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Doe v. Septa

  I thought that people here might be interested in a recent court
  case that bears on the confidentiality of health records.  I have
  included the full text of the decision in this message (it is not
  short!) for those who want to read it for themselves.  It is a
  decision with three separate opinions.
  The basic issue is whether and when an employer may obtain
  identifiable information about the prescription drugs being used
  by an employee who is covered by a self-insured insurance plan.
  The better news is that the Third Circuit continues to recognize
  a constitutional interest in the privacy of medical information. 
  This is more than the Supreme Court said in Whalen v. Roe.  Until
  the Supreme Court revisits Whalen, I wouldn't get too excited
  about the constitutional right.  Still, the Third Circuit's later
  decision in Westinghouse is pretty good, and it is being followed
  at least in the Third Circuit.  The constitutional interest is
  only relevant because the defendant is a governmental
  organization.  It would not matter if the defendant had been a
  private company.
  The other side is that all of the judges, even the dissenting
  judge, seem to recognize that employers have a broad interest in
  seeing the prescription records of employees.  This is a quote
  from the dissent:
       I agree that there is an important public interest in
       allowing companies such as SEPTA, which administer their own
       health plans, to have access to the prescription drug
       records of their employees. (Maj. Op. at 20-21). In general,
       I would agree that such employers have a legitimate need for
       this information.  
  This case is much more complex than this simple quote, and there
  are many other important factors.  But it is clear that, in this
  case at least, that the court was willing to give employers
  engaged in cost containment activities broad rights to see
  employee health data.  This simply underscores the widespread and
  routine use of health data in today's largely unregulated
  The case also suggests how hard it will be to completely cut off
  this type of use of health records.  The proposed federal
  legislation would impose restrictions on how much use employers
  and others could make of health records.
  There was another recent case in federal district court in
  Colorado that reached the opposite result using the Americans
  with Disabilities Act as a basis for decision.  I don't have a
  copy of that decision (anybody have one that they can post
  here??).  The press account suggests that the context was drug
  and alcohol testing and not cost containment.  It will take a lot
  more court cases before the battle among competing legal theories
  is resolved.
  + + + + + + + + + + + + + + + + + + + + + + + + +
  +   Robert Gellman          rgellman@cais.com   +
  +   Privacy and Information Policy Consultant   +
  +   431 Fifth Street S.E.                       +    
  +   Washington, DC 20003                        + 
  +   202-543-7923 (phone)   202-547-8287 (fax)   +
  + + + + + + + + + + + + + + + + + + + + + + + + +
  NO. 95-1559  
  JOHN DOE, a SEPTA employee,  
  Appeal from the Orders of the United States Court for the Eastern District  
  of Pennsylvania  
  D.C. No. 93-cv-5988  
  Argued October 11, 1995  
  Before: Greenberg, Lewis and Rosenn, Circuit Judges  
  Opinion Filed December 28, 1995  
  Clifford A. Boardman (argued)  
  Two Penn Center, Suite 1920  
  Philadelphia, PA 19102  
  Yolanda Lollis  
  AIDS Law Project of Pennsylvania  
  1211 Chestnut St., 12th Floor  
  Philadelphia, PA 19107  
  Counsel for Appellee  
  J. Freedley Hunsicker, Jr. (argued)  
  Drinker, Biddle & Reath  
  1345 Chestnut Street  
  Philadelphia, PA 19107-3496  
  Counsel for Appellants  
  ROSENN, Circuit Judge.  
  This appeal requires that we probe the depth and breadth of an employee's  
  conditional right to privacy in his prescription drug records. John Doe, an  
  employee of the Southeastern Pennsylvania Transportation Authority (SEPTA)  
  1 , initiated this action under 42 U.S.C.  1983 against his self-insured  
  employer, alleging that the defendants violated his right to privacy.  
  Plaintiff claims that, in monitoring the prescription drug program put in  
  place by SEPTA for fraud, drug abuse and excessive costs, the Chief  
  Administrative Officer, Judith Pierce, and the Director of Benefits, Jacob  
  Aufschauer, learned that John Doe had contracted Acquired Immunodeficiency  
  Syndrome (AIDS). This, he alleges, invaded his right to privacy.  
  A jury found for the plaintiff and awarded him $125,000 in compensatory  
  damages for his emotional distress. The trial court denied defendants'  
  motion under Rule 50 for judgment as a matter of law, or alternatively for  
  a new trial. The court also denied defendants' motion for a reduction in  
  damages. The defendants timely appealed. We reverse.  
  We set forth the facts as the jury could have found them in support of its  
  verdict. Accordingly, all evidence and inferences therefrom must be taken  
  in the light most favorable to the verdict winner. See Parkway Garage, Inc.  
  v. City of Philadelphia, 5 F.3d 685, 691-92 (3d Cir. 1993)(as amended on  
  petition for rehearing). In 1990, Judith Pierce became the Chief  
  Administrative Officer for SEPTA. Her responsibilities included containing  
  the costs of SEPTA's self-insured health program. In 1992, a collective  
  bargaining agreement with Local Union 234 required SEPTA to provide, inter  
  alia, prescription drugs for the employees. SEPTA entered into a contract  
  with Rite-Aid Drug Store to be the sole provider for all of SEPTA's  
  prescription drug programs. As part of this contract, Rite-Aid provided  
  SEPTA with an estimate of the yearly costs of this program. If, at the end  
  of the year, the actual cost to Rite-Aid amounted to over 115% of that  
  estimate, SEPTA would have to pay substantial penalties; however, if the  
  actual cost was 90% or less of that estimate, SEPTA would be entitled to  
  rebates. Pierce was responsible for monitoring those costs.  
  John Doe is a SEPTA employee. At all times relevant to this appeal, Doe was  
  HIV-positive, and had contracted AIDS by the time of trial. In 1991, Doe  
  began to take Retrovir for his condition. Retrovir is a prescription drug  
  used solely to treat HIV. Before filling his prescription, Doe asked Dr.  
  Richard Press, the head of SEPTA's Medical Department and Doe's direct  
  supervisor, if he or anyone else reviewed employee names in association  
  with the drugs the employees were taking. Doe wished to keep his condition  
  a secret from his co-workers. Dr. Press assured Doe that he had only been  
  asked to review names on prescriptions in cases of suspected narcotics  
  abuse and knew of no other review that included names. After receiving this  
  information, Doe filled his prescription through the employer's health  
  insurance. He continued to do so after SEPTA switched to Rite-Aid; he was  
  never informed that this change might alter his confidentiality status.  
