     Case: 18-50053      Document: 00514757542         Page: 1    Date Filed: 12/12/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 18-50053                     United States Court of Appeals
                                                                                Fifth Circuit

                                                                              FILED
                                                                      December 12, 2018
HEATHER TRAUTMAN,
                                                                         Lyle W. Cayce
              Plaintiff-Appellant,                                            Clerk


v.

TIME WARNER CABLE TEXAS, L.L.C.,

              Defendant-Appellee.




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:15-CV-1049


Before DAVIS, COSTA, and OLDHAM, Circuit Judges.
PER CURIAM: *
       Time Warner Cable Texas, L.L.C. (“Time Warner”) fired Heather
Trautman for not coming to work. Trautman sued Time Warner under the
Family Medical Leave Act (“FMLA”), the Americans with Disabilities Act
(“ADA”), and a related state statute. The district court granted Time Warner
summary judgment on all claims. We affirm.



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 18-50053
                                       I.
      Time Warner hired Trautman in October 2012 and fired her in April
2015. Approximately eight months into her thirty-month tenure, Trautman
began submitting various accommodation and leave requests.            Some were
protected by federal and state employment laws. Others were not. This much
is undisputed: Trautman missed a staggering amount of work.
                                       A.
      Trautman became pregnant in approximately March 2013. In June
2013, Trautman experienced periodic dizzy spells and submitted a formal ADA
accommodation request that she be allowed to lie down at work. Time Warner
determined her request did not qualify for an ADA accommodation.                 It
nonetheless granted her request and found locations in its office in Austin,
Texas where Trautman could lie down as needed.
      A few months later, while she was still pregnant, Trautman got anxious
driving from work to her home in Kyle, Texas. She stopped her car, rested for
twenty minutes, then drove home. Trautman’s obstetrician advised her that
she had experienced a panic attack and recommended rest and avoiding
stressful situations. A few weeks later, Trautman experienced another panic
attack when driving home from work. This time, her obstetrician suggested
leaving work early to avoid driving in the heavy traffic.
      Trautman did not submit an ADA accommodation request; she instead
asked her supervisor for a temporary modification to her work schedule. The
request presented a challenge to Time Warner because Trautman’s job
required her to be in the office to interact with other members of her team at
certain times. Nonetheless, Trautman’s supervisor agreed to her request. So
Trautman left the office between 2:00 and 3:00 p.m. and worked from home for
the rest of the day.
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                                     No. 18-50053
      Trautman’s daughter was born in December 2013. Trautman then took
FMLA leave until March 2014. 1 After exhausting her FMLA leave for 2014,
Trautman asked her then-supervisor, Chris Graham, if she could temporarily
work from home because she was struggling to transition her child to bottle-
feeding. Graham requested a doctor’s note but agreed to Trautman’s request.
Trautman ultimately worked from home for the remainder of 2014.
      In December 2014, a new supervisor, Adrienne Greth, requested that
Trautman resume working from the office on January 12, 2015. Greth was
concerned Trautman was not performing necessary job duties that required
her to be in the office. Trautman, however, did not want to work her normal
8:00 a.m. to 5:00 p.m. office schedule. She asked Greth for a modified schedule
that would allow her to work from home in the afternoons. But Greth insisted
she needed Trautman to work eight hours a day from the office unless she had
a doctor’s note and a formal accommodation approved by the Human Resources
(“HR”) department.
                                           B.
      On December 12, 2014, Trautman submitted an ADA accommodation
request to Time Warner’s HR department, requesting that she be allowed to
work from 7:00 a.m. to 2:00 p.m. in the office and the remaining hours from
home. The request stated that Trautman’s condition imposed “no limitations
for the function of [her] job duties” but that she wanted to work from home in
the afternoons “to avoid anxiety and panic attacks.”               Trautman’s family
physician described Trautman’s functional limitations as “anxiety/panic
attacks related to traffic/driving” and identified driving as the only “major life


