Charles HAYNES, Appellant v. Anthony A. WILLIAMS, Mayor, District of Columbia and District of Columbia, Office of Chief Financial Officer, Appellees
No. 03-7134.
United States Court of Appeals, District of Columbia Circuit.
Decided Dec. 17, 2004.
392 F.3d 478
Argued Sept. 27, 2004.
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The “historical accounting” elements of the injunction are vacated because of the mandate of
So ordered.
David A. Branch argued the cause and filed the briefs for appellant.
Mary E. Pivec argued the cause for appellees. With her on the brief were Robert J. Spagnoletti, Attorney General,
Before: EDWARDS and GARLAND, Circuit Judges, and WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge GARLAND.
Concurring opinion filed by Senior Circuit Judge WILLIAMS.
GARLAND, Circuit Judge.
Charles Haynes, a former budget analyst for the District of Columbia, sued the District and its Mayor for allegedly discriminating against him in violation of the Americans with Disabilities Act of 1990 (ADA),
I
Viewing the evidence in the light most favorable to Haynes, see Breen v. Department of Transp., 282 F.3d 839, 841 (D.C.Cir.2002), the facts are as follows. In 1980, Haynes began working as a budget analyst in the District of Columbia‘s Department of Budget and Planning. Sometime in 1992, Haynes developed a “severe medical condition, which seemed to be exacerbated by the work environment” at 441 4th Street, N.W., where the Department had its offices. Haynes Aff. ¶ 11 (J.A. 38). Haynes described his condition as “a sense of insects crawling on my skin causing severe irritation, occurring shortly after I arrive at work.” Id. In 1996, Haynes and several co-workers filed a formal complaint with the District of Colum
In 1997, Haynes also began visiting an allergist, Dr. James Mutcherson, who conducted a battery of skin tests. Mutcherson diagnosed Haynes as “a most allergic individual,” 1/21/00 Mutcherson Letter at 3 (J.A. 29), who suffered from “idiopathic pruritus,” a condition “that appear[ed] to be exacerbated by” his work environment. Id. at 1 (J.A. 27). Haynes was “rather emphatic” in telling Mutcherson that there was “something present at work that elicit[ed] the most intense and prolonged skin symptom[ ]“—a “severely incapacitating skin itching.” Id. at 3 (J.A. 29).
Although the itching would begin soon after Haynes arrived at work, it would continue after he returned home at the end of the day. See 9/25/98 Haynes Mem. at 3-5 (J.A. 80-82). Haynes believed that he was bringing home on his clothes whatever it was that aggravated his condition at work. As a result of the itching, he often could not fall asleep until 4:00 a.m. or later, typically getting under four hours of sleep. See id. at 5 (J.A. 82); Haynes Dep. at 74 (J.A. 164). And because Haynes had so much trouble sleeping, he also had trouble arriving at work on time. Often, he would not arrive at the office until the afternoon. Haynes Dep. at 144-49 (J.A. 181-83).
In 1996-97, the Department of Budget and Planning was transferred from the Office of the Mayor to the Office of the Chief Financial Officer, where it became the Office of Budget and Planning. Anthony Williams, who later became the District‘s Mayor, was the Chief Financial Officer (CFO) at the time. After the transfer, Williams terminated the Office‘s prior “liberal attendance policy and required all budget and accounting personnel to report for work from 8:15 a.m. to 4:45 p.m.” Defs.’ Statement of Material Facts ¶ 7.
Haynes’ schedule did not comport with the new policy. In a memorandum dated September 17, 1997, Haynes’ supervisor “inform[ed] him that he needed to comply with the attendance policy and report to the office by no later than 9:30 a.m.” Id. ¶ 8. A year later, Haynes’ September 1998 performance appraisal again warned that he “[n]eed[ed] to adjust his work schedule so that he [could] work during regular working hours and be a more effective team player.” 9/15/98 Performance Evaluation at 3 (J.A. 60). Haynes responded with a lengthy memorandum, advising that he had “acquired an allergic reaction to something that lives within this building.” 9/25/98 Haynes Mem. at 2 (J.A. 79). He complained that the District had failed to test his office‘s air quality and to accommodate him with a work schedule that would permit him “to come to work at later times when [he] suffered sleep deprivation.” Haynes Aff. ¶ 24 (J.A. 43).
