
    George SHOUN, Plaintiff v. BEST FORMED PLASTICS, INC., Defendant.
    Cause No. 3:14-CV-463 RLM.
    United States District Court, N.D. Indiana, South Bend Division.
    Signed June 23, 2014.
    Opinion Denying Reconsideration Aug. 26, 2014.
    
      Patrick F. O’Leary, Goshen, IN, for Plaintiff.
    Bradford R. Shively, Jonathan Robert Slabaugh, Sanders Pianowski LLP, Elk-hart, IN, for Defendant.
   OPINION AND ORDER

ROBERT L. MILLER, JR., District Judge.

George Shoun brought suit against his former employer, Best Formed Plastics, Inc., under the Americans With Disabilities Act, 42 U.S.C. §§ 12112(d)(3)(B), 12112(d)(3)(C), & 12112(d)(4)(C), alleging that Jane Stewart, acting on behalf of Best Formed Plastics, Inc., wrongfully disclosed confidential information about his medical condition to other people via a post on Facebook. Mr. Shoun claims that action resulted in a loss of employment, impairment of his earning capacity, emotional distress, humiliation, and mental pain and suffering. Best Formed Plastics has filed a motion to dismiss Mr. Shoun’s amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim and a motion asking the court to take judicial notice of certain state court records. Both motions are ripe for review.

Mr. Shoun alleges in his amended complaint that in March 2012 he fell and injured his left shoulder while on the job at Best Formed Plastics and spent several months away from work recovering. Jane Stewart, who processed worker’s compensation claims for the company, prepared an accident report for the incident and notified the company’s insurer. Mr. Shoun says that between March and August 2012, Ms. Stewart monitored his medical treatment for the company and so learned the nature and extent of his injury. Mr. Shoun maintains Ms. Stewart and Best Formed Plastics were obligated to treat his medical information as confidential and refrain from disclosing the information to others as required by the confidentiality provisions of the ADA.

Mr. Shoun reports that in February 2013, Ms. Stewart posted the following on her Facebook page: “Isn’t [it] amazing how Jimmy experienced a 5 way heart bypass just one month ago and is back to work, especially when you consider George Shoun’s shoulder injury kept him away from work for 11 months and now he is trying to sue us.” Mr. Shoun claims Ms. Stewart’s Facebook page is linked to her business email address and available to the business communities in northeastern Indiana and southern Michigan. The quoted statement remained on Ms. Stewart’s Facebook page for 76 days.

Mr. Shoun asserts that Ms. Stewart’s posting of the statement was a “deliberate disclosure of [his] medical condition to other persons” in violation of the ADA. Amd. Compl., ¶ 20. He claims, too, that Ms. Stewart “acted with the intent to expose him to public scorn and ridicule and to blacklist him among prospective employers within her broad network.” Amd. Compl., ¶ 21. Mr. Shoun seeks compensatory and punitive damages, pre-judgment interest, attorney fees, and costs.

Best Formed Plastics moves to dismiss Mr. Shoun’s complaint because, first, the company can’t be liable for violating the ADA’s confidentiality provisions when Mr. Shoun voluntarily disclosed his medical condition to the public and, second, Mr, Shoun hasn’t alleged any tangible injury that resulted from the alleged ADA violation.

Motion to Dismiss Standard

When considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court must accept as true the factual allegations of the complaint and draw all reasonable inferences in favor of the plaintiff without engaging in fact-finding. Reynolds v. CB Sports Bar, Inc., 623 F.3d 1143, 1146 (7th Cir.2010). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A claim is plausible if “the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. at 556, 127 S.Ct. 1955). The allegations of the complaint “must be enough to raise a right to relief above the speculative level” and give the defendant fair notice of the claims being asserted and the grounds upon which they rest. Bell Atlantic Corp. v. Twombly, 550 U.S. at 555, 127 S.Ct. 1955.

Discussion

Section 102 of the Americans With Disabilities Act provides that any information relating to a medical condition of an employee obtained by an employer during “voluntary medical examinations, including voluntary work histories, which are part of an employee health program available to employees at that work site,” 42 U.S.C. § 12112(d)(4)(B), must be “collected and maintained on separate forms and in separate medical files and [be] treated as a confidential medical record.” 42 U.S.C. § 12112(d)(3)(B); see also 42 U.S.C. § 12112(d)(4)(C) (making requirements of 42 U.S.C. § 12112(d)(3)(B) applicable to 42 U.S.C. § 12112(d)(4)(B)). To state a claim for violation of the ADA’s confidentiality provisions, a plaintiff must allege that his employer obtained his medical information through employment-related medical examinations and inquiries, the information obtained through such means was disclosed by the employer rather than treated as confidential (unless that information falls under one of the exceptions found in 42 U.S.C. § I2112(d)(3)(B)(i), (ii), (iii), none of which are alleged here), and he suffered a tangible injury as a result of the disclosure. Franklin v. City of Slidell, 936 F.Supp.2d 691, 711 (E.D.La.2013); Flamberg v. Israel, No. 13-62698-CIV, 2014 WL 1600313, at *4 (S.D.Fla. Apr. 21, 2014).

