Haynes, Charles v. Williams, Anthony

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.