*1 disciplinary risk of of local violation rules. Petitioner, DOE,
John OF COMMIS-
DISTRICT COLUMBIA RIGHTS, ON HUMAN
SION
Respondent, Hospital, University Intervenor.
Howard
No. 91-AA-997. Appeals. Court of
District of Columbia
Argued 1992. Oct. 29, 1993.
Decided Jan. *2 Bruner, J.
P. Daniel with whom Peter Smith, III, F. Hopkins and Russell Wash- DC, brief, ington, petition- were on er. Jordan, with whom C.
Harold E. Rachel Evans, DC, brief, Washington, was on the for intervenor. Reischel, Deputy Corp.
Charles L. Coun- sel, Payton, Corp. Coun- whom John sel, Schwab, Corp. E. Asst. and Edward appellant’s medical his- Counsel, DC, attempt. Noted in Washington, filed state- brief, tory, alia, ap- respondent. in lieu of relevant this ment inter following: gonor- peal, hepatitis, FERREN, SCHWELB, and Before syphilis, homosexual de- rhea and KING, Judges. Associate *3 stools, “guaiae” positive previous pression, gestures, psychological of suicidal KING, Judge: Associate childhood, negative counseling and a since reversal of an order of Petitioner seeks prior antibody years result test two HIV on the District of Columbia Commission Randall hospital his admission. Dr. or- Commission”) Rights (“the denying Human placed appellant be on blood and dered that he damages him his claim that was precautions, required body fluid discrimination, acts of subject to various gloved, attending care-givers gowned, be he his while because of sexual masked, and and that University Hospital patient was Howard sequestered in some fashion. body fluids (“the Hospital”). He contends the Commis- 1987, 15, Randall Dr. or- On November his sion when it concludedthat one of erred for The petitioner.1 an HIV test dered of limita- by claims was barred the statute analysis peti- the of Commissionfound that tions; Hospital did not concluded that after No- blood occurred some time tioner’s or- discriminate on the basis of his sexual 21, vember 1987. ientation; damages him for acts denied hospital stay, time At the of discrimination which the Commission patients all Hospital policy directed that We reverse found been committed. be trans- diagnosed potentially suicidal ruling respect with unit, psychiatric unless to the closed ferred for and remand con- statute limitations patient’s to the medical contraindicated due damages sideration of on the affected Hospital policy, howev- Another condition. remand a reconsidera- claim. We also for er, patients with for exclusion of called damages tion of the denial of acts unit. Because infectious diseases did find. In discrimination the Commission per- not policy, would respects all affirm. other we psychiatric mit to that petitioner’s transfer I. Facts until, unless, his test results unit negative. came back following ar- On November gument boyfriend, petitioner in- with his 16, petitioner was trans- On November tablets, gested approximately aspirin private room in the medical to a ferred intending to Later that commit suicide. there, he re- Hospital. While ward of the evening, he was discovered semi-con- precau- body fluid on blood and mained friends, by scious on floor some of physi- tions, treatment for and received petitioner transported by was ambulance to salicylate resulting symptoms cal Hospital. never trans- poisoning. Petitioner was unit because Hospital, petition- ferred to
Upon admission to not test were available emergency of his HIV in the room. results was treated discharged. According to care, he he was receiving emergency was before After findings, petitioner's psy- intensive care the Commission’s the medical transferred mainly of interaction care consisted by Dr. Randall chiatric unit where was treated techs,” hospital workers who “psych His occurred Thompson. and Dr. transfer diplo- school required high have his suicide were day November The petitioner’s sexual orientation. Hospital argued, cause of 1. both before finding Exceptions this to the Examin- examiner in its does not Order, Proposed Thus, Notice of Decision and accept er’s the Commission’s must we court. finding request- it was HIV test was ordered because ordered test was that the HIV Commission, petitioner. affirm- ed the Human that violates reason decision, ing that the test the examiner’s found Act, i.e., petitioner's Rights sexual because requested by petitioner, and that it was was orientation. discriminatory purpose, be- for a ordered mas, required but were not medically to have warranted and not in viola- training HRA; 7) in psychotherapy psychology. Hospital, tion of the public HRA, accommodation under the di- 20, petitioner’s On November