HIV AIDS Resource Guide/HIV-AIDS Resource Guide.iso/STAT/CASES/DOE-NEWY.ASC

Text File | 1993-01-14 | 5KB | 132 lines

/* This case is reported in 62 E.P.D. 42494 (S.D.N.Y. 1993).
This case concerns a claim that a press release by an employment
discrimination conciliation service violated the right of privacy
of a person who was HIV positive. The court found that since the
matters were as public record, there was no further privacy
right. */

John Doe, Plaintiff v. The City of New York et al., Defendants.



United States District Court, Southern District of New York.

June 14, 1993.



GRIESA, D. J.: This action is the result of a press release
issued by the New York City Commission on Human Rights. The
release allegedly led to the identification of plaintiff as HIV
positive. Plaintiff claims that the release breached one of the
terms of a conciliation agreement signed by the Commission. The
complaint contains a cause of action for breach of contract. The
complaint also asserts a cause of action under 42 U.S.C.  1983,
alleging a violation of a constitutional right of privacy.
Finally, the complaint claims violation of plaintiff's right of
confidentiality guaranteed under New York Public Health Law
2782(1).

Defendants are the Commission; its commissioner, Dennis deLeon;
and a Commission employee, Karen Arthur.

Defendants move to dismiss the complaint pursuant to Fed.R.Civ.P.
12(b)(6). The motion is granted.



The Complaint

The following are the allegations in the complaint.

Plaintiff was one of several hundred employees of Pan Am who was
laid off when Pan Am went into bankruptcy in 1991. Plaintiff
interviewed for a job with Delta which took over many of Pan Am's
routes, but he was not hired.

On February 18, 1992 plaintiff filed a complaint against Delta
with the New York City Commission on Human Rights alleging that
Delta had failed to hire him because of his sexual orientation,
and because he was HIV positive.

On August 3 the Law Enforcement Bureau of the Commission, Delta
and plaintiff entered into a conciliation agreement whereby
plaintiff was hired by Delta. Plaintiff also received retroactive
back pay and seniority privileges as well as monetary damages.

Paragraph 18 of the conciliation agreement provides as follows:

Except as required by any court or agency or upon the written
consent of Doe or his attorney, Delta and the [Commission's Law
Enforcement] bureau agree not to disclose Doe's given name
through any oral or written communication which identifies Doe by
his given name as the plaintiff in this lawsuit or as a settling
party to this Conciliation Agreement to any person that is not a
party to or involved with this proceeding.

The reference to "this lawsuit" relates to the administrative
complaint described above.

On August 4, 1992 plaintiff reported to work at Delta. Plaintiff
alleges that, at the time he returned to work, none of his co
workers at Delta or former co-workers at Pan Am knew of the
circumstances surrounding his employment at Delta or that he was
HIV positive.

Plaintiff contends that although he had learned of his HIV status
in 1989, he had attempted to keep this information a secret. In
fact, according to plaintiff, the only people to whom he had
personally disclosed his HIV status were his doctor, his lawyers
and representatives of the Commission.

On August 6 defendants issued a press release disclosing the
terms of the conciliation agreement. Plaintiff alleges that the
release, while not expressly giving his name, contained
information from which his identity and HIV status could be
determined by those who know him.

On August 7 and 8 various New York area newspapers published
articles based on the press release. Plaintiff alleges that these
articles resulted in the disclosure of his HIV status to all of
his Delta co-workers and many of his former Pan Am co-workers.



Discussion

The only claim under federal law is the one under 1983 alleging
violation of a constitutional right of privacy.

The situation here involves a matter which was before a public
agency, the New York City Commission on Human Rights. Title 8 of
the New York City Administrative Code provides that every
conciliation agreement reached in a proceeding of the kind
brought by plaintiff shall be made public unless the complainant
and respondent agree otherwise and the commission determines that
disclosure is not required to further the purposes of this
chapter.

Plaintiff's proceeding before the Commission and the resulting
conciliation agreement would have been a matter of public record
but for the non-disclosure provision of the agreement. The
constitutional right to privacy does not extend to matters of pub
lic record. See Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 494-
495 (1975); Scheetz v. The Morning Call, Inc., 946 F.2d 202, 207
(3d Cir. 1991). Whatever right of confidentiality plaintiff had
came from the contract he entered into with Delta and the Commis
sion, and stems from the contract not the Constitution. There is
a difference of view among the parties as to the proper interpre
tation of the contract. What needs to be litigated here is the
issue of contract interpretation.

The cause of action under 42 U.S.C. 1983 is dismissed. The
remaining causes of action are claims under state law. They are
dismissed for lack of jurisdiction.

Defendants' motion to dismiss the complaint is granted.

So Ordered.