The case of a 40-year old man who was denied employment with the Atlanta Police Department over his positive HIV status will return to a U.S. District Court after the U.S. Court of Appeals for the Eleventh Circuit sent the case back to the lower court to resolve unaddressed issues.

The man, identified as by the pseudonym “Richard Roe,” first applied to the APD in early 2006, but was denied employment due to his HIV status. Roe claims the department called him a “direct threat” to the safety of others.

In an unpublished opinion released today, the three-judge appeals court panel found that the district court erred in siding with the city that Roe had not established he is qualified to be a police officer. “Unpublished” means the opinion is not binding precedent, according to the appeals court web site.

“The district court held that Roe cannot establish that he is a qualified individual for two reasons: 1) because he cannot prove he does not pose a direct threat because of his HIV status; and 2) because he failed to prove that he is a qualified individual wholly aside from whether he posed such a direct threat,” the panel wrote in a its decision.

In appealing the district court ruling, Roe noted that the city had expressly denied that it had a policy to not hire people with HIV as police officers.

“Throughout discovery the City maintained that it did not test current police officers for HIV, and that it did not consider HIV to be a medically disqualifying condition for applicants to become police officers,” the appeals panel noted.

That admission from the city “at the very least, lulled Roe into believing that he need not adduce evidence to distinguish his HIV status as non-serious,” the appeals court held, ruling that Roe should get the chance to present that evidence to the court.

Roe argued that the district court’s second argument, about whether he was qualified regardless of his HIV status, was not made by the city when it asked the district court to rule against Roe without a trial, so the court should not have focused on the issue in its ruling without him having the chance to answer it.

“Roe argues that the City did not raise this latter ground in its motion for summary judgment, such that he was essentially ambushed by the district court’s reliance on that ground,” today’s appeals court ruling notes.

The appeals panel agreed with Roe that the city did not raise the issue in its initial arguments.

“While a district court is permitted to raise new issues in deciding a motion for summary judgment, it must give notice to the parties. … Because no notice was given to Roe, we vacate on this ground,” the panel ruled.

The appeals court also ruled that the district court should address Roe’s claim that the city of Atlanta violated the Americans with Disabilities act when it required him to have a medical examination before he had a conditional job offer.

“Expressing no opinion on the outcome of these issues, we remand to the district court,” the appeals panel ruled.

Roe was represented by attorneys with Lambda Legal, a nonprofit group that works on LGBT and HIV issues. Lambda argued the case before the appeals panel on Jan. 25 in Atlanta.

“Not only does science not support what the APD is doing, but the fact is that people living with HIV are already serving as police officers all across the country. The City of Atlanta has to make decisions based on facts rather than bias,” said Scott Schoettes, Lambda Legal’s HIV Project Director, in a press release before the hearing. “We asked the Court to recognize that our client presented more than enough evidence of his being able to do the job safely.  We also asked the court to follow common practice under the law and place the burden back on the employer to justify its actions. We don’t think the APD can do that in this case.”

The city was “talking out of both sides of its mouth,” added Greg Nevins, supervising senior staff attorney at Lambda Legal’s Southern Regional Office in Atlanta, in a statement.

“They claim that having HIV doesn’t prevent someone from becoming a police officer; then they walk into court and say that it does,” Nevins said.  “It was unfair for the district court to allow the Atlanta Police Department to get away with this, especially when the available science supports our client.”

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