Pettus v. Cole

• Decision Date: 12 September 1996
• Docket Number: A061485,Nos. A060253,s. A060253
• Citation: 49 Cal.App.4th 402,57 Cal.Rptr.2d 46
• Court: California Court of Appeals Court of Appeals
• Parties: , 65 USLW 2240, 61 Cal. Comp. Cases 975, 12 IER Cases 74, 96 Cal. Daily Op. Serv. 6906, 96 Daily Journal D.A.R. 11,263 Louis PETTUS, Plaintiff and Appellant, v. Alan R. COLE et al., Defendants and Respondents. Louis PETTUS, Plaintiff and Appellant, v. E.I. DU PONT DE NEMOURS & COMPANY, INC., Defendant and Respondent.

Page 46

57 Cal.Rptr.2d 46

49 Cal.App.4th 402, 65 USLW 2240, 61 Cal. Comp. Cases 975,

12 IER Cases 74, 96 Cal. Daily Op. Serv. 6906,

96 Daily Journal D.A.R. 11,263

Louis PETTUS, Plaintiff and Appellant, v. Alan R. COLE et al., Defendants and Respondents.

Louis PETTUS, Plaintiff and Appellant, v. E.I. DU PONT DE NEMOURS & COMPANY, INC., Defendant and Respondent.

Nos. A060253, A061485.

Court of Appeal, First District, Division 2, California.

Sept. 12, 1996.

As Modified on Denial of Rehearing

Oct. 15, 1996.

Review Denied Dec. 23, 1996.

Darryl Parker, Fairfield, for Plaintiff and Appellant.

Renee A. Richards, Thomas F. Kopshever, Hassard, Bonnington, Rogers & Huber, San Francisco, for Defendant and Respondent Kathleen Bell Unger, M.D.

William E. Hickman, Jeanne M. Samuels, Arnelle, Hastie, McGee, Willis & Greene, San

Francisco, for Defendant and Respondent E.I. du Pont de Nemours & Company, Inc.

Michael J. Fitzsimons, O'Connor, Cohn, Dillon & Barr, San Francisco, for Defendant and Respondent Alan R. Cole, M.D.

PHELAN, Associate Justice. ^*

In the first of these consolidated cases, appellant Louis Pettus (Pettus) timely appeals from a final judgment entered in favor of two psychiatrists, respondents Dr. Kathleen Bell Unger and Dr. Alan Cole, as to his claims of unauthorized release of medical information in violation of the Confidentiality of Medical Information Act (Civ.Code, § 56 et seq. [hereinafter the CMIA or the Act] ), ¹ and invasion of his constitutional right of privacy (Cal. Const., art. I, § 1). ² At the close of Pettus's case-in-chief in a bench trial, the court granted Drs. Unger's and Cole's motions for judgment pursuant to Code of Civil Procedure section 631.8.

In the second case, Pettus seeks review of the court's judgment in favor of his employer, respondent E.I. du Pont de Nemours & Co., Inc. (hereinafter Du Pont), on claims of breach of contract, wrongful termination in violation of public policy, unauthorized use of medical information, and invasion of his constitutional right of privacy. ³ The court denied Du Pont's motion pursuant to Code of Civil Procedure section 631.8 at the close of plaintiff's evidence, but found against plaintiff on all claims following Du Pont's presentation of its case-in-chief.

The issues presented in these consolidated appeals include: (1) Whether and to what extent medical information compiled during the psychiatric examination of an employee may be disclosed to the employer by a psychiatrist without employee authorization or consent, where the employee has requested leave from work because of a stress-related disability, the examination is required under the employer's short-term disability policy, and the examination has been arranged and paid for by the employer; and (2) Whether discharging the same employee for refusal to comply with his employer's demand that he enroll in an inpatient alcohol rehabilitation program constitutes a violation of the employee's state constitutional right to privacy (Cal. Const., art. I, § 1) and/or wrongful termination in violation of public policy.

We conclude as a matter of law that Drs. Cole and Unger violated the CMIA by providing Du Pont a detailed report of their psychiatric examinations of Pettus without a specific written authorization for such disclosure. As to his claim under article I, section 1 of the California Constitution, we conclude that Pettus made a prima facie showing of invasion of privacy by the psychiatrists but, based on evidence presented by Du Pont in its defense case, there is a serious question whether Pettus waived this claim by voluntarily disclosing to his supervisors at Du Pont much of the sensitive personal information that was subsequently transmitted in the psychiatrists' reports. We will, therefore, remand for further evidentiary proceedings so that Drs. Cole and Unger may have an opportunity to present a defense to that claim.

