The U.S. Equal Employment Opportunity Commission (“EEOC”) is charged with the interpretation and enforcement of Title I of the Americans With Disabilities Act of 1990 (“ADA”). See 42 U.S.C. § 12117. The district court in this case held that the defendant’s termination of the plaintiff, who has Type I diabetes, based on the effects of a single hypoglycemic episode was a valid exercise of the defendant’s “business judgment” under the ADA. The court also held that the ADA did not require the defendant to reasonably accommodate the plaintiff’s diabetes because the hypoglycemic episode caused her to engage in “past misconduct” warranting termination.

Because this case raises important questions about the “business judgment rule” and about the proper analysis of an employer’s obligation to reasonably accommodate an employee’s known disability, the EEOC offers its views to the Court. Fed. R. App. P. 29(a).

1. Whether the district court erred in holding that the “business judgment rule” insulated the defendant, Southwestern Bell Telephone Company (“SWBTC”), from liability under the ADA for firing DeWitt.

2. Whether the district court erred in granting summary judgment to SWBTC on DeWitt’s reasonable accommodation claim based on its misinterpretation of the EEOC’s guidance.

STATEMENT OF THE CASE

A. Statement of the Facts

Plaintiff Janna DeWitt worked for Defendant SWBTC from April 1997 through March 2010 as a Customer Service Representative (“CSR”) at its call center in Wichita, Kansas. V-AA-465 . During the relevant time period, Tom Heumann was her direct supervisor. II-AA-177. Heumann’s supervisor was Henry Rivera, and Kimberly Baskett-McEnany was the third-tier supervisor and the General Manager with responsibility over the Wichita call center. II-AA-178-79, III-AA-294. Beth Kloxin was the Attendance Manager. II-AA-210. From 2005 through January 2010, DeWitt’s performance and attendance evaluations were all either “Exceeds Expectations” or “Meets Expectations.” I-AA-35.

DeWitt was diagnosed with Type I diabetes at age two and a half. V-AA-465, I-AA-32. From 2008 on, she used an insulin pump to regulate her blood glucose levels. V-AA-465. The pump’s monitor tested and recorded DeWitt’s glucose levels automatically several times per day; she could also check her levels manually if needed. V-AA-465, 469A, 471-72. DeWitt testified that she checked her glucose levels “numerous times throughout the day,” which was consistent with the records from her monitor. V-AA-465, 469A.

It is undisputed that SWBTC was aware of DeWitt’s diabetes during her employment. III-AA-262-64. Prior to March 2010, DeWitt testified, SWBTC had accommodated her diabetes by allowing her to keep food and juice at her desk. V-AA-408, 465; III-AA-262-63; but see III-AA-262 (Kloxin testimony that everyone was permitted to “eat and drink at any time they wanted to”). Baskett-McEnany further testified that DeWitt was permitted to take breaks from the call queue when she needed to stabilize her glucose levels. V-AA-448.

After nearly thirteen years’ employment with SWBTC, DeWitt’s first disciplinary incident occurred in January 2010. On January 21, DeWitt accidentally charged a customer for a service the customer had declined.[2] II-AA-202, III-AA-268, V-AA-465. SWBTC’s HR department advised DeWitt’s supervisor, Tom Heumann, that she should be suspended for “cramming,” or deliberately adding unauthorized services to a customer’s account. III-AA-279.

It is undisputed that cramming was a violation of AT&T’s Code of Business Conduct (“CBC”). II-AA-186, 188-89; III-AA-290, 295. General Manager Baskett-McEnany testified that there was “no necessary automatic result” for CBC violations; as General Manager, she had discretion to decide what discipline was appropriate for a particular violation. III-AA-295-96.

On January 29, 2010, DeWitt attended a “Day In Court” disciplinary meeting with Baskett-McEnany, Rivera, Kloxin, and Chaffee. II-AA-207-08, V-AA-453-54. Sometime after the meeting, Baskett-McEnany testified, she decided to offer DeWitt a last chance agreement (“LCA”). III-AA-297. According to the LCA (in relevant part), DeWitt agreed to maintain satisfactory performance in all components of her job and acknowledged that even one incident of failure “may lead to further disciplinary action up to and including dismissal.” III-AA-324. DeWitt received and signed the LCA on February 1, 2010; Kloxin signed for SWBTC. II-AA-209, III-AA-324.

DeWitt’s next and final disciplinary incident at SWBTC occurred on March 3, 2010. III-AA-329. That afternoon at work, DeWitt experienced a serious hypoglycemic episode. V-AA-465-69. DeWitt testified that a normal/desirable blood glucose level for her was anywhere between 80 and 150 mg/dL; but on the afternoon of March 3 her glucose levels dropped radically, reaching a low of 34 mg/dL at 4:07p.m. V-AA-406, 469A.[3]

DeWitt testified that she had begun feeling “off” earlier in the day. V-AA-424. When she returned to her desk after a team meeting, she related, she tried to sign on to her computer and “wasn’t able to function.” Id. She testified that she had only been back at her desk for a short time when she realized that she “was getting into trouble with [her] blood sugars” because her hands were trembling, “which usually is before you have a convulsion.” V-AA-424-25. According to DeWitt , she first tried retesting her blood sugar and eating some dried fruit, which did not help, so she rechecked her sugar levels again and drank some Dr. Pepper. V-AA-425. After that, she “started to slowly but surely feel better.” Id.

