                                PUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 13-2212


CHRISTINA LYNN JACOBS,

                 Plaintiff - Appellant,

           v.

N.C. ADMINISTRATIVE OFFICE OF THE COURTS; JAN KENNEDY, in
her official capacity as New Hanover County Clerk of
Superior Court,

                 Defendants – Appellees,

           and

BRENDA TUCKER, New Hanover County Clerk of Superior Court;
MELISSA GRIFFIN; DEBRA EXCELL,

                 Defendants.

-------------------------

THE NATIONAL DISABILITY RIGHTS NETWORK; NATIONAL ALLIANCE ON
MENTAL ILLNESS NORTH CAROLINA; THE BAZELON CENTER FOR MENTAL
HEALTH LAW; MENTAL HEALTH AMERICA; NATIONAL ALLIANCE ON
MENTAL ILLNESS,

                 Amici Supporting Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Terrence W. Boyle,
District Judge. (7:11-cv-00169-BO)


Argued:   December 9, 2014                   Decided:   March 12, 2015
Before KEENAN, FLOYD, and HARRIS, Circuit Judges.


Affirmed in part, reversed in part, and remanded by published
opinion. Judge Floyd wrote the opinion, in which Judge Keenan
and Judge Harris joined.


ARGUED: Vanessa Katherine Lucas, EDELSTEIN & PAYNE, Raleigh,
North Carolina, for Appellant.     Kathryn Hicks Shields, NORTH
CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for
Appellees.    ON BRIEF: Lisa Grafstein, Mercedes Restucha-Klem,
DISABILITY RIGHTS NORTH CAROLINA, Raleigh, North Carolina, for
Appellant.   Roy Cooper, North Carolina Attorney General, Grady
L. Balentine, Jr., Special Deputy Attorney General, NORTH
CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for
Appellees.   Brian East, DISABILITY RIGHTS TEXAS, Austin, Texas,
for Amici Curiae.




                                2
FLOYD, Circuit Judge

     Christina Jacobs worked as a deputy clerk at a courthouse

in New Hanover County, North Carolina.                          Although she allegedly

suffered from social anxiety disorder, her employer assigned her

to provide customer service at the courthouse front counter.

Believing      that    her     mental    illness          hindered      her    ability    to

perform     this      inherently      social        task,        Jacobs    requested      an

accommodation--to        be     assigned       to     a    role     with      less    direct

interpersonal       interaction.          Her       employer      waited      three    weeks

without acting on her request and then terminated her.

     Jacobs        brought     suit      against          her    employer      under     the

Americans      with    Disabilities       Act       (ADA).        The     district     court

granted summary judgment to the employer on all counts.                              Because

the district court erred by resolving disputed facts in favor of

the movant and for the reasons that follow, we reverse the grant

of summary judgment in part and remand for trial.



                                           I.

     Christina        Jacobs    has     suffered      from       mental    illness     since

childhood. 1    At ten, Jacobs was diagnosed with severe situational



     1
       In reviewing de novo the district court’s order granting
summary judgment to the North Carolina Administrative Office of
the Courts, we “view the facts and all justifiable inferences
arising therefrom in the light most favorable to” Jacobs, as the
nonmoving party.   Libertarian Party of Va. v. Judd, 718 F.3d
                                           3
performance       anxiety.        At    twelve,          she      was    hospitalized        for

several    days     after     threatening          harm      to    herself        and    others.

During her hospitalization she was diagnosed with mood disorder

and selective mutism, and prescribed antidepressants.                                     At the

age   of   18,     she    received      an    additional           diagnosis        of    social

anxiety disorder for which she has been treated intermittently

by several physicians.

      Social anxiety disorder is characterized by a “marked and

persistent fear of . . . social or performance situations in

which [a] person is exposed to unfamiliar people or to possible

scrutiny   by      others.”       Am.    Psychiatric              Ass’n,    Diagnostic       and

Statistical       Manual     of   Mental       Disorders           456     (4th     ed.    2000)

[hereinafter DSM-IV]. 2           A person suffering from social anxiety

disorder    either        “avoid[s]”     the      feared       social       or    performance

situations,        or     “endure[s      them]          with       intense        anxiety     or

distress.”        Id.      A person can only be diagnosed with social

anxiety disorder when the “avoidance, anxious anticipation, or

distress     in     the    feared      social       or       performance         situation(s)

interferes        significantly        with       the     person’s         normal       routine,

occupational        . . .     functioning,              or     social       activities        or


308, 312 (4th Cir. 2013).                    The following statement of facts
conforms to this standard.
      2
       We take judicial notice of the DSM-IV (and not the current
DSM-V) because the expert witnesses in this case applied the
diagnostic criteria of the DSM-IV. Fed. R. Evid. 201.

                                              4
relationships         . . . .”             Id.        The     American        Psychiatric

Association (APA) notes that social anxiety disorder can create

a   “vicious       cycle    of    anticipatory       anxiety       leading    to    fearful

cognition and anxiety . . . , which leads to actual or perceived

poor       performance     . . .       ,   which     leads    to    embarrassment         and

increased anticipatory anxiety . . . .”                       Id. at 451.            “A job

promotion to a position requiring public speaking may result in

the    emergence      of       [social     anxiety     disorder]      in     someone      who

previously never needed to speak in public.”                       Id. at 453.

       In January 2009, Jacobs was hired by Brenda Tucker, the

elected clerk of court, as an office assistant in the criminal

division      of    the    North      Carolina     Administrative       Office       of   the

Courts      (AOC).        As    an    office     assistant,    Jacobs’s       job    duties

included      microfilming           and   filing.     Less    than    a     month     after

Jacobs started working, Tucker promoted her to the position of

deputy clerk. 3

       At the time of Jacobs’s employment, 30 total deputy clerks

worked in the criminal division.                     Four or five of the deputy

clerks       provided      customer        service     at    the     division’s       front

counter.       The remaining deputy clerks performed other filing and

record-keeping tasks, many of which do not require face-to-face


       3
       It is undisputed that at the time of her promotion Jacobs
met or exceeded the minimum eligibility requirements for the
position.

                                               5
interaction with the public. 4      AOC supervisors typically assigned

the most junior deputy clerks to the front counter.                       However,

all deputy clerks--regardless of assignment and seniority--had

the same title and job description.

      In March 2009, Jacobs began training to work at the front

counter.    She was assigned to work four days a week at the front

counter and one day a week microfilming.                   Jacobs soon began to

experience extreme stress, nervousness, and panic attacks while

working at the front counter.           She became particularly panicked

when she was asked a question to which she did not immediately

know the answer--a common occurrence when working behind the

counter.     She attributed these symptoms to her diagnosed social

anxiety disorder.

      On or about May 5, 2009, Jacobs went to a supervisor, Debra

Excell, and told Excell that she had social anxiety disorder and

was   not   feeling   healthy   while       working   at    the   front   counter.

Jacobs told Excell that she had received treatment (including

medication) for mental health issues while in college, but that

she was not currently under a doctor’s care.                  Excell encouraged

Jacobs to seek treatment from the doctor who had helped her in




      4
        For example, disposition and continuance clerks work
primarily on the computer and do not provide direct customer
service.

                                        6
college.    After her meeting with Excell, Jacobs went to a doctor

and began receiving treatment for anxiety and depression.

       Excell subsequently told Tucker about her conversation with

Jacobs.    Tucker took handwritten notes on Excell’s oral account

of her conversation with Jacobs, which included the phrases “too

stressful,” “nerve issues,” “anxiety disorder,” and “might have

to go back to [the doctor].”                J.A. 823.     Tucker’s assistant

placed the notes in Jacobs’s personnel file.

       During   the   course    of    her   employment,    Jacobs   was   never

written up for any disciplinary infraction or performance issue.

