Dewitt v. Sw. Bell Tel. Co.

• Decision Date: 18 January 2017
• Docket Number: No. 14–3192,14–3192
• Citation: 33 A.D. Cases 305,845 F.3d 1299
• Parties: Janna DEWITT, Plaintiff–Appellant, v. SOUTHWESTERN BELL TELEPHONE COMPANY, Defendant–Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

845 F.3d 1299
33 A.D. Cases 305

Janna DEWITT, Plaintiff–Appellant,
v.
SOUTHWESTERN BELL TELEPHONE COMPANY, Defendant–Appellee.

No. 14–3192

United States Court of Appeals, Tenth Circuit.

Filed January 18, 2017

Ryan K. Elliot, Disability Rights Center of Kansas, Topeka, Kansas (Amy L. Coopman, Foland, Wickens, Eisfelder, Roper & Hofer, P.C., Kansas City, Missouri, with him on the briefs), for Plaintiff–Appellant.

Michael L. Matula, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Kansas City, Missouri (Adam T. Pankratz, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Kansas City, Missouri, with him on the brief), for Defendant–Appellee.

Before KELLY, BALDOCK, and HOLMES, Circuit Judges.

HOLMES, Circuit Judge.

Janna DeWitt appeals from the district court's order granting summary judgment to her former employer, Southwestern Bell Telephone Company ("SWBTC"), on her claims of disability discrimination and failure to accommodate her disability in violation of the Americans with Disabilities Act ("ADA"), as amended by ADA Amendments Act of 2008 ("ADAAA"), Pub. L. No. 110–325, 122 Stat. 3553,¹

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42 U.S.C. § 12101 et seq. , and retaliation in violation of the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq . Exercising jurisdiction under 28 U.S.C. § 1291, we affirm .²

I³

A

SWBTC is a telephone service company with a customer-service call center in Wichita, Kansas. Ms. DeWitt began working at SWBTC's Wichita call center as a customer service representative in April 1997. In this role, Ms. DeWitt answered calls from customers requesting residential service from SWBTC.

Ms. DeWitt has Type I diabetes and is insulin dependent. Ms. DeWitt monitors her blood sugar levels numerous times per day. When Ms. DeWitt's blood sugar levels are relatively low, she may experience sweating, shakiness, fatigue, lethargy, confusion, and poor coordination. Ms. 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 Ms. DeWitt to take breaks to eat or drink to raise her blood sugar as needed.

In 2009 and early 2010, Ms. DeWitt used FMLA leave intermittently for health issues related to her diabetes. Ms. DeWitt only took FMLA leave when vacation days were not available because Ms. DeWitt believed that SWBTC "frowned upon" employees taking FMLA leave. Aplt.'s App. at 434 (DeWitt Dep., dated May 3, 2013). Suzanne Garcia, a former manager at SWBTC, stated that when a customer service representative used "FMLA leave[, it] negatively impacted the sales quotas of the sales manager." Id. at 440 (Garcia Decl., dated July 7, 2014). As a result, "[s]ome employees using FMLA leave were targeted as employees that [SWBTC] wanted to terminate" and SWBTC "looked for other reasons to terminate that employee." Id. Moreover, Ms. Garcia stated that "Ms. DeWitt was on the ‘target list’ as an employee who used FMLA leave and should be fired if possible for other reasons." Id. at 441. Ms. Garcia left SWBTC in 2008. Id. at 440.

Ms. Garcia specifically identified Beth Kloxin as one of the SWBTC managers that "discussed terminating employees using FMLA leave." Id. at 441. Ms. Kloxin was the Center Support Manager charged with "do[ing] the attendance, disabilities," and also "preparing ... separation proposals."

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Id. at 87 (Kloxin Dep., dated Aug. 23, 2013). Employees called Ms. Kloxin if they were going to be absent or if they wanted to request FMLA leave.

On January 21, 2010, Ms. 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. Ms. DeWitt was suspended the following day. On January 29, 2010, Ms. DeWitt attended a "Day in Court" to address the cramming incident and determine her punishment. As punishment for the cramming violation, Ms. DeWitt's Second Line Supervisor, Henry Rivera, in consultation with Ms. DeWitt's Third Line Supervisor, Kimberly Baskett–McEnany, decided to place Ms. DeWitt on a Last Chance Agreement. The Last Chance Agreement 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." Id. at 39 (Last Chance Agreement, filed Sept. 13, 2012).