The next thing DeWitt recalled was that she could not log onto her computer. V-AA-421-22, 425, 465. She then went to Heumann to let him know she was having computer problems. V-AA-422, 465. About the same time, Heumann testified, around 4:15p.m., he was preparing to have a regular coaching session with DeWitt when he pulled up records of three very short calls she had handled that afternoon. III-AA-281-82. All three calls were disconnected very quickly, lasting between forty-five and sixty seconds, and DeWitt never spoke in any of them. III-AA-283, 286-87, IV-AA-353. DeWitt testified that she did not remember taking any calls during this time. V-AA-411.

Two of the calls (3:53 and 3:54 p.m.) had both computer screen captures and audio recordings; a third had only the audio recording. III-AA-283, 329. According to Heumann, the audio-only call consisted of “the customer coming on, saying what their problem was, and then the call dropped.” III-AA-283. For the 3:53 call, Heumann testified, the audio consisted of the customer coming on the line and saying something like “hello, hello,” with no response from DeWitt. III-AA-287. Heumann then testified that the screen capture showed DeWitt “releasing the call,” meaning that “[y]ou could see her mouse move up to the button that says release, and when you click that button you get another pop-up in the middle of your screen that says, do you really want to release the call, and then you have a yes or no button and then she clicked the yes.” Id. As to the 3:54 call, the screen shot reflected that DeWitt released the call while there was an internal message from another SWBTC employee up on her screen. III-AA-288, 329, V-AA-423. DeWitt stated that she “honestly [did not] remember the customer saying hello.” V-AA-423.

Heumann testified that when DeWitt approached him, he told her to wait and went into Rivera’s office, where he told him about the disconnected calls and asked how he should handle them. III-AA-281-82. Rivera, however, testified that Heumann approached Kloxin first, which Rivera knew because he found “Beth [] doing a dance in the back …. And she said to me, ‘I finally got that bitch.’” V-AA-458. Rivera testified that he told Kloxin her statement was not appropriate, and Kloxin responded, “[y]ou don’t understand. I’ve been chasing after her long before, since you got here.” Id. According to Rivera, Kloxin continued, “Tom just got some calls … that Ms. DeWitt intentionally dropped some calls, so I’m going to have that on your desk in a few minutes.” V-AA-458-59. Rivera testified that, when he asked Kloxin what she meant, “she started explaining to me that Ms. DeWitt has continued attendance issues. And she did a little dance.” V-AA-459.

Rivera testified that he then held a meeting with Heumann, Kloxin, and possibly Shelburn to review the call records. IV-AA-356. According to Rivera, all those present opined that DeWitt had released the calls on purpose, and Kloxin told him “this would be a terminable offense.” Id. Rivera testified that he then called Baskett-McEnany and told her about the situation, and she asked him to forward her the information about the dropped calls. IV-AA-357. When Baskett-McEnany called him back and asked him what he wanted to do, he testified, he told her that termination was “on the table,” and she responded that she would support that decision. Id.

On the same day, Heumann held a brief investigatory/suspension meeting with DeWitt, Kloxin, and union steward Mary Tormey. III-AA-329. He showed DeWitt the screen shots and told her about the third call “where the customer came on the line, you never spoke and then the customer was gone.” Id. DeWitt said, “I am so sorry but I do not remember those calls. I would not hang up on a customer. Never.” Id. Heumann then informed DeWitt that she was being suspended without pay for violating the CBC. Id. DeWitt responded, “I understand, I just can’t believe it, I do not remember those calls at all.” Id.

Immediately after the suspension meeting, Tormey and Kloxin asked DeWitt to show them the blood glucose levels from her insulin pump monitor. V-AA-466, 471-72. DeWitt complied, and Tormey wrote them down on a piece of paper. V-AA-466, 472. Tormey testified that she and DeWitt then showed the list to Kloxin, who asked what was a normal level for DeWitt. V-AA-472. DeWitt stated that it was between 60 and 120 mg/dL, and Kloxin recorded that range on the same piece of paper. V-AA-472-73.

At some point during the next week, Baskett-McEnany reviewed the minutes of DeWitt’s suspension meeting and met with Rivera and Kloxin to discuss the incident. III-AA-299-300. At that meeting, she testified, they discussed how difficult they believed it was to hang up on a customer accidentally, although Baskett-McEnany admitted that it was possible to do so. III-AA-300. Baskett-McEnany also testified that Rivera and Kloxin “had reviewed the screen shots and … talked me through their interpretation of Janna’s [apparent] capable control over the tools and the system.” III-AA-301.

DeWitt’s second Day In Court took place on March 10, 2010. III-AA-326-27. Present were DeWitt, Baskett-McEnany (via conference call), Rivera, Kloxin, Chaffee, and union steward Nancy Fantroy. III-AA-326. Baskett-McEnany began by telling DeWitt that she had been “observed hanging up on customers,” which was a violation of the CBC, and asking DeWitt to tell her “anything … you want me to know in regards to making a decision regarding your employment.” Id. DeWitt explained again what had happened with her blood sugar levels that afternoon, and stated that she was “totally unaware I took a call.” Id.

