Friday, January 20, 2017

DeWitt v. Southwestern Bell Tel. Co.: When can an employer fire an employee with a disability for poor performance?

In DeWitt v. Southwestern Bell Telephone Co., No. 14-3192 (10th Cir. Jan. 18, 2017), the court held that the defendant did not deny Janna DeWitt, a customer service representative at a call center, a reasonable accommodation in violation of the Americans with Disabilities Act when it fired her for hanging up on two customers. The court reasoned that DeWitt, an insulin-dependent diabetic, did not request an accommodation to prevent her from dropping customer calls:
[I]nstead, she requested retroactive leniency for her misconduct. Specifically, Ms. DeWitt requested that SWBTC overlook that she hung up on at least two customers while on a Last Chance Agreement. Such retroactive leniency is not a "reasonable accommodation" as defined by the [ADA].
Much of the court's analysis of DeWitt's reasonable accommodation claim focuses on the EEOC's amicus brief supporting DeWitt:
[T]he EEOC argues that Ms. DeWitt's disconnected calls constituted a violation of performance standards, not a conduct rule. According to the EEOC, while "[t]he basic rule that an employer is not required to 'excuse' past poor performance still holds with respect to performance standards. . . . an employer is [not] categorically free to terminate any and all disabled employees at the first instance of any and all disability-related performance deficiencies."
Initially, the court concluded that the defendant's requirement that employees treat customers courteously is a conduct rule, that the requirement is job related and consistent with business necessity, and that DeWitt violated the requirement by hanging up on two customers. The court further concluded that, even if the EEOC was correct that DeWitt's dropped calls should be characterized as a violation of performance standards, the defendant was free to discharge DeWitt for violating those standards if it would have fired a non-disabled employee under similar circumstances.

Like the court, I am unconvinced by the EEOC's arguments, which rest on a fact sheetThe Americans with Disabilities Act: Applying Performance and Conduct Standards to Persons with Disabilities. I can't see why it would make much of a difference whether DeWitt's dropped calls constituted misconduct or a violation of a performance standard. If the dropped calls were misconduct, then the defendant's termination of DeWitt was lawful as long as the misconduct rule was job related and consistent with business necessity. But the EEOC vehemently argues against this characterization, suggesting that it would be harder for the defendant to justify the termination if the dropped calls were merely the violation of performance standards. If anything, however, the fact sheet indicates that it is easier to justify discipline in response to performance problems than in response to misconduct. 

The fact sheet states that an employee with a disability must meet the same performance standards as a non-disabled employee. And while an employee need not ask for a reasonable accommodation at a certain time, the employer is not required to rescind any discipline that is warranted by poor performance. Thus, pursuant to the fact sheet, an employer is not permitted to deny a reasonable accommodation that might allow an employee to perform his job satisfactorily, but it is permitted to impose discipline for past performance problems that did not result from its own unlawful denial of a reasonable accommodation. 

To try to get around this, the EEOC points to a single example in its fact sheet (Example #9) in which the employer is permitted to deny a reasonable accommodation and proceed with termination because the employee waited "too long" to request accommodation. But this example merely illustrates one set of circumstances in which it is permissible to fire an employee for performance problems and in no way sets a floor for such discipline. Indeed, the only limitation that the EEOC identifies is that the "employer is [not] categorically free to terminate any and all disabled employees at the first instance of any and all disability-related performance deficiencies." As reflected by the qualifying language I've highlighted, this standard imposes so little restriction as to be virtually meaningless. Based on the EEOC's fact sheet, the only requirement is that the employer treat an individual with a disability as favorably as it would treat a non-disabled individual, and an employee waited "too long" to request an accommodation when she is out of a job because she did not request an accommodation until her termination was already justified.

That said, even if the defendant did not deny DeWitt a reasonable accommodation, I think there is a fair argument that the evidence was sufficient for a jury to find that the defendant treated DeWitt worse than it would have treated a non-disabled individual under the same circumstances. There was no dispute that DeWitt hung up on two customers, and the only issue was why DeWitt hung up. Although she alleged that she did not remember hanging up on the customers, because of a severe drop in blood sugar, the defendant contended that the supervisor who decided to terminate DeWitt concluded that DeWitt had intentionally dropped the calls and falsely blamed it on her disability.

In contrast, I'm skeptical that DeWitt would have intentionally hung up on customers and that her disability had nothing to do with it. DeWitt's only other disciplinary incident during 13 years with the employer was when she failed to cancel a customer's service and she was placed on a last chance agreement. Since DeWitt was still on that last chance agreement when she hung up on the customers, it makes little sense that she would have endangered her job by intentionally doing so. More likely is that DeWitt's disability had something to do with the dropped calls and with why she could not remember what she had done. In addition, there was evidence that a manager who disliked employees' taking disability-related leave responded to the news of DeWitt's dropped calls by "'doing a dance' and saying, 'I finally got that bitch.'" Thus, a jury would be free to conclude that the defendant would not have fired a non-disabled person under the same circumstances and that DeWitt was fired because she used too much disability-related leave.

This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.