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Case 1:13-cv-02425-AT   Document 44-1   Filed 10/30/14   Page 1 of 29

IN 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), LLC,
Defendant.

Civil Action No. 1:13-cv-02425-AT
JURY TRIAL DEMANDED

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT

COMES NOW, Plaintiffs Jack Lowe and Dennis Reynolds (hereinafter “Plaintiffs”), by and through the undersigned counsel and pursuant to Fed. R.  Civ. P. 56, and hereby files their Memorandum of Law in Support of Plaintiffs’ Motion for Partial Summary Judgment, showing the Court as follows:

I. ISSUE PRESENTED 

The text of the Genetic Information Nondiscrimination Act expressly prohibits employers from “request[ing] . . . genetic information with respect to an employee” and expressly provides for six (6) limited exceptions to that prohibition. 42 U.S.C. § 2000ff-1(b). Defendant requested genetic information with respect to Plaintiffs, its employees, and admits that none of those statutory exceptions   apply

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to  this case.  May Defendant nonetheless create a new exception for “forensic” DNA analysis without any basis in the text of the statute?

II. SUMMARY OF ARGUMENT 

This is a case of first impression regarding the Genetic Information Nondiscrimination Act of 2008’s (“GINA’s”) prohibition against employers requesting genetic information with respect to an employee. As such, it has potential to guide courts in interpreting this law for years to come as genetic science develops and GINA comes into prominence.

Congress passed GINA in order to encourage people to participate in genetic testing because such tests have the potential to unlock untold medical benefits. Congress was informed that Americans did not trust employers and health insurers with their genetic information and, therefore, were avoiding submitting to the very genetic tests that could revolutionize medicine. Therefore, in GINA, Congress prohibited employers from discriminating based on genetic information.  42 U.S.C. 2000ff-1(a). In order to further allay fears of employer misuse of genetic information, Congress also used GINA to prohibit employers from requesting, requiring or purchasing genetic information. 42 U.S.C. § 2000ff-1(b).

And that is exactly what Defendant did in this case: It requested Plaintiffs’ genetic information from a lab it hired to analyze Plaintiffs’ DNA.

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Defendant, Atlas Logistics Group Retail Services (Atlanta), LLC (“Atlas”), was investigating the repeated appearance of human feces in its warehouse.  As part of that investigation, Atlas requested – or, possibly, required – Plaintiffs Jack Lowe and Dennis Reynolds to submit samples of their own DNA. Atlas then provided Plaintiffs’ DNA to a third-party laboratory and requested that the laboratory provide information about its analysis of Plaintiffs’ DNA – to wit, whether their DNA matched the human DNA found in the feces. The laboratory conducted the requested analysis and reported back to Atlas that Plaintiffs’ DNA did not match the DNA found in the feces. Plaintiffs’ DNA samples were subsequently lost.

Faced with such a blatant violation of GINA’s prohibitions, Atlas seeks to evade liability by creating an exception to such prohibitions for forensic identity testing that, Atlas claims, does not detect hereditary genetic diseases. This exception, however, has no basis in the text or policy of GINA. Nothing in GINA excludes such forensic testing from its purview, and the inclusion of a subset of forensic testing as an exception to its prohibitions indicates forensic testing that falls outside that narrow subset remains prohibited. On a policy level, Atlas’s proposed exception does nothing to allay the fears of employer misuse of genetic information and leaves employees vulnerable to exploitation.

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Because there is no dispute as to coverage or EEOC administrative exhaustion, the only remaining obstacles to a finding of liability are the affirmative defenses asserted by Atlas. Atlas bears the burden of proving these defenses, a burden it has fallen far short of meeting.

Plaintiffs, therefore, move for partial summary judgment as to liability and request that this matter be set for trial on the issue of damages only.

III. FACTS

  1. Preliminary Undisputed Facts 

The Defendant – Atlas Logistics Group Retail Services (Atlanta), LLC (“Atlas”) – meets GINA’s statutory definition of an “employer.” (Complaint for Damages [Doc. 1], hereinafter referred to as “Complaint”, ¶ 8) (Defendant Atlas Logistics Group Retail Services (Atlanta), LLC’s Answer and Affirmative Defenses [Doc. 4], hereinafter referred to as “Answer”, ¶ 8). Similarly, the Plaintiffs – Jack Lowe and Dennis Reynolds – meet GINA’s statutory definition of “employee.”  (Complaint ¶ 10) (Answer ¶ 10).

GINA has six exceptions to its prohibition against employers acquiring genetic information. 42 U.S.C. § 2000ff-1(b)(1)-(6). Atlas admits that none of those exceptions apply to this case.  (Defendant’s Responses to Plaintiffs’ First Set

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of Requests for Admission (Exhibit A), hereinafter referred to as “Admission”, # 20).