  In November of 1992, Pierce requested and received utilization reports from  
  Rite-Aid. These reports were part of the contract between Rite-Aid and  
  SEPTA. Pierce did not request the names of SEPTA employees in the reports,  
  and Rite-Aid sent the reports in their standard format. They included  
  statistics on the number of employees with five or more prescriptions  
  dispensed in a one-month period, the top 25% by cost of drugs bought by  
  SEPTA employees, and the report at issue here. This report listed employees  
  who were filling prescriptions at a cost of $100 or more per employee in  
  the past month. Each line of the report included the name of an employee or  
  dependent, a code to identify the prescribing doctor, the dispense date of  
  the prescription, the name of the drug, the number of days supplied, and  
  the total cost. Pierce called Aufschauer into her office, and the two of  
  them reviewed the report. It was immediately apparent to Pierce that the  
  reports would reveal employees' medications; however, she reviewed them in  
  the format as submitted. She did not at that time request Rite-Aid to  
  redesign SEPTA's reports to encode employees' names.  
  Pierce stated that her purpose in reviewing the reports with Aufschauer was  
  several-fold. First, she wanted to look for signs of fraud and drug abuse.  
  She testified that in the past, some employees would purchase prescription  
  drugs under the SEPTA health plan in order to give them to an ill friend or  
  relative who was not covered by SEPTA's benefit package. Second, Pierce  
  wanted to determine if Rite-Aid was fulfilling its promise to use generic  
  rather than brand name drugs whenever possible. Third, although they were  
  both covered in the Rite-Aid contract, Pierce wanted to determine the cost  
  to SEPTA of fertility drugs and medications to help employees stop smoking,  
  such as nicotine patches. Finally, Pierce wanted to determine whether the  
  reports were in a summary form and whether they would permit an audit. Her  
  review, however, focused almost entirely on the current report, which  
  included employees' names. She also testified that people who had seen this  
  report, she, Aufschauer, and Dr. Press "were very careful to maintain the  
  confidentiality of the people."  
  Pierce and Aufschauer scanned the reports. When they came across a drug  
  name neither one recognized, they would look it up in a Physician's Desk  
  Reference (PDR) that Pierce had. Pierce then called Dr. Louis Van de Beek,  
  a SEPTA staff physician, and inquired about the drugs not listed in the  
  PDR. She asked the doctor for what Retrovir was used. When Dr. Van de Beek  
  told her it was used in the treatment of AIDS, she inquired whether there  
  was any other use for it. He told her no. She then asked about the three  
  other medications that Doe was taking, and was informed that they were all  
  AIDS medications as well. Pierce discreetly never mentioned Doe by name;  
  however, Dr. Van de Beek was aware of Doe's condition and Doe's medications  
  because Doe himself had disclosed this information to him. Therefore, Dr.  
  Van de Beek deduced that Pierce was asking about Doe. He told her that if  
  she were trying to diagnose employees' conditions through prescriptions, he  
  felt this was improper and possibly illegal. Pierce immediately ended the  
  conversation and told him not to speak of the conversation to anyone.  
  Pierce then took the report to Dr. Press. She asked him if he would be able  
  to perform an audit using the information in the report. Press noted that  
  Pierce had highlighted certain lines on the report, including employees'  
  names and the drugs that each of those highlighted employees were taking.  
  Press testified that the drugs highlighted were all HIV or AIDS-related.  
  Pierce asked Press if he knew whether any of the people whose names were  
  highlighted were HIV-positive. Press said that he was aware of Doe's  
  condition. He then told Pierce that he was uncomfortable with the presence  
  of the names on the report. He also told her that he had neither the  
  expertise nor the resources to perform an audit.  
  Dr. Press then approached James Kilcur, the General Counsel of SEPTA, and  
  expressed his concern about the names on the report. Kilcur called Pierce  
  and asked her whether the names were necessary for her purposes. She  
  replied that they were not and then destroyed the report. SEPTA then  
  instructed Rite Aid to submit all future reports without names.  
  Dr. Van de Beek informed Doe of Pierce's questions. He told Doe that Pierce  
  had likely found out that Doe was HIV-positive. Doe claims he became upset  
  at this news. He avers that he became more upset upon discovering from Dr.  
  Press that Pierce had his name highlighted on a list because he didn't know  
  who had access to or had seen this "AIDS list" and only a few SEPTA  
  employees knew of his HIV-status. He had told Press and Van de Beek, as  
  well as his acting supervisor and the administrative assistant of his  
  department that he had AIDS. He testified that these were all people he  
  trusted to keep this information confidential, and he wanted to explain to  
  them his need for periodic leaves of absence. He did not want Pierce to  
  know of his condition.  
  After these incidents, Doe remained at SEPTA in his current position. He  
  makes no claim of personal discrimination or of any economic deprivation.  
  He later received a salary upgrade and promotion. However, he testified  
  that he felt as though he were being treated differently. A proposal he had  
  made for an in- house employee assistance program met with scant interest;  
  he felt that this was because of his HIV condition. In addition, an  
  administrator who reported to Pierce did not call on Doe to assist in the  
  same way that he had called on Doe earlier. Doe testified that he felt as  
  though there was less social chitchat, co-workers ate less of the baked  
  goods he brought to the office to share, and that his work space seemed  
  more lonely than before. He also became fearful of Pierce, who never told  
  Doe that she knew of his illness. Doe alleges that he became depressed and  
  requested a prescription for Zoloft, an antidepressant, from his physician.  
  Later, another antidepressant called Elavil was added to the medications  
  Doe was taking.  
  Doe filed suit in the United States District Court 2 against Pierce in both  
  her individual and official capacities, and against SEPTA. Defendants moved  
  for summary judgment on the grounds that Doe had no right to privacy in the  
  information contained in the Rite Aid report; that if he did have such a  
  right it had not been violated because no disclosure had occurred; and that  
  any interest Doe might have in the privacy of these records was outweighed  
  by their legitimate interests in the information. These arguments were  
  rejected by the district court, which denied their motion.  
  After a jury trial, defendants moved under Rule 50 for judgment as a matter  
  of law, or, alternatively, for a new trial under Rule 59. They also moved  
  for a reduction in damages on the grounds that Doe had not proved emotional  
  distress as a result of defendants' actions. The judge granted their motion  
  as to plaintiff's failure to train claim 3 , but in all other respects  
  rejected the defendants' motions.  
  The issues raised here present questions of constitutional law. Because  
  this case comes to us on appeal from an order denying a motion for judgment  
  as a matter of law, our review is plenary. Epstein v. Kmart Corp., 13 F.3d  
  762 (3d Cir. 1994); Cole v. Flick, 758 F.2d 124 (3d Cir.), cert. denied,  
  106 S.Ct. 253 (1985).  
  As a preliminary matter, this court must decide if a person's medical  
  prescription record is within the ambit of information protected by the  
  Constitution. If there is no right to privacy, our inquiry stops. A  1983  
  action cannot be maintained unless the underlying act violates a  
  plaintiff's Constitutional rights. Minor annoyances do not make a federal  
  case. When the underlying claim is one of invasion of privacy, the  
  complaint must be "limited to those [rights of privacy] which are  
  `fundamental' or `implicit in the concept of ordered liberty'..." Paul v.  
