Waddell v. Valley Forge Dental Associates, No. 00-14896

• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)
• Writing for the Court: BIRCH
• Citation: 276 F.3d 1275
• Parties: (11th Cir. 2001) SPENCER WADDELL, Plaintiff-Appellant, v. VALLEY FORGE DENTAL ASSOCIATES, INC., Defendant-Appellee
• Docket Number: No. 00-14896
• Decision Date: 21 December 2001

Page 1275

276 F.3d 1275 (11th Cir. 2001) SPENCER WADDELL, Plaintiff-Appellant,
v.
VALLEY FORGE DENTAL ASSOCIATES, INC., Defendant-Appellee. No. 00-14896 UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT December 21, 2001

Page 1276

Copyrighted Material Omitted

Page 1277

Appeal from the United States District Court for the Northern District of Georgia

Before BIRCH, MARCUS and WOOD^*, Circuit Judges.

BIRCH, Circuit Judge:

Spencer Waddell appeals the district court's order granting summary judgment to the defendant, Valley Forge Dental Associates, Inc., on his discrimination claims

Page 1278

under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and the Rehabilitation Act, 29 U.S.C. § 701 et seq. This case requires us to decide whether the district court properly held that Waddell, an HIV-positive dental hygienist, was not otherwise qualified for his employment position because he posed a direct threat to his patients. We AFFIRM.

I. BACKGROUND

Waddell, a dental hygienist licensed by the State of Georgia, was employed by Dr. Eugene Witkin from early 1996 until October 1997. In February 1997, Valley Forge took over Witkin's practice. Under this agreement, Witkin and his employees became Valley Forge's employees.¹ Waddell's primary responsibility as a dental hygienist for both Witkin and Valley Forge was the performance of routine prophylaxis, or, in lay terms, the cleaning of teeth.

In September 1997, Dr. Sourignamath Bhat administered a test to Waddell to determine whether he carried the human immunodeficiency virus ("HIV"). Waddell's test results indicated that he was HIV-positive. Bhat telephoned Witkin to inform him of Waddell's test results, and Witkin in turn alerted Jill Whelchel, a dental hygienist and administrator at Valley Forge, to Waddell's status. Whelchel contacted Jean Welsko in Valley Forge's Human Resources Department and sought advice on how to handle the situation. On Welsko's suggestion, Witkin and Whelchel met with Waddell and put him on paid leave until the three of them could decide what action should be taken. During the next week, Witkin studied his stockpile of dental journals to glean information about the transmission of HIV in the dental context. The Centers for Disease Control and Prevention ("CDC") also was consulted concerning the risk of transmission. Witkin and Whelchel then met with Waddell again and told him that he could no longer treat patients because of his HIV-positive status. They offered Waddell a clerical job at the front desk at roughly half of the salary he had made as a dental hygienist. Waddell took another week off to consider the proposition, and when he ultimately refused to accept the offered job at the offered rate of pay, Valley Forge terminated his employment.

Waddell brought this suit against Valley Forge, seeking relief under the ADA, the Rehabilitation Act, and various Georgia statutory provisions. After conducting discovery, both Waddell and Valley Forge moved for summary judgment. The issues on the ADA claim were limited by the fact that Valley Forge admitted that its decision to remove Waddell from his position as a dental hygienist was based solely on his HIV-positive status. The bulk of the evidence presented in support of the summary judgment motions addressed the question of whether Waddell's HIV-positive status made him a direct threat to dental patients, which would preclude him from demonstrating that he was qualified to perform the duties of a dental hygienist. See 42 U.S.C. § 12113(b). The district court found that Waddell's job entailed "exposure-prone" procedures as that term has been defined by the CDC, and that the necessity of performing the procedures made Waddell a direct threat under the

Page 1279

standard we set forth in Onishea v. Hopper, 171 F.3d 1289, 1299 (11th Cir. 1999) (en banc). Consistent with this finding, the district court denied Waddell's motion for summary judgment and instead granted summary judgment in favor of Valley Forge.² Waddell appeals the district court's ruling on both summary judgment motions.