B. Background Information About Atlas

Atlas is a third-party logistics provider for the supply chain for Kroger grocery stores. (Deposition Transcript of W. Donald Hill, 30(b)(6) Witness for Defendant (Exhibit B), hereinafter referred to as “Hill 30(b)(6) Dep.” 10:17-11:2). Atlas receives Kroger’s products, runs the Kroger-owned warehouse where the products are stored, and ships the products from that warehouse. Id. At the warehouse in question for this case, there is also a U.S. Department of Agriculture (“USDA”) office for federal inspectors.  (Admission # 13).

Atlas has a Collective Bargaining Agreement (“CBA”) with the local Teamsters Union. (Agreement Between Atlas Logistics Retails Services Atlanta, Georgia (Warehouse Division) and Teamsters Local Union No. 528, Affiliated with the International Brotherhood of Teamsters (Exhibit C), hereinafter referred to as “Collective Bargaining Agreement”.). The CBA prohibits discrimination based on race, color, religion, sex, disability, genetic information, age, national origin, ancestry, and membership or lack of membership in the Union. (Collective Bargaining  Agreement,  Article  2).    On  the  other  hand,  the  CBA  contains no

 

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reference   to   the   collection   of   genetic information.  (Collective Bargaining Agreement).

C. Atlas’s Decision to Request Information About an Analysis of Plaintiffs’ DNA

Starting in the spring of 2012, Atlas employees started finding human feces at various locations in the warehouse. (Atlas’s Narrative of Its Investigation Into Human Feces Found in Its Warehouse (Exhibit D), hereinafter “Investigation Narrative”, p. 1961). W. Donald “Don” Hill, Atlas’s Loss Prevention  Risk Manager, attempted to find out who was defecating in the company warehouse. (Hill 30(b)(6) Dep. 5:16-19) (Investigation Narrative).

Finding the warehouse’s CCTV video coverage inadequate, Hill began compiling a spreadsheet of employees to determine which employees were and were not working on the shifts around the times the feces were found. (Investigation Narrative, p. 196). He used this spreadsheet to eliminate suspects each time new feces were found. Id. at 198. Using that technique, he  identified four suspects: Plaintiffs Jack Lowe and Dennis Reynolds, and their fellow employees Bernard Terrell and Timothy Murray(2). Id.

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(1) The Investigation Narrative is Bates-stamped by Defendant as “Defendant 000196 – Defendant 000204.” For ease of reference, future page references will eliminate the extra zeros. For example, “p. 196” refers to the page Bates- stamped “Defendant 000196.”)

(2) Murray was later eliminated as a suspect using the same technique. (Investigation Narrative, p. 199)

 

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Upon identifying these suspects, Hill met with General Manager Greg Vick and HR Manager Connie Paulk to consider Atlas’s options.   Id.   They  considered (1) reaching out to local law enforcement to use their canine teams to track and identify the subject and (2) proceeding on their own by hiring a DNA testing facility to compare DNA samples found in the feces with the DNA of the suspected employees. Notably, Atlas did not ask the USDA investigators working in the same warehouse to investigate. (Admission # 14). Nor did the company reach out to the USDA – or, for that matter, any other federal agency – for assistance in its own investigation. (Admission # 16) (Hill 30(b)(6) Dep. 30:25-31:14).

After meeting with Vick and Paulk, Hill consulted with Erich Speckin, partner of Speckin Forensic Laboratories (“Speckin Labs”), asking whether Speckin Labs could produce DNA testing results that would be admissible for prosecution. (Investigation Narrative, p. 198). Speckin assured Hill that Speckin Labs regularly completed body fluid and fecal DNA testing that was admissible for prosecution and could assist Atlas in the investigation. Id.

After another set of human feces was found on October 8, 2012, Vick gave approval for Atlas to request Speckin Labs perform DNA analysis on Plaintiffs and

 

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Bernard Terrell to determine if their DNA matched the DNA of the feces and report the results of such analysis back to Atlas.  Id. at 198-99.

D. Atlas Obtains Plaintiffs’ DNA

On October 11, 2012, Dr. Julie Howenstine – forensic biology and DNA specialist for Speckin Labs – arrived at Atlas’s warehouse to collect DNA samples from Plaintiffs. (Transcript of Deposition of Dr. Julie A. Howenstine, D.V.M. (Exhibit E), hereinafter referred to as “Howenstine Dep.”, 4:25-5:4) (Investigation Narrative, p. 199).

That day, Hill, HR Manager Paulk and Union Steward Rick Johnson met separately with Lowe and Reynolds. (Investigation Narrative, p. 199). In these meetings, Hill told Lowe and Reynolds that they were considered  potential suspects for defecating on the warehouse floor and that Atlas “would like to exclude them as suspects . . . by doing this simple test.” (Hill 30(b)(6) Dep. 65:5- 66:3). It was explained that the test would be an analysis of a sample of their DNA, obtained using a cheek swab3.  Id. at 69:19-70:15.

