     Case: 13-60703   Document: 00512866071       Page: 1   Date Filed: 12/11/2014




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                   No. 13-60703                  United States Court of Appeals
                                                                          Fifth Circuit

                                                                        FILED
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,                         December 11, 2014
                                                                   Lyle W. Cayce
             Plaintiff–Appellant                                        Clerk

v.

LHC GROUP, INCORPORATED, doing business as Gulf Coast Homecare,

             Defendant–Appellee




                Appeal from the United States District Court
                  for the Southern District of Mississippi


Before BENAVIDES, PRADO and GRAVES, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:
      Plaintiff–Appellant the Equal Employment Opportunity Commission
(EEOC) brought an enforcement action under the Americans with Disabilities
Act (ADA) on behalf of Kristy Sones against her employer, Defendant–
Appellant LHC Group, Inc., (LHC). Sones worked as a nurse for the home-
health company until she was fired shortly after she had an epileptic seizure
in May 2009. The district court granted summary judgment for LHC. We affirm
in part and reverse in part.
                               I. BACKGROUND
      LHC hired Kristy Sones, a registered nurse, to work as a Field Nurse in
Picayune, Mississippi in 2006. Field Nurses provide home health care to
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                                   No. 13-60703
patients: Sones estimated that she spent “probably a couple hours” traveling
to see six to eight patients every day.
      In March of 2009, Jennifer Taggard, then-Branch Manager at LHC’s
Picayune facility and Sones’s immediate supervisor, decided to promote Sones
to a Team Leader position. The parties dispute whether Sones had been
promoted or merely was being cross-trained at the time of her termination.
Team Leaders manage patient care, schedule field nurses, fill in when nurses
are absent, and communicate with patients’ doctors and pharmacists.
      On May 26, 2009, Sones had a grand mal seizure at work. An ambulance
took her to a local hospital and she was released to return to work two days
later by her treating physician.
      Five days later, on June 1, Sones stopped by LHC’s office to discuss her
medical condition with Taggard and Thressa Guchereau, Director of Nursing
for LHC’s Picayune facility. Taggard and Guchereau gave Sones a copy of
LHC’s Team Leader job description and requested a release from Sones’s
neurologist. Dr. Michael Mitchell reviewed the description, marked it with
“. . . no driving x 1 year, no working on ladder,” and released Sones for work.
Sones discussed her limitations with Taggard and Guchereau, and the three
established that Sones would get rides to work from her coworker and next-
door neighbor.
      When Sones returned to work the following week, she asked Taggard for
“extra help” with the computer-related requirements of her job, including
remembering her passwords and using the scheduling software. Sones’s new
antiseizure medications left her feeling “very tired” and struggling with
memory. Sones testified that Taggard responded to her request for help by
simply walking away. On Sunday, June 7, Sones worked a shift as a Field
Nurse. With Guchereau’s approval, Sones’s mother drove Sones to several
patient homes.
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                                   No. 13-60703
      Testimony suggests that over the following week Sones continued to
struggle with several of her duties as Team Leader. Taggard conducted weekly
meetings with Sones to “give her some feedback and allow her to ask questions”
regarding her Team Leader duties. The record contains conflicting evidence as
to the degree of Sones’s difficulties and whether Sones was aware of her
shortcomings.
      On Friday, June 19, Taggard and Guchereau met with Sones to discuss
her performance. Management brought several problems to Sones’s attention
including her subpar computer skills, errors she made while working with
patients in the field, and communication and scheduling problems. Taggard
and Guchereau set a “target date” of July 31 for Sones to “master” these Team
Leader duties. According to Sones’s EEOC charge, that same Friday Taggard
told Sones that “if [her] disability manifested again while [Sones] was on the
job, [LHC] would be in trouble.”
      The following Monday, Sones missed work without prior approval to take
her child to a doctor’s appointment. LHC also received a complaint from a
patient who requested that Sones not be sent back to her home. LHC decided
to terminate Sones.
      On Wednesday, June 24, LHC’s Human Resources Representative,
Lolanda Brown, terminated Sones over the telephone. According to Sones’s
deposition testimony, Brown said nothing about Sones’s performance problems
or driving restriction but rather stated: “We’re going [to] have to let you go,
because you’re a liability to our company.”
      The EEOC filed an enforcement action under Title I of the ADA, 42
U.S.C. §§ 12101–12213, in September 2011. The EEOC alleged that LHC failed
to accommodate Sones and discriminated against her on the basis of her
disability.


