Kathleen Fowler v. AT&T Inc

PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT

No. 20-2247

KATHLEEN FOWLER,

Appellant

v.

AT&T, INC.; AT&T SERVICES, INC.

Appeal from the United States District Court for the District

of New Jersey (D.C. Civil Action No. 3-18-cv-00667)

District Judge: Honorable Michael A. Shipp

Argued on March 9, 2021

Before: SMITH, Chief Judge, McKEE and AMBRO, Circuit

Judges

(Opinion filed: November 26, 2021)

Stephen G. Console

Brian C. Farrell (Argued)

Laura C. Mattiacci

Susan M. Saint-Antoine

Console Mattiacci Law

1525 Locust Street

9th Floor

Philadelphia, PA 19102

Counsel for Appellant

Kenneth Gage (Argued)

Davis M. Woodruff

Paul Hastings

200 Park Avenue

30th Floor

New York, NY 10166

Counsel for Appellee

2

Sydney A. R. Foster

Jennifer S. Goldstein

Sharon F. Gustafson

Jeremy D. Horowitz (Argued)

Equal Employment Opportunity Commission

5th Floor

131 M Street, N.E.

Washington, DC 20507

Counsel for Amicus Appellant United States Equal

Employment Opportunity Commission

OPINION OF THE COURT

__________________

AMBRO, Circuit Judge

Kathleen Fowler, a thirty-year veteran of AT&T and an

epileptic breast cancer survivor, sued her former employer for

age and disability discrimination. She claims that AT&T

discriminated against her twice. First, it placed her on “surplus

status” in January 2016, effectively giving her 60 days to find

a new job or be terminated. Second, after she found a new job

within AT&T, she was again placed on surplus status in

October of that same year and ultimately terminated. In

addition, she argues that the company failed to accommodate

her disabilities in her new position.

The District Court granted AT&T’s motion for summary

judgment on all claims. We agree with the Court in ruling

against Fowler, but we do so for different reasons. Contrary to

3

its conclusion, we hold that the January surplus selection for

Fowler was an adverse employment action that could support

a discrimination claim, even though she eventually found

another job within the company. However, AT&T has

provided powerful evidence that Fowler’s January surplus

selection was simply a neutral reduction in force, and she has

not provided sufficient evidence to suggest that the company’s

explanation is actually a pretext masking discrimination. Thus

her claims associated with the January action fail.

As for Fowler’s termination following the October

surplus selection, she may not maintain discrimination or

failure-to-accommodate claims connected to a job for which

she was not qualified. Because—by her own admission—

Fowler was not qualified for her new position, her claims tied

to the October surplus selection must also fail. Thus we affirm

the judgment of the District Court.

I. Background

AT&T employed Fowler from 1986 until her

termination on December 27, 2016. She was diagnosed in

2006 with a seizure disorder (epilepsy) that caused cognitive

impairments, including a decline in memory. In 2011, Fowler

disclosed to AT&T her disability and its effect on her memory.

Then, in January 2015, she was diagnosed with breast cancer

and subsequently informed AT&T of her diagnosis and

treatments.

In December 2015, AT&T planned to reduce Fowler’s

business unit, Technology Planning and Engineering, by

consolidating roles, eliminating duplicative work, and reducing

nonessential work. Employees affected by the workforce

4

reduction would be placed on “surplus status,” which is what

AT&T calls its layoff procedures. Its guidelines make clear the

intent of surplus status is to eliminate “positions which are no

longer needed” but is “not a performance management tool”

and “is not intended to facilitate turnover within [AT&T].”

App. at 276. When an employee is placed on surplus status,

she is given two options: either elect to terminate her

employment immediately and receive severance, or extend her

employment by sixty days to search for other jobs within

AT&T. Id. at 294, 321–22. If the employee elects the latter

option (which is the default), she receives some priority in

hiring and must accept any job offer that is extended (so long

as it does not require relocation), or she will lose eligibility for

severance benefits. Id. at 294–95, 321–22.

In January 2015, AT&T notified Fowler that she was

being placed on surplus status. The company claims that her

selection was purely neutral and was based on her performance

ratings relative to her colleagues. It is undisputed that Fowler

was performing her role competently prior to her surplus

selection. See, e.g., id. at 475 (a recent performance review

indicating that she was a “key contributor” whose

“performance solidly meets expectations”); id. at 447–48 (her

supervisor’s deposition stating that Fowler was “[a]bsolutely”

a good employee who “did her job” and “cared very much

about [it],” though there was room for improvement based on

how she handled differences of opinion with her colleagues).

Despite the satisfactory ratings, Fowler nonetheless received

the sixth lowest ranking in her unit. Within her specific unit,

seventeen employees were laid off. Fowler’s rating was a 2.95,

which her supervisor contended reflected a “very strong

performer;” but with her organization being cut in size by

nearly a third, the surplus line was drawn at a rating of 3.0. Id.

5

at 479. In response, Fowler purportedly told her manager that

she “believes the company cannot surplus someone with

cancer” and that “she could sue for that.” Id. While her

supervisor acknowledged that she knew Fowler was going

through chemotherapy for cancer, she did not think that

“changes . . . this situation” one way or the other. Id. at 477.

