Thursday, October 13, 2011

3d Circuit on Public Employee's 14th Amendment Privacy Rights

Yesterday, the Third Circuit weighed in on an employee's 14th Amendment right to privacy in Doe v. Luzerne County, 2011 WL 4823387 (3d Cir. Oct. 12, 2011)(Note: It will be published and precedential). The Court recognized that a public employee has a right to privacy that protects her from being videotaped during a decontamination shower and examination.

Jane Doe is a deputy sheriff in the Luzerne County Sheriff's Department. She and a colleague attempted to serve a warrant at a residence that was infested with fleas. The two were covered with fleas so they went to a hospital for a decontamination shower. And this is where things get weird (I find myself saying this a lot in employment law cases...).

A deputy chief was filming various parts of the decontamination shower process for "training purposes" (riiiight). Doe told him to stop and it seemed like he had. But then, while she was getting inspected post-shower and unbeknownst to her, the guy opened the door to the room and started filming Doe again! There's some question about how "exposed" she was... but she was at best covered in tissue paper.

The Court's analysis sheds some light on the privacy considerations and some additional facts:
The type of records at issue include photographs of Doe while she is partially dressed and an edited video of Doe that may include images of, among other things, Doe's exposed breasts and/or buttocks. The potential harm of nonconsensual disclosure is exacerbated by the existence of the Internet, where one can upload image and video files and irretrievably share them with the world in a matter of moments. Doe's alleged harm could be aggravated by the context of the disclosure, most notably the facts that the video of the events was shown to others within the workplace and that the alleged violations involved superior officers abusing their authority. The adequacy of safeguards to prevent unauthorized disclosure also favors Doe because there is evidence that Foy saved the Doe Files in a public computer folder, which Doe testified could have been viewed by anyone with access to the Luzerne County network.
The Court then reversed the trial court's decision to dismiss the employee's privacy claim.

Image: Third Circuit Seal used in commentary on Third Circuit. Not official use.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

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