This post was authored by Kristin D. Lindgren


Employers are well aware that employee disabilities can create mine fields due to the technical nature of disability discrimination laws.  Even the most well-intentioned employers can run into trouble.  But, what happens when the employer has recommended discipline of an employee, and the employee informs the employer for the first time in the Skelly meeting that he or she has a disability?  Must the employer stop the disciplinary process?  This issue was addressed recently by the 9th Circuit Court of Appeals in the case of Alamillo v. BNSF Railway Company. The Court found in favor of the employer, but employers should still tread very carefully and should ensure they were not previously on notice of a potential disability before the disciplinary action.

Alamillo v. BNSF Railway Company

Antonio Alamillo worked as a locomotive engineer for BNSF Railway Company.  Because of his seniority, Alamillo could choose from two schedules: (1) a five-day-per-week schedule with regular hours; or (2) a schedule which requires employees to work only when called (the “extra board” schedule).  Alamillo chose the extra board schedule.  If an extra board employee failed to answer or respond to three phone calls from the employer within a single 15-minute period, BNSF would deem the employee to have “missed a call.”  An employee who “missed a call” would be marked absent for the day.  A fifth missed call within a 12-month period could result in dismissal pursuant to company policy.

Alamillo missed 10 calls in 2012.  For the first three missed calls, Alamillo received additional training instead of discipline.  For the next four missed calls, he received a 10-day suspension and a 20-day suspension.  A supervisor advised Alamillo to obtain a pager or a landline number where BNSF could contact him to ensure that he would not miss another call.  He did not do so, or take any other action to make sure he would not miss another call.   Alamillo missed three more calls, the last being on June 16, 2012, and BNSF decided to impose discipline.  Alamillo switched to a regular schedule, and was able to wake up on time and appear at work on time every day.  On July 29, 2012, Alamillo was diagnosed with obstructive sleep apnea (“OSA”).

BNSF ultimately terminated Mr. Alamillo’s employment for his last two missed calls.  No medical professional opined that the last two missed calls were a result of Alamillo’s OSA, but Alamillo’s doctor stated that not being awakened by a ringing phone was “well within the array of symptoms of OSA.” Alamillo’s union appealed his dismissal and he was reinstated.  Nevertheless, he sued BNSF for violation of the Fair Employment and Housing Act including disability discrimination, failure to accommodate, and failure to engage in the interactive process.

The Ninth Circuit held that Alamillo’s claim failed because he could not demonstrate an element of a prima facie case of disability discrimination – in particular, that his disability was a “substantial motivating reason for” BNSF’s decision to terminate him.  The Court pointed out that BNSF did not know that Alamillo was disabled when the decision to initiate disciplinary proceedings was made, and that Alamillo conceded that BNSF “disregarded” his disability when it decided to terminate him.

In addition, the Ninth Circuit held that, even if Alamillo could state a prima facie case of disability discrimination, he could not demonstrate another required element for such a claim – that the employer’s stated reason for the discipline was “false or pretextual or based on discriminatory animus.”  Alamillo attempted to argue that his absenteeism was caused by his OSA. However, the Court found there was no evidence the two missed calls upon which the termination was based were caused by the OSA.  In addition, the Court found it persuasive that Alamillo could have taken several steps that would have allowed him to come to work early.  The Court stated, “thus, Alamillo’s OSA may have been a contributing factor to his attendance violations, but only due to his own non-OSA-related carelessness and inattention.”

The Court also held that BNSF did not fail to accommodate Alamillo.  First, BNSF did provide Alamillo with a five-day-per-week schedule, which was an accommodation.  Second, the Court held that BNSF was not required to provide “leniency” or otherwise decide not to terminate Alamillo based on his disability, because “a second chance to control a disability in the future” is not a reasonable accommodation.”  The Court cited to EEOC Enforcement Guidance, which states that employers are not required to excuse past misconduct even if it is the result of an individual’s disability, because reasonable accommodation is always prospective.  For the same reasons, Alamillo’s interactive process claim failed.

Practical Advice After Alamillo

Alamillo should not lull employers into a sense of safety that they do not need to engage in the interactive process with an employee who raises a disability only after the disciplinary process has begun.  The Ninth Circuit was not forgiving of Alamillo’s failure to take advantage of opportunities to address his attendance problems.  But, that is not always the case.

In a case Alamillo cited in his appeal, Humphrey v. Memorial Hospitals Association (9th Cir. 2001) 239 F.3d 1128, the Ninth Circuit reached an opposite holding, finding that the employee’s absenteeism was directly caused by her disability, and that the employer’s discipline of her because of her absenteeism meant that her employer disciplined her because of her disability.  The discipline, therefore, constituted disability discrimination.  Alamillo, on the other hand, was able to attend work on time even with his disability when he worked a different schedule.  This appeared to be the ultimate basis for the Court’s decision – the employee’s ability to essentially accommodate his own disability.  As noted above, disability discrimination cases are often very technical.  They turn on the very specific facts of the case, and the specific limitations of the employee.  That was the case here.

If an employee raises a disability for the first time after a recommendation for discipline, such as during a Skelly conference, the employer should be mindful that imposing the discipline may create risk and liability to the agency if it is determined that the employee’s disability has caused the misconduct.  A better process is the following:

  • Pause the disciplinary process.
  • Obtain a medical certification from the employee’s physician which provides:
    • Whether the employee has a physical or mental impairment that limits his or her ability to engage in a major life activity;
    • If the employee has a physical or mental impairment, whether the impairment currently affects the employee’s ability to perform the essential functions of his or her job, and the nature of those limitations.
    • Whether there is an accommodation that would enable the employee to perform his or her essential job functions.
    • If there is a particular behavior or performance problem for which the employee is being disciplined (e.g., absenteeism), whether the employee’s impairment causes that behavior or performance problem.
    • Whether the employee’s continued performance of his or her job duties poses a significant current risk of substantial harm to the health and safety of the employee or others.
      (Remember never to ask for the employee’s diagnosis or other medical information!)
  • Engage in the interactive process with the employee, including holding an interactive process meeting to discuss the physician’s certification, any job restrictions and potential accommodations.
    • The disciplinary process is separate from the interactive process.
    • The interactive process may require multiple meetings. Remember that the interactive process is an ongoing dialogue between the employee and employer about possible options for reasonably accommodating the employee’s disability.
    • Document any interactive process meetings.
  • Other things to consider:
    • Did the employer receive any information from the employee of a potential disability prior to implementation of the discipline? The employee does not necessarily have to notify the employer of the disability for the employer to potentially be aware of the disability.
    • If the discipline is based on excessive absenteeism, determine whether the employee’s absences are protected under various federal and state statutes, such as Protected Sick Leave (formerly Kin Care), Paid Sick Leave, or FMLA/CFRA. If it is determined that some of the absences are protected while others are not, employers must consider whether the unprotected absences, standing on their own, are considered excessive as defined by the employer’s policies and procedures.
    • Make sure employer policies are applied consistently to avoid claims of disparate treatment.
    • As with all high-risk terminations it’s important to contact your attorney to discuss all issues prior to terminating or disciplining.

If an employee raises a disability during the Skelly, employers must consider all of the above before deciding whether it is still appropriate to impose discipline.