Did the Fifth Circuit Get it Right When it Said that Manifestation of a Disability Does Not Excuse Bad Conduct?

Today’s case of the day is Harkey v. NextGen Healthcare, Inc., here, decided by the Fifth Circuit in a per curiam decision on July 15, 2022. The case is better known as the sleepwalker claiming disability discrimination case, and it has been over the legal blogosphere due to its sensational facts, which are described in detail below. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning that summary judgment for the employer was justified; my thoughts on why this decision could have gone the other way; and thoughts/takeaways/questions. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts (taken directly from the opinion)

NextGen hired Jennifer Harkey in March 2008 as an “Implementation Specialist.”^[**] She worked without incident for over a decade. In September 2018, she was promoted to the position of “Sales Specialist,” effective November 1, 2018.

On the evening of October 10, 2018, Harkey was attending an out-of-town national sales conference for NextGen at a large hotel in St. Louis, Missouri. After a dinner and a few drinks with a female co-worker, Harkey headed up to her room. She then watched some television and fell asleep.

Around midnight, another employee of NextGen who was also attending the conference, Scott O’Donnell, had just returned to his room from the hotel bar when he heard a knock at the door. Rather than peering through the peephole, assuming it was one of the other men who he had just been at the hotel bar with, he opened the door. There stood Harkey, whom he did not recognize. Harkey says that she was wearing a “black cotton robe” that fell to her knees and that she was naked under the robe.

O’Donnell was startled and stepped backwards. Harkey entered the room without looking at O’Donnell. O’Donnell said something along the lines of “I think you’re in the wrong room. What are you doing here? You need to get out” and remembers repeating “You’re in the wrong room.” Harkey said nothing, walked over to a made bed and got in it, then pulled the sheets all the way up to her face. According to O’Donnell, “She just laid there, didn’t move and was nonresponsive to me asking her to leave and telling her she was in the wrong room.” Harkey did not touch O’Donnell during the incident. Moreover, O’Donnell states that she never propositioned him or sexually harassed him.

Still, O’Donnell was concerned. He was a married man on an out-of-town business trip, and a woman was in a bed in his hotel room. He called his supervisor, Sean Murtagh, to the room. Murtagh also did not recognize Harkey as a NextGen employee. Murtagh decided to contact Jill Burke, the director of Human Resources at NextGen, who was also attending the conference. When Burke arrived, she attempted to wake Harkey repeatedly. Burke pulled back the covers and Murtagh snapped a picture of her. Burke was able to waken Harkey, but Harkey was disoriented. Burke also described Harkey as “smell[ing] of alcohol” and “exposing skin.” Although he was further away, Murtagh testified that he did not smell alcohol and that her robe fully covered her, so that no “personal part[s]” were exposed.

Eventually, hotel security was called, and it was determined that Harkey’s room was next door to O’Donnell’s. According to Burke’s notes, which she discussed during her deposition, as security helped get Harkey back to her room, Harkey was “very apologetic” and embarrassed. According to Burke, Harkey stated that she must have been sleepwalking, which she had done from time to time when she was a child. Burke’s notes also recall that Harkey said that she “wasn’t assaulted or anything” in the hotel room, that she was fine, and that she was “so sorry.” O’Donnell went back into his room, gathered his stuff, and moved to a different hotel room.

O’Donnell was asked to write an e-mail about what happened. At that point, he was extremely uncomfortable “because of the accusatory-sounding questions that [Burke] had asked [him] earlier in the night about what happened.” Because of his discomfort at that line of questioning, he mentioned wanting to speak with a lawyer before writing an e-mail about the incident. He later testified about his concern with how his wife would react to learning about the situation and, more generally, about how it might be interpreted in the “Me Too” era.

The next morning, Harkey went downstairs for breakfast and business meetings. At some point in the morning, she was asked to go up to a conference room where she saw Burke sitting alone at a long conference table. Harkey said she had “a flashback” and remembered her face from the night before. Burke told Harkey to sit down and that she “was in very big trouble,” “needed to be concerned,” and that Burke wanted to discuss last night. Harkey told her about the evening, as she could recall it. Harkey told her she had sleepwalked throughout her childhood but that it rarely happens. She was also asked about what she was wearing. Harkey stated that she felt from the beginning of the conversation that Burke had made her mind up about what had happened. Burke told her to pack her bags and that she was suspended on paid leave. Multiple times in the conversation, Burke called Harkey a “liability.” Burke told Harkey to “call a doctor,” and Harkey said she would quickly do so.

