Bradley v. University of Texas M.D. Anderson Cancer Center, 93-2227

• Decision Date: 07 October 1993
• Docket Number: No. 93-2227,93-2227
• Citation: 3 F.3d 922
• Parties: 62 Empl. Prac. Dec. P 42,566, 62 USLW 2223, 2 A.D. Cases 1297, 3 ADD 132 Brian Douglas BRADLEY, Plaintiff-Appellant, v. UNIVERSITY OF TEXAS M.D. ANDERSON CANCER CENTER, Georgia Thomas, M.D., in her Individual and Official Capacity, and James Cox, M.D., in his Individual and Official Capacity, Defendants-Appellees. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 922

3 F.3d 922

62 Empl. Prac. Dec. P 42,566, 62 USLW

2223, 2 A.D. Cases 1297,

3 ADD 132

Brian Douglas BRADLEY, Plaintiff-Appellant, v. UNIVERSITY OF TEXAS M.D. ANDERSON CANCER CENTER Georgia Thomas, M.D., in her Individual and Official Capacity, and James Cox, M.D., in his Individual and Official Capacity, Defendants-Appellees.

No. 93-2227

Summary Calendar.

United States Court of Appeals Fifth Circuit.

Oct. 7, 1993.

Anthony P. Griffin, Galveston, TX, for plaintiff-appellant.

Ann F. MacMurray, Asst., Dan Morales, Atty. Gen., Austin, TX, for defendants-appellees.

Appeal from the United States District Court for the Southern District of Texas.

Before KING, HIGGINBOTHAM, and BARKSDALE, Circuit Judges.

PER CURIAM:

In a July 20, 1991 Houston Chronicle article Brian Bradley revealed that he was HIV-positive and that he worked for the University of Texas M.D. Anderson Cancer Center as a surgical assistant. Soon thereafter the hospital reassigned him as a procurement assistant in the purchasing department. He then sued the hospital and two supervisors claiming that his reassignment violated section 504 of the Rehabilitation Act of 1973, 29 U.S.C. Sec. 794, and constituted retaliation in violation of the First Amendment for speaking to the Chronicle. The district court granted summary judgment on those claims and dismissed Bradley's pendent state law claims. We affirm.

We address the Rehabilitation Act claim first. Bradley has the burden of establishing a prima facie case. One element of that case is showing that he is "otherwise qualified" to participate in the activity at issue. Brennan v. Stewart, 834 F.2d 1248, 1260 (5th Cir.1988). Assuming without deciding that seropositivity to HIV antibodies is an impairment within the meaning of the Act, the issue in this case is whether Bradley is otherwise qualified to continue in his employment as a surgical technician.

An "otherwise qualified" person can perform the essential functions of the job in question. School Board of Nassau County v. Arline, 480 U.S. 273, 288-89 & nn. 16-19, 94 L.Ed.2d 307, 107 S.Ct. 1123, 1131 & nn. 16-19 (1987). In the context of the employment of a person handicapped with a contagious disease the inquiry should include:

[findings of] facts, based on reasonable medical judgments given the state of medical knowledge, about (a) the nature of the risk (how the disease is transmitted), (b) the duration of the risk (how long is the carrier infectious), (c) the severity of the risk (what is the potential harm to third parties), and (d) the probabilities the disease will be transmitted and will cause varying degrees of harm.

Id. 480 U.S. at 288, 107 S.Ct. at 1131. The court should give deference to the reasonable medical judgments of public health officers. If an employee cannot perform the essential functions of the job the court should consider whether any "reasonable accommodation" by the employer would let the handicapped person perform those functions. Id.

The parties do not dispute the first three factors. The nature of the risk is not at issue, as all parties recognize that blood entering a patient's body can transmit HIV. The duration of the infection is perpetual. And the virus inevitably leads to the fatal disease AIDS.

The disputed issue is the probability of transmitting the virus. The nature of Bradley's work as a surgical technologist creates some risk. He works in the sterile field within which surgery is performed, often coming within inches of open wounds and placing his hand in the body cavity roughly once a day. His duties include handing the handles of instruments to surgeons while he holds the sharp end, and he admits that accidents occur despite care. Bradley reports suffering five needle puncture wounds while on the job.

This risk, while present, is not large. The Centers for Disease Control (CDC) state that "the risk of transmitting HBV [Hepatitis B Virus] from an infected HCW [Health Care Worker] to a patient is small, and the risk of transmitting HIV is likely to be even smaller." CDC also notes that the risk of exposure "is greater for certain procedures designated as exposure-prone" such as "the simultaneous presence of the HCW's fingers and a needle or other sharp instrument or object in a ... highly confined anatomic site." Centers for Disease Control, Recommendations for Preventing Transmission of Human Immunodeficiency Virus and Hepatitis B Virus to Patients During Exposure-Prone Invasive Procedures, in Morbidity and Mortality Weekly Report, July 17, 1991.

While the risk is small, it is not so low as to nullify the catastrophic consequences of an accident. A cognizable risk of permanent duration with lethal consequences suffices to make a surgical technician with Bradley's responsibilities not "otherwise qualified." See Doe v. Washington Univ., 780 F.Supp. 628, 632-34 (E.D.Mo.1991) (HIV-positive dental student not otherwise qualified to perform invasive procedures because the risks defy the axiom to at least do no harm). See also Estate of William Behringer v. Medical Center, 249 N.J.Super. 597, 592 A.2d 1251, 1276-77 (Law Div.1991) (no violation of state statute proscribing discrimination against the handicapped because HIV-positive surgeon posed a "reasonable probability of substantial harm" to others).

The...