During her sixty-day job search period, and with the

help of her managers, Fowler obtained two job offers within

AT&T: one for a lead financial analyst position in Texas and

another for a senior system engineer position in New Jersey.

The latter position involved “software development,” “[s]enior

level technical expertise” and “deep technical knowledge and

subject matter expert[ise] on AT[&]T technologies.” Id. at

202. After meeting briefly with Madhavi Aruva, the supervisor

for the New Jersey position, Fowler believed she was qualified

for the job. She based her belief “on what [she] knew” at the

time, relying primarily on the job description and some high-

level descriptions Aruva had drawn on a whiteboard, which

Fowler noted “sounded a little bit like things [she] had heard

about in the past, [and that she had] worked on.” Id. at 162–

65.

Despite admitting that the Texas position was a better

fit, and the New Jersey position “wasn’t [her] first choice,”

Fowler selected the latter position to avoid moving while she

was receiving cancer treatments. Id. at 164. After she

switched positions, AT&T claims that her earlier job duties

were automated, discontinued, or spread out among three

employees who were 49, 55, and 57 years of age.

Fowler began her new position in March 2016, and

shortly thereafter informed her new supervisor that she was

undergoing chemotherapy treatments for breast cancer. She

6

asserts that during her first week her new supervisor

commented on her hair during a meeting, exclaiming “[O]h my

goodness . . . what happened to your hair[?]” Id. at 138.

Fowler’s apparent hair style change was because she did not

have on the wig she wore after her chemotherapy treatments.

She reported that her supervisor “just didn’t understand that . . .

was a [w]ig I [had been] wearing.” Id.

It became clear almost immediately to Fowler and her

supervisor that she was not a good match for this position. In

April, less than two months after starting the job, Fowler

emailed a higher-up supervisor requesting to be made

releasable, i.e., for permission to be considered for other jobs

within AT&T. She stated that her “current job is not a skills

match,” stressing that her “experience in technical work was

13+ years ago and at [a different] level of detail.” Id. at 8. In

effect, she did not have the then-required skills or the training

for the job. In May, Fowler sent another email, this time to her

direct supervisor, bluntly stating that she was “not suited or

qualified for this position” and that her “interpretation of the

position, when originally interviewed, is not how [she]

understood it to be nor does it align with [her] resume.” Id.

Another employee suggested that there were also interpersonal

conflicts between Fowler and her new supervisor, recounting a

conversation where Fowler purportedly told Aruva: “Everyone

hates you on your team, you’re a terrible supervisor, I can’t

understand you when you talk to me.” Id. at 642. Fowler

requested to be made “releasable” to pursue other positions

within AT&T and told her supervisor that, were she instead

offered a “[g]ood” early retirement package, she would

“probably take it.” Id. at 250. While AT&T did not

immediately make her releasable, her supervisors relented at

the end of May.

7

Aruva also contends that Fowler refused to perform

projects in the main “HALO” system that her team used

because they were “too complicated.” Id. at 495. In response,

Aruva placed Fowler on a remedial action plan for job training

and started assigning her “small projects” on different systems

called “ABM” and “ND360.” Id. Fowler subsequently

requested accommodations for longer deadlines because her

medical conditions caused her to have memory and focus

issues that made it difficult for her to learn new aspects of the

job. AT&T, through an outsourced service center, went back-

and-forth with Fowler’s doctors on the accommodation

requests for approximately two and a half months. The

representatives found that Fowler “could not describe a

specific accommodation that would help her on the job.” Id. at

231. Hence no job accommodation, other than granting extra

time to perform work, was made.

In October 2016, AT&T again placed Fowler on surplus

status. This time, she was the only one from her unit laid off.

Id. at 2438. She alleges that this was by design, suggesting that

the evidence tends to show that some AT&T managers pre-

selected her as a “target” for termination prior to implementing

the surplus procedures (and thus against internal AT&T

policy). During the surplus period, Fowler could not find any

replacement positions within AT&T and thus was terminated

on December 27, 2016. She was sixty years old.

After her termination, Fowler exhausted her

administrative remedies with the Equal Employment

Opportunity Commission (EEOC) and then sued AT&T in the

District of New Jersey. She brought claims for age and

disability discrimination (disparate treatment) under the

Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, et

8

seq., and Age Discrimination in Employment Act (ADEA), 29

U.S.C. § 621, et seq., as well as the New Jersey Law Against

Discrimination (NJLAD), N.J. Stat. Ann. §§ 10:5-1, et seq.

She also brought claims for failure to accommodate her

disabilities and a hostile work environment. 1

The District Court granted summary judgment for

AT&T on all claims. Fowler now appeals. 2

II. Discussion

Fowler, as noted, brings claims under both the ADA and

the ADEA. Because claims under these statutes align with

claims under Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e et seq., we look to Title VII case law to help

inform our analysis. See Barber v. CSX Distrib. Servs., 68 F.3d

694, 698 (3d Cir. 1995); Walton v. Mental Health Ass’n. of Se.

Pa., 168 F.3d 661, 667 (3d Cir. 1999). Similarly, New Jersey

law generally tracks the relevant federal statutes, and neither

party points to any divergent aspect of New Jersey law that

would not follow the outcome in this case. See Capps v.

