Abbott v. Bragdon

• Citation: 107 F.3d 934
• Decision Date: 08 November 1996
• Docket Number: No. 96-1643,96-1643
• Parties: , 6 A.D. Cases 780, 20 A.D.D. 616, 9 NDLR P 215 Sidney ABBOTT, et al., Plaintiffs, Appellees, v. Randon BRAGDON, D.M.D., Defendant, Appellant. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 934

107 F.3d 934

65 USLW 2592, 6 A.D. Cases 780, 20

A.D.D. 616, 9 NDLR P 215

Sidney ABBOTT, et al., Plaintiffs, Appellees, v. Randon BRAGDON, D.M.D., Defendant, Appellant.

No. 96-1643.

United States Court of Appeals,

First Circuit.

Heard Nov. 8, 1996.

Decided March 5, 1997.

John W. McCarthy, Bangor, ME, with whom Brent A. Singer and Rudman & Winchell were on brief, for defendant.

Peter M. Sfikas, Mark S. Rubin and Jill A. Wolowitz, Chicago, IL, on brief for American Dental Ass'n, amicus curiae.

Bennett H. Klein and David G. Webbert, Augusta, ME, with whom Gay and Lesbian Advocates and Johnson, Webbert & Laubenstein were on brief, for plaintiff Sidney Abbott.

John E. Carnes, Commission Counsel, Augusta, ME, on brief for intervenor-plaintiff Maine Human Rights Commission.

Samuel R. Bagenstos, Attorney, U.S. Dept. of Justice, Washington, DC, with whom Deval L. Patrick, Assistant Attorney General, Boston, MA, and Jessica Dunsay Silver, Attorney, Washington, DC, were on brief, for intervenor-plaintiff United States of America, amicus curiae.

Robert Greenwald, Yonkers, NY, and AIDS Action Committee on brief, Boston, MA, for R.I. Dept. of Pub. Health, Bureau of Health of the Me. Dept. of Human Servs., American Pub. Health Ass'n, Ass'n of State and Territorial Dental Dirs., and Ass'n of State and Territorial Health Officials, amici curiae.

Donna Levin, Boston, MA, on brief for Mass. Dept. of Pub. Health, amicus curiae.

Before SELYA, Circuit Judge, ALDRICH, Senior Circuit Judge, and STAHL, Circuit Judge.

SELYA, Circuit Judge.

In this case of first impression, the district court granted summary judgment in favor of plaintiff-appellee Sidney Abbott, an HIV-positive woman, on her claim that defendant-appellant Randon Bragdon, a dentist, violated the Americans with Disabilities Act (the ADA) by refusing to treat her in his dental office. ¹ Dr. Bragdon appeals. Because we agree with the district court that Ms. Abbott is disabled within the purview of the ADA and that providing routine dental care to her (i.e., filling a cavity) would not have posed a direct threat to Dr. Bragdon's health or safety, we affirm.

I. BACKGROUND

The events giving rise to this litigation are straightforward. On September 16, 1994, Ms. Abbott arrived at Dr. Bragdon's office in Bangor, Maine for a scheduled appointment. On her patient registration form, she indicated that she was infected with the HIV virus. People may be HIV-positive for years without manifesting the set of symptoms commonly known as AIDS, and Ms. Abbott was asymptomatic at the time.

Dr. Bragdon performed a dental examination and discovered a cavity. He told Ms. Abbott that, pursuant to his infectious disease policy, he would not fill her cavity in his office, but would only treat her in a hospital setting. Though he would charge his regular fee, she would have to bear the additional cost of whatever the hospital charged for the use of its facilities. Ms. Abbott refused the offer and instead filed a complaint under the ADA. See 42 U.S.C. § 12182(a) (1994).

After pretrial discovery concluded, the parties cross-moved for summary judgment. The district court ruled that Ms. Abbott was substantially limited in a major life activity (reproduction) and thus was disabled for purposes of the ADA. See Abbott v. Bragdon, 912 F.Supp. 580, 587 (D.Me.1995). The court then concluded that the relatively routine treatment needed by Ms. Abbott could be delivered safely in Dr. Bragdon's office. See id. at 591. Consequently, the court granted Ms. Abbott's motion for summary judgment. See id. at 595-96. This appeal followed.

II. THE SUMMARY JUDGMENT STANDARD

The Civil Rules authorize federal courts to grant summary judgment only when "there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Confronted with a properly documented motion for brevis disposition, the nonmovant must establish the existence of a fact that is both genuine and material in order to ward off the entry of an adverse judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir.1990). Appellate review of the district court's award of summary judgment is plenary, and, in keeping with this standard, we are not wedded to the district court's rationale but may affirm on any alternative ground made manifest by the record. See Hachikian v. FDIC, 96 F.3d 502, 504 (1st Cir.1996).

