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,
12
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