      1 Under the FMLA, qualifying employees are entitled to a total of 12 weeks of unpaid
leave to care for a newborn child or for other qualifying exigencies during any 12-month
period. 29 U.S.C. § 2612(a)(1).
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                                  No. 18-50053
activity” her condition impaired. He also indicated, however, that Trautman’s
condition “decreased [her] concentration” and suggested she be allowed to leave
the office at 2:00 p.m. so she could “avoid heavy traffic.”
      Time Warner denied that specific accommodation request, explaining:
“The request and accommodation are not related to an essential function of
[Trautman’s] job,” and Trautman’s position “requires her to work from the
office during normal business hours.” But Time Warner offered to adjust
Trautman’s schedule from 8:00 a.m. to 5:00 p.m. to 7:00 a.m. to 4:00 p.m. so
she could leave the office earlier.
      Trautman did not try leaving the office at 4:00 p.m. to see if that
addressed her anxiety. She instead insisted that leaving at 4:00 p.m. would
not solve the problem and submitted a new letter from her physician. This
second letter, however, did not provide additional information or explain why
allowing Trautman to leave at 4:00 p.m. was insufficient. Trautman again
asked permission to leave the office at 2:00 p.m. and work from home in the
afternoons. Acknowledging that 2:00 to 3:00 p.m. was usually a busy time for
her department, she alternatively offered to leave the office even earlier—at
11:00 a.m.—so that she would be available to work during that busy period
from home.
      Time Warner reiterated it needed Trautman to work all her hours from
the office, but that it would allow Trautman to adjust her schedule so that she
could leave at 4:00 p.m. Trautman again refused to try this option. Trautman
also declined to investigate public transportation or ride-sharing options that
would allow her to avoid driving in heavy traffic. Nor did Trautman propose
other alternatives to help minimize her anxiety, such as taking breaks in the
afternoon when she felt anxious or modifying her work environment so she
would not see traffic building outside the office. Rather than continuing the
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                                No. 18-50053
dialogue about possible ADA accommodations, Trautman sought a different
route to leave the office at 2:00 p.m.—intermittent FMLA leave that would end
her work day early.
                                     C.
      On January 14, 2015, Trautman began submitting requests for
intermittent FMLA leave to Time Warner’s third-party administrator for
FMLA requests, Sedgwick Claims Management Services, Inc. (“Sedgwick”).
The following day, she began leaving work early. Sedgwick transmitted the
FMLA leave requests to Time Warner and gave Time Warner access to real-
time information about whether the leave requests were approved or denied
through Sedgwick’s web portal. Trautman also had access to the portal to
check the status of her FMLA leave requests. If she disagreed with a denial of
one of her FMLA leave requests, Trautman could appeal to Time Warner’s HR
department.
      On February 5 and February 11, 2015, Trautman submitted paperwork
to Sedgwick to support her leave requests. Her family physician stated:
   • Trautman has “severe driving phobia at times of high traffic volume”;
   • The condition causes “episodic flare-ups” of “severe anxiety/panic during
      and in anticipation of driv[ing] in high traffic” that requires Trautman
      to miss work; and
   • Trautman would need to leave the office no later than 2:00 p.m. when
      she experienced a flare up.
Despite Sedgwick’s request for clarification, Trautman’s physician failed to
indicate clearly how many episodes Trautman experienced per week and how
long these episodes lasted.
      On February 20, 2015, Sedgwick sent Trautman a letter (“First
Certification Letter”), approving her for one hour of FMLA leave per week for
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                                 No. 18-50053
six months (from January 14, 2015 through July 13, 2015). The same day,
Sedgwick denied Trautman’s requested FMLA leave for any absences in
January and February that exceeded this approved FMLA amount. Trautman
did not appeal those denials. Sedgwick also told Trautman how to submit a
new certification form if her circumstances changed and if she wished to extend
her leave beyond six months.
      On February 24, 2015, Greth issued Trautman a written warning for
numerous attendance violations.          Throughout January and February,
Trautman had missed work for reasons unrelated to her FMLA requests.
Before issuing the warning, Greth checked Sedgwick’s web portal to make sure
she was not counting FMLA-approved leave against Trautman. Greth detailed
the gravity of the attendance issues in the warning, noting that out of “the last
60 days (35 working days), [Trautman has] been out of the office a total of 19
work days and ha[s] been late and left early on numerous occasions. This is a
total of 179 hours which equates to approximately 64% of working hours since
the beginning of the year.”      Greth warned that “failure to demonstrate
immediate and sustained improvement may result in further disciplinary
action up to and including dismissal.”
      Nevertheless, Trautman left work early that very day—despite being out
of personal time, sick time, and vacation time. ROA.340. And she called in
sick for the three days after that. Greth issued Trautman a final written
warning on March 2, 2015. Once again, Greth logged onto Sedgwick’s web
portal to confirm the absences were not FMLA-approved before issuing the
final warning. Time Warner’s HR manager also logged into the portal to make
sure no FMLA-approved absences were included. The final warning noted
Trautman had been absent for 22 days (200 hours) since the beginning of the
year and that another violation could result in termination.
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                                 No. 18-50053
      That same day, March 2, 2015, Trautman submitted a new doctor’s note
to request an increase in the frequency and duration of her FMLA leave to one
and a half hours daily. Sedgwick informed Trautman it could update the
frequency and duration of her FMLA leave to be effective on the day it received
the updated paperwork—March 2, 2015—not before. On March 20, 2015,
Sedgwick sent Trautman notice of a new FMLA certification (“Second
Certification Letter”) that extended the expiration date of her leave to August
27, 2015. It also increased the hours and number of days she could take FMLA
leave per week from one hour of FMLA leave a week to two hours of leave five
times a week. Sedgwick sent a letter to Greth regarding the new certification,
which Greth forwarded to Time Warner’s HR manager.
      After March 20, 2015, Trautman took her increased amount of
intermittent FMLA leave. She also received approval to take some additional
time off or work from home on March 24, April 3, and April 6. Shortly before
her shift began on April 8, Trautman informed Greth (via voicemail and text
message) that she did not think she could make it to work due to childcare
issues and expressed concern that she was out of sick days. Greth texted
Trautman back, stating Trautman may have accrued some sick leave if she
hadn’t used any leave since February. Ultimately, Trautman never showed up
for work on April 8. Time Warner fired her the next day.
      The termination notice explained Trautman “fail[ed] to meet the
expectations that were outlined to [her] regarding [her] absences and in
accordance with Time Warner Cable’s corrective action policy.” The notice also
listed all of Trautman’s unapproved absences since the beginning of 2015:
January 5 (8 hours); January 12 (8 hours); January 13 (8 hours); January 14
(8 hours); January 15 (0.5 hours); January 16 (1.5 hours); January 20 (6 hours);
January 21 (0.5 hours); January 22 (1.5 hours); January 26 (0.5 hours);
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                                    No. 18-50053
January 27 (1.5 hours); January 28 (1.5 hours); January 29 (8 hours); January
30 (8 hours); February 2 (8 hours); February 3 (8 hours); February 4 (8 hours);
February 5 (8 hours); February 6 (8 hours); February 9 (0.5 hours); February
10 (3 hours); February 11 (1.5 hours); February 12 (8 hours); February 13 (8
hours); February 16 (7 hours); February 17 (8 hours); February 19 (8 hours);
February 20 (8 hours); February 23 (8 hours); February 24 (8 hours); February
25 (8 hours); February 26 (8 hours); February 27 (8 hours), and April 8 (8
hours). ROA.356.
      Trautman sued Time Warner for violations of the FMLA, the ADA, and
related provisions of state law. Time Warner filed a motion for summary
judgment, which the district court granted. This appeal followed. 2
                                          II.
      We review de novo the entry of summary judgment. Rodriguez v. Eli
Lilly & Co., 820 F.3d 759, 763 (5th Cir. 2016). The Court must “draw all
reasonable inferences in favor of the nonmovant, and ask whether the evidence
in the summary judgment record is such that no reasonable juror could find in
favor of the nonmovant.” Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1089
(5th Cir. 1995). Applying this standard, no reasonable juror could find Time
Warner violated the FMLA or ADA by firing Trautman or by refusing to
provide her requested accommodation.
                                          A.
      We start with the FMLA retaliation claim.                The FMLA makes it
“unlawful for any employer to discharge or in any other manner discriminate
against any individual for opposing any practice made unlawful by this