There are no notes in her personnel file indicating any problems

with her performance.       Yet the AOC now alleges, inter alia, that

Jacobs was a slow worker, impermissibly disclosed information to

members    of   the   public,   and   had    outbursts    with   coworkers    and

supervisors.     The AOC has produced no documentary evidence (such

as e-mails) corroborating these allegations.

       On September 8, 2009, Jacobs sent an e-mail to her three

immediate supervisors (Excell, Jan Kennedy, and Melissa Griffin)

in which she disclosed her disability for a second time and

requested an accommodation.           Specifically, Jacobs requested that

she be “trained to fill a different role in the Clerk’s Office

and perhaps work at the front counter only once a week.”                     J.A.

798.    The next day, Jacobs followed up in person with Kennedy.

Kennedy told Jacobs that only Tucker had the power to act on

                                        7
Jacobs’s request and, because Tucker was currently on a three-

week vacation, Jacobs would have to wait until Tucker returned.

Soon after her meeting with Kennedy, Jacobs forwarded her e-mail

request to Tucker.

        While she was waiting for Tucker to return and address her

accommodation request, Jacobs sought to use some accrued leave.

Kennedy questioned Jacobs about why she wanted leave and denied

her     request.       Jacobs’s    previous         leave     requests   were   not

questioned and had always been approved.

        Tucker alleges that while she was on vacation, she did not

check her e-mail and asked to be called only in the event of an

emergency.       She allegedly received a call from her assistant,

Alice    Radewicz,     informing   her       that    Jacobs    had   been   spotted

sleeping at her desk.         Tucker testified that this was the only

call she received during her three-week absence.

        Upon returning to the office on September 29, 2009, Tucker

called Jacobs into her office for a meeting.                     Excell, Kennedy,

and Griffin were already in Tucker’s office when Jacobs arrived,

where    they    had   just   concluded       a     meeting    regarding    Jacobs.

Jacobs also saw a copy of her e-mail requesting an accommodation

on Tucker’s desk, annotated in someone’s handwriting.                        Tucker

later testified that she had written the notes on the e-mail

printout.       Jacobs assumed that the meeting was about her request



                                         8
for    an    accommodation        and    recorded       the     meeting    on     a    small

personal audio recorder.

       Jacobs told Tucker that she had wanted to meet regarding

“just what the e-mail said.” 5             J.A. 827.          Tucker did not inquire

as    to    what    e-mail    Jacobs     was       referring.     Instead,       she    told

Jacobs that she was being fired because she was not “getting it”

and    Tucker       did    not   “have    any       place    [that   she       could]    use

[Jacobs’s] services.”            Id.     She did not mention Jacobs’s alleged

sleeping on the job.             When Jacobs asked Tucker whether she was

being fired “because of the e-mail,” Tucker responded that “it

doesn’t have anything to do with the e-mail.”                     Id.

       After       her    termination,    Jacobs       timely    filed     a    Charge   of

Discrimination with the Equal Employment Opportunity Commission

(EEOC).       During the EEOC investigation, Tucker denied that she

knew of Jacobs’s disability and that she had read the e-mail

before deciding to terminate Jacobs.                        After Jacobs received a

favorable determination from the EEOC, the Department of Justice

issued a Right to Sue letter.

       Jacobs then timely filed suit against the AOC and against

Jan Kennedy (Tucker’s successor) in her official capacity as

clerk of court.            Jacobs’s amended complaint alleges five causes


       5
        All quotations are to Jacobs’s recording of the
termination meeting on page 827 of the joint appendix, and not
to Jacobs’s transcription of the recording.

                                               9
             6
of action,       three of which are pertinent to this appeal: (i)

disability discrimination under the ADA; (ii) failure to provide

a reasonable accommodation under the ADA; and (iii) retaliation

under the ADA. 7    The district court had jurisdiction pursuant to

28 U.S.C. § 1331.

     In a brief opinion, the district court granted the AOC’s

motion for summary judgment.      Jacobs v. N.C. Admin. Office of

the Courts, No. 7:11-CV-169-BO, 2013 WL 4736171, at *1 (E.D.N.C.

Sept. 3, 2013).      Although the AOC conceded for summary-judgment

purposes that Jacobs had a disability, the district court found

that Jacobs was not disabled as a matter of law and that she had

     6
       Jacobs’s complaint also alleged that the AOC committed a
per se violation of the ADA by commingling her medical records
with her personnel file.     The district court granted summary
judgment   because   the   ostensible   “medical  records”   were
voluntarily provided by Jacobs.      Jacobs does not appeal the
grant of summary judgment on this claim, and we therefore save
the question of whether the ADA’s confidentiality provisions
apply to the voluntary disclosure of disability for another day.
     7
        Jacobs purports to appeal two other causes of action:
discrimination and retaliation under Section 504 of the
Rehabilitation Act (29 U.S.C. § 794); and wrongful discharge in
violation of North Carolina public policy.        However, Jacobs
failed to discuss these claims (except in passing) in the
argument section of her opening brief, contrary to the
requirement of Rule 28(a)(8)(A) of the Federal Rules of
Appellate   Procedure  that   the   brief  contain    “appellant's
contentions and the reasons for them.”     Specifically, she did
not challenge the district court’s finding that “stating a claim
under the Rehabilitation Act is more difficult” than under the
ADA.   J.A. 1039.   We therefore find that Jacobs has abandoned
these claims on appeal. Sandlands C & D LLC v. Cnty. of Horry,
737 F.3d 45, 51 n.4 (4th Cir. 2013); Edwards v. City of
Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir. 1999).

                                  10
therefore failed to establish a prima facie case of disability

discrimination and failure to grant a reasonable accommodation.

Id. at *3.        The district court also found that there was no

evidence in the record that Tucker knew of Jacobs’s request for

an accommodation at the time she decided to fire Jacobs, and

that Jacobs therefore failed to establish a prima facie case of

retaliation.      Id.

     The    district     court     entered    judgment       against    Jacobs    on

September    3,    2013.          Jacobs     timely    appealed.         We      have

jurisdiction over final judgments of the district court pursuant

to 28 U.S.C. § 1291.



                                       II.

                                       A.

     Ordinarily     we    would    begin     our    discussion    with    a   brief

restatement of the standard of review for a motion for summary

judgment.         When     “the     opinion        below     reflects    a    clear

misapprehension of summary judgment standards,” however, further

elaboration is warranted.            Tolan v. Cotton, 134 S. Ct. 1861,

1868 (2014) (per curiam).          A district court “shall grant summary

judgment 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 dispute is genuine

if ‘a reasonable jury could return a verdict for the nonmoving

                                       11
party.’”     Libertarian Party of Va. v. Judd, 718 F.3d 308, 313

(4th Cir. 2013) (quoting Dulaney v. Packaging Corp. of Am., 673

F.3d 323, 330 (4th Cir. 2012)).                    “A fact is material if it

‘might affect the outcome of the suit under the governing law.’”

Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986)).

     In considering a motion for summary judgment, the district

court must “view the evidence ‘in the light most favorable to

the’”    nonmoving      party.    Tolan,         134   S.   Ct.    at    1866     (quoting

Adickes    v.    S.H.    Kress    &    Co.,      398   U.S.       144,    157     (1970)).

