Spencer Waddell v. Valley Forge Dental Associates Inc. and John Dow 00-14896-A IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT No. 00-14896-A SPENCER WADDELL, Plaintiff-Appellant, v. VALLEY FORGE DENTAL ASSOCIATES, INC., and JOHN DOE, as successor-in-interest of VALLEY FORGE DENTAL ASSOCIATES, INC., Defendants-Appellees. On Appeal from the United States District Court for the Northern District of Georgia BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF-APPELLANT SPENCER WADDELL C. GREGORY STEWART PAULA R. BRUNER General Counsel Attorney PHILIP B. SKLOVER EQUAL EMPLOYMENT Associate General Counsel OPPORTUNITY COMMISSION 1801 L Street, N.W. Rm. 7044 CAROLYN L. WHEELER Washington, D.C. 20507 Associate General Counsel (202) 663-4731 CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT Pursuant to 11th Cir. R. 26.1-1, I hereby certify that, to the best of my knowlege, the following persons have an interest in the outcome of this case: Alan D. Berkowitz, trial counsel for appellee Paula R. Bruner, EEOC appellate attorney Dechert Price & Rhoades John Doe, successor in interest to appellee Equal Employment Opportunity Commission, amicus curiae Catherine Hassens, counsel for appellant Paul Arnold Howell, Jr., trial counsel for appellee Otto W. Immel, trial counsel for appellee Lambda Legal Defense and Education Fund, Inc. Pursley Howell Lowery & Meeks Chip Rowan & Associates Milton "Chip" Dale Rowan, co-counsel for appellant Stephen R. Scarborough, counsel for appellant Philip B. Sklover, EEOC Associate General Counsel Honorable Charles A. Pannell, Jr., trial judge C. Gregory Stewart, EEOC General Counsel Valley Forge Dental Associates, Inc., appellee Carolyn L. Wheeler, EEOC Assistant General Counsel Pursuant to Fed. R. App. P. 26.1, the Equal Employment Opportunity Commission, as a government agency, is not required to file a corporate disclosure statement. Paula R. Bruner CERTIFICATE OF TYPE SIZE AND STYLE Pursuant to 11th Cir. R. 28-2(d), I hereby certify that the type size and style used in this brief is 14 point Times Roman. Paula R. Bruner TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT C-1 CERTIFICATE OF TYPE SIZE AND STYLE C-2 TABLE OF AUTHORITIES iii STATEMENT OF INTEREST 1 STATEMENT OF THE ISSUE 1 STATEMENT OF THE CASE 2 1. Statement of the Facts 2 2. District Court Decision 15 STATEMENT OF THE STANDARD OF REVIEW 17 SUMMARY OF THE ARGUMENT 18 ARGUMENT: THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT FOR VALLEY FORGE IN THIS ADA CASE BECAUSE THE OBJECTIVE MEDICAL EVIDENCE OF EXPERTS AND PUBLIC HEALTH CARE OFFICIALS SUPPORTS RESOLUTION OF THE DIRECT THREAT ISSUE IN WADDELL'S FAVOR 19 A. Substantial Medical Evidence Established that Cleaning Teeth is not an Exposure-Prone Procedure 21 B. Valley Forge Was Not Entitled to Summary Judgment Even if Waddell's Work Involved Exposure Prone Procedures Because There Was No Evidence That He Posed a Significant Risk of Transmitting HIV to his Patients 23 CONCLUSION 29 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) 17, 18 Armstrong v. Martin Marietta Corp., 93 F.3d 1505 (11th Cir. 1996) 17 Bragdon v. Abbott, 524 U.S. 624 (1998) 1, 15, 20, 21, 23, 25, 26 Ferrara v. Mills, 781 F.2d 1508 (11th Cir. 1986) 17 LaChance v. Duffy's Drafthouse, Inc., 146 F.3d 832 (11th Cir. 1998) 20 Matsushita Elec. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) 18 Onishea v. Hopper, 171 F.3d 1289 (11th Cir. 1999), cert. denied sub nom. Davis v. Hopper, 120 S.Ct. 931 (2000) 17, 27 Riley v. Newton, 94 F.3d 632 (11th Cir. 1996) 17 School Bd. of Nassau County, Fla. v. Arline, 480 U.S. 273 (1987) 20, 21 Scoles v. Mercy Health Corp., 887 F. Supp. 765 (E.D. Pa. 1994) 29 STATUTES, REGULATIONS, AND SECONDARY AUTHORITY 42 U.S.C. §§ 12101 et seq. 1 42 U.S.C. § 12101(b)(1) 19 42 U.S.C. § 12111(8) 19 29 C.F.R. § 1630.2(m) 20 29 C.F.R. § 1630.2(r) 20, 23 29 C.F.R. Pt. 1630, App. § 1630.2(m) 19 29 C.F.R. Pt. 1630, App. § 1630.2(r) 23, 24 STATEMENT OF INTEREST The Equal Employment Opportunity Commission is charged by Congress with the interpretation, administration, and enforcement of Title I of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 et seq. This appeal raises important questions about the review to be conducted by a court when it is evaluating a direct threat claim involving a person with a contagious disease in the context of a summary judgment proceeding. These questions involve the proper application of controlling legal standards as set forth in Bragdon v. Abbott, 524 U.S. 624 (1998) and Eleventh Circuit law to determine whether an HIV-infected person poses a direct threat. The district court's conclusion that Spencer Waddell, a dental hygienist, poses a direct threat, which is based on a record replete with objective medical evidence and expert testimony that demonstrates the exact opposite, completely flouts the mandates of the ADA, Supreme Court law, and the traditional standards of summary judgment. Thus, the EEOC offers its views to the Court on these questions, all of which are critical to the Commission's mission of enforcing the ADA in the workplace. STATEMENT OF THE ISSUE Whether the district court erred in granting summary judgment for appellee by deciding that an HIV-infected dental hygienist posed a direct threat to his patients where medical evidence and expert testimony overwhelmingly established that he did not engage in exposure-prone procedures and that there was virtually no risk that he would transmit the disease to his patients since he utilized universal precautions and scrupulously adhered to infection control procedures. STATEMENT OF THE CASE 1. Statement of the Facts Spencer Waddell worked as a dental hygienist for Valley Forge Dental Associates ("Valley Forge") since 1993. R.35-3. As a dental hygienist, Waddell performed routine prophylaxis on or "cleaned" the teeth of his patients. R.19-2. This procedure involved "the removal of deposits and accretions from the teeth, and non-surgical removal of deposits and accretions beneath the gumline." R.19,Att. 1 (Waddell Aff.) at 2. In September 1997, Dr. Bhat performed an HIV test on Waddell that revealed he was infected with the virus. R.35-4. Dr. Bhat informed Dr. Witkin, Waddell's supervisor and Valley Forge's regional director, that Waddell had tested positive for HIV, and Dr. Witkin informed Valley Forge's administrator, Jill Whelchel, who told the Human Resources Department. On September 29, 1997, Waddell was placed on a temporary leave of absence. Dr. Witkin later informed Waddell that he would no longer be allowed to treat patients and offered him a non-clinical, clerical position at a lower salary, which Waddell declined. Considering his rejection of the alternate job a resignation,Valley Forge terminated Waddell's employment. Waddell then filed suit under the ADA and the Rehabilitation Act, as well as several state statutes. Id. Waddell moved for partial summary judgment on the issue of liability, and Valley Forge filed a motion for summary judgment on all claims. In support of their motions, the parties submitted documentary and testimonial evidence. a. Objective Medical Evidence in the Record To determine whether Waddell is a qualified individual, the court reviewed two reports by the CDC. R.35-9. These reports were the CDC's Recommendation for Preventing Transmission of Human Immunodeficiency Virus and Hepatitis B Virus to Patients during Exposure-Prone Invasive Procedures ("CDC I") and Recommendations for Prevention of HIV Transmission in Health Care Settings ("CDC II"). Id. In CDC I, the CDC stated at the outset that "[c]urrent data suggest[s] that the risk for such transmission from a health-care worker (HCW) to a patient during an invasive procedure<1> is small; a precise assessment of the risk is not yet available." CDC I at 1. Consequently, the CDC issued "recommendations" on the prevention of HIV transmission during invasive procedures that were considered "exposure-prone." Id. The recommendations were based on the following findings: (1) infected HCWs who adhere to universal precautions<2> and who do not perform invasive procedures pose no risk for transmitting HIV to patients, and (2) infected HCWs who adhere to universal precautions and who perform certain exposure-prone procedures pose a "proportionately lower" risk for transmitting HIV than for transmitting hepatitis B virus, which is considered small. Id. at 1, 3. The CDC noted, however, that "the relative infectivity of HIV probably varies among individuals and over time for a single individual." Id. at 3. Consequently, CDC concluded that infected HCWs who perform certain invasive, exposure-prone procedures should be subject to certain measures to minimize the risk of HIV transmission, including a restriction of their practice. Id. The CDC offered no precise list of exposure-prone procedures. Rather, it stated that the "[c]haracteristics of exposure-prone procedures include digital palpation of a needle tip in a body cavity or the simultaneous presence of the HCW's fingers and a needle or other sharp instrument or object in a poorly visualized or highly confined anatomic site." It explained that the "[p]erformance of exposure-prone procedures presents a recognized risk of percutaneous injury to the HCW, and -if such an injury occurs-the HCW's blood is likely to contact the patient's body cavity, subcutaneous tissues, and/or mucous membranes." Id. at 4. As a result, CDC recommended that HCWs infected with HIV "should not perform exposure-prone procedures unless they have sought counsel from an expert review panel and been advised under what circumstances, if any, they may continue to perform these procedures." Id. In CDC II, the CDC concluded that, since "transmission of HIV from infected health-care workers performing invasive procedures to the patients has not been reported and would be expected to occur only very rarely, if at all, . . .[t]he question of whether workers infected with HIV-especially those who perform invasive procedures-can adequately and safely be allowed to perform patient-care duties or whether their work assignments should be changed must be determined on an individual basis." Id. at 12. The CDC further counseled that "[t]hese decisions should be made by the health-care worker's personal physician(s) in conjunction with the medical directors and personnel health service staff of the employing institution or hospital." Id. b. The Experts Along with these CDC reports, the court received the affidavits of several experts in the health care profession. Dr. David Reznick Dr. David Reznik, a dentist, program director of the Oral Health Center of the Infectious Disease Program for the Grady Health System in Atlanta, Georgia, and Waddell's current supervisor, stated that Waddell, is a "superior" hygienist who "scrupulously adheres to standard infection control procedures and universal precautions to prevent the transmission of blood borne pathogens to patients." R.19, Att. 2( Reznik Aff.) at 1. He further averred that "the risk of transmission of HIV to patients by a dental hygienist who adheres to universal precautions is effectively nil" and therefore he had "full confidence" that Waddell could practice as a dental hygienist safely. Id. at 2. Dr. Joseph Wilber Dr. Joseph Wilber, a medical consultant in Internal Medicine and HIV/AIDS for the Northwest Georgia Public Health District, stated that, "[w]hile certain activities, such as unprotected sex, pose documented risks of HIV transmission, infection does not always occur as a result of these activities." R.19,Att. 3 (Wilber Aff.) at 2. He explained that the "likelihood of infection varies depending on a variety of factors including, in the case of blood-to-blood contact, the amount of blood present and the amount of virus in the infected person's bloodstream." Id. He also stated that it is "no longer true" that HIV infection leads "inevitably to AIDS and death." Id. According to Dr. Wilber, the "relatively recent availability of antiviral drugs, and continually increasing options for treatment using those