explaining that, when “determining whether harassment is sufficiently pervasive or severe,” courts should consider (among other factors) “the frequency of the discriminatory conduct” (quoting Patton v. Jacobs Eng’g Grp., Inc., 874 F.3d 437, 445 (5th Cir. 2017))
How later courts described this case
- explaining that, when “determining whether harassment is sufficiently pervasive or severe,” courts should consider (among other factors) “the frequency of the discriminatory conduct” (quoting Patton v. Jacobs Eng’g Grp., Inc., 874 F.3d 437, 445 (5th Cir. 2017))
- holding an individual was not qualified under the ADA when the only evidence presented was that he was a good fit for the job and initially received positive feedback about his performance
- finding that the employer worked in good faith with employee by explaining why a requested accommodation was unreasonable and asking him to respond with alternative accommodations
- explaining “[a] disabled employee has no right . . . to receive the same compensation as he received previously” (quoting Jenkins v. Cleco Power LLC, 487 F.3d 309, 316 (5 Cir. 2007))
Written by the judges who cited it.
The opinion
Case: 20-50218 Document: 00515909526 Page: 1 Date Filed: 06/22/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 22, 2021
No. 20-50218
Lyle W. Cayce
Clerk
John Thompson,
Plaintiff—Appellant,
versus
Microsoft Corporation,
Defendant—Appellee.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:18-CV-680
Before Higginbotham, Southwick, and Engelhardt, Circuit
Judges.
Patrick E. Higginbotham, Circuit Judge:
John Thompson appeals the district court’s grant of summary
judgment for his employer, Microsoft, on his claims under the Americans
with Disabilities Act (“ADA”) for failure to accommodate, discrimination,
and creation of a hostile work environment. We affirm.
I
Thompson’s appeal arises from his efforts to obtain accommodations
for his Autism Spectrum Disorder (“ASD”). He first requested
Case: 20-50218 Document: 00515909526 Page: 2 Date Filed: 06/22/2021
No. 20-50218
accommodations from Microsoft’s human resources group in 2015 when he
was an account technology strategist. Some of his requested accommodations
included working on only one project at a time, provision of an assistant for
administrative tasks, and permission to work from home. During negotiations
about his requests, Thompson expressed interest in transferring to an
Enterprise Architect (“EA”) role, which is “a senior-level executive
position” serving as a liaison between Microsoft and its clients.
Microsoft informed Thompson that some of his requested
accommodations were incompatible with the EA role because the role
required “strong leadership and people skills” and “[e]xecutive-level
interpersonal, verbal, written and presentation skills.” Thompson withdrew
his request for accommodations and asked that his new manager not be
informed about his ASD diagnosis. He then applied for an EA position and
was recommended as a good fit for the role. Thompson was hired as an EA
in Austin, Texas. He relocated there from New Jersey and began work in the
fall of 2015.
Thompson’s performance as an EA did not go smoothly. His first, and
only, assignment was with Enterprise Holdings. Despite giving Thompson
some initial positive feedback, his manager soon indicated “concerns with
[Thompson’s] skillset, experience and ability to lead and develop the
required business architecture and framework.” Specifically, Thompson was
not submitting deliverables on time and the quality of the work he did
complete was subpar. At one point, the client itself requested that Thompson
not continue on the engagement. As a result of these issues and the client’s
dissatisfaction, Microsoft removed Thompson from the Enterprise Holdings
engagement shortly after joining it in January 2016.
In subsequent conversations about his poor performance, Thompson
revealed to his EA manager that he was autistic. His manager then contacted
2
Case: 20-50218 Document: 00515909526 Page: 3 Date Filed: 06/22/2021
No. 20-50218
Microsoft’s human resources and benefits group in February and temporarily
removed Thompson from the EA pool, meaning he was not considered to be
staffed on any future EA engagements during this time. Thompson again
began requesting accommodations.