rectly indirectly petitioner denied its *4 competent medical evidence demonstrate pt [patient] notes stated: “the expenses that he incurred or suffered com- anxiously awaiting discharge —states pensable damages Hospi- as a result of the get wants to job.” back to his At the time HRA; 10) tal’s violation of the discharge, petitioner of his had not received puni- evidence did not warrant an award of any information on the results of his HIV damages. tive antibody test.2 parties After the exceptions had filed complaint Petitioner filed a with the Of- decision, proposed 12, 1991, August (“OHR”) Rights fice of Human on Novem- the Commission filed its Notice of Final 21, year, ber 1988—one day, to the after Order, incorporated Decision and all which discharge. 17, 1990, his April On after an findings of the and conclusions set out in investigation, OHR determined that there proposed order as noted above. The probable cause to the Hospital believe Commission also concluded that blood and against discriminated appellant on the basis ordered, body precautions fluid not were of his sexual perceived orientation and his and services and facilities not denied handicap, i.e., that he was an HIV carrier. petitioner, because of his sexual orienta- parties The presented their cases tion. five-day evidentiary hearing, held before a appeal, petitioner challenges On the Com- hearing examiner, 25, February from 1991 1) rulings mission’s that: his claim for dis- through 1, 14, 1991, March 1991. On June criminatory time-barred; testing examiner filed a Notice of Pro- 2) implementation body of blood and posed Order, Decision and which set forth precautions fluid was not discrimination following findings 1) and conclusions: orientation; 3) based on his sexual the deni- Hospital claim that the subject- psychiatric al of services was not discrimi- ed him against to an HIV test his will was orientation; nation based on his sexual meritorious, time-barred; 2) but was the 4) compensatory damages were not war- causes of action implementa- based on the ranted. The not does tion of blood and body precautions fluid rulings. Commission’s We af- and the denial services were part, part, firm in reverse and remand time-barred; 3) Hospital, acting proceedings. for further through providers, perceived its care peti- II. The HIV Test HIV-infected; 4) tioner to be perception as positive HIV-infected or HIV sero per- is a The District of Columbia Adminis physical handicap purposes ceived requires Procedure Act that an trative Rights (“HRA”); 5) Human Act reliable, agency’s findings supported by Hospital subjected evidence, to an HIV probative substantial test, consent, without his because of legal his rationally its conclusions flow 6) homosexuality; pe- findings. decision to 1- agency’s D.C.Code § 1509(e)(1992 titioner on blood Repl.); University American time, 2. ultimately Petitioner’s test Rights. result turned out to with the Office of Human At that positive. be result, however, investigator Petitioner was not informed of the an discovered the result and in- complaint until petitioner. he filed his formed 444 (D.C.1980) (citing Rights, S. Freedman & n. 14 Human 598
v. Commission 416, (D.C.1991); Sons, Eilers v. Bureau Fire Inc. v. Insurance A.2d 420 Hartford Services, 677, Motor A.2d Vehicles (D.C.1978)). Company, A.2d (D.C.1990). was or- On test November attending petition- by the doctor and dered Order, In its Final the Commission held drawn, petitioner had no er’s blood given that, although the HIY test was point, right this action. At that to maintain petitioner’s informed consent and simply been informed had discriminatory purpose, for a because future, that, time in the some of his sexual the claim was presence tested for the its blood would be time-barred.3 Commission based understanding holding the dis- The act on its the HIV antibodies. criminatory alleged conduct occurred on November dis- threatened was test and the however, when the was ordered act; legal no criminatory discrimi- was drawn. conclude that blood We could until the blood was actu- nation occur ruling on this issue was erro- if, petition- ally example, after tested. For neous. taken, the Hos- sample er’s blood been plan test pital countermanded period limitation action blood, petitioner not have suffered would brought pursuant *5 the District Colum taking petitioner’s of any injury.4 The Rights year. Human is one That bia Act test, blood, the HIV ordering of the period begins “of to run at the time the from the actual involve different concerns discriminatory occurrence of the unlawful Government