AMY TOTENBERG, District Judge.
Atlas Logistics Group Retail Services (Atlanta), LLC ("Atlas") operates warehouses for the storage of products sold at a variety of grocery stores. So one could imagine Atlas's frustration when a mystery employee began habitually defecating in one of its warehouses.
The matter is before the Court on the parties' Cross-Motions for Summary Judgment [Docs. 44, 45]. The legal question before the Court is whether the information requested and obtained by Atlas was "genetic information" covered by GINA. For the reasons that follow, the Court concludes that it is. Thus, the Court
The Court may grant summary judgment only if the record shows "that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P.
When ruling on the motion, the Court must view all the evidence in the record in the light most favorable to the non-moving party and resolve all factual disputes in the non-moving party's favor. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). The moving party need not positively disprove the opponent's case; rather, the moving party must establish the lack of evidentiary support for the non-moving party's position. See Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the moving party meets this initial burden, in order to survive summary judgment, the non-moving party must then present competent evidence beyond the pleadings to show that there is a genuine issue for trial. Id. at 324-26, 106 S.Ct. 2548. The essential question is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505.
The standard of review for cross-motions for summary judgment does not differ from the standard applied when only one party files a motion, but simply requires a determination of whether either of the parties deserves judgment as a matter of law on the facts that are not disputed. Am. Bankers Ins. Group v. United States, 408 F.3d 1328, 1331 (11th Cir.2005). The Court must consider each motion on its own merits, resolving all reasonable inferences against the party whose motion is under consideration. Id. The Eleventh Circuit has explained that "[c]ross-motions for summary judgment will not, in themselves, warrant the court in granting summary judgment unless one of the parties is entitled to judgment as a matter of law on facts that are not genuinely disputed." United States v. Oakley, 744 F.2d 1553, 1555 (11th Cir.1984). Cross-motions may, however, be probative of the absence of a factual dispute where they reflect general agreement by the parties as to the controlling legal theories and material facts. Id. at 1555-56.
Atlas provides long-haul transportation and storage services for the grocery industry. (Pl.'s Resp. Def.'s Statement of Undisputed Material Facts No. 1 ("Pl's Resp. SMF"), Doc. 53-1.)
Atlas attempted to remedy the defecation issue by asking its Loss Prevention Manager, Don Hill, to conduct an investigation. (Id. No. 8.) Mr. Hill began his investigation by comparing employee work schedules to the timing and location of the defecation episodes in order to create a list
Once Mr. Hill created the list of potential suspects, he hired Speckin Forensic Labratories ("Speckin Labs") to assist in the investigation. (Pl's Resp. SMF No. 12.). Hill retained Speckin Labs to perform a comparison of buccal swab samples
In order to perform the comparison, Speckin Labs suggested using Short Tandem Repeat analysis ("STR analysis"). (Pl's Resp. SMF No. 15.) STR analysis compares samples by analyzing "genetic spacers" at various sites. (Id. No. 16.) "Genetic spacers" are the space between an individual's genes and vary drastically from person to person. (Id. No. 17.) STR analysis can be used to compare DNA from one sample to another for identification purposes. (Id. No. 20.) STR analysis cannot, however, determine an individual's propensity for disease or disorder. (Id. No. 19.)
Speckin Labs sent Dr. Julie Howenstine to the Warehouse in October 2012 to collect buccal swab samples from Lowe and Reynolds. (Id. No. 21.) Lowe and Reynolds provided
After performing the PowerPlex 21 analysis on Lowe's and Reynolds's DNA samples, GenQuest sent Dr. Howenstine the electropherogram with the PowerPlex 21 analysis' findings. (Id. No. 42.) Using the data provided in the electropherogram, Dr. Howenstine compared the DNA samples of Lowe and Reynolds to the DNA of the fecal matter and determined that neither Lowe nor Reynolds were the culprits. (Id. No. 42-45.) Dr. Howenstine documented this mismatch in a letter to Mr. Hill on October 22, 2012. (Id. No. 46.)
