     Case: 17-11083      Document: 00514669414         Page: 1    Date Filed: 10/04/2018




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

                                      No. 17-11083                              FILED
                                                                          October 4, 2018
                                                                           Lyle W. Cayce
JACQUELINE D. STOKES,                                                           Clerk

              Plaintiff - Appellant

v.

KIRSTJEN M. NIELSEN, SECRETARY, U.S. DEPARTMENT OF
HOMELAND SECURITY,

              Defendant - Appellee




                  Appeals from the United States District Court
                       for the Northern District of Texas
                            USDC No. 3:15-CV-1178


Before DENNIS, CLEMENT, and ENGELHARDT, Circuit Judges.
PER CURIAM:*
       Jacqueline Stokes, an employee at the United States Department of
Homeland Security (DHS) with visual impairments, appeals the district court’s
entry of summary judgment for DHS on her discrimination and retaliation
claims brought under the Rehabilitation Act, 29 U.S.C. § 701 et seq. Because
we conclude that a reasonable jury could find that Stokes was denied a



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-11083
reasonable accommodation and that her employer’s proffered justification for
giving her a failing annual performance review was mere pretext for
retaliation, we vacate summary judgment on both claims and remand for
further proceedings.
                                        I
      Jacqueline Stokes has been employed as an operations support specialist
at the Department of Homeland Security (DHS) for eighteen years, primarily
responsible for arranging employee travel. Stokes is visually impaired: she is
blind in her right eye and has reduced vision in her left. Since at least 2007,
DHS has provided multiple accommodations for her disability, including
providing a workstation with natural lighting, special lightbulbs, multiple
monitors, magnifying software, and magnifying equipment. This case concerns
only Stokes’s requests for, and DHS’s failure to provide, meeting materials she
is able to read.
      In April 2014, Stokes emailed her supervisors to request that, if
materials would be passed out or displayed at on-site meetings, they be
distributed to her either in large font or in advance so that she could review
them using her workstation magnification equipment.            However, despite
assurances from her supervisors that these accommodations would be provided
and Stokes’s subsequent follow-up reminders, she has never received the
accessible meeting materials requested.
      Stokes filed suit against DHS in April 2015, asserting that she was
denied a reasonable accommodation and bringing other discrimination and
retaliation claims under the Rehabilitation Act. In November 2015, Stokes
received a failing performance review for the 2015 fiscal year: a 1.4 out of 5
“Unacceptable” rating. She had received a 3.8 “Exceeded Expectations” rating
the prior fiscal year and an even higher “Achieved Excellence” rating the year
before. As a result of this failing rating, Stokes did not receive a Within-Grade-
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                                   No. 17-11083
Increase in her pay. In May 2016, Stokes filed an amended complaint asserting
that this 2015 performance review was a retaliatory adverse employment
action. This amended complaint also listed additional meetings held since
Stokes’s initial complaint for which advance or large-font materials still had
not been provided.
      Following discovery, Stokes moved for partial summary judgment on her
reasonable accommodation claim, and DHS moved for summary judgment on
all of Stokes’s claims. The district court granted summary judgment for DHS
and dismissed Stokes’s claims. Stokes timely appeals.
                                         II
      A district court’s grant of summary judgment is reviewed de novo. Feist
v. La., Dep’t of Justice, Office of the Att’y Gen., 730 F.3d 450, 452 (5th Cir. 2013).
Summary judgment is only appropriate if the moving party demonstrates 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). When considering a
motion for summary judgment, a court must make all reasonable factual
inferences from the evidence in the light most favorable to the non-movant.
Feist, 730 F.3d at 452.
                                         III
      The substantive standards for employment discrimination under the
Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq, apply equally
to claims brought under the Rehabilitation Act, 29 U.S.C. § 701, et seq. Flynn
v. Distinctive Home Care, Inc., 812 F.3d 422, 426 (5th Cir. 2016) (citing 29
U.S.C. § 794(d)). Disability discrimination under the Rehabilitation Act and
the ADA includes an employer’s failure to make reasonable accommodations,
unless the employer can demonstrate that such an accommodation would
impose an undue hardship.          Feist, 730 F.3d at 452 (citing 42 U.S.C. §
12112(b)(5)(A)). To make out a failure-to-accommodate claim, a plaintiff must
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                                  No. 17-11083
demonstrate that she is (1) a qualified individual with a disability, (2) the
disability is known to the employer, and (3) the employer failed to make a
reasonable accommodation for the known disability. Id. Only the third prong
is in dispute in this case.
      The district court, in granting summary judgment for DHS, cited
Brumsfield v. City of Chicago, 735 F.3d 619, 632 (7th Cir. 2013) and held that
“[b]ecause a reasonable accommodation is only required when necessary to
perform an essential function of the job, a reasonable trier of fact could not find
that DHS failed to reasonably accommodate Stokes’s disability.” However, our
circuit has explicitly rejected the requirement that requested modifications
must be necessary to perform essential job functions to constitute a reasonable
accommodation. Feist, 730 F.3d at 452–54 (holding that “the district court
erred in requiring a nexus between the requested accommodation and the
essential functions of [the employee’s] position”).     Though DHS claims on
appeal that this mistaken statement of the law was immaterial to the district
court’s determination, it is clear that the district court relied upon this
incorrect standard to assess whether Stokes’s requested accommodation was
reasonable.
      The ADA’s implementing regulations define reasonable accommodations
as, inter alia: “Modifications or adjustments that enable a covered entity’s
employee with a disability to enjoy equal benefits and privileges of employment
as are enjoyed by its other similarly situated employees without disabilities.”
29 C.F.R. § 1630.2(o)(1). EEOC Guidance further advises that a modification
satisfies this reasonable accommodation requirement if it is “effective” at
achieving     this   purpose.   U.S. EQUAL EMP. OPPORTUNITY COMM’N,
ENFORCEMENT GUIDANCE: REASONABLE ACCOMMODATION AND UNDUE
HARDSHIP UNDER THE AMERICANS WITH DISABILITIES ACT (2002).