his blood. See testing of practice, discovery or thereof.” of Roberts, 898, F.Supp. v. 756 Virgin see v. Islands l-2544(a); also Jones D.C.Code 1343, University, Howard (D.V.I.1991) (compelled testing 574 A.2d 1345 HIV 901-02 (D.C.1990). petitioner did not file the first intru- Because two “intrusions”: involves 21, his claim with OHR until November minor, occasioned sion is and is 1988, petitioner’s is itself, claim barred second intru- procedure while the one-year of limitation the discrim statute gives of one’s analysis sion —the if blood — inatory is to have occurred action deemed concern,” since that anal- graver rise “to a “ 21, 1987, or some earlier November private medical ysis ‘can a host reveal petitioner’s date. We hold that cause of tested”) being facts’ about the individual time-barred, action is not because it did not Railway Labor Execu- v. Skinner (citing analysis actually accrue until the HIY 602, 617, 109 Association, 489 U.S. tives performed sample blood time 1412-13, 639 1402, —some L.Ed.2d 103 S.Ct. after November of his dis date authority no (1989)). We are aware charge, year and therefore within the one mere threat proposition that of limitation. statute to an actual act equivalent discriminate is discrimination, has cit- and the Generally, a statute of limitation Therefore, we con- holding. ed no case so right begins run at the time the action ac- petitioner’s cause of that accrues, clude maintain action antibody test crued on the date the time that the elements of cause of all sample, no his blood action have come into existence. DeKine was conducted on Columbia, Thus, Commission erred District A.2d 988 earlier.5 theory reject petitioner's alternative 5.We 3. The Commission also found that “continuing testing process violation” was a subjected to was not the HIV test because the actually extending tested. A his blood was until perceived antibody posi- him to be HIV continuing is a ser- exists where there violation finding. does tive. Petitioner acts, more of which falls related one or ies of period, or the mainte- within limitations 4. We need not decide whether the act draw- discriminatory system both before of a nance ing improper purpose, standing blood for some during statutory period. Milton v. alone, actionable, any since case itself in this 145, 150, U.S.App.D.C. 645 F.2d Weinberger, 207 drawing action based on blood be time would (1981) (citing Em- Schlei Grossman, & barred. (Supp.1979)). ployment Law Discrimination it explained concluded that claim was tis. Dr. Randall time-barred. homosexuality placed him in “high group,” sexually risk and that the Body III. Blood and Fluid Precautions that, transmitted diseases evidenced point, petitioner engaged some in un- Petitioner also contends that ruling protected Commission erred in sex. that blood and body precautions fluid were not ordered for addition, Wayne In Dr. and Dr. Greaves discriminatory purpose. alleges He Henderson, experts David in the field of precau decision to him on these that, epidemiology, both testified based based, part, tions was at least in on his upon petitioner’s pre- sexual orientation. Petitioner bases his cautions were warranted under the circum- contention on the section of HRA experts opined stances. Both that there is states: sexually a correlation between transmitted It shall be an discriminatory unlawful hepatitis hand, diseases and on one and a practice acts, any following to do of the patient being positive” “HIV on the other. wholly partially or for a Additionally, Dr. Henderson testified that reason based on the ... sexual orienta- suspects if one a blood-borne infectious dis- tion ... of individual: ease, proper procedure implement it is (1) deny, directly To indirectly, any precautions until the person full equal enjoyment risk of that disease has been excluded in goods, services, facilities, privi- patient. Dr. Henderson also testified leges, advantages, and accommoda- the Center for Disease Control any place public tions of accommo- (“CDC”) recommended that dation. dealing patients used when who are l-2519(a) (1992 *6 D.C.Code Repl.) (empha- suspected carriers of AIDS or HIV. Final- added). sis We hold that the Commission ly, Guidelines, the CDC in effect at the reasonably could Hospital conclude that the time, instructed that it was safer to over- petitioner’s considered sexual orientation under-isolate, isolate than to and that iso- merely factor, as a medical risk not as a precautions implemented lation should be discriminatory basis for the actions taken immediately patients appear for who respect him, and that the decision disease, have an infectious rather than to order body precautions blood and fluid waiting for test results.6 upon petitioner’s was based medical histo- ry- hand, petitioner’s expert On the other testified that the information available to examiner,
