With PTSD - Sleep is a "Major Life Activity"

Sarah Moffett
October 8, 2008 — 2,589 views  
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In Desmond v. Mukasey, 07-5139 (D.C. Cir. July 1, 2008), the U.S. Court of Appeals for the District of Columbia Circuit held that sleeping is a major life activity for the purposes of the Rehabilitation Act of 1973. The act prohibits federal agencies from discriminating in employment on the basis of disability, defined in part as an impairment which substantially limits one or more “major life activities.” Under the Code of Federal Regulations, major life activities mean functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing and learning.

Martin Desmond, the plaintiff, alleged 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. Desmond had struggled with sleep for a number of years following a traumatic incident at his mother’s home in Cleveland. After enrolling at the FBI Academy, Desmond sought psychiatric help and was diagnosed with PTSD. He then revealed this diagnosis to a superior, who, according to Desmond, began to immediately treat him in a less favorable manner. Desmond alleged that it was the revelation of information about his PTSD that led to his removal from the FBI Academy. Following his removal, Desmond filed suit in federal district court. The District Court dismissed Desmond’s discrimination claim, but allowed his retaliation claim to proceed to a jury, which ultimately ruled against him. 

In dismissing the discrimination claim, the District Court held that Desmond had failed to prove he was actually disabled or regarded as such, and that he failed to show that the FBI dismissed him due to his alleged impairment. On appeal, the D.C. Circuit disagreed. The D.C. Circuit explained that sleep “falls well within” the phrase “major life activity.” The court reasoned that sleep is more “central to the life process itself” than any of the other activities listed as major life activities under the act.

After determining that sleep qualified as a major life activity, the D.C. Circuit next considered whether Desmond’s PTSD substantially limited that activity. The FBI argued that Desmond’s PTSD could not be considered a substantial limitation because it had no discernable impact on Desmond’s performance at the Academy. Additionally, the FBI claimed that Desmond’s PTSD was not substantially limiting because his sleeplessness was tied to his guilt from leaving his mother alone in Cleveland after the traumatic incident, thereby making the problem only temporarily limiting. The D.C. Circuit disagreed, finding that nothing in the act suggested that plaintiffs must demonstrate that their impairment has an ancillary effect on their waking life in general. Rather, the act only requires proof that the plaintiff suffers from an impairment substantially limiting him or her in a major life activity. The D.C. Circuit held that Desmond presented sufficient evidence of his sleeplessness for a reasonable jury to find that his ability was substantially limited, rejected the FBI’s argument that Desmond’s PTSD was not a substantial limitation because it was associated with his ties to Cleveland, and determined that enough evidence existed for a reasonable jury to conclude that the FBI’s claimed reasons for dismissing Desmond were pretexts for discrimination.

Discrimination Claim Upheld

In Reilly v. Atlantic City, 06-2734 (3rd Cir. July 1, 2008), the 3rd Circuit rejected an argument advanced by Atlantic City that city police officer Robert Reilly’s testimony at trial was made pursuant to his official duties and thus was not protected speech. At the time the trial court first heard arguments in the case, most employee expression made pursuant to an employee’s professional duties did not fall under the protection of the First Amendment according to 3rd Circuit precedent.

Robert Reilly, the plaintiff, alleged he was threatened with demotion and forced into early retirement following his testimony in the trial of Dennis Munoz, a fellow Atlantic City police officer. Shortly after testifying, Reilly came under the supervision of Robert Flipping, a friend and colleague of Munoz. Reilly claimed his testimony against Munoz motivated Flipping to demote him and force him into early retirement, a retaliatory action in violation of his First Amendment rights. Reilly also claimed that Flipping was assisted by Arthur Snellbaker, the Chief of Police.

Shortly after his early retirement, Reilly filed a lawsuit against Atlantic City alleging violations of his First Amendment right to speak about matters of public concern, violations of his 14th Amendment rights to substantive and procedural due process, conspiracy, arbitrary and illegal discipline, and violation of New Jersey’s Conscientious Employee Protection Act. In response, Atlantic City argued that Reilly’s testimony was not protected speech and that both Flipping and Snellbaker were entitled to qualified immunity as public officials. On Atlantic City’s Motion for Summary Judgment, the District Court dismissed Reilly’s federal conspiracy claim and held that Flipping and Snellbaker were entitled to qualified immunity on his procedural due process claim, but declined to dismiss any of the other claims. Atlantic City appealed the District Court’s ruling.

On appeal, the 3rd Circuit addressed Reilly’s First Amendment retaliation claim and 14th Amendment due process claim only. In affirming the District Court’s ruling on the First Amendment claim, the 3rd Circuit applied the recently-decided U.S. Supreme Court case Garcetti v. Cebollas to outline the difference between speech made pursuant to an employee’s official duties and speech on matters of public concern made as a private citizen. The Supreme Court held that the former is generally not protected by the First Amendment, because employers need a significant degree of control over their employees’ words and actions. Here, the 3rd Circuit found that although Reilly’s testimony was made pursuant to his official duties as an Atlantic City police officer, the act of testifying in court was, on a larger scale, the act of being a responsible citizen speaking on a matter of public concern. As a result, the 3rd Circuit found that Reilly’s testimony was speech protected by the First Amendment, outside of the purview of the “official duties” doctrine, and therefore denial of summary judgment was proper.

The 3rd Circuit took a different stance on Reilly’s 14th Amendment due process claim. Reilly argued that the final disciplinary decision in his case was made by Flipping, whom he claimed was not vested with such authority. Observing that the availability and validity of any pre-disciplinary procedures must be analyzed alongside the adequacy of available post-disciplinary procedures, the court noted that there were several statutorily available post-disciplinary procedures available to Reilly, but that he failed to take advantage of them before accepting his retirement. In light of Reilly’s failure to exercise any of the post-disciplinary procedures, the 3rd Circuit reversed the District Court’s ruling and held that Reilly could not state a claim for violation of his due process rights under the 14th Amendment.

The author, Sarah E. Moffett, Esq. of LeClairRyan, can be reached in the firm’s Alexandria office at [email protected].

Sarah Moffett

LeClair Ryan, A Professional Corporation