  Davis, 424 U.S. 693, 713, reh'g. denied, 425 U.S. 985 (1976), citing Palko  
  v. Connecticut, 302 U.S. 319, 325 (1937).  
  Medical records fall within this scope. The Supreme Court, in Whalen v.  
  Roe, 429 U.S. 589 (1977), noted that the right to privacy encompasses two  
  separate spheres. One of these is an individual's interest in independence  
  in making certain decisions. The other is an interest in avoiding  
  disclosure of personal information. Whalen, at 599-600. Medical records  
  fall within the second category. Id. Therefore, the Court held that  
  individuals do have a limited right to privacy in their medical records.  
  Id. at 602.  
  This court reinforced this holding through our decision in United States v.  
  Westinghouse Elec. Corp., 638 F.2d 570 (3d Cir. 1980). In that case, the  
  federal government, through the Occupational Safety and Health Agency  
  (OSHA), issued a subpoena duces tecum to an employer for its employees'  
  medical records in connection with an investigation of a potentially  
  hazardous work area. The employer refused, asserting the privacy interests  
  of its employees. This court held that, on balance, the interests of the  
  government in the information outweighed these privacy interests; however,  
  they recognized that such records were deserving of a level of  
  constitutional protection. "There can be no question that an employee's  
  medical records, which may contain intimate facts of a personal nature, are  
  well within the ambit of materials entitled to privacy protection."  
  Westinghouse, at 577.  
  The records at issue in Westinghouse included "results of routine testing,  
  such as X-rays, blood tests, pulmonary function tests, hearing and visual  
  tests." Id. at 579. If these records are private, then so must be records  
  of prescription medications. Since the Westinghouse decision fifteen years  
  ago, medical science has improved and specialized its medications. It is  
  now possible from looking at an individual's prescription records to  
  determine that person's illnesses, or even to ascertain such private facts  
  as whether a woman is attempting to conceive a child through the use of  
  fertility drugs. This information is precisely the sort intended to be  
  protected by penumbras of privacy. See Eisenstadt v. Baird, 405 U.S. 438,  
  450 (1972)("If the right of privacy means anything, it is the right of the  
  individual...to be free from unwanted governmental intrusions into matters  
  so fundamentally affecting a person as the decision whether to bear or  
  beget a child."). An individual using prescription drugs has a right to  
  expect that such information will customarily remain private. The district  
  court, therefore, committed no error in its holding that there is a  
  constitutional right to privacy in one's prescription records.  
  Such a right is not absolute, however. See Whalen v. Roe, 429 U.S. at 602  
  (while individuals have a legitimate expectation of privacy in their  
  prescription purchases of controlled substances, such right must be weighed  
  against the state's interest in monitoring the use of dangerously addictive  
  [D]isclosures of private medical information to doctors, to hospital  
  personnel, to insurance companies, and to public health agencies are often  
  an essential part of modern medical practice even when the disclosure may  
  reflect unfavorably on the character of the patient.  
  Id. In addition, disclosure of private medical information is necessary for  
  the pharmacy filing the prescriptions. The Court also cited examples of  
  statutory reporting requirements relating to various diseases, child abuse,  
  injuries caused by deadly weapons, certifications of fetal death, and the  
  recordkeeping requirements of Missouri abortion laws. Id. n. 29. As with  
  many individual rights, the right of privacy in one's prescription drug  
  records must be balanced against important competing interests.  
  Before we can perform this balancing test, we must first assess whether,  
  and to what extent, Pierce disclosed Doe's prescription drug information.  
  Obviously, no privacy violation would have taken place had the information  
  from Rite-Aid come in encoded form. A self-insured employer has a right to  
  monitor the use and cost of its health insurance plan. SEPTA's status as a  
  public authority substantially dependent on the public fisc and the rates  
  the public must pay to use its facilities converts this right into a duty.  
  Audits of drug information are essential to that end. In the aggregate,  
  there is no competing privacy interest in those records. Doe would have no  
  cause of action if all that had been disclosed were that an unknown number  
  of people at SEPTA were purchasing Retrovir for the treatment of  
  HIV-related illnesses. Therefore, such disclosure as occurred came only  
  when Doe's name was revealed with respect to his purchase of drugs under  
  SEPTA's prescription drug program.  
  Both Pierce and Aufschauer learned of Doe's illness through the Rite-Aid  
  report. Pierce's initial discovery of the names on the report was  
  inadvertent. She had not requested names from Rite-Aid and there is no  
  evidence that she expected to find them when she opened their standard  
  report. This alone would not be sufficient to prove a constitutional  
  violation for disclosure. 4 However, Pierce then spent some time and effort  
  researching the report with the names on it. She highlighted, for her  
  research purposes, those names on the report whose medications she was  
  unfamiliar with and which were expensive, including Doe's, and called two  
  SEPTA staff physicians to ask about medications she did not recognize. It  
  was through this inquiry that Pierce learned about Doe's condition. She did  
  not know the uses of Retrovir before she did this research.  
  Aufschauer learned of Doe's condition through his work as Director of  
  Benefits and Pierce's subordinate. Pierce disclosed the information to him  
  in the course of their work. SEPTA argues that this disclosure was  
  necessary, as Aufschauer also had reasons for needing this information.  
  Aufschauer's legitimate need for this information may affect whether the  
  disclosure is an actionable one. It does not alter the existence of  
  Nor can Pierce and Aufschauer be considered as a single unit for the  
  purpose of determining disclosure. A disclosure occurs in the workplace  
  each time private information is communicated to a new person, regardless  
  of the relationship between the co-workers sharing that information. By  
  analogy, district courts in this circuit have held that there is  
  publication, such that a libel or slander is actionable, when the  
  defamatory statement is disclosed only to the speaker's agent. Elbeshbeshy  
  v. Franklin Institute, 618 F.Supp. 170 (W.D. Pa. 1985). Therefore, we hold  
  that each person who learned of Doe's condition constitutes a separate  
  disclosure for the purposes of Doe's invasion of privacy action.  
  To hold differently would lead us to a decision that Doe had waived his  
  right to privacy by voluntarily disclosing his medical condition to  
  co-workers at SEPTA. We are not faced with a situation where persons to  
  whom Doe disclosed this information told others. Rather, Pierce and  
  Aufschauer learned his condition completely independently of Doe's  
  disclosures. His decision to give private information to some co-workers  
  does not give carte blanche to other co-workers to invade his privacy. See  
  Laurence Tribe, American Constitutional Law, 2d ed., at 1391 ("[W]hat could  
  be more commonplace than the idea that it is up to the individual to  
  measure out information about herself selectively[?]....[A] secret remains  
  a secret even when shared with those whom one selects for one's  
  However, we are not persuaded that the impingement on Doe's privacy by the  
  disclosure to SEPTA's Chief Medical Officer, Dr. Press, amounts to a  
  constitutional violation. Doe himself had already voluntarily informed Dr.  