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                                  No. 13-60703
      LHC moved for summary judgment on all claims, and the district court
granted its motion. The district court concluded that the EEOC failed to
establish a prima facie case of discriminatory discharge because it could not
show that Sones was qualified to serve as a Field Nurse or a Team Leader.
Next, it found that even if Sones had made a prima facie case of disability
discrimination, LHC offered a legitimate reason for terminating Sones that the
EEOC could not prove was pretextual. Finally, the district court concluded
that, because Sones could not prove she was qualified for either position, the
EEOC failed to make a prima facie case of failure to accommodate. This appeal
follows.
                            II.     DISCUSSION
      This case is a public enforcement action under 42 U.S.C. § 2000e-5(f)(1)
of the Americans with Disabilities Act. The district court had subject matter
jurisdiction under 28 U.S.C. §§ 1331, 1343(a)(4), and 1345. This Court has
jurisdiction to review the district court’s grant of summary judgment under 28
U.S.C. § 1291.
A.    Standard of Review
      We review de novo a district court’s grant of summary judgment, viewing
“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).
We apply the same standard as the district court in the first instance. Turner
v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007).
      Summary judgment is appropriate if “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). A genuine dispute of material fact
exists when the “‘evidence is such that a reasonable jury could return a verdict
for the nonmoving party.’” Royal v. CCC & R Tres Arboles, L.L.C., 736 F.3d
396, 400 (5th Cir. 2013) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
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                                  No. 13-60703
248 (1986)). “[A] party seeking summary judgment always bears the initial
responsibility of informing the district court of the basis for its motion, and
identifying those portions of [the record] which it believes demonstrate the
absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). If the moving party succeeds, the onus shifts to “the
nonmoving party to go beyond the pleadings and by her own affidavits, or by
the ‘depositions, answers to interrogatories, and admissions on file,’ designate
‘specific facts showing that there is a genuine issue for trial.’” Id. at 324. The
court must “draw all reasonable inferences in favor of the nonmoving party”
and “refrain from making credibility determinations or weighing the evidence.”
Turner, 476 F.3d at 343 (citation and internal quotation marks omitted).
B.    Discriminatory Termination
      The ADA prohibits an employer from discriminating against a “qualified
individual with a disability on the basis of that disability.” 42 U.S.C.
§ 12112(a). In a discriminatory-termination action under the ADA, the
employee may either present direct evidence that she was discriminated
against because of her disability or alternatively proceed under the burden-
shifting analysis first articulated in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973), a Title VII case. Neely v. PSEG Tex., Ltd. P’ship, 735 F.3d 242,
245 (5th Cir. 2013). This analysis first requires the EEOC to establish a prima
facie case of discrimination. See E.E.O.C. v. Chevron Phillips Chem. Co., 570
F.3d 606, 615 (5th Cir. 2009). If the EEOC is successful, then LHC must
articulate a legitimate, nondiscriminatory reason for terminating Sones. See
id. Finally, the burden shifts back to the EEOC to show that LHC’s proffered
reason is pretextual. See id.
      In the Rule 56 context, a prima facie case of discrimination plus a
showing that the proffered reason is pretextual is typically enough to survive
summary judgment. Cf. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
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133, 146–48, 150 (2000) (reaching a similar conclusion in the Rule 50 context,
which “mirrors” the standard for summary judgment).
      1.     Prima Facie Discrimination
             a.     Applicable Law
      The parties to this action disagree over the elements necessary to
establish a prima facie case of discrimination. Their disagreement identifies a
discrepancy in the Fifth Circuit’s cases evaluating the requisite nexus between
an employee’s disability and her termination. 1
      Our case law consistently requires the claimant to prove (1) she has a
disability and (2) she is qualified for the job she held. Compare Zenor v. El Paso
Healthcare Sys., Ltd., 176 F.3d 847, 853 (5th Cir. 1999), with Burch v. Coca–
Cola Co., 119 F.3d 305, 320 (5th Cir. 1997). The cases then splinter into three
distinct lines regarding causal nexus. One line of cases requires the employee
to prove “(3) that he was subject to an adverse employment decision on account
of his disability.” Zenor, 176 F.3d at 853 (citing, inter alia, Robertson v.
Neuromedical Ctr., 161 F.3d 292, 294 (5th Cir. 1998) (per curiam), and
Robinson v. Global Marine Drilling Co., 101 F.3d 35, 36 (5th Cir. 1996)); see
also Chiari v. City of League City, 920 F.3d 311 (5th Cir. 1991) (interpreting
the Rehabilitation Act of 1973, 29 U.S.C.A. § 794(a), the ADA’s predecessor). A
second line of cases requires the employee to prove “(3) he or she was subject
to an adverse employment action; and (4) he or she was replaced by a non-
disabled person or was treated less favorably than non-disabled employees.”
Burch, 119 F.3d at 320 (citing Daigle v. Liberty Life Ins. Co., 70 F.3d 394, 396
(5th Cir. 1995)). A third line in essence requires an employee to prove nexus
twice, asking her to show “[3] she was subjected to an adverse employment