II. DISCUSSION

We review the district court's decision to grant summary judgment de novo, and in so doing we apply the same legal standards that were applicable in the trial court. See Hilburn v. Murata Elecs. N. Am., Inc., 181 F.3d 1220, 1225 (11th Cir. 1999). "Summary judgment is proper if the pleadings, depositions, and affidavits show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Pritchard v. Southern Co. Servs., 92 F.3d 1130, 1132 (11th Cir. 1996); see also Fed. R. Civ. P. 56(c). There is a genuine issue of material fact if the nonmoving party has produced evidence such that a reasonable factfinder could return a verdict in its favor. Patterson & Wilder Constr. Co. v. United States, 226 F.3d 1269, 1273 (11th Cir. 2000).

In order to establish a prima facie case of discrimination under the ADA, Waddell "must demonstrate that [he] (1) is disabled, (2) is a qualified individual, and (3) was subjected to unlawful discrimination because of [his] disability." Cash v. Smith, 231 F.3d 1301, 1305 (11th Cir. 2000); see also 42 U.S.C. § 12112(a).³ As they did in the district court, the parties on appeal focus their arguments on whether Waddell is a qualified individual under § 12112(a).⁴ Specifically, the parties debate whether the risk of Waddell transmitting

Page 1280

HIV to a patient in the course of treatment poses a direct threat to others in the workplace. See 42 U.S.C. § 12111(3). Waddell carries the burden of establishing that "he was not a direct threat or that reasonable accommodations were available." LaChance v. Duffy's Draft House, Inc., 146 F.3d 832, 836 (11th Cir. 1998). If he cannot meet this burden, he is not a qualified individual and therefore cannot establish a prima facie case of discrimination.

The term "direct threat" is defined as "a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation." 42 U.S.C. § 12111(3). Addressing this issue, the Supreme Court explained in School Board of Nassau County v. Arline that "[a] person who poses a significant risk of communicating an infectious disease to others in the workplace will not be otherwise qualified for his or her job if reasonable accommodation will not eliminate that risk." 480 U.S. 273, 287 n.16, 107 S. Ct. 1123, 1131 n.16 (1987). To determine whether an employee who carries an infectious disease poses a significant risk to others, the Supreme Court has stated that courts should consider several factors, which 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. at 288, 107 S. Ct. at 1131 (citation omitted). The Supreme Court also has indicated that an employer in the medical field, "[a]s a health care professional, . . . ha[s] the duty to assess the risk of infection based on the objective, scientific information available to him and others in his profession," Bragdon, 524 U.S. at 649, 118 S. Ct. at 2210, and that his employment decision concerning an infected employee must be "reasonable in light of the available medical evidence," irrespective of whether his decision was made in good faith, id. at 650, 118 S. Ct. at 2211. See also Lowe v. Alabama Power Co., 244 F.3d 1305, 1308 (11th Cir. 2001) (noting "that a good-faith belief that a significant risk of harm exists is insufficient if it is not grounded in medical or other objective, scientific evidence").

We have not had occasion to apply the significant risk analysis enunciated in Arline and Bragdon to a case involving an HIV-positive employee in the medical field, as is the situation here. In Onishea, however, even though the facts did not involve an employee in the medical field, the disability at issue was HIV infection, and in that case we elaborated on the meaning of "significant risk," holding that "when transmitting a disease inevitably entails

Page 1281

death, the evidence supports a finding of 'significant risk' if it shows both (1) that a certain event can occur and (2) that according to reliable medical opinion the event can transmit the disease." 171 F.3d at 1299. We noted that "when the adverse event is the contraction of a fatal disease, the risk of transmission can be significant even if the probability of transmission is low: death itself makes the risk 'significant.'" Id. at 1297. Moreover, we...