Desmond v. Mukasey

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.

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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.

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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

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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

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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

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. . . 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

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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.

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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

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“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

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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

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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

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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.