using the procedures followed by plaintiff, is not significant. However, the information about the risks and plaintiff's procedures were not disclosed to defendants at the time, and were not explained until the trial in this action.
19. Contemporary medical judgment is that a doctor who is infected with AIDS should inform his patients of the infection, and physicians who are asked whether they have AIDS should answer the question directly and truthfully.
20. Contemporary medical judgment is that hospitals should verify that their physicians are complying with the contagious disease guidelines of the Center for Disease Control. These guidelines include periodic monitoring and spot checking of the physicians. The CDC recommendations provide that AIDS infected health care workers should have their work assignments and patient care duties reviewed by a panel of physicians.
Plaintiff was uncertain of the application of CDC guidelines. He gave conflicting testimony on whether there was any supervision or monitoring by the facility to determine if physicians are in compliance with the CDC guidelines. During his deposition he testified that there was no supervision or monitoring by either the facility or the hospital. He described the practice at both the facility and the hospital as one of "self monitoring" by each physician. Plaintiff also testified that the facility is supervised by the hospital through unspecified infection control policies. He was not conversant with the infection control procedures that the hospital uses to supervise the facility. He also testified that the hospital may have verification procedures in place, but he was not conversant with those procedures.
21. In taking the actions described above, defendants did not act solely because of plaintiff's illness. Rather, defendants acted because plaintiff, the facility and the hospital did not answer the FBI's concerns about whether plaintiff had Kaposi's Sarcoma and about the risks and prevention, but provided only conclusory statements. As a result of the minimal information provided by plaintiff, the facility and the hospital, defendants were also unable to determine whether plaintiff was "otherwise qualified" to perform physical examinations for FBI agents and applicants.
Conclusions of Law
1. Section 504 of the Act prohibits defendants from discriminating against an otherwise qualified handicapped person solely because of the individual's handicap.
2. Title VII standards of proof apply to cases under the Act. See Smith v. Barton, 914 F.2d 1330, 1339-1340 (9th Cir. 1990), cert. denied, 115 L. Ed. 2d 995, 111 S. Ct. 2825 (1991).
3. The Ninth Circuit has determined that plaintiff was handicapped within the meaning of the Act. Doe v. Attorney General, 941 F.2d 780, 797 (9th Cir. 1991).
4. A Section 504 plaintiff must show that he was discriminated against "solely by reason of" his handicap. See Norcross v. Sneed, 755 F.2d 113, 117 n.5 (8th Cir. 1985); Harris v. Adams, 873 F.2d 929, 933 (6th Cir. 1989); Leckelt v. Board of Comm'rs of Hosp. Dist. No. 1, 909 F.2d 820, 825 (5th Cir. 1990). This issue was not previously determined by this court or the Ninth Circuit.
5. A Section 504 plaintiff must also show that notwithstanding his handicap, he is "otherwise qualified" for the position in question. Title 29 U.S.C. § 794; See School Bd. of Nassau County, Fla v. Arline, 480 U.S. 273, 287, 94 L. Ed. 2d 307, 107 S. Ct. 1123 n.17 (1987). The issue of whether plaintiff was "otherwise qualified" was not previously resolved by this court or by the Ninth Circuit. "In the employment context, an otherwise qualified person is one who can perform 'the essential functions' of the job in question." (quoting 45 C.F.R. § 84.3(k)). Apart from plaintiff's disease, plaintiff was able to perform the essential functions of his job, and defendants were satisfied with his performance up to August 1988.
6. If an individual's disability is a contagious disease, he is not "otherwise qualified" if he poses a significant risk of communicating the disease to others in the workplace. An employer can consider the risks posed by a physician's contagious disease in determining whether he is "otherwise qualified" to perform physical examinations. The Act permits an employer to make inquiry about an individual's disability if the information sought is relevant to his ability to do the job or to the safety of patients or coworkers. See Carter v. Casa Cent., 849 F.2d 1048, 1056 (7th Cir. 1988). School Board of Nassau County v. Arline, 480 U.S. 273, 287, 94 L. Ed. 2d 307, 107 S. Ct. 1123, n.16 (1987). This determination requires an individualized inquiry. Chalk v. United States Dist. Court Cent. Dist. of California, 840 F.2d 701, 705 (9th Cir. 1988).
7. The individualized inquiry requires findings based on reasonable medical judgment, given the present state of medical knowledge, about four factors:
(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.
Arline, 480 U.S. at 288. Chalk, 840 F.2d at 705. The risk of transmission of a disease in a routine physical examination, using the procedures followed by plaintiff, is not significant. However, the information about the risks and plaintiff's procedures were not disclosed to defendants at the time, and were not explained until the trial in this action.
8. If a plaintiff doctor will not allow the inquiry necessary to determine whether his disease poses a significant risk to patients, he is not "otherwise qualified" for employment. Leckelt v. Board of Comm'rs of Hosp. Dist. No. 1, 909 F.2d at 827-830.
9. The Act does not require that defendants dispense with all reasonable precautions or requirements in order to ensure the participation of a handicapped person. Dr. Doe v. New York Univ., 666 F.2d 761, 775 (2d Cir. 1981). Section 504 simply requires even-handed treatment of the handicapped person who otherwise meets the employment standards "so that he or she will not be discriminated against solely because of the handicap." Id.
10. Section 504 requires defendants to make reasonable accommodations to an "otherwise qualified" handicapped employee. An agency can only accommodate an individual based on "what is known about the individual's handicapping condition." Langon v. United States Dept. of Health and Human Services, 749 F. Supp. 1, 6 (D.D.C. 1990). When a plaintiff refuses to provide information regarding his communicable disease, he prevents defendants from knowing if he has a communicable disease and from deciding what, if any, reasonable measures could protect the patients from the transmission of disease. "In other words, [the physician] prevented [the referring agency] from knowing whether he had a handicap for which federal law arguably required reasonable accommodations." Leckelt, 909 F.2d at 830.
11. Defendants' decision to use other health care providers was not based solely on plaintiff's handicap. It was at least in part based on plaintiff's refusal to provide information. His conclusory statements did not inform defendants as to whether plaintiff had a handicapping condition, and they prohibited defendants from determining whether plaintiff was "otherwise qualified" or what reasonable accommodations could be made.
12. Accordingly, the court concludes that judgment should be entered in favor of defendants.
13. Any findings of fact that are in effect conclusions of law should be considered as such. Any conclusions of law that are findings of fact should be deemed findings of fact.
December 28, 1992.
CHARLES A. LEGGE
UNITED STATES DISTRICT JUDGE