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Case 1:13-cv-02425-AT Document 45-1 Filed 10/30/14 Page 1 of 26

THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

JACK LOWE and DENNIS REYNOLDS,Plaintiffs,v.ATLAS LOGISTICS GROUP RETAIL SERVICES (ATLANTA), L.L.C.,

Defendant.

Civil No. 1:13-CV-02425-AT

 

 DEFENDANT’S MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

Pursuant to LR 7.1(A)(1), NDGa, Defendant Atlas Logistics Group Retail Services, (Atlanta) LLC (“Defendant” or “Atlas”) submits this Memorandum of Law in support of its Motion for Summary Judgment. Atlas respectfully submits that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law on all claims asserted by Plaintiffs Jack Lowe and Dennis Reynolds.

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TABLE OF CONTENTS

TABLE OF AUTHORITIES…………………………………………………………………. iii

INTRODUCTION……………………………………………………………….. 1

RELIEF REQUESTED……………………………………………………………………… 1

UNDISPUTED FACTS………………………………………………………………………… 1

STANDARD OF REVIEW……………………………………………………………………. 7

LEGAL ANALYSIS…………………………………………………………………………….. 8

  1. ATLAS IS ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFFS’ CLAIMS…………………………………………………………………………. 8
    1. The Sole Issue In Dispute Is A Legal Question That Should Be Decided By the Court On Motion For Summary Judgment …………………………… 10
    2. The Term “Genetic Information” Is Unambiguous………………….. 11
    3. Even If The Term “Genetic Information” Is Ambiguous, The Court Should Defer To The EEOC’s Interpretation Of GINA And Find Defendant Did Not Acquire Or Disclose “Genetic Information” 14

CONCLUSION……………………………………………………………………… 19

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TABLE OF AUTHORITIES

Statutory Authority

42 U.S.C. §2000ff……………………………………………………………………. 8

42 U.S.C. §§ 2000ff-1…………………………………………………………………….. 9

42 U.S.C. § 2000ff4(A)(i-iii)…………………………………………………………………. X

42 U.S.C. § 2000ff-5………………………………………………………………………………….8, 9

42 U.S.C. § 2000ff7(A)……………………………………………………………………….. 11

42 U.S.C. § 2000ff7(B)……………………………………………………………………….. 12

42 U.S.C. § 2000ff-10………………………………………………………………………………8, 16

Rules and Regulations

Fed. R. Civ. P. 56…………………………………………………………………………………. 7

75 Fed. Reg. 68,912 ……………………………………………………………………………..16, 17

Case Authority

Bell v. PSS World Med., Inc.

No. 3:12-cv-381-J-99MMH-JRK, 2012 U.S. Dist. LEXIS 183288, at *7 (D. Fla. 2012)      18

BlueCross BlueShield of S.C. v. Carillo

372 F. Supp. 2d 628 (N.D. Ga. 2005)……………………………………………………. 7

Bronsdon v. City of Naples

Case No: 2:13-cv-778-FtM-29CM, 2014 U.S. Dist. LEXIS 70502 (M.D. Fla. May 22, 2014)…………………………………………………………………………………….  15

CBS Broadcasting, Inc. v. EchoStar

532 F.3d 1294 (11th Cir. 2008)………………………………………………………….. 11

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Celotex Corp. v. Catrett

477 U.S. 317 (1986)……………………………………………………………………………. 8

Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.

467 U.S. 837, (1984)……………………………………………………………………….10, 11, 15

Clark v. Coats & Clark, Inc.

929 F.2d 604, 608 (11th Cir. 1991)………………………………………………………. 8

Conner-Goodgame v. Wells Fargo Bank, N.A.

2:12-cv-03426-IPJ, 2013 U.S. Dist. LEXIS 139477 (N.D. Ala. Sept. 26,

2013)…………………………………………………………………………………9, 15

Dumas v. Hurley Med. Ctr.

837 F. Supp. 2d 655 (E.D. Mich. 2011)…………………………………………………. 9

Frank Diehl Farms v. Wainwright

696 F.2d 1325, 1330 (11th Cir. 1983)………………………………………………….. 15

Friends of Everglades v. S. Fla. Water Mgmt. Dist.

570 F.3d 1210 (11th Cir. 2009)……………………………………………………………..10, 11

Graham v. State Farm Mut. Ins. Co.

193 F.3d 1274, 1281-82 (11th Cir. 1999)………………………………………………. 7

Graves v. Brookfield Suites Hotel & Convention Ctr.

