Kristen Williams v. AT&T Mobility Servs. , 847 F.3d 384 ( 2017 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 17a0022p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
KIRSTEN WILLIAMS, ┐
Plaintiff-Appellant, │
│
> No. 16-6078
v. │
│
│
AT&T MOBILITY SERVICES LLC, │
Defendant-Appellee. │
┘
Appeal from the United States District Court for
the Western District of Tennessee at Memphis.
No. 2:15-cv-02150—S. Thomas Anderson, District Judge.
Decided and Filed: January 27, 2017
Before: GILMAN, GRIFFIN, and STRANCH, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Steve Wilson, THE STEVE WILSON FIRM, Memphis, Tenneseeee, Matt Gulotta,
THE GULOTTA FIRM, Memphis, Tennessee, for Appellant. Charles W. Hill, Meghan K.
McMahon, GLANKLER BROWN, PLLC, Memphis, Tennessee, for Appellee.
_________________
OPINION
_________________
RONALD LEE GILMAN, Circuit Judge. Kirsten Williams was employed by AT&T
Mobility Services LLC (AT&T) as a Customer Service Representative (CSR). Williams
suffered from depression and anxiety attacks, which caused her to be frequently absent from
work. AT&T terminated Williams in July 2014 for job abandonment and for violating the
company’s attendance policy. Williams then filed a lawsuit under the Americans with
No. 16-6078 Williams v. AT&T Mobility Servs. Page 2
Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., in the United States District Court for the
Western District of Tennessee. She asserted claims against AT&T for failure to provide her with
a reasonable accommodation, failure to engage in the interactive process, disparate treatment,
and retaliation.
AT&T moved for summary judgment, which the district court granted as to all of
Williams’s claims. For the reasons set forth below, we AFFIRM the judgment of the district
court.
I. BACKGROUND
A. Job duties and attendance requirements for Williams’s CSR position
Williams was employed as a CSR with AT&T from 2006 until she was terminated in July
2014. She worked at AT&T’s Memphis Call Center, where her job duties included answering
incoming calls and assisting customers with technical-support and billing issues. To answer
calls, Williams had to be physically present at her workstation and logged in to her computer.
CSRs work eight-hour shifts, which rotate every six months. During these shifts, CSRs
are expected to remain at their workstations receiving calls, with the exception of breaks for
lunch, two prescheduled 15-minute breaks per day, and unscheduled restroom breaks as needed.
Although there is no requirement that a CSR field a certain number of calls per day, CSRs
typically handle about 40 to 50 calls during each shift.
If a CSR is not logged in to her workstation, any calls that would have otherwise gone to
her are rerouted to another CSR. Both Darcus Payne, the Area Manager of the Memphis Call
Center, and Laura McArthur, an AT&T Attendance Manager, submitted declarations explaining
the consequences of a CSR’s unscheduled absences. Such consequences include potential
increases in customer wait times and decreases in the quality and speed of customer service.
Unscheduled absences can also cause increased workplace tensions and decreased morale among
the CSRs.
For these reasons, AT&T requires regular attendance by its CSRs. AT&T has
Attendance Guidelines, under which CSRs accrue “attendance points” for unscheduled late
No. 16-6078 Williams v. AT&T Mobility Servs. Page 3
arrivals to and absences from work. A CSR who accumulates eight or more attendance points is
subject to being terminated. But leave under AT&T’s short-term disability (STD) policy, the
Family and Medical Leave Act (FMLA), or an approved job accommodation under the ADA
does not result in the accrual of attendance points.
AT&T handles all FMLA leave requests internally. STD leave and job-accommodation
requests, however, are processed by a third-party claims administrator, Sedgwick Claims
Management Services. Sedgwick manages AT&T’s Integrated Disability Service Center
(IDSC). CSRs therefore interact with the IDSC when seeking STD leave or job
accommodations. If an accommodation appears to be medically necessary, the IDSC relays the
request to the employee’s supervisors, who then confirm whether the request can be honored.
B. Williams’s attendance problems and requests for leave
Williams struggled with attendance throughout her employment with AT&T. From 2007
to 2014, she received written warnings every year about her accumulation of attendance points
under the Attendance Guidelines. Williams was absent from work for most of 2013 due to her
depression and anxiety attacks. Most notably, she did not work from January until July of that
year, using a combination of STD leave and FMLA leave to cover this time period. She worked
a few days in August 2013 before returning to STD leave in September, and she remained on
such leave through all of October and for large parts of November and December.
