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Lambda Legal AIDS Project Docket
AIDS-Related Discrimination

Fall 1995

Employment

Equal Employment Opportunity Commission and Larry Conway v. 1348 Division Corporation d/b/a The Pub (Federal Court, Indiana)
DISCOVERY PROCEEDING. Larry Conway was a bartender at The Pub, a restaurant and bar in Evansville, Indiana. Conway told his employer he was HIV-positive after receiving medical treatment for a cut he got from a broken glass while at work. The bar owner then revealed Conway's HIV status to his co-workers and fired him. The federal Equal Employment Opportunity Commission (EEOC) brought suit against The Pub under the Americans with Disabilities Act (ADA). Lambda, in conjunction with the Indiana HIV Advocacy Program and the Indianapolis HIV/AIDS Legal Project, has joined the suit, filing a complaint on Conway's behalf. In addition to claims under the ADA, our complaint adds claims of infliction of emotional distress and violation of Conway's right to privacy, and a claim for violation of the Indiana communicable disease confidentiality law. Discovery is currently proceeding with a trial scheduled for June 1996. Barry Taylor is Lambda's attorney on this case.

Ann Howard's Apricots v. Commission On Human Rights and Opportunities and John Doe (Connecticut)
NEW CASE! BRIEFS FILED. AWAITING ORAL ARGUMENT. E. Jason Blondeau filed a complaint with the Connecticut Commission on Human Rights and Opportunities (CHRO) after being fired from his job as a waiter because of his employer's belief that he had AIDS. The CHRO conducted hearings at which Blondeau testified, however, Blondeau died before his cross-examination was completed. The employer, Ann Howard's Apricots, then requested that all of Blondeau's testimony be stricken from the record. The CHRO refused and determined that Apricots had violated the state antidiscrimination law by firing Blondeau on the belief he had AIDS. On appeal, the Superior Court struck Blondeau's testimony. The court reasoned that, as Apricots' principal defense was that they fired Blondeau because he had "lost credibility with management" when he lied in response to questions about his health, Blondeau's testimony was "critically important" to the issue of his credibility and therefore could not be admitted without full cross-examination. The CHRO and Blondeau's estate appealed. Lambda, together with the Connecticut AIDS Action Council, filed a joint amicus brief in support of the CHRO and Blondeau, arguing in part that Blondeau's right to keep his HIV status private, and the lack of medical basis to support Apricots' questions about Blondeau's health status in the first place, renders the very claim that Blondeau was fired because he lied about his HIV status discriminatory. Catherine Hanssens co-authored the brief to the Connecticut Supreme Court with Yale Law School student David Lesser of Yale's Jerome N. Frank Legal Services Organization.


Health Care Workers

John Doe v. Georgetown University Medical Center (Equal Employment Opportunity Commission [EEOC], Washington, D.C.)
NEW CASE! PRELIMINARY SETTLEMENT NEGOTIATIONS COMMENCED. Dr. Doe, a respected cardiologist at Georgetown University Medical Center, learned in 1987 that he had HIV, and informed his supervisor the following day. One day later, the medical center ordered Doe to cease all patient contact. Later he was permitted to see patients again, but he remained barred from performing any of the lab work or procedures that were the heart of his practice. Later, while working in the medical center's AIDS clinic, Doe was permitted to attend only to HIV-infected patients. Ultimately, Doe planned and received funding for a research program for AIDS treatments, but even in implementing his own research program, he suffered discrimination. Stress undermined his health and he went on disability. Then when he later expressed an ability and willingness to return to work, he was unable to secure a response from the medical center. In early 1995, Doe filed a complaint with the District of Columbia Department of Human Rights, and it was only at a mediation meeting on March 6, 1995 that he was given a letter notifying him that his position had been terminated as of October 1994. Preliminary settlement negotiations were commenced in early August 1995. Catherine Hanssens is Lambda's attorney on the case, together with cooperating attorney Mickey Wheatley.

