Opinion
Civil Action No. 01-0875 (PLF).
March 31, 2004.
OPINION
This matter is before the Court for consideration of defendant's Motion to Dismiss or, in the Alternative, for Summary Judgment. In his motion, defendant contends that plaintiff cannot establish a violation of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794. Plaintiff counters that he was "disabled" within the meaning of the Rehabilitation Act and that defendant violated his duty under the Act to provide reasonable accommodations for disabled individuals. Upon careful consideration of the arguments of the parties, the Court grants defendant's motion for summary judgment.
Because the Court will consider materials outside the pleadings to resolve the motion, defendant's motion will be treated as a motion for summary judgment. See FED. R. CIV. P. 12(b).
I. BACKGROUND
Plaintiff Randolph S. Koch, a lawyer, originally filed his complaint pro se but now has retained counsel. Plaintiff is employed by the United States Securities and Exchange Commission in Washington, D.C. and has been employed continuously by the SEC since December 16, 1991. See Complaint ("Compl.") ¶ 6. On December 22, 1997, plaintiff filed an Individual Right of Action appeal with the Merit Systems Protection Board ("MSPB"), alleging that the SEC had taken unlawful reprisal action against him because of his whistleblowing activities. See Defendant's Motion to Dismiss or, in the Alternative, for Summary Judgment ("Def.'s Mot."), Defendant's Statement of Material Facts ("Def.'s SMF") ¶ 1. On February 9, 1998, plaintiff requested a continuance of his MSPB proceeding for 90 days or a dismissal without prejudice because of his medical conditions. See Def.'s Mot., Ex. B, February 9, 1998 Letter from Randolph S. Koch, Esq., to Elizabeth B. Bogle, Esq., Administrative Judge, Washington Regional Office, Merit Systems Protection Board ("First Continuance Request").In support of his request, plaintiff submitted a letter from his physician, Dr. Frederick E. Kuhn, dated June 20, 1994, which stated that plaintiff suffered from several cardiovascular risk factors, including hypertension and trouble controlling his weight. See Def.'s Mot., Ex. B, June 20, 1994 Letter from Frederick E. Kuhn, M.D., F.A.C.C., to Frank J. Donaty, Branch Chief, Division of Investment Management, SEC ("Dr. Kuhn Letter"). On February 18, 1998, plaintiff modified his February 9 request to seek a six-month continuance for medical reasons and to afford him an opportunity to obtain counsel. See Def.'s Mot., Ex. C, February 18, 1998 Letter from R. Koch to E. Bogle ("Second Continuance Request") at 2.
On February 25, 1998, the MSPB administrative judge, Elizabeth Bogle, asked plaintiff for additional and updated information regarding his medical conditions because she concluded that the evidence he had submitted concerning his medical conditions in 1994 did not provide a basis for concluding that plaintiff was unable currently to proceed with the adjudication of his appeal.See Def.'s Mot., Ex. D, Summary of Telephonic Prehearing Conference. When plaintiff failed to comply with this request, the administrative judge denied his requests for continuances.Id. On March 5, 1998, Administrative Judge Bogle issued an initial decision denying plaintiff's underlying action against the SEC. See Def.'s Mot., Ex. A, Initial Administrative Decision.
Plaintiff then filed a complaint with the MSPB's EEO office, alleging that Administrative Judge Bogle's denial of his requests for continuance constituted discrimination on the basis of physical disability and that she had violated the Rehabilitation Act by failing to accommodate plaintiff's requests. See Def.'s Mot., Ex. F, April 6, 1998 Letter from R. Koch to Janice E. Fritts, Director, Office of Equal Employment Opportunity. As his disability, plaintiff asserted that he suffered from a chronic medical condition. See id. On July 22, 1998, the MSPB's EEO Director accepted for investigation plaintiff's charge. See Def.'s Mot., Ex. I, July 22, 1998 Letter from J. Fritts to R. Koch. In order to determine whether plaintiff was "disabled" within the meaning of the Rehabilitation Act, the EEO Director sent to plaintiff a number of interrogatories that plaintiff was to complete in order to document his medical condition or conditions. See Def.'s SMF ¶ 11. On September 29, 1998, plaintiff informed the EEO Director via facsimile that he would be unable to complete the interrogatories by the deadline of September 30, 1998, and requested a four-month extension. See Def.'s Mot., Ex. N, September 29, 1998 Letter from R. Koch to Janice E. Pirkle, Director, Office of Equal Employment Opportunity, Merit Systems Protection Board.
