Sleep Impairment a Disability Under Rehabilitation Act
On July 1, 2008, the U.S. Court of Appeals for the District of Columbia Circuit issued its decision in Desmond v. Mukasey, Case No. 07-5139. Reversing a decision on summary judgment by the district court, the D.C. Circuit held the claim that sleep disruption constitutes a disability under the Rehabilitation Act sufficiently meritorious as to survive summary judgment.
Desmond, the appellant, was an Ohio native who applied for the position of FBI Special Agent in December 1996. Desmond took a clerical job in the FBI’s Cleveland office while his Special Agent application went through processing. In December 1997, Desmond was held at gunpoint in his home for an hour by the so-called “Tommy Hilfiger rapist,” who robbed the house and repeatedly threatened to murder Desmond and rape Desmond’s mother. Desmond escaped and ultimately helped the police catch the perpetrator. However, from this incident, Desmond developed symptoms of what would eventually be diagnosed as Post-Traumatic Stress Disorder (PTSD), which limited Desmond to only 3-5 hours of sleep per night, as well as irrational anxiety for his mother’s wellbeing.
The FBI offered Desmond an appointment to a Special Agent position, and he was to enter training in February 2000. As part of the appointment, Desmond agreed to accept assignment to any FBI field office and acknowledged that no transfers would be made for personal reasons. During training, Desmond pursued all permitted avenues to ensure that he would be assigned to the Cleveland field office, ultimately to no avail—he was assigned to the Chicago field office two months prior to graduation. After receiving his orders, Desmond’s sleeplessness increased, such that he was only sleeping 2-4 hours per night, primarily based on anxiety related to impending separation from his mother.
The day before graduation, FBI managers decided not to permit Desmond to graduate pending a “suitability investigation” to be conducted by his training officer who had compiled a dossier denigrating Desmond’s ability to perform. At the same time, the chief employee assistance program psychologist examined Desmond, finding that Desmond’s PTSD was treatable and that Desmond would be able to perform. The psychologist’s report was removed from the package of materials forwarded on to senior management in deciding the fate of Desmond. Although management initially decided to dismiss Desmond, they ultimately opted instead to deny Desmond a Special Agent position and to offer him a return to his old clerical post in Cleveland. Desmond resigned instead.
After exhausting administrative remedies, Desmond filed suit in federal district court, claiming disability discrimination under the Rehabilitation Act. Desmond alleged that he was “disabled” within the meaning of the Rehabilitation Act because PTSD interfered with his ability to sleep, which he contended constituted a “major life activity.” Desmond argued in the alternative that FBI managers regarded him as disabled, and separately claimed reprisal for protected EEO activity. The District Court granted summary judgment on Desmond’s discrimination claim; the retaliation claim went the jury who found in favor of the FBI.
On appeal, the D.C. Circuit reversed as to the “actual disability” discrimination claim, but affirmed the decisions below as to retaliation and as to “regarded as disabled” discrimination. The D.C. Circuit held that “sleep” is a major life activity, and its impairment potentially constituting a “disability” under the Rehabilitation Act. The D.C. Circuit reversed the district court’s holding that limitation to 2-4 hours of sleep per night could not constitute a “substantial limitation” on sleep, finding the level of impairment sufficient to constitute a question of fact for the jury. The D.C. Circuit rejected the argument that a “substantial limitation” in sleep was only limited to circumstances where lack of sleep affected waking life and waking work performance, noting that the limitation to sleep itself was sufficient in the context of “actual disability” discrimination (as opposed to a reasonable accommodation situation). The D.C. Circuit also held that Desmond’s limitation was not limited to a specific geographic location (and thus not “substantial”), noting that sleeplessness persisted even when Desmond returned to Ohio while on leave.