18 Disability Discrimination 18 Disability Discrimination

 In studying disability discrimination, we will focus on Title I of the ADA, which focuses on employment. The ADA raises relatively unique questions in a disparate treatment context. First, defining who belongs to the protected class in question is not obvious--we will address the issue in defining who counts as a qualified individual with a disability. But not all disabled workers are entitled to bring such a claim: Employers are permitted to engage in disparate treatment on the basis of disability if the disabled employee is unable to perform the essential functions of the job. In addition, employers are free to use qualification standards that screen out disabled individuals if those qualifications are job-related and consistent with business necessity. We will focus on these core dimensions of disability discrimination next.

18.1 Summers v. Altarum Institute, Corp. 18.1 Summers v. Altarum Institute, Corp.

Carl R. SUMMERS, Plaintiff-Appellant, v. ALTARUM INSTITUTE, CORPORATION, Defendant-Appellee. *326AARP; National Employment Lawyers Association, Amici Supporting Appellant.

No. 13-1645.

United States Court of Appeals, Fourth Circuit.

Argued: Dec. 10, 2013.

Decided: Jan. 23, 2014.

ARGUED: David Scher, The Employment Law Group, PC, Washington, D.C., for Appellant. Paul William Coughenour, Clark Hill PLC, Detroit, Michigan, for Ap-pellee. ON BRIEF: R. Scott Oswald, The Employment Law Group, PC, Washington, D.C., for Appellant. Carly E. Osadetz, Clark Hill PLC, Detroit, Michigan, for Ap-pellee. Rebecca Hamburg Cappy, National Employment Lawyers Association, San Francisco, California; Daniel B. Kohrman, AARP Foundation Litigation, Washington, D.C.; Melvin Radowitz, AARP, Washington, D.C., for Amici Supporting Appellant.

Before MOTZ, AGEE, and DIAZ, Circuit Judges.

Reversed and remanded by published opinion. Judge MOTZ wrote the opinion, in which Judge AGEE and Judge DIAZ joined.

*327DIANA GRIBBON MOTZ, Circuit Judge:

Pursuant to recent amendments to the Americans With Disabilities Act, a sufficiently severe temporary impairment may constitute a disability. Because the district court held to the contrary, we reverse and remand.

I.

A.

Carl Summers appeals the dismissal of his complaint for failure to state a claim on which relief can be granted. Accordingly, we recount the facts as alleged by Summers. Minor v. Bostwick Labs., Inc., 669 F.3d 428, 430 n. 1 (4th Cir.2012).

In July 2011, Summers began work as a senior analyst for the Altarum Institute, a government contractor with an office in Alexandria, Virginia. Summers’s job required him to travel to the Maryland offices of Altarum’s client, the Defense Centers of Excellence for Psychological Health and Traumatic Brain Injury (“DCoE”). At DCoE, Summers conducted statistical research, wrote reports, and made presentations. Altarum policy authorized employees to work remotely if the client approved. The client, here DCoE, preferred contractors to work on-site during business hours, but permitted them to work remotely from home when “putting in extra time on [a] project.”

On October 17, 2011, Summers fell and injured himself while exiting a commuter train on his way to DCoE. With a heavy bag slung over his shoulder, he lost his footing and struck both knees against the train platform. Paramedics took Summers to the hospital, where doctors determined that he had sustained serious injuries to both legs. Summers fractured his left leg and tore the meniscus tendon in his left knee. He also fractured his right ankle and ruptured the quadriceps-patellar tendon in his right leg. Repairing the left-leg fracture required surgery to fit a metal plate, screws, and bone into his tibia. Treating Summers’s ruptured right quadriceps required another surgery to drill a hole in the patella and refasten his tendons to the knee.

Doctors forbade Summers from putting any weight on his left leg for six weeks and estimated that he would not be able to walk normally for seven months at the earliest. Without surgery, bed rest, pain medication, and physical therapy, Summers alleges that he would “likely” not have been able to walk for more than a year after the accident.

While hospitalized, Summers contacted an Altarum human-resources representative about obtaining short-term disability benefits and working from home as he recovered. The Altarum representative agreed to discuss “accommodations that would allow Summers to return to work,” but suggested that Summers “take short-term disability and focus on getting well again.” Summers sent emails to his supervisors at Altarum and DCoE seeking advice about how to return to work; he suggested “a plan in which he would take short-term disability for a few weeks, then start working remotely part-time, and then increase his hours gradually until he was full-time again.”

Altarum’s insurance provider granted Summers short-term disability benefits. But Altarum never followed up on Summers’s request to discuss how he might successfully return to work. The company did not suggest any alternative reasonable accommodation or engage in any interactive process with Summers. Nor did Alta-rum tell Summers that there was “any problem with his plan for a graduated return to work.” Instead, on November *32830, Altarum simply informed Summers “that Altarum was terminating [him] effective December 1, 2011, in order to place another analyst in his role at DCoE.”

B.

In September 2012, Summers filed a complaint in the Eastern District of Virginia alleging two claims under the Americans With Disability Act (“ADA” or “Act”). First, Summers asserted that Altarum discriminated against him by wrongfully discharging him on account of his disability. Second, Summers asserted that Altarum failed to accommodate his disability. After Summers amended the complaint in October 2012, the district court granted Alta-rum’s Rule 12(b)(6) motion and dismissed both claims without prejudice.

Rather than filing a second amended complaint, Summers filed a new lawsuit in December 2012 presenting essentially the same two claims. A few months later, the district court again granted Altarum’s motion to dismiss both claims, this time with prejudice. First, the court dismissed the wrongful-discharge claim on the ground that Summers had failed to allege that he was disabled. The court reasoned that a “temporary condition, even up to a year, does not fall within the purview of the [A]et” and so “the defendant’s not disabled.” The court further suggested that Summers was not disabled because he could have worked with the assistance of a wheelchair. Second, the court dismissed Summers’s failure-to-accommodate claim on the ground that Summers failed to allege that he had requested a reasonable accommodation. The court reasoned that an employee bears the burden of requesting a reasonable accommodation, and that Summers’s proposal to work temporarily from home was unreasonable “because it sought to eliminate a significant function of the job.”

On appeal, Summers challenges only the district court’s dismissal of his wrongful-discharge claim. He does not contest the court’s dismissal of his failure-to-accommodate claim, and so we do not consider it.

II.

To survive a motion to dismiss, a complaint must state “a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). We review de novo an appeal from a Rule 12(b)(6) dismissal, accepting the complaint as true and drawing reasonable inferences in the plaintiffs favor. Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir.2009).

A.

The ADA makes it unlawful for covered employers to “discriminate against a qualified individual on the basis of disability.” 42 U.S.C. § 12112(a) (2012). The Act prohibits covered employers from discharging qualified employees because they are disabled. Id. To establish a wrongful-discharge claim, a plaintiff must show, among other things, that he suffered from a “disability.” Young v. United Parcel Serv., 707 F.3d 437, 443 (4th Cir.2013).

Under the ADA, a “disability” may take any of the following forms: (1) “a physical or mental impairment that substantially limits one or more major life activities” (the “actual-disability” prong); (2) “a record of such an impairment” (the “record-of’ prong); or (3) “being regarded as having such an impairment” (the “regarded-as” prong). 42 U.S.C. § 12102(1). Summers alleges that he was disabled under the ADA’s actual-disability prong. Specifically, he asserts that his impairment “substantially limit[ed]” his ability to walk— which the ADA recognizes as one of the *329“major life activities” whose substantial limitation qualifies as a disability. Id. § 12102(2)(A). Accordingly, if Summers’s impairment substantially limited his ability to walk, he suffered a “disability” for purposes of the ADA.

B.

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 (“ADAAA” or “amended Act”). In response to a series of Supreme Court decisions that Congress believed improperly restricted the scope of the ADA, it passed legislation with the stated purpose of “reinstating a broad scope of protection to be available under the ADA.” Id. § 2(b)(1). Particularly relevant to this case, Congress sought to override Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184, 199, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002), in which the Supreme Court had adopted a strict construction of the term “disability” and suggested that a temporary impairment could not qualify as a disability under the Act. Congress believed that Toyota set an “inappropriately high level of limitation necessary to obtain coverage under the ADA.” Pub.L. No. 110-325, § 2(b)(5).

Abrogating Toyota, the amended Act provides that the definition of disability “shall be construed in favor of broad coverage of individuals under this chapter, to the maximum extent permitted by [its] terms.” 42 U.S.C. § 12102(4)(A). Further, Congress instructed that the term “substantially limits” be interpreted consistently with the liberalized purposes of the AD AAA. Id. § 12102(4)(B).1 And Congress directed the Equal Employment Opportunity Commission (“EEOC”) to revise its regulations defining the term “substantially limits” to render them consistent with the broadened scope of the statute. Pub.L. No. 110-325, § 2(b)(6).

After notice and comment, the EEOC promulgated regulations clarifying that “[t]he term ‘substantially limits’ shall be construed broadly in favor of expansive coverage” and that the term is “not meant to be a demanding standard.” 29 C.F.R. § 1630.2(j)(l)(i) (2013). The EEOC regulations also expressly provide that “effects of an impairment lasting or expected to last fewer than six months can be substantially limiting” for purposes of proving an actual disability. Id. § 1630.2(j)(l)(ix) (emphasis added).

According to the appendix to the EEOC regulations, the “duration of an impairment is one factor that is relevant in determining whether the impairment substantially limits a major life activity.” Id. § 1630.2(j)(l)(ix) (app.). Although “[i]m-pairments that last only for a short period of time are typically not covered,” they may be covered “if sufficiently severe.” Id. The EEOC appendix illustrates these principles: “[I]f an individual has a back impairment that results in a 20-pound lifting restriction that lasts for several months, he is substantially limited in the major life activity of lifting, and therefore covered under the first prong of the definition of disability.” Id.

III.

In dismissing Summers’s wrongful-discharge claim, the district court held that, even though Summers had “suffered a very serious injury,” this injury did not *330constitute a disability because it was temporary and expected to heal within a year. That holding represented an entirely reasonable interpretation of Toyota and its progeny. But in 2008, Congress expressly abrogated Toyota by amending the ADA. We are the first appellate court to apply the amendment’s expanded definition of “disability.”2 Fortunately, the absence of appellate precedent presents no difficulty in this case: Summers has unquestionably alleged a “disability” under the ADAAA sufficiently plausible to survive a Rule 12(b)(6) motion.

A.

Summers alleges that his accident left him unable to walk for seven months and that without surgery, pain medication, and physical therapy, he “likely” would have been unable to walk for far longer.3 The text and purpose of the ADAAA and its implementing regulations make clear that such an impairment can constitute a disability.

In the amended Act, after concluding that courts had construed the term “disability” too narrowly, Congress stated that it intended to liberalize the ADA “in favor of broad coverage.” 42 U.S.C. § 12102(4)(A). Congress also mandated that the ADA, as amended, be interpreted as broadly as its text permits. Id. Furthermore, the EEOC, pursuant to its delegated authority to construe “disability” more generously, adopted new regulations providing that an impairment lasting less than six months can constitute a disability. 29 C.F.R. § 1630.2(j)(l)(ix). Athough short-term impairments qualify as disabilities only if they are “sufficiently severe,” id. § 1630.2(j)(l)(ix) (app.), it seems clear that the serious impairment alleged by Summers is severe enough to qualify. If, as the' EEOC has concluded, a person who cannot lift more than twenty pounds for “several months” is sufficiently impaired to be disabled within the meaning of the amended Act, id., then surely a person whose broken legs and injured tendons render him completely immobile for more than seven months is also disabled.

In holding that Summers’s temporary injury could not constitute a disability as a matter of law, the district court erred not only in relying on pre-ADAAA cases but also in' misapplying the ADA disability analysis. The court reasoned that, because Summers could have worked with a wheelchair, he must not have been dis*331abled. This inverts the appropriate inquiry. A court must first establish whether a plaintiff is disabled by determining whether he suffers from a substantially hmiting impairment. Only then may a court ask whether the plaintiff is capable of working with or without an accommodation. See 42 U.S.C. § 12102(4)(E)(i)(III) (the determination whether an impairment is substantially limiting “shall be made without regard to the ameliorative effects of ... reasonable accommodations”). If the fact that a person could work with the help of a wheelchair meant he was not disabled under the Act, the ADA would be eviscerated.4

B.

Despite the sweeping language of the amended Act and the clear regulations adopted by the EEOC, Altarum maintains that a temporary impairment cannot constitute a disability. In doing so, Altarum principally relies on pre-ADAAA cases that, as we have explained, the amended Act abrogated. Additionally, Altarum briefly advances two other arguments why Summers’s leg injuries did not “substantially limit” his ability to walk.

1.

First, Altarum contends that the EEOC regulations defining a disability to include short-term impairments do not warrant deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Altarum argues that Congress’s intent “not to extend ADA coverage to those with temporary impairments expected to fully heal is evident,” because such a “dramatic expansion of the ADA would have been accompanied by some pertinent statement of Congressional intent.” Altarum Br. 34-35.

When a litigant challenges an agency’s interpretation of a statute, we apply the familiar two-step Chevron analysis. First, we evaluate whether Congress has “directly spoken” to the precise question at issue. If traditional rules of statutory construction render the intent of Congress clear, “that is the end of the matter.” Chevron, 467 U.S. at 842, 104 S.Ct. 2778. If the statute is “silent or ambiguous” with respect to the question at issue, we proceed to the second step — determining whether the agency’s interpretation of the statute is reasonable. Id. at 843, 104 S.Ct. 2778. An agency’s reasonable interpretation will *332control, even if better interpretations are possible. Id. at 843 n. 11, 104 S.Ct. 2778.

Although Altarum contends that Congress’s intent to withhold ADA coverage from temporarily impaired employees is “evident,” Altarum Br. 34, no such intent seems evident to us. To be sure, the amended Act does preserve, without alteration, the requirement that an impairment be “substantial” to qualify as a disability. But Congress enacted the ADAAA to correct what it perceived as the Supreme Court’s overly restrictive definition of this very term. And Congress expressly directed courts to construe the amended statute as broadly as possible. Moreover, while the ADAAA imposes a six-month requirement with respect to “regarded-as” disabilities, it imposes no such durational requirement for “actual” disabilities, thus suggesting that no such requirement was intended. See Hamdan v. Rumsfeld, 548 U.S. 557, 578, 126 S.Ct. 2749, 165 L.Ed.2d 723 (2006) (“[A] negative inference may be drawn from the exclusion of language from one statutory provision that is included in other provisions of the same statute.”). For these reasons, we must reject Alta-rum’s contention that the amended Act clearly evinces Congress’s intent to withhold ADA coverage for temporary impairments. At best, the statute is ambiguous with respect to whether temporary impairments may now qualify as disabilities.

Accordingly, we turn to step two of the Chevron analysis — determining whether the EEOC’s interpretation is reasonable. We conclude that it is. The EEOC’s decision to define disability to include severe temporary impairments entirely accords with the purpose of the amended Act. The stated goal of the ADAAA is to expand the scope of protection available under the Act as broadly as the text permits. The EEOC’s interpretation — that the ADAAA may encompass temporary disabilities— advances this goal. Moreover, extending coverage to temporarily impaired employees produces consequences less “dramatic” than Altarum seems to envision. Prohibiting employers from discriminating against temporarily disabled employees will burden employers only as long as the disability endures. Temporary disabilities require only temporary accommodations.

2.

Alternatively, Altarum argues that, even deferring to the EEOC regulations, Summers’s impairment does not qualify as a disability. Altarum maintains that the EEOC regulations do not apply to Summers’s impairment because those regulations do not cover “temporary impairments due to injuries” even if they do cover “impairments due to permanent or long-term conditions that have only a short term impact.” Altarum Br. 37.

But, in fact, the EEOC regulations provide no basis for distinguishing between temporary impairments caused by injuries, on one hand, and temporary impairments caused by permanent conditions, on the other. The regulations state only that the “effects of an impairment lasting or expected to last fewer than six months can be substantially limiting” — they say nothing about the cause of the impairment. 29 C.F.R. § 1630.2(j)(l)(ix).

Nor do the regulations suggest that an “injury” cannot be an “impairment.” Rather, the EEOC defines an impairment broadly to include “[a]ny physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems,” including the “musculoskel-etal” system. Id. § 1630.2(h)(1). This expansive definition surely includes broken bones and torn tendons. And the EEOC elsewhere uses the terms “injury” and “impairment” interchangeably. See id. *333§ 1630.2©(5) n. 3 (app.); id. § 1630.15(f) (app.).

In sum, nothing about the AD AAA or its regulations suggests a distinction between impairments caused by temporary injuries and impairments caused by permanent conditions. Because Summers alleges a severe injury that prevented him from walking for at least seven months, he has stated a claim that this impairment “substantially limited” his ability to walk.

IV.

Under the ADAAA and its implementing regulations, an impairment is not categorically excluded from being a disability simply because it is temporary. The impairment alleged by Summers falls comfortably within the amended Act’s expanded definition of disability. We therefore reverse the district court’s dismissal of Summers’s wrongful-discharge claim and remand the case for further proceedings consistent with this opinion.

REVERSED AND REMANDED

18.2 Shell v. Burlington Northern Santa Fe Railway Co., 941 F.3d 331 (7th Cir. 2019) 18.2 Shell v. Burlington Northern Santa Fe Railway Co., 941 F.3d 331 (7th Cir. 2019)

941 F.3d 331 (2019)

Ronald SHELL, Plaintiff-Appellee,
v.
BURLINGTON NORTHERN SANTA FE RAILWAY COMPANY, Defendant-Appellant.

No. 19-1030.

United States Court of Appeals, Seventh Circuit.

Argued September 26, 2019.
Decided October 29, 2019.
Rehearing Denied December 20, 2019.

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division, No. 1:15-cv-11040, Sharon Johnson Coleman, Judge.

Nicholas F. Esposito, Attorney, Esposito & Staubus, Burr Ridge, IL, for Plaintiff-Appellee.

Bryan P. Neal, Attorney, Stephen F. Fink, Attorney, Thompson & Knight LLP, Dallas, TX, for Defendant-Appellant.

Sydney Foster, Attorney, Jennifer S. Goldstein, Attorney, Jeremy D. Horowitz, Attorney, James L. Lee, Attorney, Equal Employment Opportunity Commission, Washington, DC, Noel J. Francisco, Attorney, Department of Justice, Office of the Solicitor General, Washington, DC, for Amicus Curiae.

Before BAUER, MANION, and SCUDDER, Circuit Judges.

333*333 SCUDDER, Circuit Judge.

Burlington Northern Sante Fe Railroad Company refused to hire Ronald Shell solely because it believed his obesity presented an unacceptably high risk that he would develop certain medical conditions that would suddenly incapacitate him on the job. Shell sued BNSF under the Americans with Disabilities Act, alleging that BNSF discriminated against him based on a disability. BNSF moved for summary judgment and argued that the ADA's definition of "disability" is not met where an employer regards an applicant as not presently having a disability but at high risk of developing one. Concluding that the ADA does reach discrimination based on a future impairment, the district court denied BNSF's motion. We come to a contrary conclusion and reverse.

 

I

 

Ronald Shell began working at Chicago's Corwith Rail Yard in 1977. The Corwith Yard is a hub at which freight containers are loaded on and off trains before continuing the journey to their intended destinations. Shell occupied different positions over his 33 years at the railyard, including as a groundsman, driver, and crane operator. All indications are that Shell was a productive and skilled employee.

By 2010, Burlington Northern Santa Fe Railway Company owned Corwith Yard, and Shell worked for the company that BNSF contracted with to handle its operations. Later that year, BNSF decided to assume the railyard's operations itself. 334*334 This ended the employment of those like Shell who worked for the operations company, but BNSF invited those employees to apply for new positions.