On January 25, 1999, Haynes met with his supervisors, who told him that “his failure to work during the regular business hours was preventing him from being fully productive and was becoming an inconvenience to his coworkers.” Defs.’ Statement of Material Facts ¶ 12. In response to Haynes’ complaints about the building, the defendants hired specialists to test limited aspects of its air quality, tests that found no significant problems. Id. After receiving the results of the air quality tests, Haynes’ supervisor advised him that the Office “would no longer tolerate his excuses for failing to report within normal duty hours.” Id. ¶ 13. Haynes’ September 30, 1999 performance evaluation reported that
On January 14, 2000, the Office of the CFO terminated Haynes’ employment. Thereafter, he sued the District of Columbia and Mayor Williams (collectively, “the District“) in the United States District Court for the District of Columbia. Haynes alleged that the District had violated the ADA by failing reasonably to accommodate his claimed disability and by discharging him based on that disability.1
Following discovery, the District moved for summary judgment. Concluding that Haynes had not raised a genuine issue of fact as to whether he was disabled within the meaning of the ADA, the district court granted the District‘s motion and dismissed the case. See Haynes v. Williams, 279 F.Supp.2d 1, 2 (D.D.C.2003).
II
We review the district court‘s grant of summary judgment de novo. Waterhouse v. District of Columbia, 298 F.3d 989, 991 (D.C.Cir.2002). Summary judgment is appropriate only if “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.”
The ADA bars a covered employer from “discriminat[ing] against a qualified individual with a disability because of the disability of such individual in regard to ... employment.”
The district court accepted Haynes’ contentions that he had a physical impairment, idiopathic pruritus, and that it limited Haynes’ sleeping—which the District did not dispute was a major life activity under the ADA. Because the District does not contest these points on appeal, see Br. for Appellees at 12, we do not address them here. Cf. Sutton v. United Air Lines, Inc., 527 U.S. 471, 492-94, 119 S.Ct. 2139, 2151-52, 144 L.Ed.2d 450 (1999) (analyzing an ADA claim while assuming, without deciding, that working is a major life activity).3
Although the district court ruled in Haynes’ favor with respect to the first two elements of the definition of “disability,” it ruled against him on the third: the court concluded that Haynes had failed to raise a genuine issue that “the extent of his sleeping limitation [was] substantial within the meaning of the ADA.” Haynes, 279 F.Supp.2d at 10. One reason the court gave for this conclusion was that Haynes had failed to submit expert medical testimony “regarding the extent to which [his] physical impairment impacted his ability to sleep.” Id. Instead, the court said, Haynes had relied on his own “self-serving assertions,” a kind of evidence the court regarded as insufficient. Id.
In that respect, the court erred. As the Supreme Court said in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, “the ADA requires those ‘claiming the Act‘s protection ... to prove a disability by offering evidence that the extent of the limitation ... in terms of their own experience ... is substantial.‘” 534 U.S. 184, 198, 122 S.Ct. 681, 691-92, 151 L.Ed.2d 615 (2002) (emphasis added) (quoting Albertson‘s, Inc. v. Kirkingburg, 527 U.S. 555, 567, 119 S.Ct. 2162, 2169-70, 144 L.Ed.2d 518 (1999)). Whatever the comparative credibility of medical versus personal testimony, a plaintiff‘s personal testimony cannot be inadequate to raise a genuine issue regarding his “own experience.” See Anderson, 477 U.S. at 255, 106 S.Ct. at 2513-14 (“Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether he is ruling on a motion for summary judgment or for a directed verdict.“).
The district court did, however, suggest another ground upon which its grant of summary judgment is properly based: Haynes’ failure to offer evidence that any location other than his office triggered his itching to such an extent that it seriously limited his ability to sleep. See Haynes, 279 F.Supp.2d at 11. Haynes concedes that if the symptoms of an impairment are brought on by a single workplace, such an impairment is not substan
That concession is appropriate. See Muller v. Costello, 187 F.3d 298, 314 (2d Cir.1999) (finding that the plaintiff was not disabled because there was “not enough evidence of off-the-job breathing problems to find a substantial limitation of that life activity“). In Toyota, the Supreme Court held that to be substantially limiting, an “impairment‘s impact must ... be permanent or long term.” 534 U.S. at 198, 122 S.Ct. at 691-92 (citing
Although Haynes concedes that he cannot recover if he could have eliminated his sleep problem by avoiding his office, he contends that the evidence shows his condition was triggered by other locations as well. This case, he says, is therefore similar to Albert v. Smith‘s Food & Drug Centers, Inc., 356 F.3d 1242 (10th Cir.2004). In Albert, the court found disabled a plaintiff whose asthma attacks, which impaired her breathing, were “activated by an array of common substances” and “require[d] her to avoid a wide variety of everyday situations.” Id. at 1250. Similarly, in EEOC v United Parcel Service, Inc., the court found for a plaintiff who developed a serious reaction to a local allergen that impaired his ability to breathe and that he could avoid only by moving away from central Texas, where he lived. See 249 F.3d 557, 559, 562-63 (6th Cir.2001).