No. 11-CV-01060, 2012 U.S. Dist. LEXIS 127979 (E.D. Wis. Sept. 10, 2012)         9

Harris v. H & W Contracting Co.

102 F.3d 516 (11th Cir. 1996) ……………………………………………………………….15, 16

Harrison v. Benchmark Electronics Huntsville, Inc.

593 F.3d 1206 (11th Cir. 2010) ……………………………………………………………..15, 16

Hays v. Adam

512 F. Supp. 2d 1330 (N.D. Ga. 2007)………………………………………………….. 8

Koch Foods v. Sec’y, United States DOL

712 F.3d 476 (11th Cir. 2013) ……………………………………………………………….10, 11

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Knuck v. Wainwright

759 F.2d 856 (11th Cir. 1985)……………………………………………………………. 15

Meritor Sav. Bank, FSB v. Vinson

477 U.S. 57, 65 (1986)………………………………………………………………………. 16

Norman-Bloodsaw v. Lawrence Berkely Laboratory

135 F.3d 1260, 1269 (9th Cir. 1998)…………………………………………………… 13

Poore v. Peterbilt of Bristol, L.L.C.

852 F. Supp. 2d 727, 730 (W.D. Va. 2012)………………………………………….. 18

Robinson v. Shell Oil Co.

519 U.S. 337 (1997)………………………………………………………………………….. 11

United States v. Silva, EchoStar

443 F.3d 795, 797-98 (11th Cir. 2006)………………………………………………… 11

United States v. Pistone

177 F.3d 957 (11th Cir. 1999)……………………………………………………………. 10

Secondary Sources

U.S. Equal Employment Opportunity Commission, Background Information for EEOC Final Rule on Title II of the Genetic Information Nondiscrimination Act of 2008, available at http://www.eeoc.gov/laws/regulations/gina-background.cfm…18

U.S. Equal Employment Opportunity Commission, Genetic Information Discrimination, available at http://www.eeoc.gov/laws/types/genetic.cfm………………………….. 16

Genetic Information Nondiscrimination Act of 2008, § 2(1), Pub. L. No. 110-233, 122 Stat. 881 (2008), available at http://www.gpo.gov/fdsys/pkg/PLAW-

110publ233/html/PLAW-110publ233.htm………………………………………………..12, 13

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INTRODUCTION

At issue in this case is a single issue of  statutory construction: whether Atlas’ collection of voluntary buccal swab samples from Plaintiffs to exclude them as potential suspects in a workplace investigation, and Atlas’ subsequent provision of those samples to a third-party laboratory, constitute the acquisition and disclosure of “genetic information” within the meaning of the Genetic Information Nondiscrimination Act of 2008 (“GINA”). There are no disputed material  facts. For the reasons set forth below, Atlas did not violate GINA and is entitled to summary judgment on each of Plaintiffs’ claims.

RELIEF REQUESTED

Atlas respectfully requests an order for summary judgment in its favor on all claims.

UNDISPUTED MATERIAL FACTS

Atlas provides temperature-controlled warehouse storage and long-haul transportation services for the grocery industry. UF(1) ¶ 1-2. Plaintiffs Jack Lowe (“Lowe”) and Dennis Reynolds (“Reynolds”) are Atlas employees who are represented by International Brotherhood of Teamsters Local 528 (the “Union”). UF ¶ 3-5. A Collective Bargaining Agreement between the Union and Atlas was in effect at all relevant times.  UF ¶ 5.

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(1) References to Defendant’s Statement of Undisputed Material Facts are set forth as UF.

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In 2012, Atlas experienced a serious issue with an employee, or group of employees, defecating in its Bouldercrest Warehouse (“the Warehouse”), where Lowe and Reynolds worked. UF ¶ 6. Human fecal matter was found in the Warehouse numerous times throughout 2012. UF ¶ 6-7. On one occasion, the fecal deposit necessitated the destruction of canned grocery products. UF ¶ 7.

Due to the serious nature of the fecal matter problem, Atlas’ Loss Prevention Manager, Don Hill (“Hill”), conducted an internal investigation to determine who was responsible for depositing fecal matter in the Warehouse. UF ¶ 8. As part of the investigation, Hill reviewed employees’ work schedules and compared them with the timing and location of the defecation incidents. UF ¶ 9. Based on the review, Hill developed a list of employees who may have been responsible for leaving fecal matter in the Warehouse. UF ¶ 10. Lowe and Reynolds were among the potential suspects Hill identified. UF ¶ 11.

