PHILADELPHIA – A prominent Philadelphia plaintiffs’ law firm has moved to dismiss litigation from one of its former paralegals, who alleged the firm disclosed her COVID-19 vaccination status to a legal news publication in violation of the confidentiality provisions of the Americans with Disabilities Act of 1990.
Desiree Purvenas-Hayes of Mickleton, N.J. first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on June 22 versus Saltz Mongeluzzi & Bendesky, of Philadelphia.
“Plaintiff was employed as a litigation paralegal for respondents from January of 2012 through July 29, 2021. During her employment, defendant required plaintiff to provide it with certain confidential medical information, including her COVID-19 vaccination status, in response to a medical inquiry from defendant,” the suit said.
“Plaintiff provided the foregoing information as required by defendant. The foregoing information was specifically solicited by defendant and would not have been provided by plaintiff but for that fact.”
The suit added that on June 7, 2022, after leaving the defendant firm’s employ, Purvenas-Hayes filed a civil action in the U.S. District Court for the Eastern District of Pennsylvania, where she sought to recover unpaid overtime compensation.
“On or about June 12 or June 13, 2022, Robert Mongeluzzi, an agent and employee of defendant, made statements regarding the foregoing confidential medical information to The Legal Intelligencer (a Philadelphia legal newspaper read by over 14,000 members of the legal community daily),” the suit stated.
“Mongeluzzi stated that plaintiff was not vaccinated against the COVID-19 virus, and was one of two employees of defendant who allegedly refused the vaccination. The Legal Intelligencer reported the foregoing statements to the Philadelphia legal community on June 13, 2022, causing plaintiff tangible injury, including significant embarrassment, emotional distress, and pain and suffering.”
The plaintiff claimed that the aforementioned disclosure of confidential medical information by the defendant was in direct violation of the confidentiality requirements of the Americans with Disabilities Act, and that it was not protected by any of the three exemptions set forth in the Americans with Disabilities Act, allowing limited disclosure for the purpose of: (a) Informing supervisors of necessary restrictions or accommodations; (b) First aid or emergency treatment or (c) Response to government inquiries.
U.S. District Court for the Eastern District of Pennsylvania Judge Joshua D. Wolson issued an order on Aug. 21, that the suit would be dismissed against any defendant yet to be served with complaint after the next month passes.
“In accordance with Federal Rule of Civil Procedure 4(m), and following a review of the Court’s records which indicate that the plaintiff has not served the complaint on the defendant in this case, it is hereby ordered that the plaintiff must serve the complaint on defendant by Sept. 21, 2023. This order also serves as notice to the plaintiff, in accordance with Federal Rule of Civil Procedure 4(m), that if the plaintiff fails to file proof of service by Sept. 21, 2023, without showing good cause for such failure, the Court will dismiss without prejudice the case against any unserved defendant(s),” Wolson said.
UPDATE
The firm motioned to dismiss the case with prejudice on Sept. 26, arguing that just like the plaintiff’s first action against the firm, its allegations were insufficiently pled.
“First, the ADA protects individuals with disabilities – not all medical information. It is not a privacy statute, and it does not protect the confidentiality of all employee medical information. Indeed, not every comment about an employee’s health information or preferences implicates the ADA. The ADA protects only narrow categories of information learned through medical inquiries or examinations, which by statutory definition and case law relate to whether an employee is disabled or the severity or nature of an employee’s disability. Judge Robreno held that Mr. Mongeluzzi’s statement revealed a preference that is a matter of ‘politics or policy,’ not medical information. That should end the inquiry,” the defendant’s brief stated, in part.
“But even if Mr. Mongeluzzi’s statement had revealed medical information, it would not have revealed medical information protected by the ADA, because a comment about an employee’s desire to remain unvaccinated does not disclose medical information. Revealing that an individual ‘did not wish’ to be vaccinated has nothing at all to do with that individual’s health; an individual may not wish to be vaccinated because of religious reasons, political beliefs, doubts about the vaccine’s efficacy, distrust of pharmaceutical companies or the government, or infinite other reasons. That is why courts around the country have recognized that a disclosure of an employee’s vaccination status or preference is not protected by the statute. Second, while plaintiff claims that she has suffered emotional distress as a result of the article in the Intelligencer, her conclusory allegations do not reflect a tangible injury that would be necessary to state a claim under the ADA.”
For a count of violating the Americans with Disabilities Act of 1990, the plaintiff is seeking actual damages, as well as damages for the pain, suffering, and humiliation caused by the actions and/or inactions of defendant, punitive damages, all other legal, equitable or injunctive relief as the Court deems just and proper, costs and expenses of this action, reasonable attorneys’ fees and costs and a trial by jury.
The plaintiff is represented by Wayne A. Ely in Richboro.
The defendant is represented by Benjamin K. Jacobs, Michael L. Banks and Shane O’Halloran of Morgan Lewis & Bockius, in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania case 2:23-cv-02403
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com