Even if “somnambulism” is a disability, an employee who sleepwalks uninvited into the hotel room of her co-worker has no protection, according to a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit.
Jennifer Harkey, an employee of NextGen Healthcare, Inc., attended an out-of-town sales conference in St. Louis in October 2018. She had dinner and drinks with a female co-worker and returned to her hotel room. Meanwhile, a male co-worker who had the room next door was at the bar with some male co-workers. The co-worker returned to his room around midnight, and shortly afterward there was a knock on his door.
The coworker opened the door, thinking it was one of his bar-mates. But it was Ms. Harkey, wearing nothing but a black cotton robe. As she entered the room, the co-worker tried to ask what she was doing, but she did not respond. Instead, she crawled into a made bed, “pulled the sheets all the way up to her face,” and became nonresponsive.
The co-worker, who was married and understandably concerned about having a barely-dressed woman in his room, had enough sense to contact his supervisor and the Director of Human Resources, who tried to wake Ms. Harkey but without success. Eventually, hotel security came to the room, managed to awaken Ms. Harkey, and took her back to her room. As security escorted her back to her room, Ms. Harkey was very apologetic and embarrassed. The co-worker admitted that Ms. Harkey never made a sexual advance toward him.
The next morning Ms. Harkey was asked to meet the Director of Human Resources in a conference room to discuss the night’s events and was then told she would be placed on paid administrative leave. That same day, Ms. Harkey contacted a diagnostician to discuss the situation, but the next available appointment was not until approximately two weeks later. Without waiting for the outcome of Ms. Harkey’s medical examination, NextGen terminated her employment. She was later diagnosed as having somnambulism, also known as “sleep walking disorder.”
Ms. Harkey sued NextGen, alleging that her termination violated the federal Americans with Disabilities Act and the Texas Commission on Human Rights Act. A federal district court judge granted summary judgment to NextGen, finding that Ms. Harkey “fail[ed] to meet the requirements of proving a disability” and “fail[ed] to show evidence that she was subject to an adverse employment decision because of her sleepwalking.” Rather, the court said, NextGen fired Ms. Harkey for “misconduct”: a legitimate, nondiscriminatory reason that was not pretextual. Ms. Harkey appealed to the Fifth Circuit.
The Fifth Circuit panel affirmed the lower court, comparing Ms. Harkey’s termination with similar situations in two previous cases involving employees who were terminated for outbursts that were arguably caused by their disabilities (post-traumatic stress disorder and bipolar disorder). In both cases, the Fifth Circuit found that the employees’ medical conditions did not preclude the employer from taking action against them based on their misconduct. Similarly, the panel said, even if Ms. Harkey’s sleepwalking disorder was a disability within the meaning of the ADA, NextGen terminated her employment because of what she did when she was sleepwalking, not because she had a sleepwalking disorder.
The Fifth Circuit’s decision is a win for employers and helpful precedent when they have to take action based on employee misconduct that was arguably caused by a disability.
On the other hand, although not required to do so, NextGen might have waited for Ms. Harkey to get a diagnosis and then considered whether reasonable accommodations were possible for future conventions and conferences – including, perhaps, allowing her to forgo the conferences, or letting her stay in a safe location off-site.