclaimer, disclaimer).
 Pl.’s Ex. 294, Doc. 68-41, PageID.4098  Pl.’s Resp. 9–13, 21–22, 30, Doc. 72, views do not represent the clinic’s
something no professor had ever done. PageID.4579–83, 4591–92, 4600. position and suggesting working
(recalling no other faculty making
disclaimers).
with public relations to do so. There
is no testimony about asking him to
“apologize for his views.”
 PageID 4993, 5002-04. Le had
concerns about Josephson’s medical
documentation being copied-and-
pasted. She raised the concern in
 Pl.’s Ex. 289, Doc. 68-36,
response to a specific request from
PageID.4993, 5002–04 (Le admits
Boland for any information about
reporting concerns, but only after Dr.
Josephson. There is no evidence
During the fall 2017 agitation, Le raised that this had anything to do with
concerns never before mentioned and told Josephson’s October 2017  Pl.’s Resp. 9, 11–13, 21, 31, Doc. 72, Josephson’s views on gender
Boland she wanted Dr. Josephson’s job. presentation). PageID.4579, 4581–83, 4591, 4601. dysphoria or his presentation at the
 Pl.’s Ex. 17, Doc. 72-6, PageID.4650
(Boland’s notes reporting Le’s interest
Heritage Foundation. Boland’s
in the division chief role).
notes (PageID 4650) reflect that Le
would be willing to serve as interim
co-division chief with Carter, not
that she sought to usurp this role
from Josephson. This was all in
2017.
Le conferred with Woods about the  Pl.’s Ex. 300, Doc. 72-37,  Woods did not discuss the potential
demotion, expressing how she did not PageID.4853–54 (Woods reports  Pl.’s Resp. 13, Doc. 72, PageID.4583. demotion with Le during this time
support Dr. Josephson. conferring with Le, who did not period (PageID 1467-68). This was
support Dr. Josephson). in 2017.
Le collected and conveyed complaints  Pl.’s Ex. 55, Doc. 65-4, PageID1953–  Pl.’s Br. 13–15, 20–22, 24, 33–34, 39,  PageID 2144. There is no evidence

against Dr. Josephson that she never 56 (collecting); Pl.’s Ex. 134, Pl.’s Ex. Doc. 64-1, PageID.1811–13, 1818–20, that Le or anyone else did anything
investigated, including those in her 134, Doc. 65-46, PageID.2144 1822, 1831–32, 1837. to investigate various complaints
“Allan Tracking document.” (conveying Le’s “Allan Tracking  Pl.’s Resp. 9, 13, 17, 21, 28, 32, 50–51, about Josephson and did not take
document”). Doc. 72, PageID.4579, 4583, 4587, any action on them either. The fact
 Pl.’s Ex. 289, Doc. 68-36, PageID.3740 4591, 4598, 4602, 4620–21. that Le emailed the document to
(admitting “I just put [these Lohr was unknown to Josephson
complaints] in a folder and had them until after the lawsuit was filed, and
there. I didn’t really do anything with thus could not have contributed to
them”); id. at PageID.3760–61 any hostile work environment.
(admitting Le did not investigate
another complaint); id. at
PageID.3779–80 (not sure if Woods or
Boland investigated).
 PageID 2137. These are emails
between Le and Lohr about starting
as co-chiefs of the Division. Le
actually expressed the opposite of
hostility toward Josephson in this
email chain: “As far as the meeting
goes with Allan tomorrow,
personally, I think it is better to just
shut it down rather than challenge
him. I feel like we need to set the
 Pl.’s Ex. 130, Doc. 65-43, PageID.2137
tone of there being limits rather
After the demotion, Le expressed hostility (“I may surreptitiously record the  Pl.’s Br. 11–12, Doc. 64-1, than getting in a power struggle that
towards Dr. Josephson, suggesting he meeting tomorrow”); id. at 2139 (“we PageID.1809–10. will lead to nothing but conflict.
may need to leave and discussing just have to make sure that everyone  Pl.’s Resp. 15, 21, Doc. 72,
Then give him parameters for
recording meetings with him. gets on who wants on, or gets off if PageID.4585, 4591. continued work here after talking
that’s what they need to do as well”). with Charles. Facing forward, not
looking in the rear view mirror.
High road. Let him understand that
we are willing to let the
consequence of his being asked to
step down be the end of it and
move on, with certain expectations
for future behavior, of course.
That’s just me though.” Lohr
agreed: “Words of wisdom. I can’t
object to anything. Move forward.”
The email chain states nothing

about Josephson leaving. Also, Le
had the legal right to record any
conversation she had with
Josephson under Kentucky’s one-
party-consent law. Yet, there is no
evidence she actually recorded any
conversation with Josephson.
Nothing in the email chain concerns
Josephson’s Heritage Foundation
presentation. There is no evidence
Josephson was aware of this email
chain until after the lawsuit was
filed.
 PageID 2137. Lohr emailed Le
December 5, 2017: “I’m not sure he
needs to meet with fellows without
you being there.” Le responded:
“He will not be meeting with the
fellows without me there. Don’t
worry.” Josephson was not aware of
this email chain until after the
lawsuit was filed. The Division
Le decided that Dr. Josephson should not  Pl.’s  Pl.’s Br. 11, Doc. 64-1, PageID.1809.
Ex. 130, Doc. 65-43, chiefs had the right to direct this
meet with fellows alone.  Pl.’s Resp. 13, 28, Doc. 72,
PageID.2137. work with the fellows; no faculty
PageID.4583, 4598.
member has an absolute right to
work with fellows. Also, there is no
evidence that the issue about
Josephson meeting alone with
fellows was connected to the
Heritage Foundation presentation
or Josephson’s related views on
gender dysphoria.
 Pl.’s Ex. 63, Doc. 65-10, PageID.1970  Pl.’s Br. 12, 15, 33, Doc. 64-1,  PageID 1970 is a draft work
Le approved of banning Dr. Josephson
from treating LGBTQ patients, a (directing Dr. Josephson to “recuse PageID.1810, 1813, 1831. assignment that was not approved
himself from the treatment of LGBTQ  Pl.’s Resp. 13, 15, 21, 28, Doc. 72, or provided to Josephson (PageID