Williams’s absenteeism continued into 2014. She returned to work on January 20, 2014,
after having been absent since December 3, 2013. Her supervisors discussed her poor attendance
record with her in both January and February 2014, warning her that she had accumulated nearly
enough points for termination. During these conversations, Williams acknowledged that she
understood the attendance policy. Later in February 2014, Williams received a negative written
evaluation of her 2013 performance, which stated that her attendance and punctuality “does not
meet” expectations and that she needed to “mak[e] real efforts to improve her performance and
attendance.”
No. 16-6078 Williams v. AT&T Mobility Servs. Page 4
Williams failed to heed these warnings and continued to miss work. She worked only
sporadically after March 11, 2014. After April 9, 2014, she ceased to work entirely and did not
return at any point before her termination on July 3, 2014.
Williams requested a combination of FMLA leave, STD leave, and job accommodations
in the form of leave to cover her absences after February 4, 2014. She was denied FMLA leave
for all absences beginning in December 2013 because she failed to meet the threshold eligibility
requirement of having worked 1,250 hours in the preceding year due to her numerous prior
absences. Williams obtained STD leave for her absences from April 10 to April 27 (these and all
dates hereinafter refer to 2014 unless otherwise noted).
For all dates after April 27, the IDSC initially denied STD leave on the ground that
Williams had provided insufficient medical documentation. AT&T then sent Williams a return-
to-work letter, informing her that she would be terminated if she did not either appear at work by
May 12 or obtain approval for more leave. In response, Williams told AT&T Employee
Relations Manager Priscilla Adams that she could not return during May, and that she would
send additional medical information to the IDSC. After such information was submitted, the
IDSC approved STD leave for absences from April 17 to May 27, but denied STD leave for
absences from May 28 onward, again finding that Williams had provided insufficient medical
documentation. AT&T sent Williams another return-to-work letter, this time setting a June 10
deadline.
Williams again failed to return to work. In response, her supervisors began the process of
seeking approval to terminate her on the grounds that she had accrued more attendance points
than the number allowed by AT&T’s policy, that she had abandoned her job, and that she had
failed to return to work as directed. Her supervisors were careful to wait to take any action until
Williams had submitted all of her medical information and the IDSC had evaluated the claim.
Shortly thereafter, Williams’s treatment providers submitted additional medical information to
the IDSC in support of her STD claim for absences after May 27. The claim was denied on the
basis of insufficient medical information, but Williams’s supervisors decided to “make one more
attempt” to contact Williams and determine whether she intended to return to work.
No. 16-6078 Williams v. AT&T Mobility Servs. Page 5
AT&T therefore sent Williams still another return-to-work letter, requiring her to be present by
June 30. Williams responded that she could not return to work on that date.
Following Williams’s third failure to return to work, her supervisors began reconsidering
termination. Williams was then in the process of appealing the IDSC’s denial of STD leave for
all absences after May 27. But Area Manager Payne confirmed that even if the appeal were
successful, Williams would still have 16 attendance points—double the amount constituting a
terminable offense. After making this calculation, AT&T terminated Williams on July 3.
C. Williams’s requests for flexible scheduling and additional breaks as
accommodations under the ADA
Williams argues that she could have performed her job if she had been given two
accommodations: a flexible start time and additional breaks throughout the day. She first
requested these accommodations in February 2014 during a conversation with one of her
supervisors, Monica Scruggs. Scruggs began with a discussion about attendance issues. In
response, Williams informed Scruggs that she was suffering from depression and anxiety attacks,
and mentioned that she needed “flexible scheduling and additional breaks” as possible
accommodations.
Williams’s next accommodation request went through the IDSC. In March 2014, the
IDSC informed another of Williams’s supervisors, Chinna Prude-Anderson, that Williams had
requested “restrictions/accommodations” in the form of STD coverage for several absences in
February and March, as well as “intermittent time off moving forward.” Williams now asserts
that she intended her request for “intermittent time off” to mean that she could start her shift
30 to 60 minutes later each day. There is no indication in the record, however, that Williams
explained this to anyone at the IDSC or at AT&T. Williams told Prude-Anderson that she
needed an accommodation, but did not specify the reason for it, and also stated that the reason
for her delay in submitting medical information to the IDSC was that she was waiting on her
medical provider. The IDSC eventually closed the March accommodation request because
Williams failed to timely submit medical information.
