10th Circuit Rules Denver Fire Officer Did Not Violate ADA Confidentiality

The 10th US Circuit Court of Appeals has upheld a ruling that a Denver Fire Department captain did not violate the Americans With Disabilities Act by informing firefighters that a colleague was suffering from PTSD. The decision handed down on February 7, 2018 upheld on narrow factual grounds a US District Court ruling in favor of the fire department in an action filed in 2015 by Firefighter David Perez.

The 10th Circuit’s decision is well written, easily understood, and is best explained using the court’s own words:

  • Perez is a Marine veteran who served eight years of active duty, including two combat deployments in Iraq as part of Operation Iraqi Freedom. After being honorably discharged, he sought treatment with the Department of Veterans Affairs for PTSD.
  • The DFD hired Perez as a full-time firefighter in 2006 and assigned him to Engine Company 9, commanded by Captain Randy Wells.
  • On August 17, 2011, Perez and members of Engine Company 9 were called to a scene where a truck had fatally run over a young child. Perez became emotionally disturbed because the deceased child was close in age to his own child. On the return to the fire station, Wells asked Perez if he was okay, and Perez responded affirmatively.
  • Later that day, Perez and his co-workers attended a monthly Emergency Medical Service training session reviewing the use of field tourniquets. The training included pictures and statistics from military combat operations in Iraq and Afghanistan. Upon seeing these images, Perez became visibly upset and walked out of the training session. Wells and another firefighter followed Perez outside and asked him if he was okay. Perez, tearful and crying, responded that he was okay but “needed some time to let things out.”
  • Still later that same day, Perez went on a short call and on his return met with Wells and Lieutenant Bob Miller to discuss his mental and emotional state. They discussed whether Perez should go to a medical clinic, stay at work, or go home.
  • Wells said he would keep Perez’s emotional reactions that day confidential outside of those on shift. Perez initially intended to remain at work but decided to leave work at 3:00 p.m. after a fellow firefighter suggested he go home “because he realized there was a concern” for him.
  • Before he left, Perez called a group meeting of all the firefighters on his shift “to let them know why [he] was going home” because “it was concerning to them about [his] mental status.”
  • He told the group he had been in combat and had lost five Marines in his unit; he explained how the day’s events—seeing the deceased child and the images of the military field tourniquet training—had stirred memories of these combat losses and resulted in his becoming emotional; and he told them he had sought and was receiving treatment at the VA.
  • Perez doesn’t recall telling the group that he suffered from PTSD, but he was “concerned about people thinking that.”
  • On August 28, 2011, Wells wrote to Assistant Chief Daniel Garcia requesting that Perez be evaluated for PTSD. Wells based this request on Perez’s statements at the August 17 group meeting regarding how his time in Iraq had affected him. In early September 2011, Division Chief of Administration Tony Berumen and Assistant Chief Russ Bray met with Perez and advised him he would need to undergo a fitness-for-duty evaluation. Perez responded that although he suffered from PTSD, he didn’t need to be examined because the VA was treating him for that condition.
  • Nevertheless, in late September, Perez underwent a fitness-for-duty evaluation.
  • On October 1, 2011, Wells met with Perez’s fellow firefighters and told them Perez suffered from PTSD and that he had requested that Perez be evaluated for PTSD.
  • Wells testified that he never received any information or documentation from anyone in the DFD that Perez suffered from PTSD and that he never saw the fitness-for-duty results.
  • In any event, the DFD received those results on October 10, 2011, and concluded that although Perez experienced symptoms consistent with PTSD, he was fit for duty.
  • The ADA permits employers to inquire “into the ability of an employee to perform job-related functions.”
  • But any information obtained through a voluntary medical examination or inquiry permitted … must be “treated as a confidential medical record.”
  • “Disclosure of confidential information obtained through an authorized medical examination or inquiry . . . constitute[s] a violation…
  • But an employer can’t be liable for disclosing medical information that the employee voluntarily disclosed outside of a medical examination.
  • Rather, to establish a violation … Perez must prove that the information disclosed was derived from an employment-related medical exam or inquiry.
  • The magistrate judge concluded that Perez failed to present any evidence that Wells based his August 28 request or his October 1 statement at the firehouse on any information other than inferences he drew from Perez’s actions and voluntary disclosures on August 17.
  • Because there was no evidence that Wells disclosed confidential information derived from a medical examination or inquiry … the magistrate judge granted summary judgment in favor of the defendants.
  • On appeal, Perez doesn’t dispute that he presented no evidence that Wells based his August 28 letter or his October 1 remarks on any information or disclosures from the fitness-for-duty examination or his admission to Berumen or Bray that he has PTSD.
  • Instead, Perez asserts that circumstantial evidence establishes that Wells based his disclosure on confidential information. But Perez failed to present any of this circumstantial evidence to the magistrate judge, and that failure precludes our consideration of his arguments on appeal.
  • Because Perez failed to present any admissible evidence indicating the Wells disclosed information in either the August 28 letter or the October meeting that was derived from an employment-related medical exam or inquiry in violation … we affirm the grant of summary judgment.

It would be easy to conclude from reading just the headlines about this case, that this decision stands for the proposition that the ADA does not prohibit an officer from discussing a subordinate’s PTSD status. That is not true and is an over simplification of what the court ruled.

What the court essentially held is that the ADA, just like HIPAA, can be violated by the release of protected health information. However, not every disclosure of health-related information is a violation of the patient’s right to confidentiality. The key in this case was how that information was obtained. In this case Perez had the burden of proof and he failed to show that Captain Wells and/or the fire department shared protected health information.

Here is a copy of the decision: 2018 Perez v Denver 10th Cir

 

Denver Firefighter Claims ADA Violation For PTSD

 

 

Firefighter loses lawsuit over confidentiality provisions of ADA

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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