drugs, have dramatically improved the health status of many HIV-infected individuals, blocking the onset of AIDS, and, in many cases, reducing the amount of virus in the bloodstream to undetectable levels." Id. Based on his experience with blood-borne pathogens in health care settings in the State of Georgia, Dr. Wilber stated that all reports of AIDS cases were investigated by the Communicable Disease Section ("CDS") he oversaw and that "[d]uring the period 1984-1994, approximately three percent of the 12,000 persons reported to have AIDS were HCWs, mostly doctors, dentists, and nurses." Id. at 3. He reported that his CDS staff's "routine, thorough investigations of the source of the HIV infections turned up no evidence that any Georgia HCW had infected a patient, despite the fact that hundreds of HCWs around the state had HIV." Id. Therefore, he concluded that "the risk of HIV transmission in health care settings is exceedingly low" and where "universal precautions are routinely employed," the "possibility of transmitting HIV is so remote as to be practically impossible." Id. Finally, as to the propriety of removing HIV-infected HCWs from employment, Dr. Wilber stated that "[i]t is the HCW's overall functional capacity, and practice history, as well as his or her knowledge of and diligence in following universal precautions, that determines whether the HCW is capable of practicing safely." Id. at 4. In his opinion, "[c]ategorical decisions, based on the nature of the HCW's duties or the procedures he or she performs, are inappropriate given the variable nature of the above factors and the complete ability of a competent, diligent HCW to practice without any threat of HIV transmission." Id. at 4-5. Hence, he concluded - based on his professional training and experience, his review of the positions of the parties in this case and the facts on which they are based, his conversations with Waddell, which suggested a professionally acceptable knowledge of, and experience with, infection control techniques, and his knowledge bearing on the degree of risk of HIV transmission from a dental hygienist to a patient - "there was no scientific or epidemiological basis for relieving Mr. Waddell from clinical duties." Id. at 5. Dr. John Molinari Dr. John Molinari, a consultant to the American Dental Association (AdeA) Council and CDC on infection control in dentistry and the prevention of HIV transmission in health care settings and an expert witness in Bragdon, stated that "[a]bsent a functional impairment such as dementia or compromised motor skills, dental hygienists who are infected with HIV present no significant risk - indeed essentially no risk - of HIV transmission to patients." He based this conclusion on the fact that "[a]ll responsible dental health care workers ("DHCWs") scrupulously observe infection control measures collectively known as 'universal precautions.'" R. 19, Att.4 (Molinari Aff.) at 2. Dr. Molinari also cautioned that "discussions of transmission risks in the dental setting should not obscure the distinction between dentists, who routinely perform what are essentially surgical procedures, and dental hygienists, whose primary duties involve the cleaning of teeth and routine associated care." Id. at 3-4. He noted that the distinction was particularly clear in Georgia where "professional licensure regulations do not permit hygienists to administer injections," thereby decreasing "the likelihood of a needle stick injury to the hygienist, who may only handle a needle at some distance from the patient, and eliminates the possibility that a patient would be affected in the unlikely event that such an injury occurred." Id. at 4. He further admonished that, while HIV transmission depends on factors other than the type of procedure performed, "procedures involving large amounts of blood or requiring invasive techniques are those which only dentists are qualified to perform." Id. Consequently, even though the risk of HIV transmission in a dental setting "is as close to zero as can be ascertained," that risk may "'overstate' the actual risks attending care by a hygienist with HIV." Id. Finally, in explaining why the risk of HIV transmission from a dental care worker to a patient is "approximate[ly] zero," he noted first that "[e]ven where infectious material is present and a portal to the bloodstream or mucous membrane is exposed, HIV transmission does not always occur." Id. at 5. He stated that a key factor bearing on the likelihood of transmission is "the quantity of blood or other infectious material involved" and noted that "HIV requires a relatively large amount of blood to accomplish infection;" hence, universal precautions often reduce or eliminate the "already small risk of HIV transmission in the dental setting." Id. He explained that, to infect a patient, a hygienist would have to "suffer an injury producing an adequate amount of blood, then expose the patient to that blood," and that this is unlikely since a dental hygienist cleaning teeth and manipulating gum tissue uses "instruments whose sharp ends or points are not simultaneously close to the fingers and inside the oral cavity" and because universal precautions reduce the likelihood of percutaneous injuries and the risk of blood-to-blood contact when such injuries occur. Id. at 5-7. In addition, he averred that one universal precaution - the wearing of gloves for all procedures - "diminishes the risk that an accident will produce enough blood outside of the barrier to accomplish infection." Id. at 7. Therefore, based on this data and other medical information set forth in the affidavit, Dr. Molinari concluded that "there was no scientific of epidemiological basis" for barring Waddell from treating his patients merely because of his HIV status. Id. at 8-10. Dr. Donald Marianos Dr. Donald Marianos, a former director of CDC's Division of Oral Health from 1992 to October 1997, a dental consultant to the CDC on issues related to HIV/AIDS and dentistry from 1989 to 1997, author of