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.1993).
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.1 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 be on their need to have access to prescription utilization data in the first place.” (Concurring Op. at 1144). First, I am aware of no *1147authority 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, determining] the credibility of witnesses or substituting] [our] version of the facts for that of the jury.’ Blair v. Manhattan Life Insurance Co., 692 F.2d 296, 300 (3d Cir.1982).” (Concurring Op. at 1144). 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 1141). 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 1140 (“This potential for harm, however, should not blind us to the absence of harm in this ease.”)). 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.
. 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.