Abbott v. Bragdon

• Decision Date: 22 December 1995
• Docket Number: Civ. No. 94-0273-B.
• Citation: 912 F. Supp. 580
• Parties: Sidney ABBOTT, Plaintiff, v. Randon BRAGDON, D.M.D., Defendant.
• Court: U.S. District Court — District of Maine

912 F. Supp. 580

Sidney ABBOTT, Plaintiff, v. Randon BRAGDON, D.M.D., Defendant.

Civ. No. 94-0273-B.

United States District Court, D. Maine.

December 22, 1995.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Bennett H. Klein, Gay & Lesbian Advocates & Defenders, Aids Law Project, Boston, MA, David G. Webbert, Law Offices of Philip Johnson, Esq., Augusta, Maine, for Plaintiff.

Charles E. Gilbert, III, Gilbert Law Offices, P.A., Bangor, Maine, John W. McCarthy, Rudman & Winchell, Bangor, Maine, for Defendant.

John E. Carnes, Augusta, Maine, for Maine Intervenor Plaintiffs.

James M. Moore, U.S. Attorney's Office, Bangor, Maine, John L. Wodatch, U.S. Department of Justice, Disability Rights Section Civil Rights Division, Washington, D.C., for USA Intervenor Plaintiff.

ORDER AND MEMORANDUM OF DECISION

BRODY, District Judge.

Plaintiff Sidney Abbott, an individual with Human Immunodeficiency Virus ("HIV") filed this action against Defendant Randon Bragdon, a dentist with a practice in Bangor, Maine. Plaintiff's Amended Complaint alleges violations of title III of the Americans with Disabilities Act ("ADA" or "title III") and the Maine Human Rights Act ("MHRA") based on Defendant's refusal of treatment in his office. Defendant offered alternative treatment to Plaintiff in a hospital setting. Plaintiff seeks injunctive and declaratory relief under the ADA and MHRA, and civil penal damages under the MHRA. Both the United States ("Government") and the Maine Human Rights Commission ("MHRC") have intervened as Plaintiffs, and all Parties have moved for Summary Judgment. For the following reasons, the Court grants Summary Judgment for Plaintiff, and denies Summary Judgment for Defendant.

Background

The undisputed facts are as follows. Plaintiff Sidney Abbott has been infected with HIV for the past nine years. HIV is a retrovirus which causes Acquired Immune Deficiency Syndrome ("AIDS"). People exposed to HIV may contract the virus, and if so, will develop HIV antibodies and become HIV positive. HIV positive status does not equate with manifest illness. Individuals may carry HIV for several years without manifesting the collection of symptoms known as AIDS. During that period, the HIV carrier remains asymptomatic, meaning apparently healthy and generally able to participate in day to day life. Even in the asymptomatic phase, however, the HIV carrier's blood remains infected with a multiplying virus that creates abnormalities in that person's blood and lymphatic systems. To date, Plaintiff remains asymptomatic.

Defendant, Randon Bragdon, a dentist licensed to practice in the state of Maine, has operated a dental practice in Bangor since 1978. In September of 1994, Plaintiff arrived at Defendant's office for a pre-scheduled dental appointment. On her Patient Registration and Health Record form, Plaintiff indicated that she had HIV. Defendant examined Plaintiff and diagnosed a cavity. Defendant informed Plaintiff that pursuant to his infectious disease policy, he would not fill her cavity in his office, but would be glad to treat her in a hospital setting. Defendant then told Plaintiff that he would charge her the standard fee for filling a cavity as well as what the hospital charged for use of its facilities.

With respect to the ADA, the Parties dispute (1) whether Plaintiff's asymptomatic HIV constitutes a disability under the statute, and (2) whether treatment of Plaintiff in Defendant's office poses a direct threat to the health and safety of others such that Defendant may lawfully refuse such treatment. With respect to the MHRA, the Parties dispute whether Defendant's office constitutes a place of public accommodation. Finally, Defendant challenges the ADA on various constitutional grounds.

Discussion

A. Summary Judgment

Courts properly grant summary judgment when the moving party demonstrates the absence of a genuine issue of material fact, and that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party may rely on deposition testimony, answers to interrogatories, admissions on file and affidavits to meet its burden. Id. In addition the moving party may satisfy its burden by demonstrating an absence of evidence to support an essential element of a claim for which the nonmoving party bears the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). To defeat summary judgment, the nonmoving party need only present evidence from which a jury might return a verdict in its favor. Anderson v. Liberty Lobby, 477 U.S. 242, 257, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986). The nonmoving party, however, may not rest on mere allegations or denials, but must employ affidavits, admissions, deposition testimony and answers to interrogatories to set forth specific facts establishing a genuine issue for trial. Fed.R.Civ.P. 56(e).