Shell applied to work as an intermodal equipment operator. The position required the employee to perform three roles—that of a groundsman, who climbs on railcars to insert and remove devices that interlock the containers; a hostler, who drives the trucks that move trailers; and a crane operator, who operates the cranes used to load and unload containers. BNSF classifies this as a "safety-sensitive" position because it requires working on and around heavy equipment. Upon reviewing Shell's application, BNSF extended a conditional offer of employment. One of the conditions was that Shell pass a medical evaluation.

Dr. Michael Jarrad, BNSF's chief medical officer, was responsible for making the decision. Dr. Jarrad reviewed a medical history questionnaire, in which Shell described his overall health as very good and did not report any medical conditions. A physical exam then revealed that Shell was 5′ 10″ tall and weighed 331 pounds, translating to a body-mass index of 47.5.

BNSF does not hire applicants for safety-sensitive positions, like the one Shell was applying for, if their BMI is 40 or greater. People with BMIs in this range are considered to have class III obesity. BNSF says that the reasoning behind its BMI policy is that prospective employees with class III obesity are at a substantially higher risk of developing certain conditions like sleep apnea, diabetes, and heart disease and the unpredictable onset of those conditions can result in sudden incapacitation. BNSF believes that someone with class III obesity could unexpectedly experience a debilitating health episode and lose consciousness at any moment, including while operating dangerous equipment —a result that could be disastrous for everyone in the vicinity.

Applying BNSF's BMI policy, Dr. Jarrad decided that Shell was not medically qualified for the job. BNSF informed Shell of his disqualification but told him that his application could be reconsidered if he lost at least 10% of his weight, maintained the weight loss for at least six months, and submitted to further medical evaluations if requested.

Shell sued BNSF, alleging that its refusal to hire him constituted discrimination on the basis of a perceived disability in violation of the ADA. BNSF moved for summary judgment after the close of discovery. The company argued that Shell did not have a disability within the meaning of the ADA because his obesity was not a qualifying impairment and no evidence suggested that BNSF regarded him as presently having such an impairment. In the alternative, BNSF asserted that even if its refusal to hire Shell reflected discrimination, its BMI policy fit within the ADA's business-necessity defense.

The district court denied BNSF's motion, holding that Shell's obesity was not a qualifying impairment but that a disputed factual question remained—whether BNSF regarded Shell as having the allegedly obesity-related conditions of sleep apnea, heart disease, and diabetes. The district court also declined to grant BNSF summary judgment based on the business-necessity defense because the company had not provided sufficient evidence to show that class III obesity posed risks great enough to make the policy necessary.

At BNSF's request, the district court certified its order for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). In doing so, the district court defined the question presented as "whether the ADA's regarded-as provision encompasses conduct motivated 335*335 by the likelihood that an employee will develop a future disability within the scope of the ADA." We accepted the interlocutory appeal and invited the EEOC to file a friend-of-the-court brief, which the agency then did.

 

II

 

The ADA generally prohibits covered employers from discriminating against job applicants "on the basis of disability." 42 U.S.C. § 12112(a). To prove a violation of this provision, a plaintiff must show "(1) he is disabled; (2) he is otherwise qualified to perform the essential functions of the job with or without reasonable accommodation; and (3) the adverse job action was caused by his disability." Roberts v. City of Chi., 817 F.3d 561, 565 (7th Cir. 2016). The statute defines "disability" as "(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment (as described in paragraph (3))." 42 U.S.C. § 12102(1). Paragraph (3), in turn, explains that someone is "being regarded as having such an impairment" when "he or she has been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity." Id. § 12102(3)(A).

At the time this case was before the district court, Shell had an argument that his obesity qualifies as a physical impairment and thus a "disability" within the meaning of § 12101(1)(A). If that were true, the undisputed facts would support a prima facie case of discrimination because Shell's weight motivated BNSF's decision not to hire him. But our recent decision in Richardson v. Chicago Transit Authority, 926 F.3d 881 (7th Cir. 2019) foreclosed that argument for Shell. We held that obesity alone is not a physical impairment under the ADA unless accompanied by evidence that the obesity is caused by an underlying physiological disorder or condition, id. at 888, and Shell presented no such evidence to the district court. Nor does Shell point to any evidence that BNSF regarded his obesity as having a physiological origin.

Shell instead bases his disability claim on those medical conditions that BNSF feared he would develop—sleep apnea, diabetes, and heart disease—which undisputedly qualify as impairments under the statute. The wrinkle, though, is that he did not have those impairments at the time he applied to work for BNSF, and the company held no perception to the contrary.

Shell spends much of his brief arguing that by refusing to hire him based on the risk of future impairment, BNSF has treated him as if he has the impairments now. That position relies on an assumption that even if BNSF knew that Shell did not currently have the impairments, treating him as if he did would constitute a disability. That view is mistaken. See Silk v. Bd. of Trs., Moraine Valley Cmty. Coll., Dist. No. 524, 795 F.3d 698, 706 (7th Cir. 2015) ("In satisfying the `regarded as' prong, Silk must show that the College perceived him as having an impairment."). The evidence is clear that BNSF did not believe that Shell had any of the feared impairments when it refused his application. Dr. Jarrad submitted a declaration saying that when he made his decision, he did not understand Shell to have one of those impairments. And when BNSF echoed the same in its statement of material facts, Shell's response pointed to no evidence to controvert that fact.

All of this narrows and lends precision to the question before us: whether the 336*336 ADA's "regarded as" prong covers a situation where an employer views an applicant as at risk for developing a qualifying impairment in the future. We hold that it does not.

 

A

 

We find our answer in the first (and usually final) stop for statutory questions —the text. The ADA's "regarded as" prong defines "disability" as "being regarded as having [a physical or mental] impairment." 42 U.S.C. § 12102(1)(C). It is written in the passive voice, resulting in some of the attendant clumsiness that English teachers warn of. Even so, the text plainly encompasses only current impairments, not future ones. The key word is "having," and the EEOC and BNSF quarrel over whether it is a gerund or a present participle. Labels aside, no one would understand the sentence, "Shell is being regarded as having sleep apnea," to mean anything other than Shell is viewed today as currently suffering from sleep apnea. "Having" means presently and continuously. It does not include something in the past that has ended or something yet to come. To settle the technical debate, it is a present participle, used to form a progressive tense. See BRYAN A. GARNER, GARNER'S MODERN AMERICAN USAGE 1020 (4th ed. 2016) (defining "present participle" as "[a] nonfinite verb form ending in -ing and used in verb phrases to signal the progressive aspect").

This reading is definitively reinforced by the ADA's specific definition of "being regarded as having such an impairment" in paragraph 3, which is when "he or she has been subjected to an action ... because of an actual or perceived physical or mental impairment." 42 U.S.C. § 12102(3)(A). If the impairment does not yet exist, it can be neither actual nor perceived.

The EEOC points to the Dictionary Act's command that "unless the context indicates otherwise ... words used in the present tense include the future as well as the present." 1 U.S.C. § 1. The Dictionary Act adds little, however, because its general instruction cannot overcome the plain meaning of the ADA's statutory text. Put another way, the "context [that] indicates otherwise" here comes from the ordinary import of the language Congress employed in § 12102(1)(C) and § 12102(3)(A) of the ADA. See Rowland v. Cal. Men's Colony, Unit II Men's Advisory Council, 506 U.S. 194, 199, 113 S.Ct. 716, 121 L.Ed.2d 656 (1993) ("`Context' here means the text of the Act of Congress surrounding the word at issue ... and this is simply an instance of the word's ordinary meaning."); EEOC v. STME, LLC, 938 F.3d 1305, 1317 (11th Cir. 2019) ("While it is true that the phrase `being regarded as having such an impairment' contains present tense verbs, the ADA's plain language and context indicates that the Dictionary Act does not apply here as the EEOC suggests.").

We find ourselves in good company with this reading of the ADA's text. In Morriss v. BNSF Railway Company, 817 F.3d 1104, 1113 (8th Cir. 2016), the Eighth Circuit came to the same conclusion on similar facts. BNSF denied Melvin Morriss's job application for the same reason it denied Shell's—his BMI was over 40. Id. at 1106. Morriss, like Shell, argued that BNSF's refusal to hire him based on the risk that he would develop certain medical conditions in the future meant that the company perceived him as having a current physical impairment. Id. at 1113. The Eighth Circuit explained that "the plain language of the ADA prohibits actions based on an existing impairment or the perception of an existing impairment" but "[t]he ADA does not prohibit discrimination based on a perception that a physical characteristic— as opposed to a physical impairment—may 337*337 eventually lead to a physical impairment as defined under the Act." Id.

All other circuits that have confronted the issue agree. See STME, 938 F.3d at 1315 ("[T]he disability definition in the ADA does not cover this case where an employer perceives a person to be presently healthy with only a potential to become ill and disabled in the future."); EEOC v. BNSF Ry. Co., 902 F.3d 916, 923 (9th Cir. 2018) (noting that the parties agreed "BNSF must have regarded [the employee] as having a current impairment," a reading that "comports ... with the statutory text, which prohibits discrimination on the basis of an `actual or perceived impairment' in the present tense"); see also Adair v. City of Muskogee, 823 F.3d 1297, 1306 (10th Cir. 2016) (stating that the employer must have "perceived the impairment at the time of the alleged discriminatory action").

With only proof that BNSF refused to hire him because of a fear that he would one day develop an impairment, Shell has not established that the company regarded him as having a disability or that he is otherwise disabled. Absent this showing, he cannot prevail on his claim of discrimination, and BNSF is entitled to summary judgment.

 

B

 

The EEOC advances two other arguments in favor of its contrary reading of the ADA's text. First, the agency points to its Compliance Manual, which provides this example:

CP's genetic profile reveals an increased susceptibility to colon cancer. CP is currently asymptomatic and may never in fact develop colon cancer. After making CP a conditional offer of employment, R learns about CP's increased susceptibility to colon cancer. R then withdraws the job offer because of concerns about matters such as CP's productivity, insurance costs, and attendance. R is treating CP as having an impairment that substantially limits a major life activity. Accordingly, CP is covered by the third part of the definition of "disability."

EEOC Compl. Man. § 902.8, 2009 WL 4782113. Though at first blush this example seems to support the agency's contention that future impairments are covered, other agency guidance muddies the water. Foremost, the EEOC's Interpretative Guidance says the definition of "impairment" does not include "characteristic predisposition to illness or disease." 29 C.F.R. Pt. 1630, App. § 1630.2(h). If the impairment is susceptibility to colon cancer, then the Compliance Manual contradicts the Interpretive Guidance's statement that a predisposition is not an impairment. And if the impairment is colon cancer itself, the Compliance Manual contains no explanation for why the withdrawal of a job offer based on the applicant's susceptibility to colon cancer is the same thing as treating him as if he now has colon cancer. The Compliance Manual's genetic profiling example is unmoored from the ADA's text and in tension with other EEOC interpretative guidance, so it lacks the power to persuade us away from the statute's unambiguous text.

Second, the EEOC invokes the ADA's purpose, part of which is to combat "society's accumulated myths and fears about disability and disease." Sch. Bd. of Nassau County, Fla. v. Arline, 480 U.S. 273, 284, 107 S.Ct. 1123, 94 L.Ed.2d 307 (1987). But to the extent BNSF's BMI policy reflects a stereotype, it is one about obesity, and Shell's obesity—lacking evidence of a physiological cause—is not a disability that the ADA protects. See Richardson, 926 F.3d at 888. While Congress did direct that "[t]he definition of disability... shall be construed in favor of broad 338*338 coverage of individuals," 42 U.S.C. § 12102(4)(A), the mandate does not give us license to go beyond the terms of the statute. See New Prime Inc. v. Oliveira, ___ U.S. ___, 139 S. Ct. 532, 543, 202 L.Ed.2d 536 (2019) ("If courts felt free to pave over bumpy statutory texts in the name of more expeditiously advancing a policy goal, we would risk failing to `take account' of legislative compromises essential to a law's passage and, in that way, thwart rather than honor `the effectuation of congressional intent.'"). We cannot decide the question presented based on broad statutory purposes where the answer is supplied by the statute's plain language.

For these reasons, we REVERSE the district court's denial of summary judgment and REMAND for further proceedings.

18.3 Equal Employment Opportunity Commission v. Ford Motor Co. 18.3 Equal Employment Opportunity Commission v. Ford Motor Co.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. FORD MOTOR COMPANY, Defendant-Appellee.

No. 12-2484.

United States Court of Appeals, Sixth Circuit.

Argued: Dec. 3, 2014.

Decided and Filed: April 10, 2015.

*757ARGUED: Gail S. Coleman, Equal Employment Opportunity Commission, Washington, D.C., for Appellant. Helgi C. Walker, Gibson, Dunn & Crutcher LLP, Washington, D.C., for Appellee. ON BRIEF: Gail S. Coleman, Lorraine C. Davis, Equal Employment Opportunity Commission, Washington, D.C., for Appellant. Helgi C. Walker, Jonathan C. Bond, Gibson, Dunn & Crutcher LLP, Washington, D.C., Elizabeth P. Hardy, Kienbaum Opperwall Hardy & Pelton, P.L.C., Birmingham, Michigan, for Appellee. Ann Elizabeth Reesman, Norris, Tysse, Lampley & Lakis LLP, Washington, D.C., William S. Consovoy, Consovoy McCarthy PLLC, Arlington, .Virginia, for Amici Curiae.

Before: COLE, Chief Judge; BOGGS, BATCHELDER, MOORE, CLAY, GIBBONS, ROGERS, SUTTON, McKEAGUE, GRIFFIN, KETHLEDGE, WHITE, and STRANCH, Circuit Judges.*

KEAGUE, J., delivered the opinion of the court in which BOGGS, BATCHELDER, GIBBONS, ROGERS, SUTTON, GRIFFIN, and KETHLEDGE, JJ., joined. MOORE, J. (pp. 770-86), delivered a separate dissenting opinion in which COLE, C.J., CLAY, WHITE, and STRANCH, JJ., joined.

OPINION

McKEAGUE, Circuit Judge.

The Americans with Disabilities Act (ADA) requires employers to reasonably accommodate their disabled employees; it does not endow all disabled persons with a job — or job schedule — of their choosing. Jane Harris, a Ford Motor Company employee with irritable bowel syndrome, sought a job schedule of her choosing: to work from home on an as-needed basis, up to four days per week. Ford denied her request, deeming regular and predictable on-site attendance essential to Harris’s highly interactive job. Ford’s papers and practices — -and Harris’s three past telecommuting failures — backed up its business judgment.

Nevertheless, the federal Equal Employment Opportunity Commission (EEOC) sued Ford under the ADA. It alleged that Ford failed to reasonably accommodate Harris by denying her telecommuting request and retaliated against *758her for bringing the issue to the EEOC’s attention. The district court granted summary judgment to Ford on both claims. We affirm.

I

The Ford Motor Company employs about 224,000 employees worldwide. True to its founder’s vision, Ford uses its employees in assembly lines to perform independent yet interconnected tasks. Resale buyers of steel come early on the lines— before any assembling begins. They purchase raw steel from steel suppliers and then, as their name suggests, resell the steel to parts manufacturers known as “stampers.” The stampers then supply the steel parts to the vehicle assemblers, who put together the vehicles.

As an intermediary between steel and parts suppliers, the resale buyer’s job is highly interactive. Some of the interactions occur by email and telephone. But many require good, old-fashioned interpersonal skills. During core business hours, for example, resale buyers meet with suppliers at their sites and with Ford employees and stampers at Ford’s site — meetings that Ford says are most effectively performed face to face. And Ford’s practice aligns with its preaching: It requires resale buyers to work in the same building as stampers so they can meet on a moment’s notice. This high level of interactivity and teamwork is why, in Ford’s judgment, “a resale buyer’s regular and predictable attendance in the workplace” is “essential to being a fully functioning member of the resale team.” R. 60-2 at ¶ 11.

A former Ford resale buyer with irritable bowel syndrome takes center stage in this case: Jane Harris. Her job performance was, on the whole, subpar. Early on in her six-plus year tenure, she won a few awards, and Ford recognized her for her “strong commodity knowledge” and “diligent[ ]” work effort. R. 66-2 at 2; R. 60-14 at 6. But over time, the awards and compliments morphed into low ratings and criticisms. Harris placed in the bottom 22% of her peer group in her fourth full year (2007) and in the bottom 10% in her fifth year (2008). It got worse. By her last year (2009), Harris “was not performing the basic functions of her position.” R. 60-2 at ¶ 14. Ford said she lacked interpersonal skills, delivered work late, didn’t show a concern for quality, and failed to properly communicate with the suppliers. She again ranked in the bottom 10% of her peers.

In addition to performing poorly while at work, she repeatedly missed work entirely. In 2008, she missed an average of 1.5 work days per week; in 2009, she was absent more than she was present. And when she didn’t miss work, she would often come in late and leave early. As her coworkers and supervisors put it, Harris worked on a “sporadic and unpredictable basis,” R. 60-8 at ¶ 4, and had “chronic attendance issues,” R. 60-2 at ¶ 8; R. 60-4 at ¶ 3.

Harris’s poor performance and high absenteeism harmed those around her. When she missed work, her teammates had to pick up the slack, including by taking on the functions that Harris could not perform at home. Her supervisors also had to assume her job responsibilities. Her absences caused the resale-buyer team “stress and frustration,” R. 60-8 at ¶¶ 4-5, further compounded Harris’s mistakes, and frustrated suppliers.

Harris’s irritable bowel syndrome of course contributed to the situation. It gave her uncontrollable diarrhea and fecal incontinence, sometimes so bad that “it” could “start[] pouring out of [her]” at work. R. 41 — 4 at 1. She occasionally *759couldn’t even make the one-hour drive to work without having an accident. The vicious cycle continued, as her symptoms increased her stress, and the increased stress worsened her symptoms — making her less likely to come to work.

Ford tried to help. Harris’s first supervisor, Dawn Gontko, for example, adjusted Harris’s schedule to help her establish regular and predictable attendance. Most significantly, Gontko allowed Harris two opportunities to “telecommute on an ad hoc basis” in an “Alternative Work Schedule.” R. 60-3 at ¶ 3. Under this schedule, Harris worked four 10-hour days (known as flex time) and could telecommute as needed on her work days. Each trial lasted one to two months. But neither succeeded: Despite the ad hoe telecommuting and flexible schedules, Harris “was unable to establish regular and consistent work hours” and failed “to perform the core objectives of the job.” Id.; R. 60-7 at 2.

Ford next tried its “Workplace Guidelines” — a reporting tool specially designed to help employees with attendance issues tied to illnesses. These also failed to improve Harris’s attendance or illness. So did the efforts of Harris’s next supervisor, John Gordon, which included allowing Harris to telecommute both during and after core business hours. R. 60-2 at ¶ 8. When this third telecommuting attempt failed, the act repeated itself: The new supervisor, like the old, employed the “Workplace Guidelines,” and the guidelines again failed to remedy Harris’s attendance problems or illness.

Undeterred by these three failed telecommuting attempts, Harris requested leave “to work up to four days per week from home.” R. 60-10 at 1. Gontko had told her, after all, that her job would be appropriate for telecommuting. Ford’s telecommuting policy generally said the same thing. And several of her coworkers telecommuted. So why couldn’t Harris?

Ford’s practice and policy limited telecommuting for resale buyers. In practice, Ford’s buyers telecommuted, at most, on one set day per week. That aligned with its policy, which makes clear that those jobs that require “face-to-face contact”— and those individuals who were not “strong performers” and who had poor time-management skills — were among those not “appropriate for telecommuting.” R. 60-11 at 4.

Before making a decision on the request, two of Ford’s human-resources representatives and Gordon met -with Harris. In the meeting, Gordon went through Harris’s ten main job responsibilities and asked Harris to comment on how she could perform those tasks from home. Of the ten tasks, Harris admitted that she could not perform four of them from home, including meetings with suppliers, making price quotes to stampers, and attending some required internal meetings. Harris added, however, that she did not envision needing to stay home four days per week, only that she wanted the freedom of “up to 4 days.” R. 66-10 at 3 (emphasis added). Harris’s higher-ups told her that they would get back to her about her request.