  Press of his condition. Dr. Press did not learn any new information from  
  Pierce's actions. Plaintiff asserts that Dr. Van de Beek, as well, learned  
  of the information from Pierce. Van de Beek, like Dr. Press, had already  
  heard of Doe's condition from Doe himself. Moreover, Pierce did not  
  disclose Doe's name to Van de Beek. She asked him about medications, and he  
  deduced who she was asking about based on his independent knowledge of  
  Doe's condition. It stretches any theory of liability far too thin to base  
  an invasion of privacy on such conduct. Therefore, there was no disclosure  
  to Dr. Van de Beek. Also, as a matter of law, the cursory disclosure Pierce  
  made to Dr. Press, chief of SEPTA's medical department, a physician, and  
  largely responsible for the health of SEPTA's employees, did not "amount to  
  an impermissible invasion of privacy," Whalen v. Roe, 429 U.S. at 602,  
  because John Doe had already provided him with this information. Pierce and  
  Aufschauer are the only disclosures to be weighed and balanced.  
  As we noted earlier, an individual's privacy interest in his or her  
  prescription records is not an absolute right against disclosure. This  
  interest must be weighed against the interests of the employer in obtaining  
  the information. We apply an intermediate standard of review in making this  
  determination. Fraternal Order of Police, Lodge 5 v. Philadelphia, 812 F.2d  
  105, 110 (3d Cir. 1987)(hereafter FOP). FOP also noted that the more  
  stringent "compelling interest analysis" would be used when the intrusion  
  on an individual's privacy was severe. We are not faced with such a  
  situation here. The intrusion upon Doe's privacy was minimal at worst.  
  This court has previously enumerated the factors to be weighed in  
  determining whether a given disclosure constitutes an actionable invasion  
  of privacy in United States v. Westinghouse Electric Corp., 638 F.2d 570  
  (3d Cir. 1980). In Westinghouse, the federal government, through OSHA,  
  served a subpoena duces tecum on Westinghouse for its employees' medical  
  records in connection with an investigation concerning a possible health  
  hazard in the workplace. Westinghouse, as employer, moved to quash the  
  subpoena, asserting, jus tertii, its employees' rights of privacy in those  
  records. Here, in contrast, SEPTA is the employer, who legitimately sought  
  prescription information to ascertain whether there were abuses of its  
  health program, either by the supplier or the consumer/employee. Moreover,  
  the remedy sought for the alleged invasion here is damages rather than a  
  quashing of a subpoena. However, the Westinghouse factors are still good  
  law, and are equally applicable to this situation.  
  Westinghouse mandates a consideration of seven different factors. They are:  
  (1) the type of record requested; (2) the information it does or might  
  contain; (3) the potential for harm in any subsequent nonconsensual  
  disclosure; (4) the injury from disclosure to the relationship in which the  
  record was generated; (5) the adequacy of safeguards to prevent  
  unauthorized disclosure; (6) the degree of need for access; and (7) whether  
  there is an express statutory mandate, articulated public policy, or other  
  recognizable public interest favoring access. Westinghouse, 638 F.2d at  
  578. Although some of these factors may be in Doe's favor, overall, we  
  believe the balance weighs on the side of permitting the disclosures  
  present here. There is a strong public interest of the Transportation  
  Authority, and the many thousands of people it serves, in containing its  
  costs and expenses by permitting this sort of research by authorized  
  personnel. This interest outweighs the minimal intrusion, particularly  
  given the lack of any economic loss, discrimination, or harassment actually  
  suffered by plaintiff.  
  The type of record requested here was the first print-out of prescription  
  medications furnished by SEPTA to its employees under its contract with the  
  supplier, Rite-Aid. No particular format and no names were requested. The  
  information which Pierce expected it to contain was nothing more than a  
  record of the drugs on which SEPTA had spent over $100 in a given month per  
  individual. However, Rite-Aid, on its own initiative, included in its  
  format the names of each person taking those drugs. As discussed above,  
  this inadvertently-received information is entitled to a measure of  
  confidential protection.  
  In addition, we recognize the possible harm to Doe from disclosure. The  
  district court of New Jersey, in Doe v. Borough of Barrington, 729 F.Supp.  
  376 (D.N.J. 1990), recognized the social stigma, harassment, and  
  discrimination that can result from public knowledge of one's affliction  
  with AIDS. Id. at 384, n.8. It is unfortunate that public understanding of  
  this disease has changed so little in the intervening years. Although AIDS  
  hysteria may have subsided somewhat, there still exists a risk of much harm  
  from non-consensual dissemination of the information that an individual is  
  inflicted with AIDS.  
  This potential for harm, however, should not blind us to the absence of  
  harm in this case. Despite Pierce's disclosures to her subordinate,  
  Aufschauer, and to Dr. Press that Doe had AIDS, SEPTA promoted him and  
  still retains him in his responsible position. In Doe v. Borough of  
  Barrington, a borough police officer, without justification, told the  
  neighbors of a man suffering from AIDS that the entire family had AIDS. The  
  neighbors reacted by organizing a protest, and trying to prevent the man's  
  children from attending public school. In that case, the court quite  
  rightly held such conduct violated the plaintiffs' privacy rights, and  
  there was no competing interest to justify the disclosure.  
  By contrast, SEPTA had legitimate reasons for obtaining the prescription  
  information from Rite-Aid. Pierce had requested the information in  
  Rite-Aid's standard format; she did not request the names of any employees.  
  She did not disclose the information relating to Doe except to Aufschauer,  
  in connection with their review, and to Dr. Press, for purposes of an  
  audit. Dr. Press, the Chief Medical Officer, already knew of Doe's  
  condition through Doe's voluntary disclosure. Moreover, Pierce destroyed  
  the first report. Under these circumstances, we cannot conclude that  
  Westinghouse factor (3) would impose liability on SEPTA. Although the  
  factor appears to address potential harm, such potential harm must be  
  measured within the context of the disclosure that actually occurred. The  
  potential for harm from a different disclosure of this information, under  
  different circumstances, as in Westinghouse, is not germane here.  
  The record was generated from the relationship between Doe and Rite-Aid,  
  through his filling of the prescription. It is difficult to see how this  
  relationship is affected by Rite-Aid's subsequent generating of reports to  
  Doe's employer. Doe is no doubt aware that insurance companies and  
  providers such as Medicare and Medicaid routinely receive information from  
  drugstores about prescriptions charged to them by the insured. Self-insured  
  employers have the same rights as those providers to similar information.  