As to Pettus's claims against his former employer, we conclude that Du Pont violated both the CMIA and Pettus's state constitutional rights to autonomy and informational privacy when it terminated his employment because of his refusal to comply with its demand that he enroll in an inpatient alcohol treatment program. Accordingly, we will reverse the judgment of the trial court as to all respondents and remand for further proceedings consistent with this opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Introduction.

The material facts of this case are essentially undisputed. Appellant Louis Pettus had been working for Du Pont for 22 years when, in June 1988, he sought to take time off from work because he was suffering from a disabling stress-related condition. Before requesting disability leave, Pettus sought medical help for his stress condition from his personal physician and from an out-patient psychological counseling program at the Sierra Clinic. Both recommended to Du Pont that Pettus's stress condition warranted a disability leave.

Under Du Pont's short-term disability leave policy, Pettus was required to submit to examination by a Du Pont-selected doctor for verification of his need for disability leave. The policy provided for up to six months leave, with pay, for non-occupational illnesses or injuries. Du Pont was "self-insured" for purposes of its short-term disability leave policy.

In the course of having his disability verified, Pettus submitted to three medical examinations arranged and paid for by Du Pont. The first examination was with Dr. Collins, a physician under contract with Du Pont to provide general medical services for Du Pont employees. Dr. Collins verified Pettus's stress condition, and his need for time off, but believed a psychiatric evaluation was necessary. She recommended to Du Pont that Pettus should see Dr. Cole. The second examination was a psychiatric evaluation conducted by Dr. Cole. Dr. Cole verified appellant's stress condition and agreed that appellant had a legitimate medical need for time off work. Finally, Pettus underwent another psychiatric evaluation by Dr. Unger. Du Pont arranged for Pettus to see Dr. Unger after Dr. Cole reported that Pettus's stress condition might be linked to an alcohol abuse problem. Dr. Cole recommended Dr. Unger to Du Pont because she is a specialist in chemical dependency cases.

Pettus was terminated from his job at Du Pont on September 21, 1988, because he refused to enter a 30-day inpatient alcohol rehabilitation program that Du Pont required as a condition of continued employment. Pettus's alcohol consumption became a matter of concern to Du Pont when Drs. Cole and Unger disclosed to Du Pont in their disability evaluation reports that his stress condition might be caused or exacerbated by misuse of alcohol. However, the trial court specifically found that, "From all the evidence it is undisputed that plaintiff was not at any time an alcoholic, nor perhaps even an alcohol abuser in the more common lay use of the word." Drs. Unger and Cole also disclosed in their reports to Du Pont that Pettus believed his employers were racist, and that he had violent thoughts regarding a coworker. Pettus contends that he did not authorize the doctors to disclose the full contents of their evaluations to Du Pont, and that the unauthorized release of such information to his supervisors, and the subsequent use of that information as the basis for terminating his employment, violated the CMIA and his state constitutional right to privacy.

B. Pettus's Employment History With Du Pont.

Pettus is a 52-year-old African-American who began employment with Du Pont in a South San Francisco plant as a laborer in 1966. Between 1966 and 1976, he rose through the ranks and became a first-line supervisor in various departments at the plant. When this plant was closed in 1982, Pettus was transferred to another in Flint, Michigan, where he retained his position as a supervisor. Shortly after arriving in Flint in November 1982, Pettus began to perceive that he was being harassed and discriminated against by his supervisor, Norman Conn. Pettus believed this was the result of his dating a White woman in whom Mr. Conn, who was White, also had a romantic interest. Pettus developed symptoms of severe emotional distress as a result of this perceived racially-based harassment, including a rash for which he sought medical treatment.

In April 1984, Mr. Conn informed Pettus that he would be fired. There was conflicting testimony about Pettus's performance at Flint. Pettus testified that to his knowledge he had performed well. Other evidence presented at trial indicated that he had received "generally favorable" performance evaluations during his first year in Flint. However, there was also testimony that Pettus's shift had received several customer complaints during the last three or four months of his employment at the Flint plant, and that Pettus was criticized for failure to prepare an incident report, for miscommunication of shift changes, for poor preparation of meeting notes, and for time card errors. To avoid termination, Pettus transferred to a position as a warehouse operator in a Du Pont warehouse in Los Angeles, incurring a 50 percent reduction in salary. ⁴

Pettus believed that upon transferring to Los Angeles he would be given a position comparable to the one he held in Flint, and he became increasingly frustrated when this opportunity did not materialize. He continued to be bothered by the poor treatment he believed he had received in Flint. His physical and emotional problems returned: stress, skin rash and--for the first time--high blood pressure.

In July 1987, at his request, Pettus transferred to a Du Pont automotive finishing plant in Hayward, California. He was initially employed as a warehouse worker, but in December 1987 he was given the chance to move up to a position as a sales assistant. The position never became permanent because he was not able to master the computer skills required for...