Ford determined that Harris’s proposed accommodation was unreasonable. Management met with Harris to inform her of the decision. Gordon again listed Harris’s ten job responsibilities: four that could not be performed at home; four that could not effectively be performed from home; and two that were “not significant enough to support telecommuting].” Id. at 4-5. Gordon explained the circumstances under which telecommuting could work: on a, predictable schedule where the strong-performing employee agrees to come to the worksite as needed even on days set for telecommuting. Harris’s coworkers who *760telecommuted fit that bill. But Harris didn’t, and neither did her proposed schedule.

Even though Ford did not grant her requested telecommuting schedule, management told Harris that they could accommodate her in other ways, such as moving her closer to the restroom or looking for jobs better suited for telecommuting. Harris turned down each alternative accommodation. The second meeting ended as Ford informed Harris that it would “talk with her again if she identifie[d] another accommodation.” R. 66-10 at 6. Harris never did. Rather, she sent an email one week later claiming that the denial of her request violated the ADA. And she filed a charge of discrimination with the EEOC a day after that.

The rest of Harris’s time at Ford did not go well. She felt threatened by Gordon in their weekly meetings scheduled to improve her attendance and. performance. And in July of 2009, she ranked in the bottom 10% of her peers for the second evaluation in a row. She disputed the evaluation, claiming that it represented retaliation by Ford for her filing of the discrimination charge. Though asked to elaborate, Harris never did. She instead began a Performance Enhancement Plan. Designed so that the tasks could be “easily” completed within a 30-day deadline, R. 60-15 at ¶ 6, Harris had to complete a one-page spreadsheet, resolve “material claims,” develop a plan to complete work that had been outstanding since the previous year, and the like. R. 60-2 at ¶¶ 20-22. Harris did not satisfy the requirements of the Plan, failing to complete the tasks either entirely or on time. After several years of subpar performance and high absences, this was apparently the last straw: Mike Kane (the Senior Purchasing Manager for Raw Materials) and Lisa King (his manager) decided to terminate Harris on September 10, 2009.

Almost two years later, on August 25, 2011, the EEOC sued Ford under the ADA. It alleged that Ford failed to reasonably accommodate Harris’s disability (violating 42 U.S.C. § 12112(a), (b)(5)(A)), and that it discharged her in retaliation for filing her charge (violating 42 U.S.C. § 12203(a)). On June 29, 2012, Ford moved for summary judgment.

The district court granted Ford’s motion on September 10, 2012. It concluded that “working from home up to four days per week is not [a] reasonable” accommodation under the ADA and that “the evidence [did] not cast doubt on Ford’s stated reason for terminating Harris’s employment: poor performance.” EEOC v. Ford Motor Co., No. 11-13742, 2012 WL 3945540, at *7-*8 (E.D.Mich. Sept. 10, 2012). The EEOC appealed, and a divided panel of this court reversed on both claims. EEOC v. Ford Motor Co., 752 F.3d 634 (6th Cir. 2014).

We granted en banc review, thereby vacating the panel’s decision. Giving fresh review to the district court’s summary-judgment decision and drawing reasonable inferences in the EEOC’s favor, we must determine whether there exists a “genuine dispute as to any material fact” on either issue: failure to accommodate or retaliation. Fed. Rule Civ. Proc. 56(a). At the summary-judgment stage, we view the facts “in the light most favorable to the nonmoving party” (usually by adopting the plaintiffs version of the facts) “only if there is a ‘genuine’ dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (emphasis added). A “genuine” dispute exists when the plaintiff presents “significant probative evidence” “on which a reasonable jury could return a verdict for her.” Chappell v. City of Cleveland, 585 *761F.3d 901, 913 (6th Cir.2009); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Determining whether a genuine dispute exists of course requires a “fact-intensive, case-by-case” analysis. Dissent Op. at 770-71, 775-76, 785-86. But it equally requires looking to case law for guidance and addressing all the facts in the record—including those that uniformly cut against the plaintiff. Undertaking this analysis, we hold that there is no genuine dispute of material fact on this record: A reasonable jury could not return a verdict for the EEOC on either claim.

II

Many disabled individuals re- • quire accommodations to perform their jobs. The ADA addresses this reality by requiring companies like Ford to make “reasonable accommodations to the known ... limitations of an otherwise qualified individual with a disability” where such an accommodation does not cause the employer “undue hardship.” 42 U.S.C. § 12112(b)(5). To comply with the ADA, then, Ford must “reasonably] accommodat[e]” Harris (undisputedly a disabled individual for purposes of this appeal) if she is “qualified.” §§ 12112(a), (b)(5) (emphasis added); see Smith v. Ameritech, 129 F.3d 857, 866 (6th Cir.1997).

To be “qualified” under the ADA, Harris must be able to “perform the essential functions of [a resale buyer]” “with or without reasonable accommodation.” 42 U.S.C. § 12111(8). A “reasonable accommodation” may include “job restructuring [and] part-time or modified work schedules.” Id. at § 12111(9)(B). But it does not include removing an “essential function[ ]” from the position, for that is per se unreasonable. Brickers v. Cleveland Bd. of Educ., 145 F.3d 846, 850 (6th Cir.1998); see Sch. Bd. of Nassau Cnty. v. Arline, 480 U.S. 273, 287 n. 17, 107 S.Ct. 1123, 94 L.Ed.2d 307 (1987). The district court held that Harris was not qualified because her excessive absences prevented her from performing the essential functions of a resale buyer. We agree.

A

Is regular and predictable on-site job attendance an essential function (and a prerequisite to perform other essential functions) of Harris’s resale-buyer job? We hold that it is.

1

We do not write on a clean slate. Much ink has been spilled establishing a general rule that, with few exceptions, “an employee who does not come to work cannot perform any of his job functions, essential or otherwise.” EEOC v. Yellow Freight Sys., Inc., 253 F.3d 943, 948 (7th Cir.2001) (en banc) (quoting Tyndall v. Nat’l Educ. Ctrs., 31 F.3d 209, 213 (4th Cir.1994) (internal quotation marks omitted)). We will save the reader a skim by omitting a long string-cite of opinions that agree, but they do. E.g., Samper v. Providence St. Vincent Med. Ctr., 675 F.3d 1233, 1237-38 (9th Cir.2012) (collecting cases); Mason v. Avaya Commc’ns, Inc., 357 F.3d 1114, 1122-24 (10th Cir.2004) (same). Our Circuit has not bucked the trend. E.g., Ameritech, 129 F.3d at 867. And for good reason: “most jobs require the kind of teamwork, personal interaction, and supervision that simply cannot be had in a home office situation.” Rauen v. U.S. Tobacco Mfg. L.P., 319 F.3d 891, 896 (7th Cir.2003).

That general rule—that regularly attending work on-site is essential to most jobs, especially the interactive ones— aligns with the text of the ADA. Essential functions generally are those that the employer’s “judgment” and “written [job] de*762scription” prior to litigation deem essential. See 42 U.S.C. § 12111(8). And in most jobs, especially those involving teamwork and a high level of interaction, the employer will require regular and predictable on-site attendance from all employees (as evidenced by its words, policies, and practices).

The same goes for the EEOC’s regulations. They define essential functions as those that are “fundamental” (as opposed to “marginal”), 29 C.F.R. § 1630.2(n)(1), so that a job is “fundamentally alter[ed]” if an essential function is removed. 29 C.F.R. § Pt. 1630(n), App. at 394. To guide the essential-function inquiry, the regulations speak in factors — seven of them. The first two restate the statutory considerations. 29 C.F.R. § 1630.2(n)(3)(i)-(ii). The remaining five add other considerations. 29 C.F.R. § 1630,2(n)(3)(iii)-(vii). In many jobs, especially the interactive ones, all seven point toward finding regular and predictable on-site attendance essential. Take the amount of time performing that function, for example, § 1630.2(n)(3)(iii): Most of one’s work time is spent at work, and many interactive functions simply cannot be performed off site. Or take the consequences of failing to show up for work, § 1630.2(n)(3)(iv): They can be severe. See Equal Employment Advisory Council Supp. Br. 9. Ditto for the terms of the collective bargaining agreement, § 1630.2(n)(3)(v): They certainly won’t typically exempt regular attendance. Other employees’ work practices are no different, § 1630.2(n)(3)(vi)-(vii): Other employees usually attend work at the worksite. And so on, such that most jobs would be fundamentally altered if regular and predictable on-site attendance is removed.

The EEOC’s informal guidance on the matter cuts in the same direction. An employer may refuse a telecommuting request when, among other things, the job requires “face-to-face interaction and coordination of work with other employees,” “in-person interaction with outside colleagues, clients, or customers,” and “immediate access to documents or other information located only in the workplace.” EEOC Fact Sheet, Work At Home/Telework as a Reasonable Accommodation (Oct. 27, 2005), http://www.eeoc.gov/facts/ telework.html; cf EEOC, Employer Best Practices for Workers with Caregiving Responsibilities, http://www.eeoc.gov/policy/ docs/caregiver-best-practiees.html (Jan. 19, 2011) (explaining that “impromptu team meetings” are a valid factor for denying an employee the privilege to work in a flexible work schedule). That is because, as the EEOC elsewhere explains, “the inquiry into essential functions is not intended to second guess an employer’s business judgment with regard to production standards.” 29 C.F.R. § Pt. 1630(n), App. at 395. Nor is it meant “to require employers to lower such standards.” Id. But that’s what would happen in many jobs if regular, in-person attendance was not required.

A sometimes-forgotten guide likewise supports the general rule: common sense. Waggoner v. Olin Corp., 169 F.3d 481, 482-84 (7th Cir.1999). Non-lawyers would readily understand that regular on-site attendance is required for interactive jobs. Perhaps they would view it as “the basic, most fundamental” “activity” of their job. Webster’s Third New International Dictionary 777, 920 (1986) (defining “essential” and “function”). But equipped with a 1400-or-so page record, standards of review, burdens of proof, and a seven-factor balancing test, the answer may seem more difficult. Better to follow the commonsense notion that non-judges (and, to be fair to judges, our sister circuits) hold: Regular, in-person attendance is an *763essential function—and a prerequisite to essential functions—of most jobs, especially the interactive ones. That’s the same rule that case law from around the country, the statute’s language, its regulations, and the EEOC’s guidance all point toward. And it’s the controlling one here.

2

That rule has straightforward application here: Regular and predictable on-site attendance was essential for Harris’s position, and Harris’s repeated absences made her unable to perform the essential functions of a resale buyer. The required teamwork, meetings with suppliers and stampers, and on-site “availability to participate in ... face-to-face interactions,” R. 60-2 at ¶ 11, all necessitate a resale buyer’s regular and predictable attendance. For years Ford has required resale buyers to work in the same building as stampers, further evidencing its judgment that on-site attendance is essential. And the practice has been consistent with the policy: all other resale buyers regularly and predictably attend work on site. Indeed, even those who telecommute do so only one set day per week and agree in advance to come into work if needed. Sealing the deal are Harris’s experiences and admissions. Her excessive absences caused her to make mistakes and caused strife in those around her. And she agreed that four of her ten primary duties could not be performed from home. R. 66-10 at 2. On this record, the EEOC cannot show that regularly attending work was merely incidental to Harris’s job; it was essential to her job.

It follows that Harris’s up-to-four-days telecommuting proposal-which removed that essential function of her job— was unreasonable. Brickers, 145 F.3d at 850; Mason, 357 F.3d at 1124. The employee bears the burden of proposing an accommodation that will permit her to effectively perform the essential functions of her job. Jakubowski v. Christ Hosp., Inc., 627 F.3d 195, 202 (6th Cir.2010); accord Dissent Op. at 779. Harris proposed only one accommodation—one that would exempt her regular and predictable attendance from her resale-buyer job. In failure-to-accommodate claims where the employee requests an “accommodation that exempts her from an essential function,” “the essential functions and reasonable accommodation analyses [] run together.” Samper, 675 F.3d at 1240. One conclusion (the function is essential) leads to the other (the accommodation is not reasonable). That’s this case. Harris’s proposed accommodation was unreasonable.

Nor could Harris perform the essential functions of her job with Ford’s past reasonable accommodations. ' Three times Ford allowed Harris to telecommute on an as-needed basis (on flex time, no less). And three times Ford developed plans to improve her attendance. But all six efforts failed because Harris proved unable “to establish regular and consistent work hours” or “perform the core objectives of the job.” R. 60-3 at ¶ 3. The ADA does not give her a seventh try. Harris is not a “qualified individual” as a matter of law. 42 U.S.C. § 12111(8).

B

The EEOC sees it differently. It argues that three sources—(1) Harris’s own testimony, (2) other resale buyers’ telecommuting practices, and (3) technology— create a genuine dispute of fact as to whether regular on-site attendance is essential. But none does.

(1) Harris’s testimony. An employee’s unsupported testimony that she could perform her job functions from home *764does not preclude summary judgment, for it does not create a genuine dispute of fact. Neither the statute nor regulations nor EEOC guidance instructs courts to credit the employee’s opinion about what functions are essential. That’s because we do not “allow employees to define the essential functions of their positions based solely on their personal viewpoint and experience.” Mason, 357 F.3d at 1122. And for good reason: If we did, every failure-to-accommodate claim involving essential functions would go to trial because all employees who request their employer to exempt an essential function think they can work without that essential function.

In any event, Harris’s testimony does not add much. Harris testified that she used conference-call capabilities to perform a “vast majority” of her otherwise face-to-face interactions. R. 66-3 at ¶¶ 3-8. But she does not say that she could perform the vast majority of her work as effectively off-site, and the essential-job-function inquiry does not require employers to lower their standards by altering a job’s essential functions. See 29 C.F.R. § Pt. 1630, App. at 395-96 (portion titled “Section 1630.2(n) Essential Functions”). Harris’s testimony thus does not contradict the uniform record evidence that a resale buyer could not work from home on an unpredictable basis without lowering production standards. See id. Nor does Harris say that she could perform all of her duties from home; she indeed admits that four of her ten main duties had to be done at the worksite. R. 66-10' at 2. And Harris’s past failed telecommuting experiences put to rest any doubts as to whether she could effectively work from home — she couldn’t. R. 603 at ¶ 3; R. 60-7 at 2. The EEOC needs more to reach a jury.

(2) Other employees’ telecommuting schedules. The evidence of other buyers’ schedules likewise doesn’t do the trick. Unlike an employee’s own testimony, though, this consideration has support in the regulations, 29 C.F.R. § 1630.2(n)(3)(vii), and in our case law, Rorrer v. City of Stow, 743 F.3d 1025,1042 (6th Cir.2014). And unlike an employee’s own testimony, it makes sense to look at this kind of evidence: It reflects the employer’s judgment — which is not just what the employer says but also what the employer does. Picking up on this, the EEOC argues that because Ford allowed several other resale buyers to telecommute, working from the worksite must not have been essential.

On this record, we disagree. This argument might work if the other employees’ schedules were materially similar (say, unpredictably telecommuting three days per week). But Harris’s coworkers worked from home on materially different schedules: on one set day per week — no more, and sometimes less. The most any employee was even authorized to work from home was two days per week, and that employee actually telecommuted only one day per week. And critically, every telecommuter agreed in advance to come into work on their set telecommuting day if needed at the worksite. That’s a far cry from Harris, who: (i) requested up to four days per week; (ii) would not schedule the days in advance; and (iii) refused to come on-site if needed. None of these other employees’ more predictable and more limited schedules removed regular on-site attendance from the resale buyer’s job. They thus do not create a genuine issue of fact.

In addition to being legally and factually unsupported, the EEOC’s view here would cause practical harm to private employers. The ADA encourages — indeed, requires— employers to make reasonable accommodations for its employees, including allowing telecommuting under the proper cir*765cumstances. 42 U.S.C. § 12111(9)(B). But if the EEOC’s position carries the day, once an employer allows one person the ability to telecommute on a limited basis, it must allow all people with a disability the right to telecommute on an unpredictable basis up to 80% of the week (or else face trial). That’s 180-degrees backward. It encourages — indeed, requires — employers to shut down predictable and limited telecommuting as an accommodation for any employee. A “good deed would effectively ratchet up liability,” which “would undermine Congress’ stated purpose of eradicating discrimination against disabled persons.” Ameritech, 129 F.3d at 868 (citation omitted). The practical effect? Companies would tighten telecommuting policies to avoid liability, and countless employees who benefit from currently generous telecommuting policies would suffer. A protective tool becomes a weapon if used unwisely; and telecommuting should not become a weapon.

(3) Technology. Despite its commonsense charm, the EEOC’s appeal to technology ultimately fails to create a genuine fact issue. It is “self-evident,” the EEOC declares without citation to the record or any case law, that “technology has advanced” enough for employees to perform “at least some essential job functions” at home. Reply Br. 4; accord Dissent Op. at 776. In the abstract, no doubt, this is precisely right. E.g., Vande Zande v. Wis. Dep’t of Admin., 44 F.3d 538, 544 (7th Cir.1995) (recognizing as much). But technology changing in the abstract is not technology changing on this record. Our review of a district court’s summary-judgment ruling is confined to the record. And no record evidence — none—shows that a great technological shift has made this highly interactive job one that can be effectively performed at home. The proper case to credit advances in technology is one where the record evinces that advancement. There is no such evidence here.

In fact, the evidence here shows the opposite: technology has not changed so as to make regular in-person attendance marginal for this job. Ford uses “fairly limited” video conferencing and “tend[s] more towards audio conferencing.” R. 60-5 at 44-48. Harris also testified that she used email and her computer. These technologies — email, computers, telephone, and limited video conferencing — were .equally available when courts around the country uniformly held that on-site attendance is essential for interactive jobs. The extra-record changes in technology, like Harris’s testimony and her coworkers’ practice before it, therefore do not create a genuine issue of fact as to the essential nature of regularly and predictably attending work on-site. Summary judgment remains proper.

One more point, for clarification. None of this is to say that whatever the employer says is essential necessarily becomes essential. Contra Dissent Op. at 773-74; 775-76. Suppose, for instance, that a fire department regularly allows certain firefighters to refrain from driving fire trucks. But then the department denies the same accommodation to a firefighter with a known disability that prevents her from driving the trucks. A genuine fact issue might exist as to whether driving a fire truck is actually essential — it is contradicted by materially similar job practices. Cf. Rorrer, 743 F.3d at 1042; see also Solomon v. Vilsack, 763 F.3d 1, 12 (D.C.Cir.2014). Our ruling does not, in other words, require blind deference to the employer’s stated judgment. But it does require granting summary judgment where an employer’s judgment as to essential job functions— evidenced by the employer’s words, poli*766des, and practices and taking into account all relevant factors — is “job-related, uniformly-enforced, and consistent with business necessity.” Tate v. Farmland Indus., Inc., 268 F.3d 989, 993 (10th Cir. 2001). That aptly describes Ford’s judgment regarding regular and predictable on-site attendance for resale buyers. The district court accordingly properly granted summary judgment.

C

Our conclusion that Harris was unqualified for her position makes it unnecessary to consider whether Ford showed bad faith in the discussions to work out a reasonable accommodation while Harris was still employed. Even if Ford did not put sufficient effort into the “interactive process” of finding an accommodation, 29 C.F.R. § 1630.2(o )(3), “that failure is actionable only if it prevents identification of an appropriate accommodation for a qualified individual. Basden v. Prof l Transp., Inc., 714 F.3d 1034, 1039 (7th Cir.2013) (emphasis added); see Mason, 357 F.3d at 1124 n. 4. Courts thus need not consider this form of non-independent liability “if the employee fails to present evidence sufficient to reach the jury on the question of whether she was able to perform the essential functions of her job with an accommodation.” Basden, 714 F.3d at 1039. It suffices here to hold that any failure by Ford does not create liability because, as we just concluded, the EEOC did not produce such evidence.

