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Dewitt v. Southwestern Bell Telephone Co.

United States District Court, District of Kansas

August 13, 2014

JANNA DEWITT, Plaintiff,


Sam A. Crow, U.S. District Senior Judge

This employment practices case comes before the Court on Defendant’s motion for summary judgment. Plaintiff brings the following claims against Defendant: terminating her employment on the basis of her disability in violation of the ADA; failing to reasonably accommodate her in violation of the ADA; and terminating her in retaliation for her use of leave in violation of the FMLA. Dk. 72, p. 7.

I. Summary Judgment Standard

On summary judgment, the initial burden is with the movant to point out the portions of the record which show that the movant is entitled to judgment as a matter of law. Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir. 1992), cert. denied, 506 U.S. 1013 (1992). If this burden is met, the non-movant must set forth specific facts which would be admissible as evidence from which a rational fact finder could find in the non-movant's favor. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998). The non-movant must show more than some “metaphysical doubt” based on “evidence” and not “speculation, conjecture or surmise.” Matsushita Elec. Indust. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Bones v. Honeywell Intern., 366 F.3d 869, 875 (10th Cir. 2004). The essential inquiry is “whether the evidence presents a sufficient disagreement to require submission to the jury or whether the evidence is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, 477 U.S. 242, 251-52 (1986).

In applying this standard, all inferences arising from the record must be drawn in favor of the nonmovant. Stinnett v. Safeway, Inc., 337 F.3d 1213, 1216 (10th Cir. 2003). Credibility determinations and the weighing of the evidence are jury functions, not those of a judge. Id. at 1216. Nevertheless, “the nonmovant must establish, at a minimum, ‘an inference of the existence of each element essential to [her] case.’ “ Croy v. COBE Laboratories, Inc., 345 F.3d 1199, 1201 (10th Cir. 2003) (quoting Hulsey v. Kmart, Inc., 43 F.3d 555, 557 (10th Cir. 1994)).

II. Facts

The Court sets forth the relevant and admissible facts, construed in the light most favorable to the Plaintiff, below. Additional facts are set forth in the Court’s analysis of the arguments. The Court notes that both parties have improperly attempted to controvert uncontroverted facts by arguing that various inferences that may arise from an uncontroverted fact are misleading, immaterial, or incomplete.

Defendant hired Plaintiff on April 21, 1997 to work as a customer service representative. An essential function of her job was answering calls from customers. From time to time, Defendant’s supervisors reviewed calls handled by customer service representatives. Plaintiff has Type I diabetes, is insulin dependent, and has used an insulin pump since 2008. She monitors her glucose level numerous times throughout the day.

Cramming Incident

During her employment, Plaintiff reviewed Defendant’s Code of Business Conduct Policy, in addition to other documents. That Code stated that Defendant will “earn and preserve [the customers’] trust by treating them with honesty and integrity, and in a professional, courteous manner. [Defendant] does not provide goods or services that customers did not authorize.” Dk. 76, Exh. 5. It additionally stated, “[e]ach employee is responsible for being familiar with the information in this Code, and for following the Code, and the Company’s policies and guidelines. We understand that violation may result in discipline, up to and including termination of employment.” Id.

Plaintiff understood “cramming” to be when a customer service representative deliberately adds services to a customer’s account without telling the customer about it. Plaintiff understood that “cramming” would be a violation of the Code of Business Conduct principles, warranting serious consequences.

On January 21, 2010, Plaintiff failed to delete a service plan from a customer's account after that customer declined the service. Plaintiff had added the service to the customer’s account because that was the only way for Plaintiff to determine the cost of the service. After Plaintiff told the customer the cost, the customer declined the service but Plaintiff forgot to remove the unwanted service from the account. Tom Heumann, Plaintiff’s immediate supervisor, detected this error while reviewing Plaintiff’s calls and Plaintiff was suspended the next day.

Plaintiff had a “Day In Court” meeting on January 29, 2010, regarding this incident, so had an opportunity to state her side of the story to the person who would make a final decision on what discipline to impose. Plaintiff’s meeting was conducted by the General Manager of the Consumer Call Centers, Kimberly Baskett-McEnany. Plaintiff did not dispute that she had added a service to a customer’s account without the customer’s approval which she should not have done, but claimed her act was unintentional.

After the meeting, Baskett-McEnany and her management team decided to offer Plaintiff a “Last Chance Agreement.” In that agreement, Plaintiff agreed that Defendant had just cause to terminate her employment and that any discipline she had already received was based on just cause.

She further agreed

… that I will maintain satisfactory performance in all components of my job, including measurement, safety, attendance/punctuality, use of company resources, company policies, and conduct. Through this Agreement I acknowledge and understand that even one incident of failing to maintain satisfactory performance in all components of my job . . . may lead to further disciplinary action including dismissal.

Dk. 76, Exh. 9. Plaintiff signed the Last Chance Agreement on February 1, 2010, having been told by Defendant that if she did not sign it she would be terminated.

FMLA Leave

Throughout her employment, Plaintiff took FMLA leave for medical conditions, including those related to her diabetes. She took FMLA leave only if she had no vacation leave available. Defendant never denied any of Plaintiff’s requests for FMLA leave, but sometimes requested additional information.

Before March 3, 2010, Defendant had always provided whatever accommodations Plaintiff needed for her medical condition. Defendant permitted Plaintiff to keep candy, juice, and other items at her desk to use in case of a blood sugar event, and permitted her extra breaks ...

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