Today, we have back-to-back Rehabilitation Act claims, both concerning mental disabilities — the toughest nut to crack in the disabilities field — and both reversing summary judgment decisions against plaintiffs. The first is a case from the Sixth Circuit: a “record-of” hiring case about an interview for a truck driver position that came to an abrupt end when the applicant was asked about medications. The second, about an FBI trainee who was dismissed from the academy, addresses the nifty question of whether and when “sleeping” may constitute a “major life activity.”
Doe v. The Salvation Army, No. 07-3822 (6th Cir. July 1, 2008): This opinion analyzes (with dispatch) a claim that the Salvation Army refused not hire the plaintiff — whom it interviewed to work as a truck driver — because he had a record of paranoid schizophrenia disorder, apparently under control with medication. According to the summary judgment record, the interview went rather poorly:
Snider [supervisor of the Salvation Army’s Adult Rehabilitation Center] instructed Doe to fill out an application and explained that the part-time job that was available required three eight-hour days per week and paid $7.00 per hour. Doe responded that he could not work on Fridays because, ‘[he] had to see [his] doctor, and . . . pick up [his] medicine.’ Snider asked Doe ‘what kind of medication’ he took, and Doe responded, ‘psychotropic medicine.’ According to Doe, at that point, Snider ‘stopped the interview and said that his insurance would not cover me.’ Doe offered to obtain a letter from his doctor, but Snider refused to reconsider.”
Although this rather sounds like an ERISA § 510 discrimination case, the plaintiff brought suit under the Rehabilitation Act and state law (the latter claim was dropped on appeal).
The Sixth Circuit reversed summary judgment on two points. First, the district court had misanalyzed the case as concerning “a physical or mental impairment” rather than “a record of such an impairment” under 29 U.S.C. § 705(20)(B). Held the Court, “Doe submitted numerous doctor reports and evaluations to support his claim that he has a record-supported history of paranoid schizophrenia disorder, which caused substantial limitations to his major life activities of self-care, thinking, learning, and working.” Second, the panel held there was a genuine issue of material fact about whether the employer was motivated by safety rather than bias, based on the tenor of the interview question about the prescription medication:
“The Rehabilitation Act’s implementing regulations state rather remarkably, to be sure, that potential employers may not ask questions ‘to determine whether the applicant is an individual with handicaps or the nature or severity of a handicap.’ 24 C.F.R. § 8.13(a). Snider testified that he inquired as to what types of medications Doe was taking. While the district court considered this to be an ‘isolated incident,’ we think it supports, although it does not necessarily prove, Doe’s claim that the Salvation Army violated the Rehabilitation Act.”
Desmond v. Mukasey, No. 07-5139 (D.C. Cir. July 1, 2008): Here’s a sad case about an man suffering from post-traumatic stress disorder (PTSD), who worked for the FBI in a clerical position but aspired to be a special agent. At age 24 he survived a brutal encounter with a burglar and rapist, which apparently intensified his resolve to enter law enforcement, but which also left him anxious, uneasy about his and his family’s personal security and unable to complete a night’s sleep. He attended the academy and succeeded in his classwork. But things began to unravel when he learned that he would have to move away from his hometown, Cleveland, to take up an assignment in Chicago.
Desmond began to attend confidential sessions with the FBI’s Employee Assistance Program (EAP), which was supposed to be confidential. But when Supervising Special Agent James Cochran inquired about the progress of the sessions, Desmond (according to the summary judgment record) revealed the PTSD diagnosis, things took a bad turn: “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.’ . . . . 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.” Eventually, the FBI dismissed Desmond from the academy for his alleged “failure to meet the suitability requirements of emotional maturity and cooperativeness.”
The D.C. Circuit reversed a grant of summary judgment on Desmond’s discrimination claim. (It also affirmed a jury verdict for the agency on his companion retaliation claim.) There were three parts to the panel’s analysis:
1. Sleeping as a Major Life Activity: The panel had no apparent problem finding that sleeping itself was a “major life activity.” It cited out-of-circuit precedent, the EEOC regulations, scientific literature and even William Shakespeare’s Macbeth: “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” (Act 2, sc. 2). The D.C. Circuit is on a literary jag at the moment, having just Monday cited Louis Carroll’s “The Hunting Of The Snark” in its enemy-combatant decision, Parhat v. Gates, No. 06-1397 at 28 (D.C. Cir. July 1, 2008). Better to quote long-dead British poets, I suppose, than miscite still-live American ones.)
2. Sleeplessness as a Substantial Limitation: The more difficult question presented was how Desmond would prove that his PTSD substantially impaired the major life activity of sleeping. The court considered the question from the perspective of how much sleep ordinary folks get, as well as Desmond’s own life experience, and held that the issue was one for the jury:
“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 esmond has produced sufficient evidence to preclude summary judgment against him on that issue.”
3. A Reminder of the Limited Function of Summary Judgment: Finally, the panel considered whether the district court erred in holding that Desmond presented no genuine issue of material fact on the issue of pretext. The court helpfully reminded the district court that the issue under Rule 56 is not whether the court itself was persuaded about a material issue of fact: “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.’ . . . . 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.” (Emphasis in original.)
I have not done the entirety of Judge Tatel’s 43-page opinion full justice and urge those interested to peruse the opinion in its entirety. From my perspective, it is one of the most pro-employee (and thus, pro-justice) opinions issued this year.