Best Formed Plastics argues that Mr. Shoun’s amended complaint should be dismissed because Mr. Shoun voluntarily and publieally disclosed his medical condition in the complaint he filed in the Elk-hart Superior Court before Ms. Stewart’s alleged disclosure of that same information. The company asks the court to take judicial notice of Mr. Shoun’s state court complaint, a request to which Mr'. Shoun hasn’t objected. “Taking judicial notice of matters of public record need not convert a motion to dismiss into a motion for summary judgment” if the facts are “readily ascertainable from the public court record and not subject to reasonable dispute.” Ennenga v. Starns, 677 F.3d 766, 773-774 (7th Cir.2012); see also Fed. R. Evid. 201(b). Mr. Shoun’s complaint meets those requirements. Because the state court complaint “is offered to show what was stated to the court rather [than] for the truth of the matter asserted,” Felty v. Driver Solutions, LLC, No. 13 C 2818, 2013 WL 5835712, at *2 (N.D.Ill. Oct. 30, 2013) (internal quotation and citation omitted), the court grants the motion to take judicial notice of Mr. Shoun’s Elkhart Superior Court complaint.

Best Formed Plastics notes that Mr. Shotin filed his state court complaint on February 14, 2013 and Ms. Stewart posted her comment on her Facebook page five days after Mr. Shoun’s public disclosure of his medical condition. Thus, the company says, Mr. Shoun voluntarily publicized his medical condition outside the context of an authorized employment-related medical examination or inquiry prior to Ms. Stewart’s Facebook comment, so Ms. Stewart’s alleged disclosure was nothing more than a mere recitation of facts previously disclosed to the public by Mr. Shoun. Best Formed Plastics concludes that based on Mr. Shoun’s voluntary disclosure, the company can’t be liable for violating the ADA’s confidentiality provisions, and Mr. Shoun isn’t entitled to the relief he seeks.

The cases relied on by Best Formed Plastics support the company’s argument that an employee’s voluntary disclosure of medical information outside the context of an authorized employment-related medical examination or inquiry can render the confidentiality requirements of the ADA inapplicable to the employer, but in those cases the plaintiff-employees volunteered their medical information to their employer or a co-employee. See EEOC v. C.R. England, Inc., 644 F.3d 1028, 1048 (10th Cir.2011) (confidentiality provisions of ADA not violated because employee had “voluntarily disclosed to [employer’s human resources manager] that he was HIV-positive”); Cash v. Smith, 231 F.3d 1301, 1307 (11th Cir.2000) (“[T]he disclosure that Cash complains of was not of the result of an examination ordered by [his employer], but of a voluntary disclosure that Cash made to Smith[, his supervisor].”); EEOC v. Thrivent Financial for Lutherans, 795 F.Supp.2d 840, 846 (E.D.Wis.2011) (because employee voluntarily disclosed his medical history to his managers, not. in response to a medical inquiry, the information was not subject to ADA confidentiality requirements); Kingston v. Ford Meter Box Co., Inc., No. 3:07-CV-270, 2009 WL 981333, at *10-*11 (N.D.Ind. Apr. 10, 2009) (no violation of ADA confidentiality provisions where plaintiff disclosed his medical condition to his supervisors when he wasn’t required to do so).

Neither side has alleged or argued that Mr. Shoun voluntarily disclosed his medical information to Ms. Stewart or anyone else at Best Formed Plastics; instead, Mr. Shoun alleges that Ms. Stewart acquired information about his medical condition through an employment-related medical inquiry by the company and then wrongfully disclosed that information. Whether Ms. Stewart gained knowledge of Mr, Shoun’s medical condition solely within the context of his employment-related medical examination is a question of fact not appropriate for resolution in a motion to dismiss. See GT Performance Group, LLC v. Koyo USA Corp., No. 4:12-cv-83, 2013 WL 4787329, at *4 (S.D.Ind. Sept. 6, 2013) (“When ruling on a Rule 12(b)(6) motion to dismiss for failure to state a claim, ... the court must only examine the complaint and not the merits of the lawsuit.”); Cannon v. Burge, No. 05 C 2192, 2006 WL 273544, at *21 (N.D.Ill. Feb. 2, 2006) (“In deciding a motion to dismiss,

... the court cannot weigh the facts.”). Mr. Shoun has set forth facts sufficient to allege a violation of the confidentiality provisions of the ADA and the motion of Best Formed Plastics to dismiss for failure to state a claim will be denied.

