Page:Touhy v. Walgreen Company.pdf/16

 III

Turning to Ms. Touhy's appeal of the district court's entry of summary judgment, the parties agree that all of Ms. Touhy's claims against Walgreen hinge on establishing that Ms. Whitlock used her position as a Walgreen employee to access and then disclose Ms. Touhy's health information. The dispositive question before us, then, is whether, viewing the facts in the light most favorable to Ms. Touhy as the non-movant, a reasonable jury could conclude that Ms. Whitlock acted in such a way. Ms. Touhy presents two theories why we should answer this question affirmatively.

First, Ms. Touhy contends that her own testimony suffices to raise a triable question of fact. At deposition, Ms. Touhy repeated her claim that Mr. Abrams told her that he learned of her health condition from Ms. Frazier, who in turn heard the information from Ms. Whitlock. As the district court rightly observed, however, Ms. Touhy has a serious hearsay problem. Neither Mr. Abrams, Ms. Frazier, nor Ms. Whitlock have testified that Ms. Whitlock actually accessed and then disclosed Ms. Touhy's health information to Ms. Frazier, and so evidence of Ms. Whitlock's alleged statement comes to the court only by way of a three-link chain: Ms. Touhy's testimony of (1) what Mr. Abrams allegedly told her that (..continued) - 16 -