Thompson submitted a second formal request for accommodations on
April 2, 2016. His requests were
• A noise-cancelling headset;
• A specialized job coach with experience coaching executives
and/or technologists with ASD;
• Training classes on managing ASD and ADHD in the workplace,
• An individual to assist in translating/interpreting information
provided verbally by Thompson into the appropriate written
format (i.e. PowerPoint, Word, email, etc.);
• A scribe to record meeting notes for Thompson;
• An individual to assist with administrative tasks, such as travel
booking, time and expense reporting, meeting scheduling, routine
paperwork, etc., as well as with monitoring timeliness and
providing reminders;
• A handheld voice recorder and access to a voice transcription
service;
• Specialized software to support time management and
organization for individuals with ASD and ADHD;
• Provision of specialized training in managing individuals with ASD
and ADHD to Thompson’s managers; and
• Permission for Thompson to bring an advocate to performance
reviews.
On May 16, Microsoft informed Thompson that it agreed to some of
the requests—such as the noise-cancelling headset, specialized job coach,
3
Case: 20-50218 Document: 00515909526 Page: 4 Date Filed: 06/22/2021
No. 20-50218
time-management and organization software, and providing training to
Thompson’s managers on managing employees with ASD—but found
others unreasonable. In particular, Microsoft raised concerns about
providing Thompson with an individual to assist in translating his verbal
information into writing because EAs were expected to clearly communicate
their ideas to clients and “[t]he work product would be unacceptably watered
down if filtered through a person with less or no experience in basic role
requirements of architecture, strategic development, business alignment . . .,
and other areas.” Microsoft was also concerned that Thompson’s request for
individuals to help him with administrative tasks and recording meeting notes
was unreasonable because the EA role requires responding to clients and
others quickly and under dynamic conditions. Finally, Microsoft noted that
Thompson’s requests would require it to hire full-time assistance to handle
basic email and administrative tasks for Thompson. As such, Microsoft
concluded that these requests would excuse him from performing essential
EA functions.
Thompson and Microsoft engaged in additional negotiations through
July as to whether Thompson could suggest alternate accommodations that
Microsoft would find reasonable. Thompson continued to insist on the
accommodations Microsoft found unreasonable, including requests for a
person(s) to assist in translating Thompson’s verbal thoughts into written
form, record meeting notes, and assist with administrative tasks. Microsoft
informed Thompson that it continued to find these accommodations
unreasonable. Ultimately, Microsoft deemed it could not reasonably
accommodate Thompson as an EA, removed him from the EA role, and
decided to place him in a job-reassignment process.
Thompson objected to being reassigned, stating that he was willing to
accept the accommodations Microsoft was willing to provide and make
alternative arrangements for his outstanding needs. On July 21, Microsoft
4
Case: 20-50218 Document: 00515909526 Page: 5 Date Filed: 06/22/2021
No. 20-50218
nevertheless proceeded with placing him on job reassignment and began
working with him to find an open position with Thompson’s requested
accommodations in mind. Thompson provided his résumé to the Microsoft
employee assisting him with job reassignment but did not express interest in
any new positions because he would not consider jobs outside of the Austin
area or those that paid a lower salary. Instead, Thompson took long-term
disability leave in September 2016 and has not returned to work. 1
II
In 2018, Thompson sued Microsoft, raising claims of failure to
accommodate, discrimination, and hostile work environment under the ADA
based on his time both as an account technology strategist and an EA. 2
Microsoft moved for summary judgment on each claim. In responding to
Microsoft’s motion, Thompson only focused on his claims as they related to
his time as an EA. The district court referred the motion to the magistrate,
and the magistrate recommended granting the motion. Thompson objected
to each conclusion by the magistrate. The district court conducted a de novo
review, overruled Thompson’s objections, and adopted the magistrate’s
report and recommendations, granting Microsoft’s motion for summary
judgment in full.
Thompson now appeals and argues that the district court erred in
granting Microsoft summary judgment on his failure-to-accommodate,
1
Microsoft clarified at oral argument that Thompson remains a Microsoft
employee while on long-term disability leave.
2
Thompson also raised a retaliation claim in his complaint, but the district court
found that he “abandoned that claim by failing to defend it in his Response to Microsoft’s
Motion for Summary Judgment.” Thompson does not attempt to raise the retaliation claim
on appeal.
5
Case: 20-50218 Document: 00515909526 Page: 6 Date Filed: 06/22/2021
No. 20-50218
discrimination, and hostile-work-environment claims as they relate to his
time as an EA.