Mondelez Glob., LLC, 847 F.3d 144, 157 n.14 (3d Cir. 2017)

(observing that “[t]he requirements for failure to accommodate

claims under New Jersey's LAD have been interpreted in

accordance with the [ADA]” (alterations in original) (quoting

Armstrong v. Burdette Tomlin Mem’l Hosp., 438 F.3d 240, 246

1

Fowler lost on the hostile work environment claim and does

not press it on appeal, so we do not discuss it further.

2

The District Court had jurisdiction over the federal claims

under 28 U.S.C. § 1331 and supplemental jurisdiction over the

related state law claims under 28 U.S.C. § 1367. We have

jurisdiction under 28 U.S.C. § 1291.

9

n.12 (3d Cir. 2006)); Lawrence v. Nat’l Westminster Bank N.J.,

98 F.3d 61, 65 (3d Cir. 1996) (“Age discrimination claims

under the ADEA and LAD are governed by the same standards

and allocation of burdens of proof.”); Abrams v. Lightolier,

Inc., 50 F.3d 1204, 1212 (3d Cir. 1995) (“New Jersey courts in

applying the NJLAD generally follow the standards of proof

applicable under the federal discrimination statutes . . . .”).

We analyze these claims under the burden-shifting

framework set out in McDonnell Douglas Corp. v. Green, 411

U.S. 792 (1973). See Barber, 68 F.3d at 698 (as to ADEA);

Walton, 168 F.3d at 668–69 (as to ADA). To survive summary

judgment, Fowler must present a claim that on first sight has

enough merit to proceed (called a prima facie case). See

Walton, 168 F.3d at 668. ADA and ADEA claims differ only

slightly in the elements needed to show a prima facie case of

discrimination. Essentially, Fowler must show that she was (1)

disabled (for the ADA claim) or over the age of 40 (for the

ADEA claim), (2) subject to an adverse employment action, (3)

qualified for her position, and that (4) the adverse employment

action was because of her disability (ADA) or her age (ADEA).

McNelis v. Pa. Power & Light Co., 867 F.3d 411, 414 (3d Cir.

2017) (ADA); Willis v. UPMC Child.’s Hosp. of Pittsburgh,

808 F.3d 638, 644 (3d Cir. 2015) (ADEA). 3 In cases involving

3

In ADA (but not ADEA) cases, we tend to truncate this into

a three-prong test by combining prongs 2 and 4 into a single

prong asking whether the employee “has suffered an adverse

employment action because of that disability.” See, e.g.,

McNelis, 867 F.3d at 414. For clarity and efficiency, we

present both tests in the four-prong framework, following the

briefing by both parties. This presentation is purely for

convenience and does not alter the substantive elements of the

10

a reduction-in-force, the last prong of an age discrimination

case may be satisfied by showing that an employer retained a

sufficiently younger, similarly situated employee. Anderson v.

Consol. Rail Corp., 297 F.3d 242, 249–50 (3d Cir. 2002).

If Fowler is able to make out a prima facie case, the

burden of production shifts to AT&T to provide a legitimate,

non-discriminatory reason for its actions. Walton, 168 F.3d at

668. If it does, Fowler may prevail at summary judgment only

if she has evidence that AT&T’s response is merely a pretext,

meaning evidence that could cause a jury “either [to] (1)

disbelieve the employer’s articulated legitimate reasons[,] or

(2) believe that an invidious discriminatory reason was more

likely than not a motivating or determinative cause of the

employer’s action.” Id. (quoting Lawrence v. Nat’l

Westminster Bank N.J., 98 F.3d 61, 66 (3d Cir. 1996)).

Our review on appeal is plenary, which means we

review each element anew. See McNelis, 867 F.3d at 414. We

view the facts and reasonable inferences “in the light most

favorable” to Fowler, though recognizing that “mere

allegations are insufficient,” and “[o]nly evidence sufficient to

convince a reasonable factfinder” merits consideration at this

stage. Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 265 (3d

Cir. 2014) (alteration in original) (quoting Lauren W. v.

DeFlaminis, 480 F.3d 259, 255 (3d Cir. 2007)). “In essence,”

the question is “whether the evidence presents a sufficient

disagreement to require submission to a jury or whether it is so

claims required by our precedents. Cf. Pivirotto v. Innovative

Sys., Inc., 191 F.3d 344, 356–57 (3d Cir. 1999) (discussing the

“fourth element of the prima facie case” for both “cases

brought under the [ADA] and the [ADEA]”).

11

one-sided that one party must prevail as a matter of law.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986).

A. Fowler’s Discrimination Claims Stemming from the

January Surplus Fail.

For the January surplus, the only disputed issues are

whether Fowler suffered an adverse employment action and

whether she has sufficiently shown discrimination and pretext.

While we hold that the January surplus selection was an

adverse employment action, we conclude that, even assuming

Fowler has shown a prima facie case of discrimination, she

cannot show pretext, meaning that none of her claims

associated with the January surplus selection survive summary

judgment.

1. The January surplus selection is an adverse

employment action.

The District Court concluded that the January surplus

was not an adverse employment action because Fowler

ultimately maintained her employment with AT&T. Supported

by the EEOC, she disagrees, as do we.

