United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 27, 2004 Decided December 17, 2004
No. 03-7134
Charles Haynes,
Appellant
v.
Anthony A. Williams,
Mayor, District of Columbia and
District of Columbia, Office of Chief Financial Officer,
Appellees
Appeal from the United States District Court
for the District of Columbia
(No. 01cv00454)
David A. Branch argued the cause and filed the briefs for
appellant.
Mary E. Pivec argued the cause for appellees. With her on
the brief were Robert J. Spagnoletti, Attorney General, Office
of the Attorney General for the District of Columbia, Edward E.
Schwab, Deputy Attorney General, and Donna M. Murasky,
Senior Litigation Counsel.
Before: EDWARDS and GARLAND, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
2
Opinion for the Court filed by Circuit Judge GARLAND.
Concurring opinion filed by Senior Circuit Judge
WILLIAMS.
GARLAND, Circuit Judge: Charles Haynes, a former budget
analyst for the District of Columbia, sued the District and its
Mayor for allegedly discriminating against him in violation of
the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C.
§ 12101 et seq. The district court granted summary judgment
for the defendants on the ground that Haynes had failed to raise
a genuine issue that he was disabled within the meaning of the
Act. We affirm.
I
Viewing the evidence in the light most favorable to Haynes,
see Breen v. Department of Transp., 282 F.3d 839, 841 (D.C.
Cir. 2002), the facts are as follows. In 1980, Haynes began
working as a budget analyst in the District of Columbia’s
Department of Budget and Planning. Sometime in 1992, Haynes
developed a “severe medical condition, which seemed to be
exacerbated by the work environment” at 441 4th Street, N.W.,
where the Department had its offices. Haynes Aff. ¶ 11 (J.A.
38). Haynes described his condition as “a sense of insects
crawling on my skin causing severe irritation, occurring shortly
after I arrive at work.” Id. In 1996, Haynes and several co-
workers filed a formal complaint with the District of Columbia’s
Office of Occupational Safety and Health (OSH). Although the
District sprayed the offices for “bugs and other flying insects,”
Ex. D., Pl.’s Opp’n to Defs.’ Mot. for Summary J., Haynes’
condition did not abate. In April 1997, Haynes filed an OSH
complaint in which he stated that his continuing discomfort was
caused by “environmental conditions in the building.” 4/11/97
Haynes Mem. at 1 (J.A. 64).
3
In 1997, Haynes also began visiting an allergist, Dr. James
Mutcherson, who conducted a battery of skin tests. Mutcherson
diagnosed Haynes as “a most allergic individual,” 1/21/00
Mutcherson Letter at 3 (J.A. 29), who suffered from “idiopathic
pruritus,” a condition “that appear[ed] to be exacerbated by” his
work environment. Id. at 1 (J.A. 27). Haynes was “rather
emphatic” in telling Mutcherson that there was “something
present at work that elicit[ed] the most intense and prolonged
skin symptom[]” — a “severely incapacitating skin itching.” Id.
at 3 (J.A. 29).
Although the itching would begin soon after Haynes arrived
at work, it would continue after he returned home at the end of
the day. See 9/25/98 Haynes Mem. at 3-5 (J.A. 80-82). Haynes
believed that he was bringing home on his clothes whatever it
was that aggravated his condition at work. As a result of the
itching, he often could not fall asleep until 4:00 a.m. or later,
typically getting under four hours of sleep. See id. at 5 (J.A.
82); Haynes Dep. at 74 (J.A. 164). And because Haynes had so
much trouble sleeping, he also had trouble arriving at work on
time. Often, he would not arrive at the office until the
afternoon. Haynes Dep. at 144-49 (J.A. 181-83).