Mauro v. Borgess Medical Center (Federal Court, Michigan)
NEW CASE! APPEAL PENDING. William Mauro was a surgical technician for Borgess Medical Center. The medical center removed Mauro from his position after rumors surfaced that he was HIV-positive. Mauro filed suit in federal court in Michigan under the Americans with Disabilities Act and the Rehabilitation Act. Subsequently, the district court granted summary judgment in favor of the hospital. Despite the consensus that the risk of HIV transmission from Mauro to patients was extremely small, the court concluded that the presence of any risk, however remote, that Mauro could transmit HIV to surgical patients made him a "direct threat" to these patients and therefore not "otherwise qualified" to perform his duties as required by the ADA. Mauro appealed his case to the Sixth Circuit Court of Appeals. Barry Taylor and Catherine Hanssens prepared Lambda's amicus brief in support of Mauro, who is represented by Edward Annen.


Access to Health Care Health Insurance Benefits

August Gonzales, as Administrator of the Estate of Timothy Bourgeois, Deceased v. Garner Fast Foods, Inc. (Federal Court, Georgia)
NEW CASE! APPELLATE BRIEFS FILED. AWAITING ORAL ARGUMENT. Timothy Bourgeois was fired from his position with Garner Fast Foods when Garner discovered Bourgeois had HIV. Garner then imposed a $40,000 life-time maximum cap on his health care claims through COBRA, a federal law created to ensure continuity in health benefits for former employees who received insurance through their employment. August Gonzales, administrator of the estate of Timothy Bourgeois, has claimed that Garner's actions are in violation of the Employees' Retirement Income Security Act (ERISA) and the Americans with Disabilities Act (ADA). A federal district court dismissed Gonzales' claims, which Gonzales then appealed to the Eleventh Circuit Court of Appeals. The issue under consideration is whether the discriminatory practices of employers providing health insurance can be challenged under the ADA, which prohibits discrimination in employment and related benefits, by an employee who receives health insurance coverage through COBRA. Catherine Hanssens prepared Lambda's amicus brief in support of Gonzales on behalf of the American Medical Association, the American Foundation For AIDS Research, the American Public Health Association, and the Gay Men's Health Crisis.

Craig Miller v. Dallas Avionics, Inc. (Texas)
NEW CASE! Dallas Avionics has a self-insured group health benefits plan for its employees which provides a $1 million lifetime benefit for all medical expenses, except HIV-related expenses which are capped at $5,000 per year and $25,000 for an employee's lifetime. Craig Miller, an employee living with HIV, incurred medical expenses in excess of the $5,000 cap and was denied coverage. After Miller resigned, he continued coverage through COBRA and accumulated over $17,000 in unpaid medical bills. After the employer declined to voluntarily remove the cap, Lambda sent a letter to Dallas Avionics demanding removal of the cap and payment of Miller's outstanding medical expenses. Lambda plans to file a complaint with the Equal Employment Opportunity Commission in the event the employer refuses to comply voluntarily with the Americans with Disabilities Act. Miller is represented by Lambda attorneys Catherine Hanssens and Barry Taylor.

Phillip Bernstein, Personal Representative of the Estate of Jeffrey Bernstein, v. CapitalCare, Inc. (Federal Court, Virginia)
ORAL ARGUMENT SCHEDULED. In this case, Jeffrey Bernstein, a man with HIV who was a member of a managed care health plan (CapitalCare) in his hometown of Washington, D.C., was denied payment for emergency health care expenses he had while in New York visiting his brother. During the visit, Bernstein unexpectedly required treatment for a previously-undetected lymphoma of the brain. CapitalCare denied payment, claiming that because Jeffrey Bernstein had advanced HIV disease, his hospitalization and the need for care was foreseeable, and that therefore Bernstein had the obligation to stay in or return to Washington, D.C. to utilize the services of a group area provider. Lambda joined the Whitman Walker Legal Clinic in an amicus brief addressing the fact that a broad definition of "foreseeability" in the context of managed care coverage for HIV would unfairly limit the patient's right to travel and other life activities because the effect is to treat any illness as foreseeable once an AIDS diagnosis has occurred. Oral argument before the Fourth Circuit Court of Appeals is scheduled for September 27, 1995. Catherine Hanssens is Lambda's attorney on this case.

