Norman-Bloodsaw v. Lawrence Berkeley Laboratory
| Decision Date | 03 February 1998 |
| Docket Number | NORMAN-BLOODSAW,No. 96-16526,RMAN-BLOODSAW,96-16526 |
| Citation | 135 F.3d 1260 |
| Parties | 75 Fair Empl.Prac.Cas. (BNA) 1695, 72 Empl. Prac. Dec. P 45,201, 123 Ed. Law Rep. 1116, 13 IER Cases 1121, 7 A.D. Cases 1395, 11 NDLR P 344, 98 Cal. Daily Op. Serv. 901, 98 Daily Journal D.A.R. 1215 Marya S.; Eulalio R. Fuentes; Vertis B. Ellis; Mark E. Covington; John D. Randolph; Adrienne L. Garcia; and Brendolyn B. Smith, Plaintiffs-Appellants, v. LAWRENCE BERKELEY LABORATORY; Charles V. Shank, Director of Lawrence Berkeley Laboratory; Henry H. Stauffer, M.D.; Lisa Snow, M.D.; T.F. Budinger, M.D.; William G. Donald, Jr., M.D.; Federico Pena, Secretary of the Department of Energy; * ; and The Regents Of the University of California, a non-profit public corporation, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Vicki Laden, Claudia Center, Jennifer Middleton, and William C. McNeill, III, Employment Law Center, San Francisco, California, for plaintiffs-appellants.
Douglas H. Barton, Hanson, Bridgett, Marcus, Vlahos & Rudy, San Francisco, California, for defendants-appellees Lawrence Berkeley Laboratory and The Regents of the University of California.
Sushma Soni, United States Department of Justice, Washington, DC, for defendant-appellee Federico Pena.
Craig M. Cornish, Cornish and Dell-Olio, Colorado Springs, Colorado, Lewis L. Maltby, Rebecca Kramnick, ACLU, New York City, for amicus curiae National Employment Lawyers Association, The American Civil Liberties Union, and the American Public Health Association.
Michael Avery, Theresa Finn Dever, Jerry Cohen, Perkins, Smith & Cohen, Boston, Massachusetts, for amicus curiae Council for Responsible Genetics.
Michael Harris, Nancy M. Stuart, San Francisco, California, for amicus curiae Lawyers' Committee for Civil Rights.
Appeal from the United States District Court for the Northern District of California; Vaughn R. Walker, District Judge, Presiding. D.C. No. CV-95-03220-VRW.
Before: REINHARDT, T.G. NELSON, and HAWKINS, Circuit Judges.
This appeal involves the question whether a clerical or administrative worker who undergoes a general employee health examination may, without his knowledge, be tested for highly private and sensitive medical and genetic information such as syphilis, sickle cell trait, and pregnancy.
Lawrence Berkeley Laboratory is a research institution jointly operated by state and federal agencies. Plaintiffs-appellants, present and former employees of Lawrence, allege that in the course of their mandatory employment entrance examinations and on subsequent occasions, Lawrence, without their knowledge or consent, tested their blood and urine for intimate medical conditions--namely, syphilis, sickle cell trait, and pregnancy. Their complaint asserts that this testing violated Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (ADA), and their right to privacy as guaranteed by both the United States and State of California Constitutions. The district court granted the defendants-appellees' motions for dismissal, judgment on the pleadings, and summary judgment on all of plaintiffs-appellants' claims. We affirm as to the ADA claims, but reverse as to the Title VII and state and federal privacy claims.
Plaintiffs Marya S. Norman-Bloodsaw, Eulalio R. Fuentes, Vertis B. Ellis, Mark E. Covington, John D. Randolph, Adrienne L. Garcia, and Brendolyn B. Smith are current and former administrative and clerical employees of defendant Lawrence Berkeley Laboratory ("Lawrence"), a research facility operated by the appellee Regents of the University of California pursuant to a contract with the United States Department of Energy (the Department). Defendant Charles V. Shank is the director of Lawrence, and defendants Henry H. Stauffer, Lisa Snow, T.F. Budinger, and William G. Donald, Jr., are all current or former physicians in its medical department. The named defendants are sued in both their official and individual capacities. 1
The Department requires federal contractors such as Lawrence to establish an occupational medical program. Since 1981, it has required its contractors to perform "preplacement examinations" of employees as part of this program, and until 1995, it also required its contractors to offer their employees the option of subsequent "periodic health examinations." The mandatory preplacement examination occurs after the offer of employment but prior to the assumption of job duties. The Department actively oversees Lawrence's occupational health program, and, prior to 1992, specifically required syphilis testing as part of the preplacement examination.
