APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE
Hon. Morton A. Brody, U.S. District Judge
Amended opinion filed May 7, 1997
SELYA, Circuit Judge.
In this case of first impression, the district court granted summary judgment in favor of plaintiff-appellee Sidney Abbott, an HIV-positive woman, on her claim that defendant-appellant Randon Bragdon, a dentist, violated the Americans with Disabilities Act (the ADA) by refusing to treat her in his dental office. 1 Dr. Bragdon appeals. Because we agree with the district court that Ms. Abbott is disabled within the purview of the ADA and that providing routine dental care to her (i.e., filling a cavity) would not have posed a direct threat to Dr. Bragdon's health or safety, we affirm.
The events giving rise to this litigation are straightforward. On September 16, 1994, Ms. Abbott arrived at Dr. Bragdon's office in Bangor, Maine for a scheduled appointment. On her patient registration form, she indicated that she was infected with the HIV virus. People may be HIV-positive for years without manifesting the set of symptoms commonly known as AIDS, and Ms. Abbott was asymptomatic at the time.
Dr. Bragdon performed a dental examination and discovered a cavity. He told Ms. Abbott that, pursuant to his infectious disease policy, he would not fill her cavity in his office, but would only treat her in a hospital setting. Though he would charge his regular fee, she would have to bear the additional cost of whatever the hospital charged for the use of its facilities. Ms. Abbott refused the offer and instead filed a complaint under the ADA. See 42 U.S.C. Section(s) 12182(a) (1994).
After pretrial discovery concluded, the parties cross-moved for summary judgment. The district court ruled that Ms. Abbott was substantially limited in a major life activity (reproduction) and thus was disabled for purposes of the ADA. See Abbott v. Bragdon, 912 F. Supp. 580, 587 (D. Me. 1995). The court then concluded that the relatively routine treatment needed by Ms. Abbott could be delivered safely in Dr. Bragdon's office. See id. at 591. Consequently, the court granted Ms. Abbott's motion for summary judgment. See id. at 595-96. This appeal followed.
II. THE SUMMARY JUDGMENT STANDARD
The Civil Rules authorize federal courts to grant summary judgment only when "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). Confronted with a properly documented motion for brevis disposition, the non-movant must establish the existence of a fact that is both genuine and material in order to ward off the entry of an adverse judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir. 1990). Appellate review of the district court's award of summary judgment is plenary, and, in keeping with this standard, we are not wedded to the district court's rationale but may affirm on any alternative ground made manifest by the record. See Hachikian v. FDIC, 96 F.3d 502, 504 (1st Cir. 1996).
In assaying the record, we are guided by the same tenets that guided the lower court. Thus, we are duty bound to indulge all reasonable inferences in favor of the party opposing summary judgment. See id. This generous outlook notwithstanding, we must disregard improbable or overly attenuated inferences, unsupported conclusions, and rank speculation. See Smith v. F.W. Morse & Co., 76 F.3d 413, 428 (1st Cir. 1996); Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).
III. THE QUESTION OF DISABILITY
The ADA sends a clear message to those who operate places of public accommodation: you may not discriminate against individuals in the full and equal enjoyment of services on the basis of a disability. See 42 U.S.C. Section(s) 12182(a). Although a dental office qualifies as a place of public accommodation, see id. Section(s) 12181(7)(F); see also 28 C.F.R. Section(s) 36.104 (1996), the ADA protects only disabled patients against discrimination, and any attempt to invoke the ADA against a practicing dentist must start with an investigation into the patient's status. We turn, then, to the question of whether Ms. Abbott, who was infected with HIV but was asymptomatic, had a disability cognizable under the ADA.
This question is first and foremost a question of statutory construction which we review de novo. See Strickland v. Commissioner, Me. Dept. of Human Servs., 96 F.3d 542, 545 (1st Cir. 1996). In all such cases, we begin with the words of the statute, and we approach them with an understanding that our role is not to set public policy, but, rather, to discern the legislature's will. See, e.g., United States v. Gibbens, 25 F.3d 28, 33 (1st Cir. 1994).
A. The Plaintiff's Burden.
Disability is not a unitary concept under the ADA. Instead, the statute limns three subsets of disability, any one of which is sufficient to trigger the act's protections. In this regard, the ADA states:
The term "disability" means, with respect to an individual -- (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.
42 U.S.C. Section(s) 12102(2). This case, as Ms. Abbott postures it, implicates the first subset of the statutory definition. 2 Thus, she must prove three things: first, that she has a "physical or mental impairment"; second, that this impairment adversely affects "a major life activity"; and third, that it does so to a significant extent (or, put more precisely, that the impairment "substantially limits" her ability to engage in the particular major life activity).