In 1996-97, the Department of Budget and Planning was
transferred from the Office of the Mayor to the Office of the
Chief Financial Officer, where it became the Office of Budget
and Planning. Anthony Williams, who later became the
District’s Mayor, was the Chief Financial Officer (CFO) at the
time. After the transfer, Williams terminated the Office’s prior
“liberal attendance policy and required all budget and
accounting personnel to report for work from 8:15 a.m. to 4:45
p.m.” Defs.’ Statement of Material Facts ¶ 7.
Haynes’ schedule did not comport with the new policy. In
a memorandum dated September 17, 1997, Haynes’ supervisor
4
“inform[ed] him that he needed to comply with the attendance
policy and report to the office by no later than 9:30 a.m.” Id. ¶
8. A year later, Haynes’ September 1998 performance appraisal
again warned that he “[n]eed[ed] to adjust his work schedule so
that he [could] work during regular working hours and be a
more effective team player.” 9/15/98 Performance Evaluation
at 3 (J.A. 60). Haynes responded with a lengthy memorandum,
advising that he had “acquired an allergic reaction to something
that lives within this building.” 9/25/98 Haynes Mem. at 2 (J.A.
79). He complained that the District had failed to test his
office’s air quality and to accommodate him with a work
schedule that would permit him “to come to work at later times
when [he] suffered sleep deprivation.” Haynes Aff. ¶ 24 (J.A.
43).
On January 25, 1999, Haynes met with his supervisors, who
told him that “his failure to work during the regular business
hours was preventing him from being fully productive and was
becoming an inconvenience to his coworkers.” Defs.’ Statement
of Material Facts ¶ 12. In response to Haynes’ complaints about
the building, the defendants hired specialists to test limited
aspects of its air quality, tests that found no significant
problems. Id. After receiving the results of the air quality tests,
Haynes’ supervisor advised him that the Office “would no
longer tolerate his excuses for failing to report within normal
duty hours.” Id. ¶ 13. Haynes’ September 30, 1999
performance evaluation reported that he “still failed to maintain
a work schedule that meets his assigned regular tour of duty,”
9/30/99 Performance Evaluation at 3 (J.A. 119), an allegation
that Haynes did not deny, see Haynes Dep. at 144-49 (J.A. 181-
83) (acknowledging that, in 1999, Haynes typically reported to
work between 1:00 p.m. and 1:30 p.m., and sometimes as late as
5:00 p.m.).
5
On January 14, 2000, the Office of the CFO terminated
Haynes’ employment. Thereafter, he sued the District of
Columbia and Mayor Williams (collectively, “the District”) in
the United States District Court for the District of Columbia.
Haynes alleged that the District had violated the ADA by failing
reasonably to accommodate his claimed disability and by
discharging him based on that disability.1
Following discovery, the District moved for summary
judgment. Concluding that Haynes had not raised a genuine
issue of fact as to whether he was disabled within the meaning
of the ADA, the district court granted the District’s motion and
dismissed the case. See Haynes v. Williams, 279 F. Supp. 2d 1,
2 (D.D.C. 2003).
II
We review the district court’s grant of summary judgment
de novo. Waterhouse v. District of Columbia, 298 F.3d 989, 991
(D.C. Cir. 2002). Summary judgment is appropriate only if
“there is no genuine issue as to any material fact and . . . the
moving party is entitled to a judgment as a matter of law.” FED.
R. CIV. P. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247 (1986). A dispute about a material fact is not
“genuine” unless “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party,” id. at 248, and
a moving party is “entitled to a judgment as a matter of law” if
the nonmoving party “fails to make a showing sufficient to
1
Although Haynes also alleged that the District had violated the
Rehabilitation Act, 29 U.S.C. § 701 et seq., he presents no arguments
unique to that statute. See generally Bragdon v. Abbott, 524 U.S. 624,
631 (1998) (noting that the ADA provides “at least as much protection
as provided by the regulations implementing the Rehabilitation Act”)
(citing 42 U.S.C. § 12201(a)).