In assaying the record, we are guided by the same tenets that guided the lower court. Thus, we are duty bound to indulge all reasonable inferences in favor of the party opposing summary judgment. See id. This generous outlook notwithstanding, we must disregard improbable or overly attenuated inferences, unsupported conclusions, and rank speculation. See Smith v. F.W. Morse & Co., 76 F.3d 413, 428 (1st Cir.1996); Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.1990).

III. THE QUESTION OF DISABILITY

The ADA sends a clear message to those who operate places of public accommodation: you may not discriminate against individuals in the full and equal enjoyment of services on the basis of a disability. See 42 U.S.C. § 12182(a). Although a dental office qualifies as a place of public accommodation, see id. § 12181(7)(F); see also 28 C.F.R. § 36.104 (1996), the ADA protects only disabled patients against discrimination, and any attempt to invoke the ADA against a practicing dentist must start with an investigation into the patient's status. We turn, then, to the question of whether Ms. Abbott, who was infected with HIV but was asymptomatic, had a disability cognizable under the ADA.

This question is first and foremost a question of statutory construction which we review de novo. See Strickland v. Commissioner, Me. Dept. of Human Servs., 96 F.3d 542, 545 (1st Cir.1996). In all such cases, we begin with the words of the statute, and we approach them with an understanding that our role is not to set public policy, but, rather, to discern the legislature's will. See, e.g., United States v. Gibbens, 25 F.3d 28, 33 (1st Cir.1994).

A. The Plaintiff's Burden.

Disability is not a unitary concept under the ADA. Instead, the statute limns three subsets of disability, any one of which is sufficient to trigger the act's protections. In this regard, the ADA states:

The term "disability" means, with respect to an individual--(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.

42 U.S.C. § 12102(2). This case, as Ms. Abbott postures it, implicates the first subset of the statutory definition. ² Thus, she must prove three things: first, that she has a "physical or mental impairment"; second, that this impairment adversely affects "a major life activity"; and third, that it does so to a significant extent (or, put more precisely, that the impairment "substantially limits" her ability to engage in the particular major life activity).

B. The Impairment.

The plaintiff easily clears the first hurdle. We hold unhesitatingly that HIV-positive status, simpliciter, whether symptomatic or asymptomatic, comprises a physical impairment under the ADA. Regulations issued by the Equal Employment Opportunity Commission (the EEOC) implementing Title III of the ADA explicitly support this conclusion, see 28 C.F.R. § 36.104 (1996) (stating that the phrase "physical impairment" includes HIV); judicial authority buttresses this conclusion, see, e.g., Gates v. Rowland, 39 F.3d 1439, 1446 (9th Cir.1994); Doe v. Garrett, 903 F.2d 1455, 1459 (11th Cir.1990), cert. denied, 499 U.S. 904, 111 S.Ct. 1102, 113 L.Ed.2d 213 (1991); and Dr. Bragdon does not seriously advocate an antithetical view.

C. The Major Life Activity.

Moving to the second hurdle, Ms. Abbott cites reproduction as her affected major life activity. The court below accepted this asseveration. See Abbott, 912 F.Supp. at 587. Dr. Bragdon's rebuttal is twofold. In the first place, he disputes that reproduction properly can be characterized as a major life activity. In the second place, he asserts that even if reproduction so qualifies in general, there is nonetheless an unresolved issue as to whether it qualifies in Ms. Abbott's particular case. We address each of these assertions.

1. Reproduction Writ Large. The question of whether reproduction in large constitutes a major life activity under the ADA is not free from doubt. The ADA itself does not define the term "major life activities," and the few available judicial precedents reveal divergent opinions. Compare Pacourek v. Inland Steel Co., 916 F.Supp. 797, 804 (N.D.Ill.1996) (finding that reproduction is a major life activity) and Erickson v. Board of Govs. of State Colleges, 911 F.Supp. 316, 323 (N.D.Ill.1995) (same) and Cain v. Hyatt, 734 F.Supp. 671, 679 (E.D.Pa.1990) (same) with Krauel v. Iowa Methodist Med. Ctr., 95 F.3d 674, 677 (8th Cir.1996) (holding that reproduction is not a major life activity) and Zatarain v. WDSU-Television, Inc., 881 F.Supp. 240, 243 (E.D.La.1995) (same). Still, it is clear that Ms. Abbott's HIV-positive status has a profound impact upon her ability to engage in intimate sexual activity, gestation, giving birth, childrearing, and nurturing familial relations. Our society has long recognized the fundamental importance of each element of this cluster of activities, and our jurisprudence reflects this bias. See, e.g., Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212-13, 31 L.Ed.2d 551 (1972) (terming the rights to conceive and raise children "essential," "basic civil rights," and rights that are "far more precious ... than property rights") (citations and internal quotation marks omitted). Viewed against this backdrop, we think it is highly likely that Congress accorded...