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Extraordinary Employee Excuses

By Fiona W. Ong - Shawe & Rosenthal LLP

August 31, 2017

I am often surprised (and highly amused) by the excuses offered by employees to justify their misconduct. And by the fact that they’re often willing to litigate over them! A recent example of this can be found in the case of Alamillo v. BNSF Railway Co.

The employee worked an “extra board” schedule, meaning that he would report to work when called, rather than the usual 5-day a week regular schedule. An extra board employee who fails to answer three phone calls within a 15-minute period is marked as having “missed a call.” Under the company’s policy, five missed calls within a 12-month period may result in termination.

After the employee missed three calls, he opted for “alternative handling,” which was additional training in lieu of discipline. He then missed four more calls, for which he received 10- and 20-day suspensions.

At that point, the superintendent of the terminal where the employee worked advised him to get a landline or a pager, since the employee had only provided a cell phone number to the company for calls. And here’s my favorite part of the case – the employee refused to get a landline because he was having an affair, and he didn’t want the company calling his house because there were times when his wife thought he was at work but he was actually with his girlfriend!!! (Yes, this was actually part of the record in the case and has now been memorialized in a publicly-available court opinion for all time.)

It appears that there were alternatives to being literally caught with his pants down. The court noted that the employee could have transferred to a regular schedule. Or set his alarm for 5:00 a.m., which is when the company typically called, as he had done when he previously worked an extra board schedule. Or asked his wife to wake him when his cell phone rang. Or check the electronic job board the night before to see if there were jobs for which he could be called. But the employee failed to take any of these actions. And he missed three more calls. (For those of you who like to keep track, the employee had now missed ten calls – well in excess of when he could have been terminated).

Apparently, the company’s disciplinary process moves at a, shall we say, stately pace. Where termination is a possibility, the matter is set for a hearing – and the employee’s hearing occurred more than two months after his last missed call. In the meantime, the employee was diagnosed with obstructive sleep apnea. At his hearing, he discussed his diagnosis and his doctor’s opinion that not hearing a ringing phone is within the symptoms of his condition. There was no evidence, however, that his missed calls were actually caused by his condition. The company ultimately decided to terminate his employment.

The employee sued the employer under state law for disability discrimination and failing to accommodate his disability. The trial court dismissed his case, and he then appealed to the U.S. Court of Appeals for the 9th Circuit.

The Court found that the employer’s decision was properly based on the employee’s attendance violations, all of which occurred prior to his diagnosis. Under the ADA and analogous state laws, an employer may discipline an employee for performance issues – particularly where the employer had no knowledge of the disability when the issues occurred. Moreover, the Court noted that the employee could have taken many steps, as described above (including getting the landline, despite his extramarital adventures!), to show up for work despite any disability, but did not do so. The Court also found that the employer did not fail to accommodate the employee’s disability since the accommodation sought – to excuse his past misconduct – is not a reasonable accommodation.

And I guess the lesson for employees is that sleeping around is not the kind of sleep issue that requires a reasonable accommodation!

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