Atlas thereafter hired Speckin Forensic Laboratories (“Speckin Labs”) to assist Hill in determining which, if any, of the suspected employees were responsible for leaving fecal matter in the Warehouse. UF ¶ 12. Atlas specifically hired Speckin Labs to assist Atlas in the collection of buccal swab samples from Plaintiffs for comparison with a fecal sample previously found in the Warehouse to determine who deposited the sample. UF ¶ 13. Atlas did not hire Speckin Labs to gather medical information about Plaintiffs or determine Plaintiffs’ propensity    to

 

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inherit disease. UF ¶ 14. With this limited purpose in mind, Speckin Labs suggested using Short Tandem Repeat Analysis (“STR Analysis”) to make the comparison. UF ¶ 15.

Rather than analyzing genes directly, STR Analysis compares two samples by analyzing “genetic spacers” at various sites. UF ¶ 16. Genetic spacers— literally, “the space between genes”—vary drastically from person-to-person.    UF

¶ 17. Accordingly, although one person may have three spacers between a given gene, another person may have ten spacers between that same gene. UF ¶ 18. These variably sized fragments allow forensic scientists to individualize a sample, much like a fingerprint, and have no proven association with any diseases or disorders. UF ¶ 19. By developing fingerprints for multiple samples based on the length of spaces between genes, forensic scientists are able to compare one sample’s DNA fingerprint to another for identification purposes. UF ¶ 20.

On or about October 11, 2012, Julie Howenstine (“Howestine”), a forensic biology and Deoxyribonucleic acid (“DNA”) specialist with Speckin  Labs, traveled to the Warehouse to collect voluntary buccal swab samples from the identified employees for comparison to a fecal sample that had been previously found in the Warehouse. UF ¶ 21-22. That same day, Plaintiffs’ Union Steward Rick Johnson, Atlas Human Relations Manager Connie Paulk, and Hill, met separately with Lowe and Reynolds in a private location at the Warehouse. UF ¶

 

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  1. During the meetings, Hill informed Lowe and Reynolds that they had been identified as potential suspects in an internal investigation regarding fecal matter found in the Warehouse. UF ¶ 24. Hill then requested that Lowe and Reynolds voluntarily provide buccal swab samples to be used for comparison against a fecal sample found in the Warehouse. UF ¶ 25. Hill informed Lowe and Reynolds they could choose whether to provide buccal swab samples and that, regardless of their decisions, they could return to work immediately after the meeting. UF ¶ 26. No person present informed Lowe or Reynolds that they would be subject to discharge if they failed to provide samples. UF ¶ 27.

Both Lowe and Reynolds voluntarily provided buccal swab samples  and their Union Steward, Rick Johnson, raised no objection to Atlas’ action or to Plaintiffs voluntarily providing buccal swab samples. UF ¶ 28; 32. After Lowe and Reynolds consented to the collection of buccal swab samples, Howenstine entered the conference room for each meeting and proceeded to collect buccal swab samples from Lowe and Reynolds. UF ¶ 29. To collect buccal swab samples from Plaintiffs, Howenstine inserted sterilized cotton-tipped swabs into Plaintiffs’ mouths and briskly rubbed the swabs up and down against the inside of the their cheeks for ten to fifteen seconds. UF ¶ 30. Both were cooperative during the few minutes it took Howenstine to collect  the buccal swab samples. UF ¶ 31. Once

 

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Howenstine collected the buccal swab samples, Lowe and Reynolds returned to work. UF ¶ 33.

After obtaining the buccal swab samples from Lowe and Reynolds, Howenstine submitted the buccal swab samples and fecal sample to Semen and Sperm Detection, Inc., which served as an intermediary between Speckin Labs and Speckin Labs’ sample processor, GenQuest DNA Analysis Laboratory (“GenQuest”). UF ¶ 34. Howenstine requested the PowerPlex 21 system  be utilized to compare Plaintiffs’ buccal swab samples to the fecal matter found in the Warehouse. UF ¶ 35. After receiving the samples, Semen and Sperm  Detection sent the samples to GenQuest DNA Analysis Laboratory (“GenQuest”), which performed the comparison using the PowerPlex 21 kit.  UF ¶ 36.

PowerPlex 21 is the forensic analysis kit GenQuest uses to compare samples using STR Analysis for identification purposes. UF ¶ 37. To compare the samples, PowerPlex 21 measures the length of space between genes at  twenty chromosomes. UF ¶ 38. PowerPlex 21 cannot (1) uncover information about an individual’s propensity to develop a disease in the future, (2) discover whether an individual’s offspring has a genetic mutation that would result in a health condition with physical manifestations, or (3) collect or analyze medical information. UF ¶ 39-41.   Rather, the information generated is used only to compare the genetic spacers between the two samples. UF ¶ 37-38.

