Plaintiff relies on one part of the EEOC guidelines which suggests that a high probability of harm is necessary to constitute a "direct threat". The guidelines state "the risk can only be considered when it poses a significant risk, i.e., high probability, of substantial harm; a speculative or remote risk is insufficient." 29 C.F.R. § 1630 App. at 403 (1994). The same guidelines, however, direct the employer to consider the duration of the risk and the nature and severity of the potential harm in making decisions with regard to an individual with a physical disability. Id.
The guidelines state that a speculative or remote risk is insufficient to justify discrimination while a high probability is sufficient. This standard, emphasized by Plaintiff, is difficult to apply in the instant case, where both parties acknowledge that there are various estimates of the probability of surgeon-to-patient HIV transmission. Plaintiff quotes a range of roughly 1/40,000 to 1/400,000. (Pl. Br. p. 22). Defendant quotes 1/40,000 to 1/150,000. (Def. Reply Br. p. 38). At the very least, there is a great deal of uncertainty in the measure of the risk.
The other factors discussed in the guidelines are the duration and severity factors derived from Arline. The current knowledge about HIV with regard to these factors is more certain. With no known cure, the duration of the risk posed by Dr. Scoles to his patients in a surgical setting is permanent. The severity of the harm is a disease that, at present, is fatal in most cases. By indicating that employers should consider the Arline factors, the ADA guidelines recall the analysis of the Rehabilitation Act cases. It is understandable that the same analysis be applied under both acts, as the Rehabilitation Act and the ADA both protect the rights of the disabled in employment. Thus, the same reasoning that leads this court to concur with those that have held that a HIV-positive health care worker performing invasive procedures is not "otherwise qualified" under the Rehabilitation Act supports the conclusion that Dr. Scoles poses a "direct threat" to the health of his patients.
Plaintiff cautions the court against making a decision based on prejudices or stereotypes surrounding AIDS. That is not the case here. The court has reviewed the extensive documentary evidence submitted by both parties. The deposition testimony and medical literature reveal two facts about HIV. First, the knowledge of the probability of HIV transmission from surgeon to patient is very limited. Second, the disease, at present, is almost always fatal. In light of these facts, Defendants reasonably decided that Dr. Scoles's patients should not undergo an invasive procedure without knowledge of his HIV status. Based on an analysis of the risk prescribed by law, the court finds that Defendants did not violate the Rehabilitation Act or the Americans with Disabilities Act.
An appropriate Order follows.
AND NOW, on this 7th day of December, 1994, in consideration of the following: (1) Defendants' Motion for Partial Summary Judgment, (2) Plaintiff's Second Motion for Partial Summary Judgment, (3) Defendants' Combined Reply Brief in Support of their Motion for Partial Summary Judgment and Answering Brief in Opposition to Plaintiff's Second Motion for Summary Judgment, (4) Plaintiff's Reply Brief in Support of Plaintiff's Second Motion for Partial Summary Judgment, all supplemental submissions and for the reasons set forth in the foregoing Memorandum, it is hereby ORDERED that:
1. Plaintiff's Second Motion for Partial Summary Judgment is DENIED;
2. Defendants' Motion for Partial Summary Judgment is GRANTED;
3. Judgment is entered in favor of Defendant and against Plaintiff on Plaintiff's claims that Defendants violated Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 ("Rehabilitation Act") and Title I of the Americans with Disabilities Act, 42 U.S.C. § 12111. Plaintiff's claim that Defendants violated the Rehabilitation Act by removing Plaintiff's name from the panel of orthopedic consultants for Mercy Work Care and Mercy Careport are excluded from this paragraph. Plaintiff's claim arising from the removal of Plaintiff's name from the panel for Mercy Work Care and Mercy Careport remains to be decided at trial.
BY THE COURT:
JAMES McGIRR KELLY, J.