But one more word on this: The record, in any event, uniformly shows that Ford did act in good faith “to initiate”— and maintain — “an informal, interactive process” with Harris. 29 C.F.R. § 1630.2(o )(3). It met with Harris to engage in an “interactive discussion, dialogue^] and opportunity to review various options that would meet both the needs of the business as well as [Harris’s] personal needs.” R. 66-10 at 2. It sought clarification on Harris’s telecommuting request (to which Harris reiterated that she was asking for the unpredictable “up to [four] days per week”). Id. at 3. It twice met with Harris and identified two alternative accommodations — moving Harris closer to the restroom and changing Harris to a position with more telecommuting opportunities. — even though it was not legally required to counteroffer, Jakubowski, 627 F.3d at 202-03. Contra Dissent Op. at 774-75, 778-81. And even after Harris rejected both counteroffers, Ford persisted that it was willing to “talk with [Harris] again if she identified] another accommodation” because Ford wanted “her to remain in the workplace.” R. 66-10 at 6. It was Harris’s turn to propose a reasonable accommodation to Ford, and she never did. Having failed to do so, she doesn’t get the chance to try again before a jury.

To sum up, the EEOC must prove that Harris is a “qualified individual,” which means she can perform the essential functions of a resale buyer with a reasonable accommodation. The record shows that Harris cannot regularly and predictably attend the workplace — an essential function, and a prerequisite to other essential functions — even with the past reasonable accommodations of telecommuting trials and specialized plans to improve her attendance. And Harris’s proposed unpredictable, ad hoc telecommuting schedule was not reasonable because it would have removed at least one essential function from her job. Harris is unqualified as- a matter of law, and the district court correctly granted summary judgment on this claim.

*767III

That conclusion goes some way to answering the next question: Did Ford retaliate against Harris for making a charge of discrimination? We hold that it did not.

The ADA separately prohibits companies like Ford from “discriminating] against any individual because such individual has ... made a charge ... under this chapter.” 42 U.S.C. § 12203(a). Discrimination here means retaliation — that “but for” an employee’s statutorily protected activity the employer would not have taken the “adverse employment action.” Univ. of Texas Sw. Med. Ctr. v. Nassar, — U.S. -, 133 S.Ct. 2517, 2533, 2535, 186 L.Ed.2d 503 (2013); see Lewis v. Humboldt Acquisition Coty., 681 F.3d 312, 318-19 (6th Cir.2012) (en banc). To assess these claims, we use the familiar McDonnell-Douglas burden-shifting framework. See Penny v. United Parcel Serv., 128 F.3d 408, 417 (6th Cir.1997). The plaintiff “must first establish, by a preponderance of the evidence, [her] ‘prima facie’ case.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). If the plaintiff does so, the defendant has a burden of production to articulate a nondiscriminatory reason for its action. Id. at 507, 113 S.Ct. 2742. If the defendant meets its burden, the plaintiff must prove the given reason is pretext for retaliation. Id. at 515, 113 S.Ct. 2742.

Assume for now that the EEOC has met its prima facie case (but more on this later). The burden shifts to Ford, which has met it by producing evidence that it fired Harris because she was a poor performer. It offered undisputed evidence of back-to-back-to-back poor performance reviews, Harris’s lacking interpersonal skills, and Harris’s many absences, which in turn caused mistakes. And it offered evidence that Harris failed three specialized attendance plans before it terminated her. The burden shifts back to the EEOC to show pretext to prevail on its retaliation claim.

To demonstrate pretext, a plaintiff must show both that the employer’s proffered reason was not the real reason for its action, and that the employer’s real reason was unlawful. Hicks, 509 U.S. at 515, 113 S.Ct. 2742; see Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 148, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). To avoid summary judgment, then, the EEOC must present evidence from which a reasonable jury could find that poor performance was not the real reason that Ford terminated Harris, and that unlawful retaliation in fact was.

It trips over the first hurdle: No reasonable jury could find that Ford terminated Harris for a reason other than poor performance. Harris’s performance and interpersonal issues have been well documented. The EEOC indeed admits they existed. Suffice it here to say that, among other problems, Harris failed to update spreadsheets, complete her paperwork, schedule her training sessions, price items correctly, and finish her work on time. Her performance issues are why she ranked in the bottom 10% of her peer group before she made her charge.

The EEOC offers other evidence that, in its view, shows that Ford fired Harris because she filed a charge with the EEOC, not because of these performance issues. Timing is on the EEOC’s side: The mere four months between Harris’s charge and her discharge seems suspicious. But while this “gives us pause,” “temporal proximity cannot be the sole basis for finding pretext.” Donald v. Sybra, Inc., 667 F.3d 757, 763 (6th Cir.2012). So the EEOC needs more to reach a jury. It relies on three facts or inferences to create a genuine issue of material fact: *768(1) the meetings between Harris and her supervisor Gordon where Harris felt threatened; (2) the post-charge negative performance review; and (3) the alleged design of the post-charge performance-enhancing plan. Even when coupled with the timing, none suffices.

(1) Harris-Gordon Meetings. The meetings between Harris and Gordon do not create a genuine fact issue. To start, we doubt a reasonable jury could view these meetings — which Ford says were meant to help Harris, a worker with a long history of attendance and performance problems — as meant to hurt her. We “look at the facts as they appear to the person making the decision to terminate [the employee],” not at “the employee’s subjective [beliefs].” Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1231 (10th Cir.2000). Harris’s unexpressed “subjective skepticism regarding the truth of’ whether Gordon was actually trying to help her does not alone “raise a triable issue as to pretext.” Hedrick v. W. Resewe Care Sys., 355 F.3d 444, 462 (6th Cir.2004) (citing Mitchell v. Toledo Hosp., 964 F.2d 577, 584 (6th Cir.1992)). Plus, these kinds of meetings do “not constitute harassment simply because they cause the employee distress.” Keever v. City of Middletown, 145 F.3d 809, 813 (6th Cir. 1998).

But putting that aside, an even more fundamental point resolves this issue: The meetings involved only Gordon, a non decisionmaker. Actions by nondecisionmakers cannot alone prove pretext. Bush v. Dictaphone Corp., 161 F.3d 363, 369 (6th Cir.1998). Neither can decision-makers’ statements or actions outside of the decisionmaking process. Id.; see Rowan v. Lockheed Martin Energy Sys., Inc., 360 F.3d 544, 550 (6th Cir.2004). Both principles apply to Gordon. When Ford decided to terminate Harris, Gordon was on vacation. R. 60-2 at ¶ 26. And critically (and undisputedly), no one at Ford consulted with him or received a recommendation from him before making its termination decision. Id.; R. 60-15 at ¶ 8. So by definition, Gordon was a nondecisionmaker outside of this decisionmaking process. As Harris’s direct supervisor, he of course had an effect on her termination: He oversaw her overall poor performance and reported her failures during the performance-enhancing plan to his supervisors. See R. 66-23 at 26-28; R. 60-5 at 67-68. But we do not define “decision-maker” at such a high level of generality. The record uniformly shows that Gordon had no direct relation to the actual termination decision, and thus his allegedly harassing conduct cannot be imputed to Ford.

Nor can Gordon’s conduct in these meetings be imputed to Ford through the so-called “cat’s paw” theory. That theory would hold Ford liable if Gordon, motivated by retaliatory animus, intended to cause Harris’s termination and proximately caused the actual deeisionmakerg to terminate her. Staub v. Proctor Hosp., 562 U.S. 411, 131 S.Ct. 1186, 1194, 179 L.Ed.2d 144 (2011). In its five appellate briefs and in its brief below, the EEOC never so much as hinted that this theory might apply, which doubly forfeited the argument. United States v. Huntington Nat’l Bank, 574 F.3d 329, 332 (6th Cir.2009) (“[C]onclusory allegations and perfunctory statements, unaccompanied by citations or some effort at legal argument, do not meet th[e] standard” for raising an argument on appeal.); Estate of Quirk v. Comm’r, 928 F.2d 751, 757-58 (6th Cir. 1991) (“It is well-settled that, absent exceptional circumstances, a court of appeals will not consider an argument by an appellant that was not presented to or considered by the trial court.”). That was a wise *769move by the EEOC, for, among other reasons, no evidence shows a “direct relation between the injury asserted [termination] and the injurious conduct alleged [Gordon’s intimidation].” Staub, 131 S.Ct. at 1192; see Romans v. Michigan Dep’t of Human Servs., 668 F.3d 826, 836-37 (6th Cir.2012). The dissent would nevertheless apply this theory. Dissent Op. at 785-86. But that contravenes the rule that the parties (not judges) raise the arguments. And it expands this theory — fattens the cat, so to speak — far too much. This argument was forfeited, and, in any event, Gordon was no monkey, and Ford, not his cat. Staub, 131 S.Ct. at 1190 n. 1.

(2) Performance Review. The 2009 post-charge negative performance review fares no better. At first glance, this looks bad for Ford. Harris received her first “lower achiever” rating post-charge, and she received only “excellent plus” ratings before her charge. The EEOC stops there. But digging deeper — and looking at the whole record — reveals two reasons why no reasonable jury could find this low rating proof of pretext. For one, 2009 was the only year that Harris could have received the lower-achiever rating. Ford overhauled its ratings system that year for all employees, ditching the default “excellent plus” category (which 80% of workers received) in favor of a more accurate description of a worker’s performance. In Harris’s case, that meant “lower achiever” — the first and only time she could receive that rating. For two, the change in name did not change Harris’s low numerical ranking. In her only performance review after the charge, she ranked in the same percentile range as she did immediately before the charge: the bottom 10%. That’s not evidence of retaliation; that’s just poor performance — both before and after the charge.

(3) Performance-Enhancing Plan. Harris’s testimony that Ford designed the post-charge performance-enhancing plan to ensure her failure does not create a genuine dispute either. Any negative inference from this testimony is unreasonable because it comes unaccompanied by facts in the record, save Harris’s own speculation. And we do not accept the plaintiffs speculation where, as here, it does not create a “genuine” dispute of fact— that is, when it is “blatantly contradicted by the record.” Scott, 550 U.S. at 380, 127 S.Ct. 1769. The record shows that Harris failed two prior plans to improve her performance and attendance, similar to this one — -and both before she filed her charge. The record also shows that Harris failed to achieve any of the objectives identified in post-charge plan, R. 60-2 at ¶¶ 22-25 — not just the objective the EEOC says is evidence of retaliation (eliminating her backlog of paperwork, see Dissent Op. at 782-84.). And the record shows that ■ Ford used similar performance-enhancing plans for other employees who, like Harris, performed poorly. See, e.g., R. 60-4 at ¶ 17; R. 60-15 at ¶ 5. Harris’s testimony thus fails to create a genuine dispute of fact because it is “so utterly discredited by the record that no reasonable jury” could believe it. Scott, 550 U.S. at 380, 127'S.Ct. 1769.

The EEOC has failed to present evidence from which a reasonable jury could find that the real reason Ford terminated Harris was unlawful retaliation and not poor performance. Ford is entitled to judgment as a matter of law because the EEOC created at most “a weak issue of fact as to whether the employer’s reason was untrue and there [is] abundant and uncontroverted independent evidence that no discrimination had occurred.” Reeves, 530 U.S. at 148, 120 S.Ct. 2097. Lacking evidence that creates a genuine dispute of fact, the EEOC’s retaliation claim fails as *770a matter of law. The district court correctly granted summary judgment in Ford’s favor.

Now briefly back to the EEOC’s prima facie case, for it provides an alternate ground on which to grant summary judgment: The EEOC cannot establish but-for causation. To prevail on a retaliation claim, a plaintiff must “establish that his or her protected activity was a but-for cause of the alleged adverse action by the employer.” Nassar, 133 S.Ct. at 2534. Here that means that the EEOC must present evidence from which a reasonable jury could And that Ford would not have fired Harris if she had not made her charge.

For many of the same reasons discussed above, no reasonable jury could have found such causation here. In addition to Harris’s past failings, she admitted that she would hot be able to attend work on-site in a regular and predictable manner in the future. And this attendance was an essential element of her job. No reasonable jury could find that Ford — a for-profit corporation — would continue to pay an employee who failed to do her job well in the past, and who, by her own admission, could not perform the essential elements of her job in the future. The EEOC thus cannot demonstrate that Harris’s charge was the but-for cause of Ford’s decision to fire her, which means that Ford was entitled to summary judgment for that reason as well.

IV

Nearly thirty years later, it’s worth repeating: To overcome a well-supported motion for summary judgment, the non-moving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The EEOC has not done so here. We affirm.

KAREN NELSON MOORE, Circuit Judge,

dissenting.

This case concerns one person, Jane Harris, her job as a resale buyer at one Ford work-site, and the particularly difficult challenges she faces as a result of her medical condition of irritable bowel syndrome (“IBS”). She argues that Ford failed reasonably to accommodate her disability when it refused her request to telework some days each week. At this moment, this case is not even about whether Harris should prevail against Ford. The question is simply whether she has presented enough evidence to create a genuine dispute of material fact such that summary judgment for Ford is not proper.

The key issue is whether Harris is a qualified individual to bring a discrimination claim under the ADA. 42 U.S.C. § 12111(8); id. § 12112(a). In this case, this requires showing that either physical presence at the work-site is not an essential function of Harris’s job as a' resale buyer, or relatedly, that telework is a reasonable accommodation for Harris. The ADA and the EEOC regulations implementing the statute provide courts with a non-exhaustive list of seven factors to help guide our consideration of these issues. 29 C.F.R. § 1630.2(n)(3). But the overarching focus of those regulations is that “[w]hether a particular function is essential is a factual determination that must be made on a case by case basis.” 29 C.F.R. § 1630, app. § 1630.2(n). And because this case is an appeal from a grant of summary judgment, this intensive factual determination must be undertaken while “viewing] all evidence in the light most favorable” to Harris. Kleiber v. Honda of Am. Mfg., Inc., 485 F.3d 862, 868 (6th Cir.2007).

*771I dissent because the majority refuses to engage in the fact-intensive, case-by-case determination required by the EEOC regulations and repeatedly refuses to take the facts in the light most favorable to Harris, as summary judgment requires. When we apply both standards properly, the EEOC has presented sufficient evidence to dispute whether Harris is a qualified individual, either because physical presence is not an essential function of her job or because telework is a reasonable accommodation for her. There is also a genuine dispute about whether Ford retaliated against Harris for filing a charge with the EEOC.

I. ANALYSIS

A. Harris’s request to telework

It is crucial to begin with what Harris actually requested. Harris first requested telework in an email to HR, stating that “[p]er my disability and Ford’s Telecommuting'policy, I am asking Ford to Accommodate my disability by allowing me to work up to four days per week from home.” R. 60-10 (Harris Email to Pray) (Page ID # 1100). A comparison to Ford’s telecommuting policy makes clear that Harris’s initial request drew directly from the language of that policy, which allowed for “one to four days” of telework each week. R. 60-11 (Telecommuting Policy at 2) (Page ID # 1103) (“[A]n employee may work one to four days from the Telecommuting/alternate work site.” (emphasis added)). Ford met with Harris two times to discuss her request, on April 6 and April 15, 2009. R. 66-10 (Mtg. Notes) (Page ID # 1318-1324). In the first meeting on April 6, Harris explicitly told Ford that her request was based on the policy language and that she was not asking to telework four days per week, every week. R. 66-10 (Mtg. Notes at 3) (Page ID # 1320) (“[Harris] said she is not envisioning that she would need to telecommute 4 days per week. When she was talking about it previously, she was just stating what the policy allowed for — up to 4 days per week.”). Ford began the second meeting on April 15 by telling Harris that she could not telecommute. R. 66-10 (Mtg. Notes at 4) (Page ID # 1321). Therefore, as discussed more fully below, Ford cut off Harris’s request without attempting to clarify the specific details of what she was seeking.

The key point is that Harris proposed to be out of the office up to four days each week, not four days per week, every week. The relevant questions in this case are therefore whether physical presence every day of the week is an essential function of Harris’s job, and whether telework some days each week is a reasonable accommodation.

B. The EEOC created a genuine dispute of material fact whether physical presence at the work-site is an essential function of Harris’s job.

I agree that we should consider Ford’s judgment that physical presence in the office is an essential function of Harris’s job. However, Ford gave only one reason for why physical presence is an essential function — that the resale buyer position requires a great deal of face-to-face teamwork. Ford did not and could not argue that Harris needed to be in the office to use key equipment or to provide services to outside clients, for example. What exactly is the teamwork that Ford claims must be performed face-to-face? Based on the limited record of this case, it appears to be two things: (1) spur-of-the-moment meetings to address unexpected problems in the supply chain, and (2) scheduled meetings. Appellee Supp. En Banc Br. at 9-10.

In contrast, the EEOC presented two pieces of evidence that directly contradict *772Ford’s claim that the teamwork functions of Harris’s job required her to be physically present in the office. First, Harris attested in her declaration that she actually performed 95% of her job on the phone or through email, even when in the office. Second, Ford allowed other resale buyers to telework. This suggests that, to perform effectively, resale buyers do not need to be prepared to handle unexpected problems in the supply chain through face-to-face interactions every day of the week.

A reasonable jury might ultimately agree with Ford, or it might agree with Harris. The point is that there is a genuine dispute of material fact that only a jury should resolve.

1. Harris’s declaration

Harris’s sworn declaration directly contradicts Ford’s insistence that the teamwork required of resale buyers — both spur of the moment trouble-shooting and scheduled meetings — is actually done face-to-face. Harris attested that she performed 95% of her job duties electronically (on the computer or telephone), even when in the office. R. 66-3 (Harris Decl. ¶ 10) (Page ID # 1263) (“Approximately 70% percent [sic] of the work I did as a Buyer was done on a computer. Approximately 25% of the work I did as a Buyer was done on the telephone.”). Harris added that “the vast majority of communications and interactions with both the internal and external stakeholders were done via a conference calk” Id. ¶ 3 (Page ID # 1262). She further declared that she “frequently communicated with [her] co-workers via email even though both [she] and [her] co-workers were in the office,” and that she “also frequently communicated with suppliers via email and telephone.” Id. ¶¶ 5-6 (Page ID # 1263). Harris attested that scheduled teamwork, like meetings, did not always occur face-to-face. She stated that Ford had “telephone conference call capabilities which would allow employees to engage in a meeting without actually having all the meeting stakeholders present in the same room,” and that “all internal meetings included the conference call attendance option.” Id. ¶¶ 7, 9 (Page ID # 1263) (emphasis added).

The majority dismisses Harris’s testimony because she does not say she could perform all of her duties “as effectively off-site.” Maj. Op. at 764. But that focus certainly is not taking the evidence in the light most favorable to Harris, as the summary-judgment standard commands. Instead, the majority is actively looking for ways to read omissions — not even actual statements — in her testimony in the light least favorable to her.

Although Harris agreed when she first met with her supervisor that four of her ten to eleven job responsibilities could be done only at Ford, a closer look at the record reveals that she disputed that the tasks arose every day or that they could not be postponed until she was next in the office, which would be at least some days each week. R. 66-10 (Mtg. Notes at 2) (Page ID # 1319).1 At least one of those four responsibilities — supplier site visits— does not advance Ford’s argument that physical attendance at the Ford work site *773is an essential function of Harris’s job because Harris would have to travel to make those visits; whether she leaves from the office or from home should not matter.2 Nor is there any indication in the record whether all four tasks are themselves properly considered essential functions of the resale buyer job. For example, we do not know “[t]he amount of time spent on the job performing [these] functions,” one factor mentioned in the EEOC regulations. 29 C.F.R. § 1630.2(n)(3)(iii).

We can consider Harris’s own experience on the job. The EEOC regulations make explicit that we can consider relevant evidence to define the essential functions of a job, even if the evidence is not explicitly articulated in the regulations. 29 C.F.R. § 1630.2(n)(3) (stating that “[e]vidence of whether a particular function is essential includes, but is not limited to ” the seven listed factors) (emphasis added); see also 29 C.F.R. § 1630, app. § 1630.2(n) (“[T]he list [of factors included in § 1630.2(n)(3) ] is not exhaustive.”) (emphasis added). The appendix continues that “other relevant evidence may also be presented. Greater weight will not be granted to the types of evidence included on the list than to the types of evidence not listed.” 29 C.F.R. § 1630, app. § 1630.2(n) (emphasis added). As in any case, testimony from the plaintiff can be sufficient to preclude summary judgment, provided that it creates a genuine dispute of material fact.

