DISABILITIES

While employee slept on the job, her employer did not

An employee who was reprimanded for repeatedly falling asleep at work, among other things, filed a discrimination charge and several internal complaints, none of which was found to have merit. She was eventually terminated for her perpetual sleepiness and, not surprisingly, sued her employer for discrimination and retaliation. All of her claims were dismissed for lack of evidence.

She kept falling asleep at her desk

Donna Nealey worked as an administrative assistant for Water District No. 1 of Johnson County, Kansas (WaterOne). During her 18-year tenure, she suffered a series of ailments, including lung cancer, neuropathic pain, and pneumonia, and took a number of absences under the Family and Medical Leave Act (FMLA).

At one point, Nealey's supervisor became frustrated with her non-FMLA absences and decided to place her on six months' probation. Before he could act on his decision, he learned that another employee had injected Nealey with prescription pain medication in the workplace. He placed Nealey on paid administrative leave while the company investigated her possible violation of its drug and alcohol policy. The investigation revealed no violation, but the supervisor had lost confidence in Nealey and decided to transfer her to another supervisor.

Nealey hired an attorney, who demanded that she be returned to her previous position. WaterOne instead offered alternative positions at the same pay grade, and Nealey eventually accepted one of those jobs. Soon after, she filed a discrimination charge with the Equal Employment Opportunity Commission (EEOC) alleging age and disability discrimination, interference with her FMLA rights, and retaliation for taking FMLA leave.

On the advice of counsel, the new supervisor began keeping a log of incidents relating to Nealey. His log documented repeated occurrences of her sleeping at work, snoring at her desk, sleeping standing up, sleeping with her finger on her keyboard (which caused the computer to make a beeping noise), and acting disoriented when a fire alarm went off. A benefits administrator also reported that Nealey had fallen asleep during a meeting about her FMLA leave. Nealey was counseled about the snoozing issue, sent home on some occasions and told on others to remain home if she couldn't stay alert, and instructed to improve the accuracy of her work. In response, she often denied having been asleep, saying she was listening with her head down, closing her eyes to focus, or practicing biofeedback.

Through her attorney, Nealey complained that the practice of sending her home was retaliatory. WaterOne retained a law firm to investigate the complaint, and the investigator found that no retaliation had occurred. Still, Nealey continued to complain that sending her home and allowing coworkers to joke about her sleeping on the job was both discriminatory and retaliatory. The company continued investigating her complaints but repeatedly found no merit to them.

After another incident of sleeping on the job, Nealey's supervisor suspended her for two days without pay. When she returned, she disclosed a new medical condition requiring FMLA leave. Four days later, she was again caught sleeping at her desk. She was suspended without pay and terminated a few days later.

She sued, unsuccessfully

Nealey filed suit, challenging the investigation into her use of prescription drugs at work, the job transfer, the suspensions, and her termination. She asserted claims for age discrimination under the Age Discrimination in Employment Act (ADEA), disability discrimination under the Americans with Disabilities Act (ADA), retaliation for exercising her rights under the FMLA, ADEA, and ADA, and interference with her FMLA rights. The district court granted WaterOne's request for dismissal for all of Nealey's claims, and Nealey appealed.

On appeal, the Tenth U.S. Circuit Court of Appeals (which covers Colorado) affirmed the dismissal of the case. The court found that Nealey had failed to present sufficient evidence of any discrimination on the basis of her age. It also found that she wasn't "disabled" under the ADA because she was unable to show that she was regarded as being significantly restricted from performing a class or range of jobs (using the test applicable to claims filed before the ADA was amended in January 2009).

Regarding her retaliation claims, the court found no link between Nealey's filing of an EEOC charge and her discipline and termination more than a year later. Similarly, it found no connection between her final request for FMLA leave and her termination a few days later. Additionally, the court rejected her argument that she had been singled out and discriminated against when her supervisor began keeping a log on her alone.

Finally, the court rejected Nealey's claim that WaterOne interfered with her FMLA rights by terminating her before she could take leave. The court noted that the company had consistently authorized her previous FMLA requests and had advised her to take FMLA leave instead of sleeping on the job. The court also stressed that her record of sleeping on the job was "remarkable" and that an employee has no greater rights against termination for unrelated reasons simply because she has requested FMLA leave. Nealey v. Water District No. 1 of Johnson County, Kansas, 2009 U.S. App. LEXIS 10246 (10th Cir., May 12, 2009).

A good outcome from an impossible situation

Before the final two incidents that led to Nealey's termination, a company officer expressed that she "had done a masterful job . . . to manipulate all of us into an impossible situation." But by doing everything right ― investigating all of her complaints, allowing her to take any needed FMLA leave, and consistently documenting her snoozing on the job ― the company managed to escape that situation and avoid any liability.