About Us  |  About Cheetah®  |  Contact Us

Facebook post revealing employee’s medical condition may support ADA claim

By Kathleen Kapusta, J.D.

An employee’s allegations that his employer violated the ADA’s confidentiality provisions when a coworker, acting on behalf of the company, posted information on Facebook about his medical condition were sufficient to survive dismissal, a federal district court in Indiana ruled. Although the employer insisted that it could not be liable because he voluntarily and publicly disclosed his condition in a lawsuit filed five days before the coworker’s post, the court found that whether she gained knowledge of his medical condition solely within the context of his employment-related medical examination was a question of fact not appropriate for resolution in a motion to dismiss (Shoun v Best Formed Plastics, Inc, June 23, 2014, Miller, R).

Another post, another lawsuit. After the employee injured his shoulder at work, his coworker, who processed workers’ comp claims for the company, prepared an accident report, notified the insurer, and monitored his medical treatment. About a year later, he sued the company in state court. Five days after he filed his lawsuit, the coworker made the following post on her Facebook page: “Isn’t [it] amazing how Jimmy experienced a 5 way heart bypass just one month ago and is back to work, especially when you consider [the employee’s] shoulder injury kept him away from work for 11 months and now he is trying to sue us.”

The post remained on her Facebook page for 76 days. In addition, the employee asserted that the coworker’s Facebook page was linked to her business email address and was available to a large number of business communities. Alleging that she “acted with the intent to expose him to public scorn and ridicule and to blacklist him among prospective employers within her broad network,” the employee asserted a claim for wrongful disclosure of his medical information in violation of the ADA.

Judicial notice of complaint. In moving to dismiss the employee’s ADA claim, the employer asked the court to take judicial notice of his state court complaint. Noting that taking judicial notice of matters of public record does not necessarily convert a motion to dismiss into a motion for summary judgment if the facts are “readily ascertainable from the public court record and not subject to reasonable dispute,” the court found that the state court complaint met those requirements; accordingly, it granted the motion to take judicial notice of the complaint.

But he disclosed first. The employer then argued that because the employee’s state court complaint was filed before the coworker’s post, he voluntarily publicized his medical condition outside the context of an authorized employment-related medical exam or inquiry prior to her comment; thus, her alleged disclosure was “nothing more than a mere recitation of facts previously disclosed to the public” by the employee. Although the cases relied upon by the employer supported its argument that an employee’s voluntary disclosure of medical information outside the context of an authorized employment-related medical examination or inquiry can render the confidentiality requirements of the ADA inapplicable to the employer, the court pointed out that in those cases the employees volunteered their medical information to their employer or a co-employee.

Here, the court observed, neither side alleged or argued that the employee voluntarily disclosed his medical information to his coworker or anyone else at the company; rather, he alleged that she acquired information about his medical condition through an employment-related medical inquiry by the company and then wrongfully disclosed that information. This, the court stated, was a question of fact not appropriate for resolution on a motion to dismiss.

What injury? The employer also contended that the employee failed to allege any tangible injury. The court disagreed. Rather, he alleged that as a result of her actions, prospective employers refused to hire him and he suffered emotional injury, both of which have been recognized as tangible injuries under the ADA. Accordingly, the court denied the employer’s motion to dismiss.