That  Hill  sought  Plaintiffs’  consent  to  perform  these  DNA   tests is undisputed.   Id.   What is disputed is how much pressure he applied to obtain  that “consent.”  Lowe and Reynolds contend that Atlas threatened them with  discipline

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(3) These cheek swab samples are also referred to as “buccal” swabs or samples. (Howenstine Dep. 58:1-2).

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if they did not submit their DNA for the analysis. (Transcript of Deposition of Dennis Reynolds (Exhibit N), hereinafter referred to as “Reynolds Dep.”, 58:6-17) (Transcript of Deposition of Jack Lowe (Exhibit O), hereinafter referred to as “Lowe Dep.”, 47:13-48:10). Atlas denies applying such coercive techniques. Hill claims he told Plaintiffs that they would be permitted to return to work whether or not they agreed to submit their DNA samples.  (Hill 30(b)(6) Dep. 69:19-70:15).

Whether voluntarily or under duress, Plaintiffs agreed to submit their DNA samples for the analysis. (Investigation Narrative, p. 199). Dr. Howenstine then took multiple buccal swabs each from Lowe and Reynolds4. (Investigation Narrative, p. 199) (GenQuest DNA Analysis Laboratory Analysis Report (Exhibit F), hereinafter referred to as “GenQuest Analysis Report”).

After submitting their DNA samples, Lowe and Reynolds were subjected to mocking names by coworkers who suspected them of being the person who was defecating in the warehouse – names like “shit man” and “little shitty.” (Reynolds Dep. 74:23-75:5) (Lowe Dep. 38:7-17).

E. The Analysis of Plaintiffs’ DNA 

It is undisputed that Dr. Howenstine conducted an analysis of human DNA. (Howenstine  Dep.  88:1-4).  More  specifically,  she  analyzed  Plaintiffs’  DNA

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(4) The third suspected employee, Bernard Terrell, was not present at the warehouse that day and was tested at a later date.  (Investigation Narrative, p. 199).

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samples, comparing them to DNA found in the fecal samples. (GenQuest Analysis Report) (Howenstine Dep 6:15-7:16) (Expert Report, dated October 10, 2014, of Dr. Julie A. Howenstine, DVM (Exhibit G), hereinafter referred to  as “Howenstine Expert Report”, pp. 1-2) (Letter from Dr. Julie A. Howenstine, DVM to Don Hill, dated October 22, 2012 (Exhibit H), hereinafter referred to as “Letter re: Test Results”.). This was the analysis and information requested by Atlas: to compare the DNA found in the feces to the DNA found in Plaintiffs’ samples in order to see if they matched.  (Admission # 11).

To accomplish this, Dr. Howenstine sent Plaintiffs’ DNA samples, along with the fecal sample, to GenQuest DNA Analysis Laboratory (“GenQuest”) for testing. (Howenstine Dep. 30:17-31:11) (GenQuest Analysis Report). She sent the samples to GenQuest through a “middle man” company called Semen and Sperm Detection, Inc. (“SSDI”). (Howenstine Dep. 30:17-31:11) (GenQuest Analysis Report).

The DNA analysis was performed using a tool called PowerPlex 21, a kit used to make copies of DNA samples and then capture information about the size of the resulting DNA fragments on a graph called an electropherogram. (Howenstine  Dep  6:15-7:16, 47:7-49:8) (Letter re:  Test  Results).   PowerPlex 21

 

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detects genotypes(5) at 21 different DNA locations. (Expert Report, dated July 31, 2014, of Dr. Barbara E. Llewellyn, Ph.D. (Exhibit I), hereinafter referred to as “Llewellyn Expert Report”, pp. 2-3). See also (Howenstine Expert Report, p. 2) (arguing that the genotypes detected by PowerPlex 21 cannot determine genetic limitations of an individual). It also detects mutations. (Howenstine Dep. 85:24- 86:11, 88:5-8).

F. Reporting the Requested Information re: Analysis of Plaintiffs’ DNA to Atlas

On October 22, 2012, Dr. Howenstine sent Hill a letter containing information about her analysis of Plaintiffs’ DNA. (Letter re: Test Results) (Hill 30(b)(6) Dep. 87:5-88:14). Specifically, she notified Hill that Plaintiffs’ DNA did not match the DNA found in the fecal samples(6).   (Letter re: Test Results).  The information in that letter is the information Atlas requested from Speckin Labs. (Hill 30(b)(6) Dep. 85:9-15) (Howenstine Dep. 79:5-8).

G. Plaintiffs’ DNA Samples Were Lost

GenQuest received two buccal swab/DNA samples for each Plaintiff and only destroyed one each as part of its testing.   (GenQuest Analysis Report).     The

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(5) “Genotypes” are the characterization of genetic types found at different DNA locations. (Llewellyn Expert Report, p. 2).

(6) The later analysis of the DNA of the final suspected employee, Bernard Terrell, also showed that his DNA did not match the DNA in the fecal sample. (Investigation Narrative, pp. 201-02).

