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


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       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.