Worker Fired for Sleeping on the Job Lacked ADA Claim

​A federal district court ruled that an employer that terminated an employee found sleeping on the job did not violate the nondiscrimination provisions of Texas state law, the Americans with Disabilities Act (ADA) or the reasonable accommodation requirements of the ADA.

The plaintiff was employed by BNSF Railway Co. from 2012 until Aug. 26, 2016, as a border custom clerk. During February 2015, she complained of exhaustion and she was informed by a supervisor that she should contact the employee assistance program (EAP) if she was experiencing problems that would interfere with her work. She did not contact the EAP.

In May 2015, the plaintiff was found by a supervisor sleeping at her desk. She had been found asleep at her desk on other occasions. The plaintiff informed the supervisor that she was exhausted due to her heavy workload. Although sleeping on the job was a terminable offense, the plaintiff was not discharged at that time. The following month, the plaintiff notified BNSF that she would no longer work on-call shifts. Her supervisor reminded her that, under BNSF policy, on-call shift work was required and could not be unilaterally dismissed. The supervisor further informed the plaintiff that she should seek medical help if she had any condition that would prevent her from fulfilling her job duties.

In July 2015, the plaintiff was found sleeping under her desk. The plaintiff claimed that she was fine but was suffering from an anxiety attack. Her supervisor advised her to go to the medical department if she was experiencing a medical issue; otherwise, her supervisor stated, "she should sit down and do her job." The plaintiff refused to visit the medical department, insisting that she was fine and completing her shift.

The next day, the plaintiff contacted the EAP. The EAP advised her to seek an assessment at a local behavioral health clinic to develop a plan and, thereafter, to follow up with the EAP. The plaintiff did not contact the EAP again and did not provide any follow-up information. In August 2015, following a formal investigation of the July incident, her employment was terminated due to sleeping on the job.

The plaintiff filed a lawsuit claiming that she was illegally discriminated against because of her disability in violation of the ADA and state nondiscrimination laws. She also alleged that BNSF had retaliated against her in violation of the ADA and that BNSF had failed to provide reasonable accommodation for her disability. The U.S. District Court for the Northern District of Texas found summary judgment in favor of BNSF on all claims.

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The court found that there was no violation of the ADA or state nondiscrimination laws since the plaintiff could not perform the essential functions of the job, which required employees to be alert at all times while on duty. The court concluded that the plaintiff failed to show any form of reasonable accommodation that would have allowed her to perform the essential job functions.

The employer could not have retaliated against the plaintiff because of a disability or a perceived disability because the employer did not think that she had a disability, according to the court. Instead, the court concluded, BNSF reasonably believed that the plaintiff had performance problems that called for termination. The court further concluded that since the employer reasonably believed this, it did not matter if the plaintiff was actually having an anxiety attack.

The court found that the plaintiff had never requested any form of accommodation for her claimed disability and that the employer had given her adequate opportunity to do so. It was recommended that she seek help on multiple occasions. Although she did contact her EAP at one time, she failed to follow up with the EAP or to provide BNSF any information that would assist in accommodating her claimed disability.

Kaye v. BNSF Ry. Co., N.D. Texas, No.417-CV-656A (May 31, 2018).

Professional Pointer: This case presents a reminder of how important it is to ensure that employers adopt and implement adequate procedures for addressing disability-related issues, including providing adequate training for supervisors.

Michael K. Ott is a partner with Malone, Thompson, Summers, and Ott, LLC, a Worklaw® Network member firm in Charlotte, N.C., and Columbia, S.C.