Baskett-McEnany replied that she had “personal experience with diabetes as my parents and grandmother have [it],” and asked DeWitt whether “[a]t any point [she] called for [a] coach or let anyone know you didn’t feel well.” III-AA-326. DeWitt answered “no,” explaining that her hypoglycemia hit too fast and she was trying to treat it. Id. Baskett-McEnany then asked DeWitt whether she hung up the calls “because you were physically unwell.” Id. DeWitt stated:

I don’t remember taking the calls. When we listened to [the] calls I asked “are you sure those are my calls?” I honestly don’t remember the calls. I saw the screen shots but I don’t remember. I want you to know regarding my employment, my customer service does not reflect I hang up. I know it shows I did[, but] if I am in [my] right mind I don’t do that.

Id. Baskett-McEnany and DeWitt then discussed DeWitt’s fluctuating blood sugar levels on March 3 and DeWitt’s efforts to stabilize them. III-AA-326-27.

Next, Baskett-McEnany reminded DeWitt that she had agreed in the LCA to meet “all metrics of employment, [e]specially the Code of Business Conduct.” III-AA-327. She asked DeWitt if she had anything else to add, and DeWitt responded,

I want you to know if I was not having low blood sugar that would have never ever [have] happened. My customer service is excellent. You don’t get that hanging up or being rude to customers. I feel bad that I did this to the customers[.] I don’t want to have low blood sugar and don’t want to jeopardize the company reputation. Unfortunately this blood sugar gets out of hand. That is not me.

Id. Baskett-McEnany asked Chaffee for her input, and Chaffee responded that it was “totally out of character” for DeWitt to hang up on a customer, that DeWitt was “fairly dismayed” about it, and that she (Chaffee) did not believe DeWitt had done so in her right mind. Id. Baskett-McEnany then concluded the meeting and sent DeWitt home. Id.

Baskett-McEnany testified that, after the Day In Court, she decided to terminate DeWitt. III-AA-321. Rivera testified that he and Baskett-McEnany were the decisionmakers in DeWitt’s termination, while Kloxin was not. IV-AA-361. However, it is undisputed that Kloxin attended every disciplinary meeting involving DeWitt, that she drafted the Last Chance Agreement and both Separation Proposals, and that Rivera and Baskett-McEnany consulted Kloxin about the nature and gravity of DeWitt’s offenses. III-AA-269, 272-74, 299-301, 326-27, 329; IV-AA-356.

Baskett-McEnany gave several reasons for her decision. She testified that she did not believe DeWitt’s account of her low blood sugar incident and its effect on her functioning. III-AA-313. She further testified that she “presumed that [DeWitt] continued to take calls” after the dropped calls, despite the uncontroverted testimony that DeWitt was locked out of her computer. Id. Later in her deposition, Baskett-McEnany acknowledged that she knew of DeWitt’s computer issue, but said she did not consider it “a mitigating circumstance” because neither DeWitt nor Chaffee raised it specifically at the Day In Court. V-AA-450.

Baskett-McEnany also testified that, based on her, Rivera’s, and Kloxin’s review of the screen captures of the dropped calls, she did not believe they could have been accidental or the result of impaired judgment. III-AA-299-301. While it was possible to hang up on a customer accidentally, she testified, it was “hard to do.” III-AA-300-02. Rivera likewise testified that the call system was “designed for it not to drop accidentally” by requiring the CSR to “do two or three specific steps” to end a call. IV-AA-348. Because the check boxes on the screen were small, he testified, “the odds of you clicking in the specific little, tiny box, … [are] rare.” IV-AA-354.

Baskett-McEnany further testified that she did not believe DeWitt’s account of the accidental hang-ups at the Day In Court. III-AA-302. She testified that she did not find it credible that DeWitt did not remember the hang-ups, given that she had “operated successfully the entire day” and had been able to recall other details from that afternoon. III-AA-311-12. She stated, “[i]t was very hard for me to understand how … a person can go an entire day operating normally, … and then just have a three-minute or maybe a five-minute period of time where you can remember nothing, and then come back and have a regular day after that.” III-AA-313.

Rivera initially testified that he too believed that DeWitt had “purposely” hung up on three customers. IV-AA-353, 356, 360. Accordingly, he testified, it was his opinion at the time that DeWitt should be terminated. IV-AA-357-58. However, later in the same deposition, Rivera testified that, although he believed DeWitt had disconnected the calls, he “also believe[d] [] that my management staff had different intentions. Beth, to me, was a little overzealous…. I would have recommended not to terminate her in those conditions.” V-AA-462. He then testified that he did not believe DeWitt had disconnected the calls intentionally. V-AA-463.

DeWitt found out about her termination on March 15, 2010. V-AA-427. She filed a charge of discrimination with the Kansas Human Rights Commission on September 13, 2010. I-AA-23. The EEOC’s St. Louis District Office adopted the KHRC’s finding of no cause and issued her a Notice of Right to Sue on June 14, 2012. EEOC Dismissal and Notice of Rights, R.1 at 36 (not in AA).