The evidence before the district court, however, was nothing like that in Albert or EEOC. There was no evidence that Haynes could have obtained relief only by avoiding “a wide variety of everyday situations” or by moving out of the geographic area in which he lived. Rather, the evi
Similarly, in his memorandum responding to his September 1998 performance evaluation, Haynes told his supervisors: “I have acquired an allergic reaction to something that lives within this building .... I believe that the cause of my distress ... is to be found living and flourishing within the confines of this workplace ....” 9/25/98 Haynes Mem. at 2 (J.A. 79). And he sought to substantiate that point by noting that his symptoms would begin “within about twenty minutes of my entering this office.” Id. at 3 (J.A. 80). Haynes repeated these statements, verbatim, in the affidavit he filed in opposition to summary judgment. Haynes Aff. ¶¶ 19, 21 (J.A. 40-41); see also Mutcherson Dep. at 38 (J.A. 55) (“[I]t would always go back to something on the job that created these problems....“); Summary of 1/25/99 Personnel Meeting (J.A. 121) (reporting that Haynes “explained ... that, in his opinion, the cause of [his] condition originates from the Office of Budget and Planning; more specifically his office“).
To support the contention that his condition was triggered by locations other than his workplace, Haynes relies on the statement in his 1998 memorandum that he had allergic reactions “within the office and in some other places.” 9/25/98 Haynes Mem. at 2 (J.A. 79) (emphasis added). Those “‘other’ places include[d] some retail stores—mainly the smaller ones [—] and some closed ventilation office buildings.” Id. They did not, however, include “residential spaces, i.e., except for [his] own.” Id.; see also 1/21/00 Mutcherson Letter at 3 (J.A. 29) (noting that Haynes “is not solely symptomatic at work, as he has experienced symptoms at home and while visiting department stores locally and out of town“).7
Haynes’ claim that he suffered itching in “some” places other than his office does not approach the scope of the impairment in Albert or in EEOC. More important, Haynes offered no evidence that the itching brought on by those other locations disturbed him to such a degree that he could not sleep. The absence of such evidence is crucial. As the Court held in
At oral argument, Haynes’ counsel argued that, because Haynes had testified that his itching at work substantially limited his ability to sleep, a jury could have inferred that his itching elsewhere had the same effect. There are two flaws in this argument. First, the evidence in the record was that the itching Haynes experienced in other environments was of “a much lesser degree than at [his] workplace.” Haynes Dep. at 66 (J.A. 162). Indeed, in the same memorandum in which he said that he suffered allergic reactions in “some other places,” he specifically noted that “no other place has affected me as severely as 441 4th Street.” 9/25/98 Haynes Mem. at 2 (J.A. 79). And in his deposition testimony, Haynes declared that in those other places, unlike in his own office, “a lot of times the degree that [the itching] was bothering me did not hamper me doing what I was doing.” Haynes Dep. at 66 (J.A. 162).
Second, as Haynes acknowledges, it was he who bore the burden of establishing that his impairment substantially limited his sleeping. See Appellant‘s Br. at 14 (citing Bailey, 306 F.3d at 1167). Although we must give Haynes the benefit of all reasonable inferences from the evidence in the record, evidence that is “merely colorable or not significantly probative” cannot create a genuine issue of material fact. Bragdon, 524 U.S. at 653, 118 S.Ct. at 2212 (citing Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2510-11). The possibility that a jury might speculate in the plaintiff‘s favor is insufficient to defeat summary judgment. See Rogers Corp. v. EPA, 275 F.3d 1096, 1103 (D.C.Cir.2002).
At most, then, the plaintiff‘s evidence would have supported a finding that some locations other than his workplace bothered him to some extent. Such evidence would not have permitted a reasonable jury to conclude that Haynes was substantially limited in a major life activity. Accordingly, the district court‘s grant of summary judgment in favor of the defendants was appropriate.
III
For the foregoing reasons, we conclude that the evidence fails to raise a genuine issue that Haynes had a disability within the meaning of the ADA. The judgment of the district court is therefore
Affirmed.
STEPHEN F. WILLIAMS, Senior Circuit Judge, concurring.
I write separately only to question the premise, assumed by all parties (and thus quite properly not ruled on by the court), that “sleeping” is “a major life activit[y]” for purposes of the Americans with Disabilities Act, specifically
SECURITIES AND EXCHANGE COMMISSION, Appellee v. LOVING SPIRIT FOUNDATION INC. and Puma Foundation, Ltd., Appellants Paul A. Bilzerian, et al., Appellees
No. 03-5234.
United States Court of Appeals, District of Columbia Circuit.
Argued Sept. 14, 2004.
Decided Dec. 17, 2004.