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remaining samples were retained in a storage bin. Id. Dr. Howenstine testified that she ordered the samples to be destroyed. (Howenstine Dep. 75:22-76:11, 89:1-22). However, just before her testimony in this case, Dr. Howenstine was told by a GenQuest representative that the samples were instead returned to SSDI (7). Id. She has not found any records that the samples were received or destroyed by either Speckin Labs or SSDI. Id. No representative of Atlas ever observed Plaintiffs’ DNA samples being disposed of.  (Admission # 18).  In other words,  it is not known what happened to Plaintiffs’ DNA samples.

Under the right conditions, DNA on buccal swabs – such as Plaintiffs’ DNA samples – can last as long as 50 or 60 years.  (Howenstine Dep. 67:22-69:4).

H. Procedural Prerequisites to this Litigation

On March 27, 2013 – 167 days after Atlas obtained their DNA samples and requested Speckin Labs provide information about analysis of those samples (October 11, 2012) – Lowe and Reynolds both filed charges of discrimination with the EEOC. (Complaint ¶ 11) (Answer ¶ 11) (Lowe EEOC Charge (Exhibit J)) (Reynolds  EEOC  Charge  (Exhibit  K)).    These  charges  alleged  Atlas illegally

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(7) At some time between the dates the testing took place and the date Dr. Howenstine testified in this case, Speckin Labs purchased SSDI. (Howenstine Dep. 31:12-21).

 

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requested and disclosed(8) Plaintiffs’ genetic information in violation of GINA. (Lowe EEOC Charge) (Reynolds EEOC Charge). The EEOC issued Plaintiffs separate Notices of Right to Sue on April 24, 2013, entitling them to file suit within 90 days of receipt of the notices. (Complaint ¶ 12) (Answer ¶ 12) (Lowe Notice of Right to Sue (Exhibit L)) (Reynolds Notice of Right to Sue (Exhibit M)). Plaintiffs filed this lawsuit within that 90-day window, specifically on July 22, 2013 (89 days after the date on the Right to Sue). (Complaint ¶ 13) (Answer ¶ 13).

IV.           ARGUMENT AND CITATION OF AUTHORITY

  1. Standard of Review 

Fed. R. Civ. P. 56(c) authorizes summary judgment when “there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.” The substantive law applicable to the  case determines which facts are material. Anderson v. Liberty Lobby, Inc., 477  U.S. 242, 248 (1986). Where the moving party bears the burden of proof, it must support its motion with evidence that is admissible under Fed. R. Civ. P. 56(c). Celotex Corp. v. Catrett, 477 U.S. 317, 331 (1986). The Court may consider an otherwise inadmissible hearsay statement in passing on a motion for summary

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(8) Plaintiffs hereby withdraw the disclosure claim and will take whatever subsequent action is necessary to effectuate that withdrawal.

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judgment “if the statement could be reduced to admissible evidence at trial or reduced to admissible form.” Jones v. UPS Ground Freight, 683 F.2d 1283, 1293- 94 (11th Cir. 2012).(9)

B. Atlas Illegally Requested Plaintiffs’ Genetic Information 

In Order to Promote Advancements in Medicine for All Americans, GINA Prohibits Employers From Even Requesting Genetic Information With Respect to Employees

The impetus for the Genetic Information Nondiscrimination Act of 2008 (“GINA”) began with Congress’s recognition of the astounding potential for advances in medicine based on individuals’ participation in genetic tests. (10) These advances have the potential to benefit current and future generations.

However, Congress also recognized the same scientific advances opened the potential for dangerous abuses, particularly by employers and health insurers. (11) Even worse, Congress heard testimony that the fear of such abuses could cause

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(9) Thus, Atlas’s investigation narrative and the expert reports of Dr. Barbara Llewellyn and Dr. Julie Howenstine are admissible for summary judgment purposes. The information in those documents could be reduced to the testimony of Donald Hill, Dr. Llewellyn and Dr. Howenstine at trial.

(10) Genetic Information Nondiscrimination Act of 2008 (Findings), Pub. L. No. 110-233, 122 Stat. 881, 881-82 (2008) (“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.”).

(11) Findings, 122 Stat. at 882 (“These advances give rise to the potential misuse of genetic information to discriminate in health insurance and employment.”). See also Findings, 122 Stat. at 882 (surveying America’s history of abuses of genetic information, such as eugenics, race discrimination, and certain cases of employment discrimination).

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people to entirely forgo genetic testing, thereby cutting off the source of advances in genetic science and the seemingly limitless medical benefits those advances provide.12       Congress  passed  GINA  to  allay  these  fears  and  thereby   promote medical  advances.(13)     GINA,  therefore,  prohibits  employers  from discriminating against its employees based on the employees’ genetic information. 42 U.S.C. § 2000ff-1(a).