B. ADA

Under title III, a place of public accommodation may not discriminate against an individual on the basis of a disability in the full and equal enjoyment of services. 42 U.S.C. § 12182(a). Places of public accommodation, however, may deny full and equal enjoyment of services to an individual who poses a direct threat to the health or safety of others. 42 U.S.C. § 12182(b)(3). To find a violation of title III, therefore, the Court must determine that (1) Defendant's office constitutes a place of public accommodation, (2) Plaintiff has a disability for purposes of the ADA, and (3) treatment of Plaintiff in Defendant's office does not pose a direct threat to the health or safety of others. Defendant does not dispute that his office constitutes a place of public accommodation under the ADA.¹ The Court also concludes that Plaintiff is disabled as a matter of law, and that treatment of Plaintiff in Defendant's office poses no direct threat to the health and safety of others.

1. Plaintiff is Disabled as a Matter of Law

Title III of the ADA prohibits a place of public accommodation from discriminating in equal use of services on the basis of disability. Under the ADA, disability means "(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 impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102(2). Defendant contends that asymptomatic HIV does not constitute a per se disability, and that Plaintiff has failed to offer evidence upon which to conclude that her asymptomatic HIV substantially limits any major life activity.

The ADA classifies neither HIV, nor any other disease or condition, as a per se disability.² Instead, application of the statute to a given individual depends on whether that individual has a physical or mental impairment, and whether that impairment substantially limits a major life activity of that individual. 42 U.S.C. § 12102(A). The Court is persuaded that asymptomatic HIV constitutes a physical impairment for the purposes of the ADA. The interpretive guidelines specifically include HIV, whether symptomatic or asymptomatic, among the types of diseases that constitute disabilities. 28 C.F.R. § 36.104. The vast weight of the authority also supports the proposition that HIV constitutes a physical impairment for the purposes of the ADA.³ See 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); EEOC v. Chemtech International Corp., 1995 WL 608355 at *1 (S.D.Tex.1995); Austin v. Pennsylvania Department of Corrections, 876 F.Supp. 1437, 1465 (E.D.Pa.1995); Robinson v. Henry Ford Health Systems, 892 F.Supp. 176, 180 (E.D.Mich.1994); Howe v. Hull, 873 F.Supp. 72, 78 (N.D.Ohio 1994); Doe v. Kohn Nast & Graf, P.C., 862 F.Supp. 1310, 1318-20 (E.D.Pa.1994); T.E.P. v. Leavitt, 840 F.Supp. 110, 111 (D.Utah 1993); Doe v. District of Columbia, 796 F.Supp. 559, 568 (D.D.C. 1992); Glanz v. Vernick, 756 F.Supp. 632, 635 (D.Mass.1991).

Less clear is whether Plaintiff's asymptomatic HIV substantially limits one or more of her major life activities. See 42 U.S.C. § 12102(2)(A). The Court concludes that it does. Plaintiff identifies reproduction as the sole major life activity that her asymptomatic HIV substantially limits. She asserts that the risk of transmitting HIV to a potential child, as well as possible harm to her own immune system, has deterred her from having children.⁴ The Court, therefore, must inquire (1) whether reproduction constitutes a major life activity, and, if so, (2) whether Plaintiff's HIV substantially limits that major life activity. 42 U.S.C. § 12102(2)(A). An examination of both of these inquiries leads the Court to conclude that Plaintiff's asymptomatic HIV substantially limits her major life activity of reproduction.

As a matter of common sense, the outcome of the first inquiry seems obvious. Reproduction, one of the most fundamental of human activities, must constitute a major life activity. From the perspective of the ADA, however, that issue becomes somewhat murky. The interpretive guidelines define "major life activities" as "functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 28 C.F.R. § 36.104. At least one court has determined that reproduction does not constitute a major life activity for the purposes of the ADA, reasoning that one does not engage in reproduction with the same frequency as walking, seeing, speaking, breathing, learning and working. Zatarain v. WDSU-Television, Inc., 881 F.Supp. 240, 243 (E.D.La. 1995).

The Court, however, concurs with the majority of courts who have concluded that reproduction does constitute a major life activity. See Erickson v. Northeastern Illinois University, 911 F.Supp. 316 at 321, (N.D.Ill. 1995); Pacourek v. Inland Steel Co., 858 F.Supp. 1393, 1404-05 (N.D.Ill.1994); Kohn Nast & Graf, P.C., 862 F.Supp. at...