“Summary judgment cannot be granted merely because the court

believes that the movant will prevail if the action is tried on

the merits.”      10A Charles Alan Wright & Arthur R. Miller et al.,

Federal Practice & Procedure § 2728 (3d ed. 1998). 8                            The court

therefore       cannot    weigh       the    evidence       or     make     credibility

determinations.          Mercantile     Peninsula       Bank      v.     French    (In   re

French), 499 F.3d 345, 352 (4th Cir. 2007) (citing Anderson, 477

U.S. at 255); see also Fed. R. Civ. P. 56 Advisory Committee’s

Note (1963) (“ Where an issue as to a material fact cannot be

resolved without observation of the demeanor of witnesses in

     8
       As Professor Arthur Miller noted recently, “a motion
designed simply for identifying trial-worthy issues has become,
on occasion, a vehicle for resolving trial-worthy issues.”
Arthur R. Miller, Simplified Pleading, Meaningful Days in Court,
and Trials on the Merits: Reflections on the Deformation of
Federal Procedure, 88 N.Y.U. L. Rev. 286, 312 (2013).

                                            12
order to evaluate their credibility, summary judgment is not

appropriate.”).

       The Supreme Court recently granted certiorari and issued a

decision in a seemingly routine summary judgment case because

the     lower       court     had     “fail[ed]       to    credit         evidence           that

contradicted          some     of      its      key   factual        conclusions”               and

“improperly ‘weighed the evidence’ and resolved disputed issues

in    favor    of     the    moving    party.”        Tolan,      134    S.     Ct.   at      1866

(brackets       omitted)        (quoting        Anderson,      477       U.S.       at        249).

Specifically,          the    court      of    appeals     (affirming         the     district

court)    repeatedly          failed      to     credit     the     testimony            of     the

plaintiff       and    members      of    his    immediate        family,       which         often

contradicted the court’s statement of the “central facts” of the

case.     Id. at 1866–67.             Because the court of appeals “weigh[ed]

the evidence and reach[ed] factual inferences contrary to [the

nonmovant’s] competent evidence,” the Supreme Court vacated the

court’s       affirmance      of    the    district      court’s        grant    of      summary

judgment.       Id. at 1868.



                                                B.

       In this case, as in Tolan, the district court erred by

failing to consider all of the evidence in the record.                                          The

district court’s opinion also states the facts in the light most

favorable to the AOC--not Jacobs, the nonmovant.                                 Strikingly,

                                                13
both of the district court’s key factual findings--that Jacobs

was   not   disabled     and    that    Tucker      did    not   learn   of    Jacobs’s

accommodation request prior to terminating her--rest on factual

inferences      contrary       to    Jacobs’s       competent      evidence.         The

district court thus improperly resolved factual issues at the

summary judgment stage, in contravention of well-settled law.

We discuss these errors in turn.



                                          1.

      We begin by noting several examples of the district court’s

misapplication      of     the       summary        judgment     standard      in     its

recitation of the facts.

      First, the district court stated that Jacobs “had what was

described as a ‘melt-down’ with a co-worker . . . [that] caused

a disruption in the office . . . .”                    J.A. 1034.        However, the

co-worker allegedly involved in the outburst denied that it ever

occurred.    The AOC witnesses who testified regarding the alleged

outburst did not directly witness it and could not recall how

they had learned about it.

      Second,      the     district           court        accepted      the        AOC’s

characterization of Jacobs’s May 5 meeting with Excell: “[T]he

plaintiff told Debra Excell that she was having social issues

and   was   nervous    about        working    at    the   front   counter.”         Id.

(emphasis added).        Jacobs testified that she told Excell she had

                                          14
social   anxiety     disorder--not        mere   “social   issues.”       Tucker’s

handwritten notes on her conversation with Excell regarding this

meeting,    in     which   she    wrote    the    words    “anxiety     disorder,”

support Jacobs’s account of the conversation.

       Third, the district court stated as an undisputed fact that

Jacobs “did not tell anyone she was disabled” in April or May of

2009.    Id.     This is inconsistent with the testimony of Jacobs,

Excell, and Tucker, who all agreed that Jacobs told Excell she

had anxiety issues that were impacting her work and for which

she had received medical treatment in the past.

       Fourth and finally, the district court adopted the AOC’s

erroneous contention that its expert witness failed to examine

Jacobs because Jacobs did not consent to be examined.                    See J.A.

1035    (“[T]his    was    done   in   lieu      of   examining   the    plaintiff

personally because she refused to submit to such an evaluation.”

(emphasis added)).         As the record makes clear, the AOC never

brought a motion for mental examination under Rule 35 of the

Federal Rules of Civil Procedure and did not respond to the

offer by Jacobs’s counsel to proceed with such an examination

without motion.

       Considering the order in its entirety, we conclude that the

district court impermissibly “credited the evidence of the party

seeking summary judgment and failed properly to acknowledge key



                                          15
evidence offered by the party opposing that motion.”                    Tolan, 134

S. Ct. at 1867–68.      This was error.



                                        2.

      The district court also erred by concluding that Jacobs was

not disabled within the meaning of the ADA.                  During the course

of discovery both parties produced expert testimony by mental

health   specialists     on     this   issue.      After    examining      Jacobs,

forensic   psychologist        Dr. Claudia    Coleman   concluded       that    “her

mental   disorders,     Social     Phobia    and   Anxiety     Disorder,       . . .

constitute a disability as defined by the [ADA].”                       J.A. 807.

Forensic psychiatrist Dr. George Corvin, the AOC’s expert, did

not examine Jacobs.       Instead, Dr. Corvin based his report on a

review   of   her    medical    records,     social   media    use,     employment

records, and the report of a private investigator who observed

Jacobs while she was at work at a new job.              Dr. Corvin concluded

that it was possible that Jacobs met the diagnostic criteria for

social anxiety disorder but that “her medical records alone are

insufficient to establish such a diagnosis.”                J.A. 222.     He also

determined from the private investigator’s report that Jacobs

was   currently     succeeding    in   a   new   customer     service    job,    and

thereby inferred that she had not experienced “any significant

level of anxiety or other psychiatric impairment” while working

at the AOC.    Id.

                                        16
        The district court determined from “Dr. Corvin’s report and

the     plaintiff’s     behavior       [at]     work”   that    Jacobs     was      not

disabled.         J.A. 1038.     Inexplicably, the district court omits

any mention of Dr. Coleman’s conflicting report.                      Additionally,

Dr. Corvin’s report simply does not support the district court’s

finding of no disability--rather, Dr. Corvin concluded only that

Jacobs’s medical records were equivocal on this question.

      As in Tolan, the district court “neglected to adhere to the

fundamental        principle    that     at    the   summary     judgment      stage,

reasonable inferences should be drawn in favor of the nonmoving

party.”     134 S. Ct. at 1868.          Rather, the court incorrectly drew

all inferences in favor of the AOC, not Jacobs.                        We therefore

reverse     the    district    court’s    determination        that    there   is   no

genuine dispute as to whether Jacobs had a disability.



                                          3.

      The    district    court     also       determined   that       “there   is   no

evidence that Ms. Tucker knew that the plaintiff had requested

an accommodation at the time she made the decision to terminate

her.”     J.A. 1038 (emphasis added).            This finding has no basis in

the record.

      Rather, the record taken in the light most favorable to

Jacobs demonstrates just the opposite.                  It is undisputed that

Jacobs e-mailed her request for an accommodation to Tucker on

                                          17
September 9, 2009.               Jacobs also e-mailed her request to her

immediate supervisors, and discussed her request in person with

Kennedy.      Kennedy told Jacobs that she could not act on Jacobs’s

request without discussing it first with Tucker.                      Upon returning

to    the   office      on    September    29,    Tucker   held   a    meeting    with

Jacobs’s     immediate         supervisors--Kennedy,       Excell,     and   Griffin.

Kennedy testified that the supervisors discussed Jacobs during

this meeting.        Tucker then called Jacobs into the meeting, and

summarily fired her in front of Kennedy, Excell, and Griffin.                        A

reasonable jury could infer from these facts that before Jacobs

walked      in,   any    or     all   of    Jacobs’s     supervisors     would    have

discussed the accommodation request e-mail.

       The record taken in the light most favorable to Jacobs also

demonstrates that Tucker read the e-mail before firing Jacobs.

