6th Circuit overturns $1 million verdict for inmate with AIDS

The 6th U.S. Circuit Court of Appeals ruled that neither Jefferson County, KY nor the Department of Corrections could be held liable for harm suffered by the late Pedro Sosa. Sosa, who had AIDS, claimed he was tortured, mistreated, and harassed by corrections officers at the Jefferson County Jail. Sosa suffered from AIDS-related diarrhea and cramps, but was placed in a cell with no toilet. He was ridiculed about his accent and his sexuality, and was physically attacked. A jury awarded Sosa $1,180,000--compensatory damages of $500,000 each from the county and the Department of Corrections, compensatory damages of $10,000 from each of the officers, and $50,000 punitive damages from each of the officers. The three-judge panel of the Court of Appeals reversed this jury verdict. The per curiam decision was based on a U.S. Supreme Court case that raised the bar for plaintiffs who seek damages arising from violations of their constitutional rights at the hands of public employees. The panel wrote that Sosa did not prove a link between the county's alleged knowledge of isolated derogatory remarks toward homosexuals and the county's hiring practices. The appeals panel did not overturn the remaining $180,000 in compensatory and punitive damages owed by the three corrections officers.     

Appeal argued

The 11th U.S. Circuit of Appeals heard oral arguments in a case involving an HIV-positive employee. The employee, Salvatore DeFalco, was fired by a nude-dancing club because they thought his HIV infection would drive away customers. A jury awarded DeFalco $360,000 in damages, primarily punitive damages. The club insisted that the firing was motivated by the employee's breach of company policy forbidding discussing personal matters at work and his work performance. The trial judge reduced the damages amount to $202,111.     

Hotel found liable in firing of HIV-positive bartender

A Federal jury in the court of U.S. Magistrate Judge Leslie G. Foschio of the Western District of New York found the Buffalo Hilton Hotel liable for more than $630,000 in damages to bartender Danny T. Greenway, who was fired because of his HIV infection. The Hilton Hotel unsuccessfully argued that Greenway was terminated because of unfavorable performance reviews. The plaintiffs claimed that the Hilton issued false citations for infractions of hotel rules and that these citations were only issued after hotel management determined that Greenway was HIV-positive. Testimony showed that all relevant decision-making personnel at the hotel were aware that Greenway was HIV-positive. The hotel failed to show that all but the personnel manager had a legitimate need to know about Greenway's HIV status. The jury awarded Greenway $1,439,000 in damages. Foschio lowered the amount to $637,388 in damages and $133,705 in attorneys' fees.     

Diner's claim of blood-tainted food is set for appeal

Maureen Davis filed suit contending she ate most of a biscuit and gravy from a Hardee's restaurant before realizing it was contaminated with human blood. Davis claims she suffered mental anguish over the possibility of contracting HIV; tests show she is not infected. The Alabama Department of Forensic Science determined the red substance in the biscuit was blood but could not identify the blood type or test it for HIV. The Shelby County Circuit Court jury returned the verdict against the restaurant's owner, Flagstar Enterprises, awarding Davis $100,000 in compensatory and $150,000 in punitive damages. In an appeal to the Alabama Supreme Court, Flagstar's attorney will argue that Davis did not present any substantial evidence of wrongdoing on the part of Hardee's and the judge erred in allowing the suit to go to trial.     

Hospital, doctor to pay $350,000 for denial of medical care

Memorial Hospital of Freemont, OH and a physician, Charles Hill, were ordered to pay $350,000 to the estate of Fred L. Charon because he was denied AIDS-related medical care. Charon was refused admission to the hospital in 1992 and had to be driven 42 miles to another hospital. A jury ordered the defendants to pay punitive and compensatory damages for violating the Federal Rehabilitation Act, which prohibits recipients of Federal funds from discriminating against people with disabilities. This case establishes precedents regarding punitive damages recoverable under the Rehabilitation Act, posthumous payment of damages, individual medical treatment, and the dismissal of a prospective juror based on his opinion of gay men. The hospital and Dr. Hill dropped plans to appeal the decision and have worked out a settlement with the executor of Charon's estate.     

Nurse awarded $35,000 in HIV exposure suit against surgeon

Nurse Katherine Kenny was awarded $35,000 in a suit against a surgeon who exposed her to HIV. Dr. Alfred Gervin did a pre-operative examination of an HIV-positive patient without gloves, in spite of Kenny's warning. In response, and allegedly to show her she had nothing to fear, he then wiped his hands on her arms. She testified that his hands were moist, he had examined the patient's anal area, and that she had a rash on her arms at the time. An expert witness said Kenny should have realized that there is no need for a doctor to wear gloves to touch a patient's skin. However, she was awarded $10,000 in compensatory damages and $25,000 in punitive damages. Her attorney hailed it as a victory for nurses who are abused by doctors in operating rooms.     

