United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 10, 2008 Decided July 1, 2008
No. 07-5139
MARTIN DESMOND,
APPELLANT
v.
MICHAEL B. MUKASEY,
U.S. ATTORNEY GENERAL, U.S. DEPARTMENT OF JUSTICE,
AND
FEDERAL BUREAU OF INVESTIGATION,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 03cv01729)
Lisa J. Banks argued the cause for appellant. With her on
the briefs were Debra S. Katz and Daniel B. Edelman.
Marina Utgoff Braswell, Assistant U.S. Attorney, argued
the cause for appellees. With her on the brief were Jeffrey A.
Taylor, U.S. Attorney, and R. Craig Lawrence and Jane M.
Lyons, Assistant U.S. Attorneys.
Before: GINSBURG, RANDOLPH, and TATEL, Circuit
Judges.
2
Opinion for the Court filed by Circuit Judge TATEL.
TATEL, Circuit Judge: The Rehabilitation Act of 1973
prohibits federal agencies from discriminating in employment
on the basis of disability, defined in part as “a physical or
mental impairment which substantially limits one or more . . .
major life activities.” 29 U.S.C. § 705(20)(B)(i). In this case,
after being dismissed from the FBI Academy, appellant sued
the Attorney General under the Rehabilitation Act, alleging
that the FBI discriminated and retaliated against him because
of his post-traumatic stress disorder, a mental impairment that
substantially limited him in the major life activity of sleeping.
The district court granted summary judgment to the
government on the discrimination claim, holding that
appellant had failed to demonstrate a substantial limitation in
sleep, and that even if he had done so, he had failed to show
that the FBI’s reasons for dismissing him were pretextual.
Reviewing the matter de novo, we hold that (1) sleeping is a
major life activity for purposes of the Rehabilitation Act; (2)
appellant has adduced enough evidence to allow a reasonable
jury to find that he was substantially limited in that basic
human function; and (3) by vigorously disputing the FBI’s
professed reasons for his dismissal, appellant has created a
genuine issue of material fact regarding the credibility of the
FBI’s explanation for its decision, rendering summary
judgment on the pretext question improper. As for
appellant’s retaliation claim, which survived summary
judgment and was rejected by a jury, appellant challenges the
admission of a certain document into evidence and the
wording of jury instructions. We reject the former challenge,
finding no abuse of discretion by the district court, and the
latter, finding any error—if error there was—harmless.
3
I.
Because the district court resolved appellant’s disability
claim on summary judgment in favor of the FBI, we view the
evidence in the light most favorable to him, drawing all
reasonable inferences in appellant’s favor. Breen v. Dep’t of
Transp., 282 F.3d 839, 841 (D.C. Cir. 2002). Seen through
that lens, the record, consisting of affidavits and deposition
testimony, tells the following story.
Pursuing a long-held ambition, appellant Martin
Desmond, an Ohio native, applied for a position as an FBI
special agent in December 1996. With his application
pending, Desmond accepted a job as a financial assistant in
the Bureau’s Cleveland office, a clerical position he viewed
as a stepping stone toward his ultimate goal: becoming a
special agent. After Desmond passed the necessary
placement tests, the FBI offered him an appointment as a
special agent, and he joined the FBI Academy’s New Agent
Training Unit at Quantico, Virginia, in February 2000. Upon
accepting this appointment, Desmond acknowledged, as must
all trainees, that he could be assigned to any FBI field office
within the Bureau’s jurisdiction, and that “no transfer [would]
be made from one station to another for personal reasons.”
Letter from Martin Desmond to Director, Federal Bureau of
Investigation (Feb. 13, 2000). Desmond also understood that
in addition to academic performance, new agent trainees are
continually assessed for “suitability,” which takes six factors
into account: conscientiousness, cooperativeness, emotional
maturity, initiative, integrity and honesty, and judgment.
Although Desmond performed well in all his classes, he
struggled to deal with the aftermath of a traumatic incident
that occurred two years before he entered the Academy. In
December 1997, Desmond, then twenty-four years old, was
alone in his mother’s house when an armed robber, later
4
revealed to be the so-called Tommy Hilfiger rapist, forced his
way inside and held Desmond at gunpoint for a harrowing
one-hour ordeal. The intruder led Desmond around the house
looking for valuables, repeatedly threatening to kill him and
then return to rape his mother. Desmond managed to escape,
alert the police, and ultimately help bring the perpetrator to
justice. According to Desmond, apart from intensifying his
desire to pursue a career in law enforcement, this event
caused him to “suffer[] from extreme anxiety, nightmares,
sleeplessness, and extreme worry” for his mother’s safety.
Desmond Decl. ¶ 11.
Driven by fear for his mother’s well-being and guilt at
having left her side, Desmond repeatedly tried to secure a
post-training assignment to the FBI’s Cleveland Division. He
went about this in a number of ways. He submitted standard
“wish lists” of his geographic preferences, ranking Cleveland
first out of fifty-six options. Following FBI officials’ advice,
he filed hardship transfer requests explaining the armed
robbery incident and his consequent desire to care for his
mother. See Letter from Martin Desmond to FBI Transfer
Policy Unit (Feb. 29, 2000); Letter from Martin Desmond to
FBI Transfer Policy Unit (May 17, 2000). He twice inquired
about a recently adopted “support-to-agent” initiative that
returned to their home divisions newly minted special agents
who, like Desmond, had previously worked for the FBI in a
support capacity, but was twice told the initiative would not
apply to him. He occasionally contacted FBI Transfer Unit
employee John Jacobs, whom Desmond knew from his time
in the Cleveland office and considered a friend, to follow up
on various ways he might obtain a Cleveland assignment.
None of these efforts proved successful, and on “orders
night”—an evening in mid-June when soon-to-be agents
received their geographic assignments—Desmond learned
5
that he would be sent to the FBI’s Chicago field office, which
he had ranked sixth out of the fifty-six possible posts on his
wish list. According to the FBI, upon receiving his orders,
Desmond appeared visibly upset and withdrew from the
evening’s festivities, declining to attend an optional pizza
party held for the trainees. Denying he sulked over his
orders, Desmond says that upon receiving the Chicago
assignment, he “immediately and unexpectedly experienced a
wave of fear, anxiety, and guilt related to [his] concerns about
[his] mother and [his] responsibility to care for her.”
Desmond Decl. ¶ 45. The orders, Desmond claims,
exacerbated the sleeplessness he had been experiencing since
the 1997 armed robbery. In testimony critical to his disability
claim, Desmond said: “Prior to the issuance of orders, I was
sleeping an average of three to five hours per night. Once
orders were issued, I began to sleep only two to four hours
each night. Until I returned to Ohio on a permanent basis, I
was unable to sleep more than four hours each night, and
frequently received only two or three hours of sleep.” Id. ¶
48.
During the two months following orders night, Desmond
resumed his efforts to obtain a transfer to a location closer to
his mother: he asked his staff counselor, Supervising Special
Agent James Cochran, to check on the status of his hardship
transfer request; he sought placement on the Cleveland
waiting list; he asked if he could fill a recent vacancy that had
arisen in Pittsburgh, Pennsylvania, a location closer to home
than Chicago. Cochran followed-up on these requests, none
of which proved successful, but, according to Desmond,
never said the inquiries were out of line or violated FBI
procedure. In July 2000, Desmond had a mid-course
interview with a staff counselor. He received no criticism
about his performance or attitude, and the interview form
concludes, “Chicago assignment remains an issue, although
6
. . . Desmond has accepted the reality of it.” Mid-Course
Interview Form (July 10, 2000).
In early August 2000, about a month before Desmond’s
scheduled graduation from the FBI Academy, the nine-year-
old child of a family friend succumbed to leukemia, and
Desmond requested and received leave to attend the funeral.
Around this time, in what Cochran assured Desmond would
be an “off the record” conversation, Desmond told Cochran
about his friend’s child’s death as well as his general concerns
regarding his mother’s health and safety. Desmond Decl. ¶
54; Desmond Dep. 125-26. While reassuring Desmond that
he was performing well at the Academy and was on track to
graduate at the end of the month, Cochran suggested that
Desmond take advantage of the Employee Assistance
Program (EAP), a counseling service for FBI staff.
After returning from the funeral, Desmond took
Cochran’s advice and met with EAP counselor Tom Lewis.
Lewis told Desmond that he was showing signs of post-
traumatic stress disorder (PTSD) and encouraged him to use
writing to work through his stress. Specifically, Lewis
suggested that Desmond write letters as a way to vent his
feelings.
The following week, on August 14, 2000, Desmond and
Cochran had another conversation, the nature of which the
parties dispute. According to Desmond, Cochran asked him
to share details from his EAP meeting, even though such
counseling sessions were supposed to be confidential.
Feeling “obliged” to answer his supervisor’s questions, he
explained what he and Lewis had discussed. Desmond Decl.
