OpenJurist

832 F2d 1158 Chalk v. United States District Court Central District of California

832 F.2d 1158

45 Fair Empl.Prac.Cas. 517,
44 Empl. Prac. Dec. P 37,502, 56 USLW 2322,
1 A.D. Cases 1166

Vincent L. CHALK, Petitioner-Appellant,
v.
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA,
Respondent,
Orange County Superintendent of Schools, also known as
Orange County Department of Education, and Robert
Peterson, in his official capacity, Real
Parties in Interest/Respondents.

No. 87-6418.

United States Court of Appeals,
Ninth Circuit.

Argued and Submitted Nov. 10, 1987.
Decided Nov. 18, 1987.

Paul L. Hoffman, Susan D. McGreivy, Mickey J. Wheatley, Jon W. Davidson, Christine A. Littleton, ACLU Foundation of Southern California, Los Angeles, Cal., Marjorie Rushforth, Georgia Garrett-Norris, Garrett-Norris & Rushforth, Joel J. Loquvam, Joan K. Honeycutt, Jack C. Francis, Santa Ana, Cal., for petitioner-appellant.

Ronald D. Wenkart, Costa Mesa, Cal., for respondents.

1

Elizabeth H. Esty, Sidley & Austin, Washington D.C., Kirk B. Johnson, Martin J. Hatlie, Chicago, Ill., for amicus American Medical Ass'n.

2

John Van de Kamp, Atty. Gen., and M. Anne Jennings, Deputy Atty. Gen., Andrea Sheridan Ordin, Asst. Atty. Gen., Marian M. Johnston, Supervising Deputy Atty. Gen., San Francisco, Cal., for amicus State of Cal.

3

Kirsten L. Zerger, Chief Counsel, Burlingame, Cal., and A. Eugene Huguenin, Jr., Staff Counsel, for amicus California Teachers Ass'n.

4

Arlene Mayerson, Berkeley, Cal., Professor Karl Mannheim, Loyola Univ. Law School, Los Angeles, Cal., for amicus Disability Rights and Educ. Defense Fund.

5

Chris Redburn and Rini Hirai, San Francisco, Cal., for amicus Employment Law Center of the Legal Aid Soc. of San Francisco.

6

Nan D. Hunter, New York City, for amici Shirley L. Fannin, M.D., and Martin D. Finn, M.D.

7

Mark I. Klein, M.D., pro per, amicus.

8

Ron Apperson, Legal Advisor, and Belinda D. Stith, Asst. Legal Advisor, Los Angeles, Cal., for amicus Los Angeles Unified School Dist.

9

Kenneth R. Vogel, Loyola Law School, Nora Quinn, Los Angeles, Cal., for amicus Western Law Center for the Handicapped.

10

Karl Mannheim, Los Angeles, Cal., for National Hemophilia Foundation.

11

Appeal from the United States District Court for the Central District of California.

12

Before SNEED, SKOPIL and POOLE, Circuit Judges.

ORDER

13

The order of the district court denying appellant Vincent L. Chalk's motion for a preliminary injunction is reversed.

14

On this record, appellant has shown a strong likelihood of prevailing on the merits of his case. Evidence before the district court overwhelmingly indicates that the casual contact incident to the performance of his teaching duties in the classroom presents no significant risk of harm to others, and that although handicapped, because of AIDS, appellant is otherwise qualified to perform his job within the meaning of section 504 of the Rehabilitation Act of 1973, 29 U.S.C. Sec. 794, as amended. Preventing appellant from resuming his classroom occupation subjects him to irreparable injury.

15

Appellant has therefore met the requirements entitling him to a preliminary injunction. Zepeda v. Immigration and Naturalization Service, 753 F.2d 719, 727 (9th Cir.1983); Los Angeles Memorial Coliseum Comm'n. v. National Football League, 634 F.2d 1197, 1200-01 (9th Cir.1980); see also Ray v. School District of DeSoto County, 666 F.Supp. 1524 (M.D.Fla.1987); Thomas v. Atascadero Unified School District, 662 F.Supp. 376, 381-82 (C.D.Cal.1987).

16

We therefore remand this action to the District Court for the Central District of California, with direction to enter a preliminary injunction ordering defendants forthwith to restore appellant to his former duties as a teacher of hearing-impaired children in the Orange County Department of Education.

17

A fuller opinion will follow.

SNEED, Circuit Judge, concurring in the Order:

18

Appellant's injury in my view is significant and his probability of prevailing on the merits extremely strong. That is enough to justify reversal in my view. See Benda v. Grand Lodge of Int'l Assoc. of Machinists & Aerospace Workers, 584 F.2d 308, 315 (9th Cir.1978), cert. dismissed, 441 U.S. 937, 99 S.Ct. 2065, 60 L.Ed.2d 667 (1979).