Mandatory wellness program was not seeking genetic information so no violation of the Genetic Information Nondiscrimination Act says 5th Circuit.

Ortiz v. City of San Antonio Fire Department No. 15-50341 (5th Cir. November 17, 2015).

This is an appeal from the granting of the City’s summary judgment motion which the Fifth Circuit Court of Appeals affirmed in this genetic and national origin discrimination and retaliation case.

Ortiz worked for the City of San Antonio Fire Department (“SAFD”) as a firefighter and paramedic. The City’s collective bargaining agreement contained a “mandatory wellness program for all employees.” The program is “designed to provide early detection of serious medical conditions and encourage better health, thereby allowing . . . employees to do their job more safely and effectively.” Each employee is given a “job-related medical evaluation.”  Ortiz refused to participate and was therefore placed on “alternative duty” which was described as an administrative detail in nature. Ortiz stayed on alternative duty for nine months, after which he completed the tests and was returned to regular duty. Otiz asserted other employees who did not complete the wellness program, were not placed on alternative duty and that the discrimination was based on national origin. He also asserted the required participation (specifically involving his medical history) was in violation of the Genetic Information Nondiscrimination Act (“GINA”).  After going through the administrative challenges, Ortiz sued the City. The City filed a motion for summary judgment which was granted. Ortiz appealed.

The Fifth Circuit first noted that it was not required to apply a de novo standard of review. Plain error review applies where, as here, “a party did not object to a magistrate judge’s findings of fact, conclusions of law, or recommendation to the district court” despite being “served with notice of the consequences of failing to object.” Next the court held GINA prohibits an employer from discriminating or taking adverse actions against an employee “because of genetic information with respect to the employee.” However, GINA specifically excepts from its application a request for history as part of a “wellness program” and as long as certain confidential provisions are met. And an employer does not violate GINA through “the use, acquisition, or disclosure of medical information that is not genetic information...” Ortiz presented no evidence any of the testing or information was genetic information. Ortiz also ignores the statutory distinction between “medical information” and “genetic information.” Finally, he was placed on alternative duty prior to filing his EEOC complaint so there is no causal link for a retaliation claim.  As a result, the GINA claims were properly dismissed. As to the national origin claim, the only other employee who was not placed on alternative duty (administrative detail) for not completing the exams was an employee whose duties were already administrative in nature. This was a legitimate basis for the difference in treatment since the exams were “job-related” in nature.  Nothing the trial court did was “plainly erroneous” so the dismissal is affirmed.

If you would like to read this opinion click here. Panel: WIENER, HIGGINSON, and COSTA.  Opinion by Justice HIGGINSON. Attorney for Ortiz is listed as Robert Chris Pittard.  The attorney for the City is listed as Deborah Lynne Klein.