B. The Impairment.
The plaintiff easily clears the first hurdle. We hold unhesitatingly that HIV-positive status, simpliciter, whether symptomatic or asymptomatic, comprises a physical impairment under the ADA. Regulations issued by the Equal Employment Opportunity Commission (the EEOC) implementing Title III of the ADA explicitly support this conclusion, see 28 C.F.R. Section(s) 36.104 (1996) (stating that the phrase "physical impairment" includes HIV); judicial authority buttresses this conclusion, see, e.g., Gates v. Rowland, 39 F.3d 1439, 1446 (9th Cir. 1994); Doe v. Garrett, 903 F.2d 1455, 1459 (11th Cir. 1990), cert. denied, 499 U.S. 904 (1991); and Dr. Bragdon does not seriously advocate an antithetical view.
C. The Major Life Activity.
Moving to the second hurdle, Ms. Abbott cites reproduction as her affected major life activity. The court below accepted this asseveration. See Abbott, 912 F. Supp. at 587. Dr. Bragdon's rebuttal is twofold. In the first place, he disputes that reproduction properly can be characterized as a major life activity. In the second place, he asserts that even if reproduction so qualifies in general, there is nonetheless an unresolved issue as to whether it qualifies in Ms. Abbott's particular case. We address each of these assertions.
1. Reproduction Writ Large.
The question of whether reproduction in large constitutes a major life activity under the ADA is not free from doubt. The ADA itself does not define the term "major life activities," and the few available judicial precedents reveal divergent opinions. Compare Pacourek v. Inland Steel Co., 916 F. Supp. 797, 804 (N.D. Ill. 1996) (finding that reproduction is a major life activity) and Erickson v. Board of Govs. of State Colleges, 911 F. Supp. 316, 323 (N.D. Ill. 1995) (same) and Cain v. Hyatt, 734 F. Supp. 671, 679 (E.D. Pa. 1990) (same) with Krauel v. Iowa Methodist Med. Ctr., 95 F.3d 674, 677 (8th Cir. 1996) (holding that reproduction is not a major life activity) and Zatarain v. WDSU-TV, Inc., 881 F. Supp. 240, 243 (E.D. La. 1995) (same). Still, it is clear that Ms. Abbott's HIV-positive status has a profound impact upon her ability to engage in intimate sexual activity, gestation, giving birth, childrearing, and nurturing familial relations. Our society has long recognized the fundamental importance of each element of this cluster of activities, and our jurisprudence reflects this bias. See, e.g., Stanley v. Illinois, 405 U.S. 645, 651 (1972) (terming the rights to conceive and raise children "essential," "basic civil rights," and rights that are "far more precious . . . than property rights") (citations and internal quotation marks omitted). Viewed against this backdrop, we think it is highly likely that Congress accorded comparable importance to these activities when it authored the ADA.
The statute's text appears to bear out this intuition. Because the term "major life activities" is not defined in the enactment, we are obliged to construe it in accordance with its natural (that is, ordinary) meaning. See Bailey v. United States, 116 S. Ct. 501, 506 (1995); Smith v. United States, 508 U.S. 223, 228 (1993). The Court has looked to familiar dictionary definitions in similar situations. See, e.g., Bailey, 116 S. Ct. at 506; Smith, 508 U.S. at 229. Following that model here lends support to the classification of reproduction as a major life activity. The plain meaning of the word "major" denotes comparative importance. See, e.g., The American Heritage Dictionary of the English Language 1084 (3d ed. 1992) (listing "greater than others in importance or rank" as the initial definition of "major"); Webster's Ninth New Collegiate Dictionary 718 (1989) (defining "major" as "greater in dignity, rank, importance, or interest"). These definitions strongly suggest that the touchstone for determining an activity's inclusion under the statutory rubric is its significance -- and reproduction, which is both the source of all life and one of life's most important activities, easily qualifies under that criterion.
The origins of the ADA's language reinforce this conclusion. Congress lifted the term "major life activities" from the Rehabilitation Act of 1973, which used it in defining an "individual with handicaps." See 29 U.S.C. Section(s) 706(8)(B) (1988). In that milieu, the term was accorded "a broad definition, one not limited to so-called `traditional handicaps.'" School Bd. of Nassau County v. Arline, 480 U.S. 273, 280 n.5 (1987). In transplanting this combination of words from the soil of the Rehabilitation Act to that of the ADA, Congress specifically directed retention of the original meaning. See 42 U.S.C. Section(s) 12201(a) (1994). Had Congress sought to confine the definition of disability narrowly, it surely would have written new, more restrictive language instead of borrowing a descriptive phrase notable for its breadth. See Doe v. Kohn Nast & Graf, P.C., 862 F. Supp. 1310, 1320 (E.D. Pa. 1994). It would be wholly inconsistent with this history to hold that Congress did not envision reproduction as a major life activity.
