Health Law Daily Termination was for violating HIPAA, not age discrimination
Tuesday, June 18, 2019

Termination was for violating HIPAA, not age discrimination

By Jeffrey H. Brochin, J.D.

Summary judgment properly entered for employer on employee’s age discrimination claims because she failed to state a prima facie case under ADEA or PHRA, and hospital’s reason for termination was not pretextual.

A federal appeals court has affirmed the district court’s entry of summary judgment in favor of a Pennsylvania hospital in a complaint brought by a terminated employee under the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. §§ 621–634, the Pennsylvania Human Relations Act (PHRA), 43 Pa. Stat. Ann. §§ 951–963, and the retaliation provisions of Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. §§ 2000e to 2000e-17. Enforcement of the hospital’s Health Insurance Portability and Accountability Act of 1996 (HIPAA) policy was the legitimate reason for the discharge and not age discrimination (Kopko v. Lehigh Valley Health Network, June 14, 2019, Greenaway, JR.).

Disclosure of medical data. The employee became a case manager for Lehigh Valley Hospital (LVH) in 2005, and while in that position in 2009, she received a phone call from her cousin, asking the employee to provide a referral for a specialist to treat the cousin’s co-worker who had been a patient at LVH several months earlier. Although the cousin said that the former patient knew about the call, the employee never asked whether the patient had expressly authorized their speaking about her medical condition. Nevertheless, during the call, the employee accessed the patient’s electronic health records, including her laboratory blood tests, medical imaging results, medical history, physicals, and operative reports, and, she provided her cousin with the name of a specialist physician based on her own judgment.

HIPAA violation. Less than a week later, the patient emailed the cousin, thanking her for obtaining the referral but voicing her unease with her private health records having been accessed. A few days later, the patient lodged a formal complaint with LVH, and a subsequent internal investigation by information technology security and compliance teams revealed that it was the employee who had accessed the medical records. LVH representatives, including a HIPAA compliance officer, met with the employee in mid-May of 2009, and when she admitted to giving out the medical information—but later claimed she only accessed it and did not disclose it—she was terminated for violating HIPAA. She was 47 years old at the time.

Discrimination charges filed. The employee filed charges of employment discrimination with the Pennsylvania Human Relations Commission (PHRC), and the federal Equal Employment Opportunity Commission (EEOC), alleging that LVH discriminated against employees like her who were over the age of 40 and discriminated against patients of protected classes—namely, minorities, the elderly, and the disabled. She also alleged retaliation by LVH for her opposition to the hospital’s discrimination against patients of protected classes. The EEOC issued her a right-to-sue letter, and she filed the instant lawsuit on February 28, 2014.

Her amended complaint asserted four counts against LVH: (1) age discrimination under the ADEA; (2) age discrimination under the PHRA; (3) retaliation under Title VII; and, (4) retaliation under the PHRA. The district court granted LVH’s motion to dismiss, and the employee appealed.

Failure to exhaust PHRA administrative remedies. The court first examined the employee’s age retaliation claim and noted that her administrative charge did not include any mention of her opposition to age discrimination that could have resulted in LVH’s retaliating against her. Therefore, her allegation of discrimination in the administrative charge did not also per se exhaust a retaliation claim. Her claims of age retaliation were not reasonably related to her claims of age discrimination or public-accommodation retaliation, and the administrative charge lacked any allegation that she opposed age discrimination against LVH’s employees. Accordingly, she failed to exhaust her administrative remedies on her claim for age retaliation under the PHRA, because the facts underpinning that claim were not fairly within the scope of an investigation arising out of her administrative charge.

Similarly, the appeals court agreed with the district court’s dismissal of the ADEA claim, finding that the employee had also failed to exhaust her administrative remedies; and, lastly, the same reasoning was applied in dismissing her Title VII retaliation claim.

For the foregoing reasons, the appeals court affirmed the motion to dismiss the case.

The case is No. 18-1127.

Attorneys: Fredrick E. Charles (Fredrick E. Charles, Attorney at Law) for Patti Kopko. Darren M. Creasy (Post & Schell, P.C.) for Lehigh Valley Health Network Inc. and Lehigh Valley Hospital.

Companies: Lehigh Valley Health Network Inc.; Lehigh Valley Hospital

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