United States Court of Appeals,

Fifth Circuit.

No. 93-2227

Summary Calendar.

Brian Douglas BRADLEY, Plaintiff-Appellant,

v.

UNIVERSITY OF TEXAS M.D. ANDERSON CANCER CENTER,

Georgia Thomas, M.D., in her Individual and Official Capacity, and JAMES COX, M.D., in his

Individual and Official Capacity, Defendants-Appellees.

Oct. 7, 1993.

Appeal from the United States District Court for the Southern District of Texas.

Before KING, HIGGINBOTHAM, and BARKSDALE, Circuit Judges.

PER CURIAM:

In a July 20, 1991 Houston Chronicle article Brian Bradley revealed that he was HIV-positive

and that he worked for the University of Texas M.D. Anderson Cancer Center as a surgical assistant.

Soon thereafter the hospital reassigned him as a procurement assistant in the purchasing department.

He then sued the hospital and two supervisors claiming, his reassignment violated section 504 of the

Rehabilitation Act of 1973, 29 U.S.C. § 794 and constit ut ed retaliation in violation of the First

Amendment for speaking to the Chronicle. The district court granted summary judgment on those

claims and dismissed Bradley's pendent state law claims. We affirm.

We address the Rehabilitation Act claim first. Bradley has the burden of establishing a prima

facie case. One element of that case is showing that he is "otherwise qualified" to participate in the

activity at issue. B rennan v. Stewart, 834 F.2d 1248, 1260 (5th Cir.1988). Assuming witho ut

deciding that seropositivity to HIV antibodi e s is an impairment within the meaning of the Act, the

issue in this case is whether Bradley is otherwise qualified to continue in his employment as a surgical

technician.

An "otherwise qualified" person can perform the essential functions of the job in question.

School Board of Nassau County v. Arline, 480 U.S. 273, 288-89 & nn. 16-19, 94 L.Ed.2d 307, 107S.Ct. 1123, 1131 & nn. 16-19 (1987). In the context of the employment of a person handicapped

with a contagious disease the inquiry should include:

[findings of] facts, based on reasonable medical judgments given the st at e o f medical

knowledge, about (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.

Id. 480 U.S. at 288, 107 S.Ct. at 1131. The court should give deference to the reasonable medical

judgments of public health officers. If an employee cannot perform the essential functions of the job

the court should consider whether any "reasonable accommodation" by the employer would let the

handicapped person perform those functions. Id.

The parties do not dispute the first three factors. The nature of the risk is not at issue, as all

parties recognize that blood entering a patient's body can transmit HIV. The duration of the infection

is perpetual. And the virus inevitably leads to the fatal disease AIDS.

The disputed issue is the probability of transmitting the virus. The nature of Bradley's work

as a surgical technologist creates s o me risk. He works in the sterile field within which surgery is

performed, o ft en co ming within inches of open wounds and placing his hand in the body cavity

roughly once a day. His duties include handing the handles of instruments to surgeons while he holds

the sharp end, and he admits that accidents occur despite care. Bradley reports suffering five needle

puncture wounds while on the job.

This risk, while present, is not large. The Centers for Disease Control (CDC) state that "the

r isk of transmitting HBV [Hepatitis B Virus] from an infected HCW [Health Care Worker] to a

patient is small, and the risk of transmitting HIV is likely to be even smaller." CDC also notes that

the risk of exposure "is greater for certain procedures designated as exposure-prone" such as "the

simultaneous presence of the HCW's fingers and a needle or other sharp instrument or object in a

...

highly confined anatomic site." Centers for Disease Control, R ecommendations for Pr eventing

Transmission of Human Immunodeficiency Virus and Hepatitis B Virus to Patients During

Exposure-Prone Invasive Procedures, in Morbidity and Mortality Weekly Report, July 17, 1991.

While the risk is small, it is not so low as to nul lify t he catastrophic consequences of anaccident. A cognizable risk of permanent duration with lethal consequences suffices to make a

surgical technician with Bradley's responsibilities not "otherwise qualified." S ee Doe v. Washington

Univ., 780 F.Supp. 628, 632-34 (E.D.Mo.1991) (HIV-positive dental student not otherwise qualified

to perform invasive procedures because the risks defy the axiom to at least do no harm). See also

Estate of William Behringer v. Medical Center, 249 N.J.Super. 597, 592 A.2d 1251, 1276-77 (Law

Div.1991) (no violation of state statute proscribing discrimination against the handicapped because

HIV-positive surgeon posed a "reasonable probability of substantial harm" to others).

The Eleventh Circuit's opinion in Harris v. Thigpen, 941 F.2d 1495 (1991) does not control

here. In Harris the trial judge found that HIV-infected prisoners were not "otherwise qualified" to

engage in a wide range of prison activities. The Eleventh Circuit remanded for program-by-program

findings of fact. In this case we know the specific duties of the job involved.

The hospital cannot make "reasonable accommodation" to eliminat e the risks connected with

the "essential functions" of this job. S ee Arline, 480 U.S. at 288 n. 16, 107 S.Ct. at 1131 n. 16. For

the hospital to have accommodated Bradley, it would have had to eliminat e the essential function of

being in the o perative field. The CDC's conclusions about the risks assume that doctors and

technicians exercise care during surgery but inevitably experience accidents. Moving Bradley away

from the operati on would require using another assistant to substitute in for the functions Bradley

could not perform, requiring even more redefinition of essential roles. Such redefinit ion exceeds

reasonable accommodation. S ee Southeastern Community College v. Davis, 442 U.S. 397, 407-08,

99 S.Ct. 2361, 2367-68, 60 L.Ed.2d 980 (1979).

Bradley contends that he should have been reassigned to a job invo lving patient contact. This

contention fails. As reasonable accommodation cannot be made for the job he had, his employer has

no duty to reassign Bradley to any particular jo b, although it could not deny him alternative

employment opportunities reasonably available under the employer's existing policies. Arline, 480

U.S. at 289, 107 S.Ct. at 1131 n. 19; Carter v. Tisch, 822 F.2d 465, 467 (4th Cir.1987). Bradley

does not allege that he sought any other specific position in the hospital after his reassignment and

does not demonstrate the availability of other positions.With this analysis as backgro und, we turn to the First Amendment claim. To establish a

prima facie case of retaliation for exercising free speech, a plaintiff employee must prove that his

statements touch a matter of public concern, and that the speech was a motiv ating factor i n the

employer's adverse employm ent action. R ankin v. McPherson, 483 U.S. 378, 385-86, 107 S.Ct.

2891, 2897, 97 L.Ed.2d 315 (1987). If an employer would have reached the same decisions without

regard to the constitutionally protected incide nt , then the incident was not a motivating factor in

defendant's decision. M t. Healthy City School Dist. Board of Educ. v. Doyle, 429 U.S. 274, 285-87,

97 S.Ct. 568, 575-76, 50 L.Ed.2d 471 (1977). An employee should not be placed in a better position

as a result of exercising constitutionally protected speech. Id. at 287, 97 S.Ct. at 576.

We find that Bradley has not shown that his speech was a motivating factor. His

HIV-positive status gave the hospital grounds to reassign him. The fact that he informed the hospital

of his status in a newspaper article does not change the hospital's rights in this situation. S ee id. We

find no merit in Bradley's clai m t hat he was singled out because the hospital had an inadequate

detection system.

AFFIRMED.