¶ 58. When he mentioned PTSD, Desmond recalls, Cochran
“abruptly cut me off[,] . . . told me that he was not supposed
to ask about my communications with the EAP and quickly
7
walked away.” Id. Cochran’s memory differs: he expressly
denies Desmond’s claim that a PTSD diagnosis came up
during that August 14 meeting, asserting that the first he
heard of PTSD was in September, after Desmond had already
been denied permission to graduate. See Cochran Dep. 126-
28. By Desmond’s account, however, the August 14 meeting
constituted a turning point in his relationship with Cochran.
After the meeting, Desmond asserts, Cochran’s behavior
“changed drastically,” with Cochran actively avoiding him,
treating him in a “dismissive” or “hostile” manner, and
criticizing him for various alleged infractions. Desmond
Decl. ¶ 59.
After his meeting with Cochran, Desmond’s fortunes at
the FBI took a turn for the worse. On August 25—four days
before graduation—Desmond and Cochran had a tense
conversation about Desmond’s Chicago assignment. Upset
over this interaction, Desmond drafted a letter, printed it out,
and placed it on his desk. In the letter—styled as a formal
resignation, dated for graduation day, and addressed to the
Director of the FBI—Desmond railed against the “deceit and
lies [he] ha[d] been told” during his FBI employment,
observed that “the supervisors and management leave a lot to
be desired,” and complained that the FBI refused to
accommodate his “family issues” and “personal matters” by
transferring him back to Cleveland. Draft Letter from Martin
Desmond to FBI Director Freeh (Aug. 29, 2000).
Cochran found the letter later that day, though the parties
dispute how he came upon it: Desmond claims it was hidden
from view and that Cochran must have rummaged through his
belongings to find it, while Cochran testified in his deposition
that it was face-up and only partially covered when it caught
his eye. Compare Desmond Decl. ¶ 67 (“I had placed the
letter under a stack of other papers, a computer disk, and
8
writing implements, where it could not be seen.”), with
Cochran Dep. 174-75 (“I could see a portion of this
resignation letter.”). In any event, record evidence reveals
that other trainees knew about the letter, and rumors were
circulating that Desmond planned to present it to FBI Director
Freeh during the graduation ceremony. See Carpenter Depo.
54-56; Davis Dep. 140; Wulbert Dep. 56-57.
Needless to say, Desmond’s letter was hardly well
received by FBI officials. When Cochran called Desmond
out of class to discuss the matter, Desmond explained that he
had no real intention of resigning, and—following the EAP
counselor’s advice—had written the letter merely “to vent his
anger.” Appellant’s Opening Br. 6. Cochran, now joined by
Unit Chief Roger Trott, told Desmond that his graduation
status was in doubt given his apparently shaky commitment to
the FBI. The two supervisors told Desmond to write a
retraction, and although they set no time or page limit,
Desmond returned in twenty minutes with a two paragraph
letter apologizing for his “family issues” and stating that he
was in fact “committed to becoming a Special Agent of the
FBI.” Letter from Martin Desmond to FBI Director Freeh
(Aug. 25, 2000). Three days after their meeting with
Desmond—the day before graduation—Cochran and Trott
met with their supervisor, Section Chief John Louden, and
briefed him on the situation. Those officials decided that
Desmond would not graduate with his class the following day
and that Cochran would instead perform a “suitability
investigation” into Desmond’s behavior. According to the
FBI, this decision was “[b]ased on the contradictions between
the two letters drafted close in time to one another.”
Appellees’ Br. 8. According to Desmond, however, the FBI
officials had “seized upon the letter to provide a rationale to
try to remove Desmond from the FBI Academy based on their
biased concerns about PTSD.” Appellant’s Opening Br. 6.
9
After reaching their decision, Cochran and Trott broke
the news to Desmond that he would not graduate on August
29. During this conversation, Trott also instructed Desmond
to see Dr. Nancy Davis, the chief EAP psychologist, and
Desmond promptly did so. Dr. Davis confirmed that
Desmond suffered from PTSD, but assured Desmond that the
condition was treatable and that she thought he would make a
fine special agent. Desmond signed a release allowing Dr.
Davis and another EAP counselor, Steve Spruill, to discuss
the contents of the session with Trott. According to Trott, Dr.
Davis said that Desmond’s actions “may be caused by
trauma,” but Trott did not recall whether she used the term
“post-traumatic stress disorder.” Roger Trott Dep. 145-46. In
her deposition testimony, however, Dr. Davis said, “I know
that I told [Trott] he was—that I thought he was having some
of the PTSD.” Davis Dep. 73-74.
Meanwhile, Cochran conducted the suitability inquiry,
compiling a document that would come to be known as the
“Cochran report.” In preparing this report and its
accompanying memorandum, Cochran interviewed several of
Desmond’s instructors and classmates, and included
Desmond’s answers to ten written questions relating to his
behavior and commitment to the FBI. See Memorandum
from James Cochran to Jeffrey Higginbotham (Sept. 18,
2000). The document described several instances of actual or
perceived misconduct, ranging from alleged dress-code
infractions to failures to follow proper procedures to
Desmond’s allegedly lax work habits during his temporary
job at the Academy switchboard. The report also mentioned
Desmond’s inability “to remain levelheaded and effective
under the stress associated with his transfer,” citing
inappropriate questions, remarks, and “frequent and often
unexplained crying episodes.” Id. at 10-11. According to
Desmond, much of the information in the Cochran report was
10
“false, incomplete, or exaggerated.” Appellant’s Opening Br.
7.
Accurate or not, the report proceeded up the chain of
command to Assistant Director of Training Jeffrey
Higginbotham. After reviewing the document, Higginbotham
composed a September 28 memorandum to his superiors
recommending that Desmond be dismissed as a new agent
trainee and reassigned as clerical support staff. See
Memorandum from Jeffrey Higginbotham to William Welby
(Sept. 28, 2000). Recounting many of the same incidents
mentioned in the Cochran report, Higginbotham’s memo
stated that Desmond never quite accepted his Chicago
assignment, that he was unwilling to accept an outcome with
which he disagreed, and that he engaged in “a months’ long
episode of immature behavior, the catalyst of which was his
transfer from the Cleveland Division to the Chicago
Division.” Id. at 6. The memo concluded that Desmond
lacked the appropriate levels of cooperativeness and
emotional maturity required of a special agent. Neither
Cochran’s nor Higginbotham’s memorandum mentioned
Desmond’s PTSD diagnosis.
About a week later, Trott and Cochran told Desmond that
Higginbotham would recommend dismissal. The next day,
Desmond met with Higginbotham for the first time and asked
him to reconsider. Pleading his case, Desmond argued that
the Cochran report was inaccurate, incomplete, and
misleading. Higginbotham replied that he had yet to send his
September 28 memorandum to FBI headquarters, indicating
that if he received any contrary information about Desmond
he would take it into account and consider withdrawing his
recommendation. Desmond had several classmates,
instructors, and others contact Higginbotham to vouch for his
positive characteristics. For example, one former classmate
11
emailed Higginbotham to say, “never during the course of
those 16 weeks did I feel that [Desmond] had a poor attitude
toward the job or that it would be inappropriate for [him] to
be in a law enforcement position.” Email from William B.
Shute to Jeffrey Higginbotham (Oct. 4, 2000). Echoing these
views, another classmate told Higginbotham, “[Desmond] is
solid, he was an excellent student and, in my opinion, will
make an outstanding Special Agent. In the highest
compliment to any law enforcement officer, I wouldn’t think
twice about going through a door with him or asking him to
back me up in any field scenario.” Email from Kera E.
Wulbert to Jeffrey Higginbotham (Oct. 4, 2000).
Facing a filing deadline, Desmond submitted a formal
Equal Employment Opportunity (EEO) complaint a week
after his meeting with Higginbotham, claiming the FBI had
discriminated against him on the basis of a mental handicap.
Shortly thereafter, EAP counselor Dr. Davis met with
Higginbotham, and according to her deposition testimony, she
agreed that Higginbotham harbored concerns that “Desmond
continued to suffer from some sort of psychological
impairment that might affect his abilities going forward,”
testifying that she “would have said that [Desmond] was in
post-traumatic stress disorder.” Davis Dep. 144, 79.
Higginbotham’s account of that conversation differs.
“[A]lmost assuredly,” he said, “I do not ever recall her using
that technical phrase, which would have been an important
trigger for me . . . [b]ecause it would have perhaps suggested
a confirmable diagnosable disability.” Higginbotham Dep.
145. It is uncontested, however, that Dr. Davis told
Higginbotham that she thought Desmond could overcome his
trauma and become a good agent.
