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Diabetic call center employee fired for dropping calls, not discrimination or FMLA use

By Kathleen Kapusta, J.D.

A diabetic call center employee terminated for hanging up on customers while allegedly suffering from low blood sugar failed to show the decisionmaker’s belief she intentionally dropped the calls was the product of discriminatory intent or that the company did not conduct a fair investigation into her conduct. Accordingly, the Tenth Circuit affirmed summary judgment against her ADA discriminatory termination claim. And because her retroactive request that the company overlook her misconduct was not a reasonable accommodation, summary judgment was also affirmed against her failure-to-accommodate claim. Finally, the court refused to revive her FMLA retaliation claim, finding she failed to raise a triable fact issue regarding pretext (DeWitt v. Southwestern Bell Telephone Co., January 18, 2017, Holmes, J.).

Throughout her employment, the company allowed the insulin-dependent employee to take breaks to eat or drink to raise her blood sugar as needed. She also used intermittent FMLA leave for health issues related to her diabetes and as a result was, according to a former manager, purportedly placed on a “target list” as an employee who used FMLA leave and should be fired if possible for other reasons.

Disconnected. When the employee mistakenly left phone service on a customer’s account after the customer cancelled the service, she was placed on a last chance agreement (LCA). Two months later, she purportedly suffered a severe drop in blood sugar, causing her to experience disorientation and confusion, and to hang up on two customers. Although she claimed in a subsequent meeting that she did not remember the phone calls due to her low blood sugar, she was terminated. She then sued under the ADA and FMLA but the district court granted summary judgment to her employer.

ADA termination claim. On appeal, the court found that the employee’s ADA termination claim failed at the pretext stage because she could not show her disability motivated her termination. Although she attempted to discredit the decisionmaker’s belief she intentionally hung up on the customers, the court found that belief had an objective basis in the record. The employee had been placed on the LCA, which allowed termination for a violation of the company’s Code of Business Conduct. Two months later, she violated the Code when she hung up on the customers. Further, the decisionmaker conducted a “Day in Court” so that the employee could share her side of the story before concluding that she intentionally dropped the calls.

Moreover, in reaching this decision she considered multiple factors, including that terminating a phone call requires two separate clicks of the mouse; the employee never reported she was not feeling well; she did not take a break from accepting calls as she was allowed to do; she identified no witnesses who observed her disorientation; and her LCA put her job in jeopardy and thus could have motivated her to invent a disability-related cause for her misconduct. Pointing out it was immaterial whether the decisionmaker’s belief was actually correct, the court observed that what mattered was she honestly held that belief and acted on it in good faith.

While the employee pointed to another manager who had discussed terminating employees who used FMLA leave, and who upon learning of the employee’s dropped calls responded by doing a dance and saying “I finally got that bitch,” she was not a decisionmaker in the termination decision and there was no evidence her animus influenced the decisionmaker.

Ditch the honest belief doctrine. Rejecting the employee’s assertion that the honest-belief doctrine eviscerates the pretext prong of the McDonnell Douglas framework, and thus should not be applied, the court pointed out that it could not deviate from settled Tenth Circuit precedent. Nor does the doctrine eviscerate the pretext prong, as it establishes the context in which an employee may test the plausibility or coherency of the reasons supposedly underlying the honest belief with the aim of demonstrating that employer’s belief actually may not be honestly held. The court also refused to adopt the Sixth Circuit’s variation of the honest-belief doctrine, which requires an employer “be able to establish its reasonable reliance on the particularized facts that were before it at the time the decision was made,” finding that it conflicts with Tenth Circuit precedent.

Investigation. Also rejected was the employee’s argument that the decisionmaker’s failure to conduct a fair investigation of the dropped calls raised an inference of pretext. This argument was overcome by the simple fact that the decisionmaker asked the employee for her version of events at the “Day in Court.” Further, the employee failed to identify any evidence suggesting the investigation was unfair or disclose what additional steps she believed the decisionmaker should have taken.

Accommodation claim. Turning to the employee’s accommodation claim, the court observed that she did not request a reasonable accommodation to address concerns regarding the possibility of dropped calls; instead, she requested retroactive leniency for her misconduct, which was not a reasonable accommodation under the ADA. Pointing to an EEOC Enforcement Guidance, which makes clear that the requirement to provide reasonable accommodations is “always prospective,” and that “an employer is not required to excuse past misconduct even if it is the result of the individual’s disability,” as well as an unpublished Tenth Circuit decision and the decisions from other circuits, the court found the ADA does not require employers to accommodate disabled employees by overlooking a past violation of a workplace rule, regardless of whether that violation was caused by the employee’s disability.

The court also rejected the EEOC’s argument in its amicus curiae brief that the dropped calls constituted a violation of performance standards not a conduct rule. Observing that EEOC guidance provides that “the ADA generally gives employers wide latitude to develop and enforce conduct rules,” so long as the “conduct rule [is] job-related and consistent with business necessity . . . .” the court found the company’s Code of Business Conduct’s requirement that employees treat customers “in a professional, courteous manner,” was undoubtedly a conduct rule, and it could not seriously be argued in the customer-service setting that such a rule was not job-related and consistent with business necessity. Further, hanging up on customers was certainly a violation of this rule.

Moreover, given the centrality of customer service to the employee’s job, it could not be plausibly argued that this ostensible performance standard was a “marginal” part of her duties, such that the company was required to permit her to sidestep it. Finally, said the court, the company would not have been obligated to stay its disciplinary hand—based on the employee’s dropped calls under a LCA—simply because she purported to request, at the eleventh hour, an accommodation.

FMLA retaliation. As to her FMLA retaliation claim, the court found that the employee failed to show the company’s stated reason for terminating her was pretextual. Although she relied on the animus of the manager who stated “I finally got that bitch,” the court again pointed out she was not a decisionmaker with regard to the employee’s termination. Nor was there any evidence the decisionmaker had any knowledge of the manager’s animus toward the employee, let alone that she relied on it in terminating her.

And while the employee also pointed to the testimony of the former manager who identified the employee as being on the “target list” for having used FMLA leave, her employment ended more than a year before the employee was placed on the LCA and she had no first-hand knowledge of the circumstances surrounding the employee’s termination. Nor did she identify the decisionmaker as being among the managers in attendance at the meeting where FMLA leave was discussed.