The EEO Director also agreed to investigate plaintiff's assertion that the Clerk of the MSPB had discriminated against him by denying him an indefinite extension of time to file a petition for review "until completion of the EEO matters." Def.'s Mot., Ex. H, July 2, 1998 Letter from R. Koch to J. Fritts; see also Def.'s SMF ¶ 8. The MSPB's EEO Director subsequently dismissed this portion of plaintiff's complaint. See Def.'s SMF ¶ 9.
The EEO Director again attempted to obtain documentation of plaintiff's medical conditions, but on November 24, 1998, plaintiff informed her that he would be unable to comply with the new deadline because of the development of sleep apnea and "possibly a second sleep disorder." Def.'s Mot., Ex. Q, Nov. 24, 1998 Letter from R. Koch to J. Pirkle. On March 5, 1999, the EEO Director dismissed plaintiff's complaint on the basis of plaintiff's failure to provide documentation regarding his claims of discrimination. See Def.'s Mot., Ex. R, March 5, 1999 Letter from J. Pirkle to R. Koch. On April 20, 2001, plaintiff initiated the present action by filing a complaint alleging that the MSPB, through the actions of its administrative judge in refusing to grant his requested continuances, violated Section 504 of the Rehabilitation Act. See Compl. ¶ 11.
On November 11, 1998, the MSPB issued a final decision denying plaintiff's request for review of the administrative judge's decision on the merits. Plaintiff appealed the Board's decision to the United States Court of Appeals for the Federal Circuit on August 17, 2001. See Def.'s SMF ¶ 17. On October 16, 2002, the Federal Circuit affirmed the Board's rejection of plaintiff's claims under the Whistleblower Act. See Koch v. Securities and Exchange Commission, No. 01-3347, 2002 U.S. App. LEXIS 21888, at *27 (Fed. Cir. Oct. 16, 2002). In addition to addressing the merits of his claims, the Federal Circuit also rejected plaintiff's procedural argument that the administrative judge abused her discretion by denying plaintiff's request for a continuance and by not agreeing to dismiss his appeal without prejudice to its renewal within six months. Id. at *11-12.
II. DISCUSSION A. Summary Judgment Standard
Summary judgment shall be granted if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits or declarations, if any, demonstrate that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.See FED. R. CIV. P. 56(c). Material facts are those that "might affect the outcome of the suit under the governing law. . . ."Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When considering a summary judgment motion, "the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255. See also Washington Post Co. v. United States Dep't of Health and Human Services, 865 F.2d 320, 325 (D.C. Cir. 1989).The non-moving party's opposition must consist of more than mere unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for trial. See FED. R. CIV. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The non-moving party is "required to provide evidence that would permit a reasonable jury to find" in his favor.Laningham v. United States Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987). If the non-movant's evidence is "merely colorable" or "not significantly probative," summary judgment may be granted.Anderson v. Liberty Lobby, Inc., 477 U.S. at 249-50. To defeat summary judgment, a plaintiff must have more than "a scintilla of evidence to support his claims." Freedman v. MCI Telecommunications Corp., 255 F.3d 840, 845 (D.C. Cir. 2001).