Best Formed Plastics also moves to dismiss the amended complaint based on its claim that Mr. Shoun hasn’t alleged any tangible injury. The court can’t agree. Mr. Shoun has alleged that as a result of Ms. Stewart’s actions, “prospective employers refused to hire him,” Amd Compl., ¶21, and he suffered emotional injury, both of which have been recognized as tangible injuries under the ADA. See Griffin v. Steeltek, 160 F.3d 591, 595 (10th Cir.1998) (denying dismissal based on finding that plaintiff had “sufficiently alleged ... an injury in fact, specifically that Steeltek did not hire [him] as a result of his responses to the impermissible questions”); EEOC v. Ford Motor Credit Co., 531 F.Supp.2d 930, 942 (M.D.Tenn.2008) (“The plaintiff has alleged ... that Mr. Doe suffered shame, embarrassment, and depression as a result of the disclosure of his [medical condition] to his coworkers. These are tangible injuries.”); Green v. Joy Cone Co., 278 F.Supp.2d 526, 537 (W.D.Pa.2003) (“Injury-in-fact encompasses both actual damages in the form of emotional, pecuniary, compensative, or otherwise, as well as the presence of a continuing illegal practice.”). Dismissal on this basis is inappropriate.

Based on the foregoing, the court GRANTS the renewed motion to take judicial notice [docket # 13] and DENIES the motion to dismiss the amended complaint [docket # 14],

SO ORDERED.

OPINION AND ORDER

Best Formed Plastics, Inc. has filed a motion to reconsider the court’s June 23, 2014 denial of its motion to dismiss George Shoun’s amended complaint. Mr. Shoun has filed his objection to the motion, and Best Formed Plastics filed its reply. For the reasons that follow, the court denies the motion.

Federal Rule of Civil Procedure 54(b) allows a court to reconsider.a non-final order “at any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities.” See Moses H. Cone Mem. Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 12, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983) (“[E]very obder short of a final decree is subject to reopening at the discretion of the district judge.”); Sandifer v. U.S. Steel Corp., No. 2:07-CV-443, 2010 WL 61971, at *1 (N.D.Ind. Jan. 5, 2010) (“[A] motion to reconsider an interlocutory order may be entertained and granted as justice requires.”). Reconsideration of an order might be proper “when there has been a significant change in the law or facts since the parties presented the issue to the court, when the court misunderstands a party’s arguments, or when the court overreaches by deciding an issue not properly before it.” United States v. Ligas, 549 F.3d 497, 501 (7th Cir.2008). A party seeking reconsideration bears a heavy burden. Caine v. Burge, 897 F.Supp.2d 714, 717 (N.D.Ill.2012).

Best Formed Plastics contends the court erred in not granting its motion to dismiss Mr. Shoun’s amended complaint. According to the company, the court patently misunderstood and failed to address its argument that Mr. Shoun waived the confidentiality of his medical information when he filed his state court complaint. Best Formed Plastics says the undisputed facts show that Mr. Shoun disclosed his medical condition in his state court complaint, and because he filed that complaint five days before Ms. Stewart posted information about his medical condition on Fa-cebook, Mr. Shoun waived his right to claim that his medical information was confidential.

The court disagrees with the premise of Best Formed Plastic’s argument: that to state an actionable claim under 42 U.S.C. § 12112(d)(3)(B), Mr. Shoun must allege facts showing that at the time of the defendant’s alleged disclosure, the medical information he provided to the company was “confidential” in the sense of being secret or unknown to the world at large. Such a reading would ignore the plain language of the statute. See Sebelius v. Cloer, — U.S. -, -, 133 S.Ct. 1886, 1896, 185 L.Ed.2d 1003 (2013) (“[W]hen [a] statute’s language is plain, the sole function of the courts — -at least where the disposition required by the text is not absurd — is to enforce it according to its terms.”). 42 U.S.C. § 12112(d)(3)(B) requires that medical information obtained by an employer from an employee via “medical examinations and inquiries” be collected and maintained on separate forms in separate medical files, be treated as a “confidential medical record,” and be disclosed only in limited circumstances (that aren’t applicable here). In guaranteeing the confidentiality of medical information gathered by an employer and restricting the use of that information, the ADA requires the employer to keep as “confidential” (meaning that the employer can’t disclose it) any medical information it acquired through a medical examination or inquiry; the statute doesn’t require that the information provided by the employee be “confidential” in the sense that no one other than the employee and the employer know about it. See 42 U.S.C. §§ 12112(3)(B), 12112(3)(C), 12112(4)(C).

