Vaughn v. Epworth Villa, No. 07-6005 (10th Cir. Aug. 19, 2008)

By Paul Mollica

The Tenth Circuit holds that an employee’s sending copies of a patient’s private medical records to the EEOC — to substantiate a claim of disparate treatment — constitutes “protected activity” under the “participation” prong of the anti-retaliation section of Title VII, 42 U.S.C. § 2000e-3(a), and the ADEA. But it also turns out, in the end, not to be very wise.

Vaughn v. Epworth Villa, No. 07-6005 (10th Cir. Aug. 19, 2008):  The employee, a certified nurse’s aide at a nursing home, alleged that she “was disciplined for making errors with respect to a patient’s medical records, while a younger, white employee was not disciplined for making the same errors.”  To demonstrate the disparity, Ms. Vaughn copied and sent to the EEOC medication sheets for a patient that supposedly demonstrated the errors made by another employee.  But revealing the records, unredacted, was a serious offense which — when it came to light — lead to Ms. Vaughn’s termination.

Though the district court held that the delivery of the medical records did not even constitute a “protected activity” for purposes of the anti-retaliation section.  The Tenth Circuit panel disagreed and held that the “participation” clause was pretty nearly absolute.  Specifically, it rejected the suggestion that the act of “participation” must be the least intrusive alternative available to the employee:

“In this case, the participation clause plainly provides that individuals may not be retaliated against when they ‘participate[] in any manner in an investigation, proceeding, or hearing under’ Title VII. 42 U.S.C. § 2000e-3(a) (emphasis added). We fail to see how this language places the kind of obligation on the employee that the district court here imposed – the obligation to resort only to honest and loyal conduct in advancing a claim unless the employee proves that it is necessary to resort to other means.”

Though holding that the employee stated a prima facie case, it ultimately affirmed summary judgment on the alternative ground that the termination was supported by a legitimate, non-retaliatory justification — that Ms. Vaughn disclosed confidential patient records:  “In addition to violating Epworth Villa’s policies and procedures, and perhaps Oklahoma law, it also appears that Vaughn’s conduct may have violated federal law. Under the terms of the federal Health Insurance Portability Accountability Act (‘HIPAA’), ‘[a] covered entity may not use or disclose protected health information, except as permitted or required by this subpart.'”  Though another employee had previously disclosed Epworth Villa records and avoided terminated, the difference was that the records at stake there were not medical records, but logs of patient activity that were not covered by HIPPA.