CDC's 1991 Guidelines on Management of HIV-positive HCWs, and contributor to the ADeA's policies on infection control and HIV in dentistry, R.19, Att.5 (Marianos Aff.) at 1-2, 10, agreed with the view that HIV-infected dental hygienists pose no danger to patients while cleaning teeth. He reasoned that, because "licensed dental hygienists in Georgia are not permitted to administer injections, . . . this restriction removes the possibility of a percutaneous, or skin-piercing injury by a needle to the hygienist during treatment [and] . . . minimizes the already remote possibility that an HIV positive hygienist could transmit HIV to a patient." Id. at 3. Regarding Waddell's suitability, Dr. Marianos observed that Waddell has continued to work as a dental hygienist without incident following his termination, and that he is knowledgeable about and scrupulously applies infection control techniques, "including the use of gloves and other barriers, proper disposal of sharp instruments, and disinfection of equipment." Id. at 3-4. Moreover, with respect to the cleaning procedures that Valley Forge contends raise a significant risk of hygienist-to-patient transmission of HIV, Dr. Marianos said that, while "dental hygienists routinely perform these procedures, and that they may involve the use of sharp instruments[, i]t does not follow . . . that performance of these procedures presents a significant risk of HIV transmission, especially where hygienists use gloves and other appropriate barriers and are well trained and otherwise competent." Id. at 5. He also noted that "in Georgia and elsewhere, dental hygienists' fingers and sharp instruments are rarely simultaneously in the oral cavity" because "the accepted technique for performing routine prophylaxis involves resting the hand outside the mouth, balancing or 'fulcruming' the hand so that the hygienist's instrument, but not his or her hand, can enter the oral cavity." Id. He added that the mouth is not considered "'poorly visualized' or confined by a hygienist accustomed to working intraorally." Id. He concluded that with "increased attention to universal precautions in the years since 1991, . . . and with . . . only one dental provider, not a hygienist, believed to have transmitted the virus to patients, one responsibly can say that hygienist-to-patient transmission of HIV is so unlikely that it remains non-detectable and theoretical at most." Id. at 6. As a result, in his opinion, "an HIV positive dental hygienist using infection control measures known as 'universal precautions,' who is otherwise competent, can safely treat patients" because "HIV is not easily transmissible" and "HIV transmission from HCWs to patients in any medical or dental setting is virtually unheard of." Id. at 6-7. Further, he opined that even if an HIV-infected dental hygienist suffered a percutaneous injury, "the probability of HIV transmission is small and involves several factors including the amount of infected blood present and the amount of virus in the blood," the exchange of which can be minimized with adherence to universal precautions, thereby eliminating the risk of infection. Id. at 8. Hence, he concluded that "because the use of universal precautions by competent dental hygienists renders their practice safe, there is no justification for limiting the practice of a dental hygienist solely because he or she is HIV positive." Id. at 10.<3> c. Other Testimony in the Record To rebut Waddell's experts, Valley Forge proffered, inter alia, the testimony of Dr. Eugene Witkin, a general practitioner in dentistry with no expertise in infection control or HIV/AIDS. See R.18, Witkin Dep. at 12; R. 19, Att. 7 (Witkin Dep.) at 15-22. He testified that he based his decision to terminate Waddell on information gleaned from a "stockpile of dental journals," court cases concerning the refusal to treat HIV-infected patients, and a CDC official's statement, made in response to a call by a Valley Forge employee about the risk of HIV transmission, that "[t]here was a risk involved and that even with the use of universal precautions, however limiting that may be, you cannot make that risk go away." R19,Att. 7at 29-31.<4> Dr. Witkin admitted, however, that he had no idea what information about Waddell his staffer provided the CDC official when she solicited his advice, id. at 31-32, and that at the time the CDC official did not indicate "how big a risk or how low a risk" was intended by the statement that there was a risk, id. at 31, but averred that the "ultimate decision was really based on the CDC statement that there is risk." Id. at 39. In addition, Valley Forge offered the testimony of Jill Whelchel, the regional administrator for Witkin Dentistry and a licensed dental hygienist. In relevant part, she testified that in the spring of 1997, she received a complaint from another hygienist that Waddell "was not properly cleaning and sterilizing his work area." R.18, Whelchel Dec. at 2. She stated that as a dental hygienist, Waddell "was required to manipulate various sharp pointed instruments within the mouths of thousands of patients, . . ., each year" and that given "such a confined and poorly visible area, it [was] not uncommon for a hygienist to 'stick' or cut himself during the course of rendering treatment . . . ." Id. She further averred that "[d]uring almost every procedure performed by [Waddell] and other dental hygienists, the hygienist is in direct physical contact with a patient's open wounds, nonintact skin and mucous membranes while simultaneously manipulating the sharp instruments." Id. at 3. Finally, she noted that during scaling and root planing, "unavoidable soft tissue removal and bleeding occurs." Id. 2. District Court Decision The district court assumed without deciding that Waddell had a disability and acknowledged that there was no dispute that he had suffered an adverse employment action since he was terminated because he was HIV positive. Hence, the court concluded that the only issue was whether Waddell was a