          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                  Fifth Circuit

                                                                          FILED
                                                                     September 16, 2013

                                     No. 12-31065                       Lyle W. Cayce
                                                                             Clerk

PAULINE G. FEIST

                                                Plaintiff-Appellant
v.

STATE OF LOUISIANA, Department of Justice, Office of the Attorney
General

                                                Defendant-Appellee



                   Appeal from the United States District Court
                       for the Eastern District of Louisiana


Before DAVIS, JONES, and BENAVIDES, Circuit Judges.
BENAVIDES, Circuit Judge:
      Pauline G. Feist, a former assistant attorney general for the Louisiana
Department of Justice (“LDOJ”), claims that LDOJ (1) discriminated against her
in violation of the Americans with Disabilities Act (“ADA”) by declining to
provide a free on-site parking space to accommodate her disability (osteoarthritis
of the knee), and (2) violated the ADA and Title VII by terminating her
employment in retaliation for charges she filed with the U.S. Equal Employment
Opportunity Commission (“EEOC”).1


      1
        Feist also argues that LDOJ failed to reasonably accommodate her request for “job
restructuring” by not allowing her to work from home, but issue was not raised in the court
below, and thus need not be addressed here. See BP Exploration Libya Ltd. v. Exxonmobil
                                      No. 12-31065

       The district court granted summary judgment on Feist’s discrimination
claim, holding that she failed to explain how the denial of on-site parking limited
her ability to perform the “essential functions” of her job. Feist filed timely
appeal, arguing that the ADA does not require a link between a requested
accommodation and an essential job function.2
       The district court also granted LDOJ’s motion for summary judgment on
Feist’s retaliation claim, finding that Feist was dismissed for poor performance
and holding that Feist produced no evidence that, but for a retaliatory motive,
LDOJ would not have dismissed her. Feist appeals, claiming that she has
evidence that any performance-based justification is mere pretext, intended to
disguise the retaliatory dismissal.
       Because we find an error in the district court’s analysis of the
discrimination claim, we vacate summary judgment in part and affirm in part.
       I. Standard of Review
       This Court “reviews de novo the district court’s grant of summary
judgment, applying the same standard as the district court.” Fabela v. Socorro
Indep. Sch. Dist., 329 F.3d 409, 414 (5th Cir. 2003). “Summary judgment is
appropriate if the moving party can show that ‘there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.’”
United States v. Renda Marine, Inc., 667 F.3d 651, 655 (5th Cir. 2012) (quoting
FED. R. CIV. P. 56(a)). When considering a motion for summary judgment, a
court “must view all facts and evidence in the light most favorable to the
non-moving party.” Juino v. Livingston Parish Fire Dist. No. 5, 717 F.3d 431,
433 (5th Cir. 2013). In addition, an appellate court “may affirm summary


Libya Ltd., 689 F.3d 481, 493 n.9 (5th Cir. 2012).
       2
         Amici on this issue include the Advocacy Center and Disability Rights Texas, which
are the congressionally mandated disability “protection and advocacy” agencies for Louisiana
and Texas, respectively. See 42 U.S.C. § 15041 et seq.

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                                        No. 12-31065

judgment on any ground supported by the record, even if it is different from that
relied on by the district court.” Reed v. Neopost USA, Inc., 701 F.3d 434, 438
(5th Cir. 2012) (internal quotation marks omitted).
       II. Discrimination
       The ADA prohibits covered employers from “discriminat[ing] against a
qualified individual on the basis of disability.”                  42 U.S.C. § 12112(a).
Discrimination includes failure to make “reasonable accommodations to the
known physical or mental limitations of an otherwise qualified individual with
a disability . . . unless such covered entity can demonstrate that the
accommodation would impose an undue hardship.” Id. § 12112(b)(5)(A). Thus,
a plaintiff 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
the covered employer; and (3) the employer failed to make “reasonable
accommodations” for such known limitations.3
       The district court found that Feist is a qualified individual with a
disability and that the disability was known by the employer, and the parties do
not dispute these findings. Consequently, the sole question on appeal is whether
the district court applied the correct legal standard in determining whether
Feist’s proposed accommodation was reasonable. The court held that Feist could
not show the proposal reasonable because she “[did] not allege or demonstrate
that the parking situation limited her ability to perform the essential functions
of her job.”      The LDOJ urges this Court to affirm the district court’s
interpretation. Feist, however, points out that reasonable accommodations are


       3
         This specific three-part formulation has not been set out by the Fifth Circuit, but
similar elements are present across cases. See, e.g., Griffin v. UPS, 661 F.3d 216, 222 (5th Cir.
2011); Mzyk v. N. E. Indep. Sch. Dist., 397 F. App’x 13, 16 n.3 (5th Cir. 2010); see also Wilson
v. Dollar Gen. Corp., 717 F.3d 337, 335 (4th Cir. 2013); Cloe v. City of Indianapolis, 712 F.3d
1171, 1176 (7th Cir. 2013).