  Pierce did not expect that SEPTA would be given access to the names of  
  employees filling prescriptions; however, the harm from this to the  
  Doe-Rite-Aid relationship is non-existent. Once Pierce realized the  
  potential for harm inherent in a report with names, she instructed Rite-Aid  
  that the format for all future reports should be without names. Rite-Aid  
  agreed to comply. Rite-Aid's relationship with SEPTA employees will  
  continue unchanged.  
  Judge Greenberg is of the opinion that the "injury from disclosure" would  
  seem to apply to the relationship between Doe and his employer, not between  
  Doe and Rite-Aid. Thus, he believes that the injury from disclosure to the  
  relationship in which the record was generated could obviously be much  
  greater, if the relevant relationship is between the employer and employee.  
  He concludes, therefore, that factor four may have weighed in favor of Doe  
  in the jury's analysis. However, it must be borne in mind that, even if the  
  injury from disclosure was to the relationship between Doe and SEPTA, it is  
  undisputed that he suffered no economic deprivation, nor any  
  discrimination, nor harassment. It should also be noted that Judge  
  Greenberg nonetheless believes that, because of our conclusion regarding  
  Westinghouse factors six and seven, Doe cannot recover.  
  Factors six and seven strongly favor the defendants. Pierce had a genuine,  
  legitimate and compelling need for the document she requested. Aufschauer,  
  as Director of Benefits, also had a need for the document. Each had a  
  responsibility and obligation to keep insurance costs down and to detect  
  fraudulent and abusive behavior. The report was intended for that purpose.  
  Employers have a legitimate need for monitoring the costs and uses of their  
  employee benefit programs, especially employers who have fiscal  
  responsibilities, as does SEPTA, to the public. As health care costs rise,  
  as they have in recent years, and employers become obligated to expand  
  employee coverage with greater protection for more illnesses and health  
  conditions, health care costs become a major concern for employers as well  
  as for Congress. Ten years ago, health insurance was not among the top  
  concerns of small businesses; today it is number one. Note, "Health Care  
  Cost-Containment and Small Businesses: The Self-Insurance Option, " 12 J.L.  
  & Com. 333 (1993). In recent years many industrial strikes have been  
  motivated by the cost of health benefits sought by employees. One of the  
  best ways to monitor these costs is by performing audits on the use to  
  which health plans are being put, and by closely monitoring the use of  
  drugs. Employers also have a right to ensure that their health plan is only  
  being used by those who are authorized to be covered. Finally, the  
  employers have a right to contain costs by requiring that employees use  
  generic drugs rather than brand name when an adequate substitute exists. To  
  accomplish these goals, employers must have access to reports from their  
  prescription suppliers, and they must inspect and audit those reports. That  
  is precisely what Pierce and Aufschauer were engaged in, and this was a  
  legitimate function of their positions. They had a legitimate need for  
  access to information from the drug supplier, and they carefully controlled  
  its use.  
  Because SEPTA is an agency subsidized by the state and federal government,  
  its operating costs are substantially borne by the public who use its  
  facilities and the taxpayers who pay its subsidies. Keeping fares and taxes  
  low, and preserving the public fisc are genuine, recognizable public  
  interests. Therefore, Pierce's need for access, factor six of Westinghouse,  
  also articulates a recognizable public policy encouraging access, as noted  
  in factor seven.  
  As Chief Administrative Officer for SEPTA, Pierce had responsibility for  
  health costs. Her ability over a period of three years to successfully  
  reduce prescription drug and dental costs by a combined total of over  
  $42,000,000 gives us some idea of the immensity of her task and the money  
  at stake. The new contract between SEPTA and Rite-Aid gave strong financial  
  incentives to cut costs if possible. There can be no serious argument that  
  Pierce could do this monitoring without being able to audit reports of the  
  actual costs and the drugs purchased. It is true that the names of the  
  individual employees were unnecessary for this purpose. 5 It is equally  
  true that Pierce did not request such names, nor did she disclose those  
  names, or any of the information contained in the report, in anything other  
  than a legitimate manner. Except for Dr. Press, who had the information  
  directly from Doe, the only other person to whom Pierce disclosed the  
  information was Aufschauer. As they requested only information for which  
  they had a legitimate and compelling need, and used the information  
  received in a legitimate, careful and confidential manner, it cannot be  
  said that they violated Doe's right to privacy merely because the first  
  report from Rite-Aid contained unnecessary, unrequested information in  
  which he had a privacy interest.  
  Factor five, however, requires a slightly more complex analysis. It  
  requires us to weigh "the adequacy of safeguards to prevent unauthorized  
  disclosure." As discussed above, there was no unauthorized disclosure.  
  However, as SEPTA was unaware that they would receive such confidential  
  information, and this was their first experience under the Rite-Aid  
  contract, there were no safeguards in place.  
  In FOP, supra, the Philadelphia police department required applicants to  
  the Special Investigative Unit (SIU) to complete questionnaires, which  
  asked for extremely private information. Police officers sought an  
  injunction against its use. One grouping of questions focused on the  
  medical history of the applicant and his family, asking for such  
  information as physical disabilities, prescription drug use, and past  
  psychological histories. FOP, 812 F.2d at 112. Although noting that, in  
  most cases, this private information was irrelevant to the selection of SIU  
  forces, the court also recognized that in some cases, these questions would  
  reveal information essential to the police department. Id. at 113.  
  Therefore, the court permitted the City to ask these questions of all  
  However, the court expressed concern with the absence of protection of this  
  information. It noted that "there is no statute or regulation that  
  penalizes officials with confidential information from disclosing it." Id.  
  at 118. As a result, the court remanded to the district court with  
  directions to continue the injunction until the "City, the Commissioner, or  
  other appropriate official establishes written, explicit and binding rules  
  that contain adequate safeguards against unnecessary disclosure of the  
  confidential information..." Id.  
  Were the case before us now also a request for an injunction, and had SEPTA  
  requested the broad information required by the Philadelphia police  
  department, we might have similar concerns. This case, however, is a suit  
  for damages and the information disclosed did not have the breadth  
  requested by the Philadelphia SIU. Doe did not attempt to enjoin further  
  dissemination by SEPTA, although he is still employed by it. Indeed, such a  
  suit would have been moot at its inception. SEPTA has established an  
  adequate safeguard against a recurrence of unnecessary disclosure by  
  requesting that Rite-Aid no longer send such confidential information.  