B. The Rehabilitation Act
The Rehabilitation Act provides that "[n]o otherwise qualified individual . . . shall, solely by reason of his [or her] handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity . . . conducted by any Executive agency. . . ." 29 U.S.C. § 794(a). In order to state a claim under Section 504 of the Rehabilitation Act, generally a plaintiff must show that he is an individual with a disability within the meaning of the Act and that he was discriminated against "solely" because of his handicap. Gaskins v. Runyon, 921 F. Supp. 779, 781 n. 3 (D.D.C. 1994) (quoting statute). See also Walker v. District of Columbia, 969 F. Supp. 794, 797 (D.D.C. 1997). The inquiry into whether a person is disabled is an individualized one and must be determined on a case-by-case basis. See Sutton v. United Air Lines, 527 U.S. 471, 483 (1999). The Act defines "disability" as "a physical or mental impairment that substantially limits one or more major life activities." 29 U.S.C. § 705(9)(B). See also Gaskins v. Runyon, 921 F. Supp. at 781. "Major life activities" are illustrated by the regulations as "functions, such as caring for oneself, 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).At the risk of belaboring the obvious, not all impairments are substantially limiting. EEOC regulations state that "many impairments do not impact an individual's life to the degree that they constitute disabling impairments." 29 C.F.R. app. § 1630.2(j). See also Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 195 (2002) ("Merely having an impairment does not make one disabled for purposes of [the Act]. Claimants also need to demonstrate that the impairment [substantially] limits a major life activity."). Courts have generally found that the statutory insistence that a "major life activity" be "substantially impaired" excludes from the coverage of the Act those impairments that do not actually alter a person's general quality of life or ability to function. See Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. at 198 (to be "substantially limited" an individual "must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people's daily lives."). The Supreme Court also has noted that the phrases "substantially limited" and "major life activity" "need to be interpreted strictly to create a demanding standard for qualifying as disabled." Id. at 197. See also Forrisi v. Bowen, 794 F.2d 931, 934 (4th Cir. 1986) ("It would debase [the] high purpose [of the Act] if the statutory protections available to those truly handicapped could be claimed by anyone whose disability was minor and whose relative severity of impairment was widely shared.").
Under EEOC regulations, claims of disability require an individualized inquiry as to whether a claimed impairment substantially limits a major life activity associated with the plaintiff's claim. See 29 C.F.R. app. § 1630.2(j) ("The 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."). Furthermore, the Supreme Court has indicated that a "substantial impairment" cannot be one that interferes "in only a minor way," that "major life activities" are "important" ones, and that, to be considered a disability, "the impact of an impairment must be permanent or long term."Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. at 197, 198. See also 29 C.F.R. app. § 1630.2(j) ("[A]n individual whose legs are paralyzed is substantially limited in the major life activity of walking . . ."); Sanders v. Arneson Prods., 91 F.3d 1351, 1354 (9th Cir. 1996) (plaintiff's temporary psychological disorder, which had no residual effects beyond a specified date, was not a disability under the Americans with Disabilities Act); McDonald v. Dep't of Pub. Welfare, 62 F.3d 92, 97 (3d Cir. 1995) (plaintiff's "transient, nonpermanent condition" while recovering from surgery was not a disability).
C. Plaintiff's Rehabilitation Act Claim
Section 504 of the Rehabilitation Act precludes the Merit Systems Protection Board from denying plaintiff the benefits of participation in its appeals process "solely" because of plaintiff's disability. See 29 U.S.C. § 794(a) ("No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity . . . conducted by any Executive agency. . . ."). Accordingly, plaintiff must establish that he is disabled within the meaning of the Act and that his disability was defendant's "sole" reason for denying plaintiff's requested continuances. See Gaskins v. Runyon, 921 F. Supp. at 781. After reviewing the record and the relevant case law, the Court concludes that plaintiff has failed to show that he is an individual with a disability under the Rehabilitation Act. The Court also concludes that the decision of Administrative Judge Bogle to deny plaintiff's requests for a continuance were not based "solely" on plaintiff's claimed disability.