III
We “review a district court’s grant of summary judgment de novo,
viewing all facts and drawing all inferences in a light most favorable to the
non-moving party.” 3 Summary judgment is proper “if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” 4 “A fact is material if it might affect the
outcome of the suit and a factual dispute is genuine if the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.” 5 We
“may affirm the district court’s grant of summary judgment on any ground
supported by the record and presented to the district court.” 6
IV
A
We turn first to Thompson’s failure-to-accommodate claim. Under
the ADA, an employer must “make ‘reasonable accommodations to the
known physical or mental limitations of an otherwise qualified individual with
a disability.’” 7 “To prevail on a failure-to-accommodate claim, the plaintiff
must show (1) he is a qualified individual with a disability; (2) the disability
and its consequential limitations were known by the covered employer; and
3
Harville v. City of Houston, Miss., 945 F.3d 870, 874 (5th Cir. 2019).
4
Fed. R. Civ. P. 56(a).
5
Harville, 945 F.3d at 874 (internal quotation marks and citation omitted).
6
Salinas v. R.A. Rogers, Inc., 952 F.3d 680, 682 (5th Cir. 2020) (internal quotation
marks and citation omitted).
7
Delaval v. Ptech Drilling Tubulars, LLC, 824 F.3d 476, 479 (5th Cir. 2016)
(quoting 42 U.S.C. § 12112(b)(5)(A)).
6
Case: 20-50218 Document: 00515909526 Page: 7 Date Filed: 06/22/2021
No. 20-50218
(3) the employer failed to make reasonable accommodations for such known
limitations.” 8
“A plaintiff can establish that he is qualified by showing that either
(1) he could perform the essential functions of the job in spite of his disability,
or (2) that a reasonable accommodation of his disability would have enabled
him to perform the essential functions of the job.” 9 Thompson agrees that he
was unable to perform the EA role without any accommodations but argues
that there is a genuine issue of material fact as to whether reasonable
accommodations would have allowed him to perform EA essential functions.
He also argues that Microsoft failed to negotiate reasonable accommodations
in good faith.
Reasonable accommodations include “job restructuring, part-time or
modified work schedules, reassignment to a vacant position, acquisition or
modification of equipment or devices, appropriate adjustment or
modifications of examinations, training materials or policies, the provision of
qualified readers or interpreters, and other similar accommodations.” 10
“The ADA does not require an employer to relieve an employee of any
essential functions of his or her job, modify those duties, reassign existing
employees to perform those jobs, or hire new employees to do so.” 11
Essential functions are those that “bear more than a marginal relationship to
the job at issue.” 12 In determining whether a function is essential, we look to
8
Moss v. Harris Cty. Constable Precinct One, 851 F.3d 413, 417 (5th Cir. 2017)
(internal quotation marks and citation omitted).
9
Id. (internal quotation marks and citation omitted).
10
42 U.S.C. § 12111(9)(B).
11
Burch v. City of Nacogdoches, 174 F.3d 615, 621 (5th Cir. 1999) (citations omitted).
12
Chandler v. City of Dall., 2 F.3d 1385, 1393 (5th Cir. 1993) (citation omitted).
7
Case: 20-50218 Document: 00515909526 Page: 8 Date Filed: 06/22/2021
No. 20-50218
the employer’s judgment, written job descriptions, the amount of time spent
on the job performing the function, and the consequences of not requiring
the employee to perform the function. 13
Doing so, we conclude that Thompson’s requests for individuals to
assist him with translating verbal information into written materials,
recording meeting notes, and performing administrative tasks were
unreasonable because they would exempt him from performing essential
functions. The EA job description states that the EA is a “[c]onsulting” role
involving “constant interaction with the Account Team dedicated to their
customer” and “work[ing] closely with other Architects, Consultants, and
other experts.” Qualifications and requirements include “strong . . . people
skills,” the “ability to coordinate physical and virtual resources and
initiatives,” “[e]xecutive-level interpersonal, verbal, written and
presentation skills, . . . [and the] ability to provide a trusted voice at the
decision-making table.” Microsoft also determined that these requested
accommodations interfered with the EA’s essential functions involved in
communicating with the client and managing multiple complex projects in a
fast-paced environment. Moreover, Microsoft noted that Thompson’s
requests would require hiring someone to work with Thompson on a full-time
basis, indicating that EAs spend a considerable amount of time on functions
Thompson was seeking to have someone else do. As such, these requests
excused him from performing essential functions. It follows that Thompson
is not a qualified person under the ADA. 14
13
Credeur v. La. through Off. of Att’y Gen., 860 F.3d 785, 792 (5th Cir. 2017) (citing