      2  On appeal, Trautman failed to contest the district court’s judgment on her FMLA
interference claim and her various claims under Texas state law. Trautman therefore
forfeited those claims. See Norris v. Causey, 869 F.3d 360, 373–74 n.10 (5th Cir. 2017).
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subchapter.” 29 U.S.C. § 2615(a)(2). To establish a prima facie case of FMLA
retaliation, Trautman must show, inter alia, she “suffered an adverse
employment decision . . . because [she] took FMLA leave.” Elsensohn v. St.
Tammany Par. Sheriff’s Office, 530 F.3d 368, 372 (5th Cir. 2008) (per curiam)
(internal quotation marks and citation omitted).            Trautman argues she
satisfied that standard by producing “direct evidence” of retaliation.          We
disagree. We further hold Trautman’s indirect or circumstantial evidence does
not create an inference of FMLA retaliation.
                                       1.
      We “typically rel[y] on the familiar McDonnell-Douglas burden shifting
framework to determine whether an employer discharged an employee in
retaliation for participating in FMLA-protected activities.”        Richardson v.
Monitronics Int’l, Inc., 434 F.3d 327, 332 (5th Cir. 2005).            Under that
framework, “once the employee establishes a prima facie case of retaliation,
the burden shifts to the employer to articulate a legitimate, nondiscriminatory
reason for the adverse employment action.” Id. And “[i]f the employer succeeds
in doing so, the burden shifts back to the employee to show by a preponderance
of the evidence that the employer’s articulated reason is a pretext for
discrimination.” Id. at 332–33.
      Trautman, however, attempts to establish her claim with direct
evidence. If a plaintiff “presents direct evidence of discrimination,” then “the
McDonnell Douglas test is inapplicable.” Trans World Airlines, Inc. v.
Thurston, 469 U.S. 111, 121 (1985).         “Direct evidence of discrimination is
evidence which, if believed, would prove the existence of a fact (i.e., unlawful
discrimination) without any inferences or presumptions.” Bodenheimer v. PPG
Indus., Inc., 5 F.3d 955, 958 (5th Cir. 1993). When evidence is ambiguous such
that an inference is required to show discriminatory intent, the evidence is at
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                                     No. 18-50053
best circumstantial, not direct. See Lazarou v. Miss. State Univ., 549 F. App’x
275, 280 (5th Cir. 2013) (per curiam); Sandstad v. CB Richard Ellis, Inc., 309
F.3d 893, 897–98 (5th Cir. 2002); see also Patten v. Wal-Mart Stores E., Inc.,
300 F.3d 21, 25 (1st Cir. 2002).
      Trautman insists her termination notice is direct evidence of retaliation
because it lists 9.5 hours of FMLA-approved absences in January and February
of 2015. 3 That argument, of course, assumes those specific 9.5 hours were
approved. But even Trautman concedes that, on February 20, 2015, they were
denied. To overcome this obstacle, she argues the Second Certification Letter
retroactively approved the 9.5 hours of leave at issue. It is true the Second
Certification Letter approved Trautman’s request that she be allowed to take
a greater amount of intermittent FMLA leave. But it says nothing at all about
retroactively approving absences that had been previously denied. To the
contrary, Sedgwick specifically notified Trautman the increased leave amount
would be effective on March 2, 2015—that is, after the key 9.5 hours of leave.
And, even after sending the Second Certification Letter, Sedgwick continued
to report those 9.5 hours as denied on its web portal.                Accordingly, the
termination notice does not include FMLA-covered absences and is not direct
evidence of retaliation.