6
establish the existence of an element essential to that party’s
case, and on which that party will bear the burden of proof at
trial,” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The ADA bars a covered employer from “discriminat[ing]
against a qualified individual with a disability because of the
disability of such individual in regard to . . . employment.” 42
U.S.C. § 12112(a). The ADA defines discrimination to include
the failure to make “reasonable accommodations to the known
physical or mental limitations of an otherwise qualified
individual with a disability.” Id. § 12112(b)(5)(A). A
“disability,” in turn, is defined as “a physical or mental
impairment that substantially limits one or more major life
activities of such individual.” Id. § 12102(2)(A).2 Accordingly,
a plaintiff is disabled under the ADA if: (1) he suffers from an
impairment; (2) the impairment limits an activity that constitutes
a major life activity under the Act; and (3) the limitation is
substantial. See Bragdon, 524 U.S. at 630-31; Bailey v.
Georgia-Pacific Corp., 306 F.3d 1162, 1167 (1st Cir. 2002). It
is the plaintiff’s burden to prove that he is disabled. See Swanks
2
The ADA’s definition of disability also includes “a record of
such an impairment,” 42 U.S.C. § 12102(2)(B), or “being regarded as
having such an impairment,” id. § 12102(2)(C). Although Haynes
makes no claim in reliance on the “record” prong, see Haynes, 279 F.
Supp. 2d at 8 n.7, he does contend that the defendants “regarded” him
as having an impairment that substantially limited a major life activity.
A person is “regarded as” disabled if his employer “mistakenly
believes that [the] person has a physical impairment that substantially
limits one or more major life activities” or “mistakenly believes that
an actual, nonlimiting impairment substantially limits one or more
major life activities.” Sutton v. United Air Lines, Inc., 527 U.S. 471,
489 (1999). We agree with the district court that “there is no evidence
that the defendants erroneously believed that the plaintiff suffered
from an impairment that subs tantially limited a major life activity.”
Haynes, 279 F. Supp. 2d at 12.
7
v. Washington Metro. Area Transit Auth., 179 F.3d 929, 934
(D.C. Cir. 1999); see also Bailey, 306 F.3d at 1167.
The district court accepted Haynes’ contentions that he had
a physical impairment, idiopathic pruritus, and that it limited
Haynes’ sleeping — which the District did not dispute was a
major life activity under the ADA. Because the District does not
contest these points on appeal, see Br. for Appellees at 12, we
do not address them here. Cf. Sutton v. United Air Lines, 527
U.S. 471, 492-94 (1999) (analyzing an ADA claim while
assuming, without deciding, that working is a major life
activity).3
Although the district court ruled in Haynes’ favor with
respect to the first two elements of the definition of “disability,”
it ruled against him on the third: the court concluded that
Haynes had failed to raise a genuine issue that “the extent of his
sleeping limitation [was] substantial within the meaning of the
ADA.” Haynes, 279 F. Supp. 2d at 10. One reason the court
gave for this conclusion was that Haynes had failed to submit
expert medical testimony “regarding the extent to which [his]
physical impairment impacted his ability to sleep.” Id. Instead,
the court said, Haynes had relied on his own “self-serving
assertions,” a kind of evidence the court regarded as insufficient.
Id.
In that respect, the court erred. As the Supreme Court said
in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, “the
3
Several circuits have held that sleeping is a major life activity
under the ADA. See, e.g., Colwell v. Suffolk County Police Dep’t, 158
F.3d 635, 643 (2d Cir. 1998); EEOC v. Sara Lee Corp., 237 F.3d 349,
352-53 (4th Cir. 2001); McAlindin v. County of San Diego, 192 F.3d
1226, 1234 (9th Cir. 1999); Pack v. Kmart Corp., 166 F.3d 1300, 1305
(10th Cir. 1999).
