Doe v. District of Columbia

Decision Date01 July 1992
Docket NumberCiv. A. No. 91-1642.
PartiesJohn DOE, Plaintiff, v. DISTRICT OF COLUMBIA, et al., Defendants.
CourtU.S. District Court — District of Columbia

Douglas B. Mishkin, Pamela Sherman, Melrod, Redman & Gartlan, and Joseph M. Sellers, Washington Lawyers' Committee for Civil Rights Under Law, Washington, D.C., for plaintiff.

Eugene A. Adams, Asst. Corp. Counsel, Washington, D.C., for defendants.

MEMORANDUM OPINION

THOMAS F. HOGAN, District Judge.

This case is one of the first of what the Court expects may become numerous cases alleging discrimination on the basis of HIV-positive status in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., and 42 U.S.C. § 1983.1 The case, brought by an individual against the District of Columbia and the District of Columbia Fire Department (the Fire Department),2 was tried before the Court during a one-day bench trial on June 8, 1992. The District presented no opening statement, no evidence, and no closing argument. For the reasons that follow, the Court shall grant judgment for the plaintiff.

I. FINDINGS OF FACT
A. The Parties

Plaintiff John Doe (Doe) is an adult resident of Maryland whose true name and address have been withheld due to the sensitive and personal nature of the matters at issue. Doe is infected with the Human Immunodeficiency Virus (HIV), for which he first tested positive in 1986.

Defendant District of Columbia (the District) is a municipality that is treated as a state for the purposes of the Rehabilitation Act of 1973, 29 U.S.C. § 706(14) and 42 U.S.C. § 1983.

B. The Hiring Process

The District hires persons to serve as firefighters within the Fire Department. To obtain a position as a firefighter, a person must pass a written and physical examination and a background investigation and must satisfy certain other prerequisites. As stipulated by the parties, the duties of a firefighter are:

Searches, operates motor-driven pumps and hydrants, drives emergency vehicles, operates ladder trucks and aerial ladders, provides emergency (non-surgical) medical treatment to victims, maintains equipment, handles hose lines, overhauls and moves debris, sets up and starts generators and floodlights, transports victims, opens or breaks windows etc. in order to provide ventilation, performs station duties and chores, rescues and extricates victims, extinguishes fires, transports supplies and equipment, inspects electrical and heating systems, and performs salvage operations.

Exh. 32.3

Physical examinations of applicants for firefighter positions and routine annual physical examinations of acting firefighters are conducted by the Board of Police and Fire Surgeons (the Board), an instrumentality of the District. Captain Terry Francisco, the Fire Department's medical officer, testified that a person who passes the physical examination administered by the Board is fully capable physically of performing the duties of a firefighter without risk to himself or others.4 The Board's physical examination does not include an HIV test, nor does the Board inquire into the HIV status of examinees.

According to Captain Francisco, applicants who receive written notice of selection from the District (known as a Letter of Appointment) have satisfied all of the requirements for employment as a firefighter. An applicant who is rejected for a position of firefighter for medical reasons is entitled to a written statement from the District and/or the Fire Department, notifying him of his rejection, giving the basis for the rejection, and providing notice of the right to appeal the rejection.

C. Firefighting Gear and Equipment

Every firefighter whose responsibilities include fighting fires is issued the following gear:

1. A helmet. The helmet is a hard shell with a transparent face shield in the front offering protection against blood-borne pathogen transmission. When fighting a fire or rendering emergency assistance, such as extracting an injured person from a trapped position, this face shield is lowered, thus protecting the firefighter from debris and minimizing the risk of blood splattering between the firefighter and the person being assisted.

2. A hood. The hood is placed on the head and covers the head and neck. It provides additional covering and an additional barrier should the firefighter have any open cuts or areas on the head or neck.

3. The "bunker coat." This coat is made of fire-resistant fabric, is resistant to high temperature and is very thick. The coat is not absorbent and, therefore, blood which splatters on the coat will not seep through it. The coat is also washable. There are compartments inside the coat for the firefighter to carry latex gloves and a pocket mask, which afford the firefighter additional protection while administering emergency CPR, even if the firefighter is not carrying the complete emergency medical kit (described below).