Mr. Shoun alleges that Best Formed Plastics, through Ms. Stewart, gathered medical information from him and monitored his medical treatment between March and August 2012 in connection with his worker’s compensation claim. Under the statute’s plain language, all medical information gathered by Best Formed Plastics and Ms. Stewart in that context was required to be treated as a “confidential medical record.” 42 U.S.C. §§ 12112(d)(3)(B), 12112(d)(4)(C); see also Franklin v. City of Slidell, 936 F.Supp.2d 691, 711 (E.D.La.2013) (“[T]he employer is required to treat any information regarding the medical condition or history of an employee that the employer obtains from a medical examination or inquiry authorized under Section 12112(d) as a confidential medical record, subject to certain limited exceptions.”); EEOC v. Thrivent Financial for Lutherans, 795 F.Supp.2d 840, 843 (E.D.Wis.2011) (“Employers may make inquiries into the ability of an employee to perform job-related functions, but medical information obtained from such inquiries is subject ,to specified confidentiality requirements.”); Flamberg v. Israel, No. 13-62698, 2014 WL 1600313, at *4 (S.D.Fla. Apr. 21, 2014) (“Flamberg alleges that a supervisor ordered him to see a mental-health professional in relation to concerns that Flamberg was ‘mentally unstable.’ Information arising from such inquiries must be treated as confidential.”). That information was “confidential” in the sense that the law prohibited Best Plastics from disclosing it.

Mr. Shoun’s complaint alleges that Ms. Stewart wrongfully disclosed his medical information, ie., information she obtained through the company’s inquiries about his medical treatment for a work-related injury. Whether Ms. Stewart learned of Mr. Shoun’s medical condition solely through Best Formed Plastics’ employment-related medical inquiries or learned that information outside the context of those inquiries presents a question of fact not appropriate for resolution in a motion to dismiss. See EEOC v. C.R. England, Inc., 644 F.3d 1028, 1046-1047 (10th Cir.2011) (“Disclosure of confidential information obtained through an authorized medical or inquiry would constitute a violation of § 102(d) and could give rise to a claim under the ADA.”); Franklin v. City of Slidell, 936 F.Supp.2d 691, 711 (E.D.La.2013) (“A plaintiff cannot succeed on a claim under Section 12112(d) unless the employer obtained the medical information that was disclosed through an entrance exam or disability-related inquiry.”); see also EEOC v. Thrivent Financial for Lutherans, 700 F.3d 1044, 1046 (7th Cir.2012) (“The district court found that Thrivent learned of Messier’s migraine condition outside the context of a medical examination or inquiry. Therefore, the confidentiality provisions of 42 U.S.C. § 12112(d)(3) did not apply, and the district court granted summary judgment.... [W]e agree that Thrivent did not learn about Messier’s migraine condition as the result of 42 U.S.C. § 12112(d) ‘medical examinations and inquiries.’ Consequently, Thrivent had no duty to treat its knowledge of Messier’s migraine condition as a confidential medical record, and we affirm the judgment of the district court.”).

Ms. Stewart allegedly posted Mr. Shoun’s medical information on a social media site. If Ms. Stewart took that information from Best Plastics’ confidential records, Best Plastics could be liable to Mr. Shoun. Maybe Best Plastics won’t be liable because Ms. Stewart took the information from the complaint Mr. Shoun filed in court — but that’s not what the complaint alleges.

A review of the June 23 opinion and order convinces the court that it considered the company’s waiver argument and that questions of fact exist as to whether Mr. Shoun waived his ability to prevail on his confidentiality claim. See Cortes-Devito v. Village of Stone Park, 390 F.Supp.2d 706, 712 (N.D.Ill.2005) (“[I]n a motion to dismiss we do not weigh the strength of the evidence, rather we test the sufficiency of the allegations.” See Pickrel v. City of Springfield, 45 F.3d 1115, 1118 (7th Cir.1995) (stating it “is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support its claims”)). Because denial of the company’s motion to dismiss was proper, the court DENIES the motion to reconsider [docket # 19].

SO ORDERED. 
      
      . The amended complaint mistakenly states that Mr. Shoun was injured in March 2013.
     