Desmond v. Mukasey, 07-5139.

Citation530 F.3d 944
Decision Date01 July 2008
Docket NumberNo. 07-5139.,07-5139.
PartiesMartin DESMOND, Appellant v. Michael B. MUKASEY, U.S. Attorney General, U.S. Department of Justice, and Federal Bureau of Investigation, Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

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.

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.

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 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 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 ... 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...

To continue reading

Request your trial
120 cases
  • Cornish v. Dudas ., Civil Action No. 07-1719 (RWR).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • 4 Junio 2010
    ...of the impairment the person has, but rather on the effect of that impairment on the life of the individual.” Desmond v. Mukasey, 530 F.3d 944, 955 (D.C.Cir.2008) (internal quotation marks omitted). “An individualized assessment of the effect of an impairment is particularly necessary when ......
  • Johnson v. District of Columbia
    • United States
    • United States District Courts. United States District Court (Columbia)
    • 21 Agosto 2008
    ...as major life activities.6 See Toyota, 534 U.S. at 197, 122 S.Ct. 681 (holding that seeing is a major life activity); Desmond v. Mukasey, 530 F.3d 944, 953-55 (D.C.Cir.2008) (holding that sleeping is a major life activity). The only real dispute, then, is whether he has adequately alleged t......
  • Montgomery v. Risen, Civil Action No.: 16-0126 (RC)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • 15 Julio 2016
    ...it is ordinarily the role of the jury—not the court on summary judgment—to discount it accordingly"); see also Desmond v. Mukasey , 530 F.3d 944, 965 (D.C.Cir.2008). Yet, in other circumstances, a witness may lack personal knowledge concerning the matter about which he attempts to offer tes......
  • Adams v. Rice, 07-5101.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 18 Julio 2008
    ...basic abilities as walking, seeing, and hearing" easily qualify, Toyota, 534 U.S. at 197, 122 S.Ct. 681; see also Desmond v. Mukasey, 530 F.3d 944, 946-48 (D.C.Cir.2008) (recognizing sleeping as a major life activity), activities that lack "central importance to most people's daily lives" w......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT