Estate of Mauro ex rel. Mauro v. Borgess Medical Center

— 400 — OPINION JOHN R. GIBSON, Circuit Judge. William C. Mauro brought an action against his former employer, Borgess Medical Center, alleging violations of the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213 (1994), and the Rehabilitation Act, 29 U.S.C. §§ 701-796 (1994).1 The district court2 granted Borgess’s motion for summary judgment, determining that Mauro, who was infected with human immunodeficiency virus, or HIV, the virus that causes AIDS, was a direct threat to' the health and safety of others that could not be eliminated by reasonable accommodation and thus, concluded that Borgess took no illegal action in removing Mauro from his position as surgical technician. See Mauro v. Borgess Med. Ctr., 886 F.Supp. 1349 (W.D.Mich.1995). Mauro3 appeals, arguing that as a surgical technician at Borgess he did not pose a direct threat to the health and safety of others and that therefore the district court erred in granting summary judgment to Borgess. We affirm. Borgess employed .Mauro from May 1990 through August 24, 1992 as an operating room technician. In June of 1992, an undisclosed source telephoned Robert Lambert, Vice President of Human Resources for Bor-gess Medical Center and Borgess Health Alliance, and informed Lambert that Mauro had “full blown” AIDS. Because of Borgess’s concern that Mauro might expose a patient to HIV, Georgiann Ellis, Vice President , of Surgical, Orthopedic and Clinical Services at Borgess, and Sharon Hickman, Mauro’s supervisor and Operating Room Department Director, created a new full-time position of case eart/instrument coordinator, a position that eliminated all risks of transmission of the HIV virus. In July of 1992, Borgess officials offered Mauro this position, which he refused. After Mauro’s refusal of the. ease cart/instrument coordinator position, Borgess created a- task force to determine whether. an HIV-positive employee could safely perform the job responsibilities of a surgical technician. Lambert and Ellis informed Mauro by a letter dated August 10, 1992, that the task force had determined that a job requiring an HIV-infected worker to place his or her hands into a patient’s body cavity in the presence of sharp instrumentation represented a direct threat to patient care and safety. Because the task force had concluded that an essential function of a surgical technician was to enter a patient’s wound during surgery, the task force concluded that Mauro could no longer serve as a surgical technician. Lambert and Ellis concluded by offering Mauro two choices: to accept the case eart/instrument coordinator position, or be laid off. Mauro did not respond by the deadline stated in the letter, and Borgess laid him off effective August 24, 1992. Mauro filed this suit in January 1994. Borgess moved for summary judgment arguing that it was entitled to remove Mauro from his position since his HIV-positive condition posed a direct threat to the health and safety of others under the four-factor test outlined in School Board v. Arline, 480 U.S. 273, 287-88, 107 S.Ct. 1123, 1130-31, 94 L.Ed.2d 307 (1987). Arline’s factors include the nature, duration, and severity of the risk, and the probability that the disease will be transmitted. Id. The district court considered the relevant medical and scientific evidence, as well as. the other affidavits and depositions before it. Observing that the parties had agreed that the first three factors of the Arline test indicated that Mauro posed a significant threat to others, the court focused on the probability that the disease would be transmitted, the fourth élement of the Arline test. Mauro, 886 F.Supp. at 1352-53. Mauro argued that the probability of transmitting his HIV virus was so small that the risk was not cognizable and introduced — 401 — expert testimony to support his argument. The court referred to Mauro’s deposition and recognized that Mauro was “occasionally required to place his hands upon and into the patient’s surgical incision to provide room and visibility to the surgeon.” Id. at 1352. The court then determined that Mauro’s experts had admitted that it would present a direct risk if a surgical technician was required to place his or her hands into a surgical incision and was exposed to the risk of needle sticks and lacerations. Id. at 1353. In addition, the court emphasized that Mauro had testified that he was always exposed, during surgery, to the possibility of sustaining a needle stick or minor laceration. In fact, Mauro had sustained two such injuries during his employment as a surgical technician. Next, the court held that Doe v. University of Maryland Medical System Corp., 50 F.3d 1261 (4th Cir.1995), and Bradley v. University of Texas M.D. Anderson Cancer Center, 3 F.3d 922 (5th Cir.1993) (per curiam), cert. denied, 510 U.S. 1119, 114 S.Ct. 1071, 127 L.Ed.2d 389 (1994), two decisions involving HIV-positive health care workers that held that the workers posed a direct risk to the health and safety of others, were “materially indistinguishable and properly reasoned.” Applying the reasoning of the Fourth and Fifth Circuits, the district court concluded as a matter of law that Mauro’s presence in the operating room in the capacity of a surgical technician posed a direct and significant threat to the health and safety of others. In light of these decisions and the specific duties of a Borgess surgical technician, the court held that Mauro posed a direct risk to the health and safety of others and held that no genuine issue of material fact existed, and therefore granted summary judgment in favor of Borgess. The court next rejected Mauro’s argument that his direct contact with a patient was not an essential function, but rather a marginal function of his position. Because an employer is not required to restructure the essential functions of a position, the district court concluded that reasonable accommodation was not possible and held that Borgess had done all that was required under the Americans With Disabilities Act and the Rehabilitation Act. The other aspects of the district court’s decision are not relevant to this appeal. I. We review a grant of summary judgment de novo. See Roush v. Weastec, Inc., 96 F.3d 840, 843 (6th Cir.1996). Courts properly grant summary judgment where the moving party establishes through pleadings, depositions, answers to interrogatories, admissions, and affidavits that “there is no genuine issue as to any material fact, and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). In addition, the movant can meet its burden by pointing out an absence of evidence to support an essential element of a claim for which the nonmoving party bears .the burden of proof. See Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). If the nonmov ing party presents evidence from which a jury might- return a verdict in its favor, a court may not grant summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S.Ct. 2505, 2514-15, 91 L.Ed.2d 202 (1986). The court, in considering a motion for summary judgment, must accept the evidence of the nonmoving party and draw all reasonable inferences in the nonmovant’s favor. See id. at 255, 106 S.Ct. at 2513-14. We view the facts and any reasonable inferences drawn from those facts in a light most favorable to the nonmoving party. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). II. Mauro argues that the district court erred in concluding that there was no genuine issue of material fact about whether the likelihood of him transmitting HIV in the course of his job posed a significant risk or direct threat to the health and safety of others, thus rendering him unqualified. Mauro’s first claim alleges that Borgess discriminated against him in violation of section 504 of the Rehabilitation Act, which pro — 402 — vides that no otherwise qualified individual with handicaps shall, solely by reason of his or her handicap, be excluded from participation in, or be denied benefits of any program receiving federal financial assistance. See 29 U.S.C. § 794. Through the passage of the Rehabilitation Act, Congress intended to protect disabled individuals “from deprivations based on prejudice, stereotypes, or unfounded fear, while giving appropriate weight to such legitimate concerns ... as avoiding exposing others to significant health and safety risks.” Arline, 480 U.S. at 287, 107 S.Ct. at 1131. Arline specifically noted: New aspects of a handicap give rise to the same level of public fear and misapprehension as contagiousness____ The Act is carefully structured to replace such reflexive reactions to actual or perceived handicaps with actions based on reasoned and medically sound judgments____ The fact that some persons who have contagious diseases may pose a serious health threat to others under certain circumstances does not justify excluding from the coverage of the Act all persons with actual or perceived contagious diseases. Such exclusion would mean that those accused of being contagious would never have the opportunity to have their condition evaluated in light of medical evidence---- Rather, they would be vulnerable to discrimination on the basis of mythology—precisely the type of injury Congress sought to prevent. Id. at 284-85, 107 S.Ct. at 1129-30 (footnote omitted). In order to recover under the Rehabilitation Act, a plaintiff must establish that he or she is “otherwise qualified” to do the job within the meaning of the Act. An “otherwise qualified” person is one who can perform the “essential functions” of the job at issue. See 45 C.F.R. § 84.3(k) (1996); Arline, 480 U.S. at 287-88 n. 17, 107 S.Ct. at 1131 n. 17. In a situation regarding the employment of a person with a contagious disease, the inquiry should also include a determination of whether the individual' poses “a significant risk of communicating the disease to others in the workplace.” Arline, 480 U.S. at 287-88 n. 16, 107 S.Ct. at 1131 n. 16. Mauro’s second claim alleges that Borgess discriminated against him in violation of the Americans with Disabilities Act, which provides that no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or denied the benefits of the services of public entities. See 42 U.S.C. § 12132. To prevail under his Americans with Disabilities Act claim, Mauro must show that he is “otherwise qualified” for the job at issue. See University of Md., 50 F.3d at 1266. A person is “otherwise qualified” if he or she can perform the essential functions of the job in question. See Bradley, 3 F.3d at 924. A disabled individual, however, is not “qualified” for a specific employment position if he or she poses a “direct threat” to the health or safety of others which cannot be eliminated by a reasonable accommodation. See 42 U.S.C. § 12111(3); University of Md., 50 F.3d at 1265. The “direct threat” standard applied in the Americans With Disabilities Act is based on the same standard as “significant risk” applied by the Rehabilitation Act. See H.R.Rep. No. 101-485, pt. 3, at 45 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 468; University of Md., 50 F.3d at 1264 n. 9; Doe v. District of Columbia, 796 F.Supp. 559, 567 n. 11 (D.D.C.1992). Our analysis under both Acts thus merges into one question: Did Mauro’s activities as a surgical technician at Borgess pose a direct threat or significant risk to the health or safety of others? Arline laid down four factors to consider in this analysis: (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. 