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The Washington Blade
Judge dismisses bias suit against District Fire Deptartment: EMS workers charged with refusing treatment of blood-soaked gay man
Lou Chibbaro Jr.
September 5, 2003
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 seeking comment.

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 life activities." "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 discrimination." 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.