Higginbotham sent his memo, along with the Cochran
report, further up the chain of command to Deputy
12
Administrator Michael Varnum, who had ultimate authority
to terminate new agents. Higginbotham’s submission,
however, included no reference to Dr. Davis’s PTSD
diagnosis.
On October 23, Desmond and Higginbotham met for a
second time. According to Desmond, Higginbotham made a
comment that forms the crux of his retaliation claim—that
“he would have let [Desmond] graduate if [he] had not filed
an EEO complaint.” Desmond Decl. ¶ 121. Higginbotham
did not recall making any such statement.
After reviewing the documents and recommendations
before him, Varnum drafted a letter dated November 6
dismissing Desmond for failure to meet the suitability
requirements of emotional maturity and cooperativeness. The
letter emphasized “the manner in which [Desmond] dealt with
[his] first-office assignment,” and referenced many of the
same incidents included in the Cochran report, such as
Desmond’s sulking manner, his allegedly poor work ethic, a
failure to report a traffic citation, and the episode involving
his putative letter of resignation. Letter from Michael
Varnum to Martin Desmond 2 (Nov. 6, 2000). “Most
important,” Varnum concluded, “your superiors and I are
concerned about your safety and ability to deal with difficult
and potentially dangerous situations that you will confront as
an Agent in the field.” Id. at 2-3.
On November 14, 2000, Louden and Trott presented
Desmond with Varnum’s dismissal letter. Although the letter
offered Desmond the option of returning to his old support
position in Cleveland, Desmond chose instead to resign that
same day. After exhausting his administrative remedies,
Desmond filed suit in federal district court, alleging unlawful
discrimination and retaliation under the Rehabilitation Act.
13
Based on Higginbotham’s disputed statement that he
would have let Desmond graduate were it not for his EEO
complaint, the district court allowed Desmond’s retaliation
claim to proceed to a jury, which ultimately ruled against him.
But the court granted summary judgment to the government
on the disability claim, holding that Desmond had failed to
demonstrate that he was either actually disabled or regarded
as such by the FBI for purposes of the Rehabilitation Act.
Although the district court could have stopped there, having
found that Desmond failed at the threshold of the analysis, it
went on to find that he had also failed to show that the FBI’s
“articulated reasons for terminating [him] were pretextual.”
Desmond v. Gonzales, No. 03-1729, slip op. at 46 (D.D.C.
Jan. 17, 2006) (“Mem. Op.”). Desmond now appeals the
district court’s grant of summary judgment to the FBI on his
disability claim, as well as two trial-related decisions by the
district court. We consider each challenge in turn, beginning
with the primary issue before us: Desmond’s disability claim.
II.
The Rehabilitation Act bars federal agencies from
discriminating against employees with disabilities. See 29
U.S.C. § 791(b); Taylor v. Rice, 451 F.3d 898, 905 (D.C. Cir.
2006) (explaining that Rehabilitation Act section 501(b)
provides aggrieved employees with a private right of action
against federal agencies for claims alleging employment
discrimination). When assessing “nonaffirmative action
employment discrimination” claims like Desmond’s, we
adopt the same standards used to determine liability under the
Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §
12111 et seq. See 29 U.S.C. § 791(g); Taylor, 451 F.3d at
905 (applying ADA employment discrimination standards in
Rehabilitation Act case). To withstand summary judgment on
his disability discrimination claim, Desmond must produce
enough evidence to allow a reasonable jury to conclude that
14
he (1) has a disability; (2) was qualified to perform the
essential functions of employment with or without reasonable
accommodation; and (3) suffered an adverse employment
decision due to his disability. See Duncan v. WMATA, 240
F.3d 1110, 1114 (D.C. Cir. 2001) (en banc).
Not all individuals having what might commonly be
perceived as physical or mental disabilities are protected by
the Act. As used in the Act, the term “disability” means “a
physical or mental impairment which substantially limits one
or more . . . major life activities.” 29 U.S.C. § 705(20)(B)(i).
In other words, as the Supreme Court has made clear,
“[m]erely having an impairment does not make one disabled
for purposes of the [Act]. Claimants also need to demonstrate
that the impairment limits a major life activity.” Toyota
Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 195 (2002).
The Act also extends coverage to individuals having “a record
of such an impairment” as well as those “regarded as having
such an impairment.” 29 U.S.C. § 705(20)(B)(ii)-(iii). Here
Desmond argues that he fits under the first and third of these
definitions, arguing that his PTSD substantially limited his
ability to sleep, rendering him actually disabled, and that the
FBI “regarded” him as substantially limited in the major life
activities of interacting with others and working.
We begin with Desmond’s claim of actual disability.
Under that definition, “a plaintiff is disabled under the [Act]
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.” Haynes v.
Williams, 392 F.3d 478, 481-82 (D.C. Cir. 2004). Here the
government never disputes that PTSD qualifies as a “mental
impairment.” Cf. Hamilton v. Southwestern Bell Tel. Co., 136
F.3d 1047, 1050 (5th Cir. 1998) (recognizing PTSD as an
impairment). The question before us, then, is whether
15
Desmond’s PTSD substantially limited a major life activity.
Desmond contends that it did, arguing that it limited his
ability to sleep.
Sleep as a Major Life Activity
Every circuit to have addressed the question has held that
sleeping qualifies as a major life activity. See, e.g., Scheerer
v. Potter, 443 F.3d 916, 920 (7th Cir. 2006); EEOC v. Sara
Lee Corp., 237 F.3d 349, 352-53 (4th Cir. 2001); Colwell v.
Suffolk County Police Dep’t, 158 F.3d 635, 643 (2d Cir.
1998). At oral argument, the government all but conceded the
issue. See Oral Arg. at 17:55. Nonetheless, we feel
compelled to address this question in some detail because we
expressly left it open in Haynes v. Williams, 392 F.3d at 482
& n.3, where one of our colleagues—in a thought-provoking
concurrence—“question[ed] the premise . . . that ‘sleeping’ is
‘a major life activit[y],’” id. at 485 (Williams, J., concurring)
(second alteration in original). Finding the issue now
squarely before us and following the Supreme Court’s
instruction that the phrase “‘[m]ajor life activities’ . . . refers
to those activities that are of central importance to daily life,”
Toyota, 534 U.S. at 197, we hold that sleeping indeed
qualifies as a “major life activity” for purposes of the
Rehabilitation Act.
We begin with the statute’s text. In the most basic sense
of the word, sleeping certainly qualifies as an “activity,” i.e.,
“a process (as moving or digesting) that an organism carries
on or participates in by virtue of being alive.” WEBSTER’S
THIRD INTERNATIONAL DICTIONARY 22 (1993). And as for
the word “major,” the Supreme Court has explained that the
word’s plain meaning “denotes comparative importance and
suggests that the touchstone for determining an activity’s
inclusion under the statutory rubric is its significance.”
Bragdon v. Abbott, 524 U.S. 624, 638 (1998) (citations and
16
internal quotation marks omitted); see also Toyota, 534 U.S.
at 197 (“‘Major’ in the phrase ‘major life activities’ means
important.”). Sleeping is unquestionably a significant
activity—human beings spend roughly a third of their lives
doing it. And it is certainly important. Though the Haynes
concurrence suggested that sleep is “largely an instrumental
activity . . . valued for its ability to refresh us for various
waking activities,” Haynes, 392 F.3d at 485 (Williams, J.,
concurring), after sleeping on the matter, we are convinced
that sleep is a vital life activity in its own right. Indeed, like
human reproduction, which the Supreme Court labeled a
major life activity in Bragdon v. Abbott, sleep is “central to
the life process itself.” 524 U.S. at 638.
According to the National Institutes of Health, sleep
amounts to more than “down time”—it is a period when the
“brain is hard at work forming the pathways necessary for
learning and creating memories and new insights.” NAT’L
INSTS. OF HEALTH, U.S. DEP’T OF HEALTH & HUMAN SERVS.,
YOUR GUIDE TO HEALTHY SLEEP 1 (2005). Although
researchers continue to uncover its benefits, sleep is believed
to play a role in brain development, memory reinforcement,
and immune function. See Wynne Chen & Clete A. Kushida,
Perspectives, in SLEEP DEPRIVATION: BASIC SCIENCE,
PHYSIOLOGY AND BEHAVIOR 1, 11-22 (Clete A. Kushida ed.,
2005); see also CARLOS H. SCHENCK, SLEEP: THE MYSTERIES,
THE PROBLEMS, AND THE SOLUTIONS 1-2 (2007) (“While it
may look like nothing much is happening while a person is
sleeping, there’s actually a complicated chain of events going
on in the brain, and that chain is vital to our overall health.”).