 

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After performing the comparison using the PowerPlex 21 kit, GenQuest provided Howenstine with an electropherogram. UF ¶ 42. The electropherogram graphed the kits’ findings with respect to the size of the spaces between the genes at the twenty sites for the Warehouse fecal sample and the buccal swab samples provided by Lowe and Reynolds. UF ¶ 43. Howenstine then compared the data to determine if Lowe and/or Reynolds provided the fecal sample found in the Warehouse. UF ¶ 44. After comparing the data, Howenstine determined neither Lowe nor Reynolds were donors of the fecal sample. UF ¶ 45. By letter dated October 22, 2012, Howenstine communicated her results to Hill. UF ¶ 46. The letter stated that Reynolds and Lowe could be excluded as possible donors of the fecal sample. UF ¶ 47. The letter did not provide any medical information about Lowe or Reynolds or information about their propensity for disease. UF ¶ 48. Atlas neither requested nor received from any source, any medical information about Lowe or Reynolds or any information regarding their propensity to develop a disease, genetic mutations with physical manifestations, or a breakdown of their DNA. UF ¶ 49.

Neither Lowe nor Reynolds was subjected to adverse employment action by Atlas as a result of the fecal matter investigation or their provision of buccal swab samples and both remain employed by Atlas. UF ¶ 50. Neither Lowe nor Reynolds filed any grievance regarding Atlas’ collection of the buccal swab samples or the

 

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facts underlying their claims in this case. UF ¶ 51. However, both subsequently filed charges against Atlas with the Equal Employment Opportunity Commission (“EEOC”) alleging Atlas violated GINA because Atlas “illegally requested and required [Plaintiffs] to provide [their] genetic information” and “illegally disclosed [their] genetic information.” UF ¶ 52. On April 24, 2013, the EEOC issued determinations dismissing both Lowe’s and Reynolds’ charges because the EEOC was unable to conclude Atlas violated GINA based on the facts underlying Plaintiffs’ claims in this case. UF ¶ 55-56.

On June 22, 2013, Plaintiffs filed the instant lawsuit arguing Defendant violated GINA by taking their voluntary buccal swab samples and conducting the subsequent lab test which compared those samples to the fecal matter found in the Warehouse. Atlas moves for summary judgment on all of Plaintiffs’ claims.

STANDARD OF REVIEW

Summary judgment is proper when no genuine issues of material fact are present and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56. A party ‘“can meet this burden by presenting evidence showing that there is no dispute of material fact”’ or by showing that the nonmoving party has failed to present evidence in support of some element of its defense. BlueCross BlueShield of S.C. v. Carillo, 372 F. Supp. 2d 628, 639 (N.D. Ga. 2005) (quoting Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1281–82 (11th Cir. 1999)).

 

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The burden then shifts to the non-moving party to ‘“demonstrate that there is indeed a material issue of fact that precludes summary judgment.”’ Hays v. Adam, 512 F. Supp. 2d 1330, 1335 (N.D. Ga. 2007) (quoting Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991)). The nonmovant must “go beyond the pleadings” and present competent evidence, designating ‘“specific facts showing that there is a genuine issue for trial.”’ Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quoting FED. R. CIV. P. 56(e)).

In this case there are no disputed material facts and Atlas is entitled to Summary Judgment on Plaintiffs’ claims.

LEGAL ANALYSIS

I. ATLAS    IS     ENTITLED    TO    SUMMARY    JUDGMENT    ON PLAINTIFFS’ CLAIMS.

Plaintiffs assert causes of action against Defendant for allegedly acquiring and disclosing their “genetic information” in violation of the Genetic Information Nondiscrimination Act of 2008, Pub. L. No. 110-233, 122 Stat. 881 (2008) (codified at 42 U.S.C. § 2000ff et seq.) (“GINA”). The EEOC is charged with implementation, enforcement, and interpretation of Title II of GINA. 42 U.S.C. § 2000ff-10. Title II of GINA makes it unlawful for an employer to acquire or disclose an employee’s “genetic information.” 42 U.S.C. § 2000ff-5(b). “Genetic information” includes “information about (i) [an employee’s] genetic tests, (ii)  the

 