      1 In Burch v. Coca–Cola Co., this Court noted the discrepancy but did not reach the
question of which formulation was proper. 119 F.3d 305, 321 (5th Cir. 1997). We held that
the employee failed to establish that he suffered from a disability.
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                                      No. 13-60703
action on account of her disability or the perception of her disability, and
[4] she was replaced by or treated less favorably than non-disabled employees.”
Chevron Phillips, 570 F.3d at 615 (citing McInnis v. Alamo Cmty. Coll. Dist.,
207 F.3d 276, 279 (5th Cir. 2000)).
       We apply the first formulation, articulated in Zenor, for four reasons.
First, the Zenor formulation was first used in the disability-discrimination
context in Chiari, a 1991 case. 920 F.2d at 315. By contrast, the Burch
formulation was first used in the disability-discrimination context in Daigle, a
1995 case. See 70 F.3d at 396. 2 Following this Court’s rule of orderliness,
subsequent panels were and are bound by Chiari. See Jacobs v. Nat’l Drug
Intelligence Ctr., 548 F.3d 375, 378 (5th Cir. 2008) (“It is a well-settled Fifth
Circuit rule of orderliness that one panel of our court may not overturn another
panel’s decision, absent an intervening change in the law, such as by a
statutory amendment, or the Supreme Court, or our en banc court.” (internal
citations omitted)).
       Second, Burch’s requirement that a plaintiff prove she was replaced by
or treated less favorably than non-disabled employees was likely imported
from McDonnell Douglas—a case focused on discriminatory hiring, not
termination. There, the Supreme Court required a plaintiff alleging racially
discriminatory hiring practices to prove
       (i) that he belongs to a racial minority; (ii) that he applied and was
       qualified for a job for which the employer was seeking applicants;
       (iii) that, despite his qualifications, he was rejected; and (iv) that,
       after his rejection, the position remained open and the employer
       continued to seek applicants from persons of complainant’s
       qualifications.



       2Daigle without explanation imported this element from two non-ADA Title VII cases,
Norris v. Hartmax Specialty Stores, Inc., 913 F.2d 253, 254 (5th Cir. 1990), and E.E.O.C. v.
Brown & Root Inc., 688 F.2d 338, 340–41 (5th Cir. 1982).
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                                       No. 13-60703
411 U.S. at 802 (footnote omitted). In the McDonnell Douglas context, where
the employer and the applicant have only a handful of interactions before the
allegedly discriminatory hiring decision is made, the subsequent history of the
open position is highly relevant to a finding of discrimination. By contrast,
where termination is at issue, plaintiffs may draw on their employment history
to prove a nexus between their protected trait and their termination.
Therefore, rather than articulating the standard for a prima facie
discriminatory-discharge claim, the Burch line is best understood as providing
one possible way to prove nexus between the employee’s disability and her
termination.
       Third, although the Supreme Court has not weighed in on the matter,
the other circuits have overwhelmingly required plaintiffs to prove their
termination was because of their disability rather than provide evidence of
disfavored treatment or replacement. 3 The Zenor formulation is in step with
our sister Circuits.


       3  See, e.g., Demyanovich v. Cadon Plating & Coatings, L.L.C., 747 F.3d 419, 433 (6th
Cir. 2014) (“[P]laintiff must show that (1) he is disabled, (2) he is otherwise qualified to
perform the essential functions of a position, with or without accommodation, and (3) he
suffered an adverse employment action because of his disability.”); Smothers v. Solvay
Chems., Inc., 740 F.3d 530, 544 (10th Cir. 2014) (requiring “evidence that (1) [Plaintiff] is
disabled within the meaning of the ADA; (2) he is qualified to perform the essential functions
of his job with or without accommodations; and (3) he was terminated ‘under circumstances
which give rise to an inference that the termination was based on [his] disability’” (citations
omitted)); Spurling v. C & M Fine Pack, Inc., 739 F.3d 1055, 1060 (7th Cir. 2014) (plaintiff
must show that: “(1) she is disabled within the meaning of the ADA, (2) she is qualified to
perform the essential functions of her job either with or without reasonable accommodation,
and (3) she has suffered from an adverse employment decision because of her disability.”
(citation and internal quotation marks omitted)); McMillan v. City of New York, 711 F.3d
120, 125 (2d Cir. 2013) (“[P]laintiff must show by a preponderance of the evidence that: (1)
his employer is subject to the ADA; (2) he was disabled within the meaning of the ADA; (3)
he was otherwise qualified to perform the essential functions of his job, with or without
reasonable accommodation; and (4) he suffered adverse employment action because of his
disability.” (citation omitted)); Jones v. Nationwide Life Ins. Co., 696 F.3d 78, 87 (1st Cir.
2012) (“[P]laintiff must show that he (1) is disabled within the meaning of the ADA; (2) is
qualified to perform the essential functions of his job with or without a reasonable
accommodation; and (3) was discharged or otherwise adversely affected in whole or in part
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                                        No. 13-60703
       Finally, we decline to apply the third formulation, articulated in Chevron
Phillips, 570 F.3d at 615, for the additional reason that it requires plaintiffs to
prove causation twice. This requirement is inconsistent with McDonnell
Douglas and at odds with the underlying purpose of anti-discrimination
legislation—namely, to remove “artificial, arbitrary, and unnecessary barriers
to employment when the barriers operate invidiously to discriminate on the
basis of racial or other impermissible classification.” McDonnell Douglas, 411
U.S. at 801 (quoting Griggs v. Duke Power Co., 401 U.S. 424, 430–31 (1971));
accord Burch, 119 F.3d at 313 (noting that the ADA is “designed to remove
barriers which prevent qualified individuals with disabilities from enjoying the
same employment opportunities that are available to persons without
disabilities” (citations and internal quotation marks omitted)).
       We therefore follow the Zenor line of cases. “To establish a prima facie
discrimination       claim      under     the       ADA,    a    plaintiff     must      prove:
(1) that he has a disability; (2) that he was qualified for the job; [and] (3) that
he was subject to an adverse employment decision on account of his disability.”
176 F.3d at 853.
       Because here the first element is uncontested for purposes of summary
judgment, we turn to Sones’s qualifications for employment.
              b.      Qualification
       To avoid summary judgment, the EEOC must show that either (1) Sones
could “perform the essential functions of the job in spite of [her] disability,” or,
if she could not, (2) that “a reasonable accommodation of [her] disability would



