By Stan Hill and Cary Reid Burke

Seyfarth Synopsis: Recently, when affirming summary judgment to the employer in a disability discrimination case, the Fifth Circuit Court of Appeals issued two welcome reminders. First, to pursue a disability accommodation, an employee must actually ask for an accommodation (although not necessarily using any magic words). Second, and just as fundamentally, employees must be awake at work to do their job.

In Clark v. Champion Nat’l Sec., Inc., Case 18-11613 (5th Cir. Jan. 14, 2020), Plaintiff was a personnel manager for Champion National Security, Inc., which provides uniformed security services to other companies. Among other duties, Plaintiff trained the security guards and provided employees with guidance regarding Champion’s policies, including its “alertness policy.”

Plaintiff purportedly suffered from a variety of ailments, including Type-II diabetes. During his employment, Plaintiff requested — and Champion granted — two separate accommodations regarding his diabetes. First, he asked for a refrigerator in his office to store insulin. Second, Plaintiff asked for “flexibility” to be able to leave work to go to doctor’s appointments. Plaintiff did not ask for any other accommodations related to his diabetes during his employment.

Additionally, Plaintiff twice asked to be excused from Champion’s grooming policy, which required all employees to be clean-shaven. The first time he asked to be excused, Plaintiff stated only that he wanted to “grow [a] small beard,” and his request was denied. Three months later, Plaintiff asked again, and submitted a doctor’s note in support of his request that provided he should be excused from the grooming requirement because he “has eczema and dry skin.” Champion granted Plaintiff’s request based on the doctor’s note.

In April 2016 Plaintiff filed a complaint with Champion’s human resources department alleging that he had been harassed based on his purported skin condition. The complaint was investigated, and it was determined that Plaintiff was not harassed.

In August 2016, an employee told Plaintiff’s manager that Plaintiff was closing his office door for long periods of time and could be heard snoring. Not long thereafter, Plaintiff’s manager received an anonymous message that contained a picture purporting to show Plaintiff asleep at his desk. Critically, “lack of alertness at work,” which includes sleeping or appearing to sleep, is an immediately terminable offense. Even so, Plaintiff was not terminated at the time because terminating an employee based solely on an anonymous picture would have deviated from Champion’s practices, which included collecting at least two witness statements.

On December 7, 2017, an employee reported to Plaintiff’s manager that Plaintiff was asleep at his desk. Plaintiff’s manager went into Plaintiff’s office, found him asleep, and took a picture of him. Then, Plaintiff’s manager sent the picture, as well as two employee statements, to human resources. Not long thereafter, Plaintiff woke up — on his own — and did not seem to be in any distress.

Later that same day, Plaintiff received a call from human resources, and was told he was terminated. Thereafter, Plaintiff filed suit, alleging violations of the Americans with Disabilities Act and corresponding state law. The District Court granted Champion’s motion for summary judgment regarding all of Plaintiff’s claims, and Plaintiff appealed.

The Fifth Circuit affirmed. The Court began its ruling with an extended discussion of what constitutes direct evidence of discrimination, which the Court emphasized was “rare.” Direct evidence is a statement or document that shows “on its face that an improper criterion served as a basis . . . for the adverse employment action.” To be considered direct evidence of discrimination, a given statement must be 1) related to the protected class of persons of which plaintiff is a member; 2) proximate in time to the terminations; 3) made by an individual with authority over the employment decision at issue; and 4) related to the employment decision at issue.

Plaintiff set forth two instances of purported direct evidence to support his allegations. Plaintiff’s first argument was that Champion had a generalized knowledge of his diabetes, which the Court held was not direct evidence because it was not a statement at all. Plaintiff also pointed to a statement made by Mays, Champion’s vice president, which presented the Court with a closer question. Specifically, when informed that Plaintiff had been asleep at his desk, Mays responded, “Perfect . . . let him go.” Yet this was not direct evidence either because Mays was not the final decision maker regarding Plaintiff’s termination (which Plaintiff conceded).

Plaintiff’s disability discrimination claim also failed on a McDonnell Douglas indirect evidence theory because he was not a qualified individual with a disability. Specifically, Plaintiff could not perform the essential functions of his job, with or without a reasonable accommodation. As the Court explained, “maintaining consciousness is a basic element of any job.” Accordingly, and given Plaintiff conceded he could not do his job if he was not awake, Plaintiff’s discrimination claim failed.

The Court next turned to Plaintiff’s accommodation claim, which failed because Plaintiff did not set out a reasonable accommodation that would have allowed him to do his job. Even more fundamentally, Plaintiff never requested an accommodation for “loss of consciousness due to diabetes.” Rather, the only accommodation he sought during his employment was to be excused from the grooming policy (which was granted).

Additionally, Plaintiff’s hostile work environment claim failed because Plaintiff could not show that any purported harassing conduct was based on his disability. Instead, his harassment claim was based on his request to grow a beard in contravention of Champion’s grooming policy because he had sensitive skin. Yet Plaintiff’s harassment claim failed because he did not allege that his dry skin constituted a disabling condition, and as a result, any discussions about the same (if such could even be considered harassing), were not based on his alleged disability (diabetes).

Plaintiff’s final claim, retaliation, also failed because Plaintiff could not connect any protected activity with the decision to terminate his employment. To make out the necessary “causal link” between protected activity and an adverse action, Plaintiff had to “show that the employer’s decision to terminate was based in part on knowledge of the employee’s protected activity.” He did not. The only protected activity Plaintiff arguably engaged in when employed was his internal complaint that he had been “harassed” for asking to be excused from the grooming policy. Fatal to Plaintiff’s claim, he did not produce any evidence that his termination was connected to this internal complaint in any way.

Employer Takeaways

The Court’s decision comes as welcome news to employers. Foremost, the Fifth Circuit reaffirms that — except in exceedingly rare circumstances — being awake is an essential job function. Additionally, the onus is on the employee, not the employer, to ask for a job-related accommodation. Of course, once the employee asks for an accommodation, the employer is obligated to engage in the interactive process in good faith. But critically, the employee must still start the process by making the ask.

For more information on this topic, please contact the authors, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Labor & Employment Team.