No. 16-6078 Williams v. AT&T Mobility Servs. Page 6
After Williams had her first appointment with nurse-practitioner Laura Thompson in
April 2014, Thompson submitted a report of the visit to the IDSC later that month. Thompson
diagnosed Williams with depression and anxiety. The medical report estimated that Williams
needed 25 hours off of work per month from February 15, 2014 until August 15, 2014.
Thompson also wrote that she was “unable to determine [the] time frame [for Williams’s
recovery] at this time.” The report recommended that Williams needed a “10 minute break every
2 hours,” a “flexible start time,” and “modified break time during anxiety attacks.” It also
recommended that Williams not work at all from April 11 to April 27. In a written statement
accompanying Thompson’s report, Williams requested “time for treatment of mental illness” and
“flexible scheduling, leave for counseling, and modified break schedule.” But nowhere in the
report did Thompson or Williams explain how the proposed flexible-scheduling accommodation
would actually work.
Williams repeatedly informed the IDSC that she was continuing to receive medical
treatment and that she would submit additional paperwork. Her medical documentation
indicated that, beginning in May, she was in therapy from at least 10:00 a.m. until 3:00 p.m.
daily, which was expected to last until June 13. As of May 8, psychiatrist Dr. Madakasira opined
that Williams was “not fit for work at this time,” but that she could return at the end of the
treatment program if released to do so at that time. But Dr. Madakasira did not identify any
accommodations that would have allowed Williams to perform her job.
On June 11, another healthcare provider, therapist Debra Butler from HealthQuest, sent
documentation to the IDSC, concluding that Williams was “unable to work at this time due to
cognitive impairment and mood disturbance.” Butler did not mention any accommodation
requests, but estimated that Williams could return to work full-time on June 30.
On June 13, however, Williams called Attendance Analyst Lisa Todd-Kyle, stating that
she would not be able to return to work until her outpatient treatment program concluded eight
weeks later. Williams called Todd-Kyle again on June 24 to reiterate that she could not return
to work by June 30 due to the ongoing treatment program. Medical documentation sent
from HealthQuest on June 20 confirmed that Williams’s treatment was projected to last until
August 6.
No. 16-6078 Williams v. AT&T Mobility Servs. Page 7
D. Procedural background
After filing a charging document with the EEOC and receiving a right-to-sue letter,
Williams filed a complaint against AT&T in the district court. The complaint alleged that AT&T
had violated the ADA by failing to provide Williams with a reasonable accommodation, failing
to engage in the interactive process of determining such an accommodation, and terminating
Williams based on unlawful disability discrimination and retaliation for requesting an
accommodation.
AT&T filed a motion for summary judgment. In response, Williams moved for partial
summary judgment on the issue of whether she was disabled under the ADA. The district court
granted partial summary judgment in favor of Williams, concluding as a matter of law that she
was disabled. But in a later ruling the court granted summary judgment in favor of AT&T on all
of Williams’s claims. This timely appeal followed.
II. ANALYSIS
A. Standard of review
We review de novo a district court’s grant of summary judgment. Tennial v. United
Parcel Serv., Inc., 840 F.3d 292, 301 (6th Cir. 2016). Summary judgment is proper when there
is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(a). A genuine dispute of material fact exists “if the evidence is such that
a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). We must view all evidence in the light most favorable to the
nonmoving party in making this determination. Tennial, 840 F.3d at 301.
B. Failure-to-accommodate claim
Williams argues that AT&T violated the ADA by failing to provide her with a reasonable
accommodation that would allow her to continue working despite her depression and anxiety
attacks. She sought accommodation in the form of leave from work for treatment, flexible
scheduling, and additional breaks during her shifts.
No. 16-6078 Williams v. AT&T Mobility Servs. Page 8
The district court ruled that Williams was not qualified for her job as a CSR because she
could not perform the essential function of attending work regularly and punctually. In addition,
the court concluded that Williams’s proposed accommodation was per se unreasonable because it
sought to eliminate the essential job function of regular attendance and punctuality.
1. Without an accommodation, Williams was unqualified for her position because
of her excessive absenteeism.
Failure to provide a reasonable accommodation to a disabled, but otherwise qualified,
person in the workplace is deemed unlawful discrimination under the ADA. 42 U.S.C.
