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Genetics, mastectomy led to firing: Suit

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A Connecticut woman who says she was fired because of her genetic history has filed a complaint with the Equal Employment Opportunity Commission that alleges violation of the Genetic Information Nondiscrimination Act.

Pamela Fink filed a joint affidavit April 27 with the EEOC and Connecticut's Commission on Human Rights and Opportunities, alleging violations of GINA, the Americans with Disabilities Act and Connecticut's Fair Employment Practices Act. The filing is apparently the first publicly released GINA-related complaint.

According to the complaint, Ms. Fink received consistently favorable performance reviews as a director of public relations and marketing communications at Stamford, Conn.-based MxEnergy Holdings Inc., a natural gas and electricity supplier.

After learning she tested positive for BRCA2, the breast cancer Type 2 susceptibility protein, Ms. Fink took a medical leave to have a preventive double mastectomy last October.

In January, the day before she was to have a second and final surgery related to her double mastectomy, she was given a midyear performance review that was “negative and scathing,” according to the complaint. In March, her employment was terminated and she was told her position had been eliminated.

“We believe she was fired because of the positive test” as well as the mastectomy, said Gary Phelan, a partner with Outten & Golden L.L.P. in Stamford, Conn., and Ms. Fink's attorney.

Should the EEOC find in her favor, Mr. Phelan said the federal agency first would try to settle the case. If that is unsuccessful, the agency could either file its own suit or permit Ms. Fink to proceed with her lawsuit.

“From our perspective is it's an extremely strong case with precedent-setting potential,” he said.

A spokeswoman for MxEnergy said the company does not comment on personnel matters. “However, we can say that we look forward to presenting the ample evidence that we have in this case when it is appropriate,” she said.

Commenting on the complaint, employment attorney Clifford S. Anderson, a partner with law firm Hellmuth & Johnson P.L.L.C. in Eden Prairie, Minn., said that “it does appear that the plaintiff has established a prima facie case” of discrimination.

But, he added, “Until you get both sides of the story, it's always difficult to judge where there's actual discrimination going on.”

“Like so many employment discrimination cases, it's going to be fact-intensive and turn on what the actual facts are,” Mr. Anderson said.

—By Judy Greenwald