Estate of Mauro By and Through Mauro v. Borgess Medical Center, 95-1544

Citation137 F.3d 398
Decision Date25 February 1998
Docket NumberNo. 95-1544,95-1544
Parties7 A.D. Cases 1571, 12 NDLR P 23 The ESTATE OF William C. MAURO, By and Through its independent personal representative, Sandra MAURO, Plaintiff-Appellant, v. BORGESS MEDICAL CENTER, a Michigan Not For Profit Corporation, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Edward J. Annen, Jr. (argued and briefed), William C. Mauro, pro se, Kalamazoo, MI, for Plaintiff-Appellant.

Craig H. Lubben (argued and briefed), Nancy Stevenson Rubino (briefed), Miller, Johnson, Snell & Cummiskey, Kalamazoo, MI, for Defendant-Appellee.

Before: BOGGS, NORRIS, and GIBSON, * Circuit Judges.

JOHN R. GIBSON, J., sitting by designation, delivered the opinion of the court, in which ALAN E. NORRIS, J., joined. BOGGS, J. (pp. 407-16), delivered a separate dissenting opinion.

OPINION

JOHN R. GIBSON, Circuit Judge.

William C. Mauro brought an action against his former employer, Borgess Medical Center, alleging violations of the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213 (1994), and the Rehabilitation Act, 29 U.S.C. §§ 701-796 (1994). 1 The district court 2 granted Borgess's motion for summary judgment, determining that Mauro, who was infected with human immunodeficiency virus, or HIV, the virus that causes AIDS, was a direct threat to the health and safety of others that could not be eliminated by reasonable accommodation and thus concluded that Borgess took no illegal action in removing Mauro from his position as surgical technician. See Mauro v. Borgess Med. Ctr., 886 F.Supp. 1349 (W.D.Mich.1995). Mauro 3 appeals, arguing that as a surgical technician at Borgess he did not pose a direct threat to the health and safety of others and that therefore the district court erred in granting summary judgment to Borgess. We affirm.

Borgess employed Mauro from May 1990 through August 24, 1992 as an operating room technician. In June of 1992, an undisclosed source telephoned Robert Lambert, Vice President of Human Resources for Borgess Medical Center and Borgess Health Alliance, and informed Lambert that Mauro had "full blown" AIDS. Because of Borgess's concern that Mauro might expose a patient to HIV, Georgiann Ellis, Vice President of Surgical, Orthopedic and Clinical Services at Borgess, and Sharon Hickman, Mauro's supervisor and Operating Room Department Director, created a new full-time position of case cart/instrument coordinator, a position that eliminated all risks of transmission of the HIV virus. In July of 1992, Borgess officials offered Mauro this position, which he refused.

After Mauro's refusal of the case cart/instrument coordinator position, Borgess created a task force to determine whether an HIV-positive employee could safely perform the job responsibilities of a surgical technician. Lambert and Ellis informed Mauro by a letter dated August 10, 1992, that the task force had determined that a job requiring an HIV-infected worker to place his or her hands into a patient's body cavity in the presence of sharp instrumentation represented a direct threat to patient care and safety. Because the task force had concluded that an essential function of a surgical technician was to enter a patient's wound during surgery, the task force concluded that Mauro could no longer serve as a surgical technician. Lambert and Ellis concluded by offering Mauro two choices: to accept the case cart/instrument coordinator position, or be laid off. Mauro did not respond by the deadline stated in the letter, and Borgess laid him off effective August 24, 1992. Mauro filed this suit in January 1994.

Borgess moved for summary judgment arguing that it was entitled to remove Mauro from his position since his HIV-positive condition posed a direct threat to the health and safety of others under the four-factor test outlined in School Board v. Arline, 480 U.S. 273, 287-88, 107 S.Ct. 1123, 1130-31, 94 L.Ed.2d 307 (1987). Arline 's factors include the nature, duration, and severity of the risk, and the probability that the disease will be transmitted. Id. The district court considered the relevant medical and scientific evidence, as well as the other affidavits and depositions before it. Observing that the parties had agreed that the first three factors of the Arline test indicated that Mauro posed a significant threat to others, the court focused on the probability that the disease would be transmitted, the fourth element of the Arline test. Mauro, 886 F.Supp. at 1352-53.

Mauro argued that the probability of transmitting his HIV virus was so small that the risk was not cognizable and introduced expert testimony to support his argument. The court referred to Mauro's deposition and recognized that Mauro was "occasionally required to place his hands upon and into the patient's surgical incision to provide room and visibility to the surgeon." Id. at 1352. The court then determined that Mauro's experts had admitted that it would present a direct risk if a surgical technician was required to place his or her hands into a surgical incision and was exposed to the risk of needle sticks and lacerations. Id. at 1353. In addition, the court emphasized that Mauro had testified that he was always exposed, during surgery, to the possibility of sustaining a needle stick or minor laceration. In fact, Mauro had sustained two such injuries during his employment as a surgical technician.

Next, the court held that Doe v. University of Maryland Medical System Corp., 50 F.3d 1261 (4th Cir.1995), and Bradley v. University of Texas M.D. Anderson Cancer Center, 3 F.3d 922 (5th Cir.1993) (per curiam), cert. denied, 510 U.S. 1119, 114 S.Ct. 1071, 127 L.Ed.2d 389 (1994), two decisions involving HIV-positive health care workers that held that the workers posed a direct risk to the health and safety of others, were "materially indistinguishable and properly reasoned."

