Thompson v. Microsoft Corp.

• Decision Date: 22 June 2021
• Docket Number: No. 20-50218,20-50218
• Citation: 2 F.4th 460
• Parties: John THOMPSON, Plaintiff—Appellant, v. MICROSOFT CORPORATION, Defendant—Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

2 F.4th 460

John THOMPSON, Plaintiff—Appellant,

v.MICROSOFT CORPORATION, Defendant—Appellee.

No. 20-50218

United States Court of Appeals, Fifth Circuit.

FILED June 22, 2021

Avi Moshenberg, Nicholas Lawson, McDowell Hetherington, L.L.P., Houston, TX, John Thompson, Austin, TX, for Plaintiff-Appellant.

Eric J. R. Nichols, Karson Thompson, Butler Snow, L.L.P., Austin, TX, for Defendant-Appellee.

Before Higginbotham, Southwick, and Engelhardt, Circuit Judges.

Patrick E. Higginbotham, Circuit Judge:

John Thompson appeals the district court's grant of summary judgment for his employer, Microsoft, on his claims under the Americans with Disabilities Act ("ADA") for failure to accommodate, discrimination, and creation of a hostile work environment. We affirm.

I

Thompson's appeal arises from his efforts to obtain accommodations for his Autism Spectrum Disorder ("ASD"). He first requested accommodations from Microsoft's human resources group in 2015 when he was an account technology strategist. Some of his requested accommodations included working on only one project at a time, provision of an assistant for administrative tasks, and permission to work from home. During negotiations about his requests, Thompson expressed interest in transferring to an Enterprise Architect ("EA") role, which is "a senior-level executive position" serving as a liaison between Microsoft and its clients.

Microsoft informed Thompson that some of his requested accommodations were incompatible with the EA role because the role required "strong leadership and people skills" and "[e]xecutive-level interpersonal, verbal, written and presentation skills." Thompson withdrew his request for accommodations and asked that his new manager not be informed about his ASD diagnosis. He then applied for an EA position and was recommended as a good fit for the role. Thompson was hired as an EA in Austin, Texas. He relocated there from New Jersey and began work in the fall of 2015.

Thompson's performance as an EA did not go smoothly. His first, and only, assignment was with Enterprise Holdings. Despite giving Thompson some initial positive feedback, his manager soon indicated "concerns with [Thompson's] skillset, experience and ability to lead and develop the required business architecture and framework." Specifically, Thompson was not submitting deliverables on time and the quality of the work he did complete was subpar. At one point, the client itself requested that Thompson not continue on the engagement. As a result of these issues and the client's dissatisfaction, Microsoft removed Thompson from the Enterprise Holdings engagement shortly after joining it in January 2016.

In subsequent conversations about his poor performance, Thompson revealed to his EA manager that he was autistic. His manager then contacted Microsoft's human resources and benefits group in February and temporarily removed Thompson from the EA pool, meaning he was not considered to be staffed on any future EA engagements during this time. Thompson again began requesting accommodations.

Thompson submitted a second formal request for accommodations on April 2, 2016. His requests were

• A noise-cancelling headset;

• A specialized job coach with experience coaching executives and/or technologists with ASD;

• Training classes on managing ASD and ADHD in the workplace,

• An individual to assist in translating/interpreting information provided verbally by Thompson into the appropriate written format (i.e. PowerPoint, Word, email, etc.);

• A scribe to record meeting notes for Thompson;

• An individual to assist with administrative tasks, such as travel booking, time and expense reporting, meeting scheduling, routine paperwork, etc., as well as with monitoring timeliness and providing reminders;

• A handheld voice recorder and access to a voice transcription service;

• Specialized software to support time management and organization for individuals with ASD and ADHD;

• Provision of specialized training in managing individuals with ASD and ADHD to Thompson's managers; and

• Permission for Thompson to bring an advocate to performance reviews.