When Jacobs entered Tucker’s office she saw an annotated copy of

her request for accommodation sitting on Tucker’s desk.                       Tucker

admits to having annotated the e-mail but testified that she did

so only after the meeting.                  Tucker cannot remember when she

printed the e-mail but testified that it may have been during

the    meeting    and        that   she   first   read   the   e-mail    during    the

meeting.      This account is inconsistent with the audio recording

of the meeting, which a reasonable jury could find does not

contain any pauses long enough to account for Tucker finding and



                                            18
printing the e-mail.         A reasonable jury could credit Jacobs’s

testimony over Tucker’s on this factual question.

     Finally, Tucker’s statements during the termination meeting

indicate that she knew about Jacobs’s accommodation request.                         At

the beginning of the meeting, Jacobs said she wanted to discuss

“just what the e-mail said.”               J.A. 827.       Tucker did not ask to

what e-mail Jacobs was referring.                 Instead, Tucker told Jacobs

that, at the time of her hiring, Jacobs “expressed [she] would

be able to handle all of that [i.e., front counter work], that

it wouldn’t be problematic for you.”                    Id.        Tucker added, “I

don’t have any place that I can use your services.”                          Id.    If

Tucker     had   called    the       meeting      without     knowledge      of    the

accommodation     request,      it    is     unlikely      that    she    would    have

addressed the possibility of reassigning Jacobs.                     Moreover, when

Jacobs asked whether she was being fired “because of the e-

mail,” Tucker responded that “it doesn’t have anything to do

with the e-mail.”         Id.        If Tucker were truly unaware of the

contents    of   the   e-mail,   it     is      unlikely    that    she   would    have

answered the question in this way.

     A reasonable jury could infer from Jacobs’s, Tucker’s, and

Kennedy’s testimony and from the recording of the conversation

that Tucker knew about Jacobs’s accommodation request at the

time she decided to terminate Jacobs.                   Accordingly, we reverse

the district court’s determination to the contrary.

                                           19
                                         III.

        Merely concluding that disputed issues of fact exist as to

whether Jacobs was disabled and whether Tucker knew about her

accommodation request does not end our inquiry.                    Rather, we must

also decide whether disputed issues of fact exist as to elements

of each of Jacobs’s three claims: (i) disability discrimination;

(ii)       retaliation;    and   (iii)   failure      to   provide      a   reasonable

accommodation.       We address each claim in turn.



                                          A.

        We first consider whether we should affirm summary judgment

on Jacobs’s disability discrimination claim.

       To establish a claim for disability discrimination under

the ADA, a plaintiff must prove “(1) that she has a disability,

(2) that she is a ‘qualified individual’ for the employment in

question, and (3) that [her employer] discharged her (or took

other      adverse   employment     action)     because      of   her   disability.”

EEOC v. Stowe-Pharr Mills, Inc., 216 F.3d 373, 377 (4th Cir.

2000).       Disability discrimination may be proven through direct

and indirect evidence or through the McDonnell Douglas burden-

shifting framework. 9        See Raytheon Co. v. Hernandez, 540 U.S. 44,

49–50 & n.3 (2003).

       9
            McDonnell     Douglas   Corp.      v.   Green,   411    U.S.     792,   802
(1973).

                                          20
                                        1.

      The AOC argues that Jacobs did not have a disability as a
                     10
matter of law.              “Disability” is defined by the ADA as “a

physical or mental impairment that substantially limits one or

more major life activities.”           42 U.S.C. § 12102(1)(A).           The ADA

provides     a     nonexhaustive      list   of    major    life    activities,

including           “speaking,”         “concentrating,”            “thinking,”

“communicating,” and “working.”              Id. § 12102(2)(A).       The EEOC

has also identified “interacting with others” as a major life

activity.    29 C.F.R. § 1630.2(i)(1)(i).

      “In September 2008, Congress broadened the definition of

‘disability’ by enacting the ADA Amendments Act of 2008, Pub. L.

No. 110–325, 122 Stat. 3553 . . . .”              Summers v. Altarum Inst.,

Corp., 740 F.3d 325, 329 (4th Cir. 2014).                  The ADA Amendments

Act (ADAAA) was intended to make it “easier for people with

disabilities to obtain protection under the ADA.”                    29 C.F.R.

§ 1630.1(c)(4).           The regulation clarifies that “[t]he primary

object of attention in cases brought under the ADA should be

whether covered entities have complied with their obligations

and   whether      discrimination      has    occurred,     not    whether    the

individual       meets    the   definition   of   disability.”      Id.    “[T]he

      10
        As noted above, this argument is inconsistent with AOC’s
prior litigation position. J.A. 1027 (“For the sake of summary
judgment, Defendants have conceded that Plaintiff had a
disability.”).

                                        21
question of whether an individual’s impairment is a disability

under the ADA should not demand extensive analysis.”                             Pub. L.

No. 110-325, § 2(b)(5) (2008).                    In enacting the ADAAA, Congress

abrogated earlier inconsistent caselaw.                        Summers, 740 F.3d at

331.

       Jacobs       alleges         that        her     social       anxiety     disorder

substantially limited her ability to interact with others and

was    therefore      a    disability.            The   AOC   first    argues    that   no

evidence      in    the    record    shows       that   Jacobs   was    suffering   from

social anxiety disorder while employed as a deputy clerk.                            This

is    clearly      incorrect.        As     discussed     above,      the   testimony   of

Dr. Coleman suffices to establish a genuine dispute of fact on

this question.

       The AOC next argues that Jacobs’s social anxiety disorder

did    not   substantially          limit       any   major   life    activity    because

“interacting with others” is not a major life activity.                              This

argument constitutes a challenge to the EEOC’s interpretation of

the    ADA.          See     29     C.F.R.        § 1630.2(i)(1)(i)         (identifying

“interacting        with     others”       as    a    major   life     activity).        We

therefore apply the familiar two-step Chevron analysis. 11                              See

Jones v. Am. Postal Workers Union, 192 F.3d 417, 427 (4th Cir.




       11
       Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc.,
467 U.S. 837 (1984).

                                                22
1999) (affording Chevron deference to the EEOC’s interpretation

of a Title VII provision expressly adopted by the ADA).

       Under Chevron, we first ask whether Congress has “directly

spoken”    to     the    precise     question       of    whether      interacting      with

others is a major life activity.                   Summers, 740 F.3d at 331.              By

its     express       language,      the      statute’s        list     of    major     life

activities is not exhaustive.                 42 U.S.C. § 12102(2)(A) (“[M]ajor

life    activities        include,      but      are     not   limited       to   . . . .”

(emphasis      added)).        We    therefore         conclude     that     Congress    has

deliberately left a gap for the agency to fill, and proceed to

Chevron’s second step--determining whether the EEOC’s regulation

is reasonable.          Summers, 740 F.3d at 331-32.

       “The stated goal of the ADAAA is to expand the scope of

protection      available       under      the     Act    as   broadly       as   the   text

permits.”       Id. at 332.         A major life activity is one that is “of

central importance to daily life.”                     Toyota Motor Mfg., Ky. Inc.

v. Williams, 534 U.S. 184, 197 (2002) (abrogated in part by the

ADAAA).       Few activities are more central to the human condition

than interacting with others.                    If “bending” and “lifting” are

major life activities, 42 U.S.C. § 12102(2)(A), it is certainly

reasonable for the EEOC to conclude that interacting with others

falls    in    the      same   category.           Identifying        “interacting      with

others”    as     a   major    life     activity         comparable     to   “caring     for

oneself,” “speaking,” “learning,” and “communicating” advances

                                              23
the broad remedial purpose of the ADA.                       We therefore defer to

the EEOC’s determination and hold that interacting with others

is a major life activity.

