PHILADELPHIA – A prominent Philadelphia plaintiffs’ law firm has answered and denied claims made by 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, 2023 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.
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.”
In a Dec. 15 memorandum opinion, U.S. District Court for the Eastern District of Pennsylvania Judge Joshua D. Wolson ruled that proper interpretation of the ADA ensured the case would move forward, thus turning away the firm’s dismissal motion.
“Judges presume that Congress chooses its words carefully. So, when Congress uses one set of words in one paragraph of a statute but different words in a different part of the same statutory paragraph, I assume that Congress intended there to be a difference. The ADA is one example of this principle. In one sub-paragraph of the ADA, Congress forbids employers from making ‘inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability. In the very next sub-paragraph, Congress permits employers to ‘make inquiries into the ability of an employee to perform job-related functions,” Wolson said.
“By choosing to put different limits on the word ‘inquiry’ in the two sub-paragraphs, Congress indicated its intent that the covered inquiries are different in each sub-paragraph. And that difference is key in this case because it permits Desiree Purvenas-Hayes to pursue her claim of confidential medical information disclosure against her former employer Saltz Mongeluzzi & Bendesky, P.C.”
Wolson explained when Saltz Mongeluzzi & Bendesky inquired as to the plaintiff’s vaccination status, they were asking her to reveal medical information that, once they received it, should have been kept confidential.
“SMB’s arguments to the contrary can’t overcome this simple fact. Much of SMB’s argument about confidentiality obligations rests on the faulty premise that only disability-related inquiries could yield information to which the confidentiality obligations apply. But, as I’ve already discussed, sub-paragraph (B) permits inquiries beyond those that are disability-related, and sub-paragraph (C)’s confidentiality obligation covers medical information obtained from any of those inquiries. SMB also makes arguments about legislative intent and notes that SMB’s disclosure did not cause a disability-related stigma. But that’s beside the point because the confidentiality obligation goes beyond disclosures of disability-related information. Speculation about Congressional intent – even well-founded speculation – cannot vary the meaning of the statute,” Wolson stated.
“SMB also argues that it did not disclose Ms. Purvenas-Hayes’s health information, only information about her political views. At this stage of the proceedings, I disagree. I must draw all reasonable inferences in favor of Ms. Purvenas-Hayes. When Mr. Mongeluzzi told The Legal Intelligencer that Ms. Purvenas-Hayes did not wish to be vaccinated, it is reasonable to infer that he was disclosing that she wasn’t vaccinated, rather than just her esoteric preference. And the fact of her vaccination or non-vaccination is health information, not just a personal political view.”
Wolson added the plaintiff “has alleged a tangible injury, and that’s sufficient at this stage in the case.”
“Congress has spoken, and it said in the ADA that employers have to keep confidential all medical information that they obtain when making inquiries about an employee’s ability to perform a job. SMB made such an inquiry, got medical information from Ms. Purvenas-Hayes, and disclosed it. Ms. Purvenas-Hayes can pursue her lawsuit about that disclosure,” Wolson said.
UPDATE
Following Wolson’s ruling, Saltz Mongeluzzi & Bendesky answered the suit on Jan. 12 and denied that it violated the ADA, denied that it harmed the plaintiff and denied that it caused her tangible injury.
“SMB admits only that, on or about June 12 or 13, 2022, Mr. Mongeluzzi spoke to The Legal Intelligencer about plaintiff’s voluntary decision to leave her employment. It is denied that Mr. Mongeluzzi made statements regarding any confidential medical information regarding plaintiff. Mr. Mongeluzzi had no confidential medical information about plaintiff and never disclosed any confidential medical information about plaintiff. SMB lacks information sufficient to form a belief as to the allegations…to the readership of The Legal Intelligencer and therefore denies the same,” the answer stated, in part.
“SMB denies the remaining allegations…and specifically denies that (a) Mr. Mongeluzzi’s statements to The Legal Intelligencer disclosed confidential medical information and (b) that plaintiff has accurately characterized Mr. Mongeluzzi’s statements to The Legal Intelligencer.”
Seven affirmative defenses were also presented in the answer to the suit.
“Plaintiff fails to state a claim on which relief can be granted. Plaintiff cannot establish that SMB’s alleged disclosure of information relating to plaintiff was a knowing, willful and/or intentional violation of law. SMB has at all times acted in good faith and has had reasonable grounds for believing that any alleged acts and omissions were not violations of applicable law. Plaintiff did not disclose her COVID-19 vaccination status to SMB as a result of a medical inquiry. Any information plaintiff disclosed to SMB regarding her COVID-19 vaccination status was not confidential. Plaintiff has not suffered any tangible injury. Plaintiff is not entitled, on the law or the facts, to any of the damages claimed, including, but not limited to, punitive damages,” the defenses said.
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