Giving weight to Harris’s testimony in this case will not mean that “every failure-to-accommodate claim involving essential functions would go to trial.” Maj. Op. at 764. Take the issue of whether physical presence at the worksite is an essential function. Some jobs clearly require an employee to be in the office — for example, an employee who works in a factory and must use large immobile equipment that is located only on-site. Testimony from that employee that he or she could nevertheless work from home on that immobile equipment will not create a genuine dispute of material fact precluding summary judgment.

What appears to be driving the majority’s unwillingness to give any weight to Harris’s own testimony is an unstated belief that employee testimony is somehow inherently less credible than testimony from an employer. Employers, just as much as employees, can give testimony about whether a particular function is essential that is “self-serving” or not grounded in reality. Our role is not to assess who is more credible. Rather, at the summary-judgment stage, we must take the evidence in the light most favorable to the nonmovant. As we recently explained, “[i]f an employer’s judgment about what qualifies as an essential task were conclusive, an employer that did not wish to be inconvenienced by making a reasonable accommodation could, simply by asserting that the function is essential, avoid the clear congressional mandate that employers mak[e] reasonable accommodations.” Rorrer v. *774 City of Stow, 743 F.3d 1025, 1039 (6th Cir.2014) (internal quotation marks omitted) (second alteration in original).

2. Telework agreements of other resale buyers

The EEOC did not present just Harris’s own declaration. The EEOC also argued that the fact that Ford allowed other resale buyers to telecommute helped to create a genuine dispute of material fact. Yes, other resale buyers did not telework in exactly the same manner that Harris initially proposed. They had been approved to telecommute on one to two set days per week. R. 66-21 (Telecommuting Agreements) (Page ID # 1361-63); R. 60-22 (Telecommuting Agreement) (Page ID # 1173); R. 66-20 (Ford Resp. to Interrogs. at 2-3) (Page ID # 1359-60) (“Ford ... has identified the following GSR buyers within the department where Ms. Harris worked ... who participated in telecommuting arrangements in 2009: ... Joan Mansucti (2 days per week in agreement but telecommuted 1 day per week).” (emphasis added)). Karen Jirik from HR characterized the telework agreements of other resale buyers as including a requirement that “an employee with an approved telecommuting arrangement should be prepared to come into the office on telecommute days when the business or management requires it.” R. 60-4 (Jirik Decl. ¶ 7) (Page ID # 1048).

The gulf between Harris’s request and the telecommuting arrangements of other resale buyers, however, is not so wide or clear as the majority claims it is. The majority’s unsupported assertion to the contrary, there is no evidence in the record that Ford ever explicitly offered Harris a similar teleworking agreement — a set schedule of days plus a commitment to come into the office if necessary. R. 66-10 (Mtg. Notes) (Page ID # 1318-24). Gordon did describe the telework agreements of the resale buyers as an example of “under what circumstances he felt telecommuting would work for” a resale buyer. Id. at 6 (Page ID # 1323). However, Gordon did so at the end of Ford’s second meeting with Harris. Id. Ford opened that meeting by telling Harris that her telework request had been denied, so it is hard to see how Gordon’s discussion could in any way be construed as an offer for Harris to telecommute in a similar fashion. Id. at 4 (Page ID # 1321). Although Jirik claimed that the other resale buyers had agreed to come into the office if necessary, that requirement does not appear in Ford’s telecommuting policy or in the telecommuting agreements of other resale buyers. R. 60-11 (Telecommuting Policy) (Page ID # 1102-16); R. 66-21 (Telecommuting Agreements) (Page ID # 1361-63); R. 60-22 (Telecommuting Agreement) (Page ID # 1173). Even if actually enforced, there is no record evidence indicating that Harris would not have also agreed to come into the office if a work matter required it. And again, Harris did not request to telework four days per week, every week.

Even accepting the differences from Harris’s initial request, the telecommuting arrangements of other resale buyers undercut Ford’s claim that, at any given moment, resale buyers must engage in spur of the moment, face-to-face trouble-shooting in order to perform their jobs effectively. By definition, unexpected problems might arise when a resale buyer is telecommuting, and he or she therefore could not participate in face-to-face, spur-of-the-moment meetings to address those problems. Yet Ford still determined that those resale buyers could effectively perform the teamwork functions of their jobs while being absent from the office one to two days per week. The potential difference in predictability in when Harris *775would be in the office more clearly implicates scheduled teamwork, like meetings. Again, however, Harris attested that “all internal meetings included the conference call attendance option.” R. 66-3 (Harris Deck ¶¶ 7, 9) (Page ID # 1263) (emphasis added).

3. Ford’s own judgment

Ford’s own judgment that physical presence in the office is an essential function of Harris’s job certainly is entitled to consideration, but that judgment is not dispositive. In defining “[qjualified individual,” the ADA states only that “consideration shall be given to the employer’s judgment as to what functions of a job are essential.” 42 U.S.C. § 12111(8) (emphasis added). Noticeably absent is the word “deference.” See Rorrer, 743 F.3d at 1042. The EEOC regulations interpreting this section similarly include the employer’s judgment as just one of seven factors courts should consider. 29 C.F.R. § 1630.2(n)(3). Yes, the EEOC regulations provide that “inquiry into the essential functions is not intended to second guess an employer’s business judgment with regard to production standards,” but they also state that “whether a particular function is essential ‘is a factual determination that must be made on a case by case basis [based upon] all relevant evidence.’ ” Deane v. Pocono Med. Ctr., 142 F.3d 138, 148 (3d Cir.1998) (quoting 29 C.F.R. § 1630, app. § 1630.2(h)) (alterations in original). Other circuits also treat the employer’s judgment as just one factor to consider in assessing whether a particular function is essential. See, e.g., Rohan v. Networks Presentations LLC, 375 F.3d 266, 279 n. 22 (4th Cir.2004); Gillen v. Fallon Ambulance Serv., Inc., 283 F.3d 11, 25 (1st Cir. 2002); Cripe v. City of San Jose, 261 F.3d 877, 887 (9th Cir.2001).

The majority’s test for when an employer’s judgment that a function is essential can be overcome — if it is not “job-related, uniformly-enforced, [or] consistent with business necessity,” Maj. Op. at 766 — is thus not compelled by the ADA or the EEOC regulations. And in fact, the majority’s test is in direct tension with the regulations’ insistence that the inquiry is a fact-intensive, case-by-case determination.

Moreover, the majority’s insistence that the “general rule” is that physical attendance at the worksite is an essential function of most jobs does not advance the analysis in this case. In many of the cases cited by Ford for this proposition, the courts actually held that regular attendance is an essential function, while-assuming (without deciding) that that regular attendance must be at the physical work-site. See, e.g., Vandenbroek v. PSEG Power CT LLC, 356 Fed.Appx. 457, 460 (2d Cir.2009); Schierhoff v. GlaxoSmithKline Consumer Healthcare, L.P., 444 F.3d 961, 966 (8th Cir.2006); Gantt v. Wilson Sporting Goods Co., 143 F.3d 1042, 1047 (6th Cir.1998). When courts have addressed the issue, the record had, in fact, established that the employee had to be physically present to access equipment or materials located only in the office, or to provide direct services to clients or customers. See, e.g., Samper v. Providence St. Vincent Med. Ctr., 675 F.3d 1233, 1238-39 (9th Cir.2012) (neo-natal nurse who provided direct patient care); E.E.O.C. v. Yellow Freight Sys., Inc., 253 F.3d 943, 949 (7th Cir.2001) (forklift operator); Hypes v. First Commerce Corp., 134 F.3d 721, 726 (5th Cir.1998) (loan review analyst who used confidential documents that could not leave the office); Tyndall v. Nat’l Educ. Ctrs., Inc. of Cal., 31 F.3d 209, 213 (4th Cir.1994) (teacher).

Here, in contrast, the sole reason given by Ford for why Harris needs to be physi*776cally present in the workplace is that the resale buyer position requires a high degree of face-to-face teamwork. Ford does not claim that necessary physical equipment or files can be accessed only on-site, or that Harris must interact with outside clients at Ford’s work-site.

Nor do cases noting teamwork as one reason for finding physical presence an essential job function resolve this ease. Of the cases cited by Ford, all but two involved jobs that otherwise obviously require physical attendance — materials located only in the office or direct client interaction. The courts therefore did not need to consider squarely whether teamwork might be effectively accomplished remotely because other aspects of the employees’ jobs clearly required them to be physically present at work. See, e.g., Samper, 675 F.3d at 1238 (neo-natal nurse who provided direct patient care); Hypes, 134 F.3d at 726 (loan review analyst who used confidential documents that could not leave the office). And in one of the two remaining cases, the employee did not actually contest that her teamwork responsibilities could be performed only on-site; rather, she argued that another employee could take up the in-person teamwork duties of her job. Mason v. Avaya Commc’ns, Inc., 357 F.3d 1114, 1120-21 (10th Cir.2004) (noting that the employee testified that “one of the other fourteen service coordinators in her group can perform the ‘teaming’ duties, such as covering for a co-employee on break”).

Therefore, only the Seventh Circuit’s decision in Vande Zande v. Wisconsin Department of Administration, 44 F.3d 538 (7th Cir.1995), arguably presents a set of facts similar to the present case. In Vande Zande, the plaintiff had a job that did not require her to use materials present only in the workplace or to interact directly with clients on-site.3 The Vande Zande court specifically stated that its conclusion that “team work under supervision generally cannot be performed at home” would “no doubt change as communications technology advances.” Id. at 544. Technology has undoubtedly advanced since 1995 in facilitating teamwork through fast and effective electronic communication such that it should no longer be assumed that teamwork must be done in-person.

Thus, neither the general case law on physical presence at the work-site nor pri- or case law on teamwork resolves this case. Ford gave only one reason for why Harris’s physical presence at the worksite is an essential function of her job — that the resale buyer position requires a great deal of face-to-face teamwork. The EEOC presented two pieces of evidence that directly contradict this claim. Summary judgment is therefore not appropriate.

Finally, the majority’s claim that failure to grant summary judgment to Ford would turn telework into a “weapon” completely overstates the reach of this case and itself sets a problematic precedent for other failure-to-accommodate cases. First, providing telework is not just a good deed; sometimes it is legally required under the ADA. Second, in any given case, employees seeking telework as a reasonable accommodation partly on the basis that other employees are permitted to telework would need to show that those other employees have similar job duties to their own. They cannot point to just any employee. Here, Harris pointed to telework agreements of other resale buyers. More *777fundamentally, in assessing whether a function is essential, the EEOC regulations expressly invite courts to consider the experience of other employees “in similar jobs.” 29 C.F.R. § 1630.2(n)(3)(vii). Indeed, the majority’s test for whether a function is essential also requires assessing how the employer treats other employees. Thus, this kind of comparison is inevitable in order to evaluate properly many reasonable-accommodation claims. The majority would privilege Ford’s overstated perverse-incentives argument at the expense of properly and carefully assessing reasonable-accommodation claims as the ADA and the EEOC regulations require. Finally, I doubt that Ford and other employers would actually limit telework so drastically based on the slight risk that in certain reasonable-accommodation cases, the telework agreements of employees with similar job duties might be relevant. The majority ignores the myriad other reasons why employers might choose to provide telework to their employees, such as incentivizing individuals to come work for them or reducing the size of the physical workplace.

C. The EEOC created a genuine dispute of material fact whether telework is a reasonable accommodation for Harris.

Alternatively, there is a genuine dispute of material fact whether Harris was qualified with the reasonable accommodation of telework. Many of Ford’s arguments that telework would not be a reasonable accommodation for Harris confuse flex-time arrangements — when an employee might work after regular business hours or on the weekends — with tplework during core business hours only — when Ford’s offices are open. Harris’s request can be construed as a request to telework during core business hours only.4 If Harris teleworked during core business hours only, Ford’s concerns that she could not access pricing information from other Ford employees or be available to interact with team members would not arise.

That Harris had attendance issues does not make her request to telework unreasonable. Harris missed work because of her disability. As the Ninth Circuit has held, “[i]t would be inconsistent with the purposes of the ADA to permit an employer to deny an otherwise reasonable accommodation because of past disciplinary action taken due to the disability sought to be accommodated.” Humphrey v. Mem’l Hosps. Ass’n, 239 F.3d 1128, 1137 (9th Cir.2001). Moreover, Ford did not meet its burden to show that allowing Harris to telework would be an undue hardship.

Harris’s prior experiments with telework do not compel the conclusion that the telework arrangement she requested in this case was unreasonable. The majority again refuses to take the posture that summary judgment requires, and instead reads factual disputes or ambiguity in the record in the light least favorable to Harris. Harris’s prior experience with telecommuting under Gordon — to the extent *778the informal, sporadic arrangement can even be considered a full “experiment”— involved teleworking during non-core business hours only. R. 60-2 (Gordon Decl. ¶ 8) (Page ID # 1029-30). It is not clear from the record whether Harris’s two pri- or experiences with telecommuting under her supervisor Dawn Gontko were flextime telework arrangements, or telework during core business hours. R. 60-3 (Gontko Deck ¶ 3) (Page ID # 1043) (stating that she “agree[d] to permit [Harris] two trial Alternative Work Schedule (‘AWS’)/telecommute periods” and defining AWS as “a Ford program where employees, with supervisor approval, are permitted to work four 10 hour days per week,” without specifying whether or what portion of those days are during core business hours). If flex-time, the fact that Harris was unable “to establish regular and consistent work hours,” as Gontko stated, does not necessarily mean that Harris would not consistently work in the set timeframe of core business hours if she were not given flexibility in her work hours. Id. ¶ 3 (Page ID # 1043). The uncertainty about the nature of Harris’s two prior telework experiences also makes it difficult to evaluate Gontko’s statement that Harris failed “to perform the core objectives of the job.” R. 607 (Gontko Dep. at 20) (Page ID # 1089). If Harris were allowed to telework only outside of core business hours, as occurred with Gordon, she may not have been able to access information necessary to perform her job or to reach co-workers. Similar problems would not arise if she had been permitted to telework during core business hours. The key point is that the current record does not resolve these ambiguities. At the summary-judgment stage, we are required to read the facts in the light most favorable to Harris. Here, that would mean assuming such prior telework experiments were not during core business hours. The majority, yet again, assumes the opposite.

D. The EEOC created a genuine dispute of material fact whether Ford failed to engage sufficiently in the interactive process to clarify Harris’s telecommuting request.

There is a genuine dispute of material fact whether Ford sufficiently engaged in the interactive process to clarify Harris’s telecommuting request. The majority places an unreasonable and likely unachievable burden on employees to propose the perfect accommodation from the start of the process. That burden is directly at odds with the EEOC regulations’ insistence that both the employee and the employer have an obligation to participate in the interactive process and, through that participation, to develop and clarify whether a reasonable accommodation is possible. Ford did not seriously try to clarify Harris’s initial teleworking request, and instead focused on building a case for why she could not telework.

The ADA’s regulations state that, “[t]o determine the appropriate reasonable accommodation [for an employee,] it may be necessary for the [employer] to initiate an informal, interactive process with the [employee].” 29 C.F.R. § 1630.2(o )(3). We, along with many other circuits, have held that the employer’s duty to participate in the interactive process in good faith is mandatory. See, e.g., Kleiber, 485 F.3d at 871 (citing cases). If there is a genuine dispute of material fact whether the employer sufficiently engaged in the interactive process, summary judgment for the employer should be denied. See, e.g., Phelps v. Optima Health, Inc., 251 F.3d 21, 27 (1st Cir.2001); Rehling v. City of Chi., 207 F.3d 1009, 1016 (7th Cir.2000); Fjellestad v. Pizza Hut of Am., Inc., 188 F.3d 944, 954 (8th Cir.1999).

*779Although the employee must trigger the interactive process by requesting a reasonable accommodation, an employee’s initial request does not need to identify the perfect accommodation from the start, as the majority seemingly requires. 29 C.F.R. § 1630, app. § 1630.9 (“In general, ... it is the responsibility of the individual with a disability to inform the employer that an accommodation is needed.”). Such a requirement would render the employer’s duty to engage in the interactive process to “identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations” meaningless. 29 C.F.R. § 1630.2(o )(3); see also Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 316 (3d Cir.1999) (“The ADA’s regulations make clear that the purpose of the interactive process is to determine the appropriate accommodations____ Therefore, it would make little sense to insist that the employee must have arrived at the end product of the interactive process before the employer has a duty to participate in that process.”); Beck v. Univ. of Wis. Bd. of Regents, 75 F.3d 1130, 1135 (7th Cir. 1996) (“The employer has at least some responsibility in determining the necessary accommodation.”).

Because the interactive process is not an end in and of itself, the employee must present evidence that a reasonable accommodation could have been identified if the employer had engaged sufficiently in the interactive process. See, e.g., Keith v. Cnty. of Oakland, 703 F.3d 918, 929 (6th Cir.2013) (holding that summary judgment was not warranted on whether the employer adequately engaged in the interactive process because the employee “met his burden to show that a reasonable aecommodation was possible”). But that reasonable accommodation does not need to be the employee’s initial request.

Here, Harris met her initial burden to trigger the interactive process by initially requesting telework up to four days a week. For the reasons explained above, there is a genuine dispute of material fact whether her initial request was itself a reasonable accommodation. Even if not, however, the EEOC has identified a reasonable accommodation that Harris testified she would have accepted if Ford had engaged in the interactive process: telework on one to two specified days per week, with the requirement that she take sick leave if her IBS flared up on a different day.5 Appellant Supp. Br. at 1. It is an accommodation that largely parallels the telework agreements other resale buyers had with Ford, and thus Ford cannot credibly claim that this proposal would be an unreasonable accommodation or that the arrangement would make it impossible for Harris to perform the essential functions of her job. The majority ignores this additional accommodation identified by the EEOC that would have rendered Harris a qualified individual. Maj. Op. at 766.

A reasonable jury could find that Ford did not in good faith seek to clarify Harris’s telework request or explore whether some telework arrangement was feasible. The Seventh Circuit has articulated a case-by-case approach to determining which party is most responsible for the breakdown in the interactive process. As the court explained:

No hard and fast rule will suffice, because neither party should be able to cause a breakdown in the process for the *780purpose of either avoiding or inflicting liability. Rather,-courts should look for signs of failure to participate in good faith or failure by one of the parties to make reasonable efforts to help the other party determine what specific accommodations are necessary. A party that obstructs or delays the interactive process is not acting in good faith. A party that fails to communicate, by way of initiation or response, may also be acting in bad faith. In essence, courts should attempt to isolate the cause of the breakdown and then assign responsibility-

Beck, 75 F.3d at 1135 (emphasis added).

Taking the facts in the light most favorable to Harris, Ford is more to blame for the breakdown of the interactive process than Harris. It is true that Ford met with Harris to discuss her request and proposed alternative accommodations, factors that courts have identified as indicators of “good faith” participation. See Taylor, 184 F.3d at 317. However, the EEOC persuasively argued that a reasonable jury could find that the alternatives Ford suggested were not reasonable accommodations because they did not address the problems Harris identified. Harris still might soil herself even in the shorter time it would take her to get to the restroom from a closer work cubicle. Moreover, it is unreasonable to respond that Harris could wear Depends or clean herself up after any accidents. Harris should not have to suffer the embarrassment of regularly soiling herself in front of her coworkers. Ford’s other alternative — to help Harris find a different position within Ford, R. 60-4 (Jirik Decl. ¶ 9) (Page ID # 1049) — was not a reasonable accommodation because Ford did not guarantee that such a position existed. Further, we have previously held that reassignment is reasonable only when the employer demonstrates that it would be an undue hardship to accommodate the employee in his or her current position. Cassidy v. Detroit Edison Co., 138 F.3d 629, 634 (6th Cir.1998). Thus, Ford did not propose reasonable alternative accommodations, so those offers do not conclusively establish its good-faith participation in the interactive process. Cf. Beck, 75 F.3d at 1136 (holding that an employer sufficiently participated in the interactive process in part because the employee “offer[ed] no evidence that” the alternative accommodation proposed by her employer “was an unreasonable accommodation”).