On May 16, Microsoft informed Thompson that it agreed to some of the requests—such as the noise-cancelling headset, specialized job coach, time-management and organization software, and providing training to Thompson's managers on managing employees with ASD—but found others unreasonable. In particular, Microsoft raised concerns about providing Thompson with an individual to assist in translating his verbal information into writing because EAs were expected to clearly communicate their ideas to clients and "[t]he work product would be unacceptably watered down if filtered through a person with less or no experience in basic role requirements of architecture, strategic development, business alignment ..., and other areas." Microsoft was also concerned that Thompson's request for individuals to help him with administrative tasks and recording meeting notes was unreasonable because the EA role requires responding to clients and others quickly and under dynamic conditions. Finally, Microsoft noted that Thompson's requests would require it to hire full-time assistance to handle basic email and administrative tasks for Thompson. As such, Microsoft concluded that these requests would excuse him from performing essential EA functions.

Thompson and Microsoft engaged in additional negotiations through July as to whether Thompson could suggest alternate accommodations that Microsoft would find reasonable. Thompson continued to insist on the accommodations Microsoft found unreasonable, including requests for a person(s) to assist in translating Thompson's verbal thoughts into written form, record meeting notes, and assist with administrative tasks. Microsoft informed Thompson that it continued to find these accommodations unreasonable. Ultimately, Microsoft deemed it could not reasonably accommodate Thompson as an EA, removed him from the EA role, and decided to place him in a job-reassignment process.

Thompson objected to being reassigned, stating that he was willing to accept the accommodations Microsoft was willing to provide and make alternative arrangements for his outstanding needs. On July 21, Microsoft nevertheless proceeded with placing him on job reassignment and began working with him to find an open position with Thompson's requested accommodations in mind. Thompson provided his résumé to the Microsoft employee assisting him with job reassignment but did not express interest in any new positions because he would not consider jobs outside of the Austin area or those that paid a lower salary. Instead, Thompson took long-term disability leave in September 2016 and has not returned to work.¹

II

In 2018, Thompson sued Microsoft, raising claims of failure to accommodate, discrimination, and hostile work environment under the ADA based on his time both as an account technology strategist and an EA.² Microsoft moved for summary judgment on each claim. In responding to Microsoft's motion, Thompson only focused on his claims as they related to his time as an EA. The district court referred the motion to the magistrate, and the magistrate recommended granting the motion. Thompson objected to each conclusion by the magistrate. The district court conducted a de novo review, overruled Thompson's objections, and adopted the magistrate's report and recommendations, granting Microsoft's motion for summary judgment in full.

Thompson now appeals and argues that the district court erred in granting Microsoft summary judgment on his failure-to-accommodate, discrimination, and hostile-work-environment claims as they relate to his time as an EA.

III

We "review a district court's grant of summary judgment de novo , viewing all facts and drawing all inferences in a light most favorable to the non-moving party."³ Summary judgment is proper "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."⁴ "A fact is material if it might affect the outcome of the suit and a factual dispute is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party."⁵ We "may affirm the district court's grant of summary judgment on any ground supported by the record and presented to the district court."⁶

IV

A

We turn first to Thompson's failure-to-accommodate claim. Under the ADA, an employer must "make ‘reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability.’ "⁷ "To prevail on a failure-to-accommodate claim, the plaintiff must show (1) he is a qualified individual with a disability; (2) the disability and its consequential limitations were known by the covered employer; and (3) the employer failed to make reasonable accommodations for such known limitations."⁸

"A plaintiff can establish that he is qualified by showing that either (1) he could perform the essential functions of the job in spite of his disability, or (2) that a reasonable accommodation of his disability would have enabled him to perform the essential functions of the job."⁹ Thompson agrees that he was unable to perform the EA role without any accommodations but argues that there is a genuine issue of material fact as to whether reasonable accommodations would have allowed him to perform EA essential functions. He also argues that Microsoft failed to negotiate reasonable accommodations in good faith.

Reasonable accommodations include "job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations."¹⁰ "The ADA does not require an employer to relieve an employee of any essential functions of his or her job, modify those duties,...