  Should such information become necessary at some future time, for instance,  
  should names be needed for a more extensive investigation as a result of an  
  initial audit, it can be expected that "written, explicit and binding  
  rules" would be promulgated before such information is requested. But it is  
  an unnecessary burden to require that they be announced when the employer  
  has no knowledge that it will be in receipt of the sort of information that  
  requires these safeguards. Unlike the defendant in FOP, Pierce and SEPTA  
  did not request such information as would put them on notice that they  
  would need to pre-arrange for its confidential handling. Thus, we perceive  
  no violation of the Westinghouse fifth factor.  
  We hold that a self-insured employer's need for access to employee  
  prescription records under its health insurance plan, when the information  
  disclosed is only for the purpose of monitoring the plans by those with a  
  need to know, outweighs an employee's interest in keeping his prescription  
  drug purchases confidential. Such minimal intrusion, although an  
  impingement on privacy, is insufficient to constitute a constitutional  
  violation. The district court should have granted defendants' Rule 50  
  motion for judgment as a matter of law.  
  In light of the conclusion we reach that the defendants did not violate  
  plaintiff's right of privacy, we need not decide whether the plaintiff's  
  testimony alone of his diagnosis and subjective impressions can support a  
  finding of damages for emotional distress. 6 See Spence v. Board of  
  Education of Christina School District, 806 F.2d 1198, 1201 (3d Cir. 1986).  
  SEPTA demonstrated important interests in the prescription information  
  furnished by its supplier, and disclosed such information only to people  
  with a right to know. This outweighs the minimal intrusion into Doe's  
  privacy. The district court erred in its analysis of the Westinghouse  
  factors, and should have granted defendant's motion for judgment under Rule  
  Accordingly, the judgment of the district court will be reversed, and the  
  matter will be remanded to the district court for entry of judgment for the  
  defendants as a matter of law. Each side to bear its own costs.  
  Doe v. SEPTA  
  No. 95-1559  
  GREENBERG, Circuit Judge, concurring.  
  Although I agree with Judge Rosenn's conclusions, I have a few reservations  
  about his opinion that I note here.  
  First, regarding our standard of review: as Judge Rosenn indicates, after a  
  jury verdict, the court cannot substitute its view of the evidence for that  
  of the jury; accordingly, all evidence and inferences therefrom must be  
  taken in the light most favorable to the verdict winner. See Parkway  
  Garage, Inc. v. City of Philadelphia, 5 F.3d 685, 691-92 (3d Cir. 1993) (as  
  amended on petition for rehearing). In addition, we have noted that a court  
  of appeals in exercising plenary review over an order granting or denying a  
  motion for judgment as a matter of law must apply the same standard as did  
  the district court. Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166  
  (3d Cir. 1993); Lippay v. Christos, 996 F.2d 1490, 1496 (3d Cir. 1993). We  
  recently outlined the relevant standard:  
  In deciding whether to grant a motion for JNOV, the trial court must view  
  the evidence in the light most favorable to the non-moving party, and  
  determine whether the record contains the `minimum quantum of evidence from  
  which a jury might reasonably afford relief.' Keith v. Truck Stops Corp.,  
  909 F.2d 743, 745 (3d Cir. 1990) (citations omitted). The court may not  
  weigh the evidence, determine the credibility of witnesses or substitute  
  its version of the facts for that of the jury. Blair v. Manhattan Life Ins.  
  Co., 692 F.2d 296, 300 (3d Cir. 1982). The court may, however, enter  
  judgment notwithstanding the verdict if upon review of the record, it can  
  be said as a matter of law that the verdict is not supported by legally  
  sufficient evidence. Neville Chem. Co. v. Union Carbide Corp., 422 F.2d  
  1205, 1210 (3d Cir.), cert. denied, 400 U.S. 826 (1970).  
  Parkway Garage, 5 F.3d at 691-92.  
  I join in Judge Rosenn's opinion because I believe that, even viewed in the  
  light most favorable to Doe, the verdict winner in the district court, the  
  facts of this case cannot, as a matter of law, support the jury's verdict.  
  I support this holding because factors six and seven of the balancing test  
  announced in United States v. Westinghouse Elec. Corp., 638 F.2d 570, 578  
  (3d Cir. 1980), namely SEPTA's need for access to the prescription  
  information and "whether there is an express statutory mandate, articulated  
  public policy, or other recognizable public interest militating toward  
  access," outweigh Doe's limited privacy interests in the information. It is  
  here that, in my view, the district court in its opinion denying SEPTA's  
  post-trial motions for judgment as a matter of law or for a new trial  
  misapplied the Westinghouse balancing test. The court decided that, because  
  Pierce "never articulated a need to know what Doe's medications were used  
  for or a reason that she did not put the report aside or black out the  
  names when she saw them," and because there was testimony that "the names  
  of the individual employees were irrelevant to the issues they were  
  examining," the jury reasonably could have found factor six to weigh in  
  favor of a violation of Doe's privacy right. See Doe v. SEPTA, et al., No.  
  93-5988, slip op. at 19 (E.D. Pa. June 1, 1995). Likewise, because "the  
  financial need to control prescription benefit costs . . . does not include  
  a need to have the names of employees linked with their medications, at  
  least until an abuse of the benefit has been established," the district  
  court decided that the jury also could have found factor seven to weigh in  
  Doe's favor. See id. slip op. at 20.  
  However, the district court's emphasis on SEPTA's need to have the names of  
  employees linked with their medications was misplaced. The focus of factors  
  six and seven of the Westinghouse balancing test in this case should not be  
  on appellants' need to have the names of employees linked with their  
  medications, but instead should be on their need to have access to  
  prescription utilization data in the first place. As Judge Rosenn's opinion  
  notes, it is essential in this era of escalating health care costs that  
  self-insured employers be able to review their benefits programs for proper  
  usage, cost-cutting possibilities, and fraud and abuse, among other  
  factors. Thus, I agree with his conclusions.  
  However, I do not believe that Judge Rosenn's opinion reflects the facts of  
  the case in the light most favorable to Doe. For example, in describing  
  Pierce's actions with respect to the Rite-Aid report, he states that she  
  highlighted the names on the report whose medications she was unfamiliar  
  with "for her research purposes," see typescript at 13, and that she  
  "discreetly never mentioned Doe by name" to Dr. Van de Beek. Id. at 6. Yet,  
  Pierce's motivations for highlighting the names of the employees, in  
  particular Doe's, was a primary factual issue in the case, as was her  
  possible carelessness. Clearly, Doe did not claim that Pierce highlighted  
  the names merely for her research purposes, nor would he have described her  
  behavior as "discreet." The jury's verdict for Doe, then, might reflect its  
  agreement with his assertions that her motivations, as well as her conduct,  
  were improper. In any case, it does not seem that Judge Rosenn's opinion  
  paints the issue in the light most favorable to a verdict for Doe. Although  
  I regard this point as somewhat academic because of my analysis of the  
  Westinghouse factors, it is worth noting because of our clear mandate to  
  view the facts in the most favorable light to the verdict- winner in  
  reviewing a denial of a motion for judgment as a matter of law.  