restriction imposed on no other professor. patients”); Pl.’s Ex. 289, Doc. 68-36, PageID.4583, 4585, 4591, 4598. 3572-73). Also, as written it did not
PageID.3767 (admitting Le prepared “ban” Josephson from treating
Ex. 63). LGBTQ patients; it allowed initial
 Pl.’s Ex. 195, Doc. 66-27, PageID.2833 evaluations and follow-ups with
(“no more pts [sic] finish case”); Pl.’s transition to other providers for
Ex. 281, Doc. 64-3, PageID.1849 further care.
(explaining: treat no more LGBT  PageID 1849 is Josephson’s
patients and finish single LGBT case). Declaration in which he claims
 Pl.’s Ex. 287, Doc.68-34, PageID.3629 Woods and Boland instructed him
(no other faculty similarly restricted). on December 7, 2017 to “finish
treating a transgender patient, then
to treat no more LGBTQ patients.”
 In fact, Josephson continued to
treat LGBTQ patients and was still
 Pl.’s Ex. 63, Doc. 65-10, PageID.1971  PageID 1971 is a draft work
(removing Dr. Josephson from  Pl.’s Br. 11–12, 33, 39, Doc. 64-1,
Le approved stripping Dr. Josephson of lectures; limiting other teaching PageID.1809–10, 1831, 1837. or provided to Josephson (PageID
his teaching duties. duties); Pl.’s Ex. 289, Doc. 68-36,  Pl.’s Resp. 9, 13–14, 28, 50, Doc. 72, 3572-73). The work plan that
PageID.3767 (admitting Le prepared PageID.4579, 4583–84, 4598, 4620.
Josephson received in February
Ex. 63). 2018 included teaching duties
(PageID 4685-86).
 PageID 3737-38. Le testified she
did not meet with Josephson one-
on-one after a “very uncomfortable
 Pl.’s Ex. 289, Doc. 68-36, meeting with him individually.”
Le resisted or refused to meet with Dr. PageID.3737–38 (admitting Le There is no evidence Josephson
Josephson and displayed hostility refused to meet individually with Dr.  Pl.’s Br. 16–17, 19, 32, Doc. 64-1, sought to meet individually with Le
Josephson after a single PageID.1814–15, 1817, 1830. afterward. In any event, Le’s reason
towards him in the few meetings they  Pl.’s Resp. 9, 16–17, 21, Doc. 72,
had. uncomfortable meeting). was not because of Josephson’s
 Pl.’s Ex. 281, Doc. 64-3, PageID.1851 PageID.4579, 4586–87, 4591. speech or views; it was the fact that
(describing Le’s hostility). he had sought to interrogate her
about Woods’ decision to ask him
to resign as Division Chief (PageID
1851).
Le ignored and refused to investigate  Pl.’s Ex. 289, Doc. 68-36,  Pl.’s Br. 17, 40, Doc. 64-1,  Josephson never discussed or
well-founded complaints of retaliation PageID.3786–87 (Le’s admits PageID.1815, 1838. presented the fake email (now
against Dr. Josephson. assuming that Dr. Josephson was  Pl.’s Resp. 16–17, 21, 28, Doc. 72, known to be sent by non-party
frustrated with Dr. Brady); id. at 3764 PageID.4586–87, 4591, 4598. Stacie Steinbock) to Le (PageID

(admitting Le did not “connect the 3786-87). Instead, he told Le that
dots” (which could have easily been someone (assumed to be in
connected by an investigation) about reference to Chris Brady) “has taken
Dr. Josephson’s concerns until something from me that should not
reviewing the Complaint). have been taken,” presumably in
reference to his position as Division
Chief (PageID 4461). There is no
evidence that Le refused to
investigate “well-founded
complaints of retaliation.”
 In February 2018, Le learned that
Josephson had told a patient he was
going to be retiring in a few months
(PageID 4490). This knowledge pre-
dated the March 19, 2018 email she
sent to Lohr, Carter, Jennifer Moore
By March 2018, Le predicted Dr. and Andrei Trocan stating “We will
Josephson would leave the University  Pl.’s Ex. 164, Doc. 66-7, PageID.2255  Pl.’s Br. 17, 37, Doc. 64-1, likely be losing both Allan
despite him never expressing this (March 2018); Pl.’s Ex. 132, Doc. 65- PageID.1815, 1835.
44, PageID.2140 (same, but May  Pl.’s Resp. 9, 17–18, 28, 50, Doc. 72, [Josephson] and Fred [Stocker] this
intention, referring to the nonrenewal of year …” (PageID 2255). The email
his contract. 2018). PageID.4579, 4587–88, 4598, 4620.
had nothing to do with the non-
renewal of Josephson’s
appointment – let alone his speech
or views. This email is before March
28, 2018 and there is no evidence
Josephson knew about it before this
litigation.
 PageID 2142 is a June 15, 2018
email chain between Le, Lohr, and
Carter. The only email from Le in
Le led the “excellent sleuthing” that this chain states that she was trying
inaccurately summarized Dr. Josephson’s  Pl.’s Ex. 133, Doc. 65-45,  Pl.’s Br. 17–22, 37–40, Doc. 64-1, to find out how much billing and
performance (e.g., faulting him for PageID.2142. PageID.1815–20, 1835–38. patient care Josephson was actually
unexcused absences when he was on  See also Pl.'s Ex. 289, Doc. 68-36,  Pl.’s Resp. 9, 14–16, 18–19, 21–22, 24, doing. That is what Carter labeled
leave) in a quest to provide the “strong PageID.3757 (admitting Le started 28, 50, Doc. 72, PageID.4579, 4584– as “excellent sleuthing.” Josephson
documentation” to “avoid Allan’s keeping the “Allan Tracking 86, 4588–89, 4591–92, 4594, 4598, has not presented any evidence that
reappointment.” document” in November 2017). 4620.
he was meeting his work assignment
during this time period. There is no
evidence Josephson knew about this
email until this litigation.

 PageID 1854-55 is Josephson’s
Declaration regarding his after-the-
 Pl.’s Ex. 281, Doc. 64-3, PageID.1854– fact calculations of other faculty
Le focused on Dr. Josephson’s 55 (six other faculty shortfalls). members’ productivity. It has
 Pl.’s Br. 17, 19, 23, 40–41, Doc. 64-1,
productivity in the first half of 2018,  Pl.’s Ex. 289, Doc. 68-36, PageID.3751 PageID.1815, 1817, 1821, 1838–39.
nothing to do with Le allegedly
ignoring the poor performance of six other (admitting Le aware of targeting Josephson. Josephson’s
underperforming psychology faculty  Pl.’s Resp. 18, 20–21, 24, 28, 50–51, attempt to compare his productivity
subordinates and Dr. Josephson’s Doc. 72, PageID.4588, 4590–91, 4594
improvement in the second half of 2018. but incorrectly believing there were to that of other faculty members
4598, 4620–21.
no underperforming psychiatry does not take into account the
faculty). circumstances of each faculty
member and is therefore unreliable
(PageID 4481-88).
email chain among Le, Lohr, Carter.
Josephson was unaware of the email
until after the lawsuit was filed. Le
agreed with Carter’s statement that
“I take issue when that faculty
 Pl.’s Ex. 209, Doc. 67-7, PageID.2857 member is literally going against the
(Le stating “I definately [sic] agree” scientific and ethical position of the
with Carter’s unfounded charge that
profession, because they happen to
Dr. Josephson contradicts the be faculty at an academic institution,
Six months after the demotion, Le “scientific and ethical position of the  Pl.’s Br. 18, 37, Doc. 64-1, and getting paid to do it presenting
continued to express hostility against Dr. profession”). PageID.1816, 1835.
their view as representing the
Josephson for his views on gender  See also Pl.’s Ex. 294, Doc. 68-41,  Pl.’s Resp. 9, 21–22, Doc. 72, profession.” To the extent this
dysphoria. PageID.4077–78 (Carter admits he PageID.4579, 4591–92. email pertains to Josephson’s views
cannot identify any specific
on gender dysphoria, there is no
contradiction, pointing instead to the dispute that Le and Carter are
“general tenor” of Dr. Josephson’s entitled to express their views just
speech).
as much as Josephson is entitled to
express his. Nothing about this
email suggests any decision Le took
regarding Josephson’s employment
was motivated by his views on
gender dysphoria or his
Foundation.
Le failed to follow normal procedures  Pl.’s Ex. 28, Doc.64-21, PageID.1918  Pl.’s Br. 19–22, 32, 41–42, Doc. 64-1,  PageID 1918 is a chart about issues
(e.g., performance improvement plan, (Le recommended performance PageID.1817–20, 1830, 1839–40. for the Division co-chiefs as they
followed by probation) or to work “in a improvement plan followed by  Pl.’s Resp. 9, 19–20, 28, 52–53, Doc. started their role. It suggests a