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                                  No. 17-11083
      Applying the correct legal standard and considering the evidence in the
light most favorable to Stokes, a reasonable jury could find that the requested
meeting materials were a reasonable accommodation. DHS contends that
Stokes can effectively participate in meetings by listening and requesting
copies of the materials after, as she does for off-site meetings for which she has
not requested this accommodation. Stokes replies that her willingness to get
by with these inferior alternatives off-site, when it would be more difficult for
DHS to provide the requested materials, does not mean that they effectively
accommodate her. DHS’s additional argument that the other accommodations
it has provided render the requested materials unnecessary is even less
persuasive. As Stokes notes, she cannot use a handheld magnifying glass to
better see a PowerPoint presentation at a group meeting, and her workstation
magnification equipment can only help her view meeting materials if she has
them in advance, as she has requested.
      The district court further erred by relying on Loulseged v. Akzo Nobel
Inc. to conclude that DHS was alternatively not liable because its failure to
provide the requested meeting materials was caused by Stokes’s failure to
“engage in the interactive process.” See 178 F.3d 731 (5th Cir 1999). Loulseged
notes that, after an employee has requested an accommodation, “it may be
necessary for the [employer] to initiate an informal, interactive process [with
the employee] . . . in order to craft a reasonable accommodation.” Id. at 735
(quoting 29 C.F.R. § 1630.2(o)(3)) (first alteration in original). Because “the
interactive process requires the input of the employee as well as the employer
. . . . an employer cannot be found to have violated the ADA when responsibility
for the breakdown of the informal, interactive process is traceable to the
employee and not the employer.” Id. (cleaned up).
      The facts of Loulseged, however, are very different from the situation
here. The employee in Loulseged, after learning that a prior accommodation
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                                       No. 17-11083
would no longer be available, “did not respond in any way to this
announcement, and did not raise the issue again.” Id. at 733; see also id. at
737 (emphasizing employee’s “refus[al] to interact” and “deafening silence”
when       her   employer      explained     policy     changes      that    affected    her
accommodations).         Here, in contrast, Stokes offered evidence that she
repeatedly requested the specific accommodation, was assured it would be
provided, and then did not receive it on multiple occasions. A reasonable jury
could certainly conclude that any “breakdown” of the interactive process was
not caused by Stokes.
       Accordingly, because genuine fact issues remain for the jury, we vacate
the district court’s entry of summary judgment on Stokes’s discrimination
claim and remand for further proceedings.
                                             IV
       The district court further erred by granting DHS summary judgment on
Stokes’s retaliation claim. Stokes alleges that DHS retaliated against her for
bringing a discrimination claim by giving her an “Unacceptable” annual
performance review that prevented her from receiving a pay increase. 1 The
district court, applying the modified McDonnell Douglas Corp. v. Green
burden-shifting framework, determined that DHS met its burden of offering a
legitimate, non-retaliatory reason: the negative descriptions of Stokes’s work
included in the performance review itself. See 411 U.S. 792 (1973). The district
court then concluded that Stokes did not provide evidence that would permit a