DeWitt filed suit in federal district court on September 13, 2012. Her complaint alleged, in relevant part, that SWBTC discriminated against her on the basis of her disability and failed to accommodate her disability in violation of the ADA when it terminated her employment. I-AA-17-18.

B. District Court’s Decision

The district court granted SWBTC’s motion for summary judgment, holding that DeWitt’s ADA claim “fails as a matter of law because she cannot establish that her termination was based on her alleged disability.” V-AA-549. Noting that the defendant’s burden under the McDonnell Douglas framework “is not onerous,” the court held that the evidence of DeWitt’s “mistreat[ing] customers by disconnecting two or more customer calls” while subject to the LCA was sufficient to meet that burden. V-AA-550. The court then explained,

Plaintiff essentially contends that her acts were done while she was experiencing hypoglycemic unawareness syndrome—a direct result of her diabetes—thus Defendant erred in finding she acted intentionally. But the Court’s task is not to “ask whether the employer’s decision was ‘wise, fair or correct, but whether [it] honestly believed [the legitimate, nondiscriminatory] reasons [it gave for its conduct] and acted in good faith on those beliefs.’”

V-AA-550-51 (internal citations omitted). Thus, the court continued, DeWitt “must [] show evidence from which a reasonable jury could conclude that the defendant’s proffered non-discriminatory reason for its action is a pretext for intentional discrimination based on her disability.” V-AA-551 (citing cases).

Next, the district court observed that plaintiffs typically attempt to demonstrate pretext with evidence that: (1) the defendant’s stated reason was false, (2) the defendant acted contrary to a written company policy, or (3) the defendant acted contrary to an unwritten policy or company practice. According to the court, “DeWitt shows none of the above. Instead, she relies on her own subjective beliefs, and negative statements and acts by persons who did not participate in the decision to terminate her employment.” V-AA-552.

The district court then rejected what it described as DeWitt’s arguments regarding pretext. The court ruled that various record evidence pertaining to FMLA retaliation was conclusory and insufficient to show pretext with respect to DeWitt’s ADA termination claim. V-AA-552-53. The court then held that, because Baskett-McEnany and Rivera were the only decisionmakers with respect to DeWitt’s termination and because DeWitt “does [not] raise any cat’s paw theory,” evidence of remarks made in their absence had no bearing on pretext. V-AA-553.

Finally, the court rejected DeWitt’s reliance on evidence of “animus by Manager Kloxin.” V-AA-554. According to the court, “Kloxin was not a decision-maker in Plaintiff’s termination, and the record fails to show that Baskett-McEnany had any knowledge of Kloxin’s actions or that she or Rivera shared Kloxin’s motive or sentiments.” Id. Thus, the court concluded, DeWitt failed to make the required showing of pretext. Id.

Next, the court turned to DeWitt’s ADA accommodation claim. V-AA-555. Assuming arguendo that DeWitt was a qualified individual with a disability and that SWBTC was aware of her disability, the court “focuse[d] solely on whether Defendant failed to reasonably accommodate Plaintiff’s diabetes.” Id. According to the court, “[t]he only accommodation Plaintiff suggests is retroactive—to excuse or overlook her misconduct or reduce her discipline, since her conduct was related to her disability.” Id. The court rejected this proposal as “untimely and unreasonable,” quoting Davila v. Quest Corp., 113 F. App’x 849, 854 (10th Cir. 2004) (unpublished), for the proposition that “‘excusing workplace misconduct to provide a fresh start/second chance to an employee whose disability could be offered as an after-the-fact excuse is not a required accommodation under the ADA.’” V-AA-555-56. The court also pointed to the EEOC’s Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the ADA as support for that principle. V-AA-556-57 (quoting EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the ADA (Oct. 17, 2002),[4] Q&A Nos. 35, 36 (hereinafter “Enforcement Guidance”)).

The court continued, “[a]lthough the Tenth Circuit has no published decision on this issue, this court is persuaded by Davila and by other Circuit courts which have consistently explained that a ‘second chance’ or overlooking misconduct that otherwise warrants termination is not a ‘reasonable accommodation.’” V-AA-557-58 (citing cases). Finally, the court concluded, “Defendant was [not] required to allow Plaintiff an opportunity to alter her diabetes monitoring technique prior to terminating her.” V-AA-558.

ARGUMENT

I. The District Court Erred In Holding that the “Business Judgment Rule” Warrants Summary Judgment In Favor of SWBTC On DeWitt’s Disability Discrimination Claim.

In analyzing the evidence of pretext, the district court erred in granting summary judgment to SWBTC based on its application of the “honest belief” or “business judgment” rule.[5] As the Supreme Court has held repeatedly, once the employer proffers a nondiscriminatory reason for its actions, “the plaintiff … must be afforded the ‘opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.’” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000) (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)). See also Kendrick v. Penske Transp. Servs., 220 F.3d 1220, 1230 (10th Cir. 2000) (observing that where a plaintiff “‘presents evidence that the defendant’s proffered reason for the employment decision was pretextual—i.e. unworthy of belief,’” summary judgment is improper) (internal citation omitted).