8
ADA requires those ‘claiming the Act’s protection . . . to prove
a disability by offering evidence that the extent of the limitation
. . . in terms of their own experience . . . is substantial.’” 534
U.S. 184, 198 (2002) (emphasis added) (quoting Albertson’s,
Inc. v. Kirkingburg, 527 U.S. 555, 567 (1999)). Whatever the
comparative credibility of medical versus personal testimony, a
plaintiff’s personal testimony cannot be inadequate to raise a
genuine issue regarding his “own experience.” See Anderson,
477 U.S. at 255 (“Credibility determinations, the weighing of
the evidence, and the drawing of legitimate inferences from the
facts are jury functions, not those of a judge, whether he is
ruling on a motion for summary judgment or for a directed
verdict.”).
The district court did, however, suggest another ground
upon which its grant of summary judgment is properly based:
Haynes’ failure to offer evidence that any location other than his
office triggered his itching to such an extent that it seriously
limited his ability to sleep. See Haynes, 279 F. Supp. 2d at 11.
Haynes concedes that if the symptoms of an impairment are
brought on by a single workplace, such an impairment is not
substantially limiting within the meaning of the ADA. Oral Arg.
Tape at 9:35-10:05.
That concession is appropriate. See Muller v. Costello, 187
F.3d 298, 314 (2d Cir. 1999) (finding that the plaintiff was not
disabled because there was “not enough evidence of off-the-job
breathing problems to find a substantial limitation of that life
activity”). In Toyota, the Supreme Court held that to be
substantially limiting, an “impairment’s impact must . . . be
permanent or long term.” 534 U.S. at 198 (citing 29 C.F.R. §
1630.2(j)(2)(ii)-(iii)).4 If the impact of an impairment can be
4
Although Toyota articulated this requirement in the context of
the major life activity of performing manual tasks, nothing in the
9
eliminated by changing the address at which an individual
works, that impairment is neither permanent nor long term.
Similarly, in Sutton, the Court held that “the determination of
whether an individual is disabled should be made with reference
to measures that mitigate the individual’s impairment.” 527
U.S. at 475; see id. at 488-89 (holding that, because the
petitioners’ visual impairments could be corrected by wearing
glasses, the petitioners were not substantially limited in the
major life activity of seeing).5 If Haynes could have avoided the
itching that seriously affected his sleep simply by working at a
different location, then he was not “substantially limited” in the
major life activity of sleeping. Indeed, were we to hold that a
plaintiff can recover under the ADA based on a condition that
becomes limiting only when he works in a single building, we
would transform the ADA into an occupational safety and health
statute.6
Court’s opinion suggests that the requirement would not apply in other
contexts as well. Indeed, the EEOC regulation that the Toyota Court
cited in support of the requirement does not distinguish among major
life activities. See 29 C.F.R. § 1630.2(j)(2)(iii) (stating that the factors
determining whether a limitation is substantial include “[t]he
permanent or long-term impact, or the expected permanent or long-
term impact of or resulting from the impairment”).
5
See also Albertson’s, 527 U.S. at 565-66 (holding, with respect
to the requirement that “mitigating measures be taken into account,”
that there is “no principled basis for distinguishing between measures
undertaken with artificial aids, like medications and devices, and
measures undertaken . . . with the body’s own systems”).
6
Of course, if Haynes had needed to avoid many workplaces in
order to mitigate his impairment, he might have argued that he was
substantially limited in the major life activity of working. But he does
not make that claim here.
10
Although Haynes concedes that he cannot recover if he
could have eliminated his sleep problem by avoiding his office,
he contends that the evidence shows his condition was triggered
by other locations as well. This case, he says, is therefore
similar to Albert v. Smith’s Food & Drug Centers, Inc., 356 F.3d
1242 (10th Cir. 2004). In Albert, the court found disabled a
plaintiff whose asthma attacks, which impaired her breathing,
were “activated by an array of common substances” and
“require[d] her to avoid a wide variety of everyday situations.”
