Appeals court backs termination of sleepwalking worker

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).