Both the Supreme Court and this Court have recognized that there are multiple evidentiary routes a plaintiff can take to demonstrate pretext. As this Court has explained:

A plaintiff can meet this burden to show pretext in either of two ways: (1) by showing that the proffered reason is factually false or (2) by showing that discrimination was a primary factor in the employer’s decision, which is often accomplished by revealing “weakness, implausibilities, inconsistencies, incoherencies, or contradictions on the employer’s proffered reason[],” such that a reasonable fact finder could deem the employer’s reason “unworthy of credence.”

Tabor v. Hilti, Inc., 703 F.3d 1206, 1218 (10th Cir. 2013) (internal citation omitted). See also Kendrick, 220 F.3d at 1230 (observing that evidence of pretext “‘may take a variety of forms …. [A plaintiff] may not be forced to pursue any particular means of demonstrating [pretext].’”) (quoting Patterson v. McLean Credit Union, 491 U.S. 164, 187-88 (1989)) (first alteration in Kendrick).

In this case, DeWitt has taken the second evidentiary route described in Tabor: she argues that the circumstances surrounding both the “cramming” and the “hang-up” incidents would allow a reasonable jury to find that SWBTC used them as a pretext for firing her because of her disability and not because SWBTC truly believed that she had deliberately “crammed” or hung up on customers. Under this approach, the employer’s professed good-faith belief in its proffered reason cannot per se deprive an employee of the opportunity to show that the reason was a pretext for discrimination. A contrary view would effectively read the McDonnell Douglas pretext analysis out of existence, since it would start and end with the employer’s account of its own reasoning. See Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1169 (10th Cir. 1998) (in age discrimination case, stating that the business judgment rule “does not immunize all potential ‘business judgments’ from judicial review for illegal discrimination…. Such a doctrine would defeat the entire purpose of the ADEA.”); Young v. Dillon Cos., 468 F.3d 1243, 1250 (10th Cir. 2006) (“The relevant ‘falsity’ inquiry is whether the employer’s stated reasons were held in good faith at the time of the discharge, even if they later prove to be untrue, or whether plaintiff can show that the employer’s explanation was so weak, implausible, inconsistent or incoherent that a reasonable fact finder could conclude that it was not an honestly held belief ….”).

In a credibility-based pretext argument, the very issue is whether the reasons offered by the defendant (true or false) in fact motivated the adverse action, or whether the real reason could have been discrimination. See, e.g., Tabor, 703 F.3d at 1218; Young, 468 F.3d at 1250. If a reasonable jury could so find, then the plaintiff’s claim survives summary judgment. Reeves, 530 U.S. at 143; Kendrick, 220 F.3d at 1230. As this Court has observed, “[t]here may be circumstances in which a claimed business judgment is so idiosyncratic or questionable that a factfinder could reasonably find that it is a pretext for illegal discrimination.” Beaird, 145 F.3d at 1169; see also, e.g., Hobgood v. Ill. Gaming Bd., 731 F.3d 635, 646 (7th Cir. 2013) (“We do not second guess an employer’s business decision, but neither do we ‘abandon good reason and common sense in assessing an employer’s actions.’ … Where an employer’s reason for a termination is without factual basis or is completely unreasonable, that is evidence that an employer might be lying about its true motivation.”) (internal citation omitted).

With these principles in mind, a reasonable jury could find that SWBTC’s proffered reasons for terminating DeWitt were pretextual. SWBTC undisputedly knew of DeWitt’s disability, and there is evidence to support a finding that SWBTC officials, including Kloxin, did not approve of taking disability-related leave. V-AA-416-17, 419, 440-41; DeWitt Opening Br. at 5-6. Regarding the “hang-ups,” SWBTC had clear, objective, and contemporaneous evidence of DeWitt’s severe hypoglycemic episode, but Baskett-McEnany chose to “disbelieve” it and opted for termination—even though termination was not mandatory under the circumstances and admittedly would have been inappropriate if the hang-ups were accidental. III-AA-295-96, IV-AA-359. Baskett-McEnany likewise refused to credit DeWitt’s account of being locked out of her computer after the “hang-ups,” even though she admittedly had no basis to dispute its truth, simply because DeWitt did not make an explicit argument about it at her Day In Court. III-AA-313, V-AA-450.

A jury could also find that Baskett-McEnany refused to believe DeWitt based on her fundamentally flawed understanding of diabetes and its symptoms, along with her extrapolation from her experience with her diabetic relatives who had never experienced a hypoglycemic blackout. See III-AA-308-13, DeWitt Opening Br. at 14-15. Moreover, a jury could credit Rivera’s testimony that he did not believe DeWitt had disconnected the calls deliberately, that he believed his “management staff had different intentions” from his own, and that he believed Kloxin’s pursuit of DeWitt was “overzealous.” V-AA-462-63. A reasonable jury could thus find that, instead of viewing DeWitt’s mental state in light of her hypoglycemic condition at the time, SWBTC decided to treat her—a thirteen-year employee with a spotless record apart from the one unrelated and ambiguous “cramming” incident—as if she had deliberately hung up on three customers. This record evidence is sufficient to support a jury finding that SWBTC fired DeWitt not because it sincerely believed she had hung up on customers on purpose, but because it wanted to get rid of her due to her disability.