One medical textbook explains that “there is a growing
consensus that sleep serves a function of offline memory
processing,” noting that “[s]leep has been shown to enhance
prior learning of perceptual and motor skills, paired word
associates, and emotionally charged episodic memories, and
17
even to enhance mathematical insight.” Robert Stickgold,
Why We Dream, in PRINCIPLES AND PRACTICE OF SLEEP
MEDICINE 579, 579 (Meir H. Kryger et al. eds., 4th ed. 2005)
(footnotes omitted). Moreover, even if one considered
sleeping merely an “instrumental activity,” Haynes, 392 F.3d
at 485 (Williams, J., concurring), many other biological
activities—such as eating or breathing—could be similarly
characterized, yet courts have held that they nonetheless
qualify as major life activities under the statute. See, e.g.,
Waldrip v. Gen. Elec. Co., 325 F.3d 652, 655 (5th Cir. 2003)
(recognizing eating as a major life activity); Lawson v. CSX
Transp., Inc., 245 F.3d 916, 923 (7th Cir. 2001) (eating);
Land v. Baptist Med. Ctr., 164 F.3d 423, 424 (8th Cir. 1999)
(breathing and eating); Robinson v. Global Marine Drilling
Co., 101 F.3d 35, 37 (5th Cir. 1996) (breathing).
The Haynes concurrence also wondered whether sleep
could be a major life activity given that “humans’ sleep needs
vary radically,” Haynes, 392 F.3d at 485 (Williams, J.,
concurring), but the same could be said of several other major
life activities. For instance, some people choose never to
procreate, yet the Bragdon Court had “little difficulty”
concluding that reproduction nonetheless constitutes a major
life activity under the ADA. 542 U.S. at 638. And although
we have no occasion to hold that eating constitutes a major
life activity, we note that individual food intake needs vary
drastically—some get by on very little while others require
three squares a day (or more)—yet it would seem odd to
conclude that eating is not a major life activity on that basis.
Indeed, no court has ever so held.
Our conclusion that sleep qualifies as a major life activity
finds support in federal regulations interpreting the
Rehabilitation Act and the ADA. Cf. Toyota, 534 U.S. at 194
(assuming without deciding that EEOC regulations are
18
reasonable and declining to decide what deference, if any,
they are due). Those regulations explain that “[m]ajor life
activities means functions such as caring for one’s self,
performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working.” 45 C.F.R. § 84.3(j)(2)(ii);
see also 29 C.F.R. § 1630.2(i). Although the list makes no
reference to sleeping, it “is illustrative, not exhaustive,”
Bragdon, 524 U.S. at 639, and sleeping, like “walking,
seeing, hearing, speaking, [and] breathing,” is “a basic
activity that the average person in the general population can
perform with little or no difficulty,” Pack v. Kmart Corp., 166
F.3d 1300, 1305 (10th Cir. 1999). Indeed, sleep is more
“central to the life process itself,” Bragdon, 524 U.S. at 638,
than some of the other activities listed, such as seeing,
hearing, and speaking, for one can survive without engaging
in these activities, but not without sleeping.
In sum, sleep “falls well within the phrase ‘major life
activity.’” Id. (discussing human reproduction). One
scientific text explains it in terms of evolutionary biology:
It is clear that sleep has an important
physiologic function, given its widespread
presence in the animal kingdom, and its
persistence among species despite the
attendant risks taken during such recurrent
periods of reduced awareness, which is
characteristic of the sleep state. Molecular
and behavioral conservation indicate that
sleep likely conferred a selective advantage in
ancestral mammals, and sleep deprivation
experiments in animals have clearly shown
that sleep is required for survival.
19
Chen & Kushida, supra, at 3. Or, put somewhat more
eloquently:
Sleep that knits up the ravell’d sleave of care,
The death of each day’s life, sore labour’s bath,
Balm of hurt minds, great nature’s second course,
Chief nourisher in life’s feast,—
WILLIAM SHAKESPEARE, MACBETH act 2, sc. 2.
Substantial Limitation
Having thus concluded that sleeping is a major life
activity, we ask whether Desmond has presented enough
evidence to persuade a reasonable jury that his PTSD
substantially limited his ability to sleep. The district court
concluded that he failed in this task, a decision we review de
novo. See Woodruff v. Peters, 482 F.3d 521, 526 (D.C. Cir.
2007). As an initial matter, we note that the government
agrees that PTSD can cause sleeplessness, and at no point has
it contested Desmond’s assertion that his PTSD caused his
sleep problems. Cf. Murray B. Stein & Thomas A. Mellman,
Anxiety Disorders, in PRINCIPLES AND PRACTICE OF SLEEP
MEDICINE, supra, at 1297, 1305 (“Sleep complaints are
myriad and often severe in patients with PTSD.”). Thus, the
question is whether Desmond has produced enough evidence
to allow a reasonable jury to conclude that his PTSD-related
sleeplessness was “substantial.”
The Supreme Court has made clear that “[t]he
determination of whether an individual has a disability is not
necessarily based on the name or diagnosis of the impairment
the person has, but rather on the effect of that impairment on
the life of the individual.” Toyota, 534 U.S. at 198 (quotation
marks omitted). The Court elaborated, “An individualized
assessment of the effect of an impairment is particularly
20
necessary when the impairment is one whose symptoms vary
widely from person to person.” Id. at 199.
Less clear is the benchmark against which the person’s
experience is to be measured. Citing EEOC regulations and
decisions from our sister circuits interpreting the phrase
“substantially limits,” we have held that plaintiffs must show
that their limitation was substantial “as compared to the
average person in the general population.” Singh v. George
Washington Univ. Sch. of Med., 508 F.3d 1097, 1100-04
(D.C. Cir. 2007); see also, e.g., Pack, 166 F.3d at 1306 (citing
29 C.F.R. § 1630.2(j)(1)(ii)); Colwell, 158 F.3d at 644 (same).
Because “humans’ sleep needs vary radically,” Haynes, 392
F.3d at 485 (Williams, J., concurring), and because needing a
great deal of sleep may be as debilitating as getting too little,
it may be more appropriate in some situations to set the
benchmark against the individual’s experience prior to
becoming impaired, or perhaps upon some combination of the
individual’s and the average person’s experience. But we
need not resolve that issue because, as we explain below,
Desmond alleged facts sufficient to show his ability to sleep
was substantially limited as measured against either an
individualized or a generalized benchmark.
In determining whether a limitation is substantial, courts
must take into account any mitigating or corrective measures,
Sutton v. United Air Lines, Inc., 527 U.S. 471, 482 (1999),
and may consider three factors: “(1) [t]he nature and severity
of the impairment; (2) [t]he duration or expected duration of
the impairment; and (3) [t]he permanent long term impact, or
the expected permanent or long term impact of or resulting
from the impairment,” 29 C.F.R. § 1630.2(j)(2); see Toyota,
534 U.S. at 198 (stating an “impairment’s impact must . . . be
permanent or long term”). Plaintiffs must therefore offer
more than generalized allegations of restless or fitful sleep, or
21
occasional, temporary bouts of sleeplessness. See, e.g.,
Rossbach v. City of Miami, 371 F.3d 1354, 1359 (11th Cir.
2004) (holding that plaintiffs claiming they could not “sleep
normally” or get “a solid night’s sleep” failed to show a
substantial limitation); Colwell, 158 F.3d at 644 (holding that
a plaintiff who stated he “usually get[s] a tough night’s sleep”
was not substantially limited in sleeping).
Desmond has met this standard. Viewed in the light most
favorable to him, Desmond’s evidence shows that he suffered
from longstanding sleeplessness dating back to the 1997
burglary incident in Cleveland, the problem became
progressively worse over time, and his sleeplessness
continued even when he returned home to Cleveland on leave
during training. In his uncontroverted declaration, Desmond
detailed the severity and duration of his sleeplessness in the
following terms: “Prior to the issuance of orders, I was
sleeping an average of three to five hours per night. Once
orders were issued, I began to sleep only two to four hours
each night. Until I returned to Ohio on a permanent basis, I
was unable to sleep more than four hours each night, and
frequently received only two or three hours of sleep.”
Desmond Decl. ¶ 48. And Desmond further testified that
after leaving the Academy permanently he received
approximately six hours of sleep per night, i.e., one-third to
two-thirds more sleep than the two to four hours per night he
was getting for the five months he remained at the Academy
after receiving his orders. See Desmond Dep. 297. Although
he offered no medical or expert testimony chronicling his
sleeplessness, “a plaintiff’s personal testimony cannot be
inadequate to raise a genuine issue regarding his own
experience.” Haynes, 392 F.3d at 482. As for the comparison
to “the average person in the general population,” 29 C.F.R. §
1630.2(j)(1), in his opposition to the government’s motion for
summary judgment, Desmond pointed to a study showing that
22
seventy-one percent of adults get five to eight hours of sleep
per night. See Pl.’s Opp’n to Def.’s Mot. for Summ. J. 34; cf.
Harding v. Cianbro Corp., 436 F. Supp. 2d 153, 175-76 (D.
