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. 
2 

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. 
3 

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 
4 

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 
5 

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 
6 

 . . . 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-yearold 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 posttraumatic 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 
7 

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. 
9 

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 
10 

“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 
11 

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 
14 

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 
15 

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 midcourse 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.