In Desmond v. Mukasey, C.A.D.C. No. 07-5139, 7/1/08, the D.C. Circuit Court of Appeals has overturned the lower court’s summary judgment and sent an FBI agent’s discrimination complaint under the Rehabilitation Act of 1973 back for trial. The facts are as related in the court’s decision.
When Desmond was accepted into new agent training, he signed the required paperwork acknowledging that he could be assigned anywhere, no transfers were available for personal reasons, and that he had to pass certain academic and suitability requirements to stay in the program. He performed well in the new agent training program at Quantico. At the same time he worked hard to try to secure assignment to Cleveland, Ohio upon graduation. His mother lived in Cleveland and Desmond, fearing for her personal safety as the result of a harrowing experience involving a break-in at her house a few years earlier, was determined to be assigned there so that he could personally watch out for his mother. (Opinion p. 4)
The experience in question had involved Desmond personally when he was in his early 20’s. A notorious rapist broke into his mother’s house, held Desmond hostage for an hour or so, robbed the house, and threatened to come back and hurt his mother. Desmond worked with the police to help apprehend and convict the guy. Motivated by the experience to work in law enforcement, Desmond was determined to be an FBI agent.
But he also apparently had a lot of guilt about leaving his mother unprotected in Cleveland, hence his efforts to secure an assignment with the FBI’s office there once he finished Quantico.
When he learned he was being sent to Chicago, Desmond claims he started experiencing more anxiety than usual. He eventually consulted an agency counselor who told Desmond he showed signs of Post Traumatic Stress Disorder as the result of the traumatic incident back in Cleveland. (p. 7)
Just before graduation from Quantico, Desmond wrote out a draft letter of resignation addressed to the FBI Director complaining about the lies and deceit in the agency’s refusal to accommodate his family and personal needs in his post training assignment. His supervisor found the letter on Desmond’s desk and talked to him about it. Desmond claimed he never intended to resign, he was simply venting by writing out his feelings, as the counselor had suggested. He did a short note retracting the document. However, his supervisors decided to do an inquiry into Desmond’s suitability to be an FBI agent. (pp. 7-10)
By the time the dust settled, the suitability report questioned Desmond’s retention as an agent, Desmond had filed an equal opportunity discrimination complaint based on mental handicap, and Desmond resigned when told he was being terminated from the agent program. (pp. 10-12)
Desmond filed suit in district court, alleging disability discrimination and retaliation. The latter claim went to a trial by jury and the jury held against Desmond. Meanwhile, the disability discrimination claim was thrown out by the district court, which awarded summary judgment to the government. (p. 13)
The court of appeals has now upended the district court’s decision on the discrimination claim and sent the case back to be tried on its merits. Among other things, the appeals court considered the question whether Desmond’s PTSD substantially limited a major life function, i.e. Desmond’s ability to sleep. The D.C. Circuit joins every other circuit that has considered whether sleep constitutes a major life activity, and, among other authorities, quotes a passage from Shakespeare’s MacBeth in concluding that it does. (pp. 15-19)
The court then considers whether Desmond has raised enough evidence to suggest that his PTSD interfered with his sleep and concluded that he did. The appeals court points out that the government never contested that the PTSD impacted Desmond’s ability to sleep. Since Desmond raised enough evidence that a jury could conclude that the FBI took action against him because of his PTSD, the issue should have been tried before and decided by a jury. (p. 34)
In the end, the appeals court has reversed the district court’s grant of summary judgment and sent the case back for trial. (p. 43)