4. The "bunker pants." The pants are made with the same material as the jacket. They have knee pads reinforced with leather to protect against scrapes and needle-stick injuries in the event the firefighter must crawl. Like the bunker coat, the texture and thickness of the pants create an effective barrier against the flow of blood into or out of the pants.

5. Gloves. The structural firefighter gloves are made of thick, fire-resistant material. Their thickness offers considerable protection against cuts or punctures. Standard practice is to throw them out if blood soils them, because they cannot be effectively cleaned.

6. The "bunker boots." These boots are made of very thick rubber with steel-reinforced toes, providing additional protection from debris and against saturation with blood.

7. Self-contained breathing apparatus. Resembling a scuba tank, this apparatus enables a firefighter to breath safely when entering a smoke-filled building.

8. Emergency medical kit. The kit contains emergency equipment to be carried by a firefighter, such as gloves and a pocket mask for CPR (both of which should be carried in the bunker coat), dressing materials, a bag mask ventilation device for CPR, stethoscope, blood pressure cuff, and other emergency supplies. The pocket mask for CPR provides a barrier so that there is no mouth-to-mouth contact.

D. The HIV Disease
1. In General

At trial, Doe presented and the Court accepted Dr. David Parenti as an expert witness in infectious disease and HIV. Dr. Parenti is an Associate Professor of Medicine in the Division of Infectious Disease at the George Washington University Medical Center in Washington, D.C. He is board certified in the specialty of infectious disease. He has taught, lectured, and written extensively on infectious disease, specifically HIV-related matters. Since 1984, Dr. Parenti has been a member of the Infection Control Committee of the George Washington University Medical Center, where he participates in devising and implementing institutional guidelines to minimize the risk of infection within the institution. He participated as the infectious disease specialist on an ad hoc committee charged with drafting the Medical Center's policy regarding HIV-infected health care workers. Dr. Parenti also is actively involved in the treatment of patients with HIV-related conditions, and estimates that he has treated approximately 500-600 patients for HIV-related conditions. See Exh. 30.

According to the uncontradicted testimony of Dr. Parenti, HIV is a retrovirus that destroys T-4 lymphocytes, a type of white blood cell, and causes a suppression of the normal immune system. Infection by HIV produces a wide spectrum of consequences. Those diseases that result from the most severe immunosuppression frequently are referred to as Acquired Immune Deficiency Syndrome (AIDS).

In the medical community, it is common to distinguish between HIV-positive persons who are "asymptomatic for HIV disease" and HIV-positive persons who are "symptomatic for HIV disease." An asymptomatic person who is infected with HIV will sometimes manifest certain conditions that are evidence of the infection, such as a lymphadenopathy (a disease of the lymph nodes), a diminution of the T-4 cell count, or flu-like symptoms. A symptomatic person who is infected with HIV will manifest other conditions that are actual symptoms of the disease. These symptoms include fever, sweats, sudden weight loss, chronic diarrhea, dementia, persistent oral candidiasis, and opportunistic infections such as Kaposi's Sarcoma or pneumocystis carinii pneumonia.

Although it cannot be predicted with precision how long a particular HIV-positive person will remain asymptomatic, Dr. Parenti testified that approximately half of those for whom the date of infection can be identified will exhibit symptoms within 10 years. Dr. Parenti underscored the difficulty of predicting the progression of HIV and noted that there is great variability among infected persons. Ultimately, however, the HIV virus undergoes a multiplication and becomes what is commonly referred to as AIDS. There is no cure for this disease, which is fatal.

According to Dr. Parenti, asymptomatic HIV-positivity does not affect a person's physical capabilities. For example, it does not impair a person's strength, agility, or ability to breath. Dr. Parenti specifically testified that an asymptomatic HIV-infected person should be able to perform all of the functions of a firefighter as stipulated to by the District. Based on this uncontroverted testimony, the Court finds that the ability to perform the functions of a firefighter is unaffected by asymptomatic HIV-positivity.

2. The Risk of Harm to Self

According to Dr. Parenti, the common conception that HIV-infected persons are more likely than others to catch colds, flus, and other infections is inaccurate. Instead, most of the infections to which an asymptomatic HIV-positive person is susceptible are reactivations of prior infections (viral, fungal or parasitic), to which the...

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