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genetic tests of family members of [an employee], and (iii) the manifestation of a disease   or   disorder   in   family   members   of   [an   employee].”      42    U.S.C. §§ 2000ff(4)(A)(i–iii). Courts routinely dismiss GINA claims where plaintiffs fail to establish genetic information was involved. See, e.g., Graves v. Brookfield Suites Hotel & Convention Ctr., No. 11-CV-01060, 2012 U.S. Dist. LEXIS  127979, at *1–2 (E.D. Wis. Sept. 10, 2012) (dismissing GINA claim because the complaint did not describe “any genetic information about [the plaintiff] that was disclosed to [the] defendant”); Dumas v. Hurley Med. Ctr., 837 F. Supp. 2d 655, 666 (E.D. Mich. 2011) (dismissing GINA claim because “the complaint d[id] not allege use or misuse of any . . . genetic information”); Conner-Goodgame v. Wells Fargo Bank, N.A., 2:12-cv-03426-IPJ, 2013 U.S. Dist. LEXIS 139477  (N.D. Ala. Sept. 26, 2013) (dismissing GINA claim where basis for claim was disclosure that plaintiff’s mother had AIDS, which does not constitute genetic information under GINA).

To succeed on their GINA claims, Plaintiffs must establish that Atlas is (1) a qualified employer that (2) requested or disclosed (3) Plaintiffs’ “genetic information.” 42 U.S.C. §§ 2000ff-1(b); 2000ff-5(b). The parties do not dispute that Atlas is a qualified employer that employed Plaintiffs. UF ¶ 3–4. The parties also do not dispute that Plaintiffs voluntarily submitted buccal swab samples to Defendant to exclude themselves as potential suspects in a workplace investigation

 

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or that Defendant subsequently provided the buccal swab samples to a third-party forensics laboratory. UF ¶ 21-28; 34. Rather, the sole matter in dispute between the parties and, thus, the sole issue before the Court on Motion for Summary Judgment is the legal question of whether the information Defendant acquired and disclosed was “genetic information” within the meaning of GINA. For the reasons set forth below, Plaintiffs are unable to establish Atlas requested or disclosed “genetic information” and summary judgment on Plaintiffs’ claims should be entered in Atlas’ favor.

a.  The Sole Issue In Dispute Is A Legal Question That Should Be Decided By the Court On Motion For Summary Judgment.

The issue of whether Atlas acquired or disclosed “genetic information” within the meaning of GINA is a matter of statutory construction. Statutory construction is a question of law properly decided by the Court on motion for summary judgment. See United States v. Pistone, 177 F.3d 957, 958 (11th Cir. 1999). “When determining whether to defer to an agency’s interpretation  of a statute it implements, the court follows the established Chevron framework.” Koch Foods v. Sec’y, United States DOL, 712 F.3d 476, 480 (11th Cir. 2013); referencing Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,  467 U.S. 837, 843 (1984). “In the first step of Chevron analysis [courts] apply the traditional tools of statutory construction to ascertain whether Congress had a specific intent on the precise question before [the court]. . . If Congress did, then

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the statute is not ambiguous and Chevron has no role to play.” Friends of Everglades v. S. Fla. Water Mgmt. Dist., 570 F.3d 1210, 1222–23 (11th Cir. 2009) (internal citations omitted)); Koch Foods, 712 F.3d at 480. “The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997). ‘“If the statute’s meaning is plain and unambiguous, there is no need for further inquiry.”’ CBS  Broadcasting,  Inc.  v. EchoStar,  532  F.3d  1294,  1301  (11th  Cir.    2008) (quoting United States v. Silva, 443 F.3d 795, 797-798 (11th Cir. 2006)).

b. The Term “Genetic Information” Is Unambiguous.

A plain reading of the Act’s definition of “genetic information” compels the conclusion Defendant did not acquire or disclose such information. Plaintiffs cannot argue that Defendant disclosed or acquired information about genetic tests of Plaintiffs’ family members or information relating to their family members’ diseases or disorders. Further, to the extent Plaintiffs assert Defendant acquired or disclosed information about their “genetic tests,” such argument is without merit.

GINA defines “genetic test” as the “analysis of human DNA, RNA, chromosomes, proteins, or metabolites that detects genotypes, mutations, or chromosomal changes.” 42 U.S.C. § 2000ff(7)(A) (emphasis added). GINA explicitly provides that ‘“genetic test’ does not mean an analysis of proteins or

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metabolites that does not detect genotypes, mutations, or chromosomal changes.” Id. at § 2000ff(7)(B) (emphasis added). Although “genotype” is not explicitly defined in GINA, any ambiguity in the term is allayed by reference to the broader context of the statute as a whole.

