Mauro v. Borgess Medical Center

• Decision Date: 04 May 1995
• Docket Number: No. 4:94-CV-05.,4:94-CV-05.
• Citation: 886 F. Supp. 1349
• Parties: William C. MAURO, Plaintiff, v. BORGESS MEDICAL CENTER, a Michigan Not For Profit Corporation, Defendant.
• Court: U.S. District Court — Western District of Michigan

886 F. Supp. 1349

William C. MAURO, Plaintiff, v. BORGESS MEDICAL CENTER, a Michigan Not For Profit Corporation, Defendant.

No. 4:94-CV-05.

United States District Court, W.D. Michigan, Southern Division.

May 4, 1995.

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Edward J. Annen, Jr., Kalamazoo, MI, for plaintiff.

Craig H. Lubben, Miller, Johnson, Snell & Cummiskey, Kalamazoo, MI, for defendant.

OPINION OF THE COURT

McKEAGUE, District Judge.

Plaintiff William C. Mauro was employed by defendant Borgess Medical Center ("Borgess") from May 1990 through August 24, 1992 as an operating room surgical technician. In June 1992, Borgess officials became aware of reason to believe that plaintiff was infected with human immunodeficiency virus (HIV), the virus that causes AIDS (acquired immune deficiency syndrome). When plaintiff refused to submit to testing to determine whether he was HIV-positive, and refused to accept an alternative accommodating position at the hospital, he was laid-off.

In this action, plaintiff asserts four claims. In count I, he alleges defendant's treatment of him constitutes unlawful discrimination, in violation of the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. and the Rehabilitation Act, 29 U.S.C. § 701 et seq. Count II contains a similar claim for discrimination in violation of the Michigan Handicappers' Civil Rights Act, M.C.L. § 37.1101 et seq. In count III, plaintiff asks the Court to declare a portion of the Michigan Handicappers' Civil Rights Act unconstitutional as violative of equal protection. Count IV contains a state tort claim for intentional infliction of emotional distress.

Defendant has moved for summary judgment in its favor on all four claims. The motion requires the Court to look beyond the pleadings and evaluate the facts to determine whether there is a genuine issue of material fact that warrants a trial. See generally Barnhart v. Pickrel, Schaeffer & Ebeling Co., 12 F.3d 1382, 1388-89 (6th Cir.1993). An issue of fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). An issue of fact concerns "material" facts only if establishment thereof might affect the outcome of the lawsuit under governing substantive law. Id. A complete failure of proof concerning an essential element of plaintiff's case necessarily renders all other facts immaterial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). Production of a "mere scintilla of evidence" in support of an essential element will not forestall summary judgment. Anderson, supra, 477 U.S. at 251, 106 S.Ct. at 2511. The nonmovant must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Ind. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). The Court has discretion to grant the motion if a claim is, in the factual context, implausible. Id.; Barnhart, supra, 12 F.3d at 1389.

I

To prevail on his claim under the ADA and the Rehabilitation Act, plaintiff must show essentially (1) that he has a disability; (2) that he is otherwise qualified for the employment in question; and (3) that he was excluded from the employment solely because of the disability. Doe v. University of Maryland Medical System Corp., 50 F.3d 1261, 1265 (4th Cir.1995). For purposes of this motion, the parties agree, only the second element is at issue. Borgess maintains that plaintiff's HIV-positive condition disqualifies him from working as a surgical technician and he is not "otherwise qualified."

A person is "otherwise qualified" if he or she can perform the essential functions of the job in question. Bradley v. University of Texas M.D. Anderson Cancer Center, 3 F.3d 922, 924 (5th Cir.1993), cert. denied, ___ U.S. ___, 114 S.Ct. 1071, 127 L.Ed.2d 389 (1994). Under the ADA and the Rehabilitation Act, an individual is not otherwise qualified if he poses a direct threat to the health or safety of others that cannot be eliminated by reasonable accommodation. See 42 U.S.C. §§ 12111(3), 12113(a)-(b); 29 U.S.C. § 706(8)(D). "Direct threat" has been defined as a "significant risk." 42 U.S.C. § 12111(3); School Bd. of Nassau County, Fla. v. Arline, 480 U.S. 273, 287, 107 S.Ct. 1123, 1130-31, 94 L.Ed.2d 307 (1987); Doe v. University of Maryland, supra, 50 F.3d at 1265.

