You read the headline right: Despite 27 workplace violations, a three-judge panel from the U.S. 5th Circuit Court of Appeals (the federal appeals court for Texas) decided the employee still gets to take her Americans with Disabilities Act (ADA) and Family and Medical Leave Act (FMLA) claims to trial. Yes, it was by a 2-to-1 vote, but losing is still losing. Let’s start with the workplace misconduct, see how she beat the rap, and conclude with lessons learned.
Count Them Up!
Jennifer Ramsey worked for San Jacinto College District (SJC) in the Learning Technology department from 2005 until her termination in December 2021. From January 2021 until her termination, she violated workplace rules 27 times. I’ll spare you a blow-by-blow, but here are the highlights in chronological order:
- January 13—late to work;
- January 15—late to work;
- April 27—doesn’t reply to supervisor’s message for over six hours;
- May 12—doesn’t submit timely reports;
- June 3—late to work, missed a meeting;
- June 28—doesn’t come into work, fails to complete assignment;
- September 24—fails to timely compete an assignment;
- Fall 2021—late to work several times;
- Fall 2021—failed several times to submit timely reports;
- November 4—issued a Final Corrective Notice;
- December 1 (the proverbial straw)—submitted an assignment promised on October 18 containing “multiple errors “ and which was “unacceptable”; and
- December 3—termination.
Whew! Yes, she had medical issues affecting her “vision, hearing, balance and other cognitive functions.” But as the dissenting vote on the three-judge panel points out:
Given this woeful record, I cannot image how any reasonable juror could conclude that SJC’s stated reasons for firing Ramsey were [a pretext, or false reason, for unlawful ADA/FMLA violations]. Many of Ramsey’s excuses for her poor performance had nothing to do with her medical problems [rather she blamed]: traffic, “mismanaged . . . time,” a late dishwasher delivery, a “slow tire leak,” a visit from her daughter, and “ rodent carnage.”
I have no idea what “rodent carnage” refers to. Oh, and when Ramsey needed to miss work for doctor’s appointments, her supervisor “approved every request she made.” Still, she sued for violations of the ADA and the FMLA. The trial court tossed her lawsuit. The 5th Circuit reinstated it.
What Went Wrong?
Two judges said there was enough evidence for a jury to conclude the termination was unlawful. Here’s their reasoning:
Previous evaluations. Ramsey signed off on her performance review on July 2021 for the period from April 2020 to April 2021. The supervisor wrote there were “times this year where accountability could be improved in timely completing tasks or work products,” but overall she was a “valuable” contributor. But the supervisor gave her an addendum in early July outlining three additional instances of communication issues and tardiness, encouraging her to improve under her new supervisor.
Final corrective action notice lacked context. Here’s what the two judges said:
On November 4, 2021, [the supervisor] sent Ramsey a “Final Corrective Action Notice,” which cited [among other matters] Ramsey’s continued late arrivals to meetings and missed deadlines. The notice also discussed instances where Ramsey was “unprofessional” and spoke in elevated tones. The notice described Ramsey’s negative reaction to a conversation with her supervisor about these instances where she was quoted as saying, “Why do I have to accommodate everyone [else]? Nobody accommodates me.” Ramsey has explained that this description did not include the context that she was trying to clarify that her voice was raised because of her hearing issues.
Conversation on November 21, 2021. When Ramsey met with her supervisor on November 21, she reported that she had a brain injury and had been written up three times. She had talked to HR and believed she had a case with the Equal Employment Opportunity Commission (EEOC) and the Texas Workforce Commission (TWC). She explicitly said of the way she had been treated, “This is wrong.”
Supposed contradictions in supervisor’s sworn statement submitted by SJC. This one really eludes me because I don’t see any contradictions. The supervisor testified that he knew she had multiple health issues but didn’t know she had a legal disability.
Now a jury will decide if there are violations of the ADA and the FMLA, including retaliation. Ramsey v. San Jacinto College District (5th Cir., August 5, 2026).
Bottom Line
What have we learned?
First, on the Final Corrective Action Notice, leave a section for the employee to comment. And give the employee time to do so, say 48 hours. If Ramsey had left off her contextual explanation, then she would be effectively foreclosed from raising it later.
Second, writing the addendum was a good idea. Make it work for you by grandfathering it into the Final Corrective Action Notice such as:
While you had a good review for 2020-2021, we put you on notice in July 2021, post-review submission, and encouraged you to work on these issues with your new supervisor. This wasn’t done, and your review violations continued through 2021.
Note here the use of a positive/negative sentence starting with “while,” which acknowledges the good (or as Ramsey might put it, provides “context”) but is immediately followed up with the hard message.
Third, never have your operational supervisors testify to a legal conclusion such as whether there was a legal disability. That isn’t their area of expertise, and they need not offer such an opinion. Doing so, as we saw here, leads to unnecessary complications.
Fourth, as the dissenting judge did here, argue that the legitimate reasons for the termination were overwhelming, her excuses 100% unrelated to her protected status, and thus no violation. A different panel of judges might well decide differently.
Finally, when preparing to terminate, always follow the wisdom of Sun Tzu: Victorious warriors win first and then go to war, while defeated warriors go to war first and then seek to win.
Michael P. Maslanka is a professor at the UNT-Dallas College of Law. You can reach him at michael.maslanka@untdallas.edu.