      3  Trautman claims the following partial absences were retroactively approved as
FMLA leave by Sedgwick and were included in her termination notice: January 15 (0.5
hours), January 16 (1.5 hours), January 21 (0.5 hours), January 22 (1.5 hours), January 26
(0.5 hours), January 27 (1.5 hours), January 28 (1.5 hours), February 9 (0.5 hours), and
February 11 (1.5 hours). Because Trautman was initially approved to take one hour of FMLA
leave a week, Sedgwick approved Trautman for one hour of FMLA leave on January 15, one
hour on January 21, one hour on January 26, and one hour on February 9, 2018. It is
undisputed that these FMLA-approved hours were not included in the termination notice;
the termination notice includes only the additional thirty minutes Trautman was absent on
these days.
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                                       No. 18-50053
       Deposition testimony bolsters that result. Trautman argues Greth’s
deposition testimony evinces a subjective understanding that the Second
Certification Letter retroactively approved her FMLA leave. 4 But nothing in
the deposition transcript shows Greth believed the specific 9.5 hours of leave
were covered at the time she disciplined Trautman for her attendance
violations and made the termination decision. To the contrary, Greth testified
she checked Sedgwick’s web portal to make sure she was not counting FMLA-
approved leave against Trautman. Moreover, Greth didn’t approve or deny
Trautman’s FMLA leave requests—Sedgwick did—and Trautman never
appealed those denials. Greth simply relied on those denials and terminated
Trautman for them.           Trautman thus has no direct evidence of FMLA
retaliation. 5