because of his disability.” (footnote omitted)); Reynolds v. Am. Nat’l Red Cross, 701 F.3d 143,
150 (4th Cir. 2012) (requiring “demonstrate[ion] that (1) [plaintiff] ‘was a qualified individual
with a disability’; (2) he ‘was discharged’; (3) he ‘was fulfilling h[is] employer’s legitimate
expectations at the time of discharge’; and (4) ‘the circumstances of h[is] discharge raise a
reasonable inference of unlawful discrimination.’”(alterations in original) (quoting Rohan v.
Networks Presentations LLC, 375 F.3d 266, 273 n.9 (4th Cir. 2004)).
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                                  No. 13-60703
have enabled [her] to perform the essential functions of the job.” Turco v.
Hoechst Celanese Corp., 101 F.3d 1090, 1093 (5th Cir. 1996) (per curiam)
(citing the ADA, 42 U.S.C. § 12111(8), which defines “qualified individual” as
“an individual who, with or without reasonable accommodation, can perform
the essential functions of the employment position . . .”).
      A function is “essential” if it bears “more than a marginal relationship”
to the employee’s job. Chandler v. City of Dall., 2 F.3d 1385, 1393 (5th Cir.
1993), holding modified on other grounds as discussed in Kapche v. City of San
Antonio, 304 F.3d 493 (5th Cir. 2002) (per curiam). The ADA defines
“reasonable accommodations” to include
      job restructuring, part-time or modified work schedules, reassignment to
      a vacant position, acquisition or modification of equipment or devices,
      appropriate adjustment or modifications of examinations, training
      materials or policies, the provision of qualified readers or interpreters,
      and other similar accommodations for individuals with disabilities.
42 U.S.C. § 12111(9)(B).
      The district court concluded that the EEOC failed to make a prima facie
case that Sones was a “qualified individual.” We agree with the district court
that driving was an essential function of the Field Nurse position and that
LHC could have provided no reasonable accommodation. However, we find that
there are genuine disputes as to (1) whether driving was an essential function
of the Team Leader position; (2) if so, whether LHC reasonably could have
accommodated Sones’s inability to drive in the Team Leader role; and (3)
whether LHC reasonably could have accommodated Sones’s difficulty with the
essential computer-related and communications duties of a Team Leader.
Finally, the parties dispute whether Sones was a Team Leader or a Field Nurse
when she was terminated. Because Sones may have been qualified for the
former position but not the latter, this dispute is material.



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                  i.     Driving
      LHC contends that driving is an essential function of both positions.
Courts owe deference to an employer’s position description: “consideration
shall be given to the employer’s judgment as to what functions of a job are
essential, and if an employer has prepared a written description before
advertising or interviewing applicants for the job, this description shall be
considered evidence of the essential functions of the job.” 42 U.S.C. § 12111(8).
But this deference is not absolute:
      The inquiry into whether a particular function is essential initially
      focuses on whether the employer actually requires employees in the
      position to perform the functions that the employer asserts are
      essential. For example, an employer may state that typing is an
      essential function of a position. If, in fact, the employer has never
      required any employee in that particular position to type, this will be
      evidence that typing is not actually an essential function of the
      position.
Interpretive Guidance on Title I of the Americans With Disabilities Act, 29
C.F.R. pt. 1630, app. § 1630.2(n) (emphasis added). Fact-finders must
determine whether a function is “essential” on a case-by-case basis. Id.
      LHC requires that Team Leaders and Field Nurses have a “[c]urrent
Driver’s License and vehicle insurance, and access to a dependable vehicle.”
The position descriptions also emphasize that “[s]ignificant portions (more
than 50%) of daily assignments require travel to client/resident/patient
locations or other work sites, via car or public transportation.” Sones estimated
that as a Field Nurse she spent “probably a couple hours” of her eight-hour day
driving to patient homes. However, contrary to the written position
description, Team Leaders in practice drove far less frequently than did Field
Nurses. Statements in Guchereau’s deposition qualify the driving requirement
in the position description: many Team Leader tasks were performed in the
branch office.