Me. 2006) (discussing same study’s finding that “only 8% of
persons surveyed slept less than five hours on weeknights and
6% slept less than five hours on weekend nights”). For its
part, the government offers no contradictory evidence.
The district court nonetheless concluded that two to four
hours of sleep per night for five months “does not on its face
necessarily qualify as a substantial limitation on the ability to
sleep.” Mem. Op. at 32. But whether Desmond’s
sleeplessness “necessarily qualif[ies]” as a substantial
limitation is beside the point on summary judgment. Id.
(emphasis added). At this stage, the only question is what a
reasonable jury could conclude. See Haynes, 392 F.3d at 485
(affirming district court’s grant of summary judgment to
employer because plaintiff’s “evidence would not have
permitted a reasonable jury to conclude that [he] was
substantially limited in a major life activity”). Without
expressing our own views on the issue, we believe that
Desmond’s evidence suffices to allow a jury to conclude that
receiving two to four hours of sleep per night for five months
constitutes a significant restriction on the ability to sleep as
compared with both his own ordinary experience and with the
average experience of the general public, and hence a
substantial limitation under the Rehabilitation Act. To be
sure, sleeping deficiencies are widespread, and a jury may
well decide that Desmond’s sleep difficulties amounted to
nothing more than those commonly experienced. But that’s a
factual question—one forming the core of Desmond’s case—
and Desmond has produced sufficient evidence to preclude
summary judgment against him on that issue. That courts
have reached conflicting conclusions in the face of similar
claims reinforces our belief that borderline cases like this turn
23
on fact questions best left to juries rather than to judges ruling
on summary judgment. Compare Head v. Glacier Nw., Inc.,
413 F.3d 1053, 1060 (9th Cir. 2005) (holding that a plaintiff
claiming to get “five or six hours a night” for “months” had
produced “sufficient evidence to preclude summary
judgment”), with Swanson v. Univ. of Cincinnati, 268 F.3d
307, 316-17 (6th Cir. 2001) (holding that inability to sleep
more than four to five hours per night did not demonstrate a
substantial limitation in the major life activity of sleeping as
compared to the average person’s ability to sleep).
In support of its contrary holding, the district court
distinguished EEOC enforcement guidance setting forth what
constitutes a substantial limitation in sleeping. Although the
guidance “does not carry the force of law and is not entitled to
any special deference,” Pack, 166 F.3d at 1305 n.5, like the
district court we think it relevant to the question before us.
The guidance includes the following discussion:
An impairment substantially limits an
individual’s ability to sleep if, due to the
impairment, his/her sleep is significantly
restricted as compared to the average person in
the general population. These limitations must
be long-term or potentially long-term as
opposed to temporary to justify a finding of
ADA disability.
For example, an individual who sleeps
only a negligible amount . . . for many months,
due to post-traumatic stress disorder, would be
significantly restricted as compared to the
average person in the general population and
therefore would be substantially limited in
sleeping. Similarly, an individual who for
24
several months typically slept about two to
three hours per night . . . due to depression,
also would be substantially limited in sleeping.
By contrast, an individual would not be
substantially limited in sleeping if s/he had
some trouble getting to sleep or sometimes
slept fitfully because of a mental impairment.
Although this individual may be slightly
restricted in sleeping, s/he is not significantly
restricted as compared to the average person in
the general population.
EEOC Enforcement Guidance on the Americans with
Disabilities Act and Psychiatric Disabilities add. ¶ 11 (2000)
(emphasis added) (footnotes omitted), available at
http://www.eeoc.gov/policy/docs/psych.html. Faced with this
language, the district court drew a distinction between
“negligible amount[s]” of sleep and “two to three hours per
night,” reasoning that individuals suffering from PTSD must
show they receive only a “negligible amount,” which must be
less than the “two to three hours per night” deemed a
sufficient showing for individuals suffering from depression.
See Mem. Op. at 35. But we see no reason why a lack of
sleep caused by PTSD would require a stronger showing than
a lack of sleep caused by depression. As we read the
guidance, the EEOC’s specific reference to “two to three
hours” sheds light on the more general reference to a
“negligible amount” of sleep, a reading confirmed by the
EEOC’s use of the word “[s]imilarly” when comparing the
two impairments. Id. The guidance also makes clear that the
relevant time frame for determining a substantial limitation in
sleep is measured in months, not years. We thus agree with
Desmond that to the extent the EEOC enforcement guidance
is relevant, it supports his position that a reasonable jury
25
could conclude that an individual whose impairment causes
him to sleep only two to four hours per night for five months
is substantially limited in the major life activity of sleeping.
The government’s arguments to the contrary are
unpersuasive. In its brief, the government contends that
Desmond’s alleged sleeplessness could not possibly amount
to a substantial limitation because, in the government’s view,
it had no discernable effect on Desmond’s performance at the
Academy or on his work life in general. Thus, according to
the government, because Desmond himself admitted that he
“was still performing at a high level despite . . . the
sleeplessness,” Desmond Dep. 298, Desmond’s PTSD fails as
a matter of law to qualify as a substantially limiting
impairment. At oral argument, however, government counsel
seemed to reformulate this argument, suggesting that to claim
the Act’s protection a plaintiff alleging a substantial limitation
in sleeping must show some effect on his waking activities.
See Squibb v. Mem’l Med. Ctr., 497 F.3d 775, 784 (7th Cir.
2007) (finding evidence insufficient to preclude summary
judgment when the plaintiff’s allegations were “unenhanced
by claims that [a] lack of sleep affect[ed] her daytime
functions”); Haynes, 392 F.3d at 486 (Williams, J.,
concurring) (suggesting that “the only way to answer the
question whether the impairment substantially limit[s] [a
plaintiff]’s sleep would be by reference to the effects on his
waking life activities” (internal quotation marks omitted)).
Desmond disagrees, arguing that he “need not demonstrate
that his sleep impairment affects his ability to work or to do
anything else other than sleep, just as a deaf individual need
not demonstrate that his impairment affects his ability to work
or do anything other than hear in order to be considered
disabled.” Appellant’s Opening Br. 20 n.3. We agree with
Desmond that the government reads more into the statute than
Congress put there.
26
As the Supreme Court observed in Bragdon, Congress
did not “intend[] the ADA only to cover those aspects of a
person’s life which have a public, economic, or daily
character.” 524 U.S. at 638. Indeed, nothing in the statute
suggests that to claim the Act’s protection a plaintiff like
Desmond must demonstrate that his impairment affects his
work performance in some way or has an ancillary effect on
his waking life in general. Rather, to qualify as disabled
under the first part of the statute’s disability definition, the
Act requires only that a plaintiff show that he suffers from an
impairment that substantially limits him in a major life
activity. Here, Desmond alleges that his PTSD substantially
limits his ability to sleep and has provided enough evidence to
allow a reasonable jury to agree. But the government
demands more—it wants Desmond to show that his alleged
impairment limits other life activities as well. At oral
argument, for example, government counsel suggested that
Desmond’s case would have proved more compelling if he
could have shown that his sleeplessness caused him to “fall
asleep when . . . trying to eat so [he] can’t eat a proper meal,”
Oral Arg. at 19:40-:52, or had a negative “effect on [his] work
life,” id. at 18:10-:35. But Desmond has alleged no limitation
on eating or working. The only major life activity he claims
his PTSD limits substantially is sleeping, and neither the
statute nor the regulations interpreting it include any
indication that the major life activity of sleeping is
substantially limited only if some other life activity is also
limited.
The following hypothetical demonstrates the flaw in the
government’s interpretation of the Act. Suppose an
individual uses a wheelchair but performs her desk job
perfectly and without needing an accommodation of any sort.
Now imagine the employee’s new manager finds having her
in the office depressing and a drain on morale. The manager
27
concocts a performance-related reason for terminating the
employee and fires her. Were the government correct that
plaintiffs must show the alleged impairment has some effect
on work, that individual would have no cause of action under
the Rehabilitation Act. True, she may be substantially limited
in the major life activity of walking, but the impairment has
no effect at all on her work life. For obvious reasons, leaving
such a plaintiff without a remedy would run completely
counter to Congress’s aim of protecting disabled individuals
from employment discrimination.
To be sure, the alleged limitation’s effect in the
workplace may become relevant if the employee requests a
reasonable accommodation. See, e.g., Squibb, 497 F.3d at
785 (“[T]o the extent an ADA discrimination claim centers on
a request for a workplace accommodation, there must be
some causal connection between the major life activity that is
limited and the accommodation sought.”); Nuzum v. Ozark
Auto. Distribs., Inc., 432 F.3d 839, 848 (8th Cir. 2005)
(explaining that unlike in discrimination cases where
plaintiffs seek “equal treatment in public accommodations,”
when plaintiffs seek workplace accommodations, the
“accommodation must be related to the limitation that
rendered the person disabled”). For example, if the
hypothetical wheelchair-user needed access to an upstairs
restroom, the statute would require the court to determine
whether such an accommodation was reasonable. See Barth
v. Gelb, 2 F.3d 1180, 1183 (D.C. Cir. 1993) (explaining that
the Rehabilitation Act requires the government to “take
reasonable affirmative steps to accommodate the
handicapped, except where undue hardship would result”).