The real issue is that Ford chose to interpret Harris’s request to telework as a final offer, rather than as an opening bid. Of critical importance, the notes Ford submitted from its April 6, 2009, meeting with Harris to discuss telework indicate that Ford understood that Harris was not necessarily requesting to telework four days per week. R. 66-10 (Meeting Notes at 3) (Page ID # 1320). Gordon likewise indicated in his declaration that he understood Harris’s request was for “up to four days per week” of telework, not necessarily four days per week, every week. R. 60-2 (Gordon Decl. ¶ 11) (Page ID # 1033-34) (emphasis added). Nevertheless, Ford did not explore more limited telework options with her. Rather, Ford effectively shut down all discussion of telework options after the April 15, 2009, meeting when Gordon told Harris that “her job could not be performed with a telecommuting arrangement” that allowed “Harris ... to telecommute an unpredictable ‘up to four days per week.’ ” R. 60-2 (Gordon Decl. ¶ 12) (Page ID # 1034) (emphasis added). And Harris did not fail to provide critical information about her condition that would have enabled Ford to help clarify her request for telework, a circumstance that some courts have pointed to in placing more blame on the employee for the breakdown of the *781interactive process. Cf. Beck, 75 F.3d at 1137.

Ford cannot escape the consequences of its insufficient participation by pointing to the fact that Harris did not re-approach Ford after the April 15 meeting to discuss other accommodations, or that it proposed counteroffers even though it may not have been legally required to do so. If Ford had seriously attempted to clarify Harris’s initial request, or offered indisputably reasonable alternative accommodations, the fact that Harris did not re-approach Ford might make her the more blameworthy party. But Ford never sufficiently engaged with Harris’s initial request. She did not need to make another request because her original request was never sufficiently considered or explored in the first place. Even if Ford had sufficiently considered Harris’s initial request, that does not end the matter. The EEOC Enforcement Guidance notes that “[t]he duty to provide reasonable accommodation is an ongoing one.” EEOC Enforcement Guidance on Reasonable Accommodation ¶ 32, http://www.eeoc.gov/policy/docs/ accommodatioh.html. As the Ninth Circuit has explained with reference to this guidance, “the employer’s obligation to engage in the interactive process extends beyond the first attempt at accommodation.” Humphrey, 239 F.3d at 1138. After the first attempt to identify a reasonable accommodation failed, Ford made no effort to continue the process, despite knowing that Harris continued to suffer from IBS. In fact, Ford explicitly told Harris that she bore the sole burden to identify another accommodation, abdicating any responsibility on its part to help in that process. R. 66-10 (Mtg. Notes at 6) (Page ID # 1323) (“[Karen Jirik] said that she ... is willing to talk with [Harris] again if she identifies another accommodation.” (emphasis added)). It is understandable that Harris might have concluded that further requests would have been fruitless after Ford conclusively told her that telework would not work and ignored her insistence that her initial request merely quoted Ford’s own telecommuting policy.

In sum, Ford did not seriously pursue an accommodation with Harris that addressed the key challenge she identified— physical presence every day of the week at Ford’s work site. Instead, Ford approached the discussion of telework from its first meeting with Harris by reading her request as expansively as possible and then narrowly focusing on why it would not work. Ford ignored Harris’s insistence that she had merely quoted the language of the telework policy and that she was open to more limited telework arrangements. Ford proposed two alternatives that did not address the problems Harris faced with her IBS and were not reasonable accommodations. After shutting down all further discussion of telework, Ford did not make any attempt to pursue further discussions with Harris in the interactive process. This is far from sufficient participation, and thus summary judgment should be denied on this basis as well.

E. The EEOC created a genuine dispute of material fact whether Ford retaliated against Harris for filing a charge with the EEOC.

Harris presented more than sufficient evidence to preclude summary judgment on her ADA retaliation claim. After Harris filed her charge with the EEOC, three potentially suspicious events occurred: for the first time, Ford changed Harris’s performance rating to signify poor performance for problems that had been ongoing for years; Ford put Harris on a performance-enhancing plan (“PEP”), a plan that Harris testified in her deposition was in part designed for her to fail; and Harris’s *782supervisor began holding intimidating meetings with Harris to discuss her performance problems. Ultimately, Ford fired Harris only four months after she filed her charge. A reasonable jury could certainly infer from the timing and nature of these events that Ford fired Harris in retaliation for the charge she filed with the EEOC.

More specifically, first, the EEOC met its burden to establish a prima facie case of retaliation — that retaliation was the but-for cause of Harris’s termination — by pointing to two pieces of evidence: (1) the temporal proximity between Harris filing a charge with the EEOC and her termination; and (2) that the problems Ford identified with Harris’s performance existed before and after she filed her charge with the EEOC, but prompted an overall negative performance review only after she filed her charge. R. 60-13 (2008 Performance Review) (Page ID # 1123-29); R. 60-12 (2007 Performance Review) (Page ID #1117-22); R. 60-14 (2006 Performance Review) (Page ID # 1130-35); R. 60-16 (2009 Interim Review) (Page ID # 1140-42). It is true that Ford moved to a new rating system in 2009, but it does not follow that Ford could have given Harris a low rating only under the new system. Ford could have ranked Harris as lower than “exceptional plus” under the old rating system, but chose not to do so. Even if “exceptional plus” were the default rating under the former system as Ford now claims, and attained by 80% of employees, Ford still chose to give Harris that rating in 2008 despite the fact that Ford argues she ranked in the bottom 10% of her peers in more detailed reviews. R. 60-2 (Gordon Decl. ¶ 13) (Page ID # 1035). The point is that only after Harris filed her charge with the EEOC did Ford decide to change her overall performance rating to signify poor performance for problems that had been ongoing for several years.

Under University of Texas Southwestern Medical Center v. Nassar, — U.S. -, 133 S.Ct. 2517, 186 L.Ed.2d 503 (2013), Harris does not need to prove that Ford would never have fired her, even at some later point, had she not filed her EEOC complaint. Her burden is to present evidence suggesting that Ford would not have fired her at the time it did if she had not filed her EEOC complaint. The Supreme Court recently provided an example of but-for causation that helps illustrate this point:

[Wjhere A shoots B, who is hit and dies, we can say that A [actually] caused B’s death, since but for A’s conduct B would not have died. The same conclusion follows if the predicate act combines with other factors to produce the result, so long as the other factors alone would not have done so — if, so to speak, it was the straw that broke the camel’s back. Thus, if poison is administered to a man debilitated by multiple diseases, it is a but-for cause of his death even if those diseases played a part in his demise, so long as, without the incremental effect of the poison, he would have lived.

Burrage v. United States, — U.S. -, 134 S.Ct. 881, 888, 187 L.Ed.2d 715 (2014) (emphasis added) (internal quotation marks and citation omitted). Like the man with multiple diseases in the second example, Harris eventually might have been fired because of her performance problems. The key question is whether the EEOC charge she filed was the poison that precipitated that firing to occur at the particular time it did. See also Montell v. Diversified Clinical Servs., Inc., 757 F.3d 497, 507 (6th Cir.2014) (“[I]n retaliation cases, courts must determine ‘what made [the employer] fire [the employee] when it *783 did,.’ ” (quoting Hamilton v. Gen. Elec. Co., 556 F.3d 428, 436 (6th Cir.2009)) (emphasis in original)).

Policy considerations also weigh against the majority’s crabbed reading of Nassar. Under the majority’s test, it would be impossible for employees with performance problems to bring a retaliation claim based on a theory that those performance problems did not truly motivate the employer to fire them. That cannot accord with the purposes of the ADA because employees with disabilities often will have performance problems precisely because of the struggles they encounter to manage those disabilities.

Second, the EEOC presented sufficient evidence to create a genuine dispute of material fact that Ford’s asserted reasons for firing Harris did not actually motivate Ford to fire her. Ford claimed it fired Harris because she failed to achieve the objectives of the PEP and because of her attendance problems. In addition to the two factors discussed above (i.e., the timing of the termination and the change in Harris’s overall performance rating), the EEOC pointed to two other pieces of evidence that suggest Ford was not actually motivated to fire Harris for the reasons it gave: (1) the design of the PEP; and (2) meetings Gordon held with Harris that she perceived as intimidating.

1. Design of the PEP

One of the PEP’s objectives was that Harris eliminate a backlog of paperwork. Harris testified in her deposition that the paperwork was pending only because she needed to wait for responses from suppliers and coworkers, not because she was slacking. R. 60-6 (Harris Dep. at 264) (Page ID # 1077). Thus, a reasonable jury could infer that the PEP was designed so that Harris would fail.

Harris’s testimony on why she thought the plan was designed for her to fail is not “blatantly contradicted by the record,” as the majority claims. Maj. Op. at 769. First, that Harris may have failed two prior performance plans does not objectively establish that the PEP was not designed for her to fail. The majority does not claim that those prior performance plans were exactly the same as the plan given Harris after she filed her discrimination charge. Nor could it, based on the current record. Second, the majority cites nothing in the record that supports its additional assertion that Ford used “similar” PEPs for other poorly performing employees or that those PEPs were similar with respect to the critical objective for this case, that Harris eliminate a backlog of paperwork. Maj. Op. at 769-70.

2. Meetings with Gordon

After Harris filed her charge with the EEOC, Harris’s supervisor Gordon began holding one-on-one, closed-door meetings with Harris that Harris perceived as intimidating. R. 60-6 (Harris Dep. at 218-24) (Page ID # 1066-67). A reasonable jury could certainly doubt that these meetings were meant to help Harris, and instead could decide that they were designed to hurt her. Harris recounted meetings that were not normal, professional interactions between a supervisor and employee discussing that employee’s performance. Rather, Harris testified that Gordon yelled at her repeatedly, threatened her, and even held one meeting on her attendance problems with all of her co-workers present. For example, Harris testified in her deposition that in one meeting Gordon “yell[ed]” at her “military style,” asking her “did [she] agree he was a good manager? He was a good manager, did [she] agree?” Id. at 219 (Page ID # 1066). In that same meeting, Harris testified that Gordon threatened her with an insubordi*784nation charge when she asked to leave to address an urgent work matter. Id. Gordon also held a meeting with all of Harris’s co-workers to discuss Harris’s attendance problems. R. 60-2 (Gordon Decl. ¶ 19) (Page ID # 1038). At the meeting, Gordon discussed, in explicit terms, the nature of Harris’s illness, which she had previously kept private. R. 41-3 (Harris Dep. at 329) (Page ID # 627). Harris found that meeting so upsetting that she eventually left the room in tears and had a panic attack. Id. at 326-29 (Page ID # 627). Thus, Harris did not just express “ ‘subjective skepticism regarding the truth of whether Gordon was actually trying to help her.” Maj. Op. at 768 (quoting Hedrick v. W. Reserve Care Sys., 355 F.3d 444, 462 (6th Cir.2004)). She made factual allegations about the unprofessional ways in which Gordon conducted those meetings— yelling at her, threatening her, etc. — from which a reasonable juror could conclude that Gordon held those meetings to retaliate against Harris for filing her charge with the EEOC.6

There is also a genuine dispute of material fact concerning whether Lisa King was the sole 'decisionmaker in Harris’s termination. Ford and the majority assert that King made the decision to fire Harris by herself and that Gordon was on vacation at the time. R. 60-2 (Gordon Decl. ¶ 26) (Page ID # 1041); R. 60-4 (Jirik Decl. ¶ 17) (Page ID # 1053); R. 60-15 (Kane Decl. ¶ 8) (Page ID # 1138). King supervised Mike Kane, who in turn supervised Gordon. R. 66-23 (King Dep. at 26) (Page ID # 1368). King’s deposition testimony about the termination decision, however, portrays the decision as a group decision, involving everyone in Harris’s supervisory chain, including Gordon, and people from HR. When asked about her role in Harris’s termination decision, King responded:

My role was one of understanding the actions that we were taking, being responsible with the team for consensing [sic] that we were comfortable that we were taking actions, and the team in question would have .been the varied levels of supervision in the chain and the HR organization. So when we were making decisions, those were consensed [sic] decisions. I would be a participant within those discussions. And then I was also responsible for oversight of the actions that we were taking to ensure that they were fair and reasonable, that we were acting within policy, those types of things.

R. 66-23 (King Dep. at 27) (Page ID # 1368) (emphasis added). In response to the question “[W]ho do you recall being part of the team that you just testified ... [was] involved in the termination of Jane Harris?” King responded, “So the folks that would be involved are the three I said operationally,” — “John Gordon, Mike Kane, and myself’ — “That was her supervisory chain. And then within HR, Karen Jirik would have been involved, at certain points Leslie Pray, and at certain points Stephanie Covington.” Id. at 27-28 (Page ID # 1368). King also characterized the decision to fire Harris as having been reached over several meetings. R. 60-5 (King Dep. at 67) (Page ID #1058). Thus, a reasonable jury could conclude that Gordon was actually involved in the *785decision to fire Harris. Gordon’s potentially retaliatory conduct can therefore certainly help establish pretext.

Even if King were the sole decisionmaker, there is a genuine dispute of fact whether Gordon’s potentially retaliatory conduct is sufficient to establish “cat’s paw” liability. In the context of retaliation claims, “cat’s paw liability will lie ... if (1) non-decisionmakers took actions intended” to cause the adverse employment action against the employee “in retaliation for his protected conduct, and (2) those retaliatory actions were a but-for cause of’ the adverse employment action. Seoane-Vazquez v. Ohio State Univ., 577 Fed.Appx. 418, 428 (6th Cir.2014).

As to the first element, a reasonable jury could infer that the meetings Gordon held with Harris about her performance demonstrated a retaliatory animus towards her. Gordon was responsible for writing Harris’s performance evaluations, and he also designed the PEP along with his supervisor Mike Kane. R. 60-2 (Gordon Decl. ¶ 13, 20) (Page ID #1034-35, 1039). A reasonable jury could therefore conclude that Gordon’s retaliatory animus towards Harris infected his assessment of Harris’s performance and the design of the PEP. Moreover, Gordon made the assessment that Harris had not met many of the PEP objectives. Id. ¶¶ 21-25 (Page ID # 1039-40); R. 60-18(PEP) (Page ID # 1144-50). As for intent, Gordon wrote on Harris’s 2009 Interim Performance Review that “[i]f significant improvement is not noted during [the 30-day PEP] time period ..., Ms. Harris’ employment with Ford Motor Company may be terminated.” R. 60-16 (2009 Interim Review at 2) (Page ID # 1141). Given that Gordon knew the consequences of failing to achieve the PEP objectives, a reasonable jury could infer that, because Gordon found that Harris failed, he intended to cause Harris to be fired.

Whether King made a sufficiently independent investigation into Harris’s performance such that Gordon’s actions were not the but-for cause of Harris’s termination is in dispute. Staub v. Proctor Hosp., 562 U.S. 411, 421, 131 S.Ct. 1186, 1193, 179 L.Ed.2d 144 (2011) (“[I]f the employer’s investigation results in an adverse action for reasons unrelated to the supervisor’s original biased action ..., then the employer will not be liable.”). King’s deposition does not explain whether she performed an independent assessment of Harris’s progress in achieving the PEP objectives or of Harris’s performance generally. R. 60-5 (King Dep.) (Page ID # 1054-58). Notably, she does not say that she would have fired Harris for her absences alone, a factor independent of Gordon’s influence. Id. Other supervisors characterized the decision that Harris had not met the PEP objectives as a group effort, with King making the final decision, but it is not clear to what extent King’s decision was independent of Gordon’s assessment. See, e.g., R. 60-4 (Jirik Decl. ¶ 17) (Page ID # 1053) (“At the conclusion of the 30 days, it is my understanding that Ms. Harris’ management team (i.e., Lisa King, Mike Kane and John Gordon) determined that she had not met many of the PEP objectives.”). Thus, there is a genuine dispute of material fact whether Gordon’s actions could establish cat’s paw liability.

Even if not sufficient to create a genuine dispute of material fact on cat’s paw liability, Gordon’s actions are relevant circumstantial evidence of pretext. As we have explained:

Although discriminatory statements by a nondeeisionmaker, standing alone, generally do not support an inference of discrimination, the comments of a *786nondecisionmaker are not categorically excludable. Circumstantial evidence establishing the existence of a discriminatory atmosphere at the defendant’s workplace in turn may serve as circumstantial evidence of individualized discrimination directed at the plaintiff. While evidence of a discriminatory atmosphere may not be conclusive proof of discrimination against an individual plaintiff, such evidence does tend to add “color” to the employer’s decisionmaking processes and to the influences behind the actions taken with respect to the individual plaintiff.

Ereegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 356 (6th Cir.1998) (internal quotation marks and citations omitted). This reasoning applies with equal force to retaliatory conduct. Several factors that we have found to increase the probative value of such statements or conduct are present here: Gordon is a supervisor in Ford’s hierarchy, not a co-worker; Gordon’s meetings were held close in time to the termination decision; and his actions “buttressE ] other evidence of pretext.” Id. at 357 (discussing these factors). Moreover, Gordon was involved in most of the meetings about Harris’s poor performance before the actual termination decision, “a factor the Ereegovich Court found indicative of the intermediate employee’s influence over the employment decisions.” Chattman v. Toho Tenax Am., Inc., 686 F.3d 339, 353 (6th Cir.2012).

II. CONCLUSION

The majority fails to engage in the fact-intensive, case-by-case determination required by the ADA and by EEOC regulations interpreting the ADA to assess Harris’s claims. The majority consistently refuses to take the posture that summary judgment requires. Instead, it takes the facts in the light least favorable to Harris or determines for itself that Harris’s testimony is not credible. When the EEOC regulations and the standards of summary judgment are faithfully applied, clearly the EEOC has presented sufficient evidence to create a genuine dispute of material fact concerning whether Harris is a qualified individual, either because physical presence is not an essential function of her job or because telework is a reasonable accommodation for her, and regarding whether Ford retaliated against Harris for filing a charge with the EEOC. I therefore dissent, and would REVERSE the district court and REMAND for proceedings consistent with this opinion.

18.4 Carmona v. Southwest Airlines Co., 604 F.3d 848 (5th Cir. 2010) 18.4 Carmona v. Southwest Airlines Co., 604 F.3d 848 (5th Cir. 2010)

604 F.3d 848 (2010)

Edward CARMONA, Plaintiff-Appellant,
v.
SOUTHWEST AIRLINES COMPANY, Defendant-Appellee.

No. 08-51175.

United States Court of Appeals, Fifth Circuit.

April 22, 2010.

850*850 John F. Melton (argued), Melton & Kumler, LLP, Austin, TX, for Carmona.

Lacey L. Gourley (argued), Bracewell & Giuliani, L.L.P., Austin, TX, Natalie C. Rougeux, Reagan, Burrus, Dierksen, Lamon & Bluntzer, New Braunfels, TX, for Defendant-Appellee.

Before GARWOOD, OWEN and SOUTHWICK, Circuit Judges.

GARWOOD, Circuit Judge:

The motion for rehearing of defendant-appellee Southwest Airlines Company is overruled, the prior opinion issued herein March 22, 2010, is hereby withdrawn and the following opinion is hereby substituted for it, viz:

Plaintiff-appellant, Edward Carmona, sued defendant-appellee, Southwest Airlines Co. (Southwest), claiming that the termination of his employment violated Title VII of the Civil Rights Act of 1964 (Title VII) and the Americans with Disabilities Act (ADA). The case was tried before a jury, which found that Southwest had discriminated against Carmona because of his disability and awarded him $80,000.00 in lost wages. The jury found no liability on Carmona's Title VII claim. The district court accepted the jury's verdict on Carmona's Title VII claim, vacated the jury's verdict on Carmona's ADA claim, and granted judgment as a matter of law to Southwest. Carmona now appeals. For the following reasons, we reverse in part, vacate in part, and remand.