On March 27, 2013, Lowe and Reynolds filed charges of discrimination with the Equal Employment Opportunity Commission ("EEOC"). The Plaintiffs alleged that Atlas violated the Genetic Information Nondiscrimination Act, 42 U.S.C. § 2000ff et seq. ("GINA") because Atlas illegally requested and required them to provide their genetic information and illegally disclosed their genetic information. The EEOC dismissed Lowe's and Reynolds's charges against Atlas on April 24, 2013.
(Dismissal and Notice of Rights of Dennis Reynolds ("Reynolds Notice"), Doc. 45-18; Dismissal and Notice of Rights of Jack Lowe ("Lowe Notice"), Doc. 45-19.) The letters entitled Lowe and Reynolds to file suit within 90 days of April 24, 2013. On July 22, 2013, Lowe and Reynolds timely filed this action.
According to Plaintiffs Jack Lowe and Dennis Reynolds, the undisputed facts show that Atlas requested information about Speckin Labs's comparison of Lowe's and Reynolds's DNA to the fecal sample. These facts, Plaintiffs argue, demonstrate that Atlas violated 42 U.S.C. § 2000ff-1(b), which makes it "an unlawful employment practice for an employer to request, require, or purchase genetic information with respect to an employee."
Atlas responds and argues in its Motion for Summary Judgment that the information the company requested concerning Lowe's and Reynolds's DNA analysis does not constitute "genetic information" as defined in GINA. According to Defendant's interpretation of GINA, "genetic information" refers only to information related to an individual's propensity for disease. For this reason, Defendant moves for summary judgment as to all of Plaintiffs' claims. The issue before the Court, therefore, is whether the term "genetic information" as used in GINA encompasses the information Atlas requested in this case.
"As with any question of statutory interpretation, [the Court] begin[s] by examining the text of the statute to determine whether its meaning is clear." Lindley v. F.D.I.C., 733 F.3d 1043, 1055 (11th Cir. 2013) (citing Harry v. Marchant, 291 F.3d 767, 770 (11th Cir.2002)). The Court's analysis stops at a review of the text of GINA "if the statutory language is unambiguous and the statutory scheme is coherent and consistent." Med. Transp. Mgmt. Corp. v. Comm'r of IRS, 506 F.3d 1364, 1368 (11th Cir.2007). If the statutory language may be reasonably interpreted in more than one way, however, the statutory language is deemed ambiguous and additional tools of statutory interpretation should be used. Id. Only "in rare and exceptional circumstances" may a court "decline to follow the plain meaning of a statute because overwhelming extrinsic evidence demonstrates a legislative intent contrary to the text's plain meaning." Boca Ciega Hotel, Inc. v. Bouchard Transp. Co., Inc., 51 F.3d 235, 238 (11th Cir.1995).
As discussed below, the Court determines that the unambiguous language of GINA covers Atlas's requests for Lowe's and Reynolds's genetic information and thus compels judgment in favor of Lowe and Reynolds. This case is not one of the rare instances where overwhelming extrinsic evidence demonstrates a legislative intent contrary to the text's plain meaning. For these reasons, the Court grants Plaintiffs' Motion for Partial Summary Judgment and denies Defendant's Motion for Summary Judgment.
The Court begins its analysis with the language of GINA. GINA makes it "an unlawful employment practice for an employer to request, require, or purchase genetic information with respect to an employee." 42 U.S.C. § 2000ff-1(b). Section 2000ff-1(b) lists six exceptions to this general prohibition, but Atlas admits that none of the statutory exceptions apply here. (Def. Resp. to Pls.'s First Set of Reqs. for Admis. 5, Doc. 44-3.) The parties also agree that Atlas is an "employer" and Lowe and Reynolds are "employees" as defined by GINA. (Def.'s Resp. SMF at 1-2,) 42 U.S.C. § 2000ff(2)(A)-(B). The parties' disagreement centers on a single phrase in Section 2000ff-1(b): "genetic information."
GINA defines genetic information as "with respect to any individual, information about (i) such individual's genetic tests, (ii) the genetic tests of family members of such individual, and (iii) the manifestation of a disease or disorder in family members of such individual." 42 U.S.C. § 2000ff(4). Parts (ii) and (iii) do not apply to Lowe and Reynolds's claims, as the PowerPlex 21 analysis was not performed on DNA of their family members. Therefore, the DNA analysis would only qualify as "genetic information" under GINA if the analysis qualifies as a "genetic test."