       4  Greth looked at the Second Certification Letter in her deposition and surmised
Sedgwick approved Trautman back to January 14, 2015, for up to two hours of FMLA leave
a day.
        5 It is possible the McDonnell Douglas framework also does not apply when “the

employee concedes that discrimination was not the sole reason for her discharge, but argues
that discrimination was a motivating factor in her termination.” Richardson, 434 F.3d at
333. In such a case, Richardson states the mixed-motive framework applies. The mixed-
motive framework allows an employee to carry its burden under the third step by “creat[ing]
a genuine issue of fact either that (a) the employer’s proffered reason is a pretext for
discrimination, or—and herein lies the modifying distinction—(b) that the employer’s reason,
although true, is but one of the reasons for its conduct, another of which was discrimination.”
Id. In her briefing before this Court, however, Trautman does not adequately argue that the
mixed-motive framework applies, despite the fact that the district court (by adopting the
magistrate judge’s opinion) expressly applied the McDonnell Douglas framework. Instead,
Trautman argued that McDonnell Douglas’s pretext analysis did not apply because she
presented direct evidence that Time Warner retaliated against her. Trautman therefore
forfeited any argument that the mixed-motive framework applies. See Norris, 869 F.3d at
373–74 n.10. Moreover, even applying the mixed-motive framework, Trautman cannot
establish that her FMLA-protected leave was a motivating factor in Time Warner’s decision
to fire her. Accordingly, we need not decide whether the mixed-motive framework remains a
viable method to establish FMLA-retaliation claims following the Supreme Court’s decisions
in University of Texas Southwestern Medical Center v. Nassar, 570 U.S. 338 (2013), and Gross
v. FBL Financial Services, Inc., 557 U.S. 167 (2009). See Ion v. Chevron USA, Inc., 731 F.3d
379, 389–90 (5th Cir. 2013).
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                                        2.
      Because Trautman has presented no direct evidence of retaliation, the
McDonnell Douglas burden-shifting framework applies to her circumstantial
evidence of FMLA retaliation. See Mauder v. Metro. Transit Auth. of Harris
Cty., Tex., 446 F.3d 574, 583 (5th Cir. 2006) (applying McDonnell Douglas to
FMLA retaliation claim). Again, Trautman’s claim fails.
      We need not decide whether Trautman established her prima facie case
because, even if she had, Time Warner had an obvious and non-pretextual
reason for firing her—namely, excessive absenteeism. First, as should go
without saying, an employee’s failure to show up for work is a legitimate reason
for firing her. See Bell v. Dallas Cty., 432 F. App’x 330, 334 (5th Cir. 2011) (per
curiam) (“Contrary to [the employee’s] assertion, the evidence demonstrates
that the [employer] terminated [him] for violating the attendance policy, not
because he used his FMLA leave.”); Powers v. Woodlands Religious Cmty. Inc.,
323 F. App’x 300, 302 (5th Cir. 2009) (per curiam) (“[The employer’s] stated
reason for [the employee’s] termination—absenteeism—is a legitimate
nondiscriminatory reason for its decision.”); Hypes ex rel. Hypes v. First
Commerce Corp., 134 F.3d 721, 726 (5th Cir. 1998) (per curiam) (recognizing a
record of excessive absences is a legitimate, nondiscriminatory reason to fire
an employee). Trautman accrued unexcused absences totaling over 200 hours
from January 1, 2015 to April 9, 2015. Moreover, Time Warner provided
evidence that Trautman was treated similarly to other employees who were
disciplined for attendance violations. In fact, under Time Warner’s attendance
policy, employees may be terminated if they exceed 112 hours of unexcused