collaborative fashion” by not discussing probation for another Division 72, PageID.4579, 4589–90, 4598, performance improvement plan for
Dr. Josephson’s productivity with him employee). 4622–23. Jan Schoen, an administrative
after July 2018.  Pl.’s Ex. 289, Doc. 68-36, PageID.3794 assistant – a role very different from
(admitting Le neither met with nor that of a full professor in psychiatry.
expressed any productivity concerns  PageID 3794. Le testified the co-
to Dr. Josephson after July 2018). chiefs did not meet with Josephson
after July 14, 2018, although there is
no evidence Josephson asked for a
meeting despite the open invitation
in the July 2018 letter to him.
Moreover, Le testified the reason
for the hesitancy to meet with
Josephson was because they knew
he was formulating a lawsuit against
them (PageID 4514-19).
 Le routinely met with Boland to
discuss matters pertaining to
operation of the Division of
Pediatric and Adolescent Psychiatry
and Psychology, including faculty
members who were
Le provided the information Ganzel used underperforming, not just
to terminate Dr. Josephson’s appointment  Defendants concede this point. See Le  Pl.’s Resp. 22, 50, Doc. 72, Josephson (PageID 1472-73).
at Boland’s recommendation. Br. 12, Doc. 61-2, PageID.1435. PageID.4592, 4620.  Le provided Boland with factual
information about Josephson’s
open availability to schedule
patients, the number of patients he
actually saw, and the amount of
time he spent performing
telepsychiatry services (PageID
1474).
 Pl.’s Ex. 102, Doc. 65-32,  PageID 2049 is a February 21, 2019
PageID.2049. email chain showing that Le
Le scheduled and joined the “ambush”  Pl.’s Ex. 289, Doc. 68-36, PageID.3796  Pl.’s Br. 22–23, Doc. 64-1,
participated in scheduling the
termination meeting, concealing the real (conceding that the way Le and PageID.1820–21. meeting in which Josephson was
reason for it behind a false explanation. Boland handled the meeting likely  Pl.’s Resp. 21, 50, 53, Doc. 72, informed of the non-renewal of his
PageID.4591, 4620, 4623.
made it “come off as a little bit of an faculty appointment.
ambush”).
 Josephson testified that the only
thing Le did to negatively impact his

work environment was when she
allegedly told him to apologize
during the November 15, 2017
faculty meeting (PageID 1497-98).
IV. Defendant Bryan Carter

Action Primary Record: Action Discussed at: Bryan Carter Response
 There is no dispute that Carter is

entitled to express his views just as
much as Josephson is entitled to
express his. Carter disagreed, as
professional organizations
disagreed, with calling gender
dysphoria “a delusional disorder”
(PageID 4078) or “false belief”
(PageID 4079). Carter reported to
Josephson during this time period
(PageID 1095).
 Pl.’s Ex. 6, Doc. 64-6, PageID.1871–
72.  At the time of his deposition, Carter
After the Heritage Foundation event,  Pl.’s Ex. 7, Doc. 64-7, PageID.1873–
Carter began agitating—insisting on had not watched Josephson’s
75.
notifying and meetings with superiors,  Pl.’s Br. 7–9, Doc. 64-1, PageID.1805– Heritage Foundation presentation
 Pl.’s Ex. 10, Doc. 64-9, PageID.1881.
enlisting faculty to oppose Dr. Josephson,  Pl.’s Ex. 8, Doc. 64-8, PageID.1876–  07.Pl.’s Resp. 3–6, 8–9, 12–13, 23–24, for some time (PageID 4077). It is
making unfounded predictions and 77.
ethical charges, and concealing Dr. 26–27, 29–31, Doc. 72, PageID.4573– not surprising that he did not
 Pl.’s Ex. 294, Doc. 68-41,
Josephson’s responses to issues he PageID.4077–78 (admitting Carter 76, 4578–79, 4582–83, 4593–94, 4596– remember all granular details from
raised—because he disagreed with Dr. 97, 4599–4601.
cannot identify any conflict with that presentation.
Josephson’s views on gender dysphoria. professional standards, pointing
instead to the “general tenor” of Dr.  Carter was concerned that
Josephson’s speech). Josephson might have been skirting
work responsibilities for his expert
witness work (PageID 1877).
 Carter raised concerns unrelated to
Josephson’s views on gender
dysphoria, including Josephson
putting a junior faculty member in a
difficult position (PageID 1100-01).
 There is no evidence that Carter
concealed anything Josephson told
him during this time period.
 Carter recognized Josephson’s

“right to his individual perspectives
and opinions” (PageID 4097).
Carter’s concern was that
Josephson’s public-facing
After the Heritage Foundation event, comments “in his role as . . .
Carter insisted Dr. Josephson “must  Pl.’s Br. 9, 38, Doc. 64-1, PageID.1807,
cease and desist in these activities in his  Pl.’s Ex. 8, Doc. 64-8, PageID.1877. 1836. division chief and UofL faculty
role as our division chief and UofL faculty  Pl.’s Resp. 6, 9, 12, 30 Doc. 72, member” (PageID 1877) were
member.” PageID.4576, 4579, 4582, 4600.
causing others to think that
Josephson’s advocated approach
was the official view of the Division
(PageID 4272–73). Carter reported
to Josephson during this time
period (PageID 1095).
 Carter wanted Josephson “to

address the perception,” that had
been made apparent by many
“inquiries” to the School of
Medicine, “that every faculty
member in that division was in
 Pl.’s Ex. 294, Doc. 68-41, concert with his beliefs” (PageID
Carter joined Le in demanding that Dr. PageIS.4097–98 (demand for  Pl.’s Br. 9, Doc. 64-1, PageID.1807.
Josephson apologize for his views on disclaimer; admitting no other faculty 4097).
gender dysphoria or issue a disclaimer,  Pl.’s Resp. 9–13, 33, Doc. 72,
had made one).  Carter recognized Josephson’s
something no professor had ever done.  Pl.’s Ex. 282, Doc. 68-29, PageID.4579–83, 4603.
PageID.3328. “right to his individual perspectives
and opinions” (PageID 4097).
There is no evidence he wanted
Josephson to “apologize” for those
views.
 Carter reported to Josephson during
this time period (PageID 1095).
 Josephson has recognized that his

