United States Court of Appeals,
Fifth Circuit.
No. 93-2227
Summary Calendar.
Brian Douglas BRADLEY, Plaintiff-Appellant,
v.
UNIVERSITY OF TEXAS M.D. ANDERSON CANCER CENTER,
Georgia Thomas, M.D., in her Individual and Official Capacity, and JAMES COX, M.D., in his
Individual and Official Capacity, Defendants-Appellees.
Oct. 7, 1993.
Appeal from the United States District Court for the Southern District of Texas.
Before KING, HIGGINBOTHAM, and BARKSDALE, Circuit Judges.
PER CURIAM:
In a July 20, 1991 Houston Chronicle article Brian Bradley revealed that he was HIV-positive
and that he worked for the University of Texas M.D. Anderson Cancer Center as a surgical assistant.
Soon thereafter the hospital reassigned him as a procurement assistant in the purchasing department.
He then sued the hospital and two supervisors claiming, his reassignment violated section 504 of the
Rehabilitation Act of 1973, 29 U.S.C. § 794 and constituted retaliation in violation of the First
Amendment for speaking to the Chronicle. The district court granted summary judgment on those
claims and dismissed Bradley's pendent state law claims. We affirm.
We address the Rehabilitation Act claim first. Bradley has the burden of establishing a prima
facie case. One element of that case is showing that he is "otherwise qualified" to participate in the
activity at issue. Brennan v. Stewart, 834 F.2d 1248, 1260 (5th Cir.1988). Assuming without
deciding that seropositivity to HIV antibodies is an impairment within the meaning of the Act, the
issue in this case is whether Bradley is otherwise qualified to continue in his employment as a surgical
technician.
An "otherwise qualified" person can perform the essential functions of the job in question.
School Board of Nassau County v. Arline, 480 U.S. 273, 288-89 & nn. 16-19, 94 L.Ed.2d 307, 107
S.Ct. 1123, 1131 & nn. 16-19 (1987). In the context of the employment of a person handicapped
with a contagious disease the inquiry should 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. 480 U.S. at 288, 107 S.Ct. at 1131. The court should give deference to the reasonable medical
judgments of public health officers. If an employee cannot perform the essential functions of the job
the court should consider whether any "reasonable accommodation" by the employer would let the
handicapped person perform those functions. Id.
The parties do not dispute the first three factors. The nature of the risk is not at issue, as all
parties recognize that blood entering a patient's body can transmit HIV. The duration of the infection
is perpetual. And the virus inevitably leads to the fatal disease AIDS.
The disputed issue is the probability of transmitting the virus. The nature of Bradley's work
as a surgical technologist creates some risk. He works in the sterile field within which surgery is
performed, often co ming within inches of open wounds and placing his hand in the body cavity
roughly once a day. His duties include handing the handles of instruments to surgeons while he holds
the sharp end, and he admits that accidents occur despite care. Bradley reports suffering five needle
puncture wounds while on the job.
This risk, while present, is not large. The Centers for Disease Control (CDC) state that "the
risk of transmitting HBV [Hepatitis B Virus] from an infected HCW [Health Care Worker] to a
patient is small, and the risk of transmitting HIV is likely to be even smaller." CDC also notes that
the risk of exposure "is greater for certain procedures designated as exposure-prone" such as "the
simultaneous presence of the HCW's fingers and a needle or other sharp instrument or object in a ...
highly confined anatomic site." Centers for Disease Control, Recommendations for Preventing
Transmission of Human Immunodeficiency Virus and Hepatitis B Virus to Patients During
Exposure-Prone Invasive Procedures, in Morbidity and Mortality Weekly Report, July 17, 1991.
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." See Doe v. Washington
Univ., 780 F.Supp. 628, 632-34 (E.D.Mo.1991) (HIV-positive dental student not otherwise qualified
to perform invasive procedures because the risks defy the axiom to at least do no harm). See also
Estate of William Behringer v. Medical Center, 249 N.J.Super. 597, 592 A.2d 1251, 1276-77 (Law
Div.1991) (no violation of state statute proscribing discrimination against the handicapped because
HIV-positive surgeon posed a "reasonable probability of substantial harm" to others).
The Eleventh Circuit's opinion in Harris v. Thigpen, 941 F.2d 1495 (1991) does not control
here. In Harris the trial judge found that HIV-infected prisoners were not "otherwise qualified" to
engage in a wide range of prison activities. The Eleventh Circuit remanded for program-by-program
findings of fact. In this case we know the specific duties of the job involved.
The hospital cannot make "reasonable accommodation" to eliminate the risks connected with
the "essential functions" of this job. See Arline, 480 U.S. at 288 n. 16, 107 S.Ct. at 1131 n. 16. For
the hospital to have accommodated Bradley, it would have had to eliminate the essential function of
being in the operative field. The CDC's conclusions about the risks assume that doctors and
technicians exercise care during surgery but inevitably experience accidents. Moving Bradley away
from the operation would require using another assistant to substitute in for the functions Bradley
could not perform, requiring even more redefinition of essential roles. Such redefinition exceeds
reasonable accommodation. See Southeastern Community College v. Davis, 442 U.S. 397, 407-08,
99 S.Ct. 2361, 2367-68, 60 L.Ed.2d 980 (1979).
Bradley contends that he should have been reassigned to a job involving patient contact. This
contention fails. As reasonable accommodation cannot be made for the job he had, his employer has
no duty to reassign Bradley to any particular job, although it could not deny him alternative
employment opportunities reasonably available under the employer's existing policies. Arline, 480
U.S. at 289, 107 S.Ct. at 1131 n. 19; Carter v. Tisch, 822 F.2d 465, 467 (4th Cir.1987). Bradley
does not allege that he sought any other specific position in the hospital after his reassignment and
does not demonstrate the availability of other positions.
With this analysis as backgro und, we turn to the First Amendment claim. To establish a
prima facie case of retaliation for exercising free speech, a plaintiff employee must prove that his
statements touch a matter of public concern, and that the speech was a motivating factor in the
employer's adverse employment action. Rankin v. McPherson, 483 U.S. 378, 385-86, 107 S.Ct.
2891, 2897, 97 L.Ed.2d 315 (1987). If an employer would have reached the same decisions without
regard to the constitutionally protected incident, then the incident was not a motivating factor in
defendant's decision. Mt. Healthy City School Dist. Board of Educ. v. Doyle, 429 U.S. 274, 285-87,
97 S.Ct. 568, 575-76, 50 L.Ed.2d 471 (1977). An employee should not be placed in a better position
as a result of exercising constitutionally protected speech. Id. at 287, 97 S.Ct. at 576.
We find that Bradley has not shown that his speech was a motivating factor. His
HIV-positive status gave the hospital grounds to reassign him. The fact that he informed the hospital
of his status in a newspaper article does not change the hospital's rights in this situation. See id. We
find no merit in Bradley's claim that he was singled out because the hospital had an inadequate
detection system.
AFFIRMED.