480 U.S. at 288, 107 S.Ct. at 1131 (citations omitted). To show that one is “otherwise qualified”, neither Act requires the elimination of all risk posed by a person with a contagious disease. In Arline the Supreme — 403 — Court determined that a person with an infectious disease “who poses a significant risk of communicating an infectious disease to others in the workplace,” is not otherwise qualified to perform his or her job. Id. at 287-88 n. 16, 107 S.Ct. at 1131 n. 16. If the risk is not significant, however, the person is qualified to perform the job. The EEOC guidelines provide further insight: An employer, however, is not permitted to deny an employment opportunity to an individual with a disability merely because of a slightly increased risk. The risk can only be considered,when it poses a significant risk, i.e. high probability, of substantial harm; a speculative or remote risk is insufficient. 29 C.F.R. § 1630.2(r). (1996) (citations omitted). The legislative history further supports the premise that the risk does not have to be eliminated. “The plaintiff is not required to prove that he or she poses no risk.” H.R.Rep. No. 101-485, pt. 3, at 46 (1990), reprinted in 1990 U.S.C.C.AN. at 469. Thus, our analysis in the instant ease must not consider the possibility of HIV transmission, but rather focus on the probability of transmission weighed with the other three factors of the Arline test. III. The parties agree that the first three factors of the Arline test: the nature, duration, and severity of the risk, all indicate that Mauro posed a significant risk to others. Mauro argues, however, that because the probability of transmission, the fourth factor of Arline, was so slight, it overwhelmed the first three factors and created a genuine issue of material fact. In determining whether Mauro posed a significant risk or a direct threat in the performance of the essential functions of his job as a surgical technician, Arline instructs that courts should defer to the “reasonable medical judgments of public health officials.” 480 U.S. at 288, 107 S.Ct. at 1131; see also Abbott v. Bragdon, 107 F.3d 934, 944-45 (1st Cir.), cert. granted in part, —— U.S. -, 118 S.Ct. 554, 139 L.Ed.2d 396 (1997). The Centers for Disease Control is such a body of public health officials. See University of Md., 50 F.3d at 1266; Bradley, 3 F.3d at 924; 28 C.F.R. Pt. 36, Subpart B § 36.208 (1996). The Centers for Disease Control has released a report discussing its recommendations regarding HIV-positive health care workers. See Centers for Disease Control, U.S. Dep’t of Health & Human Servs., Recommendations for Preventing Transmission of Human Immunodeficiency Virus and Hepatitis B Virus to Patients During Exposure-Prone Invasive Procedures, 40 Morbidity & Mortality Weekly Report, 1, 3-4 (July 12, 1991). The Report states that the risk of transmission of HIV from an infected health care worker to a patient is very small, and therefore recommends allowing most HIV-positive health care workers to continue performing most surgical procedures, provided that the workers follow safety precautions outlined in the Report. See id. at 5; University of Md., 50 F.3d at 1263. The Report, however, differentiates a limited category of invasive procedures, which it labels exposure-prone procedures, from general invasive procedures. See Recommendations, at 3-4. General invasive procedures cover a wide range of procedures from insertion of an intravenous line to most types of surgery. See University of Md., 50 F.3d at 1263. Exposure-prone procedures, however, involve those that pose a greater risk of percutaneous (skin-piercing) injury. Though the Centers for Disease Control did not specifically identify which types of procedures were to be labeled exposure-prone, it supplies a general definition: “Characteristics of exposure-prone procedures include digital palpation of a needle tip in a body cavity or the simultaneous presence of the [health care worker’s] fingers and a needle or other sharp instrument or object in a poorly visualized or highly confined anatomic site.” Recommendations at 4. The Report advises that individual health care institutions take measures to identify which procedures performed in their hospital should be labeled exposure-prone and recommends that HIV-infected health care workers should not perform exposure-prone procedures unless they have sought counsel from an expert review panel and have been, advised under what circumstances they may — 404 — continue to perform these procedures. The Report further recommends that those health care workers who engage in exposure-prone procedures notify prospective patients of their condition. See id. at 5. We must defer to the medical judgment expressed in the Report of the Centers for Disease Control in evaluating