       The AOC also argues that Jacobs has failed to show that her

alleged      social       anxiety        disorder      substantially       limited     her

ability      to   interact        with     others.        Prior    to   the      ADAAA,    a

plaintiff seeking to prove disability needed to show that she

was “significantly restricted” in a major life activity.                              See,

e.g., Pollard v. High’s of Balt., Inc., 281 F.3d 462, 467 (4th

Cir. 2002).        The ADAAA expressly rejected this rule as imposing

“too high a standard.”                 Pub. L. No. 110-325 § 2(a)(8).                     The

regulations define a substantially limiting impairment as one

that    “substantially          limits     the    ability    of    an   individual        to

perform a major life activity as compared to most people in the
                                                                                 12
general      population.”           29    C.F.R.       § 1630.2(j)(1)(ii).                “An

impairment        need    not     prevent,        or   significantly       or    severely

restrict, the individual from performing a major life activity

in order to be considered substantially limiting.”                         Id.

       The    AOC        argues     that      Jacobs      could     not       have    been

substantially       limited       in     interacting      with    others    because       she


       12
        Because both parties accept the EEOC regulations as
instructive, we assume without deciding that they are reasonable
and have no occasion to decide what level of deference, if any,
they are due.    See Toyota, 534 U.S. at 194; Heiko v. Colombo
Sav. Bank, F.S.B., 434 F.3d 249, 255 n.1 (4th Cir. 2006).

                                             24
“interact[ed] with others on a daily basis,” “routinely answered

inquiries from the public at the front counter,” “socialized

with   her     co-workers          outside      of    work,”      and    engaged    in    social

interaction on Facebook.                   Appellees’ Br. at 26, 29.                     The AOC

misapprehends both the meaning of “substantially limits” and the

nature of social anxiety disorder.

       A     person        need    not    live       as   a     hermit    in     order    to    be

“substantially limited” in interacting with others.                                  According

to the APA, a person with social anxiety disorder will either

avoid social situations or “endure the social or performance

situation . . . with intense anxiety.”                          DSM-IV, supra, at 451. 13

Thus, the fact that Jacobs may have endured social situations

does not per se preclude a finding that she had social anxiety

disorder.            Rather,      Jacobs       need   only      show     she   endured     these

situations “with intense anxiety.”                        Id.     At a minimum, Jacobs’s

testimony       that       working       the   front      counter       caused    her    extreme

stress and panic attacks creates a disputed issue of fact on
                      14
this        issue.                Her    testimony        is      also     consistent          with


       13
        We also note in passing that if Jacobs in fact took
longer than necessary to complete her microfilming work and
procrastinated in returning to the front desk (as the AOC
alleges), this may constitute avoidant behavior consistent with
a diagnosis of social anxiety disorder.
       14
        Although members of the public will not experience
intense anxiety and panic when asked a question by a stranger,
Jacobs alleges that working the front counter caused her extreme
stress and panic attacks.   According to the DSM-IV, between 3%
                                                 25
Dr. Coleman’s testimony that Jacobs suffered from social anxiety

disorder within the meaning of the DSM-IV.

      The undisputed facts that Jacobs spoke to coworkers and

attempted to perform her job at the front counter are therefore

not fatal to her claim.                 That she attended several outings with

coworkers    in       her    nine       months    in   the        office         is       also   hardly

dispositive--answering                  questions        at           the         front          counter

constitutes       a    performance          situation         that          is        different       in

character from having lunch with coworkers, and a reasonable

jury may conclude that Jacobs’s allegedly debilitating anxiety

was specific to that situation.                        Finally, to the extent that

Jacobs’s    Facebook         activity      constitutes            a    “mitigating            measure”

(that is, a form of exposure therapy by which Jacobs attempted

to overcome her anxiety through social interaction that was not

face-to-face      and       not    in    real    time)       we       are       not       permitted   to

consider    it    in        determining         the    existence            of        a    substantial

limitation on her ability to interact with others.                                           42 U.S.C.

§ 12102(4)(E)(i).             We    therefore         find    that          a    reasonable         jury



and 13% of people will experience social anxiety disorder at
some point in their life. DSM-IV, supra, at 453.     Just 10% of
people who experience a fear of public speaking experience
enough impairment or distress to be diagnosed with social
anxiety disorder.     Id.   We therefore conclude that social
anxiety disorder limits sufferers “as compared to most people in
the general population.” 29 C.F.R. § 1630.2(j)(1)(ii).



                                                 26
could    conclude        that   Jacobs      was     substantially        limited      in   her

ability to interact with others and thus disabled within the

meaning of the ADA.



                                              2.

      We turn next to the second element of the prima facie case:

whether Jacobs has shown that she was a qualified individual for

the employment in question.                 The AOC argues that no reasonable

jury could find that, at the time of her discharge, Jacobs was

“performing        her    job    at    a     level     that       met    her   employer’s

legitimate expectations.”               See Ennis v. Nat’l Ass’n of Bus. &

Educ.    Radio,     Inc.,       53   F.3d     55,    58,    61–62       (4th   Cir.    1995)

(finding that summary judgment was appropriate when an employee

had     received      numerous       negative       performance         evaluations        and

written    reprimands       over      three    years,       was   suspended      for       poor

performance, and conceded that she was not a model employee and

made too many personal phone calls).                         The AOC supports this

argument       with       considerable         testimony          regarding        Jacobs’s

shortcomings as an employee.

      Jacobs    responds        by    denying       these   allegations        and    noting

that she was promoted to the position of deputy clerk after only

a month on the job.             She further argues that she never received

a negative performance review, evaluation, or written warning,

and that the AOC’s testimony could be discredited at trial as

                                              27
inconsistent and contradictory.               Cf. EEOC v. Sears Roebuck &

Co.,    243    F.3d    846,   852–53   (4th   Cir.        2001)    (holding   that    an

employer’s provision of shifting and inconsistent justifications

for taking an adverse employment action “is, in and of itself,

probative of pretext”).             For example, AOC witnesses testified

that Ashley English, an AOC employee, told them about Jacobs’s

performance      issues       and   inappropriate          outbursts.         English,

however, testified that she never discussed Jacobs’s performance

with     the    AOC     witnesses      and    that        Jacobs     never    had     an

inappropriate         outburst.      From    these    inconsistencies         and    the

total    lack    of    documentary     evidence      of    Jacobs’s    alleged      poor

performance, a reasonable jury could conclude that Jacobs was

qualified for the position of deputy clerk.



                                         3.

        Disputed issues of material fact also exist as to the third

element of the prima facie case--causation.                   The AOC argues that

Jacobs cannot prove causation because no reasonable jury could

find that Tucker knew of Jacobs’s disability at the time Jacobs

was terminated.         We disagree.

        First, the note Tucker placed in Jacobs’s personnel file

demonstrates that Tucker was aware as early as May 5, 2009 (more

than three months before the termination) that Jacobs had “nerve

issues,” an “anxiety disorder,” and that she “might have to go

                                         28
back to [the doctor].”             J.A. 823.        Second, just before firing

Jacobs, Tucker met with the three supervisors who had received

Jacobs’s       e-mailed        accommodation     request.          One     of     these

supervisors told Jacobs that she intended to discuss the request

with Tucker upon Tucker’s return from vacation.                          Drawing all

reasonable      inferences        in     Jacobs’s     favor,     Tucker     and     the

supervisors likely discussed Jacobs’s disability at this meeting

immediately before firing her.                  A reasonable jury could thus

find that Tucker knew that Jacobs was disabled.                     See Schmidt v.

Safeway Inc., 864 F. Supp. 991, 997 (D. Or. 1994) (“The employer

need only know the underlying facts, not the legal significance

of those facts.”).