§ 12112(b)(5)(A); Kleiber v. Honda of Am. Mfg., Inc., 485 F.3d 862, 868 (6th Cir. 2007). As a
threshold matter in every disability-discrimination claim, a plaintiff must demonstrate that
(1) she is disabled; and (2) she is “otherwise qualified for the position despite” her disability,
either with or without a reasonable accommodation. Id. at 869 (quoting Hedrick v. W. Reserve
Care Sys., 355 F.3d 444, 452 (6th Cir. 2004)). An employee is deemed qualified only if she can
perform all of the essential functions of her job, whether accommodated or not. 42 U.S.C.
§ 12111(8).
In the present case, Williams argues that she would have been qualified for the CSR
position if a reasonable accommodation had been granted. AT&T responds that Williams’s poor
attendance record shows that she was not qualified because she could not perform the essential
function of regularly attending her job. Similarly, AT&T argues that the flexible scheduling and
modified breaks that Williams proposed would not have enabled her to perform the essential
function of regular attendance.
We must first determine whether regular attendance is an essential function of Williams’s
position. In making this determination, the ADA instructs us to consider evidence of the
employer’s judgment, which can include any written job descriptions prepared prior to
advertising and interviewing applicants for the job at issue. 42 U.S.C. § 12111(8). Regular
attendance is especially likely to qualify as an essential job function after this court’s recent en
banc holding that “[r]egular, in-person attendance is an essential function . . . of most jobs,
especially the interactive ones.” EEOC v. Ford Motor Co., 782 F.3d 753, 762–63 (6th Cir. 2015)
No. 16-6078 Williams v. AT&T Mobility Servs. Page 9
(en banc) (concluding that an employee who had excessive absences was not qualified for her
job, and that her request to work from home as an accommodation was not reasonable).
The Ford decision was based in part on an analysis of the factors outlined in 29 C.F.R.
§ 1630.2(n)(iii) for determining whether a particular job function is essential. Id. at 763.
“Commonsense notions” that physical presence at work is important to most jobs, the court
concluded, also supported this outcome. Id. at 762–63. Even before Ford, this court had held
that plaintiffs with excessive absences were not qualified individuals when they failed to perform
the essential function of regularly attending their jobs. See Brenneman v. MedCentral Health
Sys., 366 F.3d 412, 420 (6th Cir. 2004) (concluding that an employee who was terminated
because of excessive absences that were unrelated to diabetes was not qualified, and would not
be qualified due to these absences even if her accommodation request for medical leave were
granted); Gantt v. Wilson Sporting Goods Co., 143 F.3d 1042, 1047 (6th Cir. 1998) (concluding
that an employee was not qualified because she had been on a year-long medical leave of
absence, and her physician had not released her for work or specified a date on which she would
be able to return).
The Ford decision leaves open the possibility that regular attendance might not be an
essential function of every job, but suggests that exceptions will be relatively rare. See EEOC v.
Ford, 782 F.3d at 762–63. Here, AT&T’s judgment and much of the evidence in the record
support the conclusion that regular attendance is an essential function of the CSR position.
AT&T maintains strict Attendance Guidelines, under which absences and tardiness of as little as
five minutes result in attendance points. An accumulation of eight attendance points can lead to
a CSR’s termination. In addition, the Attendance Guidelines themselves state that regular
attendance is an essential function of the CSR position. We regard this statement as persuasive
evidence of AT&T’s evaluation of the job, especially because the Attendance Guidelines predate
this litigation. See 42 U.S.C. § 12111(8) (providing that written job descriptions “shall be
considered evidence of the essential functions of the job” when prepared prior to advertising
openings or interviewing for the position at issue); see also EEOC v. Ford, 782 F.3d at 761–62
(explaining that job descriptions prepared prior to litigation are properly considered).
No. 16-6078 Williams v. AT&T Mobility Servs. Page 10
In addition, the declarations of AT&T managers Payne and McArthur support the point
that regular attendance is essential to the functioning of the Memphis Call Center for the reasons
set forth in Part I.A. above. This court has previously considered similar testimony from
employers as evidence that attendance is an essential job function. See, e.g., Brenneman,
366 F.3d at 420 (concluding that regular attendance was an essential function based on a
supervisor’s affidavit that the “plaintiff’s excessive absences placed a great strain” on the
workplace because other employees would have to fill in for the plaintiff, decreasing morale).
Williams puts forth no competing evidence on these points. We therefore conclude that regular
attendance is an essential function of the CSR position.
Williams’s poor attendance record makes clear that, unless some accommodation was
possible, she could not perform the essential function of regularly attending her job. She was
absent from work for entire months in 2013 and 2014. Most notably, she took a six-month leave
from January to July 2013 and a nearly three-month leave from April 2014 until her termination
in July 2014. Many of her unscheduled absences were not approved for STD leave. Williams
accumulated 16 attendance points for these absences, double the 8 points meriting termination
under AT&T’s Attendance Guidelines. This was clearly excessive absenteeism.