As evidenced by the express Congressional Findings set forth in the Act, GINA was primarily enacted due to concerns about advancements in the field of genetics that resulted in tests that could detect specific diseases and disorders an individual carried, not due to concerns relating to tests used for identification, like the one in this case, that do not and cannot detect such diseases or disorders. The Findings explicitly provide:

Deciphering the sequence of the human genome and other advances in genetics open major new opportunities for medical progress. New knowledge about the genetic basis of illness will allow for earlier detection of illnesses, often before symptoms have begun. Genetic testing can allow individuals to take steps to reduce the likelihood that they will contract a particular disorder. New knowledge about genetics may allow for the development of better therapies that are more effective against disease or have fewer side effects than current treatments. These advances give rise to the potential misuse of genetic information to discriminate in health insurance and employment.

Genetic Information Nondiscrimination Act of 2008, § 2(1), Pub. L. No. 110-233, 122 Stat. 881 (2008), available at http://www.gpo.gov/fdsys/pkg/PLAW- 110publ233/html/PLAW-110publ233.htm (not codified in the U.S.C.) (emphasis added).  As  examples  of  ways  information  from  genetic  tests  can  be  used   to

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discriminate against individuals, the Findings reference (1) state-sanctioned sterilization of individuals with “genetic defects” such as intellectual disabilities, mental disease, epilepsy, blindness, and hearing loss, (2) state-sanctioned sickle cell anemia testing, and (3) pre-employment screening for sickle cell anemia, syphilis, and pregnancy. Genetic Information Nondiscrimination Act of 2008, § 2(4),   Pub.    L.       No.         110-233,    122     Stat.           881     (2008),      available    at http://www.gpo.gov/fdsys/pkg/PLAW-110publ233/html/PLAW-110publ233.htm (not codified in the U.S.C.) (citing Norman-Bloodsaw v. Lawrence Berkeley Laboratory, 135 F.3d 1260, 1269 (9th Cir. 1998)).

As the above indicates, Defendant did not acquire or disclose any information pertaining to Plaintiffs’ “genetic tests,” as that term is defined by the statute. As discussed above, Plaintiffs’ buccal swab samples  were merely compared to a fecal sample deposited in the Warehouse to determine if Plaintiffs deposited the fecal sample. UF ¶ 13; 15-20; 22; 34–45. The comparison was completed by measuring the space between genes at twenty sites, not by analyzing genes themselves. UF ¶ 38.

Although both parties in this case hired separate forensic scientists  to provide their expert opinions and serve as expert witnesses, there is no relevant dispute among those expert witnesses: the test used in this case did not detect

 

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Plaintiffs’ medical information, did not uncover Plaintiffs’ propensity to    develop any  disease,  and  did  not  discover  whether  Plaintiffs’  offspring  would  have  a genetic mutation with physical manifestations. UF ¶ 38-41; 48-49. One of the foregoing actions must be present for Defendant’s actions to constitute the acquisition and/or disclosure of genetic information within the meaning of GINA. Further, because such analysis was not completed on Plaintiffs’ buccal swab samples, Defendant never received any information about the foregoing. UF ¶ 49. Indeed, the only information Defendant ever requested relating to Plaintiffs’ buccal swab samples, and ever received, was a simple yes or no answer to a simple question: did Plaintiffs deposit the fecal sample in the Warehouse. UF ¶ 46–48.

Because the foregoing test conducted by Defendant in this case is not a “genetic test,” Plaintiffs have failed to establish Defendant acquired or disclosed “genetic information” within the meaning of GINA as required to succeed on their claims. Accordingly, the Court should enter summary judgment in Defendant’s favor and dismiss Plaintiffs’ claims in their entirety.

c. Even If The Term “Genetic Information” Is Ambiguous, The Court Should Defer To The EEOC’s Interpretation Of GINA And Find Defendant Did Not Acquire Or Disclose “Genetic Information.”

