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Thursday, March 9, 2017

How Do Employers Win Disability Related Misconduct Cases?

By Thomas Eden

Janna DeWitt had Type I diabetes and is insulin dependent requiring her to monitor her blood sugar levels numerous times per day. She worked for SWBTC, a telephone service company with a customer-service call center in Wichita, as a customer service representative beginning in April 1997. When DeWitt’s blood sugar levels are relatively low, she claimed to experience sweating, shakiness, fatigue, lethargy, confusion, and poor coordination. DeWitt told her managers at SWBTC that she had diabetes and that she may experience low blood sugar levels and need to eat or drink something to correct them. Throughout her employment at SWBTC, the company allowed DeWitt to take breaks to eat or drink to raise her blood sugar as needed. DeWitt used FMLA leave intermittently for health issues related to her diabetes, but only took FMLA leave when vacation days were not available. 

On January 21, 2010, DeWitt mistakenly left phone service on a customer’s account after the customer cancelled the service. Known as a cramming violation, the failure to remove a service plan from a customer’s account after the customer cancels the service is a violation of the SWBTC Code of Business Conduct and a terminable offense. DeWitt was suspended the following day. 

On January 29, 2010, DeWitt attended a “Day in Court” to address the cramming incident and determine her punishment. As punishment for the cramming violation, DeWitt signed a Last Chance Agreement which stated that “even one incident of failing to maintain satisfactory performance in all components of [her] job, including . . . company policies and conduct may lead to further disciplinary action up to and including dismissal.” 

On March 3, 2010, two months after the cramming incident, DeWitt suffered a severe drop in blood sugar while at work which she claimed caused her to experience lethargy, disorientation, and confusion, and was “unable to communicate with anyone,” as her First Line Supervisor monitored her calls and noted that she had hung up on at least two customers. Later that day, a suspension meeting was conducted with DeWitt regarding the two calls she had dropped earlier in the day in which DeWitt claimed she had been experiencing “dangerously low blood sugar levels at the time of the calls.” 

On March 10, 2010, SWBTC conducted Dewitt’s Day in Court regarding the dropped calls at the end of which SWBTC terminated DeWitt for hanging up on two customers in violation of both the SWBTC Code of Business Conduct and her Last Chance Agreement. Dewitt then sued SWBTC in federal court under the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA).

The Tenth Circuit Court of Appeals on January 18, 2017, ruled that the ADA and FMLA do not require employers to excuse an employee’s misconduct even though the conduct was related to the employee’s disability and affirmed the dismissal of her case. 

Common Sense Counsel: this is a situation concerning so-called disability-related misconduct. This case makes clear that after-the-fact accommodation requests for leniency are not reasonable and that so long as the work rule at issue is consistent with “business necessity,” disabled employees can generally be held to the same conduct standards as other employees. The Last Chance Agreement, clear handbook rules, a well drafted essential functions job description and Day in Court due process were critical reasons for this employer’s win. 

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP office in Opelika, AL and can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork with links.