Fowler’s discrimination claims accrued when she

received notification of her January surplus status. See Watson

v. Eastman Kodak Co., 235 F.3d 851, 853, 855, 857 (3d Cir.

2000) (holding that the statute of limitations begins to run at

the time an employee is notified of an impending termination,

even if her notification of termination “left open the possibility

of [her] continued employment with the company” if she was

“successful in obtaining another position within [it]”); see also

Del. State Coll. v. Ricks, 449 U.S. 250, 258 (1980) (concluding,

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in the context of a denial of tenure that was communicated well

before the eventual loss of employment, “the only alleged

discrimination occurred . . . at the time the tenure decision was

made and communicated. . . . even though one of the effects of

the denial of tenure—the eventual loss of a teaching position—

did not occur until later”) (emphasis in original).

Before now, we have not considered whether a notice as

we have here is an “adverse employment action” sufficient to

satisfy a prima facie case, but it is a small and logical step to

so hold based on our statute-of-limitations case law. Reaching

the opposite conclusion—that a prima facie case may only be

satisfied after an employee actually loses her job—could

produce an absurd result where a plaintiff’s limitations period

expires before she was actually terminated, and thus before her

substantive claim even accrues. 4

Fortunately, the relevant statutes preclude this illogical

outcome because their text comfortably covers surplus

selections like Fowler’s. Even were her selection not a

discharge per se, discrimination is prohibited more broadly in

4

This would not be the only incongruous result. Such a

conclusion would perversely place the burden on plaintiffs to

work hard to seek other jobs to mitigate the consequences of a

potentially discriminatory surplus selection. It would also

protect employers from suit in even the most egregious cases

of discriminatory surplus selection if the employee was lucky

enough to secure a position elsewhere in the company. This

could reward “not-in-my-backyard” discrimination where

bosses would be free to keep their divisions free of diversity as

long as they ensured that any protected individuals they pushed

out would get a job in a different division of the company.

13

the “terms, conditions, and privileges of employment.” 42

U.S.C. § 12112(a); 29 U.S.C. § 623(a)(1). Fowler’s selection

for surplus status altered the terms and conditions of her

employment; as soon as she received notice of it, her

employment became conditional. Absent mitigating action by

Fowler, e.g., finding another job, or unexpected developments

that could cause AT&T to reverse course, she would be

terminated at a set future date. After AT&T’s January notices

went out, the employees who were selected for surplus were in

a materially different position than those who were not, despite

both groups continuing in the short term to work for AT&T.

That an employee is able to find a new job does not mean that

her initial surplus selection was not an adverse employment

action; it means merely that the employee was able to lessen

the adversity—and potentially the damages—of the

employer’s action.

Our thinking accords with that of every other circuit

court to consider the issue. See Singletary v. Howard Univ.,

939 F.3d 287, 300 (D.C. Cir. 2019) (concluding that “the mere

notice of termination is a cognizable adverse employment

action regardless of whether the employer follows through”);

Shultz v. Congregation Shearith Israel, 867 F.3d 298, 305– 06

(2d Cir. 2017) (holding that “notice of termination itself

constitutes an adverse employment action, even when the

employer later rescinds the termination”); see also Almond v.

Unified Sch. Dist., 665 F.3d 1174, 1177 (10th Cir. 2011)

(noting, though in a dictum, that “adverse employment actions

can involve entirely deferred consequences— such as . . . a

notice of termination with a grace period before actual firing

occurs”).

14

Today we hold that a notice of termination, like the

selection for surplus status here, is an adverse employment

action even if an employee is given a window of time—small

or large—before her actual discharge. Such a notice is adverse

without regard to whether the employee is permitted to apply

for other positions within the company, or even if she

ultimately succeeds in finding another position. 5

2. Fowler has not provided sufficient evidence that

AT&T’s facially neutral surplus selection was

merely pretext for discrimination.

Fowler argues that she has met her burden to show a

prima facie case of discrimination because she has identified

three younger, non-disabled employees with similar historical

performance ratings who were retained in the January surplus.

See Anderson, 297 F.3d at 250 (holding that “to present a prima

5

We recognize that panels of our Court have declined in non-

precedential opinions to conclude lateral job transfers are

actionable adverse employment actions when those transfers

do not result in a loss of pay, benefits, status, or advancement

opportunities. See, e.g., Stewart v. Union Cnty. Bd. Of Educ.,

655 F. App’x 151, 157 (3d Cir. 2016); Swain v. City of

Vineland, 457 F. App’x 107, 110 (3d Cir. 2012); Langley v.

Merck & Co., 186 F. App’x 258, 260 (3d Cir. 2006). Fowler,

in contrast, did not experience a lateral transfer. When AT&T

placed Fowler on surplus status, the terms and conditions of

her employment materially changed. Fowler faced an

impending termination date and avoided discharge only

because she applied for and received a completely different

job.

15

facie case raising an inference of age discrimination in a

reduction in force situation, the plaintiff must show, as part of

the fourth element [i.e., the causal link to discrimination], that

the employer retained someone similarly situated to him who

was sufficiently younger”). We assume, for the sake of

argument, that these employees sufficiently serve as

comparators in the age-discrimination context. And we also

assume, without deciding, that identifying these non-disabled

individuals as similarly situated retained employees is

sufficient to satisfy the fourth prong of her prima facie ADA

case. But even had she made out a prima facie case, Fowler

has not provided evidence to infer that AT&T’s neutral reason

for her surplus selection was merely pretextual.