qualified individual under the ADA. R.35-8. Reviewing the Supreme Court's decision in Bragdon v. Abbott, 524 U.S. 624, 649 (1998), the district court noted that it should "'defer to the reasonable medical judgment of public health officials'" if that judgment "assesses the level of risk." Id. at 9. Examining the medical evidence submitted by Waddell and Valley Forge, the district court found that two reports from the CDC and the affidavits of the health care professionals offered by Waddell represented "the views of objective health care officials. . . ." Id. The court identified the factors relevant to the analysis of the risk of transmitting infectious disease, and after reviewing the evidence in the record, concluded that the only factor in dispute is the probability that the disease will be transmitted if Waddell performs his work as a dental hygienist. Id. at 9-11. The court noted that the probability of transmission issue turned on the resolution of two sub-issues. It stated that first, there is a dispute as to whether Waddell performs exposure-prone procedures as a dental hygienist. Id. at 11. According to Waddell, cleaning teeth is not an exposure-prone procedure because "his hands are not simultaneously present in the mouth of a patient at the same time as sharp instruments," even though "he performs some procedures which entail the use of sharp instruments." Id. Taking into account Waddell's use of sharp instruments during certain procedures, the district court concluded that "the procedures performed by Mr. Waddell are exposure-prone because there is a risk that Mr. Waddell could suffer a percutaneous injury and his blood could contact any open wounds or exposed mucous membranes of the patient." Id. at 11-12. The court also noted that there is a dispute regarding the assessment of the risk of transmission, which naturally turned in part on whether the procedure is exposure-prone. R.35-12. The court concluded that there is a "significant" risk of transmission, albeit small, because CDC reports indicate that a risk of transmission exists when an infected health care worker is performing an exposure-prone procedure on a patient. Further, it relied on Eleventh Circuit precedent establishing that when "transmitting a disease inevitably entails death," a finding of "significant risk" can be made if a certain event can occur and reliable medical opinion indicates that the event can transmit the disease. Id. at 12-13 (citing Onishea v. Hopper, 171 F.3d 1289, 1297 (11th Cir. 1999), cert. denied sub nom. Davis v. Hopper, 120 S.Ct. 931 (2000)). Consequently, the district court granted summary judgment for Valley Forge and denied Waddell's motion for partial summary judgment. Waddell appeals. STATEMENT OF THE STANDARD OF REVIEW Review of a district court's decision granting summary judgment is de novo. Armstrong v. Martin Marietta Corp., 93 F.3d 1505, 1508 (11th Cir. 1996). In determining whether the moving party has met its burden, all inferences are to be drawn in favor of the nonmoving party, Riley v. Newton, 94 F.3d 632, 634 (11th Cir. 1996), and doubts are to be resolved against the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Ferrara v. Mills, 781 F.2d 1508, 1515 (11th Cir. 1986). If the movant makes a sufficient showing, then the nonmovant must come forward with specific facts showing that there is a genuine issue for trial. Matsushita Elec. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A dispute of fact "is 'genuine' ... if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson., 477 U.S. at 248. The Court is not to weigh conflicting evidence or make credibility determinations, id. at 255, but should enter summary judgment for the movant only if the nonmovant's evidence is insufficient to allow a reasonable jury to return a verdict in its favor. Id. at 249. SUMMARY OF THE ARGUMENT The district court's disposition of Spencer Waddell's ADA claim that he was a qualified individual with a disability who did not pose a direct threat to the safety of his patients raises two subsidiary issues for review: (1) whether cleaning teeth is an exposure-prone procedure; and (2) whether there is a significant risk that an HIV-infected dental hygienist can transmit the disease to his patients while cleaning their teeth. Proper application of the legal standards governing the direct threat defense and summary judgment to the evidence in the record reveals that a reasonable jury could have concluded that Waddell, a dental hygienist, would not have posed a direct threat to the safety of his dental patients even though he was HIV-positive. Specifically, the evidence overwhelmingly established that cleaning teeth is not an exposure-prone procedure, and therefore there was virtually no risk of HIV transmission to Waddell's dental patients. Thus, Waddell presented enough evidence to warrant entry of summary judgment in his favor. In addition, even if it were properly determined that Waddell engaged in exposure-prone procedures, the evidence overwhelmingly demonstrates that there was no significant risk that he would transmit HIV to his patients if he continued to clean their teeth. Accordingly, the district court should not have entered summary judgment in Valley Forge's favor. ARGUMENT THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT FOR VALLEY FORGE BECAUSE THE OBJECTIVE MEDICAL EVIDENCE OF EXPERTS AND PUBLIC HEALTH CARE OFFICIALS SUPPORTS RESOLUTION OF THE DIRECT THREAT ISSUE IN WADDELL'S FAVOR The Americans with Disabilities Act prohibits discrimination against a qualified individual with a disability. 42 U.S.C. § 12101(b)(1). A qualified individual with a disability is a person who, with or without some reasonable accommodation, is able to perform the essential functions of the job he holds or desires. 42 U.S.C. § 12111(8). The determination of whether a person is qualified is to be made at the time of the employment decision, and cannot be based on myths, fears, or stereotypes associated with the disability or on speculation that the person may become unable to perform in the future. 