  More substantively, I do not agree with Judge Rosenn's analysis regarding  
  Pierce's contact with Dr. Press. While it is true that Dr. Press did not  
  acquire any new information from Pierce's actions, the focus of an inquiry  
  into an alleged violation of the constitutional right to privacy should be  
  on whether there was a disclosure. As an initial matter, Pierce showed Dr.  
  Press the highlighted list containing Doe's name and prescription  
  information. Pierce did not know whether Dr. Press had any prior knowledge  
  regarding Doe's condition; nevertheless, she presented the information to  
  Press. The constitutional right to privacy is intended to prevent certain  
  disclosures. Thus, ordinarily individuals have the power to determine to  
  whom they disclose their most personal matters. Here, Pierce impinged on  
  Doe's right with the disclosure to Press in the same way that she did so  
  with respect to the disclosure to Aufschauer. As Judge Rosenn's opinion  
  states, "[a] disclosure occurs in the workplace each time private  
  information is communicated to a new person . . . ." Typescript at 14.  
  Yet Doe himself already had informed Dr. Press voluntarily of his  
  condition. Pierce's disclosure to Press, then, should not lead to Doe's  
  recovery of damages, since the disclosure left Doe in the same position as  
  before it occurred. This issue is one of damages alone, however, and does  
  not affect the existence of a disclosure to Press. Thus, the court must  
  weigh this disclosure as well as those involving Pierce and Aufschauer in  
  order to determine whether a constitutional violation occurred.  
  Accordingly, in my view it is not enough simply to state that because no  
  damages were incurred there could not have been a violation of Doe's  
  privacy right. In the end, though, the existence of a third disclosure in  
  the case does not alter my analysis of the Westinghouse factors and  
  therefore does not change my ultimate conclusion that we should reverse the  
  judgment of the district court.  
  I also want to make a clear distinction between an impingement into privacy  
  rights that is justified according to the Westinghouse factors, and an  
  unconstitutional violation of the right to privacy. We have held that  
  questions seeking personal medical information included in a police  
  department questionnaire for use in selecting applicants for a special  
  investigations unit "[did] not unconstitutionally impinge upon the  
  applicants' privacy interests." Fraternal Order of Police v. Philadelphia,  
  812 F.2d 105, 114 (3d Cir. 1987) (footnote omitted). We also have held that  
  the strong public interest in facilitating the research and investigations  
  of a government agency into a potentially hazardous work area "justif[ied]  
  [the] minimal intrusion into the privacy which surrounds . . . employees'  
  medical records . . . ." Westinghouse, 638 F.2d at 580. However, in neither  
  case did we deny that an intrusion into privacy interests occurred.  
  Likewise, here we do not deny that Pierce's disclosures impinged upon Doe's  
  privacy interests in his prescription information. We do find, however,  
  that the disclosures were justified according to the Westinghouse balancing  
  test because of SEPTA's strong interest in having access to utilization  
  review data from its prescription drug program. Thus, although there was an  
  impingement into Doe's privacy rights, there was not here an  
  unconstitutional violation of those rights.  
  Finally, regarding specific applications of the Westinghouse factors:  
  Westinghouse factor four, "the injury from disclosure to the relationship  
  in which the record was generated," would seem to me to apply to the  
  relationship between Doe and SEPTA, not the relationship between Doe and  
  Rite-Aid, as Judge Rosenn's opinion states. The relationship between Doe  
  and his employer underlies the prescription benefits package in the first  
  place; were it not for that benefits package, Doe would not have filled his  
  prescription at Rite-Aid, nor would his name have been on the Rite-Aid  
  report. In this regard, the injury from disclosure to "the relationship in  
  which the record was generated" obviously could be much greater if the  
  relevant relationship is that between Doe and his employer and not the  
  Doe-Rite-Aid relationship. Thus, the factor may have weighed more heavily  
  in favor of Doe in the jury's analysis than Judge Rosenn's opinion  
  indicates. Nevertheless, because of my conclusions regarding Westinghouse  
  factors six and seven, I still believe that Doe cannot recover for the  
  disclosures made in this case.  
  Westinghouse factor five, "the adequacy of safeguards to prevent  
  unauthorized disclosure," also could have weighed more heavily in favor of  
  Doe in the jury's analysis than Judge Rosenn indicates. While it is true  
  that Pierce and SEPTA did not request such information as would put them on  
  notice that they would need to pre-arrange for its confidential handling,  
  it would not have been unreasonable for the jury to conclude that SEPTA  
  should have had some sort of policy regarding the confidentiality of  
  employee medical information that would have put Pierce on notice of the  
  sensitivity of the information she received. Moreover, it also would have  
  been reasonable for the jury to expect Pierce to act more carefully with  
  the information regardless of the existence of an official SEPTA policy,  
  especially because of her high executive level in the company, in addition  
  to her experience as a former government attorney. Thus, although factor  
  five does not change my ultimate conclusion in the case, perhaps it weighed  
  more heavily in favor of Doe, at least in the jury's consideration, than  
  Judge Rosenn's opinion would suggest.  
  I make one final point. As Judge Rosenn notes, SEPTA did not request the  
  names of its employees obtaining prescription drugs. Consequently, the case  
  has been decided on the assumption that it did not need the names.  
  Nevertheless, I do not understand that there is any legal impediment to an  
  employer who pays for prescriptions or other benefits for employees and  
  their dependents insisting on knowing the identity of the person obtaining  
  the prescriptions or benefits. After all, an employer might need this  
  information to determine whether the person obtaining the prescriptions or  
  benefits was eligible for them. Judge Rosenn makes this important point,  
  typescript at 22 n.5, and I particularly want to emphasize it. In  
  accordance with the foregoing comments, I join in Judge Rosenn's opinion  
  with the caveats I have stated and join in the judgment of the court.  
  Doe v. SEPTA, et al.  
  No. 95-1559  
  LEWIS, Circuit Judge, concurring and dissenting.  
  I agree with and join in that part of Judge Greenberg's concurring opinion  
  which pertains to the first five Westinghouse elements. However, because I  
  believe that there was more than a "minimum quantum" of evidence from which  
  the jury in Doe's case could reasonably conclude that his constitutional  
  right to privacy had been violated, I respectfully dissent. See Parkway  
  Garage, Inc. v. City of Philadelphia, 5 F.3d 685, 691 (3d Cir. 1990).  
  Because my disagreement with the majority rests primarily with its analysis  
  of the sixth and seventh Westinghouse factors, I will focus my discussion  
  on those elements.  
  With respect to the sixth factor, which addresses the degree of need for  
  access to the information, I note initially that at Doe's trial, Ms.  
