Severino v. North Fort Myers Fire Control District

935 F.2d 1179

• Court: Court of Appeals for the Eleventh Circuit
• Decided: July 12, 1991
• Docket: No. 90-3227
• Status: Published

Opinions

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. § 794 ¹; 42 U.S.C. § 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.

Facts

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. Sev-erino 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.

Procedural History

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. § 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.

Summary of the Trial Court’s Findings

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 Sev-erino 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 Regulations², 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.

Contentions

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 504³ 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.

Analysis

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 Sev-erino 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 clear that the employment decisions were, in part, a response to the AIDS diagnosis and Severino’s voluntary offer to resign because of his condition, we must consider whether there is liability under Section 504 for making the employment accommodations and effectuating a termination under all of the circumstances unique to these facts. The inquiry has to be on whether the [defendants have], in fact, discriminated on the basis of handicap.” Id. at 1383.

With respect to Section 504 of the Rehabilitation Act, Severino argues that the district court incorrectly applied the “intent to act” standard by relying on a “helpful motivation” defense to negate the intent element. The court reasoned that there was no purposeful discrimination. He argues that discriminatory conduct may also involve “benign neglect” by an employer through a lack of appropriate accommodation for the handicapped employee’s abilities or a failure to investigate the means for providing such accommodations. See Alexander v. Choate, 469 U.S. 287, 295, 105 S.Ct. 712, 717, 83 L.Ed.2d 661 (1985).

The assertion of error of an improper application of the discriminatory intent standard under Section 504 is not dispositive in this case. We conclude that following the accommodations made for Severino’s health status, the job termination based on his refusal to perform modified or regular work duties does not provide a basis to claim discrimination solely on the basis of being handicapped.⁴ Cf. Pushkin, 658 F.2d at 1385 (if individual is not otherwise qualified he cannot be said to have been rejected solely because of handicap). For scrutinizing claims under Section 504, first, the individual is required to show that he is otherwise qualified for the position; second, the individual must show that even though he is otherwise qualified, he was rejected for the position, or discriminated against, solely on the basis of his handicap. Id. This burden of proof was not met by Severino. Thus, the intent standard cannot be the basis of error.

The statute does not subject employers to liability for maintaining appropriate discipline in the workplace or making reasonable decisions to terminate unsatisfactory employees. Evenhanded treatment of employees in a covered program or activity does not require an institution to lower or effect substantial modifications of standards to accommodate a handicapped person. Cf. Southeastern Community College v. Davis, 442 U.S. 397, 410-12, 99 S.Ct. 2361, 2369-70, 60 L.Ed.2d 980 (1979) (no affirmative-action obligation on all recipients of federal funds). The termination of Severino was directly related to a dispute arising from his reassignment status and job conduct, following a reasonable accommodation to maintain his position as a firefighter. The termination was therefore for a legitimate reason, not based on unlawful discrimination. Thus, we affirm the judgment in favor of the defendants on the Section 504 claims, and the issue regarding damages under the Rehabilitation Act is rendered moot.

Finally, with respect to the equal protection and due process claims, 42 U.S.C. § 1983, and the Florida Constitution, the facts here do not support an alternative basis for finding liability. Relevant to these claims is the fact that Severino was treated differently only to the extent of providing him an alternative to his initial voluntary resignation due to his HIV status. The legal issues merit no further discussion, as the reasons given above for affirming the denial of the Section 504 claims are applicable to these claims as well.

Conclusion

The judgment in favor of the defendants is

AFFIRMED.

1 . The statute is entitled Nondiscrimination Under Federal Grants and Programs; promulgation of rules and regulations. It applies only to activities that are the recipient of federal funding. The defendants received federal funding in connection with acquiring excess fire fighting equipment.

2 . C.F.R. 41, Section 101-8.305(b) provides, in pertinent part: A recipient shall make all decisions concerning employment ... in a manner which ensures that discrimination on the basis of handicap does not occur and may not limit, segregate, or classify ... employees in any way that adversely affects their opportunities or status because of handicap.

3 . 29 U.S.C. § 794(a) provides, in pertinent part: No otherwise qualified individual with handicaps in the United States, as defined in section 706(8) of this title, shall, solely by reason of her or his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance ....

4 . The contagiousness of the disease brings AIDS within the definition of a handicap. 29 U.S.C. 706(8)(B); see School Board of Nassau County v. Arline, 480 U.S. 273, 107 S.Ct. 1123, 94 L.Ed.2d (1987). The Fire Chief and others regarded Severino as handicapped. As a victim of the disease of AIDS, he suffered an impairment of a major life activity or activities.