At before the staff, i.e., petitioner that had a there was presented substantial evidence history regarding hepatitis, gonorrhea, syphilis of propriety implementing test, previous negative insuffi- body precautions. blood and fluid HIV was Dr. Randall, physician provide cient to for sus- reasonable basis pre- who ordered the cautions, pecting testified that he implemented that he was infectious for either upon petitioner’s them hepatitis expert opined based The medical histo- or HIV. that ry, which pe- inquiry required, ques- included the information that further was such as titioner had a of sexually tioning petitioner recently transmit- whether had en- ted hepati- diseases and had suffered gaged practices, in unsafe sexual and de- nature, continuing Hospital, continuing
To be considered howev- and therefore no violation er, may found). discrimination not be limited to incidents, pervade isolated pattern but must a series or filing of events which continue into the 1987, although yet implemented 6. Since not at period. Id. F.2d at 645 1076. Petitioner has petitioner patient, when was a CDC acts, shown neither a series of related nor a precautions,” has recommended “universal pattern by Hospital. of discrimination See body precautions blood and fluid should be University,supra, also Jones v. Howard 574 A.2d every patient. ordered for (complainant allege at any sepa- failed to rate acts of discrimination committed termining type petitioner petitioner’s than hepatitis sexual orientation. previously had supports suffered. same evidence Commis- petitioner’s sion’s conclusion that exclusion rejected opinion that Commission psychiatric unit was based on and, specifically crediting testimony rather on com- sexual but Henderson, Drs. relying Greaves and bination of factors in his Guidelines, CDC concluded that the petitioner leading perceive Hospital, based on medical his- tory, to be suspecting had a reasonable HIV-infected. basis infectious, that that Moreover, the Director Consultation decision him body on blood Hospital, Psychiatry Liaison Dr. precautions discriminatory. fluid was not Dove, that testified presented Our own review the evidence negative, antibody test come back he would hearing persuades at the us that there was have the unit. Dr. been admitted to Lew- a substantial basis that conclusion. is-Hall, inpatient in- psychiatrist Pro-Football, Inc. v. District Columbia Hospital, as of structor at the testified that Department Services, 588 Employment began working at she the Hos- (D.C.1991); A.2d Cohen Rental pital, patients routinely homosexual Commission, Housing 496 A.2d psychiatric unit. Further- treated in the (D.C.1985). Accordingly, we affirm the more, himself, testified that the petitioner, holding implementation him the results of his staff informed was not the determinative antibody test would be discriminatory purpose. ordered for a factor to whether he would be trans- Denial of IV. Access unit. ferred to Psychiatric Unit petition this evidence am The Commission We conclude that found psychiat ply hospital supports was excluded from the the Commission’s determina Hospital perceived peti ric unit because the tion not denied access finding tioner to This be HIV-infected. sexual orienta to the unit because of his Hospital. not contested Such exclu Instead, supports tion. it the Commission’s not, itself, HRA, sion is a violation of the above, conclusion, petitioner was noted provider if the care show health can busi percep staff’s denied access based on the *7 necessity exclusion, ness see a tion he was HIV-infected. Such that l-2503(a) (1992 Repl.); D.C.Code howev § noted, denial, only HRA if as violates the er, made to no effort do so. is to establish business unable Accordingly, the ruled Commission that the showing no or necessity. Since claim exclusion of from the unit violat made, necessity we affirm business was ed the HRA and the does not that denial of the Commission’s decision ruling. that perception on the of HIV access was based concluded, infection, showing a business The Commission also howev- petitioner’s er, necessity, not because that the services and facilities'were not but petitioner’s denied on the basis of sexual orientation. sexual challenges orientation. Petitioner that con- clusion, alleging that “sexual orienta- Damages V. infection, proxy tion for HIV as became challenges the Commission’s Petitioner far as the doctors were concerned.” The to a he not entitled conclusion that petitioner’s