the district court’s ruling on whether Mauro posed a direct threat in the essential functions of his job. Mauro stated in his deposition that during surgery his work did not include assisting in surgery, but instead handing instruments to the surgeon and helping the surgeon with whatever else he or she needed. During surgery, Mauro would at times hold a retractor with one hand in the wound area, and pass instruments as needed with his other hand. When asked if he would be actually inside a wound holding a retractor, Mauro answered “Me personally, no.” But when questioned further about his hands in the wound area, he stated: “Usually if I have my hands near the wound, it would be to like, on an abdominal incision, to kind of put your finger in and hold—kind of pull down on the muscle tissue and that—where the two met in like a V shape at the bottom and the top, and pull that back. But it happened very, very rarely because they had retractors to do that.” The purpose of this action was to give the surgeon more room and more visibility. The continued questioning led to a distinction between the wound and the body cavity. Mauro was asked if he ever had his hands in a body cavity, described as being past the wound area, and Mauro stated that he personally never had his hand in a body cavity because the small size of the surgical incision prevented too many hands from being placed inside the body cavity.4. Mauro was also questioned about the work of other surgical technicians at Borgess. When asked if other surgical technicians would have their hands in a wound, he could not give a definite answer because he did not work with other surgical technicians. Mauro further testified that he was told that some hospitals have their technicians assist, and that therefore no distinctions existed between the duties of surgical technicians and surgical assistants. Mauro believed, however, that Borgess did not allow technicians to assist because of union requirements, but he was not sure if this was correct. Mauro explained that during his training, discussion had occurred indicating that nicks and cuts were always a possibility for a surgical technician. In fact, the record included two incident reports involving Mauro. One report' indicated that Mauro had sliced his right index finger while removing a knife blade from' a handle on June 25, 1991, and another report indicated that he had scratched‘his hand with the sharp end of a dirty needle while threading it on June 8, 1990. . Mauro further stated in his deposition that when Dr. Mark DeYoung, his family physician, first expressed concern that Mauro might have the HIV virus, he was of the impression that Mauro should refrain from working in surgery because of the possibility of a needle stick. Dr. DeYoung referred Mauro to Dr. David Davenport, an infectious disease specialist. After examining Mauro, Dr. Davenport wrote a letter to Dr. DeYoung. The letter quoted Mauro as telling Dr. Davenport that he double gloved and wore orthopedic gloves when he worked, but that he still suffered cuts and needle sticks frequently with his job. Dr. Davenport’s letter expressed concerns about Mauro’s current job, but stated that he had told Mauro that the current consensus was that infected health care workers could continue to work in the surgical field provided that they had no underlying illnesses and used extraordinary care in their work. Dr. Davenport concluded by stating that he had suggested to Mauro that he may want to seek another type of job at Borgess that did not involve continuous direct exposure to blood and eventual needle sticks. — 405 — Dr. Davenport testified in his deposition that even if HIV-infected health care workers followed universal precautions, methods designed to ensure that health care workers do not come into contact with blood, some risk of exposure existed when HIV-infected health care workers come into contact with patients. Dr. Davenport stated that this can happen because of human error, as health care workers would not completely follow the precautions; through needle injuries; and because there was always potential for blood exposure in situations that could not be controlled, such as when surgical gloves tore. Dr. Davenport identified the Centers for Disease Control Report as one of the best resources available on preventing transmission of the HIV virus. He stated that he was familiar with the theoretical model estimating that the risk of a patient being infected by an HIV-positive surgeon during a single operation as being somewhere between one in 42,000, and one in 420,000. He further stated that any patient who comes in contact with the HIV-infected blood of a health care worker has some risk of the virus being transferred to that patient. Though a few people infected with HIV suffer no consequences, Dr. Davenport stated that in general most people consider HIV a uniformly lethal disease. Dr. Davenport agreed that if a job required an HIV-infected worker to place his or her hands into a patient’s body cavity in the presence of sharp instrumentation, it represented a real risk to patient care and safety because it could result in blood to blood contact which could lead to the transmission of the AIDS virus.5 Sharon Hickman, a registered nurse, was the interim director of operating rooms at Borgess in June and July of 1992. While serving as interim director Hickman supervised the surgical technicians