Leckelt v. Board of Com'rs of Hosp. Dist. No. 1.
| Decision Date | 28 August 1990 |
| Docket Number | No. 89-3256,89-3256 |
| Citation | 909 F.2d 820 |
| Parties | 53 Fair Empl.Prac.Cas. 1136, 54 Empl. Prac. Dec. P 40,223, 59 USLW 2174, 5 Indiv.Empl.Rts.Cas. 1089, 1 A.D. Cases 1678 Kevin M. LECKELT, Plaintiff-Appellant, v. BOARD OF COMMISSIONERS OF HOSPITAL DISTRICT NO. 1, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
R. James Kellogg, Lambda Legal Defense & Educ. Fund, Ruth Colker, New Orleans, La., Nan D. Hunter, New York City, and Maureen O'Connell, and Ann McClaine, New Orleans, La., for plaintiff-appellant.
Daniel J. Walker, Ann Mallett Barker, and Wm. S. Watkins, Watkins and Walker, Houma, La., K. Bruce Stickler, Keck, Mahin & Cate, Chicago, Ill., Elmer E. White, III, Kullman, Inman, Bee & Downing, New Orleans, La., and Andrew B. David, Sugar, Friedberg & Felsenthal, Chicago, Ill., for defendants-appellees.
James Monroe Smith, Executive Director, Aids Legal Council, Chicago, Ill., for Aids Legal Council of Chicago, amici in support of plaintiff-appellant.
Herbert Semmel, New York Lawyers for the Public Interest, and Mark Barnes, Asst. Clinical Prof. of Law, New York City, for American Public Health Assoc.
John T. O'Keefe, Cambridge, Mass., for American Soc. of Law & Medicine.
Robert L. Roland and Cathryn S. Long, Watson, Blanche, Wilson & Posner, Baton Rouge, La., for Louisiana Hosp. Assoc., amicus in support of defendants-appellees.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before GEE, REAVLEY, and GARWOOD, Circuit Judges.
Plaintiff-appellant Kevin Leckelt (Leckelt), formerly a licensed practical nurse at Terrebone General Medical Center (TGMC), a local governmental hospital located in Houma, Louisiana, appeals the dismissal, following a bench trial, of his claim that his rights under various federal and state constitutional and statutory provisions were violated by TGMC's requirement that he submit the results of his human immunodeficiency virus (HIV) antibody test, its refusal to permit him to work pending the submission of these test results, and its ultimate discharge of him for failure to submit the results as directed. See Leckelt v. Board of Commissioners of Hospital District No. 1, 714 F.Supp. 1377 (E.D.La.1989). We affirm.
In June 1978, TGMC hired Leckelt as a licensed practical nurse. In this capacity, Leckelt routinely administered medication, orally and by injection, changed dressings, performed catheterizations, administered enemas, and started intravenous tubes (IVs). Leckelt occasionally was assigned to the intensive care unit, the emergency room, or the surgical recovery room. Leckelt routinely wore gloves for sterile procedures, such as catheterizations or dressing changes. When starting IVs or giving injections, he used a hand wash but did not wear rubber gloves unless he had a cut, abrasion, or open wound on his hands. 1
On April 4, 1986, Dr. James Nelson (Dr. Nelson), the vice chief of staff of TGMC, brought a report of the infection control committee of TGMC's medical staff to Alex Smith (Smith), the executive director of TGMC. The report reflected the committee's concern over the need for a policy specifically addressing employees with HIV. 2 Dr. Nelson informed Smith that Dr. Amelia Eschete (Dr. Eschete), the chairperson of the committee, had stated that she knew of a hospital employee who was the associate of a current AIDS patient at TGMC. Smith immediately initiated an investigation into the matter. In the meanwhile, Smith consulted legal counsel, familiarized himself with the hospital's infection control policies, and read various excerpts of the applicable guidelines with respect to HIV and AIDS of the Center for Disease Control (CDC) and of the American Hospital Association (AHA). Smith understood that in order to comply with these guidelines, TGMC needed to know whether the employee was seropositive for HIV antibodies and, therefore, needed to be counseled and evaluated in conjunction with the employee's personal physician.