AT&T presents powerful information that supports its

claim that Fowler’s termination was simply the product of a

neutral selection of employees for a reduction in force. First,

it stresses that her termination occurred during a planned

company-wide downsizing that led to eliminating over two

hundred positions. Within Fowler’s work group, AT&T

planned to place seventeen employees on surplus status, out of

a total of fifty-five employees—reducing the group’s

headcount by nearly one-third. Her selection for the surplus

was the product of ranking employees based on their

performance rating (with the exception of some employees

who volunteered for surplus). In internal emails and notes

around the time of Fowler’s surplus selection, her manager

reiterated to colleagues that Fowler “is a very strong and

capable employee, [but] unfortunately so is the rest of the

organization and overall this is where she ranked.” App. at

477. And Fowler’s manager’s contemporaneous notes indicate

that she “worked with [Fowler’s] former supervisor and

reviewed with [her] own supervisor her rating to assure it was

16

appropriate.” Id. at 479. Yet Fowler had the sixth lowest rating

in her group, placing her squarely within the seventeen

employees they planned to terminate. And seven of the

employees who were rated and ranked against Fowler and

ultimately retained were her age or older. This is particularly

persuasive, as it would be odd to terminate Fowler because of

her age but then retain other employees who were older.

In response, Fowler argues that AT&T’s neutral

reduction-in-force story was merely a pretext for

discriminatory surplus selection. But we are not persuaded that

any of Fowler’s arguments could convince a reasonable juror

to “disbelieve [AT&T’s] articulated legitimate reasons” or that

“an invidious discriminatory reason was more likely than not a

motivating or determinative cause of the employer's action.”

Walton, 168 F.3d at 668 (internal quotation marks omitted).

We accept as true for purposes of summary judgment that she

was a competent employee who historically received

satisfactory ratings. But “the essence of a [reduction in force]

is that competent employees who in more prosperous times

would continue and flourish at a company may nevertheless

have to be fired.” Healy v. N.Y. Life Ins. Co., 860 F.2d 1209,

1220 (3d Cir. 1988).

Further, it is not unexpected that after a layoff some job

responsibilities that were formerly held by the terminated

employees would be shifted to remaining employees. This

does not, by itself, demonstrate pretext, especially here where

AT&T contends that the employees who assumed some of

these responsibilities were themselves similar in age to Fowler.

See App. at 6–7, Dist. Ct. Op. at 4 (noting AT&T’s explanation

that Fowler’s job responsibilities were assumed by employees

who were 49, 55, and 57 years old, but declining to recognize

17

a factual dispute as to whether another person took over her

position entirely because “she provides no evidence” of that

proposition). And though we know no reason to dispute her

general assertion, supported by expert testimony, 6 that some

ostensibly neutral ratings systems may be inherently subjective

and can sometimes reflect discriminatory bias, see Goosby v.

Johnson & Johnson Medical, Inc., 228 F.3d 313, 321 (3d Cir.

2000), or that AT&T’s process could be better, Fowler has

simply not provided evidence here sufficient for a jury to

conclude that her particular ratings were pretext for

discriminatory bias. 7

Fowler’s best argument is that she was the only disabled

person selected for surplus, but she has not identified any

evidence of pretext other than that her supervisor could not

6

AT&T argues that this report would not be admissible under

Rule 702 because it is not sufficiently reliable. We need not

digress to consider its admissibility because the report fails to

alter our decision even if it is reliable and admissible. See, e.g.,

App. at 695, Caren Goldberg, Ph.D., Dep. Tr., at 228:3–8

(making clear that she “was not” asked and “didn’t” offer “any

opinions in this case as to whether or not the decisions affecting

Ms. Fowler were based on stereotypes or discrimination”); id.

at 708, Caren Goldberg, Ph.D., Dep. Tr., at 315:2–10

(declining to express any opinion on whether “the process used

by AT&T to evaluate people's leadership in any way led to bias

on the basis of age”).

7

We are confident that no reasonable juror would view the

very general statements made by AT&T senior management

about how the company has an aging workforce and the need

to reinvent the company as evidence of pretext in Fowler’s

case.

18

remember at her deposition, after three years had passed, the

specific reasons for the surplus ratings she gave Fowler—

meaning they could have been due to her disability. While this

may be enough to state a prima facie case of disability

discrimination, it is not enough for a reasonable jury to believe

that AT&T’s ratings were pretextual. Cf. Brewer v. Quaker

State Oil Refining Corp., 72 F.3d 326, 340–41 (3d Cir. 1995)

(Roth, J., dissenting) (“‘While plaintiff is entitled to every

favorable inference,’ he is not entitled to build a case on ‘the

gossamer threads of whimsy, speculation and conjecture.’”

(quoting Keller v. Bluemle, 571 F. Supp. 364, 371 (E.D. Pa.

