United States District Court for the Northern District of Indiana

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Santa Clara University School of Law

UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF INDIANASOUTH BEND DIVISIONGEORGE SHOUN, ))Plaintiff ))vs. )   CAUSE NO. 3:14-CV-463 RLM)BEST FORMED PLASTICS, INC., ))Defendant )OPINION AND ORDERGeorge Shoun brought suit against his former employer, Best FormedPlastics, Inc., under the Americans With Disabilities Act, 42 U.S.C. §§12112(d)(3)(B), 12112(d)(3)(C), & 12112(d)(4)(C), alleging that Jane Stewart, actingon behalf of Best Formed Plastics, Inc., wrongfully disclosed confidentialinformation about his medical condition to other people via a post on Facebook.Mr. Shoun claims that action resulted in a loss of employment, impairment of hisearning capacity, emotional distress, humiliation, and mental pain and suffering.Best Formed Plastics has filed a motion to dismiss Mr. Shoun’s amendedcomplaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to statea claim and a motion asking the court to take judicial notice of certain state courtrecords. Both motions are ripe for review.FactsMr. Shoun alleges in his amended complaint that in March 20121 he fell andinjured his left shoulder while on the job at Best Formed Plastics and spentseveral months away from work recovering. Jane Stewart, who processed worker’scompensation claims for the company, prepared an accident report for theincident and notified the company’s insurer. Mr. Shoun says that between Marchand August 2012, Ms. Stewart monitored his medical treatment for the companyand so learned the nature and extent of his injury. Mr. Shoun maintains Ms.Stewart and Best Formed Plastics were obligated to treat his medical informationas confidential and refrain from disclosing the information to others as requiredby the confidentiality provisions of the ADA. Mr. Shoun reports that in February 2013, Ms. Stewart posted the followingon her Facebook page: “Isn’t [it] amazing how Jimmy experienced a 5 way heartbypass just one month ago and is back to work, especially when you considerGeorge Shoun’s shoulder injury kept him away from work for 11 months and nowhe is trying to sue us.” Mr. Shoun claims Ms. Stewart’s Facebook page is linkedto her business email address and available to the business communities innortheastern Indiana and southern Michigan. The quoted statement remained onMs. Stewart’s Facebook page for 76 days.Mr. Shoun asserts that Ms. Stewart’s posting of the statement was a“deliberate disclosure of [his] medical condition to other persons” in violation of1 The amended complaint mistakenly states that Mr. Shoun was injured in March 2013.2the ADA. Amd. Compl., ¶ 20. He claims, too, that Ms. Stewart “acted with theintent to expose him to public scorn and ridicule and to blacklist him amongprospective employers within her broad network.”  Amd. Compl., ¶ 21. Mr. Shounseeks compensatory and punitive damages, pre-judgment interest, attorney fees,and costs.Best Formed Plastics moves to dismiss Mr. Shoun’s complaint because,first, the company can’t be liable for violating the ADA’s confidentiality provisionswhen Mr. Shoun voluntarily disclosed his medical condition to the public and,second, Mr. Shoun hasn’t alleged any tangible injury that resulted from thealleged ADA violation. Motion to Dismiss StandardWhen considering a motion to dismiss under Federal Rule of Civil Procedure12(b)(6), the court must accept as true the factual allegations of the complaint anddraw all reasonable inferences in favor of the plaintiff without engaging in fact-finding.  Reynolds v. CB Sports Bar, Inc., 623 F.3d 1143, 1146 (7th Cir. 2010). “Tosurvive a motion to dismiss, a complaint must contain sufficient factual matter,accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroftv. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550U.S. 544, 570 (2007)). A claim is plausible if “the plaintiff pleads factual contentthat allows the court to draw the reasonable inference that the defendant is liablefor the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. at 678 (citing Bell Atlantic3Corp v. Twombly, 550 U.S. at 556). The allegations of the complaint “must beenough to raise a right to relief above the speculative level” and give the defendantfair notice of the claims being asserted and the grounds upon which they rest. BellAtlantic Corp. v. Twombly, 550 U.S. at 555.DiscussionSection 102 of the Americans With Disabilities Act provides that anyinformation relating to a medical condition of an employee obtained by anemployer during “voluntary medical examinations, including voluntary workhistories, which are part of an employee health program available to employees atthat work site,” 42 U.S.C. § 12112(d)(4)(B), must be “collected and maintained onseparate forms and in separate medical files and [be] treated as a confidentialmedical record.” 42 U.S.C. § 12112(d)(3)(B); see also 42 U.S.C. § 12112(d)(4)(C)(making requirements of 42 U.S.C. § 12112(d)(3)(B) applicable to 42 U.S.C. §12112(d)(4)(B)). To state a claim for violation of the ADA’s confidentialityprovisions, a plaintiff must allege that his employer obtained his medicalinformation through employment-related medical examinations and inquiries, theinformation obtained through such means was disclosed by the employer ratherthan treated as confidential (unless that information falls under one of theexceptions found in 42 U.S.C. § 12112(d)(3)(B)(i), (ii), (iii), none of which arealleged here), and he suffered a tangible injury as a result of the disclosure.4Franklin v. City of Slidell, 936 F. Supp. 2d 691, 711 (E.D. La. 2013); Flamberg v.Israel, No. 13-62698-CIV, 2014 WL 1600313, at *4 (S.D. Fla. Apr. 21, 2014). Best Formed Plastics argues that Mr. Shoun’s amended complaint shouldbe dismissed because Mr. Shoun voluntarily and publically disclosed his medicalcondition in the complaint he filed in the Elkhart Superior Court before Ms.Stewart’s alleged disclosure of that same information. The company asks the courtto take judicial notice of Mr. Shoun’s state court complaint, a request to which Mr.Shoun hasn’t objected. “Taking judicial notice of matters of public record need notconvert 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 reasonabledispute.” Ennenga v. Starns, 677 F.3d 766, 773-774 (7th Cir. 2012); see also FED.R. EVID. 201(b). Mr. Shoun’s complaint meets those requirements. Because thestate court complaint “is offered to show what was stated to the court rather[than] for the truth of the matter asserted,” Felty v. Driver Solutions, LLC, No. 13C 2818, 2013 WL 5835712, at *2 (N.D. Ill. Oct. 30, 2013) (internal quotation andcitation omitted), the court grants the motion to take judicial notice of Mr. Shoun’sElkhart Superior Court complaint.Best Formed Plastics notes that Mr. Shoun filed his state court complainton February 14, 2013 and Ms. Stewart posted her comment on her Facebook pagefive days after Mr. Shoun’s public disclosure of his medical condition. Thus, thecompany says, Mr. Shoun voluntarily publicized his medical condition outside thecontext of an authorized employment-related medical examination or inquiry prior5to Ms. Stewart’s Facebook comment, so Ms. Stewart’s alleged disclosure wasnothing more than a mere recitation of facts previously disclosed to the public byMr. Shoun. Best Formed Plastics concludes that based on Mr. Shoun’s voluntarydisclosure, the company can’t be liable for violating the ADA’s confidentialityprovisions, and Mr. Shoun isn’t entitled to the relief he seeks. The cases relied on by Best Formed Plastics support the company’sargument that an employee’s voluntary disclosure of medical information outsidethe context of an authorized employment-related medical examination or inquirycan render the confidentiality requirements of the ADA inapplicable to theemployer, but in those cases the plaintiff-employees volunteered their medicalinformation to their employer or a co-employee. See EEOC v. C.R. England, Inc.,644 F.3d 1028, 1048 (10th Cir. 2011) (confidentiality provisions of ADA notviolated because employee had “voluntarily