evidence discussed in Part III.— damage on our determina- award. Based testimony petition- medical pertaining to the tion that claim attending physicians, er’s and the testimo- year within one properly HIV test was filed ny epidemiology experts sup- of the two — discrimination, alleged we remand ports of the Hospital imple- a conclusion that the portion mented of the order concerns, any, petitioner damages, based on valid if rather determine what discriminatory indignity and “can be embarrassment suffered as result of the and evidence probative if reliable awarded test. is not clear the Com- exists.” It whether also Petitioner claims that the Commis must be reliable mission concluded there it him sion erred when failed to award petitioner was to establish that evidence damages for the he suffered discrimination humiliated, is or whether reliable evidence being as a result of excluded from enable the Commissionto deter- required to perceived psychiatric ward because of a damage award. mine the amount infection, showing without a of busi requires 213.4 reliable evidence Section Specifi necessity for ness the exclusion. damages,” “the but determine amount of dam cally, he claims that he is entitled to damages suffered. not to determine if ages embarrass: for the humiliation and humiliation, provides Because § suffered, for emotional ment he as well as indignity and flow natu- embarrassment pain suffering. The Com distress and and discrimination, finding we rally from alia, state, mission’s Guidelines inter specifically to the Commission to remand natural and conse unavoidable “[t]he raised, points to determine address and discriminatory quences any act unlawful damages least some should whether embarrassment, personal are practice or awarded.7 also Johnson have been See humiliation, prevail indignity, and and the Cir.1991) Hale, (9th 940 F.2d ing complainant to such shall be entitled (humiliation cir- may be inferred from the damages proved by competent are evi as surrounding cumstances D.C.Reg. dence as defined 213.” 31 § conduct, mental and no medical evidence of 211.1, (1984). at 6264 § symptoms stemming from the physical or peti- The Commission concluded that a submitted); need be Seaton v. humiliation perceived handicapped tioner who is to be Inc., Company, 491 F.2d Sky Realty damages and is entitled for humiliation Cir.1974) (same). (7th 636-37 embarrassment, pro- if is and there reliable peti- Finally, the Commission also denied evidence to support bative such award. result of damages tioner’s claim for as a found, however, citing The Commission emotion- alleged pain suffering 213.4, that there was no reliable evidence § provide: The Guidelines al distress. providers care made If, a result of the unlawful discrimina- humiliating him, remarks and that find- tory practices respondent, of the acts ing supported by the record. Section complainant required prevailing Guidelines, qualifies 213.4 211 of the treat- undergo medical or provides damages may only be award- ment, or, where no medical treatment probative ed if there is “reliable evi- undergone, there exists evidence gives dence” which the Commission a rea- (e.g., head- pain, suffering anguish, basis to sonable assess the amount of dam- insomnia, ache, nausea, nervousness, ir- ages compensation. D.C.Reg. or other weight), or she shall ritability, loss of *8 213.4, (1984). at 6266 § damages by compe- proved be entitled thereof, as defined tent medical evidence question We whether the Com in 213.... § properly applied mission has its Guidelines. order, 213.4, (1984). In D.C.Reg. In its final ruled Commission at 6264 § humiliation, addition, complainant for is enti- damages prevailing that an award for a rather, argument simply also his 7. Petitioner claims that the Commission he reiterates necessary psychiat- improperly failed to "consider whether the un- failed render Moreover, discriminatory previ- practices our lawful acts or were ac- ric care to him. based on factors,” by a companied aggravating holding establish as is autho- that the evidence did not ous continuing violation, D.C.Reg. there rized we conclude that Guidelines. See 31 211.2, (1984). discriminatory “repetitious Specifically, at 6264 con- conduct.” he was no § specifically ad- "aggravating present Though tends that the factor” here the Commission did not issue, Hospital's repetitious is in the record was the discrim- this there no basis willful dress upon conduct, inatory,, "causing find that unusual inconve- the Commission could which however, describe, pu- "aggravating Petitioner factors" were involved or that nience.” does not suffered; damages were what “unusual inconvenience” he nitive warranted. part, and the case is remanded to expenses in- versed in tied to reimbursement proceedings in for further any physiological, psychological, the Commission curred for opinion. damages resulting accordance with this or emotional from 205.1, D.C.Reg. violation. 