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Court OK’s termination of diabetic employee for misconduct

published in McAfee & Taft EmployerLINC | March 20, 2017


Elizabeth Bowersox
Elizabeth Bowersox

 
By Elizabeth Bowersox


A recent federal appeals court decision case upheld an employer’s termination of a diabetic employee for misconduct, despite the employee’s argument that her poor work performance was a result of low-blood sugar.

Diabetic employee and performance issues

Janna DeWitt worked as a customer service representative in a call center for Southwestern Bell Telephone Company. She had Type I diabetes, and if her blood sugar levels were low, she would experience fatigue, lethargy, confusion and poor coordination. Throughout her employment at Southwestern Bell, the company allowed Ms. DeWitt to take breaks to eat or drink to raise her blood sugar levels as needed. If she was on a break, she did not need to answer customer phone calls.

Ms. DeWitt took intermittent FMLA leave in 2009 and early 2010 for health problems related to her diabetes. Although Southwestern Bell “frowned upon” employees taking FMLA leave, Ms. DeWitt was allowed to use the leave and to return to work.

In January 2010, Ms. DeWitt mistakenly left phone service on a customer’s account after the customer cancelled the service. This failure to remove a service plan from a customer’s account was a specific violation of Southwestern Bell’s Code of Conduct. Ms. DeWitt was placed on a “last chance agreement” for this conduct, which specifically stated that “even one incident of failing to maintain satisfactory performance in all components of her job” may lead to termination.

The decision to terminate

Two months after the last chance agreement, Ms. DeWitt suffered a severe drop in blood sugar while at work and was unable to stabilize her blood sugar after eating food and drinking juice. She experienced disorientation and confusion and called her supervisor for assistance with her computer. Her supervisor instead informed her that he had been monitoring her calls, and that she had hung up on at least two customers. In a meeting later that day, Ms. DeWitt explained that she did not remember taking the dropped calls and explained she had been experiencing low blood sugar levels at the time of the calls. She provided evidence of her blood sugar levels to Southwestern Bell.

Southwestern Bell later provided a pre-disciplinary hearing (called “A Day in Court”), where Ms. DeWitt could explain her side of the story regarding the dropped calls to a manager, Ms. Baskett-McEnany. Although Ms. DeWitt explained that she had been experiencing low blood-sugar levels, the manager chose not to believe this explanation and terminated Ms. DeWitt.

Ms. Baskett-McEnany had several reasons for not believing Ms. DeWitt’s story that the low-blood sugar levels caused her to hang up on the customers, including the fact that Southwestern Bell’s telephone/computer system made it difficult to hang up on a customer, requiring multiple mouse clicks.

Ms. Baskett-McEnany believed that doing so would require some level of coherence. Moreover, Ms. DeWitt operated successfully the rest of the day, interacted normally with a co-worker immediately before the first dropped call, and never took a break from accepting calls, which she was allowed to do if she had low blood sugar or did not feel well.

After her termination, Ms. DeWitt sued Southwestern Bell for disability discrimination, failure to accommodate her disability, and FMLA retaliation.

Why the employer won

With regard to disability discrimination, Ms. DeWitt claimed that terminating her for misconduct that she said was caused by her disability was terminating her based on her disability. The court disagreed, noting that Ms. DeWitt’s employer had articulated a nondiscriminatory reason for the termination – that Ms. DeWitt hung up on two customers while subject to a last chance agreement. Ms. DeWitt could not show that this reason was pretext for discrimination because Ms. Baskett-McEnany honestly believed that the dropped calls were not due to Ms. DeWitt’s low blood sugar. The court decided that “it is ultimately immaterial whether Ms. Baskett-McEnany’s belief was actually correct; what matters is that Ms. Baskett-McEnany honestly held that belief and acted on it in good faith.” In other words “our inquiry is not whether Ms. Baskett-McEnany’s view that Ms. DeWitt intentionally hung up on customers was wise, fair or correct.”

Ms. DeWitt’s disability accommodation claim failed as well because there was no evidence she ever requested an accommodation before the hang-up incidents. Under the law, an employee’s request that an employer overlook past misconduct, even misconduct that resulted from the employee’s disability, is not a “reasonable accommodation.”

Finally, Ms. DeWitt failed to prevail on her FMLA interference claim, although she offered some evidence showing Southwestern Bell had a hostile or grudging attitude toward employees who used FMLA leave. For example, the manager responsible for tracking FMLA leave said “I’ve finally got that bitch” when she heard about Ms. DeWitt’s dropped calls. Another former manager testified that Southwestern Bell “targeted” individuals who took FMLA leave for later termination.

However, the evidence showed no connection between Ms. DeWitt’s intermittent FMLA leave and the termination. The evidence of the “animus” of the manager responsible for tracking FMLA leave toward Ms. DeWitt, while disturbing, could not be connected to the termination decision by a different manager.

This case should provide some measure of relief to employers that a reasonable, conduct-based termination can still be defended, even with a plaintiff who fits into several protected classes. But there are many cautionary lessons in this opinion, as well. Certainly, having a manager responsible for tracking leave who is openly hostile toward employees exercising their rights to use FMLA leave is a big problem.

Managers of all levels, especially those who have day-to-day interactions with employees who are exercising legally protected rights, should be trained to avoid this kind of retaliatory attitude. Moreover, the manager who made the termination decision, Ms. Baskett-McEnany, is lucky she had some well-articulated reasons for not believing the employee’s excuse that her disability caused her misconduct; an employer who made the decision to terminate Ms. DeWitt under the same circumstances despite believing her version of events that the disability caused the misconduct would be unlikely to win.

DeWitt v. Southwestern Bell Telephone Company, No. 14-3192 (10th Cir. 1/18/17).

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