Severino v. North Fort Myers Fire Control Dist.
| Decision Date | 12 July 1991 |
| Docket Number | No. 90-3227,90-3227 |
| Citation | 935 F.2d 1179 |
| Parties | 56 Fair Empl.Prac.Cas. 798, 56 Empl. Prac. Dec. P 40,893, 60 USLW 2064, 1 A.D. Cases 1814 Paul SEVERINO, Plaintiff-Appellant, v. NORTH FORT MYERS FIRE CONTROL DISTRICT, Ray Alvarez, personally, Ray Alvarez, officially as member of North Fort Myers Fire Control Commission, Harry Deegan, personally, Harry Deegan, officially, Hewitt Willis, personally, Hewitt Willis, officially, Paul Lunger, personally, Paul Lunger, officially, Bud Wooten, personally, Bud Wooten, officially, Donald Brown, personally, Donald Brown, in his official capacity as Chief of the North Fort Myers Fire Control District, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Judith S. Kavanaugh, Trial Counsel, Kathleen D. Kirwin, Peeples, Earl and Blank, P.A., Sarasota, Fla., plaintiff-appellant.
Gerald W. Pierce, Henderson, Franklin, Starnes & Holt, Fort Myers, Fla., for defendants-appellees.
Appeal from the United States District Court for the Middle District of Florida.
Before KRAVITCH and BIRCH, Circuit Judges, and DYER, Senior Circuit Judge.
This is an appeal from an action seeking damages under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. Sec. 794 1; 42 U.S.C. Sec. 1983; and the Florida Constitution, filed by an AIDS infected firefighter against the defendants. We determine that the denial of relief by the district court was correct, where the factual record failed to establish discrimination solely on the basis of the employee's handicap. The record more than sufficiently supports the result reached by the district court. Under each statutory and constitutional claim, we affirm the judgment in favor of the defendants.
On November 27, 1987, Paul Severino was advised by a doctor at a blood bank that the blood he had donated tested HIV positive for AIDS. Based on the medical advice of Dr. Sanders that he should not perform rescue duties required by his job as a firefighter, Severino immediately tendered his resignation to Fire Chief Brown. The Chief arranged an alternative which provided him with insurance benefits and continued salary. Severino stayed on in the North Fort Myers Fire Control District and was assigned to "light duty" beginning on December 1, 1987. That work consisted of maintaining fire hydrants, dispatch duty, doing errands and going to the dump. Severino worked the "light duty," but complained about the work being demeaning. The working relationship between Chief Brown and Severino was worsening over this issue.
Severino began collecting medical and legal literature about AIDS. His new involvement in gathering information about AIDS and presenting it to the Fire District also led to his interest in a possible lawsuit. Severino said to a friend: "Before this case is over I am going to sue the hell out of somebody." Severino was also concerned that the AIDS infection could have occurred as a result of exposure to the disease connected to his work. He had begun working for the Fire District in June 1987; his disease was not contracted through this work, based on the period of incubation of the AIDS virus. He was put on 90-day medical leave with pay in March 1988. Acting Chief LaBelle temporarily took over Chief Brown's duties. On March 23, 1988, Severino presented a form to the Acting Chief that demanded that he be informed of his rights. He never returned to regular full-line duty. He did not present conclusive medical documentation of his ability to perform the rescue work as was requested, nor did he accept the offer to come back to work in any capacity. The District faced the situation where it would be paying a salary to Severino even though he did not accept the duties offered to him. Severino was terminated on May 24, 1988. The decision to take Severino off the payroll was made by LaBelle, after consulting with the Fire District's attorney. His health insurance coverage was paid by the District for 18 months beyond that time.
Severino filed this action seeking relief under Section 504 of the Rehabilitation Act of 1973, as amended. He also alleged violations under 42 U.S.C. Sec. 1983 for deprivation of due process and equal protection, and the Florida Constitution for deprivation of rights because of physical handicap. The 10-count complaint sought declaratory and injunctive relief, as well as an award of compensatory and punitive damages, attorneys' fees and costs. The named defendants were the North Fort Myers Fire Control District, members of the North Fort Myers Fire Control Commission, in their personal and official capacities, and Donald Brown, personally and in his official capacity as Chief of the North Fort Myers Fire Control District.