31 HRA § So ordered. however, (1984). may damages, Such if only be awarded there “reliable FERREN, concurring: Judge, Associate gives probative evidence” which the Com- opinion majority I in the but be- concur mission a reasonable basis to ascertain clarity, important, for the sake of lieve it is 213.4, D.C.Reg. damages. 31 amount of points. to make two (1984). at 6266 First, concerning alleged in Part II that there found Commission bar, majority limitations statute of upon in no medical evidence the record legal “no discrimination could states that pain it could an award for base actually tested.” occur until the blood was claim, suffering. support petition In of his testing agree I that the actual blood showing him to points to evidence be discrete, discriminatory act under the is a depressed suicidal at the time and thus that the statute circumstances from hospitalization, and that he suffered say, does not bar the claim. This is not to feelings of iso longstanding depression, however, drawing the act of blood lation, (emphasis and suicidal tendencies discrete, discrimi- itself could not also be addition, added). expert In his own wit lesser) (presumably natory justifying act petitioner probably suf ness testified that apparently ac- recovery. majority disorder, personality paranoid fered from a possibility this footnote counts for way “longstanding which is defined as a indicating such a claim would be time person approaches that a kind of therefore, stress, simply I want to barred. added). missing (emphasis Clearly world” theoretically can two discrimi- there be linking petition from the record is evidence rec- natory aspects of a blood test on this psychological problems and mental er’s limita- one the statute of ord: barred unit. In his exclusion tions, the other not. deed, showed that the evidence Second, importantly, I want to and more attempts, previous had made suicide nothing majority in the emphasize that counseling early been involved since an support opinion should be understood continuing drug prob age, had and alcohol argument that sexual lems, depression and had suffered from sexually history of transmitted a medical swings prior hospital to his and mood —all diseases, proper can serve as a basis Although petitioner ization. and his Nor, I treatment. friends testified that he was “worse” when it, properly sexual orientation see can got hospital, ample there is out of high risk factor absent considered even finding that support for the Commission’s history. Any reference to a medical such linking petitioner presented no evidence high homosexuality in this case as a risk Hospital’s discriminatory condition to the therefore, factor, only is relevant because Accordingly, we conclude that conduct. sexually dis- transmitted evidence in this rec there substantial eases. could find ord from which Commission damage is not entitled to award under 205 and 210.8 §§ stated, the Commission’s
For the reasons *9 part, hereby affirmed re-
decision examiner, damages. necessary punitive petitioner ar- for an award of 8. Before the damages. gued punitive that he was entitled to conclusion in Petitioner did not concluded, court, The examiner and the Commission petition do not consid- to this and we deciding authority they whether had the States, U.S.App. Cratty v. United. it. See damages, that the exclusion of to award such 236, 243, (1947) (issues 163 F.2d D.C. unit did not rise waived). ordinarily briefs are not addressed in egregiousness to the level of willfulness notes “strong- revealed that advantages they and accommodations as ly preoccupied discharge,” with his pertained post-suicide patients need that he wanted to return to work on the psychiatric-related care; 8) the denial of following Monday. The notes also record- advantages such and accommodations was ed that felt that he had “been reason, namely, for a be- manipulated and lied On November [sic].” petitioner’s perceived physical cause of 21, petitioner discharged against 9) handicap; petitioner failed to introduce doctors, advice of his entry and an in the