On March 3, 2010, two months after the cramming incident, Ms. DeWitt suffered a severe drop in blood sugar while at work. She was unable to stabilize her blood sugar even after eating food and drinking juice. As a result, Ms. DeWitt experienced lethargy, disorientation, and confusion, and was "unable to communicate with anyone." Id. at 14–15, 26–27. Ms. DeWitt noticed that she was locked out of her computer and called her First Line Supervisor, Tom Heumann, for assistance. Mr. Heumann did not address her computer issues, and instead informed Ms. Kloxin that he had been monitoring Ms. DeWitt's calls and that she had hung up on at least two customers. Ms. Kloxin responded by "doing a dance" and saying, "I finally got that bitch." Id. at 458 (Rivera Dep., dated Oct. 1, 2013). Mr. Rivera told Ms. Kloxin that her behavior was "not appropriate." Id. Ms. Kloxin responded, "You don't understand. I've been chasing after her long before, since you got here." Id.

Later that day, Mr. Heumann and Ms. Kloxin conducted a suspension meeting with Ms. DeWitt regarding the two calls she had dropped earlier in the day. Maddie Tormey, a union steward, also attended the meeting. Ms. DeWitt told Mr. Heumann that she did not remember taking the dropped calls and that "she had been experiencing dangerously low blood sugar levels at the time of the calls." Id. at 15. After reviewing recordings of the dropped calls, Ms. DeWitt said that she "honestly [did not] remember the customer saying hello" and asked "Are you sure this is me?" Id. at 329. Mr. Heumann informed Ms. DeWitt that she was suspended and that a Day in Court regarding this matter would be held at a later date. At the request of Ms. Kloxin and Ms. Tormey, Ms. DeWitt provided her blood sugar levels for that afternoon.

On March 10, 2010, SWBTC conducted a Day in Court regarding the dropped calls and Ms. DeWitt's employment status. Mr. Rivera, Ms. Kloxin, and Ms. DeWitt attended the meeting, and Ms. Baskett–McEnany attended via conference call. Ms. Baskett–McEnany explained that "[t]his is a time for [Ms. DeWitt] to talk about the" dropped calls and "tell [Ms. Baskett–McEnany] anything about what [happened that Ms. DeWitt] want[ed] [Ms. Baskett–McEnany] to know in regards to making a decision regarding [her] employment." Id. at 326. Ms. DeWitt explained that she did not remember taking the calls due to a severe drop in her blood sugar. On March

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15, 2010, SWBTC terminated Ms. DeWitt for hanging up on two customers in violation of both the SWBTC Code of Business Conduct and her Last Chance Agreement.

B

In September 2012—after timely filing discrimination charges with the Equal Employment Opportunity Commission and receiving her notice of right to sue—Ms. DeWitt filed a lawsuit in the United States District Court for the District of Kansas, bringing claims of unlawful discrimination, failure to accommodate her disability, and retaliation against SWBTC. Specifically, Ms. DeWitt alleged that SWBTC (1) discriminated against her in violation of the ADAAA by terminating her employment because of her disability, (2) failed to accommodate her disability in violation of the ADAAA, and (3) retaliated against her for taking FMLA leave in violation of the FMLA.

The district court granted summary judgment to SWBTC. In regard to her ADAAA termination and FMLA retaliation claims, the district court determined that Ms. DeWitt "fail[ed] to raise any inference of a pretextual termination decision." Id. at 553 (Mem. and Order, dated Aug. 13, 2014); see id. at 561. As to her failure-to-accommodate claim, the court determined that it, too, failed as a matter of law because the ADAAA does not require an employer to make Ms. DeWitt's suggested accommodation—that is, "to excuse or overlook her misconduct or reduce her discipline, since her conduct was related to her disability." Id. at 555.

This timely appeal followed.

II

Ms. DeWitt's workplace discrimination and retaliation claims were dismissed on summary judgment. "We review summary judgment determinations de novo, applying the same standard as the district court." Smothers v. Solvay Chems., Inc. , 740 F.3d 530, 538 (10th Cir. 2014). At this stage of the litigation, we "view facts in the light most favorable to ... the non-moving party and ‘draw all reasonable inferences' in [her] favor." Id. (quoting Tabor v. Hilti, Inc. , 703 F.3d 1206, 1215 (10th Cir. 2013) ). Even so, the non-movant, Ms. DeWitt in this case, must "marshal[ ] sufficient evidence" requiring submission to the jury "to...