Heritage Foundation presentation
“wasn’t the thrust” of faculty’s
“concerns about [his] behavior” in
the contentious November 15, 2017
faculty meeting (PageID 1173).
 Carter lost confidence in
Josephson’s leadership because of
his “angry and emotion-filled
confrontation with the division
faculty” that day (PageID 4666), his
failure to take responsibility for it
Carter conferred with Woods about the (PageID 4643), and other sources of
demotion, expressing how he did not  Pl.’s Ex. 13, Doc. 72-4, PageID.4643
support Dr. Josephson, and he demanded (telling Woods Dr. Josephson “cannot  Pl.’s Resp. 13, Doc. 72, PageID.4583. friction (PageID 4643) that had
Dr. Josephson’s demotion to Woods and and should not lead this division”). nothing to do with Josephson’s
Boland.  Pl.’s Ex. 77, Doc. 72-14, PageID.4666.
views on treating gender dysphoria.
 Carter emailed Woods to discuss his
desire to meet because of Carter’s
concerns about Josephson meeting
with attorneys in his office and
Josephson becoming aggressive
with another faculty member and
trying to insert himself into her
work with other divisions in the
Department of Pediatrics (PageID
1876-77).
 Carter reported to Josephson during
this time period (PageID 1095).
 Nonparties told Carter that

Josephson might have violated the
School of Medicine’s “Dean’s tax”
policy, which would have “raise[d]
important issues for divisional
compliance with UL/ULP practice
policies” and the division’s budget
(PageID 2837). Carter and Le
agreed to relay the tip to Woods
and Boland—the Chair’s office—
so that “they c[ould] investigate” the
 Pl.’s Ex. 166, Doc. 66-8, PageID.2256. allegation (PageID 2836 (emphasis
 Pl.’s Ex. 197, Doc. 66-29, added)). Carter did not assume
PageID.2836–37; Pl.’s Ex. 55, Doc. 65-
4, PageID.1953 (listing the matter in Josephson had violated the policy—
Carter collected and conveyed complaints  Pl.’s Br. 11–15, 21–22, 24, 33–34, 37–
against Dr. Josephson that he never Carter raised in Ex. 197 in the “Allan on the contrary, he noted they “may
Tracking document” and noting “Did 39, Doc. 64-1, PageID.1809–13, 1819–
investigated, including those in Le’s 20, 1822, 1831–32, 1835–37. actually find that Allan [wa]s in
“Allan Tracking document” and those he not pursue.”); id. at PageID.1955
 Pl.’s Resp. 17, 24, 28, 51, Doc. 72, compliance” (PageID 2837).
personally solicited and edited. (listing the “practicum student”
complaint Carter edited in Ex. 166). PageID.4587, 4594, 4598, 4621.
 In November 2018, Carter was no
 Pl.’s Ex. 171, Doc. 66-12,
PageID.2265–66 (soliciting longer a co-chief of the division
complaints). (PageID 4259–60), and he had no
authority with respect to
Josephson’s employment. He
relayed a student’s complaint about
Josephson’s treatment of a patient
in the clinic (PageID 2256–58).
 After Josephson filed suit, Carter
asked individuals “to be as objective
and honest as possible” in
documenting “the atmosphere that
Allan created in [a] seminar”
(PageID 2266).
 Trainees reported “not wanting to

attend Dr. Josephson’s lectures”
(PageID 3469). They raised
complaints about a number of areas
with Josephson’s teaching, including
his refusal to consider different
Carter removed psychology trainees from  Pl.’s Ex. 284, Doc. 68-31,  Pl.’s Br. 31, Doc. 64-1, PageID.1829.
Dr. Josephson’s tutelage because of Dr. ideas and literature (PageID 4071-
PageID.3469.  Pl.’s Resp. 32, 51, Doc. 72,
Josephson’s views on gender dysphoria.  Pl.’s Ex. 17, Doc. 72-6, PageID.4649. PageID.4602, 4621. 72).
 They were pulled from didactics
with Josephson because they felt
that Josephson did not permit them
to present opposing ideas or
exercise their own academic
freedom (PageID 4072).

or provided to Josephson (PageID
3572-73). Also, as written it did not
“ban” Josephson from treating
LGBTQ patients; it allowed initial
evaluations and follow-ups with
transition to other providers for
 Pl.’s Ex. 63, Doc. 65-10, PageID.1970
(directing Dr. Josephson to “recuse further care.
himself from the treatment of LGBTQ  Joephson’s handwritten notes
patients”); Pl.’s Ex. 289, Doc. 68-36,
PageID.3767 (admitting Ex. 63 (PageID 2833) do not indicate that
Carter approved of banning Dr. contains what Le, Carter, and Lohr  Pl.’s Br. 12, 15, 33, Doc. 64-1, Carter approved of any such
Josephson from treating LGBTQ addressed with Boland and Woods). PageID.1810, 1813, 1831.
patients, a restriction imposed on no  Pl.’s Ex. 195, Doc. 66-27, PageID.2833  Pl.’s Resp. 13, 24, 28 Doc. 72, instruction.
other professor. (“no more pts [sic] finish case”); Pl.’s PageID.4583, 4594, 4598.  PageID 1849 is Josephson’s
Ex. 281, Doc. 64-3, PageID.1849 Declaration in which he claims
(explaining: treat no more LGBT
patients and finish single LGBT case). Woods and Boland instructed him
 Pl.’s Ex. 287, Doc.68-34, PageID.3629 on December 7, 2017 to “finish
(no other faculty similarly restricted).
treating a transgender patient, then
to treat no more LGBTQ patients.”
It does not identify any actions by
Carter.
 Josephson continued to treat
LGBTQ patients and was still