disclosed to [employer’s humanresources manager] that he was HIV-positive”); Cash v. Smith, 231 F.3d 1301,1307 (11th Cir. 2000) (“[T]he disclosure that Cash complains of was not of theresult of an examination ordered by [his employer], but of a voluntary disclosurethat Cash made to Smith[, his supervisor].”); EEOC v. Thrivent Financial forLutherans, 795 F. Supp. 2d 840, 846 (E.D. Wis. 2011) (because employeevoluntarily disclosed his medical history to his managers, not in response to amedical inquiry, the information was not subject to ADA confidentialityrequirements); Kingston v. Ford Meter Box Co., Inc., No. 3:07-CV-270, 2009 WL981333, at *10-*11 (N.D. Ind. Apr. 10, 2009) (no violation of ADA confidentiality6provisions where plaintiff disclosed his medical condition to his supervisors whenhe wasn’t required to do so). Neither side has alleged or argued that Mr. Shoun voluntarily disclosed hismedical information to Ms. Stewart or anyone else at Best Formed Plastics;instead, Mr. Shoun alleges that Ms. Stewart acquired information about hismedical condition through an employment-related medical inquiry by thecompany and then wrongfully disclosed that information. Whether Ms. Stewartgained knowledge of Mr. Shoun’s medical condition solely within the context of hisemployment-related medical examination is a question of fact not appropriate forresolution in a motion to dismiss. See GT Performance Group, LLC v. Koyo USACorp., No. 4:12-cv-83, 2013 WL 4787329, at *4 (S.D. Ind. Sept. 6, 2013) (“Whenruling on a Rule 12(b)(6) motion to dismiss for failure to state a claim, . . . thecourt must only examine the complaint and not the merits of the lawsuit.”);Cannon v. Burge, No. 05 C 2192, 2006 WL 273544, at * 21 (N.D. Ill. Feb. 2, 2006)(“In deciding a motion to dismiss, . . . the court cannot weigh the facts.”). Mr.Shoun has set forth facts sufficient to allege a violation of the confidentialityprovisions of the ADA and the motion of Best Formed Plastics to dismiss for failureto state a claim will be denied.Best Formed Plastics also moves to dismiss the amended complaint basedon its claim that Mr. Shoun hasn’t alleged any tangible injury. The court can’tagree. Mr. Shoun has alleged that as a result of Ms. Stewart’s actions, “prospectiveemployers refused to hire him,” Amd Compl., ¶ 21, and he suffered emotional7injury, both of which have been recognized as tangible injuries under the ADA.See Griffin v. Steeltek, 160 F.3d 591, 595 (10th Cir. 1998) (denying dismissalbased on finding that plaintiff had “sufficiently alleged . . . an injury in fact,specifically that Steeltek did not hire [him] as a result of his responses to theimpermissible questions”); EEOC v. Ford Motor Credit Co., 531 F. Supp. 2d 930,942 (M.D. Tenn. 2008) (“The plaintiff has alleged . . . that Mr. Doe suffered shame,embarrassment, and depression as a result of the disclosure of his [medicalcondition] to his coworkers. These are tangible injuries.”); Green v. Joy Cone Co.,278 F. Supp. 2d 526, 537 (W.D. Pa. 2003) (“Injury-in-fact encompasses bothactual damages in the form of emotional, pecuniary, compensative, or otherwise,as well as the presence of a continuing illegal practice.”). Dismissal on this basisis inappropriate.Based on the foregoing, the court GRANTS the renewed motion to takejudicial notice [docket # 13] and DENIES the motion to dismiss the amendedcomplaint [docket #14].SO ORDERED.8ENTERED:     June 23, 2014       /s/ Robert L. Miller, Jr.                      Judge, United States District Court9General InformationCourt United States District Court for the Northern District of IndianaNature of Suit Civil Rights: Americans with Disabilities - EmploymentDocket Number 3:14-cv-00463Shoun v. Best Formed Plastics Inc, Docket No. 3:14-cv-00463 (N.D. Ind. Mar 11, 2014), Court Docket© 2014 The Bureau of National Affairs, Inc. All Rights Reserved. Terms of Service   // PAGE 10

Shoun v. Best Formed Plastics

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Shoun v. Best Formed Plastics

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