Id. at 1250. Similarly, in EEOC v United Parcel Service, Inc.,
the court found for a plaintiff who developed a serious reaction
to a local allergen that impaired his ability to breathe and that he
could avoid only by moving away from central Texas, where he
lived. See 249 F.3d 557, 559, 562-63 (6th Cir. 2001).
The evidence before the district court, however, was
nothing like that in Albert or EEOC. There was no evidence that
Haynes could have obtained relief only by avoiding “a wide
variety of everyday situations” or by moving out of the
geographic area in which he lived. Rather, the evidence was
that Haynes’ inability to sleep derived from his reaction to the
building in which he worked. In the April 1997 complaint he
filed with the Office of Occupational Safety and Health, Haynes
wrote: “I believe that the cause of my distress . . . is to be found
living in various stages of life within this workplace, i.e., 441
[4th] St. N.W.,” and that “[b]efore this experience I have never
felt this way even after working in the dirtiest building or in the
deepest woods.” 4/11/97 Haynes Mem. at 2-3 (J.A. 65-66). He
therefore called upon that Office to send “to this building the
appropriate professionals who will discover whatever is going
wrong within this place and set into motion the measures that
will make it completely comfortable.” Id. at 4 (J.A. 67); see
also 5/19/97 Haynes Mem. at 1-2 (J.A. 68-69) (notifying
supervisors of his “complaints about the environmental
conditions within this workplace,” and stating that “[n]o matter
11
how I feel when I enter into this workplace each day, I leave
here on most days feeling badly”).
Similarly, in his memorandum responding to his September
1998 performance evaluation, Haynes told his supervisors: “I
have acquired an allergic reaction to something that lives within
this building . . . . I believe that the cause of my distress . . . is
to be found living and flourishing within the confines of this
workplace . . . .” 9/25/98 Haynes Mem. at 2 (J.A. 79). And he
sought to substantiate that point by noting that his symptoms
would begin “within about twenty minutes of my entering this
office.” Id. at 3 (J.A. 80). Haynes repeated these statements,
verbatim, in the affidavit he filed in opposition to summary
judgment. Haynes Aff. ¶¶ 19, 21 (J.A. 40-41); see also
Mutcherson Dep. at 38 (J.A. 55) (“[I]t would always go back to
something on the job that created these problems . . . .”);
Summary of 1/25/99 Personnel Meeting (J.A. 121) (reporting
that Haynes “explained . . . that, in his opinion, the cause of [his]
condition originates from the Office of Budget and Planning;
more specifically his office”).
To support the contention that his condition was triggered
by locations other than his workplace, Haynes relies on the
statement in his 1998 memorandum that he had allergic
reactions “within the office and in some other places.” 9/25/98
Haynes Mem. at 2 (J.A. 79) (emphasis added). Those “‘other’
places include[d] some retail stores — mainly the smaller ones
[—] and some closed ventilation office buildings.” Id. They did
not, however, include “residential spaces, i.e., except for [his]
own.” Id.; see also 1/21/00 Mutcherson Letter at 3 (J.A. 29)
(noting that Haynes “is not solely symptomatic at work, as he
12
has experienced symptoms at home and while visiting
department stores locally and out of town”).7
Haynes’ claim that he suffered itching in “some” places
other than his office does not approach the scope of the
impairment in Albert or in EEOC. More important, Haynes
offered no evidence that the itching brought on by those other
locations disturbed him to such a degree that he could not sleep.
The absence of such evidence is crucial. As the Court held in
Toyota, “[i]t is insufficient for individuals attempting to prove
disability . . . to merely submit evidence of a medical diagnosis
of an impairment. Instead, the ADA requires those ‘claiming
the Act’s protection . . . to prove a disability by offering
evidence that the extent of the limitation [on a major life activity
caused by that impairment] . . . is substantial.’” Toyota, 534
U.S. at 198 (emphasis added) (quoting Albertson’s, 527 U.S. at
567).