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

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judgment in Defendant’s favor. The Supreme Court has long recognized that, where a statute is ambiguous, an agency’s interpretation of a statute should be given “considerable weight” and should not be disturbed unless it appears from the statute or legislative history that Congress intended otherwise. Chevron, 467 U.S. at 843. “[T]he deference due to an agency’s statutory construction ‘is increased where [as here] the rule is made pursuant to an express delegation of legislative authority.’” Knuck v. Wainwright, 759 F.2d 856, 859 (11th Cir. 1985) (quoting Frank Diehl Farms v. Secretary of Labor, 696 F.2d 1325, 1330 (11th Cir. 1983)). The deference the Supreme Court mandates Courts give to agency interpretations applies equally to regulations and interpretative guidance promulgated by the agency. See, e.g., Harris v. H & W Contracting Co., 102 F.3d 516, 521 (11th Cir. 1996) (“the appendix to the applicable federal regulations is firmly rooted in the ADA’s legislative history . . . . We cannot disregard the interpretive guidance . . . prepared by the federal agency charged with enforcing the ADA, when that guidance is based on a permissible construction of the statute and is supported by the  statute’s  legislative  history.”);  Conner-Goodgame,  2:12-cv-03426-IPJ, 2013 U.S. Dist. LEXIS 139477, at *30–32 (relying on EEOC regulations and  guidance to find that an HIV test is not a “genetic test” under GINA); Bronsdon v. City of Naples, Case No: 2:13-cv-778-FtM-29CM, 2014 U.S. Dist. LEXIS 70502, at *7–8 (M.D.  Fla.  May  22,  2014)  (relying  on  EEOC  regulations  to  analyze   GINA);

 

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Harrison v. Benchmark Electronics Huntsville, Inc., 593 F.3d 1206, 1214–16 (11th Cir. 2010) (relying on EEOC regulations and guidance and noting that “administrative interpretations of an Act by its enforcing agency … ‘constitute a body of experience and informed judgment to which [courts] . . . may properly resort for guidance.”’ (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986))).

Congress has expressly delegated to the EEOC legislative authority to enforce and interpret Title II of GINA. 42 U.S.C. § 2000ff-10 (“Not later than 1 year after the date of enactment of [Title II of GINA], the [EEOC] shall issue final regulations to carry out this title.”); U.S. Equal Employment Opportunity Commission, Genetic Information Discrimination, available at http://www.eeoc.gov/laws/types/genetic.cfm (“The EEOC enforces Title II of GINA . . .”). Pursuant to this delegation of authority, the EEOC has promulgated interpretative regulations relating to GINA’s use of the phrases “genetic information” and “genetic tests.” Regulations Under the Genetic Information Nondiscrimination Act of 2008, 75 Fed. Reg. 68,912 (Nov. 9, 2010) (codified at 29 C.F.R pt. 1635). Those Regulations are consistent with the Congressional Findings accompanying the Act and make clear that only tests that detect specific diseases or disorders constitute “genetic tests” within the meaning of GINA.

 

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Case 1:13-cv-02425-AT Document 45-1 Filed 10/30/14 Page 22 of 26

The Supplementary Information to the Regulations explicitly provides that “genetic tests” are only those used to “detect gene variants associated with a specific disease or condition.” Regulations Under the Genetic Information Nondiscrimination Act of 2008, 75 Fed. Reg. 68,912, at 68,916 (Nov. 9, 2010). The EEOC’s regulations provide a list of tests that constitute “genetic tests” within the meaning of GINA. Notably absent from the list is a test like the one conducted in this case. Indeed, consistent with the EEOC’s interpretation,  all  tests listed detect or diagnose specific diseases or conditions:

  • A test to determine whether someone has the BRCA1 or BRCA2 variant evidencing a predisposition to breast cancer, a test to determine whether someone has a genetic variant associated with hereditary nonpolyposis colon cancer, and a test for a genetic variant for Huntington’s Disease; (ii) Carrier screening for adults  using genetic analysis to determine the risk of conditions such as cystic fibrosis, sickle cell anemia, spinal muscular atrophy, or fragile X syndrome in future offspring; (iii) Amniocentesis and other evaluations used to determine the presence of genetic abnormalities in a fetus during pregnancy; (iv) Newborn screening analysis that uses DNA, RNA, protein, or metabolite analysis to detect or indicate genotypes, mutations, or chromosomal changes, such as a  test for PKU performed so that treatment can begin before  a disease manifests; (v) Preimplantation genetic diagnosis performed on embryos created using invitro fertilization; (vi) Pharmacogenetic tests that detect genotypes, mutations, or chromosomal changes that indicate how an individual will react to a drug or a particular dosage of a drug; (vii) DNA testing to detect genetic markers that are associated with information about ancestry; and (viii)  DNA testing that reveals family relationships, such as

 

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Case 1:13-cv-02425-AT Document 45-1 Filed 10/30/14 Page 23 of 26