 

FACTS AND PROCEEDINGS BELOW

 

Carmona was diagnosed with psoriasis when he was twelve or thirteen years old. Psoriasis is a skin disease characterized by thickened patches of inflamed, red skin, often covered by silvery scales. American Medical Association, Encyclopedia of Medicine 830 (Charles B. Clayman ed., Random House 1989). Although individual attacks of psoriasis can be completely relieved, the disease itself is not usually curable, and it tends to recur in attacks of varying severity. Id. Carmona began working as a flight attendant at Southwest in 1991.

In 1998, Carmona was diagnosed with psoriatic arthritis, which is a condition that develops in about thirty-five percent of people who have psoriasis. Psoriatic arthritis 851*851 causes painful swelling and stiffness in the joints during attacks of psoriasis on the surface of the skin. During flare-ups of his psoriatic arthritis, Carmona cannot walk or move around without great pain. It also makes it harder for him to sleep. Carmona's psoriatic arthritis flares up three or four times every month, and each flare-up lasts for three or four days. In other words, Carmona spends anywhere from about one-third to about one-half of each month unable to move without a great deal of pain. He filed for intermittent Family and Medical Leave Act (FMLA) leave so that he could be excused from work during these flare-ups. Southwest's third-party FMLA administrator, Broadspire Administrator Services, Inc. (Broadspire), granted this leave in 1998. Broadspire renewed the leave periodically until April 2005, when it found that Carmona had not worked enough hours to be eligible for renewal.

Southwest's attendance policy is governed by the "Agreement Between Southwest Airlines Co. and The Flight Attendants in the Service of Southwest Airlines Co. As Represented By the Transport Workers Union of America, AFL-CIO" (Agreement). Under the Agreement, flight attendants accrue points for various types of attendance lapses, such as calling in sick, failing to show up for a flight without advance notice, or failing to report to scheduling. Different types of lapses result in the accrual of different numbers of points. For example, calling in sick without a doctor's note results in the addition of a half-point to the flight attendant's record, while a failure to show up without any kind of prior notice to the airline results in the addition of two-and-a-half points.

Points do not remain on the flight attendant's record permanently. All points that are more than sixteen months old are automatically "rolled off." If a flight attendant does not accrue any points during a calendar quarter, his running total is reduced by two. Both of these reductions are known as "record improvement." Points are not assigned for absences that result from approved FMLA leave. Also, a flight attendant may use a doctor's note once every calendar quarter to remove all points associated with the ailment that is verified by the note. The flight attendants' records are kept in pencil, because they are frequently altered by doctors' notes, FMLA leave, and pre-termination reviews.

When a flight attendant reaches between five and six-and-a-half points, he is issued a "letter of counsel." When the flight attendant reaches between seven and nine points, he is issued a "written warning." When the flight attendant reaches between nine-and-a-half and eleven-and-a-half points, he is issued a "final warning." Termination occurs when a flight attendant reaches or exceeds twelve points. However, termination cannot occur under the terms of the Agreement if the flight attendant was not timely served with the letter of counsel, the written warning, and the final warning. Additionally, before termination is finalized, Southwest reviews and recalculates the points to verify that the flight attendant has reached at least twelve points. Southwest then issues a termination level notification and holds a fact-finding meeting to discuss the situation with the flight attendant and a representative of the flight attendant's union. After these precautionary steps, if Southwest remains convinced that the flight attendant has accrued twelve or more points, then the flight attendant is issued a termination letter, and his employment is terminated.

Carmona used a doctor's note to cover three absences resulting from a flare-up of his psoriatic arthritis in late April 2005. 852*852 He contends that he tried to excuse these absences using his FMLA leave but was not permitted to do so by Southwest on the ground that he was not eligible for leave. Southwest's manager contends that Carmona was eligible to excuse two of the three absences with his FMLA leave but chose to use a doctor's note instead.

On April 30, 2005, Carmona's FMLA leave expired. He was unable to renew it, because, according to Southwest and Broadspire, he had not worked enough hours that year to be eligible to renew it. Accordingly, after May 1, 2005, he was no longer able to excuse absences caused by his psoriatic arthritis with FMLA leave. At the end of April, Southwest appears to have believed that he had either six-and-a-half or seven points on his record.

Southwest sent Carmona three letters of counsel on April 7, April 26, and May 4, 2005. In early May, a flare-up of his psoriatic arthritis caused him to miss several days of work. These absences were not excused, because Carmona had been unable to renew his FMLA leave and had already used his doctor's note for the second quarter of 2005 in April. On May 10, 2005, Southwest sent Carmona a written warning.

On June 21, 2005, Carmona sprained his thumb at home. He did not report to work the next day as scheduled, but went to the hospital instead to have his thumb examined. The hospital released him around midnight of June 23. However, he did not return to work until June 27, because of the swelling in his hand. At trial, it was disputed whether or not this absence was in accordance with the hospital's instructions. Carmona testified that he faxed two doctors' notes to Southwest, one of which said that he should return to work the morning of June 23, and the other of which said that he would need to stay home for three or four days. Southwest contended that it had only received the note saying he could return to work the morning of June 23.

On June 23, 2005, Southwest sent Carmona his final warning. It issued him a termination level notice on June 27, which indicated that he had accumulated thirteen points as of June 26. Under the Agreement between the flight attendants' union and Southwest, a flight attendant must be terminated within seven days of reaching twelve points. Kevin Clark (Clark), Southwest's In-Flight Base Manager for Houston, requested an extension of this deadline, because he was unable to find a time within seven days of June 26 when he, Carmona, and a representative from Carmona's union could meet to hold the fact-finding meeting to which Carmona was entitled. At trial, Carmona testified that his union representative told him that he had to grant Southwest the extension or it would terminate him immediately. He decided to grant the extension.

Before the fact-finding meeting, Clark reviewed Carmona's attendance points and concluded that Carmona's record was incorrect, because Clark calculated that it should have reflected sixteen-and-a-half points, instead of thirteen. At the meeting, Clark asserted this view. Stacy Martin (Martin), Carmona's union representative, calculated Carmona's total to be fourteen points. Because the representative of the union and Southwest's manager both agreed that Carmona was in excess of twelve points, he was terminated for excessive absenteeism without further procedure. Carmona testified at trial that, after the meeting, when Martin learned more about the circumstances of Carmona's absences, Martin stated that he did not believe that Clark had told the entire truth during the meeting. Carmona attempted to bring grievance proceedings through his union, but the union determined that his grievance lacked merit. He then obtained counsel and appealed 853*853 his grievance to the Railway Labor Act (RLA) Board of Adjustment (Board), but the Board upheld his termination.

After his termination, Carmona worked as a customer service agent for Jet Blue airlines on a part-time basis, which did not exceed twelve hours per week. This job required him to stand behind a desk and check in passengers, meet flights on the jet way, and check baggage. After nine months, he left Jet Blue and began working at Dillard's. This job required him to sit behind a desk all day, which aggravated his condition. However, Carmona admitted at trial that he did not miss work at either Jet Blue or Dillard's as a result of his psoriatic arthritis.

Carmona filed suit against Southwest on August 14, 2006, claiming that his termination violated the gender discrimination provisions of Title VII, the disability discrimination provisions of the ADA, and the FMLA. He dropped his FMLA claim during the course of the proceedings. On May 25, 2007, Southwest filed a motion for summary judgment, arguing, among other things, that Carmona's claims were preempted by the RLA. The district court agreed that Carmona's claims were preempted by the RLA and granted Southwest's motion. Carmona appealed the grant of summary judgment to this court, which reversed and remanded on July 16, 2008. Carmona v. Southwest Airlines Co., 536 F.3d 344 (5th Cir.2008).

On August 7, 2008, the district court set the case for jury trial in October 2008. On September 3, the district court held a hearing on the remainder of Southwest's motion for summary judgment and denied the motion. At this hearing, Carmona stated that he was ready to proceed to trial immediately and declined the district court's invitation to engage in additional discovery. On September 25, 2008, the court reset the trial to begin on September 29, 2008. The district court stated that this would be necessary, because its docket was completely full in October and November. On September 28, Carmona filed a motion to compel Southwest to produce Rita Ilgen (Ilgen), one of its employees, as a witness, or, alternatively, a motion for a continuance pending Ilgen's return from her vacation outside of subpoena range. Carmona stated that Ilgen was important to his gender discrimination claim, because Clark, the same supervisor who had terminated Carmona, had not assigned her points when she was arrested for driving under the influence. The district court denied this motion on September 29, stating that it had no room on its docket to delay the trial. The trial began as scheduled on September 29.

Southwest moved for judgment as a matter of law at the conclusion of each party's case, arguing, inter alia, that Carmona had failed to produce sufficient evidence for a reasonable jury to find that he was an "individual with a disability" within the meaning of the ADA, that he was "qualified" to work as a flight attendant within the meaning of the ADA, or that he had been discriminated against "because of" his disability. See 42 U.S.C.A. §§ 12102,[1] 12112[2] (2005). The trial court 854*854 carried Southwest's motion pending submission of the case to the jury. On October 2, 2008, the jury returned a verdict finding for Carmona on his ADA claim and awarding him $80,000 in lost back wages, but finding against him on his Title VII claim. Following the verdict, Southwest renewed its motion for judgment as a matter of law, and Carmona moved for reinstatement. The district court granted Southwest's motion on October 20, accepting the jury's verdict as to Title VII, vacating the verdict as to the ADA claim, and denying Carmona's motion for reinstatement. The district court vacated the verdict on Carmona's ADA claim because it found that he had presented insufficient evidence that he was an "individual with a disability" or that he had been discriminated against "because of" his disability. The district court rejected Southwest's argument that Carmona had failed to produce substantial evidence that he was "qualified" for his job within the meaning of the ADA. Final judgment that he take nothing by his suit was issued on October 20, 2008. Carmona timely filed notice of appeal on November 14, 2008.

 

DISCUSSION

 

On appeal, Carmona argues that the district court erred in granting judgment as a matter of law to Southwest on his ADA claim. He argues that, should we agree that the district court erred in overturning the jury verdict, we must also find that the district court erred by failing to reinstate him. He also argues that the district court erred in failing to grant a continuance so that Ilgen could be compelled to testify. Southwest disputes each of Carmona's assignments of error. Furthermore, although Southwest argues that the district court's judgment as a matter of law was correct, Southwest contends that the district court erred in its analysis of this issue by finding that Carmona had presented sufficient evidence for a reasonable jury to find that he was "qualified" for his job within the meaning of the ADA.

 

I. Judgment as a Matter of Law on Carmona's ADA Claim

 

In order to hold Southwest liable for discrimination under the ADA, Carmona needed to establish (1) that he was an "individual with a disability" within the meaning of the ADA, (2) that he was a "qualified individual" for his job, despite his disability, and (3) that he was discharged "because of" his disability. See 42 U.S.C.A. §§ 12102, 12112 (2005). In order to survive a motion for judgment as a matter of law, he needed to produce enough evidence in support of each of these elements to allow a reasonable jury to find in his favor. See, e.g., EEOC v. E.I. Du Pont de Nemours & Co., 480 F.3d 724, 730 (5th Cir.2007).

 

A. Standard of Review

 

We review a district court's ruling on a motion for judgment as a matter of law de novo. E.g., Hagan v. Echostar Satellite, L.L.C., 529 F.3d 617, 622 (5th Cir.2008). We examine all of the evidence in the record as a whole, including evidence that does not support the non-moving party's case. Farpella-Crosby v. Horizon Health Care, 97 F.3d 803, 805-06 (5th Cir.1996). However, we must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in favor of the non-moving party. Palasota v. Haggar Clothing Co., 342 F.3d 569, 574 (5th Cir.2003); Farpella-Crosby, 97 F.3d at 805-06. We do not 855*855 assess the credibility of the witnesses or weigh the evidence. Palasota, 342 F.3d at 574.

Judgment as a matter of law is appropriate where there is no legally sufficient evidence upon which the jury could find for a party on its claim. E.g., Hagan, 529 F.3d at 622. There is no legally sufficient evidence upon which a jury could find for a party where the facts and inferences point so strongly and overwhelmingly in favor of the moving party that reasonable jurors could not arrive at a contrary verdict. See, e.g., Burch v. Coca-Cola, 119 F.3d 305, 313 (5th Cir.1997); Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th Cir. 1969) (en banc).

 

B. "Individual with a Disability"

 

Carmona needed to establish that he was an "individual with a disability" within the meaning of the ADA in order to qualify for protection under its provisions. See 42 U.S.C.A. § 12112(a) (2005). In order to establish that he had a disability, Carmona needed to show that he had:

"(A) a physical or mental impairment that substantially limit[ed] one or more... major life activities ...;
(B) a record of such an impairment; or
(C) [was] regarded as having such an impairment." See 42 U.S.C.A. § 12102(2) (2005) (emphasis in original).

The United States Supreme Court adopted a strict interpretation of this definition in the cases of Sutton v. United Air Lines, Inc. and Toyota Motor Manufacturing, Kentucky, Inc. v. Williams. Sutton, 527 U.S. 471, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999), superseded by statute, ADA Amendments Act of 2008, Pub.L. No. 110-325, 122 Stat. 3553; Williams, 534 U.S. 184, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002), superseded by statute, ADA Amendments Act of 2008, Pub.L. No. 110-325, 122 Stat. 3553. In Sutton, the Court held that the mitigating effects of medications had to be taken into account in determining whether or not a person was "substantially limited" in performing a major life activity. Sutton, 119 S.Ct. at 2146. In Williams, the Court held that the phrase "substantially limited" precluded impairments that interfered with major life activities in only minor ways from qualifying as "disabilities" under the ADA. Williams, 122 S.Ct. at 691. Williams also noted that major life activities are those activities which are of central importance to daily life, such as walking, seeing, and hearing. Id.

The district court found that, although Carmona had presented sufficient evidence that he had an impairment that affected his major life activities of sleeping, standing, and walking, he had not presented sufficient evidence that this impairment was substantially limiting. The district court reached its conclusion in part because it found that our holding in Waldrip v. General Electric Co., 325 F.3d 652 (5th Cir.2003), controlled Carmona's case. The district court interpreted Waldrip as standing for the proposition that impairments that cause temporary, intermittent limitations of major life activities are not substantially limiting as a matter of law.

Shortly before Carmona's case went to trial, Congress amended the ADA in order to correct what it viewed as an overly restrictive interpretation of the statute's terms that had been adopted by the Supreme Court in Sutton and Williams. See ADA Amendments Act of 2008, Pub.L. No. 110-325, 122 Stat. 3553. These amendments would be very favorable to Carmona's case if they are applicable, because they make it easier for a plaintiff with an episodic condition like Carmona's to establish that he is an "individual with a disability." See id. Carmona argued unsuccessfully in the district court that the district court needed to interpret the ADA's definition 856*856 of "disability" in light of the meaning adopted by these amendments.

On appeal, Carmona again contends that we must interpret the terms of the ADA in light of the meaning adopted by the ADA Amendments Act of 2008 (ADAAA). He also argues that, even if we decline to interpret the ADA in light of these amendments, he presented sufficient evidence for a reasonable jury to find that he was an "individual with a disability" under the old standards established by Sutton and Williams.

We begin our analysis by addressing Carmona's argument that we should interpret the ADA's definition of "disability" in light of the recent amendments. We have already addressed this issue generally. In EEOC v. Agro Distribution, LLC, we stated that the ADAAA did not apply retroactively. 555 F.3d 462, 469 n. 8 (5th Cir.2009). Carmona contends in his brief that he is not arguing for retroactive application of the amendments. Instead, he argues that Supreme Court precedent establishes that "[s]ubsequent legislation declaring the intent of an earlier law is entitled to great weight when it comes to statutory construction," citing NLRB v. Bell Aerospace Co., Red Lion Broadcasting Co. v. FCC, and Glidden v. Zdanok for support. Bell Aerospace Co., 416 U.S. 267, 94 S.Ct. 1757, 40 L.Ed.2d 134 (1974), overruled on other grounds by NLRB v. Hendricks County Rural Elec. Membership Corp., 454 U.S. 170, 102 S.Ct. 216, 70 L.Ed.2d 323 (1981); Red Lion Broadcasting Co., 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969); Glidden, 370 U.S. 530, 82 S.Ct. 1459, 8 L.Ed.2d 671 (1962). These cases are not on point. In Bell Aerospace and Red Lion Broadcasting, the meaning of the statutes at issue before the Supreme Court had not been definitively established by the Court in any of its prior opinions. See Bell Aerospace Co., 94 S.Ct. at 1768; Red Lion Broadcasting Co., 89 S.Ct. at 1802. Thus, the "subsequent legislation" at issue in these cases did not involve a Congressional overturning of settled Supreme Court precedent. Each case involved a situation in which the Court examined a statute and established its definitive interpretation for the first time.

In Glidden, the Eighty-third and Eighty-fifth Congresses had passed legislation that disagreed with a line of Supreme Court cases that had held that earlier Congresses had not established the United States Court of Customs and Patent Appeals or the United States Court of Claims as Article III courts. Glidden, 82 S.Ct. at 1463. In reviewing the Eighty-third and Eighty-fifth Congresses' legislation, the Supreme Court stated that, in judging for itself whether or not the precedent in question had been correctly decided, it was proper to give some weight to the later Congresses' interpretation of the earlier Congresses' intent in establishing the courts. Id. at 1468. Ultimately, however, the Supreme Court stated that it was not bound by the Eighty-third and the Eighty-fifth Congresses' interpretation, because the case involved a constitutional question. Id. The presence of a constitutional question gave the Court the power to invalidate the later Congresses' desired interpretation. Therefore, as in Bell Aerospace and Red Lion Broadcasting, the Court had yet to render a definitive interpretation of the statute at issue in Glidden when it decided to give some weight to the later Congresses' interpretation.

Carmona's case is different, because the Supreme Court established the definitive interpretation of the ADA's definition of "disability" in Sutton and Williams. This interpretation was later partially overruled by the ADAAA, but until the ADAAA went into effect, all lower courts remained bound by the Supreme 857*857 Court's settled interpretation. The effective date of the ADAAA was January 1, 2009. This case was filed, tried, and decided before then. Therefore, in order for us to depart from the Supreme Court's settled interpretation, we would need to find that Congress intended the ADAAA to apply retroactively. We have already declined to do that. See Agro Distribution, LLC, 555 F.3d at 469 n. 8. Accordingly, we must apply the Supreme Court's pre-ADAAA definition of "disability."

Carmona only claims to have established that he was an "individual with a disability" under Prong (A) of the ADA's definition of "disability." See 42 U.S.C.A. §§ 12102(2). Specifically, he asserts that he submitted sufficient evidence for a reasonable jury to find that his psoriasis and his psoriatic arthritis substantially limited his major life activities of sleeping, walking, and standing. We do not address Carmona's arguments that he presented sufficient evidence that he was substantially limited in the major life activities of sleeping and standing, because we find that he presented sufficient evidence that he was substantially limited in the major life activity of walking.

Carmona testified that his psoriatic arthritis made him unable to walk when it flared-up. He stated that, "when that happens I just stay immobile ... wherever I am. Or if I do move, I crawl around ... it's quite painful." He testified that these flare-ups could occur as often as twice in the same week. This testimony was corroborated by documents entered into evidence by both Carmona and Southwest that contained medical evaluations of Carmona's condition that were made and signed by Carmona's physician, Dr. Tom Roark (Roark). In these documents, Roark stated that Carmona needed to be granted intermittent FMLA leave, because he would be "incapacitated" three to four times every month for three to four days at a time.

The district court found that this evidence was insufficient to establish that Carmona was substantially limited in the major life activity of walking for both factual and legal reasons. Southwest echoes these arguments on appeal. We will examine the factual reasons first.