1. Plaintiff is Not an Individual with a Disability
To satisfy the first element of his Rehabilitation Act claim, plaintiff must establish that he is "disabled" within the meaning of the Act. Specifically, plaintiff must show that he has "a physical or mental impairment that substantially limits one or more major life activities." 29 U.S.C. § 705(9)(B). In his filings, plaintiff recites a litany of medical conditions that have affected his life. First, plaintiff asserts that in 1990 he suffered an acute myocardial infarction.See Memorandum in Support of Plaintiff's Opposition to Defendant's Motion to Dismiss or, in the Alternative, for Summary Judgment ("Pl.'s Mem.") at 1. After his heart attack, plaintiff states that he did not work for "many months." Id. at 2. In 1992, plaintiff began taking medication for hypertension, and consulted a doctor who recommended that plaintiff seek medical advice about his "lipid disorder." Id. In 1994, plaintiff began taking medication for both hypertension and the lipid disorder, described by plaintiff's physician as a "mixed hyperlipidemia." Dr. Kuhn Letter; Pl.'s Mem. at 3. Within six months of his beginning to take niacin, the lipid disorder drug, plaintiff began suffering gout attacks and "intense itching." Pl.'s Mem. at 3.
Plaintiff also asserts that from 1996 to 1998 he experienced "severe disruption of sleep," which later was diagnosed as sleep apnea and "possibly a second sleep disorder." Pl.'s Mem. at 3;see id., Attach., Affidavit of Randolph S. Koch ("Pl.'s Aff.") ¶ 54. Plaintiff asserts that soon after filing his appeal with MSPB, he noticed a worsening of his symptoms and began experiencing severe fatigue, drowsiness, headaches, lightheadedness, and dizziness. See Pl.'s Aff. ¶ 33. Plaintiff states that his "cardiovascular disorders, as well as other medical conditions, including hypertension, sleep apnea and gout . . . and the medication for them, did substantially impair some of his major life activities." Pl.'s Mem. at 22.
While plaintiff refers generally to the impairment of "some" major life activities, the only major life activity explicitly referenced in plaintiff's opposition is walking, which plaintiff asserts was substantially limited by gout attacks produced as a side effect to medication. See Pl.'s Mem. at 17. Although the EEOC regulations do recognize walking as a major life activity, see 29 C.F.R. § 1630.2(i), plaintiff's ability to walk was only temporarily limited by his gout attacks. Plaintiff claims that between 1993 and 1998 he suffered gout attacks that became more severe, causing him to immobilize his feet "until his medications took effect." Pl.'s Aff. ¶ 24. On its face, this assertion admits that the gout attacks only temporarily affected plaintiff's ability to walk. The gout attacks therefore are properly classified as "temporary, non-chronic impairments of short duration" that therefore are outside the scope of the term "disability" under the Rehabilitation Act. 29 C.F.R. app. § 1630.2(i). Accordingly, plaintiff cannot establish that the gout attacks "substantially limited" him in the major life activity of walking.
For similar reasons, plaintiff also fails to establish that any of his medical conditions substantially limited his ability to work. In the only evidence plaintiff submitted to Judge Bogle, the 1994 letter from Dr. Kuhn, plaintiff's physician states that plaintiff's cardiac conditions had become "increasingly difficult to control," but that with medication plaintiff was "fully capable of handling a normal workload and other related responsibilities." Dr. Kuhn Letter. Indeed, plaintiff asserts that during the pendency of his appeal, he regularly worked at least forty hours per week. See Pl.'s Mem. at 5-6. Thus, putting aside the fact that plaintiff did not provide medical evidence that was current to support his claim in 1998 — he only submitted the 1994 Kuhn letter — even plaintiff's own outdated evidence indicates that his impairments did not substantially limit his ability to work. See Lester v. Natsios, 290 F. Supp. 2d 11, 25 (D.D.C. 2003) (quoting Murphy v. United Parcel Service, Inc., 527 U.S. 516, 518-19 (1999)) ("Individual suffering from hypertension whose high blood pressure is adequately controlled by medication is not disabled under the ADA (and hence under the Rehabilitation Act)."); Scarborough v. Natsios, 190 F. Supp. 2d 5, 22-23 (D.D.C. 2002) (plaintiff was not substantially limited in his ability to work because he failed to show that his impairment "substantially limited his ability to work in a broad class of jobs").
