Fairfield Woman Claims Gene Discrimination After Breast-Cancer Test

Posted:04/29/10

In a case that raises concerns about the handling of genetic and medical information, a Fairfield woman has filed a discrimination complaint after she had a voluntary double-mastectomy, then lost her job.

Pamela K. Fink had the surgery last October after genetic tests suggested that she was at risk for breast cancer. On Tuesday, she filed complaints with state and federal agencies against Stamford-based MXenergy, the natural gas and electricity provider that eliminated her job March 25.

Fink, 39, who was public relations director for MXenergy, says she was fired because she is a carrier of the BRCA2 gene — a so-called breast- cancer gene. The company fired her “because it regarded me to be an ‘individual with a disability,’” Fink said in a complaint to the Connecticut Commission on Human Rights and Opportunities.

The complaint, also filed with the federal Equal Employment Opportunity Commission, is believed to be the first genetic discrimination case in the state — and one of the first in the nation — since the federal Genetic Information Nondiscrimination Act took effect in November.

“I felt betrayed and upset,” said Fink, a mother of two, in an interview at her home. “I thought I was comfortable enough to tell them the details of my surgery.”

MXenergy denied her claims.

“The company emphatically and categorically denies Ms. Fink’s allegations,” MXenergy spokesman Todd Miller said. “Beyond that, the company does not discuss personnel matters regarding current or former employees.”

Fink’s lawyer, Gary Phelan of Outten & Golden in Stamford and New York, said other people who might benefit from genetic testing are not doing so out of fear of retribution by their employers or insurance companies.

“You cannot fire someone for a disease they may never get,” Phelan said.

No health insurer is named in Fink’s complaint, and it was Fink, not a health insurer, who told MXenergy about her testing and procedure. Federal law prohibits health insurers from giving information to companies about their workers’ genetic traits or health condition — something insurers don’t do anyway, said Robert Zirkelbach, spokesman for trade group America’s Health Insurance Plans.

Fink took a genetic test in 2004 at Yale Cancer Center and tested positive for the BRCA2 gene, which is linked to breast cancer, according to her complaint.

With a family history of cancer, Fink had a voluntary double-mastectomy in October 2009 as a preventive measure. Several months before the surgery, she told her supervisor and top company executives that she planned to undergo the procedure.

She used sick days, personal days and vacation time between Oct. 9 and Oct. 26 for the surgery. Fink worked from home from Oct. 26 until she returned to the office Nov. 9, she said.

When she returned to the office, Fink learned that a replacement had been hired as a “consultant” to do some marketing and public relations work for the company, which employs about 225 people, according to the complaint. The consultant, Marjorie Kass, was appointed as Fink’s supervisor in December. Fink complained to human resources that she was being treated unfairly since her medical leave, but the company said her claims were unsubstantiated.

Fink received a “scathing” evaluation in January, one day before her second and final surgery related to the double-mastectomy. She said she had received positive reviews for four years up until that point, including one in August 2009 in which her supervisor said if all employees in the marketing department had to be laid off, Fink would be the only one to keep her job.

Catherine Barbieri, a Philadelphia employment and anti-discrimination lawyer and chairman of the board of the national Women’s Law Project, told the Associated Press Fink’s is the first case she is aware of in the nation that is based on the genetic nondiscrimination act.

The discrimination complaints are the first step to a possible civil lawsuit in which Fink could seek monetary damages, Phelan said.

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