But simply prohibiting discrimination was not enough. Congress chose  to go one step further in its efforts to allay fears of genetic discrimination. Perhaps noting that the American people do not trust employers with their DNA (14), Congress took the prophylactic measure of prohibiting employers from even acquiring their employees’ genetic information!   Thus, 42 U.S.C.  §    2000ff-1(b)

12 See 110th Congress, Hearing on Genetic Non-Discrimination Before the Subcommittee on Health of the House. Committee on Ways on Means (2007) (statement of Francis S. Collins, M.D., Ph. D., Director, National Human Genome Research Institute, National Institutes of Health), available at http://waysandmeans.house.gov/media/pdf/110/3-14-07/collinstestimony.pdf (“Many people are afraid that their genetic information will be used against them and are unwilling to participate in medical research or be tested clinically, even when they are at substantial risk for serious disease. . . If individuals continue to worry that they will be denied health insurance or refused employment because they have a predisposition to a particular disease, they may forego genetic testing that could help guide medical professionals to lessen their risk, simply because the test identifies them as having such a predisposition.”).

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(13) Findings, 122 Stat. at 882-83 (“Federal legislation establishing a national and uniform basic standard is necessary 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 .”) (emphasis added). See also 154 Cong. Rec. H71, 2977 (daily ed. May 1, 2008) (Statement of Rep. Biggert) (explaining three benefits of GINA: [1] people could make better medical decisions based on the results of their individual genetic tests, [2] preventive measures taken as a result of those tests would reduce health care costs, and [3] more people would feel safe participating in genetic clinical trials, thus promoting the health of all Americans).

(14) See 10-172 Larson on Employment Discrimination § 172.02 (“A survey of 1,199 Americans in 2007 found that only 24 percent would trust health insurers with their genetic information and only 16 percent would trust employers with such information. In a 2006 poll of 1,000 Americans, 85 percent believed that employers would use genetic information to discriminate if genetic nondiscrimination legislation was not passed.”).

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reads: “It shall be an unlawful employment practice for an employer to request, require, or purchase genetic information with respect to an employee or the family member of the employee” subject to six narrow exceptions, none of which apply to this case (Admission # 20).

GINA Prohibits Employers From Requesting Information About An Analysis of Its Employees’ DNA That Detects Genotypes or Mutations

The definitions found at 42 U.S.C. § 2000ff help clarify  what, exactly, GINA is saying when it prohibits employers from requesting “genetic information.”  Two terms, in particular, are important:

  • “Genetic information” is defined, in relevant part, as “with respect to any individual, information about . . . such individual’s genetic tests.” 42 S.C.
  • 2000ff(4)(A)(i).
  • “Genetic tests” are defined, in turn, as “an analysis of human DNA, RNA, chromosomes, proteins, or metabolites, that detects genotypes, mutations or chromosomal changes.” 42 U.S.C. § 2000ff(7)(A).

Thus, pared down to the parts that are relevant to this case and clarified by the definitions, GINA prohibits an employer from requesting information   about

an  analysis  of  its  employees’  DNA  if  that  analysis  detects  genotypes     or

mutations.

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Atlas Violated GINA by Requesting Information About An Analysis of Plaintiffs’ DNA that Detects Genotypes and Mutations

Atlas requested that Speckin Forensic Laboratories (1) conduct an analysis of Plaintiffs’ DNA – an analysis that detects genotypes and mutations – and then (2) provide Atlas with information about that analysis (to wit, whether Plaintiffs’ DNA profiles matched the DNA profile found in the feces). The elements of the violation as applied to the undisputed facts are as follows:

There was an analysis of human DNA (Plaintiffs’ DNA): Dr. Howenstine admits she analyzed human DNA. (Howenstine Dep. 88:1-4). More specifically, she and her colleagues at other labs analyzed Plaintiffs’ DNA samples, comparing them to DNA found in certain fecal samples. (GenQuest Analysis Report) (Howenstine Dep 6:15-7:16) (Howenstine Expert Report, pp. 1-2) (Letter re: Test Results).

The analysis performed on Plaintiffs’ DNA detects genotypes: The  DNA

analysis was performed using a tool called PowerPlex 21. (Howenstine Dep 6:15- 7:16) (Letter re: Test Results). Plaintiffs’ expert, Dr. Barbara  Llewellyn, will testify  that  PowerPlex  21  detects  genotypes (15)   at  21  different  DNA  locations.

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(15) She will also testify that “genotypes” are the characterization of genetic types located at different DNA locations. (Llewellyn Expert Report., p. 2) In other words, to detect a genotype is to detect which particular genetic molecules are found at a particular DNA location.

 

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(Llewellyn Expert Report., pp. 2-3). Atlas’s expert, Dr. Howenstine, also admits that PowerPlex 21 detects genotypes(16).  (Howenstine Expert Report, p. 2).