Williams does not dispute that she was absent on the days documented by AT&T. Before
the district court, she challenged only AT&T’s calculation of her attendance points, arguing that
the code AT&T used to classify certain absences suggests that points were improperly assessed
for some absences that were scheduled in advance. But AT&T produced evidence that the code
was in fact properly applied, and Williams has not produced any competing evidence. Williams
vaguely maintains on appeal that she disputes AT&T’s calculation of attendance points, but she
does not explain how the calculation was incorrect, nor does she cite to any evidence in the
record. Unless a reasonable accommodation could be instituted, Williams was not qualified for
her job on the basis of her attendance record.
2. Williams failed to propose any reasonable accommodation that would have
allowed her to perform the essential functions of her job.
Although this court concluded in Ford that excessive absenteeism was enough to render
an employee not qualified, it did not stop there. The Ford court also evaluated whether the
No. 16-6078 Williams v. AT&T Mobility Servs. Page 11
employee had proposed a reasonable accommodation that would allow her to perform the
essential functions of her job. EEOC v. Ford, 782 F.3d at 763. It held that the employee’s
proposed accommodation—a request to work from home—was unreasonable as a matter of law.
Id. Here, Williams has alleged that she would have been able to perform her essential job
functions using a combination of leave, flexible scheduling, and modified break times.
We therefore evaluate whether she would have been “otherwise qualified” for her CSR position
with these proposed accommodations and, if so, whether these accommodations were reasonable.
a. Williams has not shown that she would have been
otherwise qualified with flexible scheduling and modified
breaks.
Williams’s accommodation requests for flexible scheduling and modified breaks were
based on the following submissions: (1) Thompson’s evaluation, which stated that Williams
needed a flexible start time and ten-minute breaks every two hours, (2) Williams’s
accompanying statement that she was requesting a flexible start time and a modified break
schedule, and (3) Williams’s verbal statements to Scruggs and Prude-Anderson that she needed
accommodations. But none of these requests explain how the proposed accommodations would
have enabled Williams to perform the essential functions of her job.
Williams’s own deposition testimony reveals that she could not have worked on a regular
basis even with her requested accommodations. She explained in her deposition that she needed
the modified break schedule to allow her to calm down after stressful calls. When these calls
provoked anxiety attacks, Williams needed to log off of her workstation and cease taking further
calls. In other words, Williams essentially admitted that she could not perform her job duties
during her anxiety attacks.
Williams provided no explanation for how Thompson’s specific recommendation of ten-
minute breaks every two hours would alleviate this problem. Williams admitted in her
deposition that she had no way of predicting when her anxiety attacks would occur or how many
attacks she would have per day. Breaks every two hours would therefore be inadequate if
Williams suffered from an anxiety attack in between scheduled breaks.
No. 16-6078 Williams v. AT&T Mobility Servs. Page 12
In addition, the medical evidence reveals that Williams could not work at all for
significant periods of time. Dr. Madakasira opined that Williams was “not fit for work” while
she was undergoing treatment in May 2014. On June 11, therapist Debra Butler wrote that
Williams was “unable to work at this time due to cognitive impairment and mood disturbance.”
And Thompson noted that Williams was unable to work from April 11–30 and May 28–June 8.
These excluded work days were listed in the same evaluation that recommended a flexible start
time and break schedule, suggesting that Williams would have been unable to work on those
dates even with the proposed accommodations.
Finally, Williams herself stated in her appeal of the denial of STD leave that, from May
28 to June 9, she “could not function at work in a call center environment” and “could not focus
mentally due to mental illness.” Williams has thus failed to make a prima facie showing that she
would have been otherwise qualified even with these accommodations. We therefore need not
consider whether these accommodations, as framed by Williams, were reasonable.
b. Williams’s request for additional leave as an
accommodation was not reasonable.
Williams also argues that her requests for STD-approved leave doubled as requests for
reasonable accommodations under the ADA. This court has previously held that medical leave
can constitute a reasonable accommodation under the ADA. See Cehrs v. Ne. Ohio Alzheimer’s
Research Ctr., 155 F.3d 775, 783 (6th Cir. 1998). But even if we were to assume that Williams
was qualified for her position with the accommodation of leave, her request for additional leave
was unreasonable. An employer is not required to keep an employee’s job open indefinitely.