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                                   No. 18-50053
absences in a rolling 12-month period—far fewer absences than Trautman
incurred in less than four months. 6
      Second, Trautman cannot “show by a preponderance of the evidence”
that Time Warner’s articulated reason—excessive absenteeism—was a pretext
for retaliation.   Richardson, 434 F.3d at 332–33; see Burton v. Freescale
Semiconductor, Inc., 798 F.3d 222, 233 (5th Cir. 2015) (“An employee seeking
to show pretext must rebut each discrete reason proffered by the employer.”).
“Pretext is established ‘either through evidence of disparate treatment or by
showing that the employer’s proffered explanation is false or “unworthy of
credence.” ’ ” Delaval v. PTech Drilling Tubulars, L.L.C., 824 F.3d 476, 480 (5th
Cir. 2016) (quoting Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003)).
      Trautman does not dispute she was absent on the listed days or that
Time Warner fired her because of her absences. Instead, she argues a jury
could find her FMLA leave counted as a “negative factor” in Time Warner’s
decision to fire her because (she argues) 9.5 hours of her absences were FMLA-
covered. See 29 C.F.R. § 825.220(c). As we explained above, however, the
summary judgment evidence demonstrates those hours were not covered. See
supra Part II.A.1.
      In all events, even subtracting those 9.5 hours, Trautman’s absences still
far exceeded the limits in Time Warner’s attendance policy. See Bell, 432 F.
App’x at 334 & n.5 (concluding summary judgment was proper for the
defendant when employee’s absences “still qualifie[d] as ‘excessive’ under the
[defendant’s] attendance policy” if absences arguably covered by the FMLA
were ignored); cf. Delaval, 824 F.3d at 480 (reasoning that “a fact question”


      6 Although Trautman was exempt from the bargaining unit that agreed to this
attendance policy, managers monitored the attendance of exempt employees like Trautman
and could use the attendance policy as a guide for how to address attendance issues.
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                                No. 18-50053
about whether an employee’s absences were authorized did not show the
employer’s articulated reason for firing the employee—violating the
attendance policy—was pretext, because managers “ ‘do[ ] not have to make
proper decisions, only non-discriminatory ones’ ” (quoting Bryant v. Compass
Grp. USA Inc., 413 F.3d 471, 478 (5th Cir. 2005))).       Trautman offers no
evidence she would not have been fired if those 9.5 hours were not included on
the termination notice. She also fails to provide evidence that any employee
who had a similarly dismal attendance record was treated more favorably than
her. Compare Delaval, 824 F.3d at 480 (concluding employee failed to show
pretext, in part, because employee could not show “he was treated differently
than any other employee”), with Carmona v. Sw. Airlines Co., 604 F.3d 848,
862 (5th Cir. 2010) (concluding there was a fact question on whether the
employer’s articulated reason was pretextual when similarly situated
employees were treated more favorably).
      Moreover, Time Warner has a record of granting Trautman’s numerous
accommodation and FMLA leave requests back to 2013, even when it was not
required to do so by law. That record further prevents Trautman from showing
Time Warner used excessive absenteeism as a pretextual justification for
discrimination. See Garcia v. Penske Logistics, L.L.C., 631 F. App’x 204, 212
(5th Cir. 2015) (per curiam) (considering employer’s past conduct of approving
FMLA leave as evidence the proffered reason for firing the employee was not
pretext).
      Accordingly, we affirm the entry of summary judgment on Trautman’s
FMLA retaliation claim.