The analysis performed on Plaintiffs’ DNA detects mutations: If there  is

any confusion as to whether PowerPlex 21 detects genotypes, it is clear that it detects mutations. This is the undisputed testimony of Defendant’s own expert. (Howenstine Dep. 85:24-86:11, 88:5-8). Thus, even if the analysis performed on Plaintiffs’ DNA did not detect genotypes, it still falls within GINA’s purview because it detects mutations.

Atlas requested information about this analysis: The letter, dated October 22, 2012, from Dr. Howenstine to Don Hill of Atlas Logistics contains information about the above-referenced DNA analysis, specifically whether Plaintiffs’ DNA samples match the DNA samples from feces discovered in the warehouse. (Letter re: Test Results) (Hill 30(b)(6) Dep. 87:5-88:14).   This is the information Atlas requested from Speckin Labs. (Hill 30(b)(6) Dep. 85:9-15) (Howenstine Dep. 79:5-8). Put more directly, Atlas requested that Speckin Labs compare the DNA found in the feces to the DNA found in Plaintiffs’ samples in order to see if they matched. (Admission # 11). In so doing, Atlas requested information about the above-referenced analysis of Plaintiffs’ DNA.   And, since that analysis detects

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(16) This admission is implicit in her opinion that the genotypes detected by PowerPlex 21 cannot determine limitations of an individual. (Howenstine Expert Report, p. 2).

 

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genotypes and mutations, Atlas violated GINA unless it can prove that its request falls under one of the six exceptions listed in the statute.

None of  the statutory  exceptions apply to this  case:  Atlas admits    this.

(Admission # 20).

To summarize, Atlas requested information about an analysis of Plaintiffs’ DNA, an analysis that detects genotypes and mutations. Atlas, therefore, violated GINA and is liable. The analysis should end there. But Atlas instead attempts to sidestep the straightforward application of the law to its actions by fabricating an extra-statutory exception to GINA’s prohibition on requesting genetic information.

C. Atlas’s Attempt to Invent An Exception to GINA (for Forensic DNA Testing for Identity) Has No Support in the Text or Policy of GINA

Atlas argues that GINA is meant to prevent discrimination based on hereditary (that is, genetic) medical conditions. It further argues that the analysis it requested was merely “forensic.” It was conducting an investigation to determine the identity of the person leaving feces in the warehouse; it was not trying to learn about Plaintiffs’ genetic propensity for disease. Moreover, Atlas argues, the PowerePlex 21 analysis it requested detects only identity, not genetic diseases. Thus, Atlas argues, it did not violate GINA because it did not acquire or request

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information about genetic health  conditions.     The problem with this argument   is that it has no support in the text or policy of GINA.

Atlas’s Proposed Exception Has No Support in the Text of GINA

The relevant definitions – “genetic information” “genetic test” – from GINA’s text are set forth above. None of these definitions limits those terms – and thus the coverage of GINA’s prohibition – to information about hereditary medical conditions. Nor is forensic/identity DNA testing excluded from the definition of “genetic tests.” Therefore, Atlas is essentially arguing for a new exception to GINA’s prohibition on requesting genetic information: one for “forensic” analysis that only detects identity.

This extra-statutory exception is not only absent from the text of GINA, it is contradicted  by  that text. In  particular,  it  is  contradicted  by the sixth statutory exception to GINA’s prohibition on employers acquiring employees’ genetic information, which permits an employer to request its employees’ genetic information where the employer conducts DNA analysis for law enforcement purposes as a forensic laboratory or 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).

 

 

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Thus, Congress created an exception to its prohibition against requesting genetic information and applied it to a particular subset of    forensic/identification

DNA analysis: specifically when a law enforcement forensic/human remains identification laboratory uses its employees’ genetic information to detect sample contamination. This exception applies to an analysis of DNA that clearly does not detect hereditary genetic diseases.

If, as Atlas argues, GINA does not apply to any DNA analysis that does not detect genetic diseases, then the sixth statutory exception would be unnecessary surplusage. “It is a fundamental canon of statutory interpretation that this Court should read every part of the statute to have meaning.” Bryant v. Warden, 738 F.3d 1253, 1286 (11th Cir. 2013). In other words, if Congress believed it was necessary to craft this narrow exception, it must have intended GINA’s prohibition to apply to forensic DNA analysis, even if it does not detect genetic diseases. (17)

Atlas’s Proposed Exception Has No Support in the Policy of GINA

As explained above, the policy of GINA is not just  preventing discrimination based on genetic information. It is also allaying fears of the misuse of such information so that people feel safe getting genetic tests.  Atlas’s proposed exception  to  GINA  –  to  permit  employers  to  request  genetic  information  for

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(17) This interpretation is supported by a recent EEOC informal discussion letter. GINA: Forensic Lab Exception to Rules prohibiting Acquisition of Genetic Information (EEOC Informal Discussion Letter dated June 6, 2012), available at http://www.eeoc.gov/eeoc/foia/letters/2012/gina_forensic_lab_exception.html .

