Case: 20-50218 Document: 00515909526 Page: 1 Date Filed: 06/22/2021
`
`United States Court of Appeals
`for the Fifth Circuit
`
`
`No. 20-50218
`
`
`
`United States Court of Appeals
`Fifth Circuit
`
`FILED
`June 22, 2021
`
`Lyle W. Cayce
`Clerk
`
`John Thompson,
`
`
`
`
`versus
`
`
`Microsoft Corporation,
`
`
`
`
`
`Plaintiff—Appellant,
`
`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
`
`

`

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`No. 20-50218
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`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.
`
`that some of his requested
`informed Thompson
`Microsoft
`
`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
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`

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`No. 20-50218
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`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
`time management and
`support
`to
`software
`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
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`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
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`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
`
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`No. 20-50218
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`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
`
`

`

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`No. 20-50218
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`(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
`
`

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`No. 20-50218
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`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
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`

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`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
`
`

`

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`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
`
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`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
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`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
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`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
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`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
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`No. 20-50218
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`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.
`
`We affirm.
`
`V
`
`
`
`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
`
`