Although not explicitly addressed in plaintiff's memorandum, plaintiff may be contending that he was substantially limited in his ability to sleep. The D.C. Circuit has not addressed whether sleep is a major life activity under the Rehabilitation Act or the ADA. See Scarborough v. Natsios, 190 F. Supp. 2d at 21 n. 14. Other circuits, however, have held that sleep is a major life activity, and this Court recently agreed with those circuits, concluding that there was "no reason to reach a different conclusion." Haynes v. Williams, 279 F. Supp. 2d 1, 9 (D.D.C. 2003) (citing, inter alia, Doyal v. Oklahoma Heart, Inc., 213 F.3d 492, 495-96 (10th Cir. 2000) ("Major life activities include such functions as . . . sleeping.")); see also McAlindin v. County of San Diego, 192 F.3d 1226, 1234 (9th Cir. 1999) ("Common sense suggests that sleeping is a major life activity in the lives of most people.").
Assuming, arguendo, that sleep is a major life activity, plaintiff has failed to make the necessary showing that his ability to sleep is substantially limited. To make this showing, plaintiff cannot rely merely on his sleep disorder diagnosis but also must "present evidence that the impact of the limitation is `permanent or long-term,' and that `the extent of the limitation . . . in terms of [the plaintiff's] own experience . . . is substantial.'" Stein v. Ashcroft, 284 F.3d 721, 726 (7th Cir. 2002) (quoting Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. at 198). Plaintiff's restriction in the major life activity of sleeping must also be significant "compared to the average person in the general population's ability to perform that same major life activity." 29 C.F.R. app. § 1630.2(j); see Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. at 197-98; Scarborough v. Natsios, 190 F. Supp. 2d at 21.
Plaintiff offers only his own testimony that "during the period from 1996 through 1998" he would "frequently awaken choking and gasping, unable to catch his breath," and that he had been diagnosed with sleep apnea and "possibly a second sleep disorder." Pl.'s Aff. ¶ 54. He asserts that as a result he had "tremendous trouble keeping awake in the office." Id. at ¶ 56.See also Def.'s Mot., Ex. Q, October 27, 1998 Letter from Andrew Umhau, M.D. to Richard E. Waldhorn, M.D. The Court concludes that this evidence fails to establish that the impact of the sleep apnea was substantial. See Haynes v. Williams, 279 F. Supp. 2d at 11 (plaintiff's affidavit asserting that he would "fall asleep on average at 4:00 a.m., although on some nights it might be as early as 1:00 a.m. or as late as 6:00 a.m." did not satisfy the degree of severity required under the ADA).
The evidence plaintiff has offered does not establish that his ability to sleep is significantly worse than that of the average person in the population. See E.E.O.C. v. Sara Lee Corp., 237 F.3d 349, 352-53 (4th Cir. 2001) (plaintiff's nighttime seizures did not substantially limit her ability to sleep); Pack v. Kmart Corp., 166 F.3d 1300, 1306 (10th Cir. 1999) (plaintiff failed to establish that his ability to sleep was substantially limited when he would get two to three hours of sleep per night);Colwell v. Suffolk County Police Dep't, 158 F.3d 635, 643 (2d Cir. 1998) (plaintiff's ability to sleep was not substantially limited by back injury even though he "usually [got] a tough night's sleep"); Haynes v. Williams, 279 F. Supp. 2d at 11 ("It is also significant that the plaintiff has offered no evidence that his sleeping limitations were of longterm or permanent nature."). Compare Felix v. New York City Transit Auth., 154 F. Supp. 2d 640, 654 (S.D.N.Y. 2003) (plaintiff's ability to sleep was substantially limited when he was able to sleep only one to two hours per night); Knorr v. Pepsico Food Servs., Inc., No. 97-CV-1819, 1999 WL 200685, at *9 (N.D.N.Y. Apr. 8, 1999) (plaintiff's ability to sleep was substantially limited by chronic sleep disorder that allowed her to sleep one to one and a half hours per night). Accordingly, if sleep is a major life activity within the meaning of the Rehabilitation Act, plaintiff has failed to demonstrate that his ability to sleep was substantially limited.