  Pierce, the SEPTA administrator responsible for auditing the company's  
  health benefits plan, testified that for her purposes the employee names on  
  the Rite-Aid printout were irrelevant. In fact, the district court  
  specifically noted that "it was undisputed that the names on the report  
  were unnecessary for Pierce's review of the Rite Aid report." (J. Yohn's  
  Memorandum at 6, 16- 17). While it is true that SEPTA could have  
  legitimately requested these names for auditing purposes, the fact is that  
  in this case it neither required nor requested such information. 7 Thus,  
  the jury had no factual basis upon which to conclude that SEPTA needed its  
  employees' names in order effectively to audit its health plan.  
  I disagree that "[t]he focus of factors six and seven of the Westinghouse  
  balancing test in this case should not be on appellant's need to have the  
  names of employees linked with their medications, but instead should have  
  been on their need to have access to prescription utilization data in the  
  first place." (Concurring Op. at 3). First, I am aware of no authority  
  which suggests that this broad approach is the correct way in which to  
  frame the issue. Second, the jury's finding that Pierce had no need for the  
  names on the Rite-Aid printout is not inconsistent with the principle that  
  SEPTA may have had a legitimate need for access to prescription utilization  
  data. Thus, because in my view the record clearly establishes that for  
  purposes of auditing its prescription drug program with Rite-Aid, SEPTA did  
  not necessarily need a printout that indicated by name what prescription  
  drugs particular employees were taking, I cannot agree that the verdict was  
  "not supported by legally sufficient evidence." As Judge Greenberg notes in  
  his concurring opinion, the Parkway Garage standard requires the trial  
  court, and us, to "view the evidence in the light most favorable to the  
  non-moving party, and determine whether the record contains the `minimum  
  quantum of evidence from which a jury might reasonably afford relief.'  
  Keith v. Truck Stops Corp., 909 F.2d 743, 745 (3d Cir. 1990) (citations  
  omitted)," and to avoid "`weigh[ing] the evidence, determin[ing] the  
  credibility of witnesses or substitut[ing] [our] version of the facts for  
  that of the jury.' Blair v. Manhattan Life Insurance Co., 692 F.2d 296, 300  
  (3d Cir. 1982)." Id. at 1. Accordingly, we must adhere to the Parkway  
  Garage standard and allow the appropriate measure of deference to the  
  jury's findings. For the above reasons, I do not believe that the majority  
  has done so with regard to the sixth Westinghouse factor.  
  With respect to the seventh Westinghouse factor, I agree that there is an  
  important public interest in allowing companies such as SEPTA, which  
  administer their own health plans, to have access to the prescription drug  
  records of their employees. (Maj. Op. at 20-21). In general, I would agree  
  that such employers have a legitimate need for this information.  
  Nevertheless, I do not believe that this interest, standing alone, is  
  sufficient to overcome the other Westinghouse factors, which in this case  
  weigh largely in Doe's favor. Moreover, in my view, the majority places a  
  disproportionate emphasis on factor seven, so much so that the remaining  
  elements of the balancing test become practically irrelevant to its  
  analysis. To my knowledge, we have never suggested that the seventh  
  Westinghouse factor is the most significant consideration in our analysis.  
  Accordingly, because under the highly deferential Parkway Garage standard  
  there clearly is sufficient evidence in the record to support the jury's  
  verdict in favor of Doe, once again I believe we are bound to affirm the  
  district court's order.  
  Finally, I am concerned that the majority's decision on the issue of  
  SEPTA's liability appears to be influenced, at least in part, by the fact  
  that Doe was neither fired, harassed nor demoted. (See Maj. Op. at 18  
  ("This potential for harm, however, should not blind us to the absence of  
  harm in this case.")). I do not understand how or why this point is at all  
  relevant to our legal analysis of the liability issue. In my view, the  
  nature and extent of harm Doe suffered as a result of the disclosure that  
  occurred is a damages rather than a liability issue. Moreover, as I  
  understand the logic of the majority position, even if Doe had suffered a  
  more direct harm in this case (say, for instance, on the job harassment),  
  SEPTA's actions still would not have constituted a violation of Doe's  
  limited privacy right against disclosure, because this right was outweighed  
  by the strong public interest favoring SEPTA's access to prescription drug  
  information for auditing purposes. Again, I disagree.  
  But I am particularly troubled by the potential implications of the  
  majority's position. I hope I am wrong, but I predict that the court's  
  decision in this case will make it far easier in the future for employers  
  to disclose their employees' private medical information, obtained during  
  an audit of the company's health benefits plan, and to escape  
  constitutional liability for harassment or other harms suffered by their  
  employees as a result of that disclosure.  
  For the above reasons, I respectfully concur and dissent.  
  1 SEPTA is a public transportation authority operating mass transportation  
  facilities in the five-county Philadelphia metropolitan area. It operates  
  subways, railroads, buses, and trackless trolleys and maintains stations,  
  depots, and other installations. See Transport Workers' Local 234 v. SEPTA,  
  863 F.2d110, 1113 (3d Cir. 1989). SEPTA receives much of its operating  
  funds from state and federal subsidies. It is an agency of the Commonwealth  
  of Pennsylvania. Id., at 1113. The parties agree that all actions taken by  
  Pierce relevant to this matter were part of her job as a policy-maker at  
  SEPTA. Therefore, Doe's suit is proper under Section 1983.  
  2 Doe also filed a related suit against Rite-Aid and its employees in a  
  Philadelphia Court of Common Pleas. That case was settled late in 1994,  
  when Rite-Aid agreed to modify its billing procedures in the state of  
  Pennsylvania in order to prevent these disclosures in the future. See 22  
  BNA Pension and Benefits Reporter 33 (Jan. 2, 1995).  
  3 This ruling is not before us, as it has not been appealed.  
  4 We need not discuss in this case any possible violation on the part of  
  Rite-Aid for preparing such a report. See supra, n.2.  
  5 There may be situations not before us now where an employer who pays for  
  prescriptions or benefits for employees or their dependents may need to  
  know the identity of a person obtaining the prescriptions or benefits.  
  After all, an employer might need this information to determine whether the  
  person obtaining the prescriptions or benefits was eligible for them, or if  
  the person was even an employee. Of course, such need to know would have to  
  comply with the employee's right of privacy as well.  
  6 Plaintiff admits that he suffered no economic damages or physical injury  
  from SEPTA's actions. He was not fired or demoted. Emotional distress,  
  therefore, is Doe's only possible basis for recovery.  
  7 The first Westinghouse factor is the "type of record requested." In this  
  case, SEPTA did not request that the printout from Rite-Aid include  
  employee names. As a result, I believe that this element of the balancing  
  test does not weigh in Doe's favor.