at Borgess, including Mauro. In her affidavit Hickman described a meeting of the Ad Hoc HIV Task Force for the hospital on July 23, 1992 and the statements she made at that meeting. Hickman stated that she told the task force that the duties of a surgical technician include preparing and maintaining the equipment used during surgery, but that: on an infrequent basis, the Surgical Technician is required to assist in the performance of surgery by holding back body tissue, with the use of either retractors or the Technician’s hands, to assist the surgeon in visualizing the operative site. The Surgical Technician also may ■ assist the surgeon with suturing and other duties related to the performance of the operation. She also advised the task force that, although the need for a surgical technician’s assistance in the performance of a surgical procedure arises infrequently, it is not possible to restructure the job to eliminate the surgical technician from performing such functions because this need arises on an emergency basis and cannot be planned in advance. In some cases, particularly on off-shifts, Hickman stated that the surgical technician is required to assist at the surgery because a registered nurse or surgical assistant is not available. In other surgical proceedings a nurse or surgical assistant may be present, but due to the complexity or other unexpected requirements of the procedure, another pair of hands may be needed in the operative site, and the surgical technician is then required to assist. Most often, the surgical technician is required to assist in the operative site because more hands are needed to visualize the surgical area. Finally, Hickman stated that Mauro had been involved in two incidents during the course of his employment, one of which might have resulted in patient exposure. Dr. Steven C. Ross, who attended the July 23 meeting of the Ad Hoc HIV Task Force, confirmed in his affidavit that during the meeting Hickman had made the statements as she had described in her affidavit. Dr. Ross further stated that he had informed the task force that an HIV-positive health care worker posed minimal risk to patients if the worker was not required to place his or her hands in close proximity to sharp instrumentation in a confined or poorly visualized site. When the worker is required to assist in a — 406 — surgical procedure by placing his or her hands in a body cavity in close proximity to sharp instrumentation, such as scalpels and needles, in a confined or poorly visualized anatomic site, however, Ross stated the patient potentially could face exposure to the technician’s blood. He stated that because the task force had concluded that the job responsibilities of a surgical technician at Borgess required the worker to occasionally place his or her hands in a patient’s body cavity in close proximity with sharp instrumentation where visualization of the operative site may be poor,6 patient care and safety would be at some risk where a surgical technician was infected with HIV. He therefore concluded that Mauro could not perform the duties of a surgical technician without placing the patients at some direct risk. Dr. Sanford Tolchin, also present at the task force meeting, also confirmed in his affidavit Hickmaffs statements to the task force, as well as Dr. Ross’s comments concerning risk. In addition, he stated that he was aware of other HIV-positive employees at Borgess who continued to perform patient care duties because a committee determination had been made that the worker’s job responsibilities did not raise a risk to patient care. The written offer of an alternative employment position to Mauro provides further support for the task force’s conclusion concerning a surgical technician’s job responsibilities. This offer stated that an essential function of the O.R. surgical technician position is the ability to enter a patient’s wound during surgery as directed by the attending surgeon. The offer concluded that because instruments such as needles and scalpels are used while the technician’s hands are inside a patient’s body cavity, potential exists for direct patient exposure to the surgical technician’s blood. Mauro offered nothing in response to the Hickman affidavit concerning the duties of a surgical technician. In the briefing before the trial.court, Mauro argued as he does before us, that the job description did not call for a surgical technician to place his or her hands in the open wounds of surgery patients, although this would be required of surgical assistants. Further he asserts that, in fact, he did not place his hands in the operative sites. His testimony, however, indicates otherwise. The district judge recognized, based on Mauro’s testimony, that he occasionally was required to place his hands “upon and into the patient’s surgical incision to provide room and visibility to the surgeon.” Mauro, 886 F.Supp. at 1349. The testimony, we have outlined above demonstrates that the district court did not err in so quoting Mauro’s direct statement that: “Usually if I had my hands near the wound, it would be to like, on an abdominal incision, to kind of put your finger in and hold—kind of pull down on the muscle tissue and ... pull that back.” The material issue as to whether Mauro was a direct threat or significant risk to the health and safety of others turns on whether his job duties require him, even on rare occasions, to have