A reasonable jury would also be entitled to consider the record testimony regarding Kloxin’s behavior and input into the termination decision. The district court erred in ruling categorically that Kloxin was not a “decisionmaker,” given her consistent participation in the decisions leading up to DeWitt’s termination and the explicit testimony of both Rivera and Baskett-McEnany that they consulted with her in making their ultimate decision. See supra at 5, 8-11, 13.

The court further erred in suggesting that DeWitt was required to make an explicit “cat’s paw” argument in order to rely on testimony about Kloxin. The “cat’s paw” rubric generally applies where the official decisionmaker is not alleged to be biased, but a subordinate’s bias was the proximate cause of the ultimate decision. See, e.g., Staub v. Proctor Hosp., 562 U.S. 411, 131 S. Ct. 1186, 1191 (2011) (“The problem we confront arises when that official has no discriminatory animus but is influenced by previous company action that is the product of a like animus in someone else.”); EEOC v. BCI Coca-Cola Bottling Co. of L.A., 450 F.3d 476, 484 (10th Cir. 2006) (“‘[C]at’s paw’ refers to a situation in which a biased subordinate, who lacks decisionmaking power, uses the formal decisionmaker as a dupe in a deliberate scheme to trigger a discriminatory employment action.”).

As the Commission understands it, DeWitt’s argument is not that Baskett-McEnany and Rivera were innocent pawns “duped” by Kloxin, but that they themselves were also biased and/or invited Kloxin’s biased input. But even if the scenario here were to be characterized as a “cat’s paw” variant, DeWitt did in fact make that argument to the district court, albeit without using the term “cat’s paw.” V-AA-394-95. Whether or not she used the term “cat’s paw” does not alter the essence of the argument. See, e.g., Perez v. Thorntons, Inc., 731 F.3d 699, 709 n.2 (7th Cir. 2013) (observing that, even though the plaintiff “does not explicitly rely on a ‘cat’s paw’ theory,” the factual scenario argued by the plaintiff supported one). Accordingly, the district court erred in holding that DeWitt could not rely on evidence of Kloxin’s animus.

II. The District Court Erred In Holding that the ADA Did Not Require SWBTC to Reasonably Accommodate DeWitt’s Disability Because She Had Engaged In “Past Misconduct.”

The district court stated that it relied on this agency’s Enforcement Guidance in reaching its conclusion that the ADA did not require SWBTC to accommodate DeWitt’s disability. V-AA-556-57. However, a fuller consideration of the EEOC’s relevant guidance materials reveals the district court’s error in treating the March 3 “hang-up” incident as terminable “misconduct” within the meaning of those materials.

The EEOC does not regard all violations of all company policies as “misconduct.” In the Enforcement Guidance cited by the district court here, “misconduct” referred to violations of rules governing the employee’s conduct in the workplace, not how well the employee is performing her job. The Guidance explains:

An employer never has to excuse a violation of a uniformly applied conduct rule that is job-related and consistent with business necessity. This means, for example, that an employer never has to tolerate or excuse violence, threats of violence, stealing, or destruction of property. An employer may discipline an employee with a disability for engaging in such misconduct if it would impose the same discipline on an employee without a disability.

Enforcement Guidance at Q&A No. 35 (emphasis added). While this list is not exhaustive, it illustrates the type of “misconduct” contemplated in this part of the Guidance.

Similarly, Q&A No. 36 states that “[s]ince reasonable accommodation is always prospective, an employer is not required to excuse past misconduct even if it is the result of the individual’s disability.” The Enforcement Guidance gives an example of an employee whose disability renders him chronically late for work, and explains that, while the employer is free to discipline him for incidents that occurred prior to his accommodation request, it must still offer him “reasonable accommodation, barring undue hardship, to enable this individual to meet this standard in the future.” Id.

The EEOC has also issued a Fact Sheet, not cited by the district court, specifically addressing the distinction between performance standards and conduct rules in the ADA context.[6] EEOC Fact Sheet, The Americans with Disabilities Act: Applying Performance and Conduct Standards to Employees with Disabilities (hereinafter “Fact Sheet”).[7] The Fact Sheet has separate sections, and separate substantive guidance, addressing performance standards and conduct rules. Compare Fact Sheet § III(A), question 1 (performance standards, i.e., “quantitative and qualitative requirements for performance of essential functions”), with § III(B), question 9 (conduct rules, i.e., “violence, threats of violence, stealing, or destruction of property,” “insubordination towards supervisors and managers,” employee respect for clients and customers, “inappropriate behavior between coworkers,” misuse of e-mail or the Internet, “safety and operational rules,” and rules “prohibit[ing] drinking or illegal use of drugs in the workplace”).

Because the factual question in this case is essentially whether DeWitt acted intentionally in hanging up the calls, the issue is more logically framed as a performance question than as an act of deliberate “misconduct.” Almost every case the district court cited in ruling that “a ‘second chance’ or overlooking misconduct that otherwise warrants termination is not a ‘reasonable accommodation’” dealt with violations of true conduct rules, not performance standards, and fairly egregious and repeated ones at that.[8] V-AA-557-58.