     Contrary      to     the    AOC’s    contention,      Jacobs    has    produced

affirmative evidence from which a reasonable jury could conclude

that she was terminated because of her disability.                        See Ennis,

53 F.3d at 59.      She was fired just three weeks after sending her

e-mail        disclosing        her      disability        and     requesting        an

accommodation.       Such close temporal proximity weighs heavily in

favor    of    finding     a    genuine    dispute    as    to   causation.         See

Haulbrook v. Michelin N. Am., Inc., 252 F.3d 696, 706 (4th Cir.

2001)    (finding       that    temporal    proximity      alone    can    create     a

genuine dispute to causation).




                                           29
        We therefore find that a reasonable jury could conclude

that Jacobs has made out each of the elements of a prima facie

case of discriminatory discharge.



                                        4.

     Under the familiar McDonnell Douglas framework, the burden

then shifts to the AOC to produce evidence of a legitimate, non-

discriminatory       reason    for   terminating       Jacobs.        See    McDonnell

Douglas Corp., 411 U.S. at 802.               The AOC produced evidence of a

number    of   non-discriminatory       reasons       for   Jacobs’s    termination

including: Jacobs was not “getting it”; she had outbursts and

became angry with her trainer; she slept on the job; and she

failed to follow the appropriate procedure for calling in sick.

For summary judgment purposes, we thus find that the AOC has

satisfied this relatively modest burden.

     The burden therefore shifts back to Jacobs to prove that

these     asserted    justifications         are    pretextual.             Reeves   v.

Sanderson      Plumbing   Prods.,      Inc.,    530    U.S.    133,    143     (2000).

Among other methods, she may do so by demonstrating that the

asserted       justifications,       even      if      true,     are        post     hoc

rationalizations invented for purposes of litigation.                        Dennis v.

Columbia Colleton Med. Ctr. , Inc., 290 F.3d 639, 647 (4th Cir.

2002).      Jacobs    argues    that    the    AOC’s    proffered      reasons       are

pretextual because: (i) the AOC has offered different rationales

                                        30
at   different      phases       of    the       litigation         and    (ii)    the        AOC’s

evidence is inconsistent and contradictory.

     The     fact     that        an     employer            “has     offered       different

justifications       at    different         times      for    [an    adverse      employment

action] is, in and of itself, probative of pretext.”                                          Sears

Roebuck & Co., 243 F.3d at 852–53.                      At the time of termination,

Tucker told Jacobs that she was being fired for not “getting

it,” for being slow, for lying about her ability to do the job,

and for her “propensity for mistakes.”                         J.A. 827.          In her EEOC

complaint,       Tucker    put    forward        additional         reasons:       Jacobs       had

“outbursts,” got angry with her trainer, and would disruptively

ask her co-workers how to perform tasks.                                  J.A. 686.           After

Jacobs   filed     suit,     the      AOC     put     forward       still    more     reasons,

claiming    that    Jacobs       slept      on    the    job    and       failed    to    follow

procedures for calling in sick.

     Although       this     constellation              of     justifications            is    not

internally       inconsistent,         many      of   the     purported      justifications

were not raised at the time of termination. Even more striking

is that no one at the AOC documented any of the justifications

(including those raised at the time of termination) in any way.

Moreover, all of the annotations on the e-mail printout (that

Tucker   testified        reflect       her      contemporaneous            account      of    the

reasons for firing Jacobs) concern her disability, use of sick

leave,     and     request       for        accommodation;           none      concern          the

                                              31
justifications raised during the course of litigation.                           Drawing

all reasonable inferences in favor of Jacobs, we conclude that

the   AOC’s         undocumented      and   uncorroborated          justifications   are

pretextual           and   were    not      the     actual     reason    for    Jacobs’s

termination. 15

        In          addition,      substantial             circumstantial       evidence

contradicts Tucker’s testimony that she decided to fire Jacobs

after learning that Jacobs had been sleeping on the job.                              See

Reeves, 530 U.S. at 151 (stating that courts need not credit the

moving        party’s      evidence     when      it   is    either   contradicted     or

impeached by the nonmoving party).                     First, even though Jacobs’s

alleged sleeping was purportedly central to Tucker’s decision to

fire her, Tucker did not discuss it in the termination meeting

or in responding to the EEOC.                  Rather, the story emerged for the

first        time    during   discovery      in     this    suit.     Second,   Tucker’s

deposition          testimony     contains     numerous       inconsistencies.        For

example, she testified about a discussion that purportedly took

place during the termination meeting, but that discussion is

entirely        absent     from   the    unaltered          audio   recording   of   that

        15
        Jacobs also argues that the AOC’s evidence regarding the
justifications    for    firing    Tucker    is     self-defeating.
Specifically,   she   notes   that  although    all   of   Jacobs’s
supervisors testified that they learned of Jacobs’s performance
issues from co-worker Ashley English, English testified that she
never discussed Jacobs’s performance with them.        We conclude
that English’s testimony creates a genuine dispute of fact
regarding Jacobs’s alleged performance issues.

                                               32
meeting.      See Deville v. Marcantel, 567 F.3d 156, 165 (5th Cir.

2009) (per curiam) (“Summary judgment is not appropriate when

‘questions about the credibility of key witnesses loom large’

and the evidence could permit the trier-of-fact to treat their

testimony       with     ‘skeptical      scrutiny.’”         (ellipsis      omitted)

(quoting Thomas v. Great Atl. & Pac. Tea Co., 233 F.3d 326, 331

(5th Cir. 2000))).

       Third,     Radewicz--who     testified    that       she     observed    Jacobs

sleeping at her desk and called Tucker while she was away on

vacation to let her know--also testified that she was coached by

Tucker      regarding    specific     details    of    her    testimony        on   the
                                    16
morning of her deposition.                Fourth and finally, Radewicz’s

testimony is significantly implausible.                 Tucker testified that,

while she was on vacation, she asked to be called only in the

event of an emergency and that the only call she received was

from Radewicz.         In order to credit Tucker and Radewicz, then, a

jury    would     have   to   believe    that   the    only       “emergency”       that

occurred in the courthouse during Tucker’s three-week vacation

was    Jacobs’s    purportedly    sleeping      on    the    job.      We   therefore

conclude that Jacobs’s circumstantial evidence is sufficient to




       16
        Jacobs denies ever sleeping on the job, but has not
produced evidence directly contradicting Radewicz’s testimony
that she called Tucker during Tucker’s vacation.

                                         33
create a genuine dispute of fact as to whether she was fired for

sleeping on the job.

      In sum, we find that a reasonable jury could conclude that

Jacobs     has   set     out    a    prima    facie      case     of     disability

discrimination and sufficient evidence of pretext to ultimately

prevail on her claim.          The district court thus erred in granting

summary judgment on Jacobs’s disability discrimination claim.



                                       B.

      We next consider whether we should affirm summary judgment

on Jacobs’s retaliatory discharge claim.                 The ADA provides that

“no   person     shall    discriminate       against     any    individual”       for

engaging in protected opposition or participation activity.                       42

U.S.C. § 12203(a).         Jacobs alleges that she was fired because

she   engaged       in   protected    activity;       namely,     requesting      an

accommodation for her social anxiety disorder.

      “In order to prevail on a claim of retaliation, a plaintiff

must either offer sufficient direct and indirect evidence of

retaliation, or proceed under a burden-shifting method.”                      Rhoads

v. FDIC, 257 F.3d 373, 391 (4th Cir. 2001).                     A plaintiff need

not show that she is disabled within the meaning of the ADA. See

id.       Whether    a   plaintiff    proceeds      by    direct       evidence   or

McDonnell Douglas burden-shifting, she must show (i) that she

engaged     in   protected      activity     and,     (ii) because       of   this,

                                       34
(iii) her    employer     took     an    adverse       employment    action         against

her. Id.