Jury awards former employee $1.28 million in ADA lawsuit

A U.S. District Court jury in New York awarded $1.28 million to Robert J. Disanto, who was dismissed from McGraw-Hill Inc., based on his HIV infection. The company contended that Disanto did not qualify for Americans with Disabilities Act (ADA) protection because his HIV infection and depression did not substantially limit his ability to work. The judge disagreed claiming that Disanto had impairments that substantially limited his work activity, but he could still fully perform the essential functions of his job if he had been given a reasonable accommodation. If the judge signs off on the jurors' decision, an ADA cap of $200,000 on punitive damages may reduce the award of $1.28 million.     

Employer held liable for firing worker whose partner had AIDS

In a groundbreaking ruling, a U.S. District Judge ordered an employer to pay damages under the Americans with Disabilities Act (ADA) for firing a worker because of his association with a partner who had AIDS. Mr. Terry Turner, owner of the French Hen Restaurant in Tulsa, OK, was ordered to pay former waiter Paul Saladin more than $6,000 in back pay, as well as legal and compensatory damages. Evidence presented to Judge Terry C. Kern showed that Turner knew that Saladin was gay and had a domestic relationship with Ed Gaudin. Turner was afraid that Saladin's association with a companion with AIDS would hinder business at the upscale restaurant. Judge Kern's ruling marks the first time an employer has been held liable under the provision of the ADA that prohibits discrimination against a qualified individual due to that person's association or relationship with a disabled individual. Turner was unable to prove that there was a legitimate, nondiscriminatory reason for removing Saladin from his position. Central to the judge's findings was a tape recording Saladin made at the meeting during which he was suspended. In the meeting, the manager explained that customers might be disturbed that Saladin's partner had AIDS. The association provision in the ADA is not limited to employment and can be applied to access to public accommodations.     

Employer violated ADA by ordering exam for HIV-positive food handler

A Federal judge in Kalamazoo, MI ordered Prevo's Family Markets to pay former produce clerk, Steven Sharp, $45,000 in punitive damages and $10,000 in compensatory damages. Prevo's Family Markets claimed that Sharp, who is HIV-positive, was a health risk because he used a knife to cut boxes and trim produce. Sharp refused to take a physical exam to determine if he posed a health threat. After Sharp was placed on involuntary leave with pay, he filed charges with the Michigan Department of Civil Rights. The judge ruled that as a produce clerk, Sharp posed no health threat to co-workers or customers, and that Prevo's Family Markets could not make continued employment hinge on a mandatory doctor visit. The judge ruled that the market violated the Americans with Disabilities Act (ADA) when it fired Sharp, and rejected the market's attempts to involve Sharp's sexual orientation into the case.     

Supreme Court declines appeal of surgical technician

The U.S. Supreme Court declined to hear a case of a man who lost his job as a surgical technician because he has HIV. William Mauro sued the Borgess Medical Center for removing him from his job, charging violations of the American with Disabilities Act and the Federal Rehabilitation Act. The hospital contended that Mauro's HIV infection posed a direct threat to patient safety, because his work required him to occasionally handle body tissues and suture patients. By declining to hear the case, the Supreme Court upheld the earlier ruling by the 6th U.S. Circuit Court of Appeals which sided with the hospital.     

Court lets plaintiffs pursue job bias claims while on disability

The U.S. Court of Appeals for the District of Columbia held that a person who files for disability benefits does not automatically forfeit the right to pursue an employment discrimination claim. This ruling allows a person who loses his or her job to seek disability suits and file suit under the Americans with Disabilities Act (ADA) or similar statutes. The rulings involved one worker with spina bifida and another who could not walk easily. The rulings contradict the 3rd Circuit Court's ruling last year in McNemar vs. The Disney Stores, Inc. involving an employee with AIDS. According to the appeals court, the ADA and the Social Security Act define disability differently. AIDS advocates and the Equal Employment Opportunity Commission (EEOC) are pleased with the ruling.     

Bill would close loophole for access to medical records

The California Legislature approved a bill banning the disclosure of HIV-related medical records in a workers' compensation claim, unless the injury involved exposure to the virus. The case began when an employee was injured on the job and disclosed his HIV status to the examining physician. The physician noted the infection in the medical record, which was later sent to the employer as evidence in a workers' compensation claim. California's Confidentiality of Medical Information Act does not protect a patient's privacy once the records are used in workers' compensation. The law would ban unauthorized disclosure, and make the patient eligible for compensatory and punitive damages and attorney's fees.     

Immigrant's HIV status may be a hardship barring deportation

A panel of the 9th U.S. Circuit Court of Appeals rejected an HIV-positive immigrant's request for asylum. Salvador Ali Maradiaga emigrated from Nicaragua in 1983. At that time he was a student who refused to participate in pro-Sandinista rallies and fled rather than serve in the military. He married a U.S. citizen and found permanent employment. When Maradiaga returned to Nicaragua to apply for a U.S. immigrant Visa, he tested positive for HIV antibodies; the Visa was denied. He felt he could not remain in Nicaragua due to his past association with Contra rebels. Upon return to the U.S., his wife asked for a separation. When Maradiaga sought asylum stating that his Jewish faith made him a target for persecution in Nicaragua, the Immigration and Naturalization Service began deportation hearings. In its ruling, the 9th Circuit Court found no reason to believe that Maradiaga would face persecution in Managua. The case has been remanded to the Board of Immigration Appeals to determine whether Maradiaga would be able to obtain appropriate medical attention if returned to Nicaragua.     