Applying the reasoning of the Fourth and Fifth Circuits, the district court concluded as a matter of law that Mauro's presence in the operating room in the capacity of a surgical technician posed a direct and significant threat to the health and safety of others. In light of these decisions and the specific duties of a Borgess surgical technician, the court held that Mauro posed a direct risk to the health and safety of others and held that no genuine issue of material fact existed, and therefore granted summary judgment in favor of Borgess.

The court next rejected Mauro's argument that his direct contact with a patient was not an essential function, but rather a marginal function of his position. Because an employer is not required to restructure the essential functions of a position, the district court concluded that reasonable accommodation was not possible and held that Borgess had done all that was required under the Americans With Disabilities Act and the Rehabilitation Act. The other aspects of the district court's decision are not relevant to this appeal.

I.

We review a grant of summary judgment de novo. See Roush v. Weastec, Inc., 96 F.3d 840, 843 (6th Cir.1996). Courts properly grant summary judgment where the moving party establishes through pleadings, depositions, answers to interrogatories, admissions, and affidavits that "there is no genuine issue as to any material fact, and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In addition, the movant can meet its burden by pointing out an absence of evidence to support an essential element of a claim for which the nonmoving party bears the burden of proof. See Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). If the nonmoving party presents evidence from which a jury might return a verdict in its favor, a court may not grant summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S.Ct. 2505, 2514-15, 91 L.Ed.2d 202 (1986). The court, in considering a motion for summary judgment, must accept the evidence of the nonmoving party and draw all reasonable inferences in the nonmovant's favor. See id. at 255, 106 S.Ct. at 2513-14. We view the facts and any reasonable inferences drawn from those facts in a light most favorable to the nonmoving party. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970).

II.

Mauro argues that the district court erred in concluding that there was no genuine issue of material fact about whether the likelihood of him transmitting HIV in the course of his job posed a significant risk or direct threat to the health and safety of others, thus rendering him unqualified.

Mauro's first claim alleges that Borgess discriminated against him in violation of section 504 of the Rehabilitation Act, which provides that no otherwise qualified individual with handicaps shall, solely by reason of his or her handicap, be excluded from participation in, or be denied benefits of any program receiving federal financial assistance. See 29 U.S.C. § 794.

Through the passage of the Rehabilitation Act, Congress intended to protect disabled individuals "from deprivations based on prejudice, stereotypes, or unfounded fear, while giving appropriate weight to such legitimate concerns ... as avoiding exposing others to significant health and safety risks." Arline, 480 U.S. at 287, 107 S.Ct. at 1131. Arline specifically noted:

Few aspects of a handicap give rise to the same level of public fear and misapprehension as contagiousness.... The Act is carefully structured to replace such reflexive reactions to actual or perceived handicaps with actions based on reasoned and medically sound judgments.... The fact that some persons who have contagious diseases may pose a serious health threat to others under certain circumstances does not justify excluding from the coverage of the Act all persons with actual or perceived contagious diseases. Such exclusion would mean that those accused of being contagious...

To continue reading

Request your trial
41 cases
  • Onishea v. Hopper, 96-6213
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • April 7, 1999
    ...transmission, and hospital itself described risk as "minimal but nevertheless ascertainable"); Estate of Mauro ex rel. Mauro v. Borgess Med. Ctr., 137 F.3d 398, 405, 407 (6th Cir.) (affirming summary judgment against HIV-positive surgical technician even though Centers for Disease Control c......
  • Hale v. Johnson, Case No. 1:15–cv–14
    • United States
    • United States District Courts. 6th Circuit. Eastern District of Tennessee
    • March 28, 2017
    ...the question of whether an employee poses a "direct threat" belongs to the ADA. See 42 U.S.C. § 12111(3) ; Estate of Mauro v. Borgess Med. Ctr ., 137 F.3d 398, 402 (6th Cir. 1998). This mistake is almost entirely inconsequential, however, as the Sixth Circuit has made clear that "[t]he ‘dir......
  • Bloomfield v. Whirlpool Corp., Case No. 3:12–cv–00870.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • February 7, 2014
    ...threat standard in considering the “otherwise qualified” prong of the plaintiff's prima facie case. See, e.g., Mauro v. Borgess Med. Ctr., 137 F.3d 398, 402–03 (6th Cir.1998) ( citing School Bd. of Nassau Cnty. v. Arline, 480 U.S. 273, 107 S.Ct. 1123, 94 L.Ed.2d 307 (1987)). In this case, h......
  • Malam v. Adducci
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • June 28, 2020
    ...( [T]he views of public health authorities, such as the ... CDC ... are of special weight and authority."); Estate of Mauro v. Borgess Med. Ctr. , 137 F.3d 398, 404 (6th Cir. 1998) (deferring to the "medical judgment expressed in the Report of the Centers for Disease Control in evaluating t......
  • Request a trial to view additional results
1 books & journal articles
  • Deposing & examining the plaintiff
    • United States
    • James Publishing Practical Law Books Deposing & Examining Employment Witnesses
    • March 31, 2022
    ...a ‘direct threat’ to the health or safety of others which cannot be eliminated by a reasonable accommodation.” Mauro v. Borgess Med. Ctr., 137 F.3d 398, 402 (6th Cir.1998); see also Holiday v. City of Chattanooga, 206 F.3d 637, 647 n. 4 (6th Cir.2000) (same); 42 U.S.C. §12113(b). A “direct ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT