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DOE v. DISTRICT OF COLUMBIA

July 1, 1992

JOHN DOE, Plaintiff
v.
DISTRICT OF COLUMBIA, et al., Defendants



The opinion of the court was delivered by: THOMAS F. HOGAN

 This case is one of the first of what the Court expects may become numerous cases alleging discrimination on the basis of HIV-positive status in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., and 42 U.S.C. § 1983. *fn1" The case, brought by an individual against the District of Columbia and the District of Columbia Fire Department (the Fire Department), *fn2" was tried before the Court during a one-day bench trial on June 8, 1992. The District presented no opening statement, no evidence, and no closing argument. For the reasons that follow, the Court shall grant judgment for the plaintiff.

 I. FINDINGS OF FACT

 A. The Parties

 Plaintiff John Doe (Doe) is an adult resident of Maryland whose true name and address have been withheld due to the sensitive and personal nature of the matters at issue. Doe is infected with the Human Immunodeficiency Virus (HIV), for which he first tested positive in 1986.

 Defendant District of Columbia (the District) is a municipality that is treated as a state for the purposes of the Rehabilitation Act of 1973, 29 U.S.C. § 706(14) and 42 U.S.C. § 1983.

 B. The Hiring Process

 The District hires persons to serve as firefighters within the Fire Department. To obtain a position as a firefighter, a person must pass a written and physical examination and a background investigation and must satisfy certain other prerequisites. As stipulated by the parties, the duties of a firefighter are:

 Searches, operates motor-driven pumps and hydrants, drives emergency vehicles, operates ladder trucks and aerial ladders, provides emergency (nonsurgical) medical treatment to victims, maintains equipment, handles hose lines, overhauls and moves debris, sets up and starts generators and floodlights, transports victims, opens or breaks windows etc. in order to provide ventilation, performs station duties and chores, rescues and extricates victims, extinguishes fires, transports supplies and equipment, inspects electrical and heating systems, and performs salvage operations.

 Exh. 32. *fn3"

 Physical examinations of applicants for firefighter positions and routine annual physical examinations of acting firefighters are conducted by the Board of Police and Fire Surgeons (the Board), an instrumentality of the District. Captain Terry Francisco, the Fire Department's medical officer, testified that a person who passes the physical examination administered by the Board is fully capable physically of performing the duties of a firefighter without risk to himself or others. *fn4" The Board's physical examination does not include an HIV test, nor does the Board inquire into the HIV status of examinees.

 According to Captain Francisco, applicants who receive written notice of selection from the District (known as a Letter of Appointment) have satisfied all of the requirements for employment as a firefighter. An applicant who is rejected for a position of firefighter for medical reasons is entitled to a written statement from the District and/or the Fire Department, notifying him of his rejection, giving the basis for the rejection, and providing notice of the right to appeal the rejection.

 C. Firefighting Gear and Equipment

 Every firefighter whose responsibilities include fighting fires is issued the following gear:

 1. A helmet. The helmet is a hard shell with a transparent face shield in the front offering protection against blood-borne pathogen transmission. When fighting a fire or rendering emergency assistance, such as extracting an injured person from a trapped position, this face shield is lowered, thus protecting the firefighter from debris and minimizing the risk of blood splattering between the firefighter and the person being assisted.

 2. A hood. The hood is placed on the head and covers the head and neck. It provides additional covering and an additional barrier should the firefighter have any open cuts or areas on the head or neck.

 4. The "bunker pants." The pants are made with the same material as the jacket. They have knee pads reinforced with leather to protect against scrapes and needlestick injuries in the event the firefighter must crawl. Like the bunker coat, the texture and thickness of the pants create an effective barrier against the flow of blood into or out of the pants.

 5. Gloves. The structural firefighter gloves are made of thick, fire-resistant material. Their thickness offers considerable protection against cuts or punctures. Standard practice is to throw them out if blood soils them, because they cannot be effectively cleaned.

 6. The "bunker boots." These boots are made of very thick rubber with steel-reinforced toes, providing additional protection from debris and against saturation with blood.

 7. Self-contained breathing apparatus. Resembling a scuba tank, this apparatus enables a firefighter to breath safely when entering a smoke-filled building.

 8. Emergency medical kit. The kit contains emergency equipment to be carried by a firefighter, such as gloves and a pocket mask for CPR (both of which should be carried in the bunker coat), dressing materials, a bag mask ventilation device for CPR, stethoscope, blood pressure cuff, and other emergency supplies. The pocket mask for CPR provides a barrier so that there is no mouth-to-mouth contact.

 D. The HIV Disease

 1. In General

 At trial, Doe presented and the Court accepted Dr. David Parenti as an expert witness in infectious disease and HIV. Dr. Parenti is an Associate Professor of Medicine in the Division of Infectious Disease at the George Washington University Medical Center in Washington, D.C. He is board certified in the specialty of infectious disease. He has taught, lectured, and written extensively on infectious disease, specifically HIV-related matters. Since 1984, Dr. Parenti has been a member of the Infection Control Committee of the George Washington University Medical Center, where he participates in devising and implementing institutional guidelines to minimize the risk of infection within the institution. He participated as the infectious disease specialist on an ad hoc committee charged with drafting the Medical Center's policy regarding HIV-infected health care workers. Dr. Parenti also is actively involved in the treatment of patients with HIV-related conditions, and estimates that he has treated approximately 500-600 patients for HIV-related conditions. See Exh. 30.

 According to the uncontradicted testimony of Dr. Parenti, HIV is a retrovirus that destroys T-4 lymphocytes, a type of white blood cell, and causes a suppression of the normal immune system. Infection by HIV produces a wide spectrum of consequences. Those diseases that result from the most severe immunosuppression frequently are referred to as Acquired Immune Deficiency Syndrome (AIDS).

 In the medical community, it is common to distinguish between HIV-positive persons who are "asymptomatic for HIV disease" and HIV-positive persons who are "symptomatic for HIV disease." An asymptomatic person who is infected with HIV will sometimes manifest certain conditions that are evidence of the infection, such as a lymphadenopathy (a disease of the lymph nodes), a diminution of the T-4 cell count, or flu-like symptoms. A symptomatic person who is infected with HIV will manifest other conditions that are actual symptoms of the disease. These symptoms include fever, sweats, sudden weight loss, chronic diarrhea, dementia, persistent oral candidiasis, and opportunistic infections such as Kaposi's Sarcoma or pneumocystis carinii pneumonia.

 Although it cannot be predicted with precision how long a particular HIV-positive person will remain asymptomatic, Dr. Parenti testified that approximately half of those for whom the date of infection can be identified will exhibit symptoms within 10 years. Dr. Parenti underscored the difficulty of predicting the progression of HIV and noted that there is great variability among infected persons. Ultimately, however, the HIV virus undergoes a multiplication and becomes what is commonly referred to as AIDS. There is no cure for this disease, which is fatal.

 According to Dr. Parenti, asymptomatic HIV-positivity does not affect a person's physical capabilities. For example, it does not impair a person's strength, agility, or ability to breath. Dr. Parenti specifically testified that an asymptomatic HIV-infected person should be able to perform all of the functions of a firefighter as stipulated to by the District. Based on this uncontroverted testimony, the Court finds that the ability to perform the functions of a firefighter is unaffected by asymptomatic HIV-positivity.

 2. The Risk of Harm to Self

 According to Dr. Parenti, the common conception that HIV-infected persons are more likely than others to catch colds, flus, and other infections is inaccurate. Instead, most of the infections to which an asymptomatic HIV-positive person is susceptible are reactivations of prior infections (viral, fungal or parasitic), to which the person has been exposed or which the person actually had at one time. Re-activation is triggered by diminution in the function of the immune system. According to the uncontroverted testimony of Dr. Parenti, which the Court accepts, the risk of re-activating a prior infection is not enhanced by performing the duties of a firefighter. Nor does fatigue or smoke inhalation accelerate the progression of the disease toward the symptomatic stage.

 3. Modes and Risks of Transmission

 There are only three recognized modes of transmitting the HIV virus: intimate sexual contact, puncture by contaminated intravenous needles, and receiving contaminated blood products. HIV is not casually transmitted and is not a "hardy" virus. There are no reported cases of transmission of HIV through shared toothbrushes or other common household items, or through casual contact such as touching or kissing.

 The difficulty of transmitting HIV is reflected by the low percentage of health care workers, ranging between 0.3 percent and 0.5 percent, who become infected as a result of being stuck with a needle contaminated with HIV-positive blood. According to Dr. Parenti, it takes a fair volume of blood-to-blood contact in order to transmit the disease. Dr. Parenti is unaware of any cases of transmission by or to any health care worker during the performance of firefighting duties or while rendering emergency medical care. According to Dr. Parenti, there is "no measurable risk" that the disease will be transmitted through the performance of the firefighting duties stipulated to by the defendant. Not even the performance of mouth-to-mouth resuscitation without the use of a barrier will pose any risk of transmission of HIV. In fact, according to Dr. Parenti, the risk of transmitting the disease through the performance of firefighting functions "is like getting struck by a meteor while walking down Constitution Avenue" in Washington, D.C.

 Dr. Parenti's conclusions are buttressed by the testimony of Katherine West, who testified at trial as an expert in infection control. Ms. West is a nurse certified in the specialty of infection control by the Association for Practitioners in Infection Control. "Infection control" is the discipline of applying the body of medical knowledge of infectious disease to preventing its spread. In the late 1970s, Ms. West pioneered the application of the discipline of infection control to fire departments and emergency medical services. To complement her medical background as a nurse, she has obtained first-hand knowledge of the operation of fire and emergency medical units by, among other things, participating in numerous "ride-alongs," where she joins units in the course of their work to observe personally the actual conditions they encounter. Through her writing, teaching, and lecturing about infection control, and in particular about HIV-related issues, Ms. West plays a prominent role in the network of professionals engaged in this discipline. She is an Assistant Professor of Emergency Medicine at George Washington University School of Medicine and Health Sciences in Washington, D.C. and has consulted frequently with the National Fire Academy, the International Association of Fire Chiefs, and individual fire departments and emergency medical units throughout the nation on matters pertaining to infection control. Indeed, the District of Columbia Fire Department has consulted Ms. West regarding its policies and practices of infection control. See Exh. 31.

 Ms. West testified extensively about the firefighting equipment and protective gear that is required to be provided to firefighters and emergency medical personnel by the Occupational Health and Safety Administration *fn5" and the National Fire Protection Association. *fn6" Using this equipment and protective gear eliminates the risk of blood-to-blood contact in the performance of firefighting functions. Ms. West characterized the risk of blood-to-blood contact during the performance of firefighting duties as "remote" and of transmission of HIV as "extremely small." She also noted that although it is "extremely rare" for a firefighter to have mouth-to-mouth contact with a rescue victim, such contact presents "no measurable risk" of transmission of HIV. Ms. West acknowledged that firefighters occasionally fail to wear their full uniform, particularly in hot weather. Nevertheless, she testified that the risk of blood-to-blood contact and the transmission of HIV is no greater when not wearing the full uniform. According to Ms. West, there are no reported cases of transmission of HIV to or from a firefighter during the course of his duties.

 In addition to opining that HIV-positive firefighters do not pose a risk to themselves or others, Ms. West testified that her research has revealed several fire departments throughout the United States that employ HIV-positive firefighters in active-duty status. None of those departments employs or requires any special precautions to be undertaken by these HIV-positive personnel. The personal protective equipment routinely issued to all firefighters and the routine universal precautions required of all firefighters are sufficient to protect against harm to the firefighter or others.

 Based on the uncontroverted testimony of Dr. Parenti and Ms. West, the Court finds that an HIV-infected person poses no measurable risk of transmitting the disease ...


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