On April 7, TGMC's board of commissioners (board) held its monthly meeting. During an executive session, Smith informed the board that there was a male TGMC nurse who was known to be homosexual and who was the roommate of a TGMC patient believed to have AIDS. He also informed the board that he had consulted with legal counsel and that it was his understanding that TGMC needed to know whether the employee was seropositive for HIV antibodies in order to comply with the CDC guidelines. Smith recommended that the employee be requested to submit to HIV antibody testing. 3 The board concurred with Smith's recommendation. Smith and the board briefly discussed what measures might be taken if the employee did test seropositive to HIV antibodies, including additional universal precautions, reassignment, or termination. Because they did not know whether the male nurse in question was seropositive for HIV antibodies, however, they did not decide what measure or measures would be appropriate in such a case.
Subsequent to the board meeting, Smith met with Mabel Russell Michel (Michel), TGMC's director of nursing services. Michel informed Smith that the nurse in question was Leckelt, that Leckelt was known to be homosexual, and that he had been the roommate for eight years of Marvin Potter (Potter), a patient of TGMC who was believed to have AIDS. 4 Smith advised Michel to speak with Gustavia Growe (Growe), TGMC's infection control practitioner, concerning this matter and to instruct her to request Leckelt to submit to HIV antibody testing for the protection of Leckelt and TGMC's patients. Michel did so.
On April 8, Growe called Leckelt at home and asked him if he could meet with her that afternoon. Leckelt did so. At this meeting, Growe informed Leckelt that she knew that Leckelt was a roommate of Potter. She explained that TGMC was concerned about the health of Leckelt and that of its patients and, therefore, requested that Leckelt consent to HIV antibody testing. Leckelt responded that he likewise was concerned about his health and that he and a few friends had gone to New Orleans to be HIV tested. Growe asked Leckelt if he would bring the results of his HIV antibody test to her. Leckelt responded that he was going to pick up the results on April 11 and that he would bring the results to her on that day.
During this April 8 meeting, Leckelt also informed Growe that he had had a cyst underneath one of his arms that had been lanced at the TGMC emergency room on April 6. Because of the resulting draining lesion, he explained that he had called in sick on April 7. Growe responded that Leckelt should not work at TGMC with that type of lesion. She explained that he would need to receive medical clearance from his treating physician--a Dr. Carmody--before reporting back to work.
Smith relayed this decision to Michel, who in turn relayed it to Growe.
Later that day, Growe contacted Leckelt at Dr. Carmody's office. Growe told Leckelt that he could not return to work until he submitted the results of his HIV antibody test to her. She reminded him that he also needed medical clearance with respect to the draining lesion before returning to work. Shortly thereafter, Leckelt called Growe and informed her that he had received medical clearance with respect to the lesion and that he could return to work on April 14. Growe reiterated that before Leckelt could return to work, he must bring his test results to her between 8:30 a.m. and 4:30 p.m. on any weekday.
At an infection control committee meeting on April 14, Dr. Eschete indicated that there was a TGMC employee who was a hepatitis B virus (HBV) carrier and had a history of syphilis. Following the meeting, Growe asked Dr. Eschete whether the employee in question was Leckelt, and Dr. Eschete replied affirmatively. 5 Growe investigated Leckelt's medical records at TGMC and discovered that he had been admitted in February 1984 for a lymph node biopsy and was diagnosed with general lymphadenopathy. His medical chart noted blood precautions. 6 Further, in December 1984, Leckelt had reported to Growe with a rash that was diagnosed as a syphilis infection. 7 Growe relayed this information concerning Leckelt's medical history to Michel, who in turn relayed it to Smith.
On April 16, Growe, having not heard from Leckelt in the meanwhile, contacted him concerning whether he was going to submit the results of his HIV antibody test. Leckelt responded that he was on the other line with his attorney and, therefore, could not speak with her at that time. Neither Leckelt nor Growe contacted or attempted to contact the other after April 16. It is undisputed that as of the conclusion of the proceedings in the district court, Leckelt had never picked up his test results and they had never been furnished to TGMC. There is no contention that the test results were other than readily...
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