But Desmond requested no accommodation. Rather, he
alleges pure discrimination on the basis of a mental disability.
As Desmond sees it, he was on track to graduate from the
Academy, FBI officials discovered he had PTSD, his
28
treatment at the Academy changed immediately, and he was
ultimately discharged for pretextual reasons. So long as
Desmond’s alleged impairment meets the statutory definition
of disability, he may seek the Act’s protection.
In any event, even if the government were correct that
Desmond must show some negative effect on his waking life
to satisfy the Act’s substantial limitation requirement, the
record demonstrates that he has done so. Desmond asserts
that because of his “severe difficulties sleeping while at the
Academy [he] was often extremely tired during the day” and
therefore unable “to participate in social activities in the
evening.” Desmond Decl. ¶ 50. As Desmond further
explains, “the fatigue from which I suffered, and my
generally quiet nature, made me more reserved and
introspective than I would have been otherwise” and “as the
symptoms of my PTSD grew worse, including the
sleeplessness, I was often tired and less apt to socialize.” Id.
¶¶ 50, 137. This factual assertion takes on particular
significance in the context of this case because one of the
FBI’s professed reasons for Desmond’s termination was his
alleged sulking manner and unwillingness to socialize with
his peers. For example, Cochran’s memorandum to
Higginbotham reported that classmates called Desmond a
“sad sack,” “droopy,” and “quiet and depressed,” noting his
tendency to “sit[] alone” while his classmates gathered
elsewhere. See Memorandum from James Cochran to Jeffrey
Higginbotham 5, 7. In deposition testimony, Cochran
admitted to “serious concerns” with Desmond’s “emotional
maturity . . . in terms of his withdrawn nature.” Cochran Dep.
231. Similarly, Higginbotham testified that he understood
Desmond to be “a sad to despondent, somewhat withdrawn
person,” Higginbotham Dep. 50, and Higginbotham’s
memorandum to FBI headquarters stated that Desmond
“chose to separate himself from the social environment and
29
support of his class.” Memorandum from Jeffrey
Higginbotham to William Welby 5. According to Desmond,
this social withdrawal was directly tied to his PTSD-related
sleeplessness. Asked during his deposition how PTSD
affected him during training, Desmond replied, “according to
Mr. Cochran and everyone else it manifested its[elf] . . . by
my withdrawal from everyone, and I can’t say I disagree.”
Desmond Dep. 301. Thus, even if sleep should be analyzed
differently from other major life activities—and the statute
gives us no reason to think that it should—Desmond has
alleged that his sleeplessness had a meaningful effect on his
waking life, one that the FBI cited as a reason to dismiss him.
Next, the government argues that Desmond’s alleged
sleeping problems cannot amount to a substantial limitation
because they were tied to a specific geographic location. This
argument rests on Desmond’s statement that, “[u]ntil I
returned to Ohio on a permanent basis, I was unable to sleep
more than four hours each night, and frequently received only
two or three hours of sleep.” Desmond Decl. ¶ 48 (emphasis
added). As the government sees it, Desmond’s sleeplessness
abated when he returned home to Ohio, rendering it merely a
temporary problem rather than a substantial limitation. For
support, the government relies on Haynes, an ADA case in
which we held that “[i]f the impact of an impairment can be
eliminated by changing the address at which an individual
works, that impairment is neither permanent nor long term.”
Haynes, 392 F.3d at 483.
Haynes differs from this case. To begin with, here the
record includes evidence that Desmond’s sleep problems
persisted even when he was on leave from training in Ohio.
See Sarah Desmond Decl. ¶ 8. And in any event, Haynes
involved an employee whose alleged impairment, idiopathic
pruritus, caused extreme itching that limited his ability to
30
sleep, and some allergen inside the plaintiff’s office building
triggered the symptoms. 392 F.3d at 480. We held that
Haynes was not substantially limited in sleeping, explaining
that he “could have avoided the itching that seriously affected
his sleep simply by working at a different location.” Id. at
483. “[W]ere 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 reasoned, “we would
transform the ADA into an occupational safety and health
statute.” Id. Desmond’s alleged sleeplessness has little in
common with Haynes’s, whose “inability to sleep derived
from his reaction to the building in which he worked.” Id. at
484. According to Desmond’s affidavit, his sleeplessness
began in Ohio after the 1997 burglary, followed him to
Quantico, Virginia, and remained with him even while on
leave in Ohio. Although it’s possible Desmond could have
ameliorated his PTSD-induced sleeplessness by quitting the
Academy and moving back to Ohio, in Haynes we expressly
distinguished EEOC v. United Parcel Service, Inc., 249 F.3d
557 (6th Cir. 2001) (“UPS”), where the plaintiff “could have
obtained relief” from his symptoms “by moving out of the
geographic area in which he lived.” Haynes, 392 F.3d at 483
(discussing UPS, 249 F.3d at 562-63). Desmond’s alleged
impairment has more in common with UPS, in which the
court found a substantial limitation, than it does with Haynes,
where we found no actionable disability.
“Regarded as” Claims
We turn briefly to Desmond’s claims that the FBI
“regarded” him as having a substantial limitation in a major
life activity, rendering him disabled under the Act’s third
disability definition. See 29 U.S.C. § 705(20)(B)(iii).
Desmond argues that the FBI regarded him as substantially
limited in his ability to work and to interact with others. This
circuit has yet to decide whether either of these activities
31
qualifies as a major life activity for purposes of the
Rehabilitation Act or the ADA. See Gasser v. District of
Columbia, 442 F.3d 758, 763 n.7 (D.C. Cir. 2006) (assuming,
without deciding, that “working” constitutes a major life
activity). But assuming for the purposes of argument that
they do so qualify, we affirm the district court’s conclusions
that Desmond failed to present sufficient evidence that the
FBI regarded him as substantially limited in either of them.
First, “to be regarded as substantially limited in the major
life activity of working, one must be regarded as precluded
from more than a particular job.” Murphy v. United Parcel
Serv., Inc., 527 U.S. 516, 523 (1999) (assuming arguendo that
working qualifies as a major life activity); see also Sutton,
527 U.S. at 492 (making same assumption and holding that
“[t]o be substantially limited in the major life activity of
working . . . one must be precluded from more than one type
of job, a specialized job, or a particular job of choice”). Here
the district court correctly concluded that Desmond presented
“no evidence that the FBI considered [him] to be unsuitable
for any position other than FBI Special Agent, which is a
specific position rather than a class or broad range of jobs.”
Mem. Op. at 40. Indeed, Varnum’s letter dismissing
Desmond from the FBI Academy concluded: “Most
important, your superiors and I are concerned about your
safety and ability to deal with difficult and potentially
dangerous situations that you will confront as an Agent in the
field.” Letter from Michael Varnum to Martin Desmond 2-3
(Nov. 6, 2000) (emphasis added); see also Giordano v. City of
New York, 274 F.3d 740, 749 (2d Cir. 2001) (finding
summary judgment appropriate when a police officer
presented “no evidence from which [the court] [could] infer
that the [police department] thought, or had grounds for
thinking, that other jobs in the public or private sector . . .
32
carry the same nature or degree of risk” as the job plaintiff
had been denied).
Second, Desmond cannot meet the standard that his own
brief proposes for showing a substantial limitation in one’s
ability to interact with others. Borrowing the standard from
the Second Circuit’s opinion in Jacques v. DiMazrio, Inc.,
386 F.3d 192 (2d Cir. 2004), Desmond suggests:
[A] plaintiff is “substantially limited” in
“interacting with others” when the mental or
physical impairment severely limits the
fundamental ability to communicate with others.
This standard is satisfied when the impairment
severely limits the plaintiff’s ability to connect
with others, i.e., to initiate contact with other
people and respond to them, or to go among
other people—at the most basic level of these
activities. The standard is not satisfied by a
plaintiff whose basic ability to communicate
with others is not substantially limited but
whose communication is inappropriate,
ineffective, or unsuccessful.
Id. at 203. Pointing to evidence that various FBI officials or
colleagues referred to him as “depressed,” “melancholy,”
“sulking,” a “sad sack,” and so on—along with passing
references by FBI officials suggesting that Desmond might be
a danger to himself or others—Desmond contends that the
FBI regarded him as “severely limit[ed] [in] the fundamental
ability to communicate with others.” Id.