     The    parties     do   not       dispute     that    the    first       and    third

elements are satisfied.                Jacobs clearly engaged in protected

activity by submitting a request for accommodation; and the AOC

clearly took an adverse employment action by firing her.                            As set

forth   below,    disputed       issues    of     material       fact    exist       as   to

causation under the McDonnell Douglas framework.                          Accordingly,

we   reverse     the    grant     of    summary        judgment     as   to     Jacobs’s

retaliatory discharge claim.



                                          1.

     In    assessing     causation,       we     begin    with    Jacobs’s      asserted

direct and indirect evidence of retaliation.                      “To avoid summary

judgment, the plaintiff must produce direct evidence of a stated

purpose to discriminate and/or indirect evidence of sufficient

probative force to reflect a genuine issue of material fact.”

Rhoads, 257 F.3d at 391 (quoting Brinkley v. Harbour Recreation

Club, 180 F.3d 598, 607 (4th Cir. 1999)) (brackets and internal

quotation   marks      omitted).         “What    is     required   is    evidence        of

conduct or statements that both reflect directly the alleged

discriminatory attitude and that bear directly on the contested

employment decision.”           Id. at 391–92 (quoting Brinkley, 180 F.3d

at 607).

                                          35
        First, Jacobs argues that Tucker’s refusal to train her for

positions other than the front counter, when Tucker had allowed

the 29 other deputy clerks to train for positions other than the

front       counter,     is     direct    evidence          that   Jacobs    was    treated

adversely because of her request for an accommodation.                               It is

undisputed        that        the   AOC    did        not     provide   such       training

immediately to new hires.                 Jacobs does not produce any evidence

that     other    deputy        clerks     of        comparable    tenure    were    given

training opportunities that she was denied.                          Accordingly, this

argument is without merit.

       Second, Jacobs argues that the actions taken by the AOC

after       she   submitted         her    accommodation           request     constitute

evidence that the AOC reacted to her request with retaliatory

animus.       For example, although her supervisor had granted all

her requests for leave before she sought an accommodation, her

request for leave after seeking the accommodation was denied. 17

Jacobs also cites as direct evidence of retaliatory animus a

letter Tucker wrote to a superior following the termination in

which Tucker said she had reservations about hiring Jacobs due

to her “mousiness.”            J.A. 689.


       17
        We note that, in addition to serving as evidence of
hostility, the denial of leave can itself be an adverse
employment action compensable under the ADA’s retaliation
provision. Wells v. Gates, 336 F. App’x 378, 383–384 (4th Cir.
2009) (per curiam).

                                                36
       Considering       this    evidence       as    a    whole,      we    find   that    no

reasonable jury could conclude on the basis of the purported

direct     and   indirect       evidence        that       Tucker      fired     Jacobs    in

retaliation for her request for accommodation.                              Although Jacobs

provides some indirect evidence from which a factfinder might

infer animus, she has produced no direct evidence of retaliatory

(as    opposed    to    discriminatory)          animus.          Tucker’s       notes     and

statements during the termination meeting indicate that she may

have intended to fire Jacobs because she was disabled, but they

do not indicate that she intended to fire Jacobs in retaliation

for requesting an accommodation.                 Jacobs’s purported direct and

indirect evidence is insufficient to survive summary judgment.



                                           2.

              However,       this   is   not     the       end    of   our     analysis    of

Jacobs’s retaliation claim.              We also consider whether Jacobs can

survive      summary    judgment     under      the       McDonnell     Douglas      burden-

shifting framework.             Under this method of proof, Jacobs “must

show   (1)    that     [s]he    engaged    in    protected          activity;       (2)   that

[her] employer took an adverse action against [her]; and (3)

that a causal connection existed between the adverse activity

and the protected action.”                Haulbrook, 252 F.3d at 706.                     “The

employer      then     has   the    burden      ‘to       rebut   the       presumption     of

retaliation by articulating a legitimate nonretaliatory reason

                                           37
for its actions.’”              Rhoads, 257 F.3d at 392 (quoting Beall v.

Abbots Labs., 130 F.3d 614, 619 (4th Cir. 1997)).                                   The burden

then shifts back to the plaintiff to show that the proffered

reason is pretext.              “The plaintiff always bears the ultimate

burden of persuading the trier of fact that she was the victim

of retaliation.”          Id.

     Jacobs has established the first two elements of the prima

facie case through undisputed evidence.                              The AOC argues that

Jacobs has failed to establish causation because there is “no

evidence”        that    Tucker       knew,       when    she     decided      to    terminate

Jacobs,    that       Jacobs     had     submitted        an     accommodation        request.

Appellees’ Br. at 43.                  As we discussed above, the record in

actuality contains ample evidence from which a reasonable jury

could conclude that Tucker learned of Jacobs’s request for an

accommodation before the termination meeting.                                See supra Part

II.B.3.          We   therefore        proceed         with    the    causation       inquiry.

Jacobs     was    terminated          just     three      weeks      after    requesting      an

accommodation           from    her     supervisors.              This       close    temporal

proximity is sufficient to establish a disputed issue of fact as

to   the    causation          element       of    the     prima      facie     case.         See

Haulbrook,        252    F.3d     at    706       (“[A]       contested      issue    of     fact

arguably    exists        as    to     . . .      [causation],        due    solely     to    the

proximity in time of [the plaintiff’s] termination on November



                                                  38
25 and his assertion on November 4 of a right to accommodation

under the ADA.”).

        From here, the burden-shifting inquiry proceeds just as it

did with respect to Jacobs’s disability discrimination claim.

For the reasons stated above in Part III.A.4, we find that a

reasonable     jury       could    conclude       that   Jacobs       has      set   out

sufficient    evidence      of    pretext    to    ultimately        prevail    on   her

retaliation claim.          Thus, the district court erred in granting

summary judgment on this claim.



                                        C.

    Finally,       we     consider    whether      we    should      affirm     summary

judgment on Jacobs’s failure-to-accommodate claim.                      To establish

a prima facie case for failure to accommodate, Jacobs must show:

“(1) that [she] was an individual who had a disability within

the meaning of the statute; (2) that the employer had notice of

[her] disability; (3) that with reasonable accommodation [she]

could    perform    the    essential    functions        of    the    position;      and

(4) that    the    employer       refused   to    make    such    accommodations.”

Wilson v. Dollar Gen. Corp., 717 F.3d 337, 345 (4th Cir. 2013)

(brackets    and   ellipsis       omitted).        For   the     reasons      discussed

above, we find that Jacobs has established a genuine dispute of

fact regarding the first and second elements of the prima facie

case--that is, that she had a disability and that the AOC had

                                        39
notice of her disability.            As to the fourth element, it is

undisputed that the AOC refused to make an accommodation for

Jacobs.       The only remaining issue concerns the third element:

Could     a    reasonable     jury     find    that   with   a   reasonable

accommodation, Jacobs could perform the essential functions of

the position of deputy clerk?



                                        1.

     We    start   by    determining    the   essential   functions   of   the

position of deputy clerk.        Not all job requirements or functions

are essential.      A job function is essential when “the reason the

position exists is to perform that function,” when there aren’t

enough employees available to perform the function, or when the

function is so specialized that someone is hired specifically

because of his or her expertise in performing that function.               29

C.F.R. § 1630.2(n)(2).        “[I]f 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).    Other

relevant evidence can include “the employer’s judgment as to

which functions are essential,” “the amount of time spent on the

job performing the function,” “the consequences of not requiring

the incumbent to perform the function,” and the work experience



                                        40
of   people    who    hold    the       same    or    similar      job.      29   C.F.R.

