By Christina Gomez
An employee repeatedly fell asleep at work and was reprimanded for that and other work issues. She filed a charge of discrimination and lodged several internal complaints, none of which were found to have merit. She was eventually terminated for her perpetual sleepiness and, not surprisingly, she sued. All of her claims were dismissed for lack of evidence of any discrimination or retaliation.
She kept falling asleep at her desk
Donna Nealey was employed 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, pneumonia and other conditions, and took a number of absences under the Family and Medical Leave Act (FMLA).
At one point, Ms. Nealey’s supervisor became frustrated with her non-FMLA absenteeism and decided to place her on a six-month probation. Before he acted on his decision, he learned of an incident in which another employee had injected Ms. Nealey with prescription pain medication in the workplace. He placed Ms. Nealey on paid administrative leave while the company investigated her possible violation of its drug and alcohol policy. The company determined that there was no violation, but the supervisor had lost confidence in Ms. Nealey and therefore decided to transfer her to another supervisor.
Ms. Nealey hired an attorney, who demanded that she be returned to her prior position. WaterOne instead offered alternative positions at the same pay grade, and Ms. Nealey eventually accepted one of those positions. Soon thereafter, she filed a charge of discrimination 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, Ms. Nealey’s new supervisor began keeping a log of incidents relating to Ms. Nealey. His log documented repeated incidents of Ms. Nealey sleeping at work, including descriptions of her snoring at her desk, sleeping standing up, sleeping with her finger on her keyboard (which made a beeping noise), and acting disoriented when a fire alarm went off. A benefits administrator also reported that Ms. Nealey had fallen asleep during a meeting about her FMLA leave. Ms. Nealey was counseled about the snoozing issue, was sent home on some occasions and told on others to remain home if she could not stay alert, and was 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, Ms. Nealey complained that the practice of sending her home was retaliatory. WaterOne retained a law firm to investigate the complaint, and the investigator found no such retaliation. Ms. Nealey continued complaining about discrimination and retaliation in sending her home and allowing co-workers to joke about her sleeping on the job, and the company continued investigating her complaints but finding no merit to them.
After another incident of sleeping on the job, Ms. Nealey’s supervisor suspended her for two days without pay. When she returned, she disclosed a new medical condition that would require FMLA leave. Four days later, she was again caught sleeping at her desk. She was suspended without pay and was terminated a few days later.
She sued, unsuccessfully
Ms. Nealey filed suit, challenging the investigation into her use of prescription drugs at work, the job transfer, the suspensions, and the 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 motion for summary dismissal of the case, and Ms. Nealey appealed.
On appeal, the Tenth Circuit Court of Appeals (which makes law for Colorado) affirmed the dismissal of all of Ms. Nealey’s claims. The court found that Ms. Nealey had not presented sufficient evidence of any discrimination on the basis of her age. The court also found that she was not “disabled” under the ADA, because she did not show that she was regarded as being significantly restricted from performing a class of jobs or range of jobs—using the test that applies to claims filed before the ADA was amended in January 2009.
As to the retaliation claims, the court found no link between Ms. Nealey’s filing of an EEOC charge and her discipline and termination more than a year later, or between her final request for FMLA leave and her termination a few days later. In doing so, the court rejected Ms. Nealey’s argument that she had been singled out, and thus discriminated against, because her supervisor had kept a log on just her (and not any of his other employees).
Finally, the court rejected Ms. Nealey’s claim that WaterOne interfered with her FMLA rights by terminating her before she could take her leave. The court particularly noted that the company had consistently authorized her prior FMLA requests and had advised her to take FMLA leave instead of sleeping on the job. The court also stressed that Ms. Nealey’s 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.
A good outcome from an impossible situation
Before the final two incidents that led to Ms. Nealey’s termination, a company officer expressed that she “had done a masterful job . . . to manipulate all of us into an impossible situation.” 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 on her lawsuit. Nealey v. Water District No. 1 of Johnson County, Kansas, 2009 U.S. App. LEXIS 10246 (10th Cir., May 12, 2009).
For more information on this case, contact Christina Gomez at (303) 295-8366 or cgomez@hollandhart.com.
