Southwestern Bell Worker Can’t Get Retroactive Job Accommodation

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By Patrick Dorrian

Southwestern Bell Telephone Co. didn’t violate federal disabilities law by firing a diabetic call center worker for dropping calls or by not excusing her work-rule violation on account of her condition, a federal appeals court ruled ( DeWitt v. Sw. Bell Tel. Co. , 2017 BL 13549, 10th Cir., No. 14-3192, 1/18/17 ).

The decision involves the novel issue of whether employers must excuse workplace transgressions when they are caused by a worker’s disability. Job accommodations under the Americans with Disabilities Act are “always prospective,” the U.S. Court of Appeals for the Tenth Circuit held, citing guidance issued by the Equal Employment Opportunity Commission, which enforces the employment provisions of the ADA.

The court said four other circuits similarly have ruled that employers aren’t required to excuse “past employee misconduct” that is the result of a disabling medical condition. Janna DeWitt, the call center worker, thus wouldn’t have been entitled to “retroactive leniency” for dropping the customer calls even if she could show it was linked to her disability, the court found Jan. 18.

Although the outcome here favored the company, the ruling is helpful to both employers and employees because it brings clarity to a difficult issue, attorney Michael L. Matula, who represented Southwestern Bell, told Bloomberg BNA.

“It helps employers and employees alike to have as clear a guideline as possible” as to what is required under the ADA in these types of scenarios, Matula said Jan. 18. He’s with Ogletree, Deakins, Nash, Smoak & Stewart P.C. in Kansas City, Mo.

Amy Coopman, who was one of the attorneys who represented DeWitt, told Bloomberg BNA Jan. 18 that it’s the policy of co-counsel, the Disability Rights Center of Kansas, not to comment on cases while they remain active. “There’s more to come” in this case, she said. Coopman is with Foland, Wickens, Eisfelder, Roper & Hofer P.C. in Kansas City, Mo.

Court Rejects EEOC’s Argument

The court rejected an argument by the EEOC, which appeared as an amicus supporting DeWitt, that her dropping customer calls really was poor performance, rather than a work-rule violation, and thus should be treated differently under the ADA.

An EEOC fact sheet lists showing respect for and dealing appropriately with customers as an example of the sort of workplace conduct employers are permitted to make rules about, “and it cannot seriously be argued in the customer-service setting” that such a rule isn’t job-related and consistent with business necessity, Judge Jerome A. Holmes wrote.

And even if it was just poor performance, as the EEOC urged, the ADA allows employers to hold disabled workers to the same performance standards as workers without disabilities, Holmes added.

The court also rejected the EEOC’s contention that DeWitt’s waiting until after she experienced the dropped calls to request further accommodation for her diabetes—she already was permitted to take food and drink breaks, as needed—didn’t relieve Southwestern Bell of its ADA obligations. EEOC guidance, again, provides that the timing of an accommodation request is important and that employers aren’t required to stop an ongoing disciplinary process because an employee seeks a new accommodation, the court said.

Southwestern Bell wasn’t “obligated to stay its disciplinary hand” based on DeWitt’s “eleventh hour” request that her dropped calls be excused because they were attributable to her disability, Holmes said.

The EEOC declined Bloomberg BNA’s request for comment Jan. 18.

Firing OK Under Honest-Belief Rule

DeWitt also couldn’t prove that her discharge violated the ADA, the court added. Evidence established that her supervisor honestly believed that DeWitt’s insulin-dependent diabetes and the low blood sugar she allegedly experienced at the time weren’t the cause of the dropped calls, and DeWitt didn’t show that explanation was a pretext for bias, the court said.

She already was working under a “last chance agreement” for a prior work-rule violation involving mistakenly leaving a customer’s status as active after the customer had canceled his account, Holmes recounted. Southwestern Bell conducted a fair investigation of the dropped calls because supervisor Kimberly Baskett-McEnany gave DeWitt a chance to explain her side of the story, the judge found.

Baskett-McEnany considered multiple factors before rejecting DeWitt’s explanation, including that hanging up on a customer was a two-step process and thus difficult to do by accident. DeWitt also hadn’t brought up not feeling well that day before the dropped calls, had been instant messaging with a co-worker just before the first dropped call, and didn’t identify anyone who observed her alleged low-blood-sugar-spurred disorientation, according to Baskett-McEnany.

Under the honest-belief rule, it’s enough that the employer honestly believed its reason for taking disciplinary action against a worker—its belief doesn’t have to have been correct. DeWitt failed to show that Baskett-McEnany didn’t honestly believe her rationale for firing DeWitt, the Tenth Circuit said, rejecting her call for the court to adopt the Sixth Circuit’s version of the rule.

Not only would doing so go against Tenth Circuit precedent, but the Sixth Circuit honest-belief case cited by DeWitt improperly shifted the burden of proof from the employee to the employer. That conflicts with the traditional burden-shifting framework used in employment bias cases, Holmes said.

The court also affirmed summary judgment against DeWitt on her retaliation claim under the Family and Medical Leave Act.

Judges Paul J. Kelly and Bobby R. Baldock joined the opinion.

Ryan Kipling Elliot of the Disability Rights Center of Kansas in Topeka, Kan., also represented DeWitt. Adam T. Pankratz of Ogletree Deakins in Kansas City also represented Southwestern Bell. Elizabeth E. Theran of the EEOC in Washington represented the commission.

To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

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