A hospital lawfully terminated an employee for improperly accessing a co-worker’s lab results and refusing to admit to doing so, a federal district court in Mississippi has found in Cosby v. Vicksburg Healthcare, LLC D/B/A River Region Medical Center, et al., No. 5:11cv159-KS-MTP (S.D. Miss. May 16, 2013), rejecting the former employee’s claim of discrimination.  

The hospital found that six employees had accessed a co-worker’s medical record without a valid reason, in violation of the Health Insurance Portability and Accountability Act (“HIPAA”).  Four of the employees who admitted doing so were disciplined, but not discharged, while the plaintiff and the remaining employee, who both denied accessing the medical record, were dismissed.  The plaintiff sued, alleging that her termination constituted race and age discrimination, and was in retaliation for exercising her right to complain about unlawful actions under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (the “ADEA”) and the Family and Medical Leave Act (the “FMLA”).  She also alleged various state law claims.

The court dismissed the race and age discrimination claims.  It concluded that the plaintiff’s termination for violating HIPAA and refusing to admit doing so was legitimate and nondiscriminatory.  The court also found the plaintiff failed to show that this was a pretext for the alleged discrimination, noting the hospital retained employees who were older than the plaintiff and who had admitted their offense, terminated her co-worker who was of a different race for the same offense, and replaced the plaintiff with a person of the same race and approximate age.  The court also found that the lab results to which the plaintiff had access were protected under HIPAA, rejecting her efforts to distinguish herself from the other employees who were disciplined and could access broader health information.  At most, the court concluded, this might suggest an error in terminating her, but it was insufficient to defeat the hospital’s summary judgment motion.  It was not the court’s province to second guess an employer’s non-discriminatory business decision.

The court also dismissed the various retaliation claims because the plaintiff failed to show she referenced race in any complaint to the hospital before her termination, provided no evidence of retaliation under the ADEA, and could not show a causal link between her termination and the alleged protected activity under the FMLA.  All of the plaintiff’s state court claims were dismissed also.

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Photo of Michael R. Bertoncini Michael R. Bertoncini

Michael R. Bertoncini is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He practices labor and employment law, with a particular emphasis on labor relations, employment law counseling and litigation, and data privacy and security law.

In labor relations matters…

Michael R. Bertoncini is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He practices labor and employment law, with a particular emphasis on labor relations, employment law counseling and litigation, and data privacy and security law.

In labor relations matters, he regularly counsels clients on the practice of positive employee relations, negotiates collective bargaining agreements on behalf of organized clients, represents clients in labor arbitrations and National Labor Relations Board proceedings, and counsels clients with respect to rights and obligations under collective bargaining agreements and applicable labor and employment laws. He also has extensive experience in advising organizations responding to corporate campaigns and negotiating neutrality agreements.

Mr. Bertoncini’s privacy and data security practice focuses on advising clients on complying with HIPAA and other state and federal privacy and data security laws. He regularly reviews and develops policies and procedures, written information security plans and integrated compliance programs to assist clients in meeting their obligations under privacy and data security laws. Mr. Bertoncini has represented clients in investigations of alleged data breaches and advises them on their reporting obligations in the event of a data breach. He also conducts workplace training programs on HIPAA compliance and related privacy and data security topics.

Before joining Jackson Lewis, Mr. Bertoncini was Deputy General Counsel for a hospital system that is the largest fully integrated community care organization in New England. He was responsible for all of the system’s labor and employment law matters, and was involved in its acquisition by a private equity firm as well as its growth from six to ten hospitals in a twelve-month period. His three years as in-house counsel for this large health care system give Mr. Bertoncini a keen understanding of the impact of labor and employment law issues on clients’ business operations.

In addition to his labor relations and privacy experience, Mr. Bertoncini has extensive experience in conducting internal investigations and counseling clients on whistleblower and retaliation matters, as well as negotiating executive agreements, both employment and separation agreements. Mr. Bertoncini also represents clients in the litigation of employment matters. His litigation experience includes matters before federal and state courts and administrative agencies. He has appeared before United States Courts of Appeals and District Courts, Massachusetts and New York state courts, the Equal Employment Opportunity Commission, and the Massachusetts Commission Against Discrimination.

Mr. Bertoncini is a frequent speaker and trainer on labor and employment law topics for various organizations including Massachusetts Continuing Legal Education, Council on Education in Management, Lorman Education Services, the Boston Bar Association, and several chambers of commerce.

While attending Boston College, he received the John A. McCarthy, SJ Award for the most distinguished Scholar of the College thesis.