We disagree. No record evidence suggests that anyone
believed Desmond was unable to “initiate contact with other
people and respond to them, or . . . go among other people—
33
at the most basic level of these activities.” Id. Rather, the
record reveals that, if anything, Desmond’s superiors simply
thought his “communication [was] inappropriate, ineffective,
or unsuccessful.” Id. As for Desmond’s argument that FBI
officials thought he was homicidal or suicidal, we agree with
the district court that no reasonable jury could find that to be
the case based on the fleeting references in the record.
Pretext
Although Desmond failed to present sufficient evidence
supporting his “regarded as” claims, he did present enough
evidence to survive summary judgment under the Act’s first
disability definition: a reasonable jury could conclude that he
had an impairment (PTSD) that substantially limited a major
life activity (sleeping). Desmond acknowledges that the
government has articulated legitimate, non-discriminatory
reasons for his dismissal, namely, that he lacked the
cooperativeness and emotional maturity required by FBI
training standards. Therefore, “the sole remaining issue [is]
discrimination vel non.” Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 142-43 (2000) (citations and
internal quotation marks omitted); see also U.S. Postal Serv.
Bd. of Governors v. Aikens, 460 U.S. 711, 714-16 (1983).
Accordingly, “to survive summary judgment the plaintiff
must show that a reasonable jury could conclude from all of
the evidence that the adverse employment decision was made
for a discriminatory reason.” Lathram v. Snow, 336 F.3d
1085, 1088 (D.C. Cir. 2003). A plaintiff may attempt to carry
this burden, as Desmond has, by presenting enough evidence
to allow a reasonable trier of fact to conclude that “the
employer’s proffered explanation is unworthy of credence,”
Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256
(1981), and merely a “pretext for discrimination.” Paquin v.
Fed. Nat’l Mortgage Ass’n, 119 F.3d 23, 27-28 (D.C. Cir.
1997).
34
The district court found Desmond’s pretext evidence
insufficient, explaining that he had failed to “directly
persuade the Court that Defendant was motivated by
discrimination related to Plaintiff’s PTSD.” Mem. Op. at 47.
In reaching this conclusion, the district court said that it
“finds it reasonable to believe that Plaintiff’s numerous
transfer requests are worthy of credence as one of a number
of reasons for the adverse employment actions against him”
and “gives full credence to [the FBI]’s concerns regarding
[Desmond]’s judgment in addition to concerns regarding his
commitment to the FBI Special Agent program based on the
placement of [the resignation] letter.” Id. at 47-48.
At this stage of the litigation, however, Desmond had no
obligation to “directly persuade” the district court that the
FBI took action against him because of his PTSD—he had
only to present enough evidence to allow a reasonable jury to
so conclude. As we recently reiterated in George v. Leavitt,
“at the summary judgment stage, a judge may not make
credibility determinations, weigh the evidence, or draw
inferences from the facts—these are jury functions, not those
of a judge ruling on a motion for summary judgment.” 407
F.3d 405, 413 (D.C. Cir. 2005).
George, a Title VII case, provides particularly useful
guidance. There, an African American employee complained
of race discrimination by EPA officials, and as here, the
agency claimed she was fired for “conduct and performance
deficiencies.” Id. at 414. We held that by “vigorously
disput[ing] the validity of the reasons cited by EPA,” the
plaintiff had “creat[ed] a genuine dispute over these material
facts” and had “proffered ample evidence by which a
reasonable jury could conclude that EPA’s stated reasons
[we]re ‘unworthy of credence.’” Id. at 413 (quoting Burdine,
450 U.S. at 256).
35
So too here. Desmond “vigorously disputes the validity
of the reasons cited by [the FBI]” for his dismissal. Id. For
example, Varnum’s dismissal letter accused Desmond of
displaying a lax work ethic while serving as a switchboard
operator, citing instances where he left his post for lengthy
periods, played computer solitaire, and engaged in private
conversations. Desmond offers evidence explaining each of
the incidents underlying this allegation, stating that he left his
post only once—with Trott’s express permission—to meet
with Dr. Davis, played computer games only when allowed to
do so due to low call volume, and always answered calls
promptly. Desmond Decl. ¶ 126. Varnum’s letter also stated
that Desmond failed to handle his Chicago assignment
maturely, pointing out that he “contacted the Transfer Unit,
FBI HQ, and Academy staff repeatedly in an attempt to have
[his] transfer orders amended and [was] advised each time
that [his] assignment to the Chicago division would not be
changed.” Letter from Michael E. Varnum to Martin P.
Desmond 2. Again, Desmond has a perfectly plausible
response. He says he was on friendly terms with the transfer
unit officer, John Jacobs, and sent him a few informal emails
checking on various ways to secure a transfer to Cleveland.
Record evidence supports Desmond’s account, see Jacobs
Dep. 37-38, and indeed, no FBI official ever told Desmond
that his attempts at arranging a Cleveland transfer were either
inappropriate or violated FBI protocol, see Cochran Dep. 32-
33, 107. Finally, the FBI placed great weight on the incident
involving Desmond’s putative “resignation letter.” But
Desmond insists that, following his EAP counselor’s advice,
he wrote this letter in a therapeutic attempt to vent his
emotions and consistently reaffirmed his commitment to the
FBI. Given Desmond’s explanations, whether the FBI’s
reasons for dismissing him are unworthy of credence is for a
jury to determine.
36
Of course, “a plaintiff who creates a genuine issue of
material fact as to whether the employer has given the real
reason for its employment decision will [not] always be
deemed to have presented enough evidence to survive
summary judgment.” Aka v. Wash. Hosp. Ctr., 156 F.3d
1284, 1290 (D.C. Cir. 1998) (en banc). Indeed, “there will be
instances where . . . the plaintiff has . . . set forth sufficient
evidence to reject the defendant’s explanation, [yet] no
rational factfinder could conclude that the action was
discriminatory.” Reeves, 530 U.S. at 148. For example, it
will not do for the plaintiff to show that the employer’s stated
reason was false if the employer believed it in good faith; the
plaintiff must establish a basis to conclude that the employer
has lied about the reason or, more directly, that the reason
was discriminatory. Brady v. Office of the Sergeant at Arms,
520 F.3d 490, 495 (D.C. Cir. 2008).
This, however, is not such a case. Read in Desmond’s
favor, the evidence supports his claim that FBI officials began
treating him in a markedly different manner only after
learning of his PTSD diagnosis. Furthermore, as in George
the record includes evidence that Desmond performed well at
the FBI and was respected by many of his peers. See George,
407 F.3d at 414. One classmate extolled Desmond as “one of
the most capable individuals in our class,” adding “never . . .
did I feel that he had a poor attitude toward the job or that it
would be inappropriate for [him] to be in a law enforcement
position.” Email from William B. Shute to Jeffrey
Higginbotham (Oct. 4, 2000). Another classmate called
Desmond a “team player” and said that she “wouldn’t think
twice about going through a door with him.” Email from
Kera E. Wulbert to Jeffrey Higginbotham (Oct. 4, 2000).
Moreover, like the plaintiff in George, Desmond’s mid-
course interview—which took place after he received his
Chicago assignment—revealed not a single problem or
37
complaint about his behavior or performance. See George,
407 F.3d at 414.
In addition, Desmond points to evidence from which a
jury could infer discriminatory motivation on the part of the
FBI. According to Dr. Davis, Higginbotham harbored
concerns that “Desmond continued to suffer from some sort
of psychological impairment[] that would affect his abilities
going forward” as a special agent. Davis Dep. 144. And
even though Dr. Davis told Higginbotham that she believed
Desmond was experiencing symptoms related to trauma and
that a certain treatment technique could reduce those
symptoms—information Higginbotham says he granted
“substantial weight”—Higginbotham nonetheless declined to
pass this information on to his superiors even though he knew
his memorandum recommending Desmond’s dismissal was
“still pending at FBI headquarters” and that he “ha[d] the
prerogative to call up and say I’ve changed my mind.”
Higginbotham Dep. 210, 213. In sum, as in George, “[t]here
is nothing to indicate that [Desmond]’s assessment is either
incredible or fanciful. Indeed, [his] performance evaluation
and some of the statements from other employees support
[him]. Therefore, there is a genuine issue as to [his]
performance and conduct.” 407 F.3d at 414.
We can easily dispose of the government’s arguments to
the contrary. In its brief defense of the district court’s pretext
holding, the government maintains that Desmond’s
characterizations of the FBI’s reasons for his dismissal are
“self-serving.” Appellees’ Br. 32. That may be, but as
George points out, “there is no rule of law that the testimony
of a discrimination plaintiff, standing alone, can never make
out a case of discrimination that could withstand a summary
judgment motion.” George, 407 F.3d at 414 (quoting Weldon
v. Kraft, Inc., 896 F.2d 793, 800 (3d Cir. 1990)). Next,
38
echoing the district court, the government contends that
Desmond’s explanations are “unpersuasive.” Appellees’ Br.