 Pl.’s Ex. 63, Doc. 65-10, PageID.1971 or provided to Josephson (PageID
(removing Dr. Josephson from  Pl.’s Br. 11–12, 33, 39, Doc. 64-1,
lectures; limiting other teaching 3572-73). It does not suggest
Carter approved stripping Dr. Josephson PageID.1809–10, 1831, 1837.
of his teaching duties. duties); Pl.’s Ex. 289, Doc. 68-36, “stripping Josephson of his teaching
 Pl.’s Resp. 13–14, 24, 28, Doc. 72,
PageID.3767 (admitting Ex. 63 PageID.4583–84, 4594, 4598. duties.” The work plan that
contains what Le, Carter, and Lohr
addressed with Boland and Woods). Josephson received in February
2018 included teaching duties
(PageID 4685-86).
 After Carter notified Woods of
Josephson’s request for meeting
(PageID 1998), Woods, for his own
reasons, counseled Josephson not
to organize that particular meeting
(PageID 2831).
 Pl.’s Ex. 66, Doc. 65-12, PageID.1998  Josephson testified that Woods
 Pl.’s Br. 12, 15, 32, Doc. 64-1, asked him not to attend faculty
Carter instigated Woods’ decision to ban (asking Woods to forbid Dr. Josephson
from having meetings). PageID.1810, 1813, 1830.
Dr. Josephson from faculty meetings.  Pl.’s Resp. 13, 15, Doc. 72, meetings until February 2018
 Pl.’s Ex. 193, Doc. 66-25,
PageID.4583, 4585. (PageID 1009). Woods asked
PageID.2831.
Josephson not to attend faculty
meetings to allow the new
leadership time to have necessary
 In Josephson’s second post hoc

declaration, he asserts that Carter
“spoke at the December 6, 2017
faculty meeting” and “in passing
several times in the weeks
Carter resisted or refused to meet with  Pl.’s Br. 16–17, 19, 31–32, Doc. 64-1, thereafter” (PageID 4719).
Dr. Josephson and displayed hostility  Pl.’s Ex. 296, Doc. 72-33,
PageID.1814–15, 1817, 1829–30.
towards him in the few meetings they PageID.4719–29. See also V. Compl.,  Pl.’s Resp. 16–17, 24, 32, 51, Doc. 72, Josephson says he felt that Carter
had. Doc. 19, PageID.242. was “avoiding” him. But even in his
PageID.4586–87, 4594, 4602, 4621.
own declaration, he never alleges
that Carter resisted or refused to
meet with him. Neither does his
complaint (PageID 242) support
that contention.
 Since Carter was “was one of the
last people to learn of” the email
(now known to be sent by non-
party Stacie Steinbock) (PageID
4164), it’s unclear why Josephson
 Pl.’s Ex. 294, Doc. 68-41, PageID.4164 thinks Carter should have
Carter ignored and refused to investigate (admitting that the fake email to  Pl.’s Br. 17, 19, 40, Doc. 64-1,
well-founded complaints of retaliation Lambda Legal would reasonably PageID.1815, 1817, 1838. investigated it. Nothing indicates
against Dr. Josephson. upset Dr. Josephson and that Dr.  Pl.’s Resp. 16–17, Doc. 72, that Carter was obligated to
Carter was “one of the last people to PageID.4586–87.
learn of it”). investigate or then “refused” to do
so.
 It’s unclear how Carter could
investigate something he did not
know about at the time (PageID
4164).
 In February 2018, Le learned that

Josephson had told a patient he was
going to be retiring in a few months
(PageID 4490). This knowledge pre-
dated the March 19, 2018 email she
sent to Lohr, Carter, Jennifer Moore
and Andrei Trocan stating “We will
likely be losing both Allan
 Pl.’s Ex. 164, Doc. 66-7, PageID.2255.
By March 2018, Carter and other  Pl.’s Ex. 294, Doc. 68-41, PageID.102  Pl.’s Br. 17, 37, Doc. 64-1, [Josephson] and Fred [Stocker] this
Defendants were discussing whether Dr. PageID.1817, 1835. year …” (PageID 2255). The email
(admitting Ex. 164 addresses
Josephson’s contract would be renewed.  Pl.’s Resp. 17–18, 21, 24, 28, Doc. 72,
“whether or not Dr. Josephson’s PageID.4587–88, 4591, 4594, 4598. had nothing to do with the non-
contract would be renewed”).
renewal of Josephson’s
appointment – let alone his speech
or views. This email is before March
28, 2018 and there is no evidence
Josephson knew about it before this
litigation.
 Carter merely received this email
from Le.

email chain between Le, Lohr, and
Carter. Carter labeled as “excellent
sleuthing” Le’s efforts to find out
how much billing and patient care
Carter participated in the “excellent  Pl.’s Ex. 133, Doc. 65-45, PageID.2142 Josephson was actually doing.
sleuthing” that inaccurately summarized  Pl.’s Br. 17–22, 37–40, Doc. 64-1, Doc.
(calling Le and Lohr’s work “excellent Josephson has not presented any
Dr. Josephson’s performance (e.g., sleuthing”). 1815–20, 1835–38.
faulting him for unexcused absences  Pl.’s  Pl.’s Resp. 14–16, 18–19, 21–22, 24, evidence that he was meeting his
Ex. 106, Doc. 65-36,
when he was on leave) and identified the 28, 51, Doc. 72, PageID.4584–86,
PageID.2057) (seeking “strong work assignment during this time
purpose of this quest: to generate “strong documentation”). 4588–89, 4591–92, 4594, 4598, 4621.
documentation” to “avoid Allan’s  Pl.’s Ex. 281, Doc. 64-3, PageID.1860  Pl.’s Resp. 15 & n.83–84, 19 & n.105– period. Nothing about this pertains
reappointment.” 08, Doc. 72, PageID.4585, 4589.
(explaining absences). to Josephson’s views on gender
 There is no evidence Josephson
knew about this email until this
litigation.
 There is no dispute that Carter is
 Pl.’s Ex. 209, Doc. 67-7, PageID.2857 entitled to express his views just as
(Carter charges Dr. Josephson with
contradicting the “scientific and much as Josephson is entitled to
Six months after the demotion, Carter ethical position of the profession”). express his. Carter disagreed, as
continued to express hostility against Dr.  Pl.’s  Pl.’s Br. 18, Doc. 64-1, PageID.1816.
Ex. 294, Doc. 68-41,
Josephson for his views on gender  Pl.’s Resp. 19, 22, 24, 28 Doc. 72, professional organizations
PageID.4077–78 (Carter admits he PageID.4589, 4592, 4594, 4598.
dysphoria. cannot identify any specific disagreed, with calling gender
contradiction, pointing instead to the dysphoria “a delusional disorder”
“general tenor” of Dr. Josephson’s
speech). (PageID 4078) or “false belief”
(PageID 4079).
 PageID 1854-55 is Josephson’s

