• Skip to primary navigation
  • Skip to main content

HRMorning

  • FREE RESOURCES
  • PREMIUM CONTENT
  • HR DEEP DIVES
  • PODCASTS
    • VOICES OF HR
    • WOMEN’S LEADERSHIP TODAY
  • LOGIN
  • GET STARTED
  • Employment Law
  • Benefits
  • Recruiting
  • HR Technology
  • Payroll
  • Management
  • Women’s Leadership
  • More
    • Talent Management
    • Performance Management
    • Leadership & Strategy
    • Compensation
    • Policy & Procedures
    • Wellness
    • Staff Departure
    • HR Career & Self-Care
    • Health Care
    • Retirement Plans
  • Employment Law

Appeals court backs termination of sleepwalking worker

Tom D'Agostino
By: Tom D'Agostino
Read it on Beacon
  • Share on

About the Author

Tom D’Agostino is an attorney and legal editor who has more than 30 years of experience writing about employment law, disability law and education law trends. He earned his B.A. degree from Ramapo College of New Jersey and his J.D. from the Duquesne University School of Law. D’Agostino, who is a member of the Pennsylvania bar, is a past member of the American Bar Association’s Section of Individual Rights and Responsibilities and the Pennsylvania Bar Association’s Legal Services to Persons with Disabilities Committee. He has provided technical assistance in the production of segments for television’s ABC World News and 20/20, and he has been quoted in periodicals including USA Today. He is also a past contributing author of Legal Rights of Persons with Disabilities: An Analysis of Federal Law, which is a comprehensive two-volume treatise addressing the legal rights of people with disabilities. Tom is passionate about baseball and authentic Italian food. When not writing, he enjoys spending time with family.

Show Less
Last Updated: August 11, 2022
4 minute engagement
She Climbed Into His Bed At Hotel
You read HRMorning's newsletter. Beacon's Daily Brief is the version tuned to you: it skips what you've already read and leads with what you've asked Beacon about. Get your Daily Brief →

A federal appeals court has upheld a decision to reject disability bias claims filed by a sleepwalking worker who mistakenly climbed into a co-worker’s hotel room bed during an out-of-town trip.

Jennifer Harkey began working for NextGen Healthcare in 2008 in a position called “implementation specialist.” Things went well for a decade, and she was promoted to a post as a sales specialist in 2018.

In October of that year, shortly before the promotion took effect, Harkey and other NextGen employees attended an out-of-town sales conference at a hotel in St. Louis, Missouri.

One evening there, she had dinner and a few drinks with a female co-worker and then went to her hotel room.

Sleepwalking worker knocks at door

At around midnight, a co-worker named Scott O’Donnell, who was also attending the conference and staying in the hotel room next door, heard a knock on his door. It was Harkey, and she was wearing only a robe that fell to her knees. As O’Donnell retreated, Harkey entered the room, got into his bed and pulled the sheets up to her face.

O’Donnell did not recognize her. He told her she was in the wrong room and needed to leave, but she was unresponsive. O’Donnell, who is a married man, called his supervisor to the room. He in turn contacted HR director Jill Burke, who was at the conference as well.

Burke was eventually able to wake Harkey up, saying she smelled of alcohol. Harkey never touched O’Donnell and did not proposition or harass him.

Harkey was apologetic and embarrassed, the opinion says, and said she must have been sleepwalking as she had done in her childhood years. Hotel security helped her back to her room, and O’Donnell moved to another one.

That could have been the end of an awkward situation, but unfortunately for Harkey it was not.

O’Donnell was asked to write an email describing what happened, but he said he was very uncomfortable because Burke had asked him accusatory questions about what happened.

The next morning, Burke met with Harkey and told her she “needed to be concerned” and was “in very big trouble.”

She tried to explain

Harkey tried to explain to Burke that she sleepwalks on rare occasions, but she says Burke’s mind was made up. Burke told her to pack her bags and that she was on paid leave.

The next day, Harkey told Burke she was seeking a medical diagnosis. Four days after that, she updated Burke to say she had obtained an appointment to do so. But for NextGen, it was already too late. It terminated her employment that day.

Sure enough, Harkey was later diagnosed as having a sleepwalking disorder.

She sued NextGen, alleging violations of the ADA and a corresponding Texas law. A lower court ruled against her, and she appealed.

The U.S. Court of Appeals for the Fifth Circuit affirmed.

It said Harkey was not fired because of her disability but rather because of misconduct related to it. Employees cannot use the ADA to avoid accountability for their actions, it said. “The ADA does not give employees license to act with impunity,” it added. As a result, it concluded, the termination did not violate the ADA or the corresponding state law.

Proper outcome or unduly harsh result?

The employer here escaped legal liability, but the facts as relayed by the court indicate that it could have handled the situation more tactfully and entirely avoided expending what were likely significant resources to defend the lawsuit.

For one thing, the decision says the company’s HR director made O’Donnell “extremely uncomfortable” based on accusatory questions she asked him regarding the incident. Of course, doing so breaks the cardinal rule of approaching any investigation with an open mind that objectively gathers all pertinent information. It can also cause employees to move quickly to thinking about retaining legal representation. Here, in fact, the court’s ruling says O’Donnell mentioned wanting to speak to a lawyer soon after Burke began questioning him about the incident.