This court has held that additional leave is an objectively unreasonable accommodation where an
employee has already received significant amounts of leave and has demonstrated “no clear
prospects for recovery.” Walsh v. United Parcel Serv., 201 F.3d 718, 727 (6th Cir. 2000).
A physician’s estimate of a return date alone does not necessarily indicate a clear prospect for
recovery, especially where an employee has repeatedly taken leaves of unspecified duration and
has not demonstrated that additional leave will remedy her condition. See Maat v. County of
Ottawa, 657 F. App’x 404, 412–13 (6th Cir. 2016) (concluding that where an employee had
already received substantial leave, additional leave was not a reasonable accommodation because
No. 16-6078 Williams v. AT&T Mobility Servs. Page 13
her physician’s vague estimate of a return date was uncertain and indicated that she might need
further treatment); Aston v. Tapco Int’l Corp., 631 F. App’x 292, 298 (6th Cir. 2015) (concluding
that additional leave was not a reasonable accommodation where an employee had already
received a 26-week leave and had provided a physician’s estimate of a return date, but had also
submitted evidence that she still needed another medical procedure which would require
recovery time beyond that date).
In the present case, AT&T provided Williams with retroactively approved STD leave and
allowed her to retain her position for many months before terminating her in July 2014.
Williams submitted an evaluation from Thompson that provided a return date of August 15,
2014, but Thompson stated that this date was only an estimate. Given that Williams had a
history of taking leaves, that her condition failed to improve during those leaves, and that she
repeatedly failed to return to work by dates on which her treatment providers had previously
estimated that she would be able to return, requiring AT&T to grant further leave as an
accommodation would be unreasonable.
C. Williams’s claim that AT&T failed to engage in the interactive process
Williams also asserts an ADA claim against AT&T for failure to engage in the interactive
process. An employer is required “to initiate an informal, interactive process” when necessary to
determine how an employee’s disability limits her ability to work and to identify appropriate
reasonable accommodations. 29 C.F.R. § 1630.2(o)(3). But an employer’s failure to engage in
the interactive process is actionable only if the employee can demonstrate that she was qualified
for the position. EEOC v. Ford, 782 F.3d at 766. In other words, if the employee fails to create
a genuine dispute of material fact that a reasonable accommodation would have allowed her to
perform the essential functions of her job, she cannot survive summary judgment on an
interactive-process claim. Id. Because we conclude that Williams has failed to make a prima
facie showing that she was qualified for her position as a CSR with or without a reasonable
accommodation, we need not consider whether AT&T failed to engage in the interactive process.
No. 16-6078 Williams v. AT&T Mobility Servs. Page 14
D. Disparate-treatment claim
Williams further argues that her termination was the result of unlawful disability
discrimination. We analyze disability-discrimination claims under the McDonnell Douglas
burden-shifting framework. Whitfield v. Tennessee, 639 F.3d 253, 259 (6th Cir. 2011). To make
out a prima facie case, a plaintiff must demonstrate that (1) she has a disability, (2) she is
“otherwise qualified for the position, with or without reasonable accommodation,” (3) she
“suffered an adverse employment decision,” (4) her employer “knew or had reason to know” of
her disability, and (5) she was replaced or her position remained open. Id. (quoting Macy v.
Hopkins Cty. Sch. Bd. of Educ., 484 F.3d 357, 365 (6th Cir. 2007)). If the plaintiff makes out a
prima facie case, the burden then shifts to the employer to demonstrate that there was a
legitimate, nondiscriminatory reason for the adverse employment action. Id. The plaintiff must
then show that the reason given by the employer was actually a pretext designed to mask
unlawful discrimination. Id.
As discussed above, Williams failed to produce sufficient evidence to create a genuine
dispute of material fact as to whether she was qualified for her position, with or without a
reasonable accommodation. Because we conclude that Williams was not qualified as a matter of
law, we need not proceed beyond the prima facie stage. AT&T was therefore entitled to
summary judgment on Williams’s disability-discrimination claim.
E. Retaliation claim
Williams’s final contention is that AT&T terminated her in retaliation for requesting an
accommodation under the ADA. AT&T responds that it terminated Williams because of her
excessive absenteeism, not because of her accommodation requests.