29 C.F.R. Pt. 1630, App. § 1630.2(m). In demonstrating that he is qualified, a person must show that he has the requisite skill, licenses, employment experience and educational background, and that he can perform the job with or without a reasonable accommodation. 29 C.F.R. § 1630.2(m). A disabled individual is not otherwise qualified, however, if he presents a direct threat to his own or others' safety. To establish that a disabled person is a "direct threat," it must be shown that the employee's disability presents "a significant risk of substantial harm . . . that cannot be eliminated or reduced by reasonable accommodation." 29 C.F.R. § 1630.2(r); See also Bragdon, 524 U.S. at 648(ADA); School Bd. of Nassau County, Fla. v. Arline, 480 U.S. 273, 287 n.16 (1987) (Rehabilitation Act). This Court has ruled that the plaintiff has the burden of proving he does not pose a direct threat. LaChance v. Duffy's Drafthouse, Inc., 146 F.3d 832, 836 (11th Cir. 1998). Direct threat determinations must be based on an individualized assessment of the person's present ability to safely perform the essential functions of the job, considering a reasonable medical judgment relying on the most current medical knowledge and/or best available objective evidence. 29 C.F.R. § 1630.2(r). In a case involving contagious disease, this inquiry must include (a) the nature of the risk, (b) the duration of the risk, (c) the severity of the risk, and (d) the probabilities the disease will be transmitted and will cause varying degrees of harm. Arline, 480 U.S. at 288; 29 C.F.R. §1630.2(r). In making these findings, a district court "normally should defer to the reasonable medical judgments of public health officials." Arline, 480 U.S. at 288. The Supreme Court has stated that the views of public health authorities such as the CDC, although not conclusive, carry "special weight and authority." Bragdon, 524 U.S. at 650. It further stated that "[s]cientific evidence and expert testimony must have a traceable, analytical basis in objective fact before it may be considered for summary judgment." Id. at 653. The Court clarified that if a health care professional "disagrees with the prevailing medical consensus," he or she may "refute it by citing a credible scientific basis for deviating from the accepted norm." Id. at 650. That scientific basis, however, must be based on positive data, and not the absence of contrary evidence. Id. at 653. In this case, it is undisputed that Waddell performed his job as a dental hygienist well and that he was terminated because of his HIV status. Thus, the only issue on appeal is whether Waddell advanced evidence sufficient to warrant summary judgment in his favor on whether the risk of transmission is significant. From the record it is clear that the district court erred in granting summary judgment for Valley Forge because the objective medical evidence and testimony of experts and other health care professionals mandated judgment for Waddell. A. Substantial Medical Evidence Established that Cleaning Teeth is not an Exposure-Prone Procedure To be exposure-prone, the CDC indicates in relevant part that there must be the "simultaneous presence of the HCW's fingers and a needle or other sharp instrument or object in a poorly visualized or highly confined anatomic site." CDC I at 4. Both Waddell and his experts testified that he does not have his hands in the mouth of a patient at the same time as a sharp instrument. See R.35-11, Molinari at 4; Marianos at 5. Waddell's experts also testified that the mouth is not a "poorly visualized or highly confined" area. Marianos at 5. This evidence is not undermined by contrary testimony proffered by Valley Forge that cleaning teeth is an exposure-prone procedure. Although Whelchel stated that Waddell was "required to manipulate various sharp pointed instruments within the mouths of thousands of patients," Whelchel at 2, that observation does not contradict Waddell's or the experts' testimony. Waddell has never denied that he uses sharp instruments in his patients' mouths; he has explained only that his hands and the sharp instruments are never in the mouth simultaneously. Thus, the district court's conclusion that Waddell performs exposure prone procedures merely because he "performs some procedures which entail the use of sharp instruments" and hence, "could suffer a percutaneous injury" that might permit blood-to-blood contact with a patient's open wounds or exposed mucous membranes, R.35-11-12, is simply not supported by the record, and the entry of summary judgment must be reversed. B. Valley Forge Was Not Entitled to Summary Judgment Even if Waddell's Work Involved Exposure Prone Procedures Because There Was No Evidence That He Posed a Significant Risk of Transmitting HIV to his Patients Even if teeth-cleaning is an exposure-prone procedure, summary judgment for Valley Forge was inappropriate because medical evidence in the record overwhelmingly demonstrates that there was no significant risk of HIV transmission if Waddell continued to clean the teeth of his dental patients. Recognizing that "few, if any activities in life are risk free," the Supreme Court stated that in making a risk assessment, "Arline and the ADA do not ask whether a risk exists, but whether it is significant." Bragdon, 524 US. At 649. It also stated that "[t]he existence, or nonexistence, of a significant risk must be determined from the standpoint of the person who refuses the treatment or accommodation, and the risk assessment must be based on medical or other objective evidence." Id.; 29 C.F.R. § 1630.2(r) ("[t]he assessment that there exists a high probability of substantial harm to the individual . . . must be strictly based on valid medical analyses and/or other objective evidence"); 29 C.F.R. Pt. 1630, App. § 1630.2(r) (the risk posed by the individual" should be based on "input from the individual with a disability, the experience of the individual with a disability in previous