Harkey called her doctor for a referral as she was waiting for her flight home and began the process for making an appointment with a diagnostician, Dr. Sudan. Harkey sent an e-mail to Burke on October 12, 2018 (the day after the incident), informing her of the medical updates and assuring her that she was taking the situation seriously. On October 16, Harkey sent an e-mail updating Burke that she had been able to get an appointment with Dr. Sudan for the following week. Later the same day that she sent that e-mail, on October 16, Harkey was terminated.

When Harkey was able to see her doctor, he diagnosed her condition as somnambulism, otherwise known as “sleep walking disorder.” On September 4, 2019, Harkey brought a lawsuit in state court alleging that she was fired on account of a disability. It was removed to federal court, with the operative complaint alleging violations of the ADA and the TCHRA.

II

Court’s Reasoning That Summary Judgment Is Justified for the Employer

 

1. The controlling question is whether the plaintiff suffered an adverse employment action because of (emphasis in opinion) her disability.
2. Even if plaintiff’s sleepwalking disorder was a disability under the ADA, she was properly terminated because of what happened when she sleepwalked.
3. The Fifth Circuit has previously held that where a plaintiff’s outburst was arguably caused by his PTSD, the company was justified in terminating that individual because the outburst also violated company policy.
4. The ADA does not insulate emotional or violent outbursts blamed on an impairment.
5. A prior Fifth Circuit case also held that an employee verbally abusing his supervisor for denying his vacation request was also grounds for termination despite the employee suffering from bipolar disorder. That decision said that while the employee’s reaction could have been attributed to his bipolar disorder, the ADA is not a get out of jail free card to avoid accountability for the employee’s actions.
6. That plaintiff’s severe, unprofessional, and inappropriate conduct was purportedly caused by her sleepwalking disorder is of no matter, as the ADA does not give employees license to act with impunity.
7. When plaintiff sleepwalked into her male coworker’s room in the state that she was in, the employer had a reason to fire her, and the ADA is no barrier to that termination.

 

III

My Thoughts on Why This Decision Could Have Gone the Other Way

 

1. It certainly appears that the director of HR rushed to judgment and that little independent investigation ever occurred. I join labor and management side lawyers on social media talking about how a rush to judgment by HR is never a good idea.
2. There was no interactive process.
3. Magic words are not required to begin the interactive process, as we discussed here for example, and most certainly what happened here is enough to put an employer on notice that a reasonable accommodation needed to be discussed.
4. Plaintiff told HR the morning after the incident that she had a record of sleepwalking in childhood. Remember, a person with a record of a disability, 42 U.S.C. §12102, is protected under the ADA.
5. Plaintiff made clear that she was seeking the assistance of medical professionals to figure all this out, but the employer terminated her before that could all be accomplished.
6. Bostock v. Clayton County, which we discussed here, has changed causation. The question is whether the disability was a determining factor in the termination. Arguably in this case, it was. Again, magic words are not necessary and there was a complete absence of any interactive process.
7. It is an oversimplification to say, especially after Bostock, that sleepwalking being the cause of the conduct is of no matter.

 

IV

Thoughts/Takeaways/Questions

 

1. Was plaintiff a valuable employee? She worked there without incident for over a decade and had been promoted to the position of sales specialist.
2. Did plaintiff ever have to work with Scott O’Donnell, the person whose room she walked into, in her job?
3. Was plaintiff a direct threat to anyone during the incident or in the future? Could any future direct threat be eliminated with reasonable accommodations?
4. I can’t see the United States Supreme Court deciding in favor of the plaintiff on this one.
5. Could she do the essential functions of the job with or without reasonable accommodation? If not, might there have been another job in the company that she could have done with or without reasonable accommodations? Was traveling even an essential function of her job? Of any job in the company?
6. The employer won this one. However, an employer would do well to look at §§III, IV of this blog entry prior to terminating an individual when something like this occurs.
7. What company policy was violated?
8. This isn’t the first time we talked about the line between how disability may manifest itself in the form of bad conduct. See this blog entry for example.
9. The decision is a per curiam and is not published. I asked Prof. Leonard Sandler (a Clinical Law Professor at the University of Iowa whom I had the privilege of meeting in person just recently when I did a training for Disability Rights Iowa), for more information about per curiam opinions. He sent me this article. After reading that article, a strong argument can be made that our case of the day was not appropriate for a per curiam decision.

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