Estate of Mauro ex rel. Mauro v. Borgess Medical Center

137 F.3d 398
CourtCourt of Appeals for the Sixth Circuit
DecidedFebruary 25, 1998
DocketNo. 95-1544
StatusPublished
Cited by17 cases

This text of 137 F.3d 398 (Estate of Mauro ex rel. Mauro v. Borgess Medical Center) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Estate of Mauro ex rel. Mauro v. Borgess Medical Center, 137 F.3d 398 (6th Cir. 1998).

Opinions

[400]*400OPINION

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 court2 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). Mauro3 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 Bor-gess 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 eart/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. ease 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 eart/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 élement 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 [401]*401expert 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,

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137 F.3d 398, Counsel Stack Legal Research, https://law.counselstack.com/opinion/estate-of-mauro-ex-rel-mauro-v-borgess-medical-center-ca6-1998.