Regulations Under the Genetic Information Nondiscrimination Act of 2008, 75 Fed. Reg. 68,912, at 68,933 (Nov. 9, 2010).(2) Consistent with this interpretation, Courts have consistently found that GINA’s prohibition against employers acquiring genetic information is merely to prevent employers from gathering information about an employee’s specific diseases or disorders. Bell v. PSS World Med., Inc., No. 3:12-cv-381-J-99MMH-JRK, 2012 U.S. Dist. LEXIS 183288, at *7

(D. Fla. 2012) (‘“The basic intent of GINA is to prohibit employers from making a predictive assessment concerning an individual’s propensity to get an inheritable genetic disease or disorder . . .”’ (quoting Poore v. Peterbilt of Bristol, L.L.C., 852 F. Supp. 2d 727, 730 (W.D. Va. 2012) (emphasis added))).

In its investigation of the Charges in this case, the EEOC has already determined that no violation of GINA occurred. UF ¶ 55-56. This is because the test performed in this case does not meet the EEOC’s interpretation of a “genetic test.” The test used in this case is not expressly enumerated in the EEOC Regulations and Guidance as a “genetic test” for good reason: the test did not

uncover information about Plaintiffs’ propensity to develop a disease in the future,

_____

(2) Similarly, the EEOC has published informational guidance for the general public about GINA  on  its website. Under the heading “[w]hat are examples of tests that would and would not be considered genetic tests,” the guidance states “[t]ests used to determine whether an individual has a certain genetic variant associated with predisposition to a disease are considered genetic tests.” U.S. Equal Employment Opportunity Commission, Background Information for EEOC Final Rule on Title II of the Genetic Information Nondiscrimination Act of 2008, available at http://www.eeoc.gov/laws/regulations/gina-background.cfm (emphasis added ). As examples of genetic tests, the informational guidance lists: “a test for a genetic variant for Huntington’s Disease and carrier screenings of adults using genetic analysis to determine the risk of conditions such as cystic fibrosis, sickle cell anemia, spinal muscular atrophy, or fragile X syndrome in future offspring.” Id.

 

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did not discover whether Plaintiffs’ offspring would have a genetic mutation that would result in a health condition with physical manifestations, and did not collect or analyze medical information. UF ¶ 37-41; 48-49.; see Regulations Under the Genetic Information Nondiscrimination Act of 2008, 75 Fed. Reg. 68,912, at 68,933 (Nov. 9, 2010). Rather the test merely compared the genetic spacers from Plaintiffs’ buccal swab samples to a fecal sample to determine if they were responsible for depositing it.

As the EEOC determined in this case, Plaintiffs have failed to establish Defendant acquired or disclosed their “genetic information” as required to succeed on their claims before this Court. The Court should follow suit, grant summary judgment in Defendant’s favor, and dismiss Plaintiffs’ claims with prejudice.

CONCLUSION 

For the foregoing reasons, Defendant respectfully submits that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law on all claims.

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Case 1:13-cv-02425-AT Document 45-1 Filed 10/30/14 Page 25 of 26

DATED this     day of October, 2014.

Respectfully submitted,

ATLAS LOGISTICS GROUP RETAIL SERVICES (ATLANTA), LLC, Defendant.

/s/ Dion Y. Kohler
Dion Y. Kohler
Georgia Bar Number: 427715 JACKSON LEWIS P.C.
1155 Peachtree Street N.E., Suite 1000
Atlanta, GA 30309
Telephone: (404) 525-8200
Facsimile: (404) 525-1173
KohlerD@jacksonlewis.com

Attorney for Defendant

CERTIFICATION

In accordance with LR 5.1C, NDGa, I hereby certify that this document has been prepared in 14 point, Times New Roman font.

/s/ Dion Y. Kohler           
Dion Y. Kohler

______________________________________________

Case 1:13-cv-02425-AT Document 45-1 Filed 10/30/14 Page 26 of 26

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION

JACK LOWE and DENNIS REYNOLDS,Plaintiff,vs. ATLAS LOGISTICS GROUP RETAIL SERVICES (ATLANTA), LLC,

Defendant.

Civil No.: 1:13-cv-02425-AT-LTW

CERTIFICATE OF SERVICE 

I hereby certify that on October  ,  2014,  I  electronically  filed  the foregoing with the Clerk of the Court using the CM/ECF System which sent notification of such filing to the following:

Benjamin Stark
Amanda Farahany
Benjamin Barrett
Barrett & Farahany, LLP
1100 Peachtree Street, N.E., Ste. 500
Atlanta, GA 30309

/s/ Dion Y. Kohler

4822-4168-0670, v. 4

 

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