       1 Stokes also argues that the district court erred by failing to consider whether DHS’s
failure to file paperwork in support of a promotion also constituted an adverse employment
action. However, because she fails to brief on appeal why this omission by DHS should be
considered an adverse employment action, she has forfeited this argument. See Yohey v.
Collins, 985 F.2d 222, 224–25 (5th Cir 1993) (parties may not incorporate by reference
arguments made to the district court, but must brief them fully on appeal).

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                                 No. 17-11083
reasonable jury to find that this proffered rationale was mere pretext for a
retaliatory motive. Specifically, the district court found that Stokes did not
rebut the allegations of legitimate performance issues—mistakes in reviewing
travel vouchers, deficits in technical proficiency, poor communication, and poor
customer service—described in the “Unacceptable” performance review.
      As Stokes contends, however, this characterization fails to draw all
reasonable factual inferences in her favor.          Stokes admits that she
acknowledged to her supervisors she may have made some mistakes. But this
does not mean she conceded that the performance review correctly
characterized her work. To the contrary, Stokes demonstrated below and on
appeal that she proactively challenged the performance review’s descriptions
of her work.        She repeatedly asked her supervisors to provide the
documentation they relied on to criticize her work performance, such as the
allegedly incorrectly prepared travel vouchers and co-worker complaints. She
contemporaneously expressed in writing her skepticism that the negative
assessments were truly based on any deficits in her work.         In addition to
evidence that her prior performance reviews had consistently been high,
Stokes also provided thirteen positive reviews from customers praising her
work during the fiscal year in question.
      Admittedly, Stokes’s primary evidence rebutting her alleged poor
performance is her own assertions that the descriptions in the performance
review are incorrect. In support of its own position, however, DHS similarly
offers only the performance review itself and deposition testimony from the
supervisor who prepared it stating that it is accurate.      Stokes was never
provided the supporting documentation she repeatedly requested and,
moreover, that documentation was not included in the summary judgment or
appellate record.    Stokes also offers additional evidence challenging this
supervisor’s credibility and indicating his potential hostility towards her based
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                                  No. 17-11083
on her disability and requests for accommodations. She demonstrates, for
instance, that he claimed she never informed him of her visual impairments
even after she sent him multiple memos explaining her disability and
requesting accommodations.
      Because deciding whether to credit Stokes’s assertions that the
performance review is unsupported versus her supervisor’s testimony that it
is accurate is a question for the fact-finder, the district court erred in granting
summary judgment on Stokes’s retaliation claim.
                                       ***
      For these reasons, we VACATE the district court’s entry of summary
judgment on Stokes’s discrimination and retaliation claims under the
Rehabilitation Act and REMAND for further proceedings consistent with this
opinion.




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