2. Disability is Not the Sole Reason for the Adverse Decision
If plaintiff could have established that he was disabled within the meaning of the Rehabilitation Act, his claim still would fail. First, pursuant to MSPB regulations, Judge Bogle was authorized to grant plaintiff's requested continuance only upon a showing of good cause. See 5 C.F.R. § 1201.55(c). Plaintiff could have shown good cause by demonstrating, for example, the "existence of circumstances beyond [his] control . . . which affected his ability to comply with the time limits." Alonzo v. Dept. of Air Force, 4 M.S.P.R. 180, 184 (1980). Judge Bogle provided plaintiff with the opportunity to make such a showing in her request that plaintiff produce more recent documentation of his claimed disability. Plaintiff, however, failed to provide this documentation. In evaluating the existence of plaintiff's claimed disability, Judge Bogle therefore relied only on a 1994 physician's letter stating that plaintiff was able to work a regular forty-hour work schedule and engage in all "related activities." Dr. Kuhn Letter. The Court agrees that this evidence simply was insufficient for Judge Bogle to conclude that plaintiff was disabled so as to justify a continuance based on good cause, and Judge Bogle therefore properly denied plaintiff's request. See 5 C.F.R. § 1201.55(c).
Second, the record indicates that plaintiff's reason for requesting a continuance was based only partially on the problems associated with his medical conditions. In addition to his medical conditions, plaintiff also cited his demanding work schedule and the need for time to find adequate counsel as grounds for a continuance. See Pl.'s Mem. at 5-6 ("Mr. Koch would regularly put in at least several extra hours per night and then work at home, on the MSPB litigation beginning at 9 or 10:00 p.m. Mr. Koch was exhausted and became sick from this effort."). In fact, in his first request for a continuance, plaintiff devoted more than six pages to his need to retain counsel and barely a page to the effect of his medical conditions on the appeals process. See First Continuance Request. By his own admissions, therefore, plaintiff's claimed disability merely contributed to his failure to meet Judge Bogle's deadline, but it was not the sole reason for this failure. The Court therefore cannot conclude that Judge Bogle's decision was based solely on plaintiff's disability.
Finally, as plaintiff correctly notes, when an individual requests an accommodation of a public entity covered by the Rehabilitation Act, the entity "is required to undertake a fact-specific investigation to determine what constitutes a reasonable accommodation." Pl.'s Mem. at 17 (quoting Duvall v. County of Kitsap, 260 F.3d 1124, 1139 (9th Cir. 2001)). Judge Bogle attempted to undertake just such an inquiry by requesting from plaintiff more recent documentation than the 1994 doctor's letter. When plaintiff failed to comply with these requests, Judge Bogle could not verify plaintiff's disability claim and therefore correctly concluded that she was under no duty to provide plaintiff with a reasonable accommodation. See Weigert v. Georgetown University, 120 F. Supp. 2d 1, 8 (D.D.C. 2000) ("Reports about which the defendant employer had absolutely no knowledge nor access prior to [acting] cannot serve as the evidentiary basis of establishing an element of a prima facie case of disability discrimination.").
Based upon the foregoing analysis, the Court concludes that plaintiff has failed to present any genuine issue of material fact regarding his Rehabilitation Act claim and that defendant is entitled to judgment as a matter of law. Properly instructed on the law, no reasonable jury could find that plaintiff was an individual with a disability under the Act. Moreover, even if plaintiff did qualify as disabled, plaintiff cannot establish that Administrative Judge Bogle denied his request for a continuance "solely" because of his disability. Accordingly, the Court will grant the defendant's motion for summary judgment.
An Order consistent with this Opinion shall be issued this same day.
SO ORDERED.