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                                 No. 13-60703
      Both LHC’s position description and Sones’s testimony confirm that
Field Nurses are expected to spend large portions of their day driving.
Therefore, the district court correctly concluded that as a matter of law driving
is an essential function of that job. But because the record contains evidence
that traveling was not as prominent a part of a Team Leader’s duties as the
position description suggests, taking all reasonable inferences in favor of the
EEOC, there is a genuine dispute of material fact as to whether driving was
an essential function of that position.
      LHC next contends that it would have been impossible to reasonably
accommodate Sones’s inability to drive in either role. The ADA requires
employers to make “[m]odifications or adjustments to the work environment,
or to the manner or circumstances under which the position held or desired is
customarily performed, that enable a qualified individual with a disability to
perform the essential functions of that position . . . .” 29 C.F.R.
§ 1630.2(o)(1)(ii). However, “[t]he ADA does not require an employer to relieve
an employee of any essential functions of his or her job, modify those duties,
reassign existing employees to perform those jobs, or hire new employees to do
so.” Burch v. City of Nacogdoches, 174 F.3d 615, 621 (5th Cir. 1999) (holding
employer was not required to accommodate firefighter who could not fight
fires); see also Barber v. Nabors Drilling U.S.A., Inc., 130 F.3d 702, 709 (5th
Cir. 1997) (“We cannot say that [an employee] can perform the essential
functions of the job with reasonable accommodation, if the only successful
accommodation is for [the employee] not to perform those essential functions.”).
      On the summary-judgment record, we cannot say that a reasonable
accommodation would have permitted Sones to complete an essential function
that occupied “a couple hours” of a Field Nurse’s typical day. The EEOC argues
that reasonable accommodations were available: Guchereau permitted Sones
to receive rides to six patient calls from her mother on one occasion and
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                                     No. 13-60703
Picayune may have had a handful of public transportation options, including
van services. 4 But the EEOC has not offered prima facie evidence that any of
these potential accommodations was a feasible daily solution. Because driving
is such a central part of the Field Nurse position, the district court properly
concluded that LHC could not have reasonably accommodated Sones’s
restriction: Sones was not qualified to work as a Field Nurse.
       We reach a different conclusion regarding the Team Leader position.
Even if driving were an essential function of a Team Leader, Sones might have
carried out the job with reasonable accommodation. Compare Molina v. DSI
Renal, Inc., 840 F. Supp. 2d 984, 1003 (W.D. Tex. 2012) (interpreting analogous
Texas statute and denying summary judgment when record contained no
evidence that providing the requested accommodation would cause employer
“undue hardship” and when the accommodation “would cause little to no
change in the current working arrangements and would not require scheduling
additional employees”), with Hammond v. Jacob Field Servs., 499 F. App’x 377,
382–38 (5th Cir. 2012) (per curiam) (affirming summary judgment when the
only available accommodation was to reassign employee tasks all typically
distributed among line operators), and Toronka v. Cont’l Airlines, Inc., 411 F.
App’x 719, 725 (5th Cir. 2011) (affirming summary judgment when the only
reasonable accommodation for an employee’s inability to drive was to assign
him to non-existent desk-based position). Guchereau’s deposition testimony
suggests that a taxi or van service might have enabled a Team Leader to
adequately discharge her duties, and LHC’s position description expressly