Donna Cole Winters v. Costco Wholesale Corp. (U.S. Supreme Court)
NEW CASE! PETITION FOR CERTIORARI FILED. Donna Cole Winters, a participant in her employer's self- insured health benefits plan, filed suit when she was denied reimbursement of medical expenses for breast cancer treatments which the plan administrator considered experimental. Winters won in the district court but the Ninth Circuit Court of Appeals reversed, concluding that the decision of the plan administrator was reasonable. The Ninth Circuit also held that the rule of "contra proferentem," under which any ambiguities in a contract are interpreted in the favor of the plan beneficiary, is not applicable to self-funded ERISA plans that give a plan administrator explicit authority under the contract to determine benefits or to construe the terms of the plan. In August, 1995, Winters filed a petition for certiorari with the United States Supreme Court. Lambda joined a number of national women's and disabilities' rights projects in an amicus brief urging the Supreme Court to review the Ninth Circuit's decision because of the special problems for women and persons with HIV disease if ambiguous provisions in insurance contracts that exclude coverage for "experimental," "investigational," or "medically unnecessary" treatments are no longer construed in a light most favorable to the insured. Catherine Hanssens, Lambda's attorney on the case, worked on the amicus brief with Linda Mangel of the Northwest Women's Law Center, which coordinated the amicus effort with the California Women's Law Center. Primary authors of the brief were L. Susan Slavin and M. Harriet Steinberg of the New York law firm, Slavin and Steinberg.


Standards of Care Cdc Aids Definition

S.P. et al. v. Sullivan (Federal Court, New York)
SETTLEMENT CONFERENCE. This lawsuit challenges the Social Security Administration's (SSA) reliance on the Centers for Disease Control's grossly inadequate definition of AIDS for awarding Social Security disability benefits. The SSA regulations challenged here granted disability benefits automatically to anyone with HIV whose doctor certifies that they had one of the opportunistic infections recognized as HIV-related by the CDC. However, the CDC definition did not include many of the diseases which manifest in women, drug users and low-income people. Benefits applicants who were disabled by these non-recognized diseases not only had to provide medical evidence regarding their HIV status but also had to satisfy an additional and very difficult "functional" standard to prove they could not function normally in the work world. In July 1993, the SSA announced new regulations governing disability benefits for people with HIV which address virtually all of the concerns raised by our lawsuit. The new regulations added the predominant manifestations of HIV in women, drug users, and low income people as criteria by which HIV-infected individuals can qualify for disability benefits. A settlement conference with the Department of Health and Human Services before Southern District of New York Judge Cedarbaum is scheduled for mid-September. Terry McGovern of the HIV Law Project is lead counsel on the case. Other participants include MFY Legal Services, Brooklyn Legal Services, Cardozo Law School's Bet Tzedek Legal Services, and the Center for Constitutional Rights. Suzanne Goldberg is Lambda's attorney on the case.


Health Care Facilities

Porter v. Axelrod (New York)
NO CHANGE. This lawsuit challenges New York State's standards of care for residential health care facilities for persons with HIV/AIDS. Because the state greatly weakened its guidelines at the behest of the Roman Catholic Archdiocese of New York, which obtained state approval to operate two HIV residential facilities, the standards eventually adopted do not provide adequate assurance of good HIV and gynecological services, nor do they require a pledge of non-discrimination. The filing of this case successfully barred the discriminatory issuance of the permits, perhaps making continuation of the lawsuit unnecessary. Lambda is co-counsel with Winthrop, Stimson, Putnam & Roberts and the Coalition for the Homeless. Evan Wolfson is handling the case for Lambda.


Right to Privacy

Anderson v. Romero (Federal Court, Illinois)
APPEAL PENDING. In this case, a prison inmate's HIV status was inappropriately revealed by prison officials, who subjected him to discriminatory treatment and medically unnecessary "precautions." The inmate, Dennis Anderson, who has since died, sued Illinois Department of Corrections (IDOC) officials for violations of his right to privacy and other constitutional rights. IDOC filed a motion to dismiss the complaint, asserting that because the guards' actions were within the scope of their employment, and because the rights of HIV-positive prisoners were not clearly established, the corrections defendants are immune from suit. The motion was denied, and IDOC filed an appeal in the Seventh Circuit Court of Appeals. On appeal, the parties filed briefs on the issue of whether IDOC officials should have known that their conduct violated Anderson's constitutional rights, thus defeating their claims of immunity from suit. Oral argument is scheduled for September 22, 1995. Barry Taylor, with the assistance of Patricia Logue and Catherine Hanssens, prepared Lambda's amicus brief. Anderson is represented by the law firm of Jenner & Block.