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forensic identification purposes – would do nothing to alleviate such fears…and much to exacerbate them.

In fact, this case is the perfect example for why such fears exist, even when the lab and the employer assure us that they did not look into Plaintiffs’ propensity for genetic diseases. There is always the possibility that the DNA taken from employees could be lost or taken by less honest parties.

For instance, in this case, neither Atlas nor the laboratories know what ultimately happened to Plaintiffs’ DNA samples. Atlas admits that it did not  have a representative observe whether the samples were destroyed. (Admission # 18). Similarly, Dr. Howenstine admitted in her testimony that she could not find any documentation that Plaintiffs’ remaining DNA samples were destroyed or even that they arrived back in the lab after being shipped out for analysis. (Howenstine Dep. 75:22-76:11, 89:1-22).

DNA samples on buccal swabs – such as Plaintiffs’ samples – can last as long as 50 or 60 years. (Howenstine Dep. 67:22-69:4). With their DNA samples lost, it is not unreasonable for Plaintiffs to fear that they or their children will be blindsided by the wrong parties obtaining some information from their DNA 30 years from now. Thus, even in this seminal case for the exception Atlas wishes to create, the fears GINA was passed to combat are only made worse.

 

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Even if that were not the case, however, Atlas’s exception still runs contrary to the policy of GINA.  Even if Plaintiffs’ DNA samples were destroyed, and  even

if Atlas and all the labs that handled those samples did not obtain any information on Plaintiffs’ genetic predisposition to disease, Atlas’s exception would not just apply to this case.  It would apply to every case in which the employer collecting its employees’ genetic information claims that it will not use such information to learn about its employees hereditary medical information.

This gaping hole in GINA’s protections would open the door for unscrupulous employers to gather hereditary genetic information from its employees under the pretext of a “forensic investigation.” Absent some whistleblower’s intervention, employees would never know that their genetic information had been misused. The only defense employees would have is “trust us.” But Congress clearly did not “trust” employers to safeguard DNA and genetic information from exploitation. That is why Congress took the preemptive measure of prohibiting employers from even requesting such information.

There is, therefore, no basis for Atlas’s proposed exception to GINA. GINA expressly prohibits the actions taken by Atlas in this case.

 

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D. The Background Requirements of Coverage and EEOC Administrative Exhaustion Are Satisfied

Summary judgment is appropriate on the issue of whether the parties are covered by GINA because coverage is undisputed. Specifically, Atlas admits  that it meets the statutory definition of “employer” (Complaint ¶ 8) (Answer ¶ 8) and that Plaintiffs meet the statutory definition of “employee” (Complaint ¶ 10) (Answer ¶ 10).

Summary judgment is also appropriate regarding EEOC Administrative Exhaustion, again because the facts are undisputed. Plaintiffs filed timely EEOC charges alleging Atlas requested their genetic information in violation of GINA. (Complaint ¶ 11) (Answer ¶ 11) (Lowe EEOC Charge) (Reynolds EEOC Charge). And Plaintiffs filed this action within 90 days of receipt of the Right to Sue letters from the EEOC. (Complaint ¶ 12) (Answer ¶ 12) (Lowe Notice of Right to Sue) (Reynolds Notice of Right to Sue).

E. Atlas Has Not Proven Any of Its Affirmative Defenses With Respect to Liability

The Summary Judgment standard of review shifts for Atlas’s affirmative defenses because Defendant bears the burden of proof on those defenses. Where the non-moving party bears the burden of proof, the moving party may obtain summary judgment simply by establishing the nonexistence of a genuine issue   of

 

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material fact as to any essential element of Defendant’s affirmative defense. Celotex Corp. v. Catrett, 477 U.S. 317, 331 (1986). Under such circumstances, the moving party does not have to “support its motion with affidavits or other similar material negating the opponent’s claim.” Id. at 323 (emphasis in original). The moving party may discharge its burden in this situation by showing the Court that “there is an absence of evidence to support the nonmoving party’s case.” Id. at 325. Once the moving party discharges its initial burden, a non-moving party who bears the burden of proof must set forth specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e).

Atlas asserted ten (10) affirmative defenses in its Answer. However, the Third, Fourth, Fifth, Eighth and Tenth defenses only apply to damages. Because Plaintiffs only seek summary judgment as to liability in this motion, those defenses are irrelevant.  The relevant defenses are addressed below in turn.

First Defense – Failure to State a Claim:   In its First affirmative  defense, Atlas argues Plaintiffs fail to state a cause of action upon which relief may be granted and fail to allege sufficient facts necessary to state a claim 18. There is little that can be said about this defense. Plaintiffs clearly allege a straightforward violation of 42 U.S.C. § 2000ff-1(b) in that they allege Atlas requested genetic

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(18) Notably, Atlas has not filed a Motion to Dismiss.