Retaliation claims are also analyzed under the McDonnell Douglas framework where, as
here, there is no direct evidence of retaliation. Rorrer v. City of Stow, 743 F.3d 1025, 1046 (6th
Cir. 2014). To make out a prima facie case of retaliation, a plaintiff must demonstrate that
(1) she engaged in protected activity under the ADA, (2) her employer was aware of that activity,
(3) she suffered an adverse employment action, and (4) a “causal connection” existed between
the protected activity and the adverse action. Id. If the plaintiff does so, then the burden shifts to
No. 16-6078 Williams v. AT&T Mobility Servs. Page 15
the employer to articulate a legitimate, nondiscriminatory reason for the adverse employment
action. A.C. ex rel. J.C. v. Shelby Cty. Bd. of Educ., 711 F.3d 687, 697 (6th Cir. 2013). The
plaintiff must then show that the reason given by the employer was actually a pretext designed to
mask retaliation. Id.
Williams contends that her proof was sufficient to establish a prima facie case of
retaliation. AT&T disputes this, with the key question being the alleged causal connection
between Williams’s requests for accommodation and the termination of her employment.
Because we agree with the district court’s determination that AT&T’s articulated reason for
firing Williams was both legitimate and nondiscriminatory, we will assume without deciding that
Williams established her prima facie case. This allows us to proceed directly to the question of
pretext.
To establish pretext, a plaintiff must demonstrate “both that the employer’s proffered
reason was not the real reason for its action, and that the employer’s real reason was unlawful.”
EEOC v. Ford, 782 F.3d at 767 (emphasis in original). Williams has not created a genuine
dispute of material fact under this standard.
Although temporal proximity can demonstrate a causal connection for the purposes of a
prima facie case, it alone cannot establish pretext. Donald v. Sybra, Inc., 667 F.3d 757, 763 (6th
Cir. 2012). Williams cannot create a genuine dispute of material fact on her retaliation claim by
simply asserting that she was terminated soon after asking for additional leave. And Williams
has produced no other evidence of pretext. There is ample evidence in the record that AT&T
was poised to terminate Williams for legitimate business reasons—her poor attendance record—
well before late June of 2014. AT&T managers and human resources personnel, including Area
Manager Payne and Attendance Analyst Todd-Kyle, discussed terminating Williams as early as
June 11. And Payne testified that before terminating Williams, AT&T confirmed that she had
enough attendance points for termination without regard to whether her appeal for absences from
May 28 onward succeeded.
A reasonable juror could not find that Williams’s termination was pretexutal under any of
the theories that she asserts. In the section of her brief on disparate treatment, Williams advances
No. 16-6078 Williams v. AT&T Mobility Servs. Page 16
three theories to support her claim that AT&T’s use of the Attendance Guidelines to terminate
her was pretextual: (1) AT&T failed to follow its own policies, (2) AT&T provided shifting
reasons for terminating her, and (3) AT&T inconsistently applied the Attendance Guidelines to
other employees. Williams’s brief does not explicitly make this argument with regard to her
retaliation claim. But even assuming that Williams has not waived these arguments, she has not
put forth sufficient evidence of pretext to create a genuine dispute of material fact.
First, Williams does not cite to any evidence in the record to establish that AT&T failed
to follow its policies in terminating her. Williams cites AT&T’s IDSC Guide for the Guide’s
explanation of how an employee can request time off as an accommodation, and she argues that
AT&T terminated her despite her proper use of this procedure. But the policy that Williams
cites addresses procedures for employees, not AT&T, to follow. Williams points to no other
evidence of a policy that AT&T failed to follow. She insists that AT&T engaged in a pattern of
denying STD leave, assessing attendance points against her, retroactively approving STD leave,
and ultimately “us[ing] the alleged incurred points to fire her.” The record in fact reflects that
AT&T denied Williams’s STD leave requests on multiple occasions and then retroactively
approved them. But this does not indicate a discriminatory or retaliatory motive.
Whenever AT&T retroactively approved STD leave, any attendance points that Williams
incurred during the relevant time period were removed. And when calculating the attendance
points needed to terminate Williams, her managers assumed that her final STD leave request,
which had initially been denied, would be approved. They ultimately concluded that her
absenteeism was a terminable offense even without the disputed points.
Second, Williams has not created a genuine dispute of material fact regarding her claim
that AT&T provided “changing rationales” for terminating her. She argues that AT&T’s final
return-to-work letter provided her with an explanation of how she could obtain approval for
additional leave and keep her job. Her termination after she followed those instructions, she
contends, was inconsistent with this letter and occurred “without warning.” Williams argues that
AT&T informed her that she was terminated either because she had failed to properly make an
ADA request for leave as an accommodation or because her request for leave had not been
approved. She appears to be referring to her termination letter, although she does not cite it. The
No. 16-6078 Williams v. AT&T Mobility Servs. Page 17
“shift” in AT&T’s reasoning, according to Williams, is its invocation of the Attendance
Guidelines as an explanation for her termination after sending her this letter.