The basic rule that an employer is not required to “excuse” past poor performance still holds with respect to performance standards. But this does not mean that an employer is categorically free to terminate any and all disabled employees at the first instance of any and all disability-related performance deficiencies. Rather, the Guidance makes clear that the disabled employee’s legitimate need for an accommodation may not manifest itself until at least some performance problems have already occurred. See Enforcement Guidance, Q&A No. 4 (“[A]n individual with a disability should request a reasonable accommodation when s/he knows that there is a workplace barrier that is preventing him/her, due to a disability, from effectively competing for a position, performing a job, or gaining equal access to a benefit of employment.”).

The Fact Sheet provides further clarification:

Employees may ask for reasonable accommodation before or after being told of performance problems. Sometimes, an employee may not know or be willing to acknowledge that there is a problem requiring accommodation until the employer points out deficiencies in performance…. Ideally, employees will request reasonable accommodation before performance problems arise, or at least before they become too serious…. [T]he timing of a request for reasonable accommodation is important because an employer does not have to rescind discipline (including a termination) or an evaluation warranted by poor performance.”

Fact Sheet § III(A), question 5.

The Fact Sheet gives an example of a scenario where termination of a disabled employee based on past performance problems is appropriate. See Fact Sheet § III(A), Example 9. In the example, the employee, who has a history of performance problems and progressive discipline, only discloses his disability and requests an accommodation for the first time at his termination meeting. Under these circumstances, the employer may proceed with the termination because “[t]his employee waited too long to request reasonable accommodation.” Compare, e.g., Fact Sheet, Question 6 (“When an employee requests a reasonable accommodation in response to the employer’s discussion or evaluation of the person’s performance, the employer may proceed with the discussion or evaluation but also should begin the ‘interactive reasonable accommodation process….’”). Thus, the EEOC’s policy materials reflect that, while termination may be warranted where an employee with a history of performance problems only belatedly discloses her disability, it is not automatically appropriate in every instance of disability-related performance issues.[9]

This Court’s existing case law is consistent with the EEOC’s published guidance. This Court has held repeatedly that there is no “stark dichotomy” under the ADA “between ‘disability’ and ‘disability-caused misconduct,’ but rather [the statute] protects both.” Doebele v. Sprint/United Mgmt. Co., 342 F.3d 1117, 1134 (10th Cir. 2003) (internal citations omitted). As this Court has further explained,

As a general rule, an employer may not hold a disabled employee to precisely the same standards of conduct as a non-disabled employee unless such standards are job-related and consistent with business necessity…. The availability of [the undue hardship and direct threat] affirmative defenses establishes that there are certain levels of disability-caused conduct that need not be tolerated or accommodated by employers. However, the necessary corollary is that there must be certain levels of disability-caused conduct that have to be tolerated or accommodated.

Den Hartog, 129 F.3d at 1086-87 (emphasis in original); see also Nielsen v. Moroni Feed Co., 162 F.3d 604, 608 (10th Cir. 1998).

In this case, a reasonable jury could readily find that DeWitt was not given the “opportunity to meet [SWBTC’s] performance criteria by reasonable accommodation,” as the law requires. SWBTC terminated DeWitt as a result of her very first “hang-up” incident, which was only her second disciplinary incident in thirteen years’ employment and the first related to her disability. DeWitt had no reason to know beforehand that she required any further accommodation for her diabetes, and the incident served to bring both her attention and SWBTC’s to the issue. These facts distinguish DeWitt’s case from all of the scenarios in the EEOC’s guidance materials where disabled employees failed to request an accommodation until after they were being terminated for misconduct or performance failures.

As the district court recognized, if SWBTC had not fired DeWitt when it did, it could have afforded her the opportunity to see if she could modify her glucose-monitoring regime to prevent further diabetes-related incidents. V-AA-558. Instead, though, the court dismissed this form of accommodation out of hand, effectively applying a “one strike and you’re out” rule to diabetics and other disabled individuals who take an active role in managing their symptoms. The court based its ruling on several inapposite cases, all involving plaintiffs who were almost certainly “direct threats” working in high-risk jobs (some of whom also delayed requesting an accommodation). See Davila, 113 F. App’x at 854 (“[P]laintiff’s position is that when defendant learned his workplace violence was evidently rooted in a bipolar condition, defendant was required to retroactively excuse any misconduct related to that condition.”); id. at 851 (observing that plaintiff was terminated “for misconduct involving deceit that had no inherent or demonstrated connection with his claimed disability”); Hill v. Kansas City Area Transp. Auth., 181 F.3d 891, 894 (8th Cir. 1999) (plaintiff bus driver with hypertension who had fallen asleep on the job twice and “ignored the problem until her work performance warranted discharge”); Siefken v. Village of Arlington Heights, 65 F.3d 664, 665 (7th Cir. 1995) (plaintiff police officer who, while experiencing a severe diabetic reaction, “erratically drove his squad car at high speed through residential areas some forty miles outside his jurisdiction” and “stopped only when pulled over by police officers”).

