Washington Blade - September 5, 2003
A federal judge has dismissed a lawsuit alleging that emergency
medical technicians with the D.C. Fire Department engaged in
disability-related discrimination by refusing medical treatment
for two gay men injured in a 1996 gay bashing attack.
United States District Court Judge Richard W. Roberts ruled on
Aug. 8 that the two men, Joseph Loron Lavoie and Ken Ludden,
failed to establish a prima facie case that the EMT workers had
reason to perceive them as having HIV and refused to provide
medical services to them for that reason.
In a lawsuit filed in 1997, Lavoie and Ludden charged that two
EMT workers violated the federal Americans with Disabilities Act
and the federal Rehabilitation Act by refusing to treat them and
refusing to transport Lavoie to a hospital. The suit charged
that, while the two men did not have HIV, the EMT workers must
have assumed they were both gay and HIV positive because there
was no other logical reason for the refusal of treatment.
Court depositions from witnesses state that a South Carolina man
struck Lavoie in the head with a large stick and slashed his leg
with the jagged end of a broken bottle in a brazen, daytime
attack inside Dupont Circle. Police records show that the man,
later identified as Michael Jacob Monts, then 29, shouted
anti-gay epithets at Lavoie and Ludden as he lunged at Lavoie
with the stick and bottle.
EMTs handed them gauze pads
Police and a first responder unit from the fire department
arrived on the scene minutes after the attack. While police
apprehended and arrested Monts, Lavoie and Ludden walked to where
the EMT workers were standing next to their truck at the
perimeter of Dupont Circle. The two state in their lawsuit that
when they asked the EMT workers for assistance, the EMT workers
remained where they were and limited their response to suggesting
that Lavoie go to a hospital for treatment.
The lawsuit identifies the two EMT workers as Sgt. Darrel A.
Johnson and technician Brian Broome.
The suit states that blood continued to ooze from a gash in
Lavoie's head and dripped down his entire body in full view of
Johnson and Broome, who stood a few feet away. A second deep
wound, where Monts slashed Lavoie in the leg with the jagged
bottle, had caused his pants to become soaked in blood.
In response to Ludden's pleas that the two EMT workers provide
help for his partner, the suit claims, Broome handed Lavoie
several gauze pads soaked in saline solution and suggested Lavoie
use them to treat his own wounds. Broome never touched Lavoie
when he handed over the pads, the suit states.
A spokesperson for the fire department did not return a call
Upon realizing that Johnson and Broome would not treat Lavoie,
the two men attempted to hail a taxi to take them to George
Washington University Hospital, which is located about a mile
from Dupont Circle, the suit says. When no taxi would stop for
the blood-soaked Lavoie, the two walked to the hospital, where
Lavoie received several dozen stitches in the emergency room.
Coverage of the Americans with Disabilities Act, known as ADA,
includes AIDS and an HIV-positive status as a disability. The law
prohibits the government and private institutions and businesses
from using a person's disability as a basis for discrimination.
Lavoie and Ludden's lawsuit states that Dupont Circle and its
surrounding streets are well known as a gay neighborhood with
large numbers of gay visitors. The suit also states that the
general public, and certainly EMT workers, knew in 1996 that many
gay men were infected with HIV.
The suit states that neither of the two EMT workers wore
protective gloves and they made no attempt to obtain them from
their truck. It states that the two most likely perceived Lavoie
as potentially having HIV, a perception that prompted them to
ignore their responsibilities and violate official protocols for
EMT workers by refusing any treatment.
EMTs may have offered disservice, judge says
Attorneys for the D.C. Corporation Counsel's office, in
responding to the suit, limited their arguments to the issue of
whether Johnson and Broome had reason to believe Lavoie and
Ludden were HIV positive under the provisions of the ADA. The
government attorneys did not dispute allegations that the two EMT
workers refused treatment for Lavoie and Ludden.
District government laws argued that Lavoie and Ludden's suit
failed to present evidence that to meet an ADA-required threshold
of proof that the EMT workers perceived Lavoie and Ludden to have
an impairment that would substantially limit any of their "major
"Plaintiff must present evidence that the EMTs had an actual
perception that being HIV-positive substantially limits a major
life activity," Judge Roberts states in his ruling. "While
evidence of subjective belief often is based on circumstantial
evidence, plaintiff has not provided even that."
"Although the EMTs' behavior here may have been more of a
disservice than a service, plaintiffs have not presented prima
facie evidence of a 'regarded as' claim of disability
Eric Siegel, the attorney representing Lavoie and Ludden, said he
has advised the two men not to appeal the decision to a federal
appeals court because the appeals court would most likely uphold
Roberts's decision. By doing so, Siegel said, the appeals court
would establish the ruling as case law, making it more difficult
for future discrimination cases under the ADA.
Monts was convicted later on a charge of assault with a dangerous
weapon, which police listed as an anti-gay hate crime.
The EMT workers' refusal to treat Lavoie and Ludden came one year
after another fire department rescue worker refused medical
treatment of D.C. transgender resident Tyra Hunter after
discovering Hunter was a biological male. Hunter died from
injuries suffered in a car crash.
The Hunter and Lavoie and Ludden incidents, which drew protests
from gay and transgender rights activists, prompted fire
department officials to promise to put in place gay and
transgender sensitivity training classes for all fire department
recruits. The department has since hired lesbian activist Kenda
Kirby as a training specialist and diversity coordinator at the
department's training academy.