Declaration regarding his after-the-
fact calculations of other faculty
members’ productivity. He cannot
know what was Carter’s “focus” in
either half of 2018. Josephson’s
attempt to compare his productivity
to that of other faculty members
does not take into account the
 Pl.’s Ex. 89b, Doc. 65-24, PageID.2027
Carter focused on Dr. Josephson’s (reporting early 2018 data); Pl.’s Ex.  Pl.’s Br. 15, 19, 23, 40–41, Doc. 64-1, circumstances of each faculty
productivity in the first half of 2018, 106, Doc. 65-36, PageID.2057 PageID.1813, 1817, 1821, 1838–39. member and is therefore unreliable
ignoring the poor performance of six other (announcing by mid-2018 a goal to  Pl.’s Resp. 18, 20–21, 24, 28, 51, Doc.
“avoid Allan’s reappointment”). 72, PageID.4588, 4589–90, 4594, (PageID 4481-88).
subordinates.
 Pl.’s Ex. 281, Doc. 64-3, PageID.1854– 4598, 4621.  Carter ceased being interim co-chief
55 (six other faculty shortfalls).
in October 2018 and had no
authority over Josephson after that
(PageID 4066-67).
 There is no evidence that any
analysis of Josephson’s productivity
was motivated by his views on
gender dysphoria or his
Foundation.
 A performance improvement plan

is not a mandatory procedure for
addressing faculty under-
Carter failed to follow normal procedures  Pl.’s Ex. 106, Doc.65-36, PageID.2060
(e.g., performance improvement plan, performance (PageID 3935–96).
(promising in July to work in a  Pl.’s Br. 19–22, 32, 41, Doc. 64-1,
followed by probation) or to work “in a “collaborative fashion”). PageID.1817–20, 1830, 1839.  By October 2018, Carter was no
collaborative fashion” by not discussing  Pl.’s Ex. 281, Doc. 64-3, PageID.1851  Pl.’s Resp. 19–20, 28, 52–53, Doc. 72,
Dr. Josephson’s productivity with him longer a co-chief of the division
(no meetings after July until the PageID.4589–90, 4598 4622–23.
after July 2018. February termination). (PageID 4259–60), and he had no
authority with respect to
Josephson’s employment.

things Carter did to create a hostile
work environment were that he
called Josephson a liar “at least
couple times” and supervised
Christine Brady (PageID 1140-41).
V. Defendant William Lohr

Action Primary Record: Action Discussed at: William D. Lohr Response
 Woods spoke with multiple faculty
members to determine the level of
concern with respect to Josephson’s
leadership. This included David
Lohr, who Woods felt was “even
keel” and could provide an
objective perspective (PageID 3555-
 Pl.’s Ex. 300, Doc. 72-37,
56). There is nothing in the record
PageID.4853–54 (confirming meeting
about what Lohr discussed with
Lohr conferred with Woods about the Woods.
demotion, expressing how he did not with Lohr).  Pl.’s Resp. 13, Doc. 72, PageID.4583.  PageID 3827-28. Lohr testified that
support Dr. Josephson.  Pl.’s Ex. 290, Doc. 68-37,
PageID.3827–28 (admitting Lohr did
he did not answer Josephson when
not support Dr. Josephson).
Josephson asked if he had
supported him as Division Chief.
Lohr assumed the non-answer
conveyed to Josephson that he did
not support him. There is no
evidence that Lohr’s lack of support
for Josephson as Division Chief was
because of Josephson’s speech or
viewpoint.
 PageID 2138 is an email from
December 5, 2017 between Lohr
and Le. It was not known to
After the demotion, Lohr still expressed Josephson until after the lawsuit
hostility towards Dr. Josephson due to his was filed. Lohr wrote, “As far
views on gender dysphoria, labeling them  Pl.'s Ex. 130, Doc. 65-43,  Pl.’s Br. 11, 38, Doc. 64-1, tomorrow if he gets personal I'm
“unscientific” and threating that the PageID.2138. PageID.1809, 1836. inclined to challenge his inductive
“[g]loves could be coming off.” reasoning as unscientific and ask
how much he's earned as an expert
witness over the last 2 years on
sexuality issues. Gloves could be
coming off.”
 Pl.’s Ex. 63, Doc. 65-10, PageID.1971  PageID 1971 is a draft work
After the demotion, Lohr approved of (removing Dr. Josephson from  Pl.’s Br. 11–12, 33, 39, Doc. 64-1, assignment that was not approved
stripping Dr. Josephson of his teaching lectures; limiting other teaching PageID.1809–10, 1831, 1837. or provided to Josephson (PageID
duties.  Pl.’s Resp. 13–14, 24, 28 Doc. 72,
duties); Pl.’s Ex. 289, Doc. 68-36, 3572-73). It does not suggest
PageID.3767 (admitting Ex. 63 PageID.4583–84, 4594, 4598. “stripping Josephson of his teaching

contains what Le, Carter, and Lohr duties.” The work plan that
addressed with Boland and Woods). Josephson received in February
 See also Pl.’s Ex. 130, Doc. 65-43, 2018 included teaching duties
PageID.2137. (PageID 4685-86).
 PageID 2137. December 6, 2017
emails between Lohr and Le. He
 Pl.’s Br. 11, 33, Doc. 64-1, wrote, “I’m not sure he needs to
Lohr instigated the decision to prevent meet with the fellows without you
Dr. Josephson from meeting with fellows  Pl.’s Ex. 130, Doc. 65-43, PageID.1809, 1831.
[Le] being there.” There is no
alone. PageID.2137.  Pl.’s Resp. 13, 52 Doc. 72,
PageID.4583, 4622. evidence this was due to
Josephson’s Heritage Foundation
presentation or views on gender
dysphoria.
 PageID 1970 is a draft proposed
work assignment from December
2017. The draft work assignment
that was not approved or provided
 Pl.’s Ex. 63, Doc. 65-10, PageID.1970 to Josephson (PageID 3572-73). It
(directing Dr. Josephson to “recuse
himself from the treatment of LGBTQ did not suggest “banning Dr.
patients”); Pl.’s Ex. 289, Doc. 68-36, Josephson from treating LGBTQ
PageID.3767 (admitting Ex. 63 patients.” It suggested Josephson
contains what Le, Carter, and Lohr
Lohr approved of banning Dr. Josephson  Pl.’s Br. 12, 15, 33, Doc. 64-1, would “recuse himself from the
addressed with Boland and Woods). PageID.1810, 1813, 1831.
from treating LGBTQ patients, a  Pl.’s Ex. 195, Doc. 66-27, PageID.2833 treatment of LGBTQ patients as
restriction imposed on no other professor.  Pl.’s Resp. 13, 21, 24 28, Doc. 72,
(“no more pts [sic] finish case”); Pl.’s much as possible. While on call on
PageID.4583, 4591, 4594, 4598.
Ex. 281, Doc. 64-3, PageID.1849
(explaining: treat no more LGBT 6C, he may do initial evaluations
patients and finish single LGBT case). and follow-ups with LGBTQ
 Pl.’s Ex. 290, Doc.68-37, PageID.3842 patients, but will transition care to
(Lohr unaware of other faculty
similarly restricted). an alternative provider once the call
weekend is done.”
 In fact, Josephson continued to
treat LGBTQ patients and was still
Lohr insulted Dr. Josephson to his face,  Pl.'s Ex. 290, Doc.68-37, PageID.3826.  Pl.’s Br. 16–17, 32, Doc. 64-1,  Lohr admitted he called Josephson
calling him “childish, narcissistic, and PageID.1814–15, 1830. “childish, flippant, and narcissistic”