Similarly, the decision says the same HR director began her discussion with Harkey about the incident by telling her she “was in very big trouble” and calling her a “liability.”

The EEOC has indicated that employers may, consistent with the ADA, terminate employees whose disability causes them to violate a conduct rule, so long as the rule is uniformly applied and is job-related and consistent with business necessity. That guidance lists violence, threats of violence, stealing and destruction of property as examples that need not be tolerated, and most cases applying this general rule have involved employee behavior that is more in line with the provided examples.

Here, on the other hand, the employee engaged in a single incident of nonviolent, nonthreatening behavior and immediately took steps to ensure it would not recur. In addition, preventing reoccurrence did not seem like a tall order given the circumstances surrounding the incident. But she was let go anyway, and her termination was upheld.

The message for employers: The ADA generally does not require toleration of disability-caused, job-related misconduct — and in the Fifth Circuit, that rule is strictly applied.

Harkey v. NextGen Healthcare, Inc., No. 21-50132, 2022 WL 2764870 (5th Cir. 7/15/22).

Read it on Beacon
Open this article in Beacon, from HRMorning, and ask how it applies to your company. Every answer names its source.
Read it on Beacon
Get HRMorning's newsletter tuned to you every morning: your Daily Brief on Beacon →
Filed under
  • Employment Law
  • Share on

Get the HRMorning Newsletter

With HRMorning arriving in your inbox, you will never miss critical stories on labor laws, benefits, retention and onboarding strategies.

Get it free with a Beacon account. Beacon keeps your company's HR context at hand, and every answer names its source.
Create my free account

Free Training & Resources

White Papers

Your Compensation Toolkit to Help Get Your Pay Right

Provided by Marsh

White Papers

Recruiting Got AI. Leave Got a Form Template.

White Papers

Leave of Absence Shouldn’t Take 8 Hours Per Case

White Papers

The New Rules of Engagement: Rethinking How Employees Connect to Work

Provided by Inspirus

SPONSORED CONTENT

Performance Management

Talent Management

sponsored content
Employee Recognition Program: What the First 6 Months Reveal About Whether It Will Last

Courtesy of INSPIRUS

Compensation

Recruiting

sponsored content
Salary Benchmarking: 6 Choices That Decide Whether Your Pay Data Holds Up

Courtesy of MARSH

Employment Law

Policy & Procedures

sponsored content
Policy Rollout: 4 Checkpoints That Show Employees Got the Message

Courtesy of NAVEX

Further Reading

  • Employment Law
Medical Marijuana: New Court Ruling on Impairment at Work

The use of recreational and medical marijuana is an evolving area of employment law, which can make things a bit tricky for employers tryin...

  • Employment Law
Costly FLSA Mistake: Appeals Court Upholds $22M Verdict in Wage Dispute

The Third Circuit recently affirmed a jury verdict awarding more than $22 million in back wages to 11,780 employees at a Pennsylvania batte...

  • Employment Law
Accommodating the Claustrophobic Employee: Jury Issues $15K Verdict

A jury ruled in favor of a claustrophobic employee who said his employer unlawfully neglected to reasonably accommodate his condition when ...

  • Employment Law
Telework as Accommodation: Was It Required Here?

A new EEOC lawsuit is taking aim at an employer that allegedly violated the Americans with Disabilities Act (ADA) by refusing to allow tele...

  • Employment Law
  • Policy & Procedures
Workplace Investigations: Avoiding the Defamation Trap

Workplace investigations are among HR’s most difficult tasks, especially when harassment allegations are involved. Yet one serious ri...

  • Employment Law
OSHA Seeks $1M in Penalties for Air Safety Violations

OSHA has proposed more than $1 million in penalties against a Chicago countertop manufacturer that allegedly did not do enough to protect i...

Get the latest from HRMorning in your inbox PLUS Beacon, free. Check it before you say it.

GET STARTED FREE
HR Morning Logo
  • Facebook
  • Linked In
  • ABOUT HRMORNING
  • ADVERTISE WITH US
  • WRITE FOR US
  • CONTACT
  • Employment Law
  • Benefits
  • Recruiting
  • Talent Management
  • Performance Management
  • HR Technology
  • Leadership & Strategy
  • Compensation
  • Policy & Procedures
  • Wellness
  • Staff Departure
  • HR Career & Self-Care
  • Health Care
  • Retirement Plans
  • DEI

HRMorning provides the latest HR and employment law news for HR professionals in the trenches of small-to-medium-sized businesses. Rather than simply regurgitating the day's headlines, HRMorning delivers actionable insights, helping HR execs understand what HR trends mean to their business.

Privacy Policy | Terms of Service
Copyright© 2026 HRMorning
HRMorning Logo

WELCOME BACK!

Enter your username and password below to log in

Forget Your Username or Password?

Reset Password

Lost your password? Please enter your username or email address. You will receive a link to create a new password via email.

Log In

Why do we need your credit card for a free trial?

We ask for your credit card to allow your subscription to continue should you decide to keep your membership beyond the free trial period.  This prevents any interruption of content access.

Your card will not be charged at any point during your 21 day free trial
and you may cancel at any time during your free trial.

During your free trial, you can cancel at any time with a single click on your “Account” page.  It’s that easy.