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                                       No. 18-50053
                                             B.
       We now turn to Trautman’s two ADA claims: (1) discriminatory
termination and (2) denial of reasonable accommodations.                          Summary
judgment was proper on both.
                                             1.
       Trautman’s discriminatory termination claim fails for several reasons,
including one we already discussed above: her failure to show Time Warner’s
proffered, legitimate reason for her termination was pretext.
       Trautman argues Time Warner fired her because it regarded her as
disabled—that is, because Time Warner perceived her as impaired based on
her need for FMLA leave. 7           But the McDonnell Douglas burden-shifting
framework applies to this ADA discriminatory termination claim as it did to
the FMLA claim. See Eli Lilly & Co., 820 F.3d at 766 (concluding the same
pretext analysis applies to FMLA claims as to ADA claims). Accordingly, for
the same reasons articulated above, even assuming Trautman established a
prima facie case of discrimination, she cannot show the proffered reason for
her termination—excessive absenteeism—was a pretext for discrimination.
                                             2.
       Finally, Trautman’s failure-to-accommodate claim fails.                  Under the
ADA, as amended by the ADA Amendments Act of 2008, “a plaintiff in this
circuit ‘must prove the following statutory elements to prevail in a failure-to-
accommodate claim: (1) the plaintiff is a “qualified individual with a
disability;” (2) the disability and its consequential limitations were “known” by


       7Trautman’s discriminatory termination claim is based on her argument that the
termination notice included 9.5 hours of FMLA-approved leave. She does not appear to argue
her other absences were necessitated by her alleged impairment. To the extent she makes
that argument in this Court, she has already forfeited it by not presenting it to the district
court. See Martco Ltd. P’ship v. Wellons, Inc., 588 F.3d 864, 877 (5th Cir. 2009).
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    Case: 18-50053     Document: 00514757542          Page: 16   Date Filed: 12/12/2018



                                   No. 18-50053
the covered employer; and (3) the employer failed to make “reasonable
accommodations” for such known limitations.’ ”            Neely v. PSEG Tex., Ltd.
P’ship, 735 F.3d 242, 247 (5th Cir. 2013) (emphasis omitted) (quoting Feist v.
La. Dep’t of Justice, Office of the Attorney Gen., 740 F.3d 450, 452 (5th Cir.
2013)).
      We need not decide whether Trautman was a qualified individual with a
disability because, even assuming she was, she cannot establish that Time
Warner refused a reasonable accommodation. When an employee “requests a
reasonable accommodation, the employer and employee should engage in
flexible, interactive discussions to determine the appropriate accommodation.”
See EEOC v. Agro Distribution, LLC, 555 F.3d 462, 471 (5th Cir. 2009). But
that is not what happened here. Trautman requested an accommodation that
would allow her to work from home after 2:00 p.m. When Time Warner denied
this specific request, Trautman’s response was to make an even more
aggressive request that she be allowed to leave work at 11:00 a.m. That’s not
the stuff of flexible, interactive discussions.
      In contrast, Time Warner demonstrated flexibility by offering to adjust
Trautman’s schedule so she could work a full work day and leave at 4:00 p.m.
And Trautman never tried that accommodation. Nor did Trautman investigate
ride-sharing options, request additional breaks in the afternoons to help
mitigate her anxiety, or explore any other accommodation.                She instead
unilaterally decided to end her workday at 2:00 p.m. Neither the ADA nor the
2008 amendments to the ADA permits an employee to leave work early and
then sue her employer for being unreasonable.
                                   *     *        *
      The judgment of the district court is AFFIRMED.


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