      4  In a footnote, LHC raised the possible concern that permitting Sones to use public
transportation would cause LHC to violate the Health Insurance Portability and
Accountability Act, 48 U.S.C. § 1985 (HIPAA). The parties mentioned this briefly at oral
argument. Because on appeal LHC raised the HIPAA argument only in a footnote, and
because the summary-judgment record contains no undisputed facts to support it, we decline
to consider the argument here.
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                                    No. 13-60703
states that travel can be accomplished “via car or public transportation.” This
evidence raises a genuine dispute as to whether Sones’s proposed
accommodations were the kind of “job restructuring” the ADA envisions. See
42 U.S.C. § 12111(9)(B).
      Finally, LHC failed to engage in the ADA-mandated process to consider
reasonable accommodations. “Under the ADA, once the employee presents a
request for an accommodation, the employer is required to engage in [an]
interactive process so that together they can determine what reasonable
accommodations might be available.” Chevron Phillips, 570 F.3d at 622. Given
the relative infrequency with which she would have been required to drive,
Sones’s proposed solutions were not so unreasonable that they absolved LHC
of its statutory duty to at least discuss accommodation.
      Therefore, while the district court properly concluded that the EEOC did
not meet its prima facie summary-judgment burden to show Sones was
qualified to serve as a Field Nurse, it erred in reaching the same conclusion
regarding the Team Leader position. The disputed question of which position
Sones actually held is material, precluding summary judgment on
qualification.
                    ii.     Administrative Duties
      The EEOC carried its prima facie summary-judgment burden to show
Sones was qualified to perform the computer-related tasks of a Team Leader.
As an initial matter, LHC and the EEOC debate the extent to which Sones’s
disability precluded her from performing these essential functions. LHC points
to notes from a meeting between Sones, Guchereau, and Taggard itemizing
Sones’s errors 5 and to deposition transcripts highlighting Sones’s inability to



      5  These include failures to schedule appropriate patient care, rude communication
with field staff, disorganization, inability to answer questions, and clerical mistakes.
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                               No. 13-60703
type, use a computer, and remember passwords. LHC argues that Sones was
unable to perform even the most basic computer-related functions of the Team
Leader position, and that her difficulties predated her seizure. The EEOC
concedes that Sones struggled, but it contests LHC’s assertion that her
difficulties predated her seizure. Sones may not have been aware of these
criticisms, as she had not yet had a performance review as Team Leader.
Finally, Sones contends that her limitations were largely due to an unusually
high dosage of anti-seizure medication, which Sones was in the process of
tapering.
     If Sones was indeed unable to perform her essential computer-based
tasks, then LHC had a duty to work with her toward a reasonable
accommodation. As noted, “once the employee presents a request for an
accommodation, the employer is required to engage in [an] interactive process
so that together they can determine what reasonable accommodations might
be available.” Chevron Phillips, 570 F.3d at 622. In Chevron Phillips, this
Court considered an accommodations dispute in which the employee
“attempted to discuss the terms of her release with [her employer] to clarify
her needs, but [the employer] refused.” Id. at 622. We reversed summary
judgment, concluding that a reasonable jury could find that the employer “did
not attempt to entertain the requested accommodation.” Id.
     The same is true here. Sones expressly reached out to her supervisors,
indicating that she wanted temporary help using computer programs and
remembering her passwords in light of her high medication levels. Faced with
Sones’s request for “extra help,” Taggard, her supervisor, kept silent and
walked away. On this record, a reasonable jury could find that Sones reached
out to LHC for accommodation and was denied an interactive process. Because
the EEOC has identified a genuine dispute of material fact regarding whether