"Genetic test" is also defined in GINA. The statute defines "genetic test" as "an analysis of human DNA, RNA, chromosomes, proteins, or metabolites, that detects genotypes, mutations, or chromosomal changes." 42 U.S.C. § 2000ff(7). The extent of GINA's guidance ends with its definition of "genetic test:" none of the words included in 42 U.S.C. § 2000ff(7) are further defined in GINA.
If all the Court considers is the language of GINA, the undisputed evidence in the record establishes that the DNA analysis at issue here clearly falls within the definition of "genetic test." The parties agree that Dr. Howenstine conducted an "analysis" of Lowe's and Reynolds's DNA. (Def.'s Resp. SMF at 10.) And the undisputed evidence in the record shows that this analysis at a minimum detects genotypes and mutations.
Defendant argues that this straightforward but broad interpretation of GINA is erroneous. Defendant urges the Court to interpret the "genetic test" language of GINA to exclude analyses of DNA, RNA, chromosomes, proteins, or metabolites if
Section 2000ff-1(b) makes it unlawful to request, require, or purchase genetic information, except in six contexts. Section 1(b)(6), in turn, expressly allows employers to request, require, or purchase some genetic information which has nothing to do with the propensity for disease. 42 U.S.C. § 2000ff-1(b)(6). Specifically, an employer is not liable under GINA where it conducts a "DNA analysis ... for purposes of human remains identification, and requests or requires genetic information of such employer's employees, but only to the extent that such genetic information is used for analysis of DNA identification markers for quality control to detect sample contamination." 42 U.S.C. § 2000ff-1(b)(6). This exception would be unnecessary if Atlas's construction of GINA were correct, because under Atlas's construction, the term "genetic information" already excludes DNA analyses for purposes of human remains identification — a type of analysis unrelated to testing for disease propensity.
Atlas's reliance on GINA's legislative history to argue otherwise is unpersuasive. According to Atlas, this human remains identification exception was created to address a concern raised by the Bureau of Alcohol, Tobacco, and Firearms ("ATF"). (Def.'s Reply at 7-8, Doc. 57 (citing H.R.Rep. No. 110-28, pt. 3, *68 (2007)).) drafting of GINA, ATF expressed its concern that its DNA profile index, developed for forensic purposes, seemed to violate GINA as drafted.
Despite the plain, unambiguous language of GINA providing a broad definition of "genetic information," which covers the information Atlas requested in this case, Atlas urges the Court to adopt its narrow definition. It is true that "in rare and exceptional circumstances [a court] may decline to follow the plain meaning of a statute because overwhelming extrinsic evidence demonstrates a legislative intent contrary to the text's plain meaning." Boca Ciega Hotel, Inc., 51 F.3d at 238. This is not such an exceptional case.
Atlas first relies on the Congressional Findings, included in GINA, to urge the Court to adopt its definition of "genetic information," but the Congressional Findings lend Atlas only limited support. The Congressional Findings do indeed express a concern that advances in genetic testing, which "can allow individuals to take steps to reduce the likelihood that they will contract a particular disorder," also "give rise to the potential misuse of genetic information to discriminate in health insurance and employment." 42 U.S.C. § 2000ff note. And as Atlas highlights, the Findings include historical examples of discrimination on the basis of genetic testing that reveals the existence of or propensity for disease, such as state-sanctioned sterilization of individuals with genetic defects and state-sanctioned sickle cell anemia testing. Id. But Atlas ignores the Findings' more general pronouncement of GINA's purpose: to "establish[] a national and uniform basic standard" of unacceptable use of genetic information in health insurance and employment, in order "to fully protect the public from discrimination and allay their concerns about the potential for discrimination, thereby allowing individuals to take advantage of genetic testing, technologies, research, and new therapies." Id. It is not unreasonable for Congress to achieve this "national and uniform basic standard" of full protection by broadly prohibiting employers from requesting, requiring, or purchasing genetic information of their employees, except under limited circumstances. On the contrary, GINA's statutory regime, which errs on the side of prohibiting employer-mandated or requested genetic testing, seems fully consistent with these Congressional Findings.
