In Harkey v. NextGen Healthcare, the U.S. Court of Appeals for the Fifth Circuit recently upheld the dismissal as a matter of law of an interesting case involving a sleepwalking employee who ended up in the bed of a co-worker that she did not know. How this case factually arose is truly bizarre but a review of the legal arguments in the case shows missed opportunities on how to keep the claim alive.

The facts are worth repeating briefly. The plaintiff, Jennifer Harkey, a NextGen employee of 10 years, attended a national sales conference at a large hotel. After dinner, she went to her room to sleep around 10 p.m., and, within a couple of hours, began sleepwalking in the hallways of the hotel.