Among his duties as a surgical technician, plaintiff testified in deposition that he was occasionally required to place his hands upon and into the patient's surgical incision to provide room and visibility to the surgeon. He also testified that he was always exposed during surgery to the possibility of sustaining a needle stick or minor laceration and that, in fact, he had sustained two such injuries during his two years as a surgical technician.

It is undisputed that HIV is a blood-borne pathogen that can be transmitted person-to-person by contact of infected blood with an open wound of another. It is also undisputed that HIV causes AIDS, which is fatal, and for which there is no known cure. Under the present state of medical knowledge, a person once infected with HIV remains infected for the rest of his or her life.

To determine whether the above facts justify Borgess's conclusion that plaintiff's continued work as a surgical technician poses, by virtue of his HIV infection, a direct threat or significant risk to the health and safety of others, the following factors must be considered:

(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.

Arline, supra, 480 U.S. at 288, 107 S.Ct. at 1131; Doe v. University of Maryland, supra, 50 F.3d at 1264-66; Bradley, supra, 3 F.3d at 924. The parties agree that the first three factors indicate plaintiff represents a significant risk to others. Plaintiff contends, however, that the probability of transmission is so slight as to overwhelm the first three factors and create a question of fact for the jury to determine.

Plaintiff points to the testimony of Dr. David Davenport, M.D., one of plaintiff's treating physicians, to the effect that the risk of HIV transmission is so remote as to not justify, in his opinion, plaintiff's exclusion from the operating room. Another treating physician, Dr. Mark DeYoung, M.D., also testified that plaintiff should have been allowed to continue as a surgical technician.

Borgess contends this testimony fails to create a genuine issue of material fact for the following reasons. First, Dr. Davenport recognized that plaintiff's direct contact with a patient's body in surgery represented a risk, "a real risk," to the patient's care and safety. Second, Dr. DeYoung admitted that his opinion about plaintiff's fitness to work as a surgical technician might change if he were to learn that a surgical technician is required to occasionally place his hands on or into a surgical incision and is exposed to the risk of needle sticks and lacerations. Third, other courts have recently held, as a matter of law, on nearly identical facts, that an HIV-infected surgeon or surgical technologist is a "direct threat" and is not otherwise qualified. See Doe v. University of Maryland, supra; Bradley, supra.

The Court has carefully reviewed both of these decisions and finds them materially indistinguishable and properly reasoned. As both opinions observe, the fact that the probability of transmission is small is not dispositive. Probability of transmission is but one of four factors used to determine significance of the risk. Because there is a real possibility of transmission, however small, and because the consequence of transmission is invariably death, the threat to patient safety posed by plaintiff's presence in the operating room performing the functions of a surgical technician is direct and significant. In the words of the Bradley decision:

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."

3 F.3d at 924. Bradley's responsibilities were materially identical to plaintiff's duties in this case.

No less compelling are the words of Borgess's argument. Noting that patient care is its mission, Borgess contends "it is fundamentally inconsistent with that mission to expose a patient to a `direct risk' of acquiring a fatal disease when (1) there is no patient care reason for doing so, and (2) the risk can be eliminated." The Court agrees.

Accordingly, the Court concludes there is no genuine issue of material fact. Plaintiff's condition represents a direct threat or significant risk to the health or safety of others. The evidence that the probability of transmission is very small, though undisputed, does not create a genuine issue of fact; viewed in conjunction with the other three relevant considerations, it amounts to a mere scintilla of evidence that does not alter the facts that transmission is possible and invariably lethal.

Plaintiff contends, however, that the risk can be eliminated without removing him from the operating room. Plaintiff observes that direct manual contact with a patient's surgical incision is not an express requirement of the surgical technician job description. He concludes that the occasional "hands-on" contact that has been required of him is not an essential function, but a marginal function of the position. He argues that Borgess should be required to accommodate him by eliminating this marginal function of the surgical technician's duties.

This proposal is...