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Fifth Circuit Rules Sleepwalking Employee Who Crawled Into Bed With Coworker Cannot Prove Disability Discrimination

On July 15, 2022, the U.S. Court of Appeals for the Fifth Circuit affirmed a district court’s ruling that a female employee who crawled into a male coworker’s bed while “sleepwalking” and was subsequently discharged failed to establish disability discrimination under the Americans with Disabilities Act (ADA) and the Texas Commission on Human Rights Act (TCHRA). Specifically, the Fifth Circuit held in Harkey v. NextGen Healthcare, Inc., that the employee’s termination did not occur because of her sleepwalking condition but because of her behavior while sleepwalking.


Jennifer Harkey, a former employee of NextGen Healthcare, Inc., attended an out-of-town sales conference on October 10, 2018. That evening, after having dinner and drinks with a female coworker and returning to her own hotel room, Harkey left her room and knocked on the door of a male coworker’s room in the same hotel. The male coworker opened the door and observed Harkey wearing nothing but a “black cotton robe.” Harkey then entered the room belonging to her male coworker, got into his bed, and “pulled the sheets all the way up to her face,” at which point she became “‘nonresponsive.’” Hotel security ultimately came to the room, awakened Harkey, and assisted her back to her room. The male coworker also notified NextGen’s human resources department.

The next morning, NextGen’s human resources director suspended Harkey and placed her on a paid leave of absence. That same day, Harkey contacted a diagnostician to discuss the incident but was unable to secure an appointment for some time. Before Harkey was able to see the diagnostician, NextGen terminated her employment. Subsequently, the “diagnostician diagnosed her condition as somnambulism, otherwise known as ‘sleep walking disorder.’” Harkey sued NextGen, alleging her termination violated the ADA and TCHRA, but the district court granted summary judgment for NextGen.

The Fifth Circuit’s Analysis

The Fifth Circuit affirmed summary judgment for NextGen, concluding that even if Harkey’s sleepwalking disorder was a cognizable “disability” under the ADA, NextGen terminated her employment “because of what happened when she sleepwalked,” not because of the disorder itself.  Her disorder caused her misbehavior—“[s]he entered a male co-worker’s room…, uninvited and wearing only a robe, and got into his bed”—but did not excuse it.

Key Takeaways

The Fifth Circuit’s decision is helpful precedent to establish that basing an employment decision on misbehavior is legitimate and nondiscriminatory, even if a disability caused the misbehavior. Because every situation is different, employers may want to analyze each one carefully.

© 2023, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume XII, Number 202

About this Author

Ron Chapman, Ogletree Deakins Law Firm, Employment and Litigation Attorney

Ron serves on the Firm’s Board of Directors. He is Board Certified in labor and employment law by the Texas Board of Legal Specialization and represents employers in all areas of labor and employment law, including discrimination, harassment, retaliation, wage and hour, class and collective actions, non-competition and non-disclosure covenants, leaves of absence, employment agreements and policies, union campaigns, collective bargaining, unfair labor practices, and workplace safety. Ron successfully coordinates work throughout the firm’s many offices for clients with...

Shaina E. Hicks Dallas Labor Lawyer Ogletree Deakins

Shaina E. Hicks is an Associate at Ogletree's Dallas office. She represents employers and management in matters related to labor & employment disputes. Her practice includes the representation of employers in federal and state litigation with respect to claims of discrimination, harassment, retaliation, breach of contract, and employment-based torts.

Shaina also counsels public and private sector employers on traditional labor law issues and has experience working on interest arbitration, grievance arbitration, and collective bargaining...