flippant” because he asked still  Pl.’s Resp. 16, 52, Doc. 72, in a March 23, 2018 meeting
unanswered questions about the PageID.4586, 4622. because Josephson expressed that
demotion. his work assignment that required
him to see more patients was
beneath him (PageID 4466-67).
Lohr immediately apologized to
Josephson for this.
 PageID 3859-60. Lohr did not
testify that he “ignored and refused
to investigate well-founded
 Pl.’s Ex. 290, Doc. 68-37, complaints of retaliation against
Lohr ignored and refused to investigate PageID.3859–60 (conceding it was  Pl.’s Br. 17, 19, 40, Doc. 64-1, Josephson.” He testified that
well-founded complaints of retaliation reasonable for Dr. Josephson to be PageID.1815, 1817, 1838. Josephson was incoherent in
against Dr. Josephson upset about the Lambda Legal email  Pl.’s Resp. 16–17, 28, Doc. 72, accusing someone of taking
but admitting the co-chiefs did not get PageID.4586–87, 4598. something from him, as if there had
to the bottom of it). been an organized plan to demote
Josephson. No evidence exists that
Josephson ever sought Lohr to
investigate any complaints.
 PageID 1851 is Josephson’s
Declaration, in which he claimed
that he sought to speak with Lohr at
one point and Lohr responded “I’d
rather not.” Josephson does not
specify for what purpose he sought
 Pl.’s Ex. 281, Doc. 64-3., PageID.1851 to meet with Lohr. In context of
(reporting Lohr’s refusal to meet).  Pl.’s Br. 16–17, 19, 32, Doc. 64-1,
Lohr refused to speak with or meet with PageID.1814–15, 1817, 1830. the Declaration, it appears he
Dr. Josephson.  Pl.’s Ex. 290, Doc. 68-37,
 Pl.’s Resp. 16–17, 52, Doc. 72, sought to re-litigate the demotion
PageID.3855–56 (admitting
reluctance to meet). PageID.4586–87, 4622. decision – a decision that was not
made by Lohr.
 Lohr was reluctant to meet one-on-
one with Josephson because he did
not want to revisit the demotion
decision and because he was aware
Josephson was meeting with lawyers

to threaten litigation (PageID 3855-
56).
 PageID 3848-49. Lohr testified that

the new co-chiefs of the Division
received complaints about
Josephson in December 2017 in
what could be described as an open-
door policy. There is no evidence
that Lohr or anyone else acted upon
such complaints vis a vis Josephson.
 PageID 2103 is an October 2018
 Pl.’s Ex. 290, Doc. 68-37, email chain with Brooke Threlkeld,
PageID.3848–49 (admitting “the Le, and Carter about a complaint
chiefs” were “gathering complaints
Lohr collected and conveyed complaints and concerns” at the end of 2017 and  Pl.’s Br. 11–15, 20–22, 33–34, Doc. 64- from Threlkeld’s trainee (Chelsea)
against Dr. Josephson that he never that they did not speak to Dr. 1, PageID.1809–13, 1818–20, 1831– that Josephson seemed to treat
investigated, including those in Le’s Josephson). 32. women dismissively. Carter
“Allan Tracking document.”  Pl.’s Ex. 122, Doc. 65-39, PageID.2103  Pl.’s Resp. 17, 28, 31–32, Doc. 72,
(email from Lohr in Le’s “Allan Track PageID.4587, 4598, 4601–01. forwarded it to Lohr, who
document” materials stating, “We will responded “Bryan, thanks for
need to continue our documentation sharing. I agree with your
and monitoring”).
assessment of his continued
behavior. We will need to continue
documentation and monitoring.”
There is no evidence that the
complaint or Lohr’s reaction had
any connection to Josephson’s
views on gender dysphoria or
Foundation.
Lohr admitted that he, Le, and Carter  Pl.’s Ex. 290, Doc. 68-37, PageID.3831  Pl.’s Br. 17, Doc. 64-1, PageID.1815.  PageID 3831. Lohr testified that he,

discussed terminating Dr. Josephson (recalling discussing termination in  Pl.’s Resp. 18, Doc. 72, PageID.4588. Le, and Carter had “what if”
before the July 2018 meeting. “July before our meeting”). discussions prior to the July 2018
meeting with Josephson about
potentially not renewing his faculty
appointment because he was not
meeting his work assignment. There
is no evidence the discussion
pertained at all to Josephson’s
speech or views.
 PageID 2033-35 is a June 21, 2018
email chain with Boland and Lohr
in which Lohr forwarded the
document detailing Josephson’s
productivity and unexcused
absences. There is no evidence this
had any connection to Josephson’s
speech or views. There is similarly
no evidence besides Josephson’s
Lohr produced documents that  Pl.’s Ex. 95, Doc. 65-27, PageID.2033–
inaccurately summarized Dr. Josephson’s 35 (charging unexcused absences). See belief that this information was
 Pl.’s Br. 17–22, 37–40, Doc. 64-1,
performance (e.g., faulting him for also Pl.’s Ex. 106., Doc. 65-36, inaccurate.
PageID.2057, 2060 (repeating the PageID.1815–20, 1835–38.
unexcused absences when he was on  Pl.’s Resp. 14–16, 18–19, 21, 24, 28,
leave) in a quest to provide the “strong same charge as a part of the “strong  PageID 1860-61 is Josephson’s
51–52, Doc. 72, PageID.4584–86, Declaration stating that he had
documentation” to “avoid Allan’s documentation” Carter requests).
 Pl.’s Ex. 281, Doc. 64-3, PageID.1860– 4588–89, 4591, 4594, 4598, 4621–22.
reappointment.” notified Jan Schoen (the secretary
61 (explaining absences).
for the Division Chiefs) of PTO
days, but “these requests did not
always make it to Defendant Le.”
There is no suggestion that Lohr
had anything to do with
Josephson’s absences – let alone
that Lohr somehow miscounted the
absences in retaliation for
Josephson’s speech or views. Nor is

there any evidence that Lohr knew
of these notifications Josephson
claims to have conveyed to Schoen.
 PageID 2036-39. These documents