§ 1630.2(n)(3). 18

     We begin with the written job description for the position:

“[D]eputy clerks perform a variety of duties including: working

in   the    courtroom,       providing         customer     service,      data    entry,

typing,    filing,     cash    receipting,           case   file    indexing,     multi-

tasking and the ability to type 35-40 corrected wpm, and various

other tasks.”        J.A. 678.      “[P]roviding customer service” is only

one of the many duties that deputy clerks might perform.

     We also consider the undisputed evidence in the record.

The AOC employed 30 deputy clerks.                    Of these, only four worked

regularly at the front counter.                   The others performed various

tasks, including intake, filing, data entry, mailing documents,

bookkeeping, and serving as a courtroom clerk.                       Most new deputy

clerks started at the front counter, purportedly because the

front     counter    is   where     a    new    employee      can    “gain    the   most

knowledge of the office.”               J.A. 434.       However, some new deputy

clerks started in filing and were permitted to perform that task

without first training at the front counter.                       See J.A. 274 (“The

best two places to start are filing and the front counter.”).

Deputy clerks were trained for other roles based on seniority.


     18
        Because the parties agree that the regulations are
instructive, we again assume their reasonableness and decline to
determine what level of deference, if any, they are due.

                                           41
J.A. 259 (“I worked at the front counter five days a week for

over one year before a new deputy clerk was hired and I was

moved off the front counter . . . .”).

       The record contains ample evidence from which a reasonable

jury could conclude that working at the front counter was not an

essential function of the position of deputy clerk.                              The job

description       does     not   indicate         that   all    deputy       clerks   were

expected to work at the front counter.                       Fewer than 15% of the

office’s deputy clerks worked behind the front counter, and some

deputy clerks never performed this task.                        Because most of the

deputy clerks were trained to work behind the front counter,

many     employees        were   available          to   perform       that     function.

Finally, the AOC has produced no evidence that mastery of the

front    desk     was   essential       or   that    Jacobs’s     no    longer    working

behind the front counter would negatively impact the office.                            We

therefore find that Jacobs has established a genuine issue of

fact regarding whether working behind the front counter is an

essential function of the position of deputy clerk.



                                             2.

       We   now    turn    to    the    heart       of   a   claim     for    failure   to

accommodate:       whether,      with    a   reasonable        accommodation,      Jacobs

could perform the essential functions of the position of deputy

clerk.      Wilson, 717 F.3d at 345.                This inquiry proceeds in two

                                             42
steps.      First,    was    the     specific   accommodation         requested    by

Jacobs     reasonable?          Second,       had     the     AOC     granted     the

accommodation, could Jacobs perform the essential functions of

the position?      Id.

     A    reasonable        accommodation       is    one     that    “enables     [a

qualified] individual with a disability . . . to perform the

essential     functions         of     [a]      position.”             29      C.F.R.

§ 1630.2(o)(1)(ii).          The statute expressly contemplates that a

reasonable accommodation may require “job restructuring.”                         42

U.S.C. § 12111(9)(B).          Jacobs’s proposed accommodation was to

work fewer days at the counter and more days microfilming or

performing        other     deputy     clerk        tasks.          This    proposed

accommodation did not require the AOC to increase the workload

of Jacobs’s coworkers; Jacobs merely asked that her employer

change    which    deputy    clerk    was    assigned    to   which    task.      Cf.

Crabill v. Charlotte Mecklenburg Bd. of Educ., 423 F. App’x 314,

323 (4th Cir. 2011) (noting that “an accommodation that would

require other employees to work harder is unreasonable”). 19                        A



     19
       That Jacobs’s request would have necessitated a departure
from the office’s informal seniority system is of no moment.
All deputy clerks shared a common job title and description. In
the absence of evidence of a formal seniority policy, that
Jacobs’s proposed accommodation would require shifting a co-
worker with more seniority to a less desirable task does not
render it inherently unreasonable. Cf. EEOC v. Sara Lee Corp.,
237 F.3d 349, 354–355 (4th Cir. 2001) (where company’s formal
seniority policy which had been in place for 30 years required
                                         43
reasonable jury could therefore conclude that Jacobs’s requested

accommodation was reasonable.

     An    employer   is   not    required   to    grant   even     a    reasonable

accommodation unless it would enable the employee to perform all

of the essential functions of her position.                Jacobs argues that

a transfer away from the front desk would eliminate the cause of

her social anxiety--having to answer questions from strangers

face-to-face    all   day--and      enable   her    to   meet   her      employer’s

reasonable expectations.          The AOC argues that Jacobs was a poor

performer and therefore would have been unable to perform the

essential functions of the position even with the accommodation.

As we found above, there is a genuine dispute of fact as to

whether Jacobs was a poor performer.               Even assuming that Jacobs

actually microfilmed too slowly and pestered her coworkers by

asking for their help, a reasonable jury could conclude that

these     behaviors   were     manifestations      of    Jacobs’s       performance

anxiety and were unlikely to reemerge had the accommodation been

granted.      There   is     no   uncontradicted     evidence     that     Jacobs’s

social anxiety disorder interferes with her ability to file or

perform other administrative tasks.             We therefore conclude that

Jacobs has established a genuine dispute as to whether, with a




an employee to switch to a different shift, it was reasonable
for the company to enforce the seniority policy).

                                       44
reasonable accommodation, she could have performed all of the

essential functions of the position of deputy clerk.



                                                    3.

      The ADA imposes upon employers a good-faith duty “to engage

[with their employees] in an interactive process to identify a

reasonable accommodation.”                    Wilson, 717 F.3d at 346.                      This duty

is triggered when an employee communicates her disability and

desire    for    an     accommodation--even                 if     the     employee         fails    to

identify a specific, reasonable accommodation.                                  Id.    However, an

employer    will       not     be    liable          for    failure        to    engage       in    the

interactive       process           if     the       employee           ultimately          fails    to

demonstrate      the    existence          of       a     reasonable       accommodation            that

would    allow    her     to    perform             the    essential          functions       of    the

position.        Id.     at    347;        see       also    Deily        v.    Waste       Mgmt.     of

Allentown, 55 F. App’x 605, 607 (3d Cir. 2003) (citing Shapiro

v. Twp. of Lakewood, 292 F.3d 356, 360 (3d Cir. 2002)). Two of

our   sister     circuits           have      held        that    failure        to    “discuss       a

reasonable      accommodation            in     a       meeting    in     which       the    employer

takes an adverse employment action” against a disabled employee

is evidence of bad faith.                      Rorrer v. City of Stow, 743 F.3d

1025,    1040    (6th    Cir.       2014)        (citing         EEOC    v.     Chevron      Phillips

Chem. Co., 570 F.3d 606, 622 (5th Cir. 2009)).



                                                    45
       It   is   undisputed       that        each       of    Jacobs’s      supervisors--

Kennedy,     Excell,       and    Griffin--refused               to    discuss     Jacobs’s

accommodation       request      with   her        until      Tucker    returned    to    the

office.       Both    Radewicz      and       Tucker          testified   that     Jacobs’s

supervisors had authority to reassign employees to other tasks

(and    therefore     to    engage       in        the    interactive      process       with

Jacobs).     The morning that Tucker returned to the office after a

three-week absence, she called Jacobs to her office and fired

her without first discussing her accommodation request.                                  From

these facts, a reasonable jury could easily conclude that the

AOC acted in bad faith by failing to engage in the interactive

process with Jacobs.

       We   therefore       conclude      that           summary       judgment    is     not

warranted on Jacobs’s failure to accommodate claim.



                                          IV.

       For the foregoing reasons, we reverse in part the district

court’s     order    granting      summary          judgment       against    Jacobs      and

remand to the district court for trial of her ADA disability

discrimination, retaliation, and failure to accommodate claims.



                                                                      AFFIRMED IN PART,
                                                                      REVERSED IN PART,
                                                                 AND REMANDED FOR TRIAL



                                              46
