## Facts

- Southwestern Bell Telephone Company operated a customer-service call center where Janna DeWitt worked as a customer service representative.
- DeWitt had Type I diabetes and told supervisors she might need to eat or drink to address low blood sugar; the employer allowed diabetes-related breaks.
- In 2009 and early 2010, DeWitt used intermittent FMLA leave for diabetes-related issues.
- In January 2010, after an error classified as “terminable misconduct,” the employer placed DeWitt on a Last Chance Agreement (LCA) under which any further subpar performance could lead to termination.
- The LCA and workplace rules required professional, courteous treatment of customers and prohibited hanging up on callers.
- On March 3, 2010, recorded calls showed DeWitt hung up on two customers.
- DeWitt asserted she did not remember the calls because a severe hypoglycemic episode caused her conduct.
- The employer concluded DeWitt violated the LCA and the customer-conduct rules and terminated her on March 15, 2010.
- DeWitt sued for ADA discrimination, ADA failure to accommodate, and FMLA retaliation; the district court granted summary judgment to the employer.

## Issues

1. Whether the ADA required the employer to excuse or disregard workplace misconduct (hanging up on customers) allegedly caused by DeWitt’s diabetes as a reasonable accommodation.
2. Whether the employer’s stated reason for termination—violating call-handling rules while on an LCA—was pretext for ADA discrimination or failure to accommodate.
3. Whether the termination was retaliation for DeWitt’s prior use of FMLA leave.

## Decision

- The Tenth Circuit affirmed summary judgment for the employer on all claims.
- The court held the employer provided a legitimate, non-discriminatory, non-retaliatory reason for termination: hanging up on customers in violation of clear rules while on an LCA.
- The court held DeWitt failed to raise a genuine dispute that this reason was pretextual for ADA discrimination or FMLA retaliation.
- The court rejected the theory that the ADA required the employer to excuse past misconduct as an accommodation.

## Legal Principles

- The ADA does not require an employer to tolerate or excuse workplace misconduct merely because the misconduct is related to a disability.
- A proposed accommodation that consists of retroactively excusing past rule violations is generally not a reasonable accommodation; accommodations are aimed at enabling prospective job performance.
- Under McDonnell Douglas burden shifting, once an employer articulates a legitimate reason for termination, the employee must produce evidence permitting a reasonable inference of pretext; documented misconduct and consistent enforcement weigh against pretext.
- For FMLA retaliation claims analyzed under the same framework, temporal proximity or generalized negative comments about FMLA are insufficient without evidence tying the termination decision to leave usage rather than intervening, documented misconduct.

## Conclusion

The court upheld termination based on recorded customer hang-ups committed while the employee was subject to a last-chance agreement, holding that the ADA did not require forgiveness of the misconduct as an accommodation and that the employee failed to show the employer’s stated reason was a pretext for ADA or FMLA liability.


DeWitt v. Sw. Bell Tel. Co., 845 F.3d 1299 (10th Cir. 2017)