1983), aff’d, 735 F.2d 1349 (3d Cir. 1984)). And while her

supervisor, again three years later, was unable to recall why

Fowler’s ratings were lower than several colleagues who had

historically received similar performance ratings as her, it bears

noting that even if she were rated higher than ten more

employees, she still would have been laid off. And the reasons

that her supervisor did recall years later for not rating Fowler’s

performance higher—that she was neither deficient nor

exceeded expectations, but rather “[s]he did what she was

supposed to do”—do not provide evidence of pretext. App. at

451. To the contrary, they are consistent with Fowler’s ranking

in the surplus: not at the very bottom, but not above average.

Thus we conclude Fowler has not shown pretext sufficient to

survive summary judgment for any of her claims tied to the

January surplus.

B. Fowler’s Discrimination Claims Stemming from

the October Surplus Fail at Summary Judgment

Because She Was Not Qualified for Her Position.

To maintain either an age or disability discrimination

claim, Fowler must show that she was qualified for her

19

position: she must have “the requisite skill, experience,

education, and other job-related requirements of the position.”

See Turner v. Hershey Chocolate USA, 440 F.3d 604, 611 (3d

Cir. 2006). The ADA claim further requires Fowler to show

that, “with or without reasonable accommodation, [she] can

perform the essential functions of that position.” Id. At the

prima facie stage, this requires an inquiry into whether she

possessed the minimal objective qualifications for the position.

See Fowle v. C & C Cola, a Div. of ITT-Cont’l Baking Co., 868

F.2d 59, 64–65 (3d Cir. 1989) (choosing to consider only

objective qualifications at the prima facie stage, while

declining to establish any “blanket rule” about when more

subjective qualification criteria can enter the analysis in

particular cases); Makky v. Chertoff, 541 F.3d 205, 215–16 (3d

Cir. 2008) (concluding, in the “narrow” context of a mixed-

motive employment discrimination case resolved at a motion

to dismiss, that the qualification inquiry is limited to “the bare

minimum requirement necessary to perform the job” and that

plaintiffs need not show “that they were subjectively qualified

for their jobs, i.e., performed their jobs well”).

Fowler’s case is unusual in that her argument that she

was objectively qualified for her new position is belied by her

own contemporaneous statements as well as those she made in

her deposition. See App. at 1030, 1034; id. at 174, Fowler Dep.

Tr., at 176:12–13 (“I did not have the skill set for that

position”); id. at 198, Fowler Dep. Tr., at 243:7 (“I didn’t fit

the position”); id., Fowler Dep. Tr., at 243:8–11 (agreeing that

she “w[as]n’t qualified for the position” because of “the skill

set required”). While we certainly do not expect employees to

be experts in the nuances of employment discrimination law or

to use the legal definition of “qualified” in their everyday

statements, see Kengerski v. Harper, 6 F.4th 531, 540 (3d Cir.

20

2021), the only logical conclusion is that Fowler was using the

term “qualified” according to its ordinary meaning: she simply

did not have the minimum skills necessary to perform the job.

See App. at 1030, Email from Fowler to Srinivasa Marella

(describing the job as “not a skills match for [her]”); App. at

1034, Email from Fowler to Madhavi Aruva (Fowler

explaining that she was “not suited or qualified for [the]

position”). Any doubt about what Fowler meant is resolved by

her clarifications that she lacked recent experience in a

technical position. See App. at 1030, E-mail from Fowler to

Srinivasa Marella (noting that her “experience in technical

work was 13+ years ago and at [a different] level of detail”).

Therefore, we view Fowler’s multiple statements in the record

as directly contradictory to her arguments before the District

Court and on appeal that she is sufficiently qualified for her job

to bring an ADA or ADEA claim.

When a plaintiff makes sworn statements that squarely

concede her lack of qualifications, she faces a higher burden to

make out a prima facie case and survive summary judgment:

she must offer an explanation for the apparent contradiction.

Cleveland v. Pol’y Mgmt. Sys. Corp., 526 U.S. 795, 797

(1999); see also id. at 807 (“[T]he court should require an

explanation of any apparent inconsistency with the necessary

elements of an ADA claim.”) (emphasis added). Much of our

case law on this point comes in the context of judicial estoppel

stemming from statements made in previous proceedings

before a court or agency or in sworn statements. See Detz v.

Greiner Indus., Inc., 346 F.3d 109, 117–18 (3d Cir. 2003) (“We

have similarly applied Cleveland . . . where, as here, the

claimant clearly made a contradictory assertion after

benefitting from a previous sworn assertion, the court or

agency thus having accepted the previous assertion.”); see also

21

Hackman v. Valley Fair, 932 F.2d 239, 241 (3d Cir. 1991)

(“When, without a satisfactory explanation, a nonmovant’s

affidavit contradicts earlier deposition testimony, the district

court may disregard the affidavit in determining whether a

genuine issue of material fact exists.”). While many of

Fowler’s statements were made in informal emails to her

supervisors rather than in sworn statements or prior judicial

proceedings, she repeated the substance of these statements in

sworn testimony at her deposition in this case. See App. at 174,

198.

