Extraordinary Workplace Misconduct: The Case of the Somnambulant Sales Rep

By Elizabeth Torphy-Donzella - Shawe Rosenthal LLP

August 12, 2022

Should an employee who, while at a convention, knocks on a coworker’s hotel room door, enters, then heads to the coworker’s bed wearing nothing but a robe be fired, even if the employee claims to have been sleepwalking at the time? Or, as George Costanza of Seinfeld fame asked, “was that wrong?”

Joking aside, in the case of Harkey v. NextGen Healthcare, Inc., the employee, a newly promoted sales representative, claimed that she had been sleepwalking at the time. She did not solicit her male coworker (again, she claimed to be unconscious) or expose herself. She simply got in his bed. And although she had previously been at the hotel bar having “a few drinks” with other coworkers before heading to her room and falling asleep in front of the television, the sales employee insisted that the source of the problem was sleepwalking. She said as a child had experienced this problem “from time to time.”

From the male coworker’s perspective, the situation was sheer panic. As a married man, what would his wife conclude if he were to be found with a woman in his room, in his bed, wearing nothing but a robe? For that matter, what would his employer think? He had tried to stop the sales representative at the door by saying “you’re in the wrong room” and “you need to get out.” But the sales rep got in his bed and as he recounted, “she just laid there, didn’t move…”  He could not rouse her.

Acting fast, he called his supervisor who was also at the convention, for help. His supervisor did not recognize the coworker (newly promoted to sales) so they called the HR director who was on site. The HR director took charge; she pulled back the covers and after great effort, woke the employee (who the HR director reported “smelled of alcohol” and had “exposed skin” –observations that the male coworker did not corroborate). With the help of hotel security, the sleepwalking employee was returned to her room next door while she apologized and expressed embarrassment.

The next morning, the somnambulant sales representative was put on paid leave pending an investigation. She promptly called her doctor and got a referral to a diagnostician, which she reported to the HR director, promising that she was taking the matter seriously. A few days later the sales employee emailed the HR director to confirm that she had an appointment with the diagnostician the following week. Later that day, the employee was terminated. She sued, claiming she was fired on account of a disability.

The court noted that proof of disability discrimination under the Americans with Disabilities Act in a case such as this requires a showing that the employee had a disability, was qualified, and suffered an adverse action because of her disability. Here, there was no question the employee was qualified (she had just been promoted) and suffered an adverse action. However, the court reasoned, the evidence did not support the conclusion that the employee was fired “because of a ‘disability’ under the ADA.” The court reasoned, “Even if her sleepwalking disorder was a ‘disability’ under the ADA, she was fired because of what happened when she sleepwalked.”

The company fired her because:

“She entered into a male co-worker’s room just after midnight, uninvited and wearing only a robe, and got into his bed. Set aside any peripheral explanations for her action, [the company] now had a situation on it hands. A male employee had an unconscious-but-somehow-active female in his hotel room, under the covers of his bed, while on a work trip.

In that light, [the company] had to make a decision. That [the sales employee’s] “severe, unprofessional, and inappropriate” conduct was purportedly caused by her sleepwalking disorder is of no matter. The ADA does not give employees license to act with impunity.”

The takeaway for employers is that an after-the-fact disability-based explanation for misconduct does not, in most cases, prevent the employer from firing employees for “fireable offenses.” The caveat – if an employer meted out a lesser punishment for a non-disabled employee in similar circumstances then the disabled employee could well state a claim. But what “similar circumstances” would be in a case like this is a head scratcher!

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