Atlas next cherry-picks statements made during the legislative process to support its proposition that the term "genetic test"
Atlas then erroneously cites the view of a handful of legislators that the intent of GINA was to be limited to combating discrimination based on one's propensity for disease. (Def.'s Reply at 8-9, Doc. 57.) As Atlas points out, this group of eleven legislators "believe[d] that the basic intent of the authors [of the bill] [was] to regulate a predictive assessment concerning an individual's propensity to get an inheritable genetic disease or disorder based on the occurrence of an inheritable genetic disease or disorder in the family member." H.R.Rep. No. 110-28, pt. 3, at 70 (Mar. 29, 2007). But the legislators recognized that, as written, GINA's scope was much broader. They referenced the Director of the Human Genome Project Dr. Francis Collins's testimony that "the GINA reference to detecting a genotype covered, among other things, ... forensic DNA identification tests, tissue typing for organ donation[,] and paternity tests," all tests that do not indicate one's propensity for disease. Id. at 71 (citing Collins's testimony). This small group of legislators expressed concern about GINA's "failure to limit [the] definition [of genetic information] to genetic markers for genetic disease." Id. They therefore urged a narrowing of the scope of the statute. Despite these concerns, Congress stuck with the broad definition of "genetic tests" in the final version of the bill.
Moreover, to address concerns about GINA's broad definition of "genetic information," the FBI suggested a narrow definition of genetic test limited to "the analysis of human DNA, RNA, chromosomes, proteins, or certain metabolites in order to detect disease-related genotypes or related phenotypes." Id. at 68.
The Congressional Findings and legislative history Atlas relies upon are not remotely sufficient to justify departing from the plain meaning of the statute's text. Accordingly, the Court applies the plain terms of the statute to find that, based on this record, Atlas violated GINA when it requested the results of the PowerPlex 21 test.
As the Court concludes that the statute unambiguously covers the conduct at issue in this case, its analysis is complete. Nonetheless, because so few courts have had the occasion to address GINA, the Court briefly addresses Atlas's argument that an EEOC regulation, promulgated under GINA in accordance with 42 U.S.C. § 2000ff-10, weighs in favor its interpretation. Atlas argues, "Assuming, arguendo, that GINA's definition of `genetic information' or `genetic tests' is ambiguous, the Court should defer to the EEOC's interpretation of GINA as set forth in its regulations, which supports an order for summary judgment in Defendant's favor." (Def.'s Br. Supp. Mot. Summ. J. at 14-15, Doc. 45-1 (citing Chevron, U.S.A., Inc. v. Nat'l Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)).)
Although the EEOC's regulation define "genetic test" with exactly the same language as the statute,
The Court rejects Atlas's argument for three reasons. First, as noted in the regulation, this list is not meant to be exhaustive. Thus, PowerPlex 21's absence from the list is not, in itself, instructive. Second, two of the examples in the EEOC Regulation, "DNA testing to detect genetic markers that are associated with information about ancestry" and "DNA testing that reveals family relationships, such as paternity," do not determine an individual's propensity for disease. If the Court were to apply Atlas's narrow definition of "genetic tests," these two examples would go beyond the scope of the statute. Finally, the EEOC regulations identify tests and procedures which are not genetic tests under GINA. See 29 C.F.R. § 1635.3(f)(3). None of those tests resemble the PowerPlex 21 analysis or support Defendant's argument.
The Court finds Atlas's remaining arguments unpersuasive.
For the reasons discussed above, the Court finds Atlas liable under 42 U.S.C. § 2000ff and
The parties are
All motions in limine are due on or before May 22, 2015. Responses to motions in limine are due on or before May 28, 2015. The Court will hold a pretrial conference on June 2, 2015 at 2:30 PM in Courtroom 2308 of the Richard B. Russell Federal Courthouse, 75 Spring Street, SW, 30303-3309. The trial on damages in this case will commence with jury selection at 9:30 AM on June 8, 2015.