 

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information with respect to them. As argued extensively above, not only do they state a claim, they are entitled to summary judgment as to liability.

Second Defense – Statute of LimitationsAtlas’s defense based on Statute of Limitations is equally baseless. See the evidence and arguments  above regarding EEOC Administrative Exhaustion. Plaintiffs filed EEOC charges alleging the GINA violations set forth in this Motion within 180 days of the date Atlas requested their genetic information, and they filed suit within 90 days of receiving their Notice of Right to Sue. Therefore, their claim falls easily within the applicable statute of limitations.

Sixth Defense – Waiver/Estoppel Due to ConsentIn its Sixth affirmative defense, Atlas argues, “To the extent Plaintiffs claim that Defendant’s actions violated GINA, Plaintiffs waived their right to pursue such claims or alternatively, are estopped form pursuing such claims by knowingly and voluntarily participating in the conduct which they now allege as the basis of their  Complaint.” This defense betrays a fundamental misunderstanding of GINA’s prohibitions. (19)

First, GINA prohibits employers from requesting genetic information in  the first place. 42 U.S.C. § 2000ff-1(b). Thus, an employer violates GINA simply by making the request, whether or not employees or others comply with that request

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(19) In fact, Plaintiffs contend that they were coerced into submitting their DNA samples. But even if they voluntarily provided such samples, such “consent” is legally irrelevant for the reasons explained here.

 

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(voluntarily  or  under   duress).  Certainly,  Plaintiffs  did  not  “participate”    in Defendant’s decision to make the request in the first place.

Second, there is no exception in the statute for consent. Consent  is an element of the second and fifth   exceptions.      42  U.S.C.  §§ 2000ff-1(b)(2)  & (5).

But there is no stand-alone consent exception.

Finally, as explained in detail above, Atlas’s violation was requesting information about the analysis of Plaintiffs’ DNA performed by Speckin Labs. This violation has nothing to do with whether Plaintiffs voluntarily submitted their DNA to Speckin Labs.

Seventh  Defense  –  No  Violation  of  GINA    Rights: Atlas’s  Seventh affirmative defense is simply the bald assertion that “Plaintiffs’ rights under GINA have not been violated in any manner, or at all.” This is not actually an affirmative defense, but an argument that Plaintiffs have not proven a violation of GINA. The majority of this brief explains in detail why Plaintiffs have proven that Atlas violated GINA.  Those arguments need not be restated here.

Ninth Defense – Preemption by Labor Management Relations Act: In its

Ninth affirmative defense, Atlas argues that Plaintiffs’ claims are preempted by Section 301 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185. The LMRA preempts state law claims that require interpretation of a collective

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bargaining agreement.  Watts v. UPS, 701 F.3d 188, 191 (6th  Circ. 2012).     This defense is inapposite for two reasons.

First, the LMRA does not preempt federal law claims. See Id. at 191-93 (Americans with Disabilities Act); Pelech v. Klaff-Joss, LP, 828 F.Supp. 525, 531 (N.D. Ill. 1993) (Title VII). LMRA preemption exists to ensure that federal labor law uniformly prevails over inconsistent interpretation of collective bargaining agreements by state courts, a concern that does not apply to claims that arise independently from federal laws, rather than from collective  bargaining agreements or state laws.  Watts, 701 F.3d at 191-92.

Second, Plaintiffs’ GINA claim in this case does not require interpretation of the Collective Bargaining Agreement (“CBA”) between Atlas and the Teamsters union. The only plausibly related provision of the CBA is the prohibition of discrimination (Article 2), which prohibits discrimination based on, inter alia, genetic information. (Collective Bargaining Agreement, Article 2). However, Plaintiffs are not alleging discrimination based on genetic information in this lawsuit.   They are alleging illegal acquisition of genetic information.   The CBA makes  no  reference  to  the  collection  of  genetic  information  from  employees. (Collective Bargaining Agreement).  Therefore, even if Section 301 of the   LMRA

 

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preempted federal claims, it would not preempt this particular claim because there is no need to interpret the CBA.

V. CONCLUSION

Atlas directly violated GINA by requesting information about an analysis of Plaintiffs’ DNA that detects genotypes and mutations. Atlas’s proposed exception to GINA has no basis in the text or policy of the statute. And Atlas has not proven any of its affirmative defenses. Therefore, Plaintiffs respectfully request that this Court grant their motion for Partial Summary Judgment as to liability.

Respectfully submitted this 30th day of October, 2014.

s/Benjamin A. Stark        
Benjamin F. Barrett
Georgia Bar No. 039586
Amanda A. Farahany
Georgia Bar No. 646135
Benjamin A. Stark
Georgia Bar No. 601867

Attorneys for Plaintiffs Jack Lowe and Dennis Reynolds 

BARRETT & FARAHANY, LLP
1100 Peachtree Street, N.E. Suite 500
Atlanta, GA 30309
(404) 214-0120
bstark@bf-llp.com

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