show Josephson’s average hours of
work still fell short of the
expectation both in the first half
and second half of 2018. They had
“improved” by about 1 hour per
week on average in the second half
of the year as compared to the first
half. There is no evidence these
numbers are inaccurate and no
 Compare Pl.’s Ex. 96, Doc. 65-28,
PageID.2036–37 (January-June 2018 evidence they pertain to
Lohr focused on Dr. Josephson’s assessment) with id. at PageID.2038–  Pl.’s Br. 17–19, 21–23, 40–42, Doc. 64- Josephson’s speech or views.
productivity in the first half of 2018, 39 (January-December 2018 1, PageID.1815–17, 1819–21, 1838–
ignoring the poor performance of six other assessment showing improvement). 40.  PageID 1957-61 is the November
subordinates and Dr. Josephson’s  See also Pl.’s Ex. 281, Doc. 64-3,  Pl.’s Resp. 18, 20–21, 24 28, 51–52, 28, 2017 demotion letter from
improving productivity in the second half PageID.1957–61 (explaining that Ex. Doc. 72, PageID.4588, 4590–91, 4594,
of 2018, though he was aware of it. Woods to Josephson and
96 still understates Dr. Josephson’s 4598, 4621–22.
productivity and misstates other
documents surrounding that letter.
performance allegations). It has nothing to do with
Josephson’s (or anyone else’s)
productivity numbers (especially not
in 2018).
 Josephson’s attempt to compare his
productivity to that of other faculty
members does not take into
account other faculty member’s
circumstances and is therefore
unreliable (PageID 4481-88).
 PageID 2060 is the July 2018 letter

from Le, Lohr, and Carter to
Josephson. It states “If you have
questions about these items, we
would be happy to meet with you to
discuss. We hope we will be able to
address these issues in a
collaborative fashion …” There is
 Pl.’s Ex. 106, Doc.65-36, PageID.2060
(promising in July to work in a no evidence Josephson had
Lohr failed to follow normal procedures “collaborative fashion”). questions or sought a meeting in
(e.g., performance improvement plan,  Pl.’s Ex. 290, Doc. 68-37,  Pl.’s Br. 19–22, 32, 41–42, Doc. 64-1,
then probation) or to work “in a response.
PageID.3822, 3867 (Lohr did not PageID.1817–20, 1830, 1839–40.
collaborative fashion” by not discussing discuss any productivity issues with  Pl.’s Resp. 19–20, 28, 51–53, Doc. 72,  PageID 3822, 3867. Lohr did not
Dr. Josephson’s productivity with him Dr. Josephson after July 2018); id. at PageID.4789–90, 4598, 4621–23. meet with Josephson in a chief
after July 2018. PageID.3862 (admitting no discussion capacity after July 2018 and did not
with Boland about performance
improvement plan). have further discussions with
Josephson about his work
assignment.
 PageID 3862. Lohr does not recall
any discussion with Dr. Boland
about a performance improvement
plan for Josephson after the July
2018 meeting.
 PageID 2871 is a November 30,

2018 email from Lohr to Le. Lohr
was no longer co-chief, but offered
Despite no longer being a co-chief, Lohr to review Josephson’s performance
volunteered to review Dr. Josephson’s  Pl.’s  Pl.’s Br. 22, Doc. 64-1, PageID.1820.
Ex. 216, Doc. 67-14, and requested documentation to do
productivity, a review Defendants  Pl.’s Resp. 24, 52, Doc. 72,
PageID.2871. PageID.4594, 4622. so. There is no evidence this offer
contend led to his termination. was accepted. Nor is there any
evidence that this offer to review
performance led to Josephson’s
non-renewal or that it had any

connection to Josephson’s speech at
the Heritage Foundation or his
views on gender dysphoria.
things Lohr did to create a hostile
environment was to call Josephson
“childish, flippant, and narcissistic”
on March 23, 2018, and refused to
meet one-on-one with Josephson
(PageID 1285-87).

University of Louisville Filing in Josephson v. Ganzel Case

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University of Louisville Filing in Josephson v. Ganzel Case

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Case 3:19-cv-00230-RGJ-CHL Document 96 Filed 11/14/22 Page 1 of 3 PageID #: 5632

UNITED STATES DISTRICT COURT

DEFENDANTS’ RESPONSE TO JOSEPHSON’S

about Josephson alone and what he experienced.

was aware of it.” Id. (emphasis added).

380, 385 (6th Cir. 1991).

/s/ Matthew Barszcz

David A. Cortman Joshua D. Hershberger

Counsel for Plaintiff

I. Defendant Toni Ganzel

 Woods made the decision to ask

 Ganzel trusted Boland’s reporting

Action Primary Record: Action Discussed at: Toni M. Ganzel Response

 Ganzel testified that Boland “did

 Ganzel testified that performance

 Ganzel elected not to renew

 Josephson testified he was not aware of

II. Defendant Charles Woods

Action Primary Record: Action Discussed at: Charles R. Woods Response

 Woods, the Department Chair, met

 Woods told Josephson “that his

Action Primary Record: Action Discussed at: Charles R. Woods Response

 Woods was concerned that, “[i]f

Action Primary Record: Action Discussed at: Charles R. Woods Response

 Woods told Josephson “[y]ou are

Action Primary Record: Action Discussed at: Charles R. Woods Response

Action Primary Record: Action Discussed at: Charles R. Woods Response

 Woods requested that Josephson

Action Primary Record: Action Discussed at: Charles R. Woods Response

 These are Josephson’s notes from a

 Woods did not remove Josephson’s

Action Primary Record: Action Discussed at: Charles R. Woods Response

 Josephson testified that Woods

 Woods told Josephson “[w]hen you

Action Primary Record: Action Discussed at: Charles R. Woods Response

 Woods asked Josephson not to

 Woods’ schedule prevented him

Action Primary Record: Action Discussed at: Charles R. Woods Response

 Woods was the Chair of the

 Woods did not have the ability to

Action Primary Record: Action Discussed at: Charles R. Woods Response

III. Defendant Kimberly Boland

 Boland recommended not renewing

Action Primary Record: Action Discussed at: Kimberly A. Boland Response

 PageID 1849 is Josephson’s post hoc

Action Primary Record: Action Discussed at: Kimberly A. Boland Response

 PageID 1971 is a draft work

Action Primary Record: Action Discussed at: Kimberly A. Boland Response

 Joephson’s handwritten notes

Action Primary Record: Action Discussed at: Kimberly A. Boland Response

 Boland found a nonparty’s

Action Primary Record: Action Discussed at: Kimberly A. Boland Response

Action Primary Record: Action Discussed at: Kimberly A. Boland Response

Action Primary Record: Action Discussed at: Kimberly A. Boland Response

 Josephson testified that Boland did

 PageID 1877 is a November 3, 2017

Action Primary Record: Action Discussed at: Jennifer F. Le Response

 PageID 3730-31, 3734. Le testified

Action Primary Record: Action Discussed at: Jennifer F. Le Response

Action Primary Record: Action Discussed at: Jennifer F. Le Response

Action Primary Record: Action Discussed at: Jennifer F. Le Response

Action Primary Record: Action Discussed at: Jennifer F. Le Response

Action Primary Record: Action Discussed at: Jennifer F. Le Response