As the week begins with new lexicon coming out of our nation’s capital, a recent federal court of appeals ruling reminds us that, in most situations, it’s the employer’s assessment of the facts, not the employee’s “alternative facts,” that matter when deciding the appropriate punishment for employee performance or misconduct issues.  And, perhaps more importantly, the ruling reminds us that the mere fact an employee has a disability, or has requested or taken FMLA leave, does not act as a “get out of jail” card for such performance or misconduct issues.

In DeWitt v. Southwestern Bell Telephone Company, 2017 U.S. App. Lexis 843 (10th Cir. Jan. 18, 2017), the plaintiff was a customer service representative who has Type I diabetes and is insulin dependent.  Throughout her employment, the plaintiff had on occasion taken FMLA leave related to her diabetic condition.  Already on a “last chance” agreement from a previous performance incident, the plaintiff hung up on customers on at least two separate occasions during a single shift.  The plaintiff denied having any recollection of doing so, claiming to have had a diabetes-related low blood sugar experience at the time of the calls.  In ultimately concluding that the plaintiff’s actions were intentional, and thereby warranted discharge, the decision maker considered a variety of factors, including but not limited to the fact that hanging up on a customer was difficult to do through mere inadvertence; there was no evidence other than the plaintiff’s unsupported assertion that she had in fact experienced a low blood sugar episode; and the plaintiff did not report having any type of medical issue until after she became aware of the likelihood of further discipline or discharge.  Following her discharge, the plaintiff filed suit under the ADA and FMLA.  The district court granted summary judgment to the company and the plaintiff appealed.

In affirming summary judgment for the employer, the Tenth Circuit reiterated that, absent evidence to the contrary, an employer’s good faith, honest belief that the employee engaged in misconduct suffices to overcome a claim of discrimination or retaliation, even if the employer ultimately is proven to be mistaken or used what others might have concluded was a poor business decision.  Here, the plaintiff offered no such contrary evidence, as the witnesses she relied on were not decision makers and/or had no personal knowledge of any of the events that transpired.  Moreover, the plaintiff’s only purported ADA accommodation request was that the company overlook her misconduct in light of her alleged low blood sugar incident, a request that in fact was not reasonable.  As the Tenth Circuit noted, ADA accommodation requests are prospective in nature and an employer is not required to excuse past misconduct, even if the misconduct is the result of the employee’s disability.

Accordingly, although cautioned to tread wisely when an employee claims a disability or the use of FMLA leave is at play, employers need not let the employee’s version of the facts, or the mere pre-existence of a disability or previous use of FMLA leave, control what if any discipline may be imposed on the employee for poor performance or incidents of misconduct.