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Discipline for absenteeism predated diagnosis of fired employee’s sleep apnea

By Kathleen Kapusta, J.D.

Finding no evidence to support a railroad employee’s assertion that his obstructive sleep apnea (OSA) was a substantial motivating reason in the decision to terminate him for his attendance policy violations, the Ninth Circuit affirmed the grant of summary judgment against his FEHA wrongful discharge claim. And even if he had made a prima facie case of discrimination, the court found no evidence of pretext. Summary judgment was also affirmed as to his failure-to-accommodate and interactive process claims (Alamillo v. BNSF Railway Co., August 25, 2017, Feinerman, G.).

Given the choice to work either a standard schedule with regular hours or on the “extra board,” the locomotive engineer chose the extra board, which required him to come to work only when called. Under BNSF policy, if an extra board employee fails to answer or respond to three phone calls within a single 15-minute period, he will be deemed to have “missed a call” and marked as absent for the day. A fifth missed phone call during any 12 month period may result in termination.

Missed calls. In the first six months of 2012, the employee missed 10 phone calls. For the first three missed calls, he chose to receive “alternative handling” and received additional training instead of discipline. After the next four missed calls, he received suspensions and was advised by the terminal superintendent to get a landline or pager. The employee did not do this, however, as he was having an affair and did not want the railroad to call a landline number when he left the house to see his girlfriend when his wife thought he was at work. Nor did he seek a transfer to a regular shift, ask his wife to wake him up if his mobile phone rang while he was sleeping, or check the electronic job board to see the jobs for which he might be called the next day.

OSA diagnosis. After he missed another call on June 16, he told a BNSF general manager that he intended to undergo testing for a possible sleep disorder and asked to switch to a job with set hours. The GM told him to follow the usual procedure to bid on another job but added that the disciplinary process for his missed calls would proceed. The employee underwent a sleep study and was diagnosed with OSA. He provided a doctor’s report to BNSF on August 18 and discussed his diagnosis at the August 22 disciplinary hearing, submitting his doctor’s opinion that not being awakened by a ringing phone is “well within the array” of OSA symptoms. Nevertheless, he was terminated based on the missed calls.

He then sued for wrongful discharge in violation of public policy based on underlying violations of FEHA. Granting summary judgment to BNSF, the district court found it could not have violated the statute because his attendance violations took place before he was diagnosed with a disability and before any accommodation was requested.

Disability discrimination. Affirming, the appeals court found no evidence that his OSA was “a substantial motivating reason for” BNSF’s decision to terminate him. Not only did the railroad not know he was disabled when the decision to initiate disciplinary proceedings was made, the employee conceded that it disregarded his disability when it decided to terminate him. And even if he had made a prima facie case of discrimination, there was no evidence of pretext.

Emails. The employee’s pretext argument was based entirely on emails in which the railroad’s labor relations director recommended his dismissal and the general manager agreed. In the emails, the director noted that the employee “entered documentation to support his argument that he has sleep apnea; this was allegedly the reason he did not hear his phone ring. While certain arbitrators could be sympathetic, he did not seek assistance until after he faced dismissal (this would be his second dismissal), which is arguably too late.” While she considered the possibility that sleep apnea may have prevented him from hearing his phone, she refused to change her decision on that basis, the court observed, but this was not evidence “which would permit a reasonable trier of fact to conclude the employer intentionally discriminated.” To the contrary, said the court, it reinforced the conclusion that BNSF’s assertion that it fired the employee for his history of attendance violations was sincere.

And while he relied on Humphrey v. Memorial Hospitals Association, in which the Ninth Circuit observed that “[f]or purposes of the ADA … conduct resulting from a disability is considered to be part of the disability, rather than a separate basis for termination,” the court found it unpersuasive. In Humphrey, the plaintiff’s absenteeism was the direct result of her obsessive compulsive disorder, while here there was no evidence that OSA caused the missed calls at issue. The employee’s physician stated only that not being awakened by a ringing phone falls “within the array of symptoms” of OSA, not that there was a direct causation in the employee’s case.

Carelessness, inattention. Further, unlike the plaintiff in Humphrey, the employee easily could have taken steps that would have allowed him to appear for work despite his disability. Although OSA may have been a contributing factor to his attendance violations, it was due to his own non-OSA-related carelessness and inattention, the court explained, finding that BNSF did not engage in unlawful discrimination by declining to alter the employee’s disciplinary outcome based on his OSA diagnosis.

Other claims. Nor did the railroad violate its reasonable accommodation duty by failing to change the employee to a constant work schedule, as he contended, because it did switch him, at his request, to a job with regular hours. As to his claim that it failed to choose the non-mandatory termination option or offer leniency in light of the circumstances, a second chance to control a disability in the future is not a reasonable accommodation, said the court. Finally, while the employee argued that BNSF failed to engage in the interactive process after his attendance violations had already occurred, no reasonable accommodation could have cured his prior absenteeism at that point, the court observed, finding that it “necessarily follows that no reasonable jury could find in [the employee’s] favor on the interactive process claim.”