And even if Fowler’s concessions do not “automatically

estop [her] from pursuing an ADA claim” in a formal sense,

Cleveland, 526 U.S. at 797, they are nonetheless relevant to our

inquiry at summary judgment. The essence of our task here is

to determine whether there is a “genuine dispute as to any

material fact.” Fed. R. Civ. P. 56(a). Where Fowler herself

has conceded her lack of qualifications, post-hoc assertions by

her lawyers during litigation that she was in fact qualified,

without more, are not enough to create a genuine dispute of

material fact that stops summary judgment. Courts “cannot

simply ignore the apparent contradiction . . . . Rather, [Fowler]

must proffer a sufficient explanation.” Cleveland, 526 U.S. at

806. It must “warrant a reasonable juror’s concluding that,

assuming the truth of, or [her] good-faith belief in, the earlier

statement, [she] could nonetheless ‘perform the essential

functions’ of her job, with or without ‘reasonable

accommodation.’” Id. at 807; see also Lexington Ins. Co. v. W.

Pa. Hosp., 423 F.3d 318, 320–21 (3d Cir. 2005) (concluding

that an “absence of evidence, coupled with the concession of

West Penn’s General Counsel[,] . . . compels the conclusion

that a reasonable jury could not [find in favor of West Penn]”).

22

Here, Fowler has not offered any such explanation that

is plausible enough to require consideration on a remand. On

appeal, her primary explanation is that her earlier contradictory

statements were made in the context of a request for

accommodations. But this explanation is not supported by the

record. We recognize that Fowler separately made explicit

requests for various accommodations from AT&T, citing her

disabilities. But accommodation requests alone do not conflict

with her statements that she did not possess the minimum

qualifications for the position. We look at the context in which

those specific concessions were made to probe whether she can

sufficiently explain the inconsistency. The reason Fowler

provided for being unable to perform her new job was not her

disabilities, but rather the “13+ years” since her last technical

position that was “at [a different] level of detail.” App. at 1030.

The email in which she stated she was not qualified did not

mention her disabilities at all, let alone request any

accommodations other than being reassigned to a completely

different position. Id. at 1034. And though an earlier email

mentioned her breast cancer treatments, it did not imply that

they were the reason for her inability to do the job; rather,

Fowler mentioned her medical condition to explain why she

could not bear the stress of remaining in a job that “is not a

skills match.” Id. at 1030.

Fowler also stresses that her supervisor, Madhavi

Aruva, viewed her as qualified. See Fowler’s Reply Br. at 8–

12. In the ordinary case, we would expect a district court to

consider this evidence more thoroughly than the Court did

here, especially where this assessment was based on a review

of Fowler’s “experience[,] . . . technical skills[,] . . .

communication skills[,] . . . and education background.” App.

at 1422; see also id. at 1419, 1436 (noting that Aruva reviewed

23

Fowler’s resume and chose her over other candidates because

of her experience as “a system engineer . . . working on local

and long distance,” which was “related” to what her team

supports).

Still, we ultimately agree with the District Court that a

hiring official’s initial determination that an applicant is

qualified “does not and cannot end the inquiry.” App. at 16.

While evidence of a supervisor’s assessment of an employee’s

qualifications and performance is relevant and may even be

sufficient to state a prima facie case and survive summary

judgment in some contexts, the rest of the record here shows

that this evidence is not probative. Fowler conceded that the

criteria used during hiring were not consistent with the skills

actually required by the job, id. at 1926–27; thus we must look

to the statements Fowler made after starting the new position

to identify whether she was objectively qualified.

Contrary to her assertions, Fowler’s Reply Br. at 9, we

are not improperly weighing conflicting evidence to resolve a

factual dispute against her. For the purposes of summary

judgment, we view Aruva’s testimony and corresponding

record evidence, see, e.g., App. at 1672–74, 1900-01, in the

light most favorable to Fowler. But we still must determine

whether she has given a sufficient explanation for her earlier

statements that would allow us to conclude there is a genuine

dispute on this point. The fact that Aruva believed (perhaps

mistakenly) that Fowler was qualified at the time she hired her

does not explain away Fowler’s concessions that she was, in

fact, not qualified for the position. To the contrary, Fowler

herself explained how Aruva’s testimony was consistent with

her own admissions: she stated simply and explicitly that

“whoever reviewed [her resume]” did an inadequate job and

24

“should have . . . caught” the fact that it did not align with the

position. Id. at 1926–27.

Nor are we persuaded by Fowler’s claim that she was

able to improve her job performance over time such that she

eventually became qualified for her position. To be sure, “[t]he

determination of whether an individual with a disability is

qualified is made at the time of the employment decision . . . .”

Turner, 440 F.3d at 611. But the record does not support

Fowler’s assertion that her inability to do the job had changed

by the time she was terminated. Any reasonable juror reading

through the evidence she cites would be forced to conclude that

Fowler’s reading is a misrepresentation. It is true Aruva

conceded that Fowler had been satisfactorily performing the

projects she had been given “with little help” at the time of her

termination, but Fowler’s quote omits important context about

those projects. App. at 1472. They were “small tasks” Aruva

had assigned just to keep Fowler busy until she had completed

remedial training. App. at 495. By contrast, the “HALO”

projects—which typically made up ninety to one-hundred

percent of the work for Aruva’s engineers—were continually

refused by Fowler, who stated they were too complicated for

her to perform. App. at 495–496. And her improvement on

those small tasks, Aruva clarified, was only an improvement

from “10 percent output to at least 25 percent output.” App. at

1444.