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                                  No. 13-60703
LHC satisfied its duty to accommodate Sones’s disability, the district court
erred in granting summary judgment on this issue.
            c.    Nexus
      The EEOC sustained its summary-judgment burden to show that Sones
“was subject to an adverse employment decision on account of [her] disability.”
See Zenor, 176 F.3d at 853. It is undisputed that Sones suffered an adverse
employment action—namely, termination. See 42 U.S.C. § 12112(a) (“No
covered entity shall discriminate against a qualified individual on the basis of
disability in regard to . . . discharge of employees . . . .”). To show nexus, the
EEOC highlights that Sones’s supervisors criticized her performance only after
her seizure and that these criticisms were “exaggerated, unfounded, or
fabricated.” It also points to Taggard’s comment, “We’re going [to] have to let
you go because you’re a liability to our company.” Similar statements appear
in Sones’s EEOC charge: “Taggard told me that if my disability manifested
again while I was on the job, [LHC] would be in trouble,” and “[Brown] told me
that I was terminated because I have become a liability to [LHC] because of
my disability.”
      We must first decide a threshold evidentiary question. The district court
ruled the statements in Sones’s charge were not competent summary-
judgment evidence because they are “presumed to be inadmissible hearsay,” It
relied on persuasive authority from two district courts, Stolarczyk ex rel. Estate
of Stolarczyk v. Senator Int’l Freight Forwarding, LLC, 376 F. Supp. 2d 834,
842 (N.D. Ill. 2005) and Thompson v. Origin Tech. Bus., Inc., No. 3:99-CV-2077-
L, 2001 WL 1018748 at *8 (N.D. Tex. Aug. 20, 2001). We disagree. First, these
two cases are inapposite. In Stolarczyk, the court found inapplicable the
residual exception to hearsay, Federal Rule of Evidence 807. 376 F. Supp. 2d
at 841–42. In Thompson, the out-of-court statement in question did not qualify
as a non-hearsay admission of a party–opponent under Federal Rule of
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                                  No. 13-60703
Evidence 801(d)(2). 2001 WL 1018748, at *8. Neither decision rested on the
fact of the EEOC charge.
      Second, it is true that courts are often reluctant to credit evidence in
EEOC charges, grievances, and claims—fearing that the documents are
“inherently unreliable because the charge is drafted in anticipation of
litigation.” Walker v. Fairfield Resorts, Inc., No. 3:05-0153, 2006 WL 724555,
at *8 (M.D. Tenn. Mar. 21, 2006); see also Tulloss v. Near N. Montessori Sch.,
Inc., 776 F.2d 150, 154 (7th Cir. 1985). On summary judgment, however, courts
are precluded from weighing credibility. The EEOC charge is competent for
use at summary judgment unless it is inadmissible under the Federal Rules of
Evidence or fails to comport with Federal Rule of Civil Procedure 56(c)’s
requirements. See Huckabay v. Moore, 142 F.3d 233, 240 & n.6 (5th Cir. 1998);
Alvarado v. Shipley Donut Flour & Supply Co., 526 F. Supp. 2d 746, 764 (S.D.
Tex. 2007).
      Here, although the statements contained in the EEOC charge suffer from
two layers of potential hearsay infirmities, they fit comfortably within two
hearsay exemptions. First, the statements in Sones’s charge were made by
LHC employees speaking on behalf of the company; they are therefore not
hearsay under Federal Rule of Evidence 801(d)(2). Second, Sones’s charge
repeating the statement is not hearsay because it is not being offered for the
truth of the matter asserted, i.e., for the proposition that Sones was in fact a
liability. See Fed. R. Evid. 801(c)(2). Finally, Sones reproduced the statements
in a signed, verified document based on her personal knowledge of the
conversation, in accordance with Rule 56(c). See Fed. R. Civ. P. 56(c)(4).
Therefore, the district court abused its discretion in ruling that the contents of
Sones’s EEOC charge were not competent evidence for summary judgment.
      When viewed in the light most favorable to the EEOC, the chronology of
the criticism Sones received and the comments her supervisors made as they
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                                 No. 13-60703
were letting her go raise a genuine dispute of material fact regarding whether
Sones was fired on account of her disability. The EEOC has provided enough
evidence to survive summary judgment on this point.
      2.    Legitimate Reason for Termination
      Because the EEOC has made a prima facie case of discriminatory
termination, the burden shifts to LHC to articulate a legitimate reason for its
actions. LHC argues that it “terminated Sones for poor performance and her
inability to perform the essential functions of her position.” Terminating an
employee whose performance is unsatisfactory according to management’s
business judgment is legitimate and nondiscriminatory as a matter of law. See
Walton v. Bisco Indus., Inc., 119 F.3d 368, 372–73 (5th Cir 1997) (per curiam);
Smith v. Rockwell Int’l Corp., 77 F.3d 473, 473 (5th Cir. 1995) (per curiam)
(unpublished) (“Rockwell offered a legitimate reason for placing Smith on
medical    layoff: Smith’s physicians     had    imposed permanent medical
restrictions on his activities that precluded him from performing the material
duties of his position.”). Therefore, the district court properly concluded that
LHC offered a legitimate, nondiscriminatory reason for terminating Sones.
      3.    Proffered Reason Pretextual
      Since LHC offered a legitimate reason for terminating Sones, the burden
of production shifts back to the EEOC. It must
      offer sufficient evidence to create a genuine issue of material fact
      either (1) that the defendant’s reason is not true, but is instead a
      pretext for discrimination (pretext alternative); or (2) that the
      defendant’s reason, while true, is only one of the reasons for its
      conduct, and another motivating factor is the plaintiff’s protected
      characteristic (mixed-motive[s] alternative).
Rachid v. Jack In The Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004) (citations
and internal quotation marks omitted); see also Evans v. Tex. Dep’t of Transp.,
547 F. Supp. 2d 626, 640 (E.D. Tex. 2007) (applying same analysis to cases
under ADA), aff’d, 273 F. App’x 391 (5th Cir. 2008) (per curiam). At summary
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                                 No. 13-60703
judgment, “[e]vidence demonstrating that the employer’s explanation is false
or unworthy of credence, taken together with the plaintiff’s prima facie case, is
likely to support an inference of discrimination even without further evidence
of defendant’s true motive.” Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir.
2003).
      The district court correctly concluded that the EEOC did not satisfy the
pretext alternative. Rather than disputing LHC’s claims regarding Sones’
alleged performance deficiencies, the EEOC argues that pretext can be inferred
from the fact that LHC failed to document Sones’ deficiencies until after her
seizure. However, as the district court observed, the record reflects that Sones
exhibited performance issues both before and after her seizure. Indeed, Sones
herself admitted that prior to her seizure she was having trouble with the
computer-related aspects of the Team Leader position. This evidence was
corroborated by the testimony of Sones’ supervisors as well as a colleague
assigned to train her, all of whom testified that Sones was exhibiting
performance issues prior to her seizure. Given this record, the EEOC failed to
rebut LHC’s evidence regarding Sones’ unsatisfactory performance and
therefore failed to demonstrate pretext.
      However, the EEOC’s failure to demonstrate pretext does not end the
inquiry. Under the ADA, “discrimination need not be the sole reason for the
adverse employment decision . . . [so long as it] actually play[s] a role in the
employer’s decision making process and ha[s] a determinative influence on the
outcome” See Pinkerton v. Spellings, 529 F.3d 513, 519 (5th Cir. 2008) (citation
and internal quotation marks omitted). For this reason, an employee who fails
to demonstrate pretext can still survive summary judgment by showing that
an employment decision was “based on a mixture of legitimate and illegitimate
motives . . . [and that] the illegitimate motive was a motivating factor in the