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not restricted to modifications that enable performance of essential job functions.
The language of the ADA, and all available interpretive authority, indicate that
Feist is correct.
      Under the ADA, a reasonable accommodation may include:
      (A) making existing facilities used by employees readily accessible
      to and usable by individuals with disabilities; and

      (B) job restructuring, part-time or modified work schedules,
      reassignment to a vacant position, acquisition or modification of
      equipment or devices, appropriate adjustment or modifications of
      examinations, training materials or policies, the provision of
      qualified readers or interpreters, and other similar accommodations
      for individuals with disabilities.

42 U.S.C. § 12111(9). The text thus gives no indication that an accommodation
must facilitate the essential functions of one’s position. Moreover, the requested
reserved on-site parking would presumably have made her workplace “readily
accessible to and usable” by her, and therefore might have been a potentially
reasonable accommodation pursuant to § 12111(9)(A).
      The ADA’s implementing regulations also indicate that reasonable
accommodation need not relate to the performance of essential job functions.
Indeed, the regulations suggest the contrary by defining reasonable
accommodation as:
      (I) Modifications or adjustments to a job application process that
      enable a qualified applicant with a disability to be considered for the
      position such qualified applicant desires; or

      (ii) Modifications or adjustments to the work environment . . . that
      enable an individual with a disability who is qualified to perform the
      essential functions of that position; or

      (iii) Modifications or adjustments that enable a covered entity’s
      employee with a disability to enjoy equal benefits and privileges of


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        employment as are enjoyed by its other similarly situated employees
        without disabilities.

29 C.F.R. § 1630.2(o)(1) (emphasis added). Thus, a modification that enables an
individual to perform the essential functions of a position is only one of three
categories of reasonable accommodation.4 Moreover, EEOC guidance explicitly
provides that “providing reserved parking spaces” may constitute reasonable
accommodation under some circumstances. 29 C.F.R. pt. 1630 App., § 1630.2(o).
        In arriving at its conclusion, the district court cited a decision in which we
stated that “the existence vel non of a disability or impairment is material to a
reasonable accommodation claim only insofar as it limits an employee’s ability
to perform his or her job.” Burch v. Coca-Cola Co., 119 F.3d 305, 315 (5th Cir.
1997). However, Burch is inapposite because the question there was whether the
plaintiff was a “qualified individual with a disability,” which is not in dispute
here.
        Therefore, because the district court erred in requiring a nexus between the
requested accommodation and the essential functions of Feist’s position, we
vacate the judgment and remand for further proceedings not inconsistent with
this opinion. We express no opinion as to whether the proposed accommodation
was reasonable, and we respectfully decline appellee’s invitation to consider
alternate grounds for affirming summary judgment on Feist’s discrimination
claim.



        4
         LDOJ urges this Court to simply ignore these regulations, arguing that the
regulations are not entitled to deference under Chevron U.S.A., Inc. v. Natural Resources
Defense Council, 467 U.S. 837 (1984). The assertion, however, is inconsequential because
LDOJ offers no statutory argument as to why a reasonable accommodation must facilitate an
essential job function. See Chevron, 467 U.S. at 843 (holding that courts should reach agency
interpretation only if statute is silent or ambiguous); Waldrip v. Gen. Elec. Co., 325 F.3d 652,
655 n.1 (5th Cir. 2003) (suggesting that EEOC regulations interpreting §§ 12111 and 12112
of the ADA are entitled to Chevron deference).