similar positions, and opinions of medical doctors, rehabilitation counselors, or physical therapists who have expertise in the disability involved and/or direct knowledge of the individual with the disability"). <5> Here, both CDC reports indicated that the risk of HIV transmission from an infected dental care worker to a patient was very low. Further, testimony from experts in public health care support this conclusion. Dr. Wilber, a former director of Epidemiology Section and of the Communicable Disease Branch for Georgia's Division of Public Health, testified that "the risk of HIV transmission in health care settings is exceedingly low" and "[w]here universal precautions are routinely employed, the possibility of transmitting HIV is so remote as to be practically impossible." Wilber at 4. Dr. Molinari, an infection control expert, stated "[a]bsent a functional impairment such as dementia or compromised motor skills, dental hygienists who are infected with HIV present no significant - indeed essentially no risk - of HIV transmission to patients" since "responsible dental health care workers . . . scrupulously observe infection control measures known collectively as 'universal precautions.'" Molinari at 2. The possibility that any risk of transmission by Waddell would be "nil" or "zero," is further bolstered by substantial evidence in the record, including the testimony of Dr. Witkin, who terminated Waddell, that Waddell "displayed above-average concern for and knowledge about infection control protocols and developments," Marianos at 4; Witkin at 37, and applied them accordingly. See, e.g., Reznick at 2; Witkin at 9. The only contrary evidence in the record on this point comes from Whelchel, who testified that, in the Spring of 1997, she received a report from another hygienist that Waddell "was not properly cleaning and sterilizing his work area." Whelchel at 2. While the relevancy of Whelchel's testimony is questionable given the absence of any assertion that the complaint against Waddell was found to be true, at best it only assists in creating a dispute as to whether Waddell adhered to universal precautions.<6> Next, expert testimony that HIV transmission requires contact with a substantial amount of blood from the infected person precludes any finding that there was a significant risk of HIV transmission from Waddell to his patients. See Molinari at 5-7; Marianos at 8. Indeed, substantial record evidence establishes that the use of universal precautions minimizes the possibility of any blood contact, Molinari at 7, and the possibility of transmission is not increased merely because the patient bleeds, as Whelchel suggested in her declaration. Whelchel at 3. Similarly, her observation that "it is not uncommon for a hygienist to 'stick' or cut himself during the course of rendering treatment," is equally unavailing because it is a generalization unsubstantiated by any objective data indicating that Waddell has in the past, and probably will in the future, stick or cut himself during a procedure. More importantly, the fact that a dental hygienist may stick himself does not necessarily lead to the conclusion that blood would be drawn or that it would be enough blood to transmit HIV. Indeed, even Dr. Witkin, a dentist, testified that he has "poked" himself while treating a patient and does not recall drawing blood, and that even when he did bleed, he is not sure it occurred "in the middle of treatment." Witkin at 45. Moreover, evidence indicating that there is no known case of HIV transmission from an infected dental hygienist to a patient bolsters the conclusion that a reasonable jury could have decided that Waddell did not present a significant risk of transmitting HIV to his patients if he were to continue to work as a dental hygienist. Wilber at 3; Marianos at 6. Thus, given the strength of the expert medical testimony supporting a finding that Waddell does not pose a significant risk to his patients, contrary testimony in the record is clearly insufficient to support summary judgment for Valley Forge on whether Waddell posed a direct threat to the health of his patients. Bragdon, 107 F.3d at 948 ("we believe it would be inconsistent with Arline were courts to credit lay testimony on matters of public health"). In the Commission's view, the district court disregarded the overwhelming medical and scientific evidence in the record because it erroneously believed that the outcome it reached was required by Onishea v. Hopper, 171 F.3d 1289 (11th Cir. 1999). In Onishea, this Court reviewed a challenge by several HIV-infected prison inmates who claimed that their exclusion from certain educational, religious, and recreational programs because of their HIV status violated the Rehabilitation Act and was unconstitutional. In deciding that a significant risk of HIV transmission existed for any prison program in which the HIV-positive inmates participated with the general uninfected prison population, this Court held that "when transmitting a disease inevitably entails 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. It then concluded that because "the district court found that violence, intravenous drug use, and sex may cause blood-to-blood contact and happen in prisons in the most unlikely and unexpected places and that it is impossible to know or watch much of what goes on" and that adequate expert testimony indicating that blood-to-blood contact arising from these activities is likely to transmit HIV, the district court properly concluded that the risk was significant and justified the continued segregation of the affected inmates. Id. The holding and rationale of Onishea are inapplicable to this case. The Onishea court's formulation that there is a significant risk if an event that can transmit the disease can occur is not satisfied by the evidence in this case. Substantial evidence in this record establishes that teeth cleaning will not cause sufficient contact between an infected hygienist's blood and the patient's blood to cause