A reasonable juror could not find that these alleged shifting reasons for termination were
pretextual. True enough, the termination letter did state that Williams’s failure to properly
request leave for her absences after May 27 was the reason for her termination. Attendance
points were not mentioned in that letter. But the other evidence in the record overwhelmingly
indicates that Williams’s managers at AT&T were careful to ensure that they did not factor
absences meriting STD leave into Williams’s termination, gave Williams multiple chances to
return to work before firing her, and decided to terminate her based on unscheduled absences that
had resulted in attendance points. Evidence documenting this legitimate, nondiscriminatory
rationale for termination predates the termination letter on which Williams so heavily relies.
Furthermore, the cases on which Williams relies for the proposition that shifting reasons
can constitute pretext are factually distinguishable from the present case. They involve situations
where an employer’s proffered reason for termination changed after litigation commenced, or
where an employer claimed that an employee was terminated for alleged poor performance but
had not previously informed the employee that his or her performance was inadequate. See, e.g.,
Pierson v. Quad/Graphics Printing Corp., 749 F.3d 530, 540–41 (6th Cir. 2014) (concluding that
evidence of shifting reasons created a genuine dispute of material fact where the employer
initially told the plaintiff that he was fired due to a reduction in the workforce, but later informed
the plaintiff that his poor performance was the reason for termination when the plaintiff
mentioned appealing the decision); Cicero v. Borg-Warner Auto., Inc., 280 F.3d 579, 589–92
(6th Cir. 2002) (concluding that there was a genuine dispute of material fact regarding pretext
where the employer claimed that an employee was fired for poor work performance, but
repeatedly gave him merit-based bonuses, did not inform him of performance deficiencies until
after terminating him, and did not mention poor performance as a rationale for the termination
until answering interrogatories for the purposes of litigation).
In contrast to the plaintiffs in the above cases, Williams had been repeatedly warned
about her attendance issues throughout the course of her employment. And AT&T produced
evidence predating its termination decision to show that Williams’s absenteeism was the actual
No. 16-6078 Williams v. AT&T Mobility Servs. Page 18
reason for her termination. We conclude that Williams has failed to produce sufficient evidence
to create a genuine dispute of material fact as to whether her excessive absenteeism was not the
“real reason” for her termination. See EEOC v. Ford, 782 F.3d at 767.
Finally, Williams asserts as evidence of pretext that AT&T treated her differently from
other employees under the Attendance Guidelines. She produced the attendance records of
several other employees in support of this argument. The district court noted that these records
had not been properly authenticated, but concluded that even if they were authenticated at trial,
Williams had not provided enough context to establish that she was treated differently from
similarly situated coworkers.
We agree that the attendance records are insufficient to create a genuine dispute of
material fact. To establish pretext, Williams must show that these coworkers were “similarly
situated” to her, meaning that they had the same supervisor, were governed by the same
standards of conduct, and had committed the same Attendance Guidelines violations as
Williams, without any “differentiating or mitigating circumstances” that would merit different
treatment. See Smith v. Leggett Wire Co., 220 F.3d 752, 762 (6th Cir. 2000) (quoting Ercegovich
v. Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998)). Williams must also show
that these coworkers were not fired despite engaging in conduct that was substantially similar to
hers. Id. The attendance and disciplinary records in themselves do not provide any context
about the types of absences at issue or the coworkers’ circumstances. Williams offers her own
unsubstantiated speculations about what the records show in her response to AT&T’s statement
of facts, but this does not set out facts that would be admissible at trial and therefore is not
sufficient evidence to create a genuine dispute of material fact. See Fed. R. Civ. P. 56(c).
III. CONCLUSION
In the end, this case reflects the reality that there are some jobs that a person with
disabilities is simply unable to perform. A blind person cannot be an airline pilot, nor can one
with advanced Parkinson’s disease be a neurosurgeon. Similarly, a person like Williams who
reacts to random customer calls with anxiety attacks that require her to log off of her workstation
No. 16-6078 Williams v. AT&T Mobility Servs. Page 19
is not capable of performing the essential job functions of an AT&T CSR. We therefore
AFFIRM the judgment of the district court.