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      III. Retaliation
      To establish a prima facie case of retaliation under the ADA or Title VII,
a plaintiff must show that (1) she participated in an activity protected under the
statute; (2) her employer took an adverse employment action against her; and (3)
a causal connection exists between the protected activity and the adverse action.
McCoy v. City of Shreveport, 492 F.3d 551, 556–57 (5th Cir. 2007) (Title VII);
Seaman v. CSPH, Inc., 179 F.3d 297, 301 (5th Cir. 1999) (ADA). “If the employee
establishes a prima facie case, the burden shifts to the employer to state a
legitimate, non-retaliatory reason for its decision. After the employer states its
reason, the burden shifts back to the employee to demonstrate that the
employer’s reason is actually a pretext for retaliation,” LeMaire v. Louisiana, 480
F.3d 383, 388–89 (5th Cir. 2007) (internal citation omitted), which the employee
accomplishes by showing that the adverse action would not have occurred “but
for” the employer’s retaliatory motive, Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133
S. Ct. 2517, 2533 (2013) (Title VII); Seaman, 179 F.3d at 301 (ADA). In order to
avoid summary judgment, the plaintiff must show “a conflict in substantial
evidence” on the question of whether the employer would not have taken the
action “but for” the protected activity. Long v. Eastfield College, 88 F.3d 300, 308
(5th Cir. 1996) (internal quotation marks omitted).
      It is uncontested that Feist established the first two elements of her prima
facie case. She participated in a protected activity when she filed complaints
with the EEOC, and the dismissal constitutes an adverse action. The question
before this Court is whether there is any evidence of the third element, a causal
connection between the activity and the adverse action.
      A plaintiff alleging retaliation may satisfy the causal connection element
by showing “[c]lose timing between an employee’s protected activity and an
adverse action against him.” McCoy, 492 F.3d at 562. Such temporal proximity

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must generally be “very close.” Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268,
273–74 (2001). This Court has found, for example, that “a time lapse of up to four
months” may be sufficiently close, Evans v. Houston, 246 F.3d 344, 354 (5th Cir.
2001), while a five month lapse is not close enough without other evidence of
retaliation, Raggs v. Miss. Power & Light Co., 278 F.3d 463, 472 (5th Cir. 2002).
Such evidence may include an employment record that does not support
dismissal, or an employer’s departure from typical policies and procedures. See
Schroeder v. Greater New Orleans Fed. Credit Union, 664 F.3d 1016, 1024 (5th
Cir. 2011).
      The district court dismissed Feist’s retaliation claim because it found that,
other than temporal proximity of five months, she had not offered any evidence
of a causal link between the protected activity and the adverse action. LDOJ
offered a non-retaliatory justification for the dismissal, describing Feist’s
substandard work on two cases. In one case, Feist apparently failed to disclose
information that would have helped facilitate a settlement. In another, Feist
failed to timely oppose a motion for summary judgment, causing the presiding
judge to enter a $500,000 judgment against LDOJ. Based on this evidence, LDOJ
has satisfied its burden of showing a legitimate, non-retaliatory reason for
terminating Feist. See Medina v. Ramsey Steel Co., 238 F.3d 674, 684–85 (5th
Cir. 2001) (noting that evidence of poor work performance satisfies burden).
      In order to survive summary judgment, then, Feist must show that LDOJ’s
proffered explanation is pretextual. In attempting to do so, Feist claims that (1)
she was terminated only two weeks after a state legislative hearing in which her
boss, the Louisiana Attorney General, was purportedly embarrassed when
questioned about Feist’s claim; (2) her record of good performance does not
support dismissal; and (3) LDOJ deviated from standard practice by dismissing
her when a colleague had a longer record of allegedly more serious mistakes.

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      Yet a review of the record suggests that Feist has mischaracterized the
pertinent facts. The transcript of the hearing indicates that the questioner was
not critical of Feist’s boss, but rather was confused by and even skeptical of
Feist’s claim. There is no indication that her boss was embarrassed by the line
of questioning. And with respect to Feist’s colleague who had also mishandled
cases, the record indicates that he—just like Feist—was dismissed due to the
poor performance.    Thus, Feist’s reference to her colleague’s case actually
weakens Feist’s claim by demonstrating LDOJ’s consistent response to
substandard performance. Cf. Long, 88 F.3d at 308–9 (holding that positive
performance reviews, coupled with evidence that no other employee had been
terminated for employer’s stated reason, were sufficient to overcome summary
judgment).
      So while Feist may dispute the egregiousness of her errors at work, she
offers no evidence that LDOJ would not have terminated another employee for
the same mistakes. Therefore, because LDOJ has offered a non-retaliatory
explanation for Feist’s dismissal, and because Feist has presented no evidence of
pretext, the summary judgment dismissing the retaliation claim is affirmed.
      IV. Conclusion
      For the reasons stated herein, the judgment of the district court is
AFFIRMED IN PART AND VACATED AND REMANDED IN PART.




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