his hands in or near an operative site in the presence of sharp instrumentation where visibility is poor. Mauro’s statement above, that at times he would place his finger in an incision in order to pull down on and pull back the muscle tissue, is consistent with Hickman’s uncontradicted statement that the duties of a surgical technician require a surgical technician, on an infrequent basis, to hold back body tissue with a retractor or his or her hands to assist the surgeon in visualizing the operative site. Mauro’s statements that he never had his hands in the operative cavity are not material, in light of the fact that on infrequent occasions he might be required to engage in invasive, exposure-prone activities. Further, his technical reliance on the written job description is not persuasive, as it does not purport to enumerate all activities Mauro might be required to perform, and Hickman provided a more detañed description of his — 407 — job duties, that was the basis of the hospital Ad Hoc HIV Task Force decision. This Task Force was an expert review panel such as recommended in the Centers for Disease Control Report to consider Mauro’s continued placement in the operating room as a surgical technician. We also reject Mauro’s argument that Dr. Davenport and Dr. DeYoung both gave favorable testimony on the risk issue, because Dr. Davenport’s testimony acknowledged a risk of transmission, and Dr. DeYoung, when asked if his opinion would change if he knew a surgical technician had to have his or her hands in the body cavity, said he would consider this information. We conclude that the district court did not err in determining that Mauro’s continued employment as a surgical technician posed a direct threat to the health and safety of others. The district court based this conclusion on both the description of a Borgess surgical technician’s duties indicating the necessity for a surgical technician to place his or her hands upon and into the surgical incision to provide room and visibility for the surgeon, and the risk of sustaining a needle stick or minor laceration which Mauro had in the past sustained. All the evidence, together with the uncontradicted fact that a wound causing an HIV-infected surgical technician to bleed while in the body cavity could have catastrophic results and near certainty of death, indicates that Mauro was a direct threat. University of Maryland Medical System Corp. and Bradley, two recent cases cited by the district court involving HIV-positive health care workers further support our decision. In University of Maryland Medical System Corp., the Fourth Circuit held that the suspension of an HIV-infected neuro-surgical resident did not violate the Americans with Disabilities Act and the Rehabilitation Act because he posed “a significant risk to the health and safety of his patients” that could not be eliminated by reasonable accommodation. 50 F.3d at 1266. In Bradley, an HIV-positive surgical technologist brought suit claiming that the hospital violated the Rehabilitation Act when, upon learning that Bradley was HIV-positive, the hospital reas- signed Bradley as a procurement assistant in the purchasing department. 3 F.3d at 923. As in the case before us today, the disputed issue in Bradley was the probability of transmitting the virus. Id. at 924. The Fifth Circuit Court of Appeals held that Bradley “often c[ame] within inches of open wounds and plac[ed] his hand in the body cavity roughly once a day.” Id. In addition, the court held that Bradley already had suffered five needle puncture wounds while working as a surgical technologist and therefore concluded that a surgical technician with Bradley’s responsibilities was not “otherwise qualified.” Id. We conclude, after inquiry into the specific facts concerning Mauro’s duties before the district court, see Abbott, 107 F.3d at 949, that the district court did not err in concluding that Mauro’s continued employment as a surgical technician posed a direct threat to the health and safety of others and that there was no genuine issue of material fact. Accordingly, we affirm the judgment of the district court. Footnotes [1] Mauro’s complaint also alleged a few violations of state law, but Mauro does not appeal these issues. [2] The Honorable David W. McKeague, United States District Judge for the Western District of Michigan. [3] After the district court ruling, Mauro died and his estate, by and through its independent personal representative, Sandra Mauro, was substituted as a party for Mauro. [4] This statement describes material on page 28 of the transcript of Mauro’s deposition. Pages 27 and 29, but not page 28, were filed with this court as an exhibit to Borgess’s motion for summary judgment. The statement on page 28 is consistent with other deposition testimony given by Mauro. [5] The dissent discusses success in recent medical advancements in treatment of AIDS, but this is hardly relevant to the time frame in issue in this case. [6] In spite of this testimony, and indeed that of Mauro quoted supra page 12, the dissent states on numerous occasions that Mauro "touched ' only the margin of the wound.” This scholarly and well-written dissent draws a number of comparisons that have little or no relationship to the record in this case. The dissent focuses entirely on Mauro’s statement as to what he personally did, and not on the description of job ■ duties considered by the task force.