transmission of the virus if universal precautions are used because gloves and other cautionary barriers preclude blood contact and it is highly unlikely that enough infected blood would ever be present to transmit HIV. Further, the fact that the Onishea decision arose in a prison context where violence and other high risk activities increasing the likelihood of HIV transmission occurred and could not be controlled readily distinguishes it from this case. Here, there is overwhelming evidence that the possible occurrence of an event causing transmission can be minimized by the practice of universal precautions and that Waddell had an exemplary record of following those precautions. Accordingly, the Onishea direct threat analysis should be limited to the prison context and not be extended to settings in which the risk of transmission is virtually zero because of the effective use of universal precautions. Finally, Onishea's premise that transmitting HIV "inevitably entails death" is seemingly invalidated by current objective scientific and medical data on the effects of HIV and its curability, which does not appear to have been considered by the district court here but was available at the time of Waddell's termination. While the development of AIDS "will most likely cause death," Scoles v. Mercy Health Corp., 887 F. Supp. 765, 769 (E.D. Pa. 1994), current data indicates that antiviral drugs can control or reduce the amount of virus in the bloodstream to a level that precludes seroconversion to AIDS. See Wilber at 2. CONCLUSION Viewed in the light most favorable to Waddell, the medical evidence he submitted could enable a reasonable jury to find that he did not pose a significant risk of transmission. Thus, in the absence of any objective medical rebuttal evidence regarding whether Waddell can work as a dental hygienist despite his disability and its consequences without endangering the safety of others, the district court should have entered summary judgment for Waddell. This Court therefore should reverse the district court's grant of summary judgment for Valley Forge and remand for entry of summary judgment for Waddell or at least for trial. Respectfully submitted, C. GREGORY STEWART General Counsel PHILIP B. SKLOVER Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel PAULA R. BRUNER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Rm. 7044 Washington, D.C. 20507 (202) 663-4731 CERTIFICATE OF COMPLIANCE I certify that this brief complies with the type-volume limitation set forth in FRAP 32(a)(7)(B). This brief contains 6995 words. CERTIFICATE OF SERVICE This is to certify that on December 6, 2000, two copies of the foregoing brief and one copy of the record excerpts were mailed first class, postage prepaid, to the following counsel of record: Stephen Scarborough, Esq. Catherine Hassens Lambda Legal Defense and Education Fund, Inc. 1447 Peachtree Street, N.E., Suite 1004 Atlanta, Georgia 30309-3027 Otto W. Immel, Esq. Alan D. Berkowitz, Esq. Dechert Price & Rhoades 1717 Arch Street 4000 Bell Atlantic Tower Philadelphia, Pennsylvania 19103-2793 Paul Arnold Howell, Jr., Esq. Pursley, Howell, Lowery & Meeks, LLP 303 Peachtree Street, N.E. SunTrust Plaza, Suite 4540 Atlanta, Georgia 30308 PAULA R. BRUNER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W., 7th Floor Washington, D.C. 20507 (202) 663-4731 1 Invasive procedures include "'the manipulation, cutting or removal of any oral or perioral tissues, including tooth structure, during which bleeding occurs or the potential for bleeding exists.'" CDC I at 7. 2 Universal precautions include appropriate disinfection and sterilization of instruments and reusable equipment; use of gloves, masks, and protective barriers; care in use of and disposal of needles and other sharp instruments; inoculation with hepatitis B vaccine of HCWs who might be exposed to infected blood in an occupational setting or during their professional training. CDC I at 2. 3 According to Dr. Marianos, "[g]iven the extraordinary rarity of HIV transmission in medical and dental settings, the decision to look to individual HCWs' abilities and diligence in infection control, rather than restricting HIV positive HCWs on the basis of the type of procedures they perform, turns out to have been epidemiologically sound. Thus, even if dental hygienists' duties fit CDC's general definition of 'exposure-prone procedures' - which they do not -, there would be no warrant for further imposing practice restrictions on Mr. Waddell absent evidence of an actual functional impairment or skill deficit." Marianos at 12. 4 In a supplemental affidavit, Dr. Marianos challenged Dr. Witkin's assertion that someone from the CDC told his staffer that Waddell's HIV condition presented a risk that could not be eliminated. Noting that he had been the Director of CDC's Division of Oral Health until October 1997, Dr. Marianos stated that the "CDC has never advocated total removal of a functionally capable health care worker, using universal precautions, from clinical duties solely on account of his HIV status" and that "if asked in 1997," the CDC's position would have included references to its 1991 Recommendations, which "reject practice restrictions for health care workers solely on the basis of HIV infection." R. 25, Att. C. at 2. 5 Both the ADA and public health officials require that risk assessments be individualized. See 29 C.F.R. Pt. 1630, App. § 1630.2(r) ("[d]etermining whether an individual poses a significant risk of substantial harm to others must be made on a case by case basis"); CDC II at 12; Wilber at 4. 6 Neither Whelchel nor Dr. Witkin, who terminated Waddell, ever spoke to Waddell's physician, an infectious disease expert, or Waddell himself, to assess Waddell's ability to work safely. Witkin at 40. Thus, their disagreement with "prevailing medical consensus" on whether Waddell posed a significant risk of transmitting HIV to his patients should be disregarded since it was not based on objective medical data. Bragdon, 524 U.S. at 650.