Employees in the health care profession who receive discipline for sleeping on duty face high hurdles to succeed on employment discrimination claims. In Arana v. Temple University Health System, Civ. A. No. 17-525, 2016 U.S. Dist. LEXIS 74921 (E.D. Pa. May 3), the U.S. District Court for the Eastern District of Pennsylvania dismissed a lawsuit by such an employee. The court rejected the employee's argument that her employer should have accommodated her medical conditions by allowing extended breaks, as she had not requested accommodations beyond the FMLA leave that she received.

Call Center Specialist

Wanda Arana worked in the Temple University Health System's 24-hour call center as a call center specialist—a safety-sensitive position. Her duties included sending and receiving calls. The calls involved paging doctors, checking on patient status and general inquiries. Her most important responsibility was “STAT” calls, “which are emergency calls for urgent patient care or for security issues.” Accordingly, patients' lives could depend on Arana's ability to fulfill her duties.

Medical Conditions and FMLA

Arana suffered from migraine headaches, diabetes and diabetes-related conditions. Her symptoms included dizziness, nausea, vomiting, diarrhea, shakiness and pain.

Throughout her employment, Arana requested and received FMLA leave. In 2015, she received FMLA leave due to a hospitalization. Upon her return, Temple granted Arana intermittent FMLA leave due to potential flare-ups of Arana's conditions necessitating her absence from work. Arana took seven days of intermittent leave between May and July 2015 and left work early several times during that period.

Arana's supervisors were aware of her FMLA leave. When taking intermittent leave, she provided several hours of notice so her supervisors could obtain coverage for her shift. Before notifying her supervisors, Arana contacted coworkers to see if they could cover for her, which she claimed her supervisors pressured her to do. She admitted, however, her supervisors never explicitly directed her to seek coverage and that she used her intermittent leave even when she was unaware whether there would be coverage.

Arana felt her FMLA leave was an “inconvenience” to Temple. She alleged one of her supervisors once told her she could not take intermittent leave due to a lack of coverage.

Lengthy Disciplinary Record

Arana had a history of performance and disciplinary issues. This included several disciplinary notices for lateness and job-related errors. Significantly, Arana received notices for failure to respond and delayed response to STAT calls.

In 2014, Arana received a final written warning for a protocol violation, which included mishandling STAT calls. In 2015, she received a one-day suspension for continued protocol violations and was advised future violations could result in termination.

In July 2015, a nurse complained she had difficulty reaching the call center during one of Arana's shifts. Records revealed that Arana had logged off her computer for one-hour and 40 minutes on the shift in question and a pattern of failing to timely return from her one-hour allotted break.

Termination for Sleeping on Duty

Arana's workplace issues culminated on July 24, 2015, when her supervisor found her asleep on an overextended break while she was supposed to be on duty. As a result, Temple terminated Arana's employment on July 28, 2015, for job abandonment and sleeping on duty—both of which are grounds for immediate termination under Temple policy. Arana's termination notice also detailed her disciplinary record.

Following Arana's termination, she brought suit against Temple, asserting claims under the ADA and PHRA for failure to accommodate, disability discrimination, retaliation and failure to engage in the interactive process; and under the FMLA for interference and retaliation. At the close of discovery, Temple filed for summary judgment.

Kind Acts by Supervisor and FMLA Leave Requests

The fact Arana's supervisor helped her during a personal emergency room visit and arranged a meeting to discuss diabetes management did not constitute a request by Arana for an accommodation. The court determined these “kind acts” by Arana's supervisor were not job-related, but rather were for the personal benefit of Arana. Accordingly, they were irrelevant to Arana's failure to accommodate claim.

While acknowledging an FMLA request can constitute a request for an accommodation, the court found that Arana's requests for FMLA leave did not constitute requests for additional accommodations beyond the leave itself. Accordingly, the court rejected Arana's argument that Temple should have granted her additional accommodations, such as the ability to take extra or extended breaks. Finally, the court noted that a failure to engage in the interactive process is a component of a failure to accommodate claim rather than an independently actionable claim. Thus, the court dismissed Arana's failure to accommodate and failure to engage in the interactive process claims.

Dispute Over Sleeping on Duty Insufficient

In relation to Arana's allegation that she was wrongfully terminated in violation of the ADA, PHRA and FMLA, the court easily disposed of Arana's argument that she was not actually sleeping on duty. Arana's admission that “she was slouched in a chair under a blanket … with the lights off” provided Temple with at least an “honest belief” she was asleep. The court also found Arana's argument that similarly situated employees were permitted to sleep while on duty had no factual support.

Moreover, the court found that regardless of whether Arana was sleeping on duty, she did not dispute she was absent from her workstation while she was supposed to be on duty. This constituted job abandonment under Temple policy and was alone grounds for immediate termination. The court explicitly noted the patient safety concerns implicated by Arana's conduct. Accordingly, the court dismissed Arana's discrimination, disparate treatment and retaliation claims.

Discouragement to Use Intermittent Leave

The court found the one instance where Arana's supervisor allegedly discouraged her from taking intermittent FMLA leave was insufficient to support an interference claim. Arana had no evidence to corroborate her self-serving testimony about the incident and admittedly took leave before and after the incident allegedly occurred. Thus, the court dismissed her interference claim.

Two key points can be drawn from the court's decision. First, courts seem to place more scrutiny on discrimination claims by employees in safety-sensitive positions—especially where the employee's actions could place others at risk. Second, an employee who receives FMLA leave and desires accommodations beyond that leave must make a separate request for those additional accommodations.

Sid Steinberg is a principal and chair of Post & Schell's employment and employee relations and labor practice groups. Steinberg's practice involves virtually all aspects of employee ­relations, ­including ­litigation experience defending employers against employment discrimination in federal and state courts. He also represents ­employers before federal, state and local ­administrative agencies, and regularly advises employers in matters including employee discipline, labor relations, and the creation or revision of ­employee handbooks. He can be reached at [email protected].