32. That too may be, but that’s for a jury to decide. As in
George, “[a]lthough a jury may ultimately decide to credit the
version of the events described by [the FBI] over that offered
by [Desmond], this is not a basis upon which a court may rest
in granting a motion for summary judgment.” 407 F.3d at
413. Accordingly, because Desmond presented enough
evidence to persuade a reasonable trier of fact that the FBI’s
proffered reasons for his dismissal were pretextual, we
reverse the district court’s grant of summary judgment to the
FBI on Desmond’s disability discrimination claim.
III.
We turn finally to Desmond’s retaliation claim. As
recounted above, Desmond alleged that Higginbotham said he
would have let Desmond graduate had Desmond not filed an
EEO complaint. Higginbotham denied saying any such thing,
creating the factual dispute that allowed the retaliation claim
to proceed to a jury. At trial, Higginbotham admitted that he
declined to send up the chain of command the additional
supportive emails Desmond had solicited, or to include a
reference to Dr. Davis’s support for Desmond’s graduation.
See Trial Tr. at 817, 848-50 (Feb. 22, 2007). And Deputy
Administrator Michael Varnum, who relied entirely on the
materials sent to him when deciding Desmond’s fate, later
testified that “any information, whether it came from Dr.
Davis or someone else, I would have wanted to see.” Trial
Tr. at 1131 (Feb. 26, 2007). Desmond argued that
Higginbotham’s omissions were retaliatory in nature and
could well have doomed his chances of salvaging his career
as a special agent. The jury, however, thought otherwise and
found for the FBI.
39
Desmond now challenges two district court rulings.
First, he claims that the district court improperly admitted into
evidence the “Cochran report,” the 112-page document
Cochran compiled during his suitability inquiry chronicling
Desmond’s alleged failures, infractions, and indiscretions at
the Academy. According to Desmond, the Cochran report
had no probative value, yet risked biasing the jury against him
by providing a catalogue of his supposed inadequacies as an
FBI trainee, rendering it inadmissible under Federal Rule of
Evidence 403. See FED. R. EVID. 403 (“[E]vidence may be
excluded if its probative value is substantially outweighed by
the danger of unfair prejudice, confusion of the issues, or
misleading the jury . . . .”). For its part, the government
maintains that the district court’s “attentiveness to the context
in which it admitted the Cochran Report and its repeated
instructions to the jury concerning how it was to be
considered were amply within the District Court’s discretion
and free of legal error.” Appellees’ Br. 34. Reviewing the
district court’s evidentiary ruling for abuse of discretion,
United States v. Lawson, 494 F.3d 1046, 1052 (D.C. Cir.
2007), we agree with the government.
To begin with, the report’s probative value is obvious: it
shows what information Higginbotham had before him when
he made his initial decision regarding Desmond. Desmond’s
retaliation claim turns on the allegation that Higginbotham
received enough positive information about Desmond’s
performance and character that he would have changed his
mind, let Desmond graduate, and withdrawn his
recommendation of dismissal—if only Desmond had never
filed an EEO complaint. Thus, to decide whether
Higginbotham had retaliated against Desmond, the jury had to
compare the information Higginbotham had before him when
he made his decision with what he received later. Or, as
defense counsel put it during a pretrial conference, the jury
40
would need to be able to decide if it was “reasonable to
believe that [Higginbotham] would have discounted the
Cochran Report based on the information that came in.”
Pretrial Conf. Tr. at 23 (Nov. 16, 2006).
As for the risk of unfair prejudice, the district court
recognized the possible dangers inherent in presenting the
jury with a wide-ranging compilation of Desmond’s foibles at
the Academy. After hearing argument from counsel on the
issue over the course of two lengthy pretrial conferences, the
district court carefully structured the report’s admission to
minimize any risks. First, it refused to admit the report for
the truth of its substance, ruling instead that it was “only
offered to show what information Mr. Higginbotham had and
. . . relied on.” Second Pretrial Conf. Tr. at 141 (Feb. 6,
2007). Second, seeking to avoid mini-trials over every
incident leading up to Desmond’s eventual dismissal, the
district court forbade either side from bolstering or attacking
anything in the report, expressly warning the government not
to “get into too much detail about all of the individual
events,” and cautioning that if it “cross[ed] the line, then it
may open the door” to rebuttal evidence. Pretrial Conf. Tr. at
24-25. Third, the district court repeatedly admonished the
jury to consider the report solely for the limited purpose of
showing Higginbotham’s reliance, instructing: “You’re not to
speculate about whether the report is true or not. You should
consider the report by Mr. Cochran only for the fact that Mr.
Higginbotham received it and relied on it in drafting his own
report which he sent forward to headquarters.” Trial Tr. at
910 (Feb. 23, 2007). Thus, the district court skillfully kept
the trial—and the jury—focused on events occurring after
Desmond filed his EEO complaint, striking a balance between
providing the jury with the information it needed and
protecting Desmond from the risk of unfair prejudice. This
approach was sensible and well within the district court’s
41
discretion. Cf. United States v. DeLoach, 654 F.2d 763, 770
(D.C. Cir. 1980) (finding no abuse of discretion where,
“[a]lthough the possibility of unfair prejudice was real, . . .
the district court made its decision to admit after argument . . .
and gave the jury a proper limiting instruction”).
Desmond’s second challenge concerns the jury
instructions and verdict form, which was structured as a
general verdict with interrogatories. The form first asked the
jury to state whether it found “that Defendant intentionally
retaliated against Martin Desmond.” If and only if the jury
answered that question “yes” was the jury to answer two
specific questions designed to elicit the basis of its finding.
Desmond asked the district court to pose to the jury a
separate interrogatory for each of five distinct adverse
employment actions, any or all of which could have reflected
unlawful retaliatory animus: (1) Higginbotham’s decision to
forward to FBI headquarters his September 28 report
recommending Desmond’s termination, even though
Higginbotham had received contrary information regarding
Desmond’s suitability; (2) Higginbotham’s failure to transmit
to headquarters the pro-Desmond evidence he had received,
when that evidence may have altered Varnum’s ultimate
decision; (3) Higginbotham’s refusal to withdraw his report
after receiving Desmond’s contrary evidence, which,
according to Higginbotham’s testimony, probably would have
led to the matter being dropped; (4) Higginbotham’s decision
to forbid Desmond from graduating; and (5) the FBI’s
ultimate decision to dismiss Desmond from the special agent
program. The district court held that because only the last
two actions qualified as “materially adverse,” only they
would be included on the verdict form. Order, Desmond v.
Gonzales, No. 03-1729 (D.D.C. Feb. 28, 2007). The first
three proposed actions, the court reasoned, “may demonstrate
42
retaliatory animus or be used by Plaintiff to demonstrate
causality, but are not materially adverse actions in and of
themselves.” Id. at 2. Challenging this ruling, Desmond
argues that under Burlington Northern & Santa Fe Railway
Co. v. White, 126 S. Ct. 2405 (2006), which defines
“materially adverse” employment actions as actions that “well
might have dissuaded a reasonable worker from making or
supporting a charge of discrimination,” id. at 2415 (citation
omitted), all five of his proposed adverse actions should have
been offered to the jury and included on the verdict form.
We need not decide whether the district court erred in
crafting the interrogatories on the verdict form, for any error
would have been harmless. See FED. R. CIV. P. 61; Joy v. Bell
Helicopter Textron, Inc., 999 F.2d 549, 559 (D.C. Cir. 1993)
(applying harmless error rule to challenges over jury
instructions). The district court instructed the jury that “[a]n
action is an adverse action if it is harmful to the point that it
could have dissuaded a reasonable employee from making or
filing a charge of discrimination.” Trial Tr. at 1808 (Mar. 1,
2007). The verdict form asked jurors if they found “that
Defendant intentionally retaliated against Martin Desmond.”
Verdict Form (Mar. 2, 2007). Having heard and considered
evidence relating to all aspects of Higginbotham’s alleged
retaliation, the jury answered that broad question in the
negative. In doing so, it must have concluded that none of the
underlying actions was retaliatory. We doubt that parsing the
jury instructions to include every aspect of Higginbotham’s
alleged retaliation would have influenced the outcome one
way or another, for the question as phrased subsumed each of
Higginbotham’s individual acts.
IV.
Because no error affected the trial concerning Desmond’s
retaliation claim, we affirm the district court’s judgment on
43
the verdict. But because Desmond presented enough
evidence to allow a reasonable jury to conclude that (1) he
had an impairment that substantially limited him in the major
life activity of sleeping and (2) the FBI’s professed reasons
for dismissing him from the FBI Academy were pretexts for
discrimination, we reverse the grant of summary judgment to
the FBI on Desmond’s disability claim and remand for further
proceedings consistent with this opinion.
So ordered.