To the extent some of these cases may suggest that an employer never has a duty to accommodate an employee’s disability by offering a “second chance” to alter a treatment regimen, that view is simply wrong. See Enforcement Guidance, Q&A No. 37 (“It may be a form of reasonable accommodation [] to give an employee a break in order that s/he may take medication, or to grant leave so that an employee may obtain treatment.”). Such a blanket rule would operate to bar many disabled workers from demonstrating that they can participate fully and effectively in the workforce—an outcome fundamentally at odds with the ADA. See Humphrey v. Mem’l Hosps. Ass’n, 239 F.3d 1128, 1137 (9th Cir. 2001) (“It would be inconsistent with the purposes of the ADA to permit an employer to deny an otherwise reasonable accommodation because of past disciplinary action taken due to the disability sought to be accommodated.”).

Accordingly, while the ADA did not require SWBTC to “excuse” the hang-up incident or pretend it did not happen, SWBTC should have treated it as initiating the ADA’s interactive process with respect to DeWitt’s need for a reasonable accommodation. See Diabetes Q&A No. 11 (in requesting accommodation, employee “simply has to tell the employer that she needs an adjustment or change at work because of her diabetes”); id. No. 10 (“Employers should ask the particular employee … what he needs that will help him do his job.”); id. No. 14 (“The duty to provide a reasonable accommodation is an ongoing one. Although some employees with diabetes may require only one reasonable accommodation, others may need more than one.”). Instead, SWBTC treated the hang-up incident like any other disciplinary infraction, ignoring its obvious nexus to DeWitt’s diabetes. A reasonable jury could find that, in so doing, SWBTC violated the ADA.

CONCLUSION

For the foregoing reasons, the judgment of the district court should be reversed and the case remanded for further proceedings.

Respectfully submitted,

P. DAVID LOPEZ

General Counsel

CAROLYN L. WHEELER

Acting Associate General Counsel

LORRAINE C. DAVIS

Assistant General Counsel

s/Elizabeth E. Theran

ELIZABETH E. THERAN

Attorney

Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4720

elizabeth.theran@eeoc.gov

CERTIFICATE OF COMPLIANCE

I hereby certify that this brief complies with the type-volume limitations of Fed. R. App. P. 29(d) and 32(a)(7)(B) because it contains 6,939 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii) and Tenth Cir. R. 32(b). This brief also complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2007 in Palatino Linotype 14 point.

s/Elizabeth E. Theran

ELIZABETH E. THERAN

Attorney

Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4720

elizabeth.theran@eeoc.gov

Dated: January 21, 2015

CERTIFICATE OF DIGITAL SUBMISSION & PRIVACY REDACTIONS

I hereby certify that (1) all required privacy redactions (in this document, none) have been made to this document, (2) the hard copies to be submitted to the Court are exact copies of the version submitted electronically, and (3) the electronic submission was scanned for viruses with the most recent version of a commercial virus scanning program, Trend Micro OfficeScan, version 10.6.5495 Service Pack 3 (updated Jan. 21, 2015) and, according to that program, is free of viruses.

s/Elizabeth E. Theran

ELIZABETH E. THERAN

Attorney

Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4720

elizabeth.theran@eeoc.gov

Dated: January 21, 2015

[1] We take no position with respect to any other issue presented in this appeal.

[2] DeWitt testified that she simply forgot to remove the service from the customer’s account. II-AA-202. She does not allege that this error was related to her diabetes.

[3] The printout from DeWitt’s monitor gave the time of this reading as 5:07, but DeWitt testified that the times on the printout were all one hour late. V-AA-421, 466.

[4] Available at http://www.eeoc.gov/policy/docs/accommodation.html.

[5] The district court also characterized its ruling as a finding that DeWitt failed to establish a prima facie case of discrimination. V-AA-549. A fortiori, since DeWitt adduced sufficient evidence to create a genuine dispute of material fact as to pretext, there can be little question that she also did so with respect to a prima facie case. See Smothers v. Solvay Chems., Inc., 740 F.3d 530, 539 (10th Cir. 2014) (characterizing the prima facie burden as “requir[ing] only a small amount of proof” and “not onerous”); Kendrick v. Penske Transp. Servs., 220 F.3d 1220, 1227 (10th Cir. 2000) (“‘[T]here must be at least a logical connection between each element of the prima facie case and the illegal discrimination for which it establishes a legally mandatory, rebuttable presumption.’”) (internal citation omitted).

[6] The EEOC also has a diabetes-specific Q&A. EEOC, Questions & Answers about Diabetes in the Workplace and the Americans with Disabilities Act (ADA), available at http://www.eeoc.gov/laws/types/diabetes.cfm (hereinafter “Diabetes Q&A”).

[7] Available at http://www.eeoc.gov/facts/performance-conduct.html.

[8] This Court has observed that cases of this type are really “direct threat” cases, which raise a separate affirmative defense and are analyzed based on threats to the safety of others in the workplace. Den Hartog v. Wasatch Acad., 129 F.3d 1076, 1088 n.10 (10th Cir. 1997).

[9] The agency has recently initiated two enforcement lawsuits (one of which it settled) reflecting this view of the ADA. Press Release, EEOC, America’s Largest Drug Store Chain to Pay $180,000 to Settle EEOC Disability Discrimination Suit (July 2, 2014), available at http://www.eeoc.gov/eeoc/newsroom/release/7-2-14b.cfm; Press Release, EEOC, Dollar General Sued by EEOC for Disability Discrimination (Sept. 24, 2014), available at http://www.eeoc.gov/eeoc/newsroom/release/9-24-14.cfm.