With the exception of Ellis, who was hired in 1968 and underwent an examination after beginning employment, each of the plaintiffs received written offers of employment expressly conditioned upon a "medical examination," "medical approval," or "health evaluation." All accepted these offers and underwent preplacement examinations, and Randolph and Smith underwent subsequent examinations as well. 2 In the course of these examinations, plaintiffs completed medical history questionnaires and provided blood and urine samples. The questionnaires asked, inter alia, whether the patient had ever had any of sixty-one medical conditions, including "[s]ickle cell anemia," 3 "[v]enereal disease," and, in the case of women, "[m]enstrual disorders." 4
The blood and urine samples given by all employees during their preplacement examinations were tested for syphilis; in addition, certain samples were tested for sickle cell trait; and certain samples were tested for pregnancy. Lawrence discontinued syphilis testing in April 1993, pregnancy testing in December 1994, and sickle cell trait testing in June 1995. Defendants assert that they discontinued syphilis testing because of its limited usefulness in screening healthy populations, and that they discontinued sickle cell trait testing because, by that time, most African-American adults had already been tested at birth. Lawrence continues to perform pregnancy testing, but only on an optional basis. Defendants further contend that "for many years" signs posted in the health examination rooms and "more recently" in the reception area stated that the tests at issue would be administered.
Following receipt of a right-to-sue letter from the EEOC, plaintiffs filed suit in September 1995 on behalf of all past and present Lawrence employees who have ever been subjected to the medical tests at issue. Plaintiffs allege that the testing of their blood and urine samples for syphilis, sickle cell trait, and pregnancy occurred without their knowledge or consent, and without any subsequent notification that the tests had been conducted. They also allege that only black employees were tested for sickle cell trait and assert the obvious fact that only female employees were tested for pregnancy. 5 Finally, they allege that Lawrence failed to provide safeguards to prevent the dissemination of the test results. They contend that they did not discover that the disputed tests had been conducted until approximately January 1995, and specifically deny that they observed any signs indicating that such tests would be performed. Plaintiffs do not allege that the defendants took any subsequent employment-related action on the basis of their test results, or that their test results have been disclosed to third parties.
On the basis of these factual allegations, plaintiffs contend that the defendants violated the ADA by requiring, encouraging, or assisting in medical testing that was neither job-related nor consistent with business necessity. Second, they contend that the defendants violated the federal constitutional right to privacy by conducting the testing at issue, collecting and maintaining the results of the testing, and failing to provide adequate safeguards against disclosure of the results. Third, they contend that the testing violated their right to privacy under Article I, § 1 of the California Constitution. Finally, plaintiffs contend that Lawrence and the Regents violated Title VII by singling out black employees for sickle cell trait testing and by performing pregnancy testing on female employees generally.
The state defendants moved for judgment on the pleadings or, in the alternative, for summary judgment. The sole federal defendant (the "Secretary"), then-Secretary of Energy Hazel O'Leary, moved to dismiss the various claims against her for lack of subject matter jurisdiction and for failure to state a claim. Turning first to the ADA claims, 6 the district court reasoned that because the medical questionnaires inquired into information such as venereal disease and reproductive status, plaintiffs were on notice at the time of their examinations that Lawrence was engaging in medical inquiries that were neither job-related nor consistent with business necessity. Thus, given that the most recent examination occurred over two years before the filing of the complaint, the district court held that all of the ADA claims were time-barred. It also rejected the argument that storage of the test results constitutes a "continuing violation" of the ADA that tolls the limitations period.
The district court next concluded that the federal privacy claims were also time-barred and, in the alternative, failed on the merits. On the grounds that the tests were "part of a comprehensive medical examination to which plaintiffs had consented," and that plaintiffs had completed a medical history form of "highly personal questions" that included inquiries concerning "venereal disease," "sickle cell anemia," and "menstrual problems," it concluded that plaintiffs were aware at the time of their examinations "of sufficient facts to put them on notice" that their blood and urine would be tested for syphilis, sickle cell trait, and pregnancy, and that their claims were thus time-barred....
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