29 C.F.R. § 1630.2(n)(3)).
14
See Barber v. Nabors Drilling USA, Inc., 130 F.3d 702, 709 (5th Cir. 1997) (“We
cannot say that [an employee] can perform the essential functions of the job with reasonable
8
Case: 20-50218 Document: 00515909526 Page: 9 Date Filed: 06/22/2021
No. 20-50218
Thompson further contends that he would have been able to perform
the essential functions of an EA with only some of his requests fulfilled, but
he has not successfully carried his burden of demonstrating that this is a
genuine issue of material fact. 15 The only evidence Thompson points to that
might indicate he could perform EA essential functions without all of his
requested accommodations is that he was initially recommended as a good fit
for the EA role and had some initial positive feedback upon joining the
Enterprise Holdings engagement. But after Thompson spent more time in
the EA role, his manager became aware of Thompson’s shortcomings,
including his difficulties communicating, failure to provide meeting notes,
missed deadlines, and subpar quality of written materials, which
Thompson’s manager noted in performance reviews beginning in
December 2015. There is no genuine dispute of material fact that
Thompson’s performance as an EA at this point was deficient and thus no
genuine dispute of material fact that Thompson could have performed EA
essential functions without all of his requested accommodations.
Even if Thompson were a qualified person under the ADA, he also
fails to create a genuine issue of material fact as to whether Microsoft failed
to negotiate in a good-faith manner. “When a qualified individual with a
disability requests a reasonable accommodation, the employer and employee
should engage in flexible, interactive discussions to determine the
accommodation, if the only successful accommodation is for [the employee] not to perform
those essential functions.”).
15
See EEOC v. LHC Grp., Inc., 773 F.3d 688, 697 (5th Cir. 2014); see also Credeur,
860 F.3d at 793 (noting that employees are not permitted “to define the essential functions
of their positions based solely on their personal viewpoint and experience” because “[i]f
that were [] the case, every failure-to-accommodate claim involving essential functions
would go to trial because all employees who request their employer exempt an essential
function think they can work without that essential function” (internal quotation marks and
citation omitted)).
9
Case: 20-50218 Document: 00515909526 Page: 10 Date Filed: 06/22/2021
No. 20-50218
appropriate accommodation.” 16 “[A]n employer’s unwillingness to engage
in a good faith interactive process” is a violation of the ADA. 17 The
appropriate accommodation need not be “the employee’s preferred
accommodation,” and the employer is free to “choose the less expensive
accommodation or the accommodation that is easier for it to provide.” 18
The record reflects that Microsoft appropriately engaged in good
faith. Microsoft worked with Thompson over several months, explaining
accommodations it deemed unreasonable, asking Thompson to respond with
alternate accommodations, and offering to consult directly with Thompson’s
doctors. Further, Microsoft’s placement of Thompson in the job-
reassignment program is precisely one of the possible accommodations the
ADA contemplates, 19 so by attempting to reassign Thompson, Microsoft was
continuing the interactive process rather than terminating it. Because
Microsoft had the “ultimate discretion to choose between effective
accommodations,” it was justified in placing Thompson on job reassignment
over his objections. 20
Thompson next urges that placing him on job reassignment was no
reasonable accommodation because there were only three or four jobs in the
Austin area and these roles were not a match for his qualifications. The
record indicates that Thompson also objected to applying for the positions in
his geographic area because they paid a lower salary. Thompson’s complaints
16
EEOC v. Agro Distrib., 555 F.3d 462, 471 (5th Cir. 2009) (citing 29 C.F.R.
§ 1630.9).
17
Loulseged v. Akzo Nobel Inc., 178 F.3d 731, 736 (5th Cir. 1999).
18
Agro Distrib., 555 F.3d at 471 (citations omitted).