In addition to the language of the ADA and the historical antecedents of that language, we are guided by the regulations, which define "major life activities" to "mean functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 28 C.F.R. Section(s) 36.104 (1996). 3 As the regulation itself clearly indicates, this enumeration is not meant to be exclusive, and reproduction -- one of the most natural of endeavors -- fits comfortably within its sweep. Furthermore, the portion of the regulations which defines physical impairments to include physiological disorders affecting the reproductive system, 28 C.F.R. Section(s) 36.104 (1996), militates in favor of the same outcome. From the scope of the latter regulation, we deduce that its drafters considered reproduction to be a major life activity -- otherwise, including reproductive disorders among the regulation's roster of physical impairments would not have made much sense. See Pacourek, 916 F. Supp. at 1404-05.
The appellant resists this conclusion. The regulation itself includes no general adage to aid courts in determining what constitutes a major life activity, and he invites us to adopt a limiting principle which will preclude a finding that reproduction qualifies. In his view, major life activities do not embody lifestyle choices, or, as he puts it, "activities that many people decide never to do." This proposition has a modicum of decisional support. See Krauel v. Iowa Methodist Med. Ctr., 915 F. Supp. 102, 106 n.1 (S.D. Iowa 1995) ("Some people choose not to have children, but all people care for themselves, perform manual tasks, walk, see, hear, speak, breathe, learn, and work, unless a handicap or illness prevents them from doing so."), aff'd, 95 F.3d 674 (8th Cir. 1996). In addition, courts have used other formulations en route to concluding that reproduction is unlike the activities listed in the regulation and, therefore, not a major life activity. See, e.g., Krauel, 95 F.3d at 677 (emphasizing that the plaintiff "has the ability to care for herself, perform manual tasks, walk, see, hear, speak, breathe, learn, and work" and is therefore not disabled); Zatarain, 881 F. Supp. at 243 (distinguishing reproduction from major life activities based on frequency of performance).
We do not find any of these formulations persuasive. In Krauel, the Eighth Circuit did not go beyond the activities explicitly included in the regulation and thus effectively treated the list as exclusive, not illustrative. Since the plain language of the regulation counsels otherwise, we are disinclined to emulate that example. The approaches taken by the Zatarain court and the district court in Krauel are no more attractive; in contradistinction to those courts, we see no reason why an activity must be performed either frequently or universally before it can be classified as a major life activity. There is no evidence that Congress intended either frequency or universality to operate as a restriction on the definition of "major life activities." Indeed, the activities explicitly enumerated in the regulation are not wholly characterized by frequency and universality; learning -- even in a broad sense -- is for many adults not a part of daily life, and work is
1. Though we write for simplicity's sake as if Ms. Abbott were the sole plaintiff, we note that the federal government and the Maine Human Rights Commission intervened as plaintiffs below. We note, too, that Ms. Abbott prevailed upon a parallel claim under the Maine Human Rights Act (MHRA), 5 Me. Rev. Stat. Ann. tit. 5, Section(s) 4592 (West 1989). Interpretation of both the ADA and the MHRA has "proceeded hand in hand," Soileau v. Guilford of Me., Inc., ___ F.3d ___, ___ (1st Cir. 1997) [No. 96-1796, slip op. at 6], and the parties here do not suggest any distinction between the two statutes that might affect this appeal. Consequently, we need not discuss the MHRA further.
2. The United States asserts that Ms. Abbott also is disabled under the third subset because society commonly regards individuals who are infected with HIV as having substantially limiting impairments. See generally Cook v. State of R.I., Dep't of Mental Health, Retard. & Hosps., 10 F.3d 17 (1st Cir. 1993) (discussing application of the "regarded as" language). We need not reach this contention.
3. This phraseology is copied verbatim from 45 C.F.R. Section(s) 84.3(j)(2)(ii) (1996), a regulation implementing the Rehabilitation Act of 1973. Because that regulation was drafted with congressional oversight and approval, see Arline, 480 U.S. at 279-80, the definition merits particular deference. See Consolidated Rail Corp. v. Darrone, 465 U.S. 624, 634 (1984).