In short, we do not believe that the evidence and

explanations that Fowler has submitted are “sufficient to

warrant a reasonable juror's concluding” that she was qualified

for her position. Cleveland, 526 U.S. at 807. The District

Court was thus correct to grant summary judgment in favor of

25

AT&T on all claims stemming from her later surplus selection

and eventual termination. 8

C. Fowler’s Failure-To-Accommodate Claims Also

Fail at Summary Judgment.

As Fowler recognizes, there is significant “interplay

between the two theories of ADA liability” that she advances:

discrimination in the October surplus selection and a failure to

8

Concerning, however, is some of the evidence Fowler

provided to show that AT&T acted in a discriminatory manner

and that its purportedly neutral surplus selection story was

mere pretext. Compare App. at 667–668 (deposition testimony

confirming that Fowler was designated as a “target employee”

for surplus before employees were ranked and rated”) and App.

at 2440 (email correspondence that could plausibly be read as

engineering a bogus layoff process around Fowler), with App.

at 1513–1514 (HR testimony that targeting procedures were

inconsistent with AT&T’s policies), App. at 276 (AT&T’s

internal documents making clear that surplus is not a

“performance management tool” to fire low-performing

employees), and App. at 1544 (testimony that an HR employee

“would have slapped” a colleague if she knew he wanted to

target particular employees like Fowler for surplus). But

because we hold that Fowler was not qualified for this position,

her claims necessarily fail. Thus we do not analyze

discrimination and pretext any further. However, in future

cases involving qualified employees, “disturbing procedural

irregularities” like these may well preclude summary

judgment. Timmerman v. U.S. Bank, N.A., 483 F.3d 1106,

1122 (10th Cir. 2007).

26

accommodate her disabilities while she was a senior systems

engineer. Fowler’s Br. at 37. Indeed, a claim stemming from

an employer’s failure to accommodate an employee’s

disabilities may be viewed simply as a type of discrimination

claim, where the relevant adverse employment action is the

employer’s “refus[al] to make reasonable accommodations for

a[n employee’s] disabilities.” Colwell v. Rite Aid Corp., 602

F.3d 495, 504 (3d Cir. 2010) (quoting Williams v. Phila. Hous.

Auth. Police Dep’t, 380 F.3d 751, 761 (3d Cir. 2004)). An

employee can only show that her employer “breached its duty

to provide reasonable accommodations” if she “could have

been reasonably accommodated but for the employer’s lack of

good faith.” Id. (quoting Williams, 380 F.3d at 772).

Therefore, “the plaintiff bears the burden of proving that she is

otherwise qualified; if an accommodation is needed, the

plaintiff must show, as part of her burden of persuasion, that an

effective accommodation that would render her otherwise

qualified exists.” Walton, 168 F.3d at 670.

For substantially the same reasons as Section II.B,

supra, we conclude that Fowler has not met her burden to show

that she is otherwise qualified for her position. By her own

admissions, her inability to perform the job functions were

because she lacked the basic skills and experience for the

position. She has not pointed to any reasonable

accommodations that could plausibly make up for the highly

technical skills she concedes she lacks. Thus she cannot

maintain a failure-to-accommodate claim. 9

9

In some circumstances, “an employer may be required to

transfer an employee to an existing position” as a form of

accommodation. Donahue v. Consol. Rail Corp., 224 F.3d

27

* * * * *

We are sympathetic to Fowler’s situation. But while it

is deeply unfortunate for a sixty-year-old cancer patient to lose

her job, it is not necessarily a violation of employment

discrimination laws. Those laws do not prohibit employers

from terminating employees in protected classes when the

termination is a part of a neutral reduction in force. And

employers are not required to retain or accommodate

employees who are not qualified for their jobs and could not

perform them even with reasonable accommodations. When

AT&T placed Fowler on surplus status in January 2016, she

suffered an adverse employment action. But, her surplus

selection was then a neutral reduction in force at AT&T, and

Fowler has failed to provide sufficient evidence to show that

226, 230 (3d Cir. 2000) (explaining the elements of a failure-

to-transfer theory). Yet Fowler has not shown that she made

AT&T aware, as part of the interactive process, that she wanted

a job transfer to accommodate her disabilities. Instead, her

requests to supervisors to change positions are best read as

reflecting her lack of qualifications for that position rather than

as requests for a disability accommodation. See, e.g., App. at

1034. And, in any event, while Fowler points to two vacant

positions, Fowler’s Br. at 57, she has failed on appeal to point

to any evidence showing that she would be “qualified to

perform the essential duties of [those] job[s] with reasonable

accommodation,” Donahue, 224 F.3d at 230, other than a

reference to her own attestations that she believed she was

qualified. See Fowler’s Br. at 57 (citing App. at 1080–81).

Therefore, on this record and briefing, we conclude that she

cannot save her failure-to-accommodate claims under a failure-

to-transfer theory.

28

its neutral process was mere pretext for age or disability

discrimination. Attempting to assure she had a job, Fowler

sought and accepted a position elsewhere at AT&T. But, by

her own admission, she was not qualified for her new position.

Accordingly, we conclude that none of Fowler’s claims can

survive summary judgment and affirm the judgment of the

District Court.

29