19
See 42 U.S.C. § 12111(9)(B).
20
Agro Distrib., 555 F.3d at 471 (quoting 29 C.F.R. § 1630.9).
10
Case: 20-50218 Document: 00515909526 Page: 11 Date Filed: 06/22/2021
No. 20-50218
about the suitability of available positions do not render reassignment an
unreasonable accommodation because “[a] disabled employee has no right to
a promotion, to choose what job to which he will be assigned, or to receive
the same compensation as he received previously.” 21 While an employee
must have the prerequisites for the new position, 22 there is no evidence that
Thompson lacked any necessary qualifications for the jobs located near him.
Finally, Thompson’s argument that Microsoft did not assist him in finding
vacant positions is contradicted by the record, which includes email
correspondence between Thompson and a Microsoft employee assigned to
assist him with job reassignment. Indeed, the record demonstrates that
Thompson, not Microsoft, was responsible for the breakdown of the
interactive process seeking reasonable accommodation in refusing to indicate
interest in any vacant position. 23
We affirm the district court’s grant of summary judgment for
Microsoft on Thompson’s failure-to-accommodate claim.
B
We next consider Thompson’s discrimination claim. “To establish a
prima facie discrimination claim under the ADA, a plaintiff must prove:
(1) that he has a disability; (2) that he was qualified for the job; and (3) that
he was subject to an adverse employment decision on account of his
21
Jenkins v. Cleco Power, LLC, 487 F.3d 309, 316 (5th Cir. 2007) (citing Allen v.
Rapides Parish Sch. Bd., 204 F.3d 619, 622-23 (5th Cir. 2000)); see also Foreman v. Babcock
& Wilcox Co., 117 F.3d 800, 810 (5th Cir. 1997) (“Under the ADA, an employer is not
required to give what it does not have.”).
22
See Gonzales v. City of New Braunfels, Tex., 176 F.3d 834, 839 (5th Cir. 1999).
23
See Griffin v. United Parcel Serv., Inc., 661 F.3d 216, 224 (5th Cir. 2011)
(“However, an employer cannot be found to have violated the ADA when responsibility
for the breakdown of the informal, interactive process is traceable to the employee and not
the employer.” (internal quotation marks and citation omitted)).
11
Case: 20-50218 Document: 00515909526 Page: 12 Date Filed: 06/22/2021
No. 20-50218
disability.” 24 Adverse employment decisions are “ultimate employment
decisions such as hiring, granting leave, discharging, promoting, . . .
compensating,” or demoting. 25 Once a plaintiff establishes a prima facie case,
the burden shifts to the employer to “articulate a legitimate,
nondiscriminatory reason” for its actions. 26 The plaintiff then has the burden
to prove that the employer’s explanation was a pretext for discrimination. 27
Thompson cannot establish a prima facie discrimination claim for the
same reason his failure-to-accommodate claim fails—he is not a qualified
individual under the ADA. Even if he were qualified, Thompson was not
subject to an adverse employment decision. Thompson offers two incidents
as adverse employment actions: (1) Microsoft’s decision to remove him from
the EA pool after the Enterprise Holdings engagement, and (2) its decision
to remove him from the EA role and place him on job reassignment. Neither
qualifies as an adverse employment action because they were not “ultimate
employment decisions.” 28
Thompson’s initial removal from the EA pool in January 2016 was
temporary as evidenced by his manager’s testimony that the removal was to
allow Thompson time to refine his skills so that he could succeed when next
staffed as an EA on an engagement. Because Thompson remained an EA
during this time and had not been permanently removed from the role,
removal from the pool was not an adverse employment action.
24
LHC Grp., 773 F.3d at 697 (internal quotation marks and citation omitted).
25
Pegram v. Honeywell, Inc., 361 F.3d 272, 282 (5th Cir. 2004) (internal quotation
marks, citations, and emphasis omitted).
26
LHC Grp., 773 F.3d at 694.
27
Id.
28
Pegram, 361 F.3d at 282.
12
Case: 20-50218 Document: 00515909526 Page: 13 Date Filed: 06/22/2021
No. 20-50218
Transfer can be an adverse employment action where “the new
position proves objectively worse—such as being less prestigious or less
interesting or providing less room for advancement.” 29 According to
Thompson, this was precisely the situation when he was placed on job
reassignment in July 2016 because his only task was to look for new work,
making the “new position” of being on job reassignment objectively worse.