The issues were narrowed before trial by the district court's rulings on motions and by voluntary dismissals by plaintiff. The court granted summary judgment dismissing the state and federal claims of denial of due process. The claims before the district court at the bench trial were the Section 504 claims against the Fire District and the Commissioners in their official capacities, and the equal protection claims against Chief Brown.
The court made findings with respect to Severino's personality as it was relevant to his credibility. The district court took into account the assessments of witnesses and counsel, and its own observations that Severino was aggressive, distrustful and a "lawsuit promoting" person. The view accepted by the court was that Severino instigated and took the initiative in all of the events which followed the discovery of his HIV positive status, including tendering his resignation. Based on all of the testimony, the defendants' version of the Fire District's dilemma of not knowing what to do other than fire Severino when he refused to work after an instance of insubordination, was found to be convincing. The court found that there was no intentional discrimination as the Fire District had tried to work out the problem for Severino's benefit. The termination was not solely on the basis of his AIDS condition; he was fired for reasons other than his handicap. The court also found that there was no causal connection between the one departure from the Regulations 2, in assigning Severino to "light duty" based on his handicap, and any harm to him under the statute. Concluding that there was no violation of Section 504, nor any other basis for relief, the district court entered judgment in favor of the defendants.
The adverse employment decisions which Severino asserts violated his statutory and constitutional rights were the reassignment to light duty, involuntary medical leave, and termination. He contends that the district court's findings were clearly erroneous with respect to his conduct and the motivation of the Fire District in making the adverse employment decisions. He contends that the district court erred in applying an incorrect legal standard to interpret discriminatory intent under Section 504 3 and determining that he was not entitled to compensatory damages under that section. Further, he contends that the district court erred in applying an incorrect legal standard to his equal protection claims. The final assertion of error is the court's holding that HIV infection is not a physical handicap under Article I, Section 2, of the Florida Constitution.
We are bound by the trial court's factual findings unless they are clearly erroneous. Cabriolet Porsche Audi v. American Honda Motor Co., 773 F.2d 1193, 1201 (11th Cir.1985) (citing Anderson v. City of Bessemer, 470 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985)), cert. denied, 475 U.S. 1122, 106 S.Ct. 1641, 90 L.Ed.2d 186 (1986). The factual findings based on substantial, competent evidence that the Fire District was placed in the position of employing an AIDS-infected employee who could perform modified duties but who would not work satisfactorily under the conditions created by the District for his benefit, are not clearly erroneous. The modified duties were assigned as an accommodation to Severino whose health status enabled him to continue working with some restrictions to reduce the risk to his safety and the safety of others. The letter from Dr. Pollock presented to the Fire District in January 1988 advised that the rescue work, which was 90 per cent of the on-line firefighters' duties, could not be performed by Severino without a risk of transmission of the AIDS virus. The district court differed from the opinions of Drs. Sanders and Pollock in assessing the nature and likelihood and gravity of risk, and adopted the testimony of Dr. Schwartz and the common sense appraisal of the avoidance of risk at a rescue site. Even if the belief of posing a risk through rescue duties was erroneously held by the other two doctors, the defendants relied upon this reasonable medical opinion in assigning Severino to modified duties. Medical knowledge as it developed and was disseminated may have progressed ahead of the parties' awareness, but the perceived risk of transmission of AIDS at that time was a fact that was dealt with reasonably by the assignment of Severino to "light duty." The Chief's frustration of dealing with an employee who would not work as directed without causing a confrontational work environment entered the scenario following the original accommodation to help Severino. The hostile conduct of Severino towards the Chief supports the district court's conclusion that he was not terminated solely on the basis of his handicap. The reasons articulated for the employment termination do not encompass unjustified consideration of the handicap itself. See Pushkin v. Regents of University of Colorado, 658 F.2d 1372, 1387 (10th Cir.1981).
This is not a case of the employer being insensitive to the shock and distress of the victim dealing with a recent diagnosis of AIDS. While it is...
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