Right to Die

Timothy Quill, M.D. et al. v. Dennis Vacco (Federal Court, New York)
AWAITING DECISION. This case challenges New York's criminalization of physician-assisted suicide. Lambda joined six other organizations and the daughter of one of the deceased plaintiffs in this appeal of the federal district court's ruling that a mentally competent and terminally ill person facing severe suffering has no constitutional right to assisted suicide. In December 1994, the court upheld the New York State laws that make it a crime to aid a person attempting to commit suicide. The court refused to find such a right implicit in U.S. Supreme Court decisions on reproductive choice and the right to refuse medical treatment, and rejected the argument that the New York laws violate guarantees of equal protection by distinguishing between a decision to end one's life through suicide and the refusal of medical treatment necessary to preserve life. Coordination of amicus participation, and drafting of the brief, was handled by Cary LaCheen of New York Lawyers for the Public Interest, and cooperating attorney Claudia Hammerman of Paul, Weiss, Rifkind, Wharton & Garrison, with assistance from Catherine Hanssens.

Compassion in Dying v. State of Washington (Federal Court, Washington)
REHEARING EN BANC GRANTED. This case concerns a challenge to the Washington State statute that criminalizes any assistance to suicide on the grounds that it interferes with the constitutional rights of a competent adult to choose to end her life. In March 1995, a three-judge panel of the United States Court of Appeals for the Ninth Circuit reversed a favorable decision by the district court. A petition for rehearing was filed and the full Ninth Circuit has agreed to hear the case en banc. The amicus strategy was coordinated by the ACLU of Washington, whose cooperating attorneys Karen Boxx, Julie Farris, Keller Rohrback of the firm Allen Hansen and Maybrown drafted the brief. Lambda, along with over a dozen other groups, joined in a brief urging affirmance. Beatrice Dohrn is Lambda's attorney on the case.


Criminal Law

State of Mississippi v. Marvin McClendon (Mississippi)
NO CHANGE. APPEAL PENDING. In October, 1994, two gay men, Robert Walters and Joseph Shoemake, were shot and killed in Laurel, Mississippi. Upon arrest, Marvin McClendon confessed to the murders, claiming that the victims sought to sexually assault him. The court permitted the defense to conduct post-mortem HIV tests on the victims, upon defense counsel's insistence that positive results would be "equivalent to [the victims] carrying a loaded gun." Lambda filed a brief in support of the Jones County District Attorney's pre-trial motion to exclude any evidence related to the victims' HIV status or sexual orientation. At the February 1995 trial, the judge ruled that the HIV status of the victims was relevant, and permitted defense counsel to introduce as evidence the test results of the two men. Despite this, the jury rejected the justifiable homicide defense and found the defendant guilty on two counts of murder. The defendant moved for a new trial, and intends to pursue an appeal of the convictions if the motion is denied. Lambda is prepared to file an amicus brief if the defendant raises the victims' sexual orientation or HIV serostatus as relevant to the issue of guilt and self-defense. Catherine Hanssens and Barry Taylor are the Lambda attorneys on this case.

United States of America v. Carlo Streat (Federal Court, Ohio)
VICTORY! This case addresses the proper standard for considering a reduction of sentence under the U.S. Sentencing Guidelines for defendants with HIV. Streat died before the trial court had the opportunity to reconsider his sentence. However, the court wished to publish an opinion addressing the issue, and asked Lambda to submit an amicus brief on the matter. On August 4, 1995, the district court judge issued its decision that while HIV infection alone does not warrant a sentence reduction, infections symptomatic of a compromised immune system may warrant a downward departure from the sentencing guidelines. This is the first federal court decision to expressly recognize that pre-AIDS symptomatic HIV disease may justify a sentence reduction. Catherine Hanssens wrote Lambda's amicus brief.




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