But being placed on job reassignment was not an ultimate employment
action. It was a temporary placement to allow Thompson to find a new
position. Had Thompson actually been transferred, a comparison between
the new position and the EA role could indicate an adverse employment
action. Since Thompson has chosen to remain on long-term disability leave
since September 2016, though, Microsoft has not made any ultimate
employment decision.
Because Thompson fails to establish a prima facie case of
discrimination, we affirm the district court’s grant of summary judgment for
Microsoft on Thompson’s discrimination claim.
C
Finally, we turn to Thompson’s hostile-work-environment claim. To
establish a hostile-work-environment claim under the ADA, Thompson must
show that: (1) he belongs to a protected group, (2) was subject to unwelcome
harassment (3) based on his disability, (4) which affected a term, condition,
or privilege of employment, and (5) Microsoft knew or should have known of
the harassment and failed to take prompt, remedial action. 30 “[H]arassment
29
Alvarado v. Tex. Rangers, 492 F.3d 605, 613 (5th Cir. 2007) (internal quotation
marks and citation omitted).
30
Flowers v. S. Reg’l Physician Servs. Inc., 247 F.3d 229, 235-36 (5th Cir. 2017)
(internal quotation marks and citation omitted).
13
Case: 20-50218 Document: 00515909526 Page: 14 Date Filed: 06/22/2021
No. 20-50218
must be sufficiently pervasive or severe to alter the conditions of employment
and create an abusive working environment.” 31 In determining whether
harassment is sufficiently pervasive or severe, we consider “the frequency of
the discriminatory conduct; its severity; whether it is physically threatening
or humiliating, or a mere offensive utterance; and whether it unreasonably
interferes with an employee’s work performance.” 32 “[S]imple teasing,
offhand comments, and isolated incidents (unless extremely serious) do not
suffice to alter the terms and conditions of employment.” 33
None of the evidence Thompson relies on indicates that he was
subject to harassment pervasive or severe enough to alter the conditions of
his employment. Thompson first points to two statements by his manager,
Marc Garcia: (1) Garcia’s comment that Thompson should “seek a different
career” when Thompson told Garcia of his autism and (2) Garcia’s
statement that Thompson was removed from the EA pool because of his
autism. These insensitive statements do not give rise to a hostile-work-
environment complaint; they were no more than “a few harsh words,” and
Thompson does not allege that Microsoft knew or should have known about
the comments. 34 Thompson next contends that Garcia harassed him when
Garcia required Thompson to prepare a presentation following the
Enterprise Holdings engagement and then reported Thompson’s poor
performance to Microsoft. But “[c]riticism of an employee’s work
31
Id. at 236 (internal quotation marks and citation omitted).
32
Patton v. Jacobs Eng’g Grp., Inc., 874 F.3d 437, 445 (5th Cir. 2017) (internal
quotation marks and citation omitted).
33
Id. (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)); see also
Gowesky v. Singing River Hosp. Sys., 321 F.3d 503, 509 (5th Cir. 2003) (“The legal standard
for workplace harassment in this circuit is . . . high.”).
34
McConathy v. Dr. Pepper/Seven Up Corp., 131 F.3d 558, 564 (5th Cir. 1998).
14
Case: 20-50218 Document: 00515909526 Page: 15 Date Filed: 06/22/2021
No. 20-50218
performance . . . do[es] not satisfy the standard for a harassment claim”
where “the record demonstrates deficiencies in the employee’s performance
that are legitimate grounds for concern or criticism,” as it does here. 35
Finally, Thompson argues that his placement on job reassignment is evidence
of a hostile work environment. This, too, is unavailing because an employer’s
provision of a reasonable accommodation does not constitute harassment. 36
The district court correctly granted summary judgment for Microsoft
on Thompson’s hostile-work-environment claim.
V
We affirm.
35
Credeur, 860 F.3d at 796 (citation omitted).
36
See id. at 796-97 (finding that employer’s provision of reasonable
accommodations that were not Credeur’s preferred ones did not constitute actionable
harassment).
15