Supreme Court to tackle ADA/social security conflict

The Supreme Court is scheduled to hear arguments involving Leonard C. McNemar who claims that he lost his job because he has AIDS. Originally, the Third U.S. Circuit Court of Appeals ruled that he was barred from suing because he had accepted disability payments while waiting for the Equal Employment Opportunity Commission to issue a determination regarding his claim. The Circuit Court's ruling was not unanimous. Also, Federal courts have increasingly ruled that receipt of benefits is not an automatic bar to an ADA claim. The different definitions of disability by Social Security and by the ADA need clarification.     

Judgement in civil suit

A South Carolina judge ordered a man to pay $1 million in actual damages and $4 million in punitive damages to his ex-girlfriend for infecting her with HIV. The woman, who sued under the pseudonym "Jane Doe," received a directed settlement after her ex-boyfriend failed to respond to the suit. The plaintiff did not press criminal charges because she feared her identity would be disclosed.     

Bus driver sues

A bus driver, known as John Doe, sued his employer, alleging that he was fired when he voluntarily disclosed that he was HIV-positive and needed a rest from the long hours of driving. The driver sued for back wages, benefits, and compensatory and punitive damages under the New Jersey Law Against Discrimination. Academy Bus tours told the driver he could not return to work without a doctor's examination. Doe has an excellent driving record and was certified as physically fit to work as a bus driver 14 months prior to his termination.     

Fired waiter's death from AIDS doesn't end restaurant's liability

The Connecticut Supreme Court upheld a State Commission on Human Rights and Opportunities' ruling in the case of a waiter who lost his job because his employer speculated that he had AIDS. The waiter, E. Jason Blondeau, filed an employment discrimination complaint against a Farmington restaurant, Ann Howard's Apricots. The evidence demonstrated that the restaurant general manager, Kevin Quinn, discriminated against Blondeau based on his HIV status and refused to allow him to return to work following a medical leave. During leave, Blondeau learned that he was HIV-positive and sought treatment for an AIDS-defining condition. The Commission's hearing officer determined that Blondeau established a prima facie case of AIDS discrimination before he died in February 1993 and awarded his estate $15,910 in back pay and $15,000 for emotional distress. The restaurant's lawyers did not have an opportunity to cross-examine Blondeau and asked the court to render his testimony invalid. Upon appeal, the Supreme Court found that the Commission's hearing examiner did not abuse her discretion in admitting Blondeau's testimony as to the restaurant's liability.     

Despite violation of law, government immune from damages

The U.S. Supreme Court ruled that Congress does not waive the government's sovereign immunity against monetary damages for violations of the Rehabilitation Act. As a result, the Federal government does not have to pay damages to the estate of Dr. James Cullen, a physician for the Davies Medical Center. The FBI, suspecting that Cullen had AIDS, refused to send agents to him for physical examinations. The Supreme Court's ruling overturns that of the 9th U.S. Circuit Court of Appeals. In August 1988, the FBI learned that Cullen had AIDS. The FBI's San Francisco office stopped sending personnel to the Davies Medical Center, Cullen's employer. Cullen sued under the Rehabilitation Act and the litigation continued for 8 years. After Cullen died, his estate pursued to suit. In a related case, the Supreme Court discharged a student of the U.S. Merchant Marine Academy when he discovered he had diabetes. The student sued, alleging that his termination violated Section 504 of the Rehabilitation Act. The Supreme Court agreed that monetary damages could not be paid based on the Federal government's unequivocal sovereign immunity.     

4th Circuit: asymptomatic HIV is not a disability under ADA

The 4th U.S. Circuit Court of Appeals ruled that William Runnebaum, who is HIV-positive, cannot continue with his lawsuit alleging that NationsBank of Maryland fired him because of his HIV status. The court decided that Runnebaum did not make a case of discrimination against his employer because his work performance was substandard. Additionally, the court ruled that HIV infection in and of itself does not constitute a disability and therefore Runnebaum is not protected by the Americans with Disabilities Act (ADA). The court ruled that Runnebaum failed to prove that his asymptomatic HIV infection was an impairment or that it substantially limits a major life activity. When the ADA was enacted in 1990 it was presumed that anyone with HIV would be protected from discrimination and reports filed by both the House of Representatives and the Senate indicated that legislators felt that HIV infection constituted an impairment. This ruling made by the 4th Circuit seems to discount the legislation's intent. The court rejected Runnebaum's suggestion that the ability to procreate and engage in intimate sexual relations was a limitation of a major life activity. Dissenters argued that the opinion is not based on sound medical facts because HIV, even if it is asymptomatic, is an impairment. The dissent also contends that Mr. Runnebaum was not given fair and ample opportunity to prove that his HIV infection is disabling. The court was in sharp disagreement relative to Runnebaum's job performance. The court majority said that Runnebaum failed to meet sales goals and engaged in unprofessional behavior. The dissent countered that Runnebaum's sales record exceeded that of another employee who was not terminated.