The district court reasoned that Carmona had undermined his own factual evidence of disability by testifying that (1) he had not declared himself disabled when he applied to work for Southwest in 1991, (2) his symptoms were mostly on his skin, (3) his symptoms were eased by medication, (4) he was able to ride his bike, shop, cook, walk, stand, and perform other tasks, and (5) after his termination, he went to work for Jet Blue and Dillard's without missing any scheduled work. We must view the evidence in the light most favorable to Carmona while evaluating these arguments. See Palasota, 342 F.3d at 574.

Arguments (1) and (2) are flawed, because they fail to distinguish between Carmona's psoriasis and his psoriatic arthritis. Carmona never alleged that his psoriasis impaired his ability to walk. Carmona had psoriasis when he went to work for Southwest in 1991, but he did not develop psoriatic arthritis until 1998. Therefore, there was no reason for him to disclose that he was disabled when he applied for his job with Southwest in 1991. Similarly, when Carmona testified that his symptoms of psoriasis were "mostly on the skin," he was describing the symptoms of his psoriasis, not his psoriatic arthritis.

As to Argument (3), it does not necessarily follow from the fact that Carmona's symptoms were "eased" by taking medication that he was no longer substantially limited in his ability to walk. The jury rationally could have concluded that, even with his medication, Carmona was still 858*858 substantially limited in his ability to walk during the flare-ups of his psoriatic arthritis. See EEOC v. Phillips Chem. Co., 570 F.3d 606, 620 (5th Cir.2009) ("Individuals who take medication or use corrective devices to lessen an impairment but still remain substantially limited as to one or more major life activities are still disabled under the ADA.")

Argument (4) is the product of selective quotation. In its opinion, the district court stated that "Mr. Carmona testified he was able to live by himself without assistance, take care of himself, read, drive, ride his bike, shop, cook, walk, and stand, most of the time." Southwest took this a step further in its brief, omitting "most of the time" and stating that "[Carmona] is able to drive, read, ride his bike, go shopping, and cook, and lives by himself and is able to care for himself." Carmona's actual testimony was that:

"Q. [By Counsel for Southwest] Do you still live by yourself?
A. [By Carmona] Yes, I do.
Q. And you were able to take care of yourself, correct?
A. For the most part, yes.
Q. You were able to read, to drive, to ride your bike, and shop and cook?
A. On good days, yes, ma'am.
Q. And most of the time, you're able to walk and stand, correct?
A. On good days, yes, ma'am." (Emphasis added.)

Every one of Carmona's responses was qualified in a manner that was consistent with the rest of his testimony. Nothing in this testimony refuted his claim that his periodic flare-ups of psoriatic arthritis substantially limited his ability to walk.

Argument (5), that Carmona's evidence of disability was undermined by his admission that he had not missed any work because of his condition while he was employed by Jet Blue or Dillard's, has more merit. It seems strange that an employee who was medically excused from work for up to fifteen days a month at one job would have a perfect attendance record at his next job. However, Carmona's jobs at Jet Blue and Dillard's could reasonably be found materially different in presently relevant respects from his job at Southwest. At Dillard's, Carmona's job was performed entirely while seated at a desk. Although Carmona testified that sitting aggravated his condition, he never contended that his psoriatic arthritis substantially limited his ability to sit. Thus, the jury reasonably could have concluded that he was able to work this job during his flare-ups, even if getting to and from the job was extremely painful. At Jet Blue, Carmona worked part-time as a customer service agent, which required him to stand behind a desk, meet flights on the jet way, and check baggage. Although this job required him to stand, it involved minimal amounts of walking. Jet Blue did not allow him to work this job for more than twelve hours a week. Under these facts, and mindful of the rule that we must view them in the light most favorable to Carmona, we find that the jury rationally could have concluded that Carmona was able to work for Jet Blue despite being substantially limited in his ability to walk, because he could tolerate the pain long enough to make it through a part-time day as a customer service agent.

The district court and Southwest also argue that Carmona failed to produce sufficient evidence to establish that he was disabled as a matter of law, because our case law holds that intermittent flare-ups cannot be considered substantially limiting. The case cited for this proposition by both Southwest and the district court is Waldrip. 325 F.3d at 652. However, Waldrip involved a situation in which the plaintiff's doctor testified that, "at most, he occasionally must miss a few days of work when his chronic pancreatitis flares up." Id. at 859*859 657 (emphasis added). The occasional flare-ups in Waldrip and the frequent, recurrent flare-ups that Carmona experiences are substantially different situations, though both could be described as "intermittent." In Waldrip, the plaintiff's occasional flare-ups did not substantially limit any of his major life activities, because they were so few and far between. See id. Carmona spends anywhere from about one-third to about one-half of each month unable to walk without excruciating pain. It would be difficult to argue that this does not substantially limit his ability to walk.

The combination of Carmona's testimony and the medical records (including Dr. Roark's opinion as to Carmona's impaired ability to walk) submitted with his application for FMLA certification provided sufficient evidence for a reasonable jury to find that Carmona was an "individual with a disability" within the meaning of the ADA, because it allowed a reasonable jury to conclude that he had an impairment, psoriatic arthritis, that substantially limited his major life activity of walking. The district court erred in holding otherwise.

 

C. "Qualified Individual"

 

In addition to establishing that he was an "individual with a disability," Carmona needed to establish that he was "qualified" for his job within the meaning of the ADA. See 42 U.S.C.A. § 12112(a) (2005). The ADA defines a "Qualified individual with a disability" as:

"an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. For the purposes of this subchapter, consideration shall be given to the employer's judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job." 42 U.S.C.A. § 12111(8) (2005).

Southwest argues that Carmona could not have established that he was qualified for his job because precedent from our Circuit holds that regular attendance is a necessary qualification for most jobs, and Carmona's disability prevented him from attending his job regularly. See generally Smith v. Lattimore Materials Co., 287 F.Supp.2d 667, 672 (E.D.Tex.), aff'd, 77 Fed.Appx. 729 (5th Cir.2003) ("Reporting on time and regular attendance is an essential function of any job.").

The district court disagreed with Southwest, finding that the evidence introduced at trial was sufficient to allow a reasonable jury to conclude that flight attendants' schedules at Southwest were extremely flexible. Therefore, the district court reasoned that, while regular attendance might be a requirement of most jobs, it was not a requirement of Carmona's position at Southwest.

We are sympathetic to the argument that Carmona was not qualified to be a flight attendant at Southwest because his disability prevented him from showing up for work on scheduled days. Although the evidence showed that Southwest's flight attendants have nearly unlimited discretion in determining when and how often they want to work, it did not show that they may skip the days they have scheduled at will.

However, we do not think that Southwest can establish that it was unreasonable for the jury to find that Carmona was qualified for his job. There is no dispute that Carmona was able to perform the essential functions of his job as a flight attendant when he showed up to work. The dispute is over whether or not his irregular attendance made him unqualified. Even if we assume that attendance 860*860 was an essential function of Carmona's job,[3] Southwest's own measure of whether or not a flight attendant's attendance was adequate was its attendance policy, which was extremely lenient. Carmona managed to stay within the bounds of this policy for seven years, despite his irregular attendance, and despite his disability. Therefore, we do not think that his disability made him unqualified for his job, even though it often caused him to miss work.

Southwest also contends that Carmona's violation of the attendance policy in June 2005 made him unqualified for his job. We disagree with this contention as well. The fact that Carmona's supervisors determined that he had exceeded twelve points was evidence that his attendance was inadequate and thus that he was unqualified for his job. But, as we discuss in detail below, Carmona introduced evidence that other flight attendants who had also exceeded 861*861 twelve points were not discharged. Based on this evidence, the jury reasonably could have concluded that Carmona's attendance, although inadequate under Southwest's written policy, would have been deemed adequate under the unwritten policy that was actually in effect, had he not been discriminated against for being disabled. Therefore, even if the jury concluded that Carmona had violated Southwest's written attendance policy, it could have reasonably found that he was nevertheless qualified for his job under the unwritten policy that was actually in effect.

Accordingly, we hold that the jury reasonably could have found that Carmona was a "qualified person with a disability" within the meaning of the ADA.

 

D. Discriminated Against "Because of" His Disability

 

The final element Carmona needed to establish in order to prevail on his ADA claim was that Southwest discriminated against him "because of" his disability when it terminated him. See 42 U.S.C.A. § 12112(a) (2005). Once an employer has produced sufficient evidence to support a nondiscriminatory explanation for its decision to terminate an employee, the employee may "establish that he was the victim of intentional discrimination `by showing that the employer's proffered explanation is unworthy of credence.'" Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 120 S.Ct. 2097, 2106, 147 L.Ed.2d 105 (2000) (quoting Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 1095, 67 L.Ed.2d 207 (1981)). "[I]t is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer's explanation." Reeves, 120 S.Ct. at 2108 (emphasis in original).

Southwest asserted at trial that it had fired Carmona for violating its attendance policy. Carmona introduced evidence in the form of documents and testimony that five other flight attendants had reached or exceeded twelve attendance points without being terminated. Southwest admitted that all five of these flight attendants were female, but their identities were not disclosed. The district court admitted portions of their attendance records in Plaintiff's Exhibits 4 through 9. Plaintiff's Exhibits 7 and 8 were taken from the same employee's record. Because the names of these employees were withheld, we will refer to each by the number of the exhibit that contained her employment records.

Southwest argues on appeal, as it argued at trial, that none of these employees' situations were similar to Carmona's. Clark testified that Employees 4, 5, and 9 were not terminated, even though they reached or exceeded twelve attendance points, because they were not timely issued one or more of the warning letters that had to be issued before termination could occur under the Agreement between Southwest and its flight attendants. However, as Carmona's attorney noted at trial, and as Carmona argues now, the memoranda found in Plaintiff's Exhibits 4, 5, and 9 all state that these employees "were issued all letters of discipline timely." (Emphasis added.) Clark attempted to resolve this apparent discrepancy by testifying that these statements indicated that the employees in question had been issued timely all letters of discipline up to, but not including, their termination letters. While this explanation may be plausible, the jury was not required to believe it. The explicit, unqualified statement contained in each memorandum that all letters of discipline had been issued timely provided grounds for a reasonable jury to reject Clark's testimony that the statements were implicitly qualified. In conducting a review for the sufficiency of the evidence, we accept all credibility choices made by the jury. 862*862 Goodman v. Harris County, 571 F.3d 388, 398 (5th Cir.2009), pet. denied, ___ U.S. ___, 130 S.Ct. 1143, ___ L.Ed. ___ (2010), ___ U.S. ___, 130 S.Ct. 1146, ___ L.Ed.2d ___ (2010). Accordingly, although the issue is indeed a close one, we ultimately conclude that Carmona's jury reasonably could have found that Southwest had allowed other flight attendants to exceed twelve points without being terminated.

Southwest also argues that the female employees whose records were introduced in Plaintiff's Exhibits 4 through 9 were not proper comparators for the purpose of establishing discrimination, because Carmona did not offer any proof that these women were individuals without disabilities. The logic behind this argument is that if these women were also disabled, but allowed to keep their jobs, then no reasonable jury could have inferred that Carmona's disability was a motivating factor in his discharge. Carmona argues that the jury was entitled to assume Employees 4 through 9 were not disabled, because no evidence suggested that they were disabled, and most individuals are not disabled.

We agree that Southwest's argument on this issue is without merit. It is generally recognized that a party has the burden of proof on an issue when the facts with regard to the issue lie peculiarly within the knowledge of that party. McCormick on Evidence 950 (3d ed., Edward W. Cleary ed., 1984). Another relevant principle is that the risk of failure of proof may properly fall upon the party who contends that the more unusual event has occurred. Id. In this case, Southwest withheld all information about Employees 4 through 9 except for their sex. There is no doubt that most people are not individuals with disabilities. Therefore, if Southwest knew that one or more of Employees 4 through 9 was disabled, it bore the burden of coming forward with that information at trial. Indeed, it seems strange that Southwest would not have introduced evidence that one or more of these employees was disabled, if it were true, given the detrimental effect this information would have had on Carmona's case. Therefore, we find that the jury was entitled to assume, based on the absence of proof to the contrary and the probabilities of the situation, that the employees represented by Exhibits 4 through 9 were not disabled.

Moreover, some of Carmona's trial evidence supported an inference that his disability-related absences irritated his supervisors. Clark characterized Carmona's attendance record between 2003 and 2005 as "one of the worst ones that we had," noting that "roughly 40 percent of the time that's represented on the calendar is sick time." However, Clark admitted that the vast majority of these absences could not be counted against Carmona because of his intermittent FMLA leave and his doctors' notes. Michael Mankin, Clark's superior, testified that Carmona's attendance was "extremely poor." All things considered, a reasonable jury could properly infer that, when Carmona's record eventually indicated that he had exceeded twelve points, his supervisors jumped at the chance to terminate him and did everything they could to ensure that his points would still exceed twelve after his pre-termination review, even though leniency had been granted to similarly-situated employees who were not disabled. Though, as stated, the issue is a close one, we ultimately conclude that a reasonable jury could have found Southwest's proffered explanation for Carmona's discharge was false and that the true reason was his disability.

 

E. Conclusion

 

A reasonable jury could have concluded, based on the evidence in this case, that 863*863 Carmona was an "individual with a disability" within the meaning of the ADA, that he was "qualified" for his position within the meaning of the ADA, and that he was terminated "because of" his disability. See 42 U.S.C.A. §§ 12102, 12111, 12112 (2005). Therefore, we hold that the district court erred in granting judgment as a matter of law to Southwest.

 

II. Reinstatement

 

Carmona argues that if the district court erred in granting judgment as a matter of law to Southwest, then it also erred in denying his motion for reinstatement. We review a district court's determination of whether or not to grant reinstatement for abuse of discretion. Brunnemann v. Terra Int'l, Inc., 975 F.2d 175, 180 (5th Cir.1992).

The ADA adopts the remedies set forth in Title VII. See 42 U.S.C. § 12117 (2005) ("The powers, remedies, and procedures set forth in sections 2000e-4, 2000e-5, 2000e-6, 2000e-8, and 2000e-9 of this title shall be the powers, remedies and procedures this subchapter provides to ... any person alleging discrimination on the basis of disability in violation of any provision of this chapter...."). Title VII states in part that, "[i]f the court finds that the respondent has intentionally engaged in... an unlawful employment practice charged in the complaint, the court may... order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement...." 42 U.S.C. § 2000e-5(g)(1) (2003). We have held that the decision of whether or not to grant reinstatement is within the discretion of the district court and that a court may properly consider factors such as the availability of positions, the plaintiff's current employment status, and the impact reinstatement would have on employee relations in making its decision. Ray v. Iuka Special Mun. Separate Sch. Dist., 51 F.3d 1246, 1254-55 (5th Cir.1995).

Southwest argues that the district court did not make the decision to deny Carmona's motion for reinstatement independently of its decision to grant judgment as a matter of law to Southwest. Southwest notes that it did not even have time to respond to Carmona's motion for reinstatement before the district court ruled on it. Therefore, Southwest argues that we should remand the issue of reinstatement to the district court if we determine that the district court erred in granting judgment as a matter of law to Southwest, so that the district court may fully examine the issue and the relevant factors.

The district court addressed the issue of reinstatement in a single sentence: "After consideration of the Defendant's motion and renewed motion for judgment as a matter of law and in light of the evidence adduced at trial, the Court declines to exercise its equitable jurisdiction to reinstate Mr. Carmona." The district court made no factual findings regarding the feasibility of reinstating Carmona that could support its order denying reinstatement independently of its decision to grant judgment as a matter of law to Southwest. We agree with Southwest that the district court's order denying reinstatement should be vacated and this issue should be remanded to the district court for reconsideration in light of our holding that it was error to grant Southwest's motion for judgment as a matter of law.[4]

 

864*864 CONCLUSION

 

For the foregoing reasons, we reverse the portion of the district court's order granting Southwest's motion for judgment as a matter of law, vacate the portion of the district court's order denying Carmona's motion for reinstatement, and remand the case with instructions that judgment be entered for Carmona in accordance with the jury's verdict and that Carmona's motion for reinstatement be reconsidered in light of our holding.

REVERSED in part, VACATED in part, and REMANDED.

[1] Section 12102 states in relevant part:

"As used in this chapter:

. . .

(2) Disability

The term `disability' means, with respect to an individual —

(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;

(B) a record of such an impairment; or

(C) being regarded as having such an impairment." 42 U.S.C.A. § 12102 (2005) (emphasis in original).

 

[2] Section 12112 states in relevant part:

"(a) General Rule

No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C.A. § 12112 (2005) (emphasis in original).

 

[3] We note that there is some basis on this record to contest this assumption. Southwest's decision to grant Carmona intermittent FMLA leave, despite the fact that he was frequently unable to give Southwest notice of his absences in advance, and without transferring him to a different position in the company, suggests that attendance was not in fact an essential requirement of his job. Leave under the FMLA can either be intermittent or continuous. See 29 U.S.C.A. § 2612 (West 2009). Employees generally become entitled to FMLA leave when they are no longer able to perform the essential functions of their jobs. See id. at § 2612(a)(1). However, an employee is not entitled to intermittent leave if he cannot perform the essential functions of his job when he is present. Hatchett v. Philander Smith College, 251 F.3d 670, 676 (8th Cir.2001). Because the FMLA is designed to excuse employees from work, an awkward situation arises, legally speaking, when an employee seeks intermittent leave from a job where attendance is essential. On the one hand, the FMLA is designed to excuse attendance requirements. On the other hand, if the employee cannot attend a job where his attendance is vital, he cannot perform one of the essential functions of his job, and a heavy burden is placed on his employer if it must grant him intermittent leave.

This tension led Congress to soften the FMLA's impact where employees seek intermittent leave. The language of the statute and the regulations promulgated by the Secretary of Labor provide that an employer may transfer an employee who seeks intermittent leave from a job where attendance is vital to an equivalent position where the employee's periodic absences will be less burdensome. 29 U.S.C.A. § 2612(b)(2); 29 C.F.R. § 825.204 (1997). This tension has also caused courts to interpret the FMLA narrowly where an employee requests the ability to take intermittent leave without notice. The Seventh and Eighth Circuits have stated that "the FMLA does not provide an employee ... with a right to `unscheduled and unpredictable, but cumulatively substantial, absences' or a right to `take unscheduled leave at a moment's notice for the rest of her career.'" Spangler v. Fed. Home Loan Bank of Des Moines, 278 F.3d 847, 853 (8th Cir.2002) (quoting Collins v. NTN-Bower Corp., 272 F.3d 1006, 1007-08 (7th Cir.2001)). See also S. Elizabeth Wilborn Malloy, The Interaction of the ADA, the FMLA, and Workers' Compensation: Why Can't We Be Friends?, 41 Brandeis L.J. 821, 837 (2003). At least one district court in this circuit has also applied this rule. Henson v. Bell Helicopter Textron, Inc., No. Civ.A.4:01-CV-1024-Y, 2004 WL 238063, at *11 (N.D.Tex. Feb. 6, 2004).

Therefore, while the FMLA can excuse an employee from his employer's ordinary attendance requirements, it does not do so where the employee requests the right to take intermittent leave without notice indefinitely. The FMLA also does not prevent the employee from being transferred to a different job with equivalent pay and benefits where his periodic absences will do less damage to the business. Carmona requested the ability to take intermittent leave without notice indefinitely. Southwest not only granted him this leave for seven years, it also decided not to transfer him to another position. Accordingly, it arguably would have been reasonable for the jury to conclude from Southwest's lack of resistance that attendance was not in fact an essential requirement of his job. However, we need not go this far in our analysis, as Southwest cannot prevail even if we assume that attendance was an essential requirement of Carmona's job.

 

[4] Carmona's final assignment of error is that the district court erred in refusing to grant him a continuance so that he could obtain the testimony of Ilgen. We decline to reach this issue, because we hold that the district court erred in granting Southwest's motion for judgment as a matter of law.