At oral argument, Haynes’ counsel argued that, because
Haynes had testified that his itching at work substantially
limited his ability to sleep, a jury could have inferred that his
itching elsewhere had the same effect. There are two flaws in
this argument. First, the evidence in the record was that the
itching Haynes experienced in other environments was of “a
7
There is also Dr. Mutcherson’s statement (relating Haynes’
complaints) that “[t]here was no place, no haven for him to get relief,
particularly.” Mutcherson Dep. at 21 (J.A. 51). This statement
followed two others in which Mutcherson referred to Haynes’
complaints about itching at his workplace. But even if this reference
was intended to be more general, it does not overcome the problem
discussed above: Mutcherson never testified that whatever itching
resulted from Haynes’ contact with other locations was severe enough
to seriously limit his ability to sleep. To the contrary, Mutcherson
testified that “clearly most of his problems — that is, most of his
severe problems — occurred at work.” Id. at 23 (J.A. 51).
13
much lesser degree than at [his] workplace.” Haynes Dep. at 66
(J.A. 162). Indeed, in the same memorandum in which he said
that he suffered allergic reactions in “some other places,” he
specifically noted that “no other place has affected me as
severely as 441 4th Street.” 9/25/98 Haynes Mem. at 2 (J.A.
79). And in his deposition testimony, Haynes declared that in
those other places, unlike in his own office, “a lot of times the
degree that [the itching] was bothering me did not hamper me
doing what I was doing.” Haynes Dep. at 66 (J.A. 162).
Second, as Haynes acknowledges, it was he who bore the
burden of establishing that his impairment substantially limited
his sleeping. See Appellant’s Br. at 14 (citing Bailey, 306 F.3d
at 1167). Although we must give Haynes the benefit of all
reasonable inferences from the evidence in the record, evidence
that is “merely colorable or not significantly probative” cannot
create a genuine issue of material fact. Bragdon, 524 U.S. at
653 (citing Anderson, 477 U.S. at 249-50). The possibility that
a jury might speculate in the plaintiff’s favor is insufficient to
defeat summary judgment. See Rogers Corp. v EPA, 275 F.3d
1096, 1103 (D.C. Cir. 2002).
At most, then, the plaintiff’s evidence would have
supported a finding that some locations other than his workplace
bothered him to some extent. Such evidence would not have
permitted a reasonable jury to conclude that Haynes was
substantially limited in a major life activity. Accordingly, the
district court’s grant of summary judgment in favor of the
defendants was appropriate.
III
For the foregoing reasons, we conclude that the evidence
fails to raise a genuine issue that Haynes had a disability within
14
the meaning of the ADA. The judgment of the district court is
therefore
Affirmed.
1
WILLIAMS, Senior Circuit Judge, concurring: I write
separately only to question the premise, assumed by all parties
(and thus quite properly not ruled on by the court), that
“sleeping” is “a major life activit[y]” for purposes of the
Americans with Disabilities Act, specifically 42 U.S.C.
§ 12102(2)(A). Here no analytical problem arises, because
Haynes loses for want of evidence that his impairment,
idiopathic pruritus, caused his sleeplessness. But had he
prevailed on that question, the next issue would have been
whether the impairment “substantially” limited his sleeping.
See id. Not only is sleep largely an instrumental
activity—valued for its ability to refresh us for various waking
activities—but humans’ sleep needs vary radically. Some can
be successful chief executives of firms—or countries—on very
little sleep, while others require a full eight hours, or more, to
get through only moderately productive days. See, e.g., Only
Wimps Need 8 Hours, L.A. Times, Feb. 10, 1994, at 1 (“Winston
Churchill slept little and sometimes ridiculed those who slept
more.”). Thus the only way to answer the question whether the
impairment “substantially” limited Haynes’s sleep would be by
reference to the effects on his waking “life activities.” A more
direct answer to that question would look straight to the waking
activities adversely affected. The intermediate step seems to add
nothing useful.