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                                   No. 13-60703
decision.” Machinchick v. PB Power, Inc., 398 F.3d 345, 355 (5th Cir. 2005)
(internal quotations omitted).
       Several portions of the record support the inference that discrimination
was a motivating factor in Sones’s termination. First, as noted, Sones reported
that Taggard said, “We’re going [to] have to let you go because you’re a liability
to our company.” The district court concluded that “[t]his statement is
consistent with LHC’s reasons for terminating Sones and is not evidence of
pretext”—i.e., Sones’s mistake in patient care exposed LHC to potential
liability. But as the EEOC rightly argues, the statement is also reasonably
consistent with LHC fearing that Sones would have another seizure on the job.
Because the district court was required to draw all reasonable inferences in
favor of the EEOC, Turner, 476 F.3d at 343, the court erred in disregarding the
statement as evidence of pretext. Further, the statements from Sones’s EEOC
charge discussed above— “Taggard told me that if my disability manifested
again while I was on the job, [LHC] would be in trouble,” and “[Brown] told me
that I was terminated because I have become a liability to [LHC] because of
my disability”—cast doubt on the validity of LHC’s purported reason for
Sones’s termination.
       Taken together, the EEOC’s prima facie case and Brown’s and Taggard’s
statements raise a genuine dispute of material fact as to whether Sones’s
disability was a motivating factor in her termination. See Laxton, 333 F.3d at
578. Summary judgment on the EEOC’s discriminatory-discharge claim was
therefore improper.
C.     Failure to Accommodate
       The EEOC abandoned its failure-to-accommodate claim on appeal. Cinel
v. Connick, 15 F.3d 1338, 1345 (5th Cir.1994) (“An appellant abandons all
issues not raised and argued in its initial brief on appeal.”). The     EEOC     did
not devote a section of its appellate brief specifically to this cause of action, nor
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                                       No. 13-60703
did it identify the claim in its statement of issues. Although it discussed
whether or not reasonable accommodations were available to LHC, the EEOC
did not specify that this line of inquiry pertained to its original failure-to-
accommodate claim rather than to the second prong of the discriminatory-
discharge action. The cases the EEOC relies on are all either discriminatory-
or retaliatory-discharge cases. 6
       Therefore, we affirm the district court’s grant of summary judgment on
the EEOC’s failure-to-accommodate claim.
                                   III.    CONCLUSION
       For the foregoing reasons, we AFFIRM summary judgment on the
EEOC’s failure-to-accommodate claim. We also affirm partial summary
judgment to the extent Sones was a Field Nurse, as she was not qualified for
that position. Because genuine disputes of material fact remain regarding
(1) whether Sones was promoted to Team Leader, (2) if so, whether LHC could
reasonably accommodate her disability, (3) whether LHC engaged in the
required interactive process to seek accommodation, and (4) whether Sones
was terminated on account of her disability, we REVERSE AND REMAND for
further proceedings consistent with this opinion.




       6  In making this determination, we note that although their methods of proof are
related, “[a] failure-to-accommodate claim under the ADA is distinct from a claim of disparate
treatment.” Windhauser v. Bd. of Supervisors for Louisiana State Univ. & Agric. & Mech.
Coll., 360 F. App’x 562, 565 (5th Cir. 2010). Indeed, Sones’s case is most properly brought as
a discriminatory-termination action. A failure-to-accommodate claim provides a mechanism
to combat workplace discrimination even when the employee in question has not suffered
adverse employment action. Cf. Bridges v. Dep’t of Soc. Servs., 254 F.3d 71, 71 (5th Cir. 2001)
(unpublished) (“Although Bridges has suffered no adverse employment action, she may still
raise a claim of discrimination based on the alleged failure reasonably to accommodate her
disability.”). Thus, although we affirm dismissal of the failure-to-accommodate claim on
abandonment grounds, issues regarding whether LHC could reasonably accommodate Sones’
disability and, if so, whether LHC engaged in the required interactive process, remain
relevant to the qualification element of the discriminatory-termination analysis.
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