Finding no record evidence that BNSF did not honestly and reasonably believe an employee who was found under her desk wrapped in her coworker’s parka was sleeping and that whatever caused that to happen prevented her from being qualified to perform her customs clerk duties, a federal court in Texas granted summary judgment against her ADA and state-law disability discrimination claims. Nor could she advance her failure-to-accommodate claims, said the court, finding that although she had contacted the railroad’s EAP, she had been referred there for poor work performance and there was no showing she attempted to obtain an accommodation (Kaye v. BNSF Railway Co., May 31, 2018, McBryde, J.).
As an international border customs clerk, the employee provided assistance to BNSF’s trains crossing the border between the United States and Canada. Customs clerks are assigned to work one of several eight-hour shifts and are also often required to report to work on shifts that are not their regularly scheduled shifts.
Exhausted. In February 2015, the employee’s supervisor informed her that she should contact the EAP if she was experiencing problems that would interfere with her work. The employee did not do so at that time. In May, she was found sleeping at her desk. She claimed exhaustion due to the number of consecutive days she had worked without a day off and was shown leniency.
Hospitalized. The next month, she notified BNSF that she was unable to be on-call during certain times, despite the mandatory nature of some on-call requests. Her supervisor reminded her that she could not unilaterally decide to be unavailable and any medical condition that might impact her ability to do her job had to be reviewed by the railroad’s medical department. Shortly thereafter, she was found huddled over a trash can. She was taken by ambulance to the hospital but returned to work several days later without any restrictions.
Under the desk. In July, she was found sleeping under her desk, wrapped in her coworker’s parka. Although her supervisor told her she needed to go to the medical department if she was experiencing a medical issue, and offered to let her leave early, the employee insisted she was fine and finished her shift. The following day, she contacted the EAP, and was advised to seek an assessment at a behavioral health center and to follow-up with the EAP after the evaluation if she needed additional assistance. The employee, however, never followed up. She was terminated the following month after it was determined that she had not suffered a panic attack but was instead sleeping when she was found under her desk.
Disability discrimination. Granting summary judgment against her ADA and state-law disability discrimination claim, the court found no evidence she could perform the essential functions of her job. Although she claimed the only physical requirements were sitting and lifting, which she could do, she admitted that maintaining complete attentiveness at all times was critical and she failed to show there was a reasonable accommodation that would have allowed her to perform her job.
Reasonable belief. Nor did the employee show she was subject to an adverse employment action because of her disability. She did not challenge that her employer sincerely believed she was sleeping. And in any event, said the court, whether she was under her desk because she suffered an anxiety attack or because she was sleeping was not dispositive as the essential question was whether her employer reasonably believed she was engaged in wrongdoing. Here, there was no evidence to show her employer did not reasonably believe she was sleeping and that whatever caused this prevented her from being qualified to perform the duties of her positon.
Even if the employee had established a prima facie case of discrimination, BNSF articulated a legitimate, nondiscriminatory reason for terminating her, said the court, finding summary judgment appropriate as to this claim.
Failure to accommodate. Nor could the employee advance her failure-to-accommodate claim as there was no evidence she requested an accommodation for her asserted disability. While she called the EAP after having been found asleep under her desk, she cited “mandatory supervisor referral for poor work behavior/problems” as the reason. To the extent she argued she was attempting to request an accommodation when she contacted the EAP, her failure to follow up after her initial meeting was fatal to this claim.
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