IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-50779

DERRICK DILLARD, 

 Plaintiff - Appellant

v.

CITY OF AUSTIN, TEXAS, 

 Defendant - Appellee

Appeal from the United States District Court

for the Western District of Texas

Before SOUTHWICK and COSTA, Circuit Judges, and OZERDEN∗

, District 

Judge.

GREGG COSTA, Circuit Judge:

Derrick Dillard appeals the grant of summary judgment disposing of his 

disability discrimination claims against his former employer, the City of 

Austin. After a car accident left Dillard with lingering injuries that prevented 

him from performing his former tasks as a manual laborer and field supervisor, 

the City offered, and Dillard accepted, a new job as an administrative 

assistant. As a result of performance and behavior in the administrative 

position, the City eventually terminated Dillard. The questions on appeal are 

 

∗ District Judge of the Southern District of Mississippi, sitting by designation

United States Court of Appeals

Fifth Circuit

FILED

September 16, 2016

Lyle W. Cayce

Clerk

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whether the new position was a reasonable accommodation and whether the 

City discriminated against Dillard when it terminated him. We conclude that 

summary judgment in favor of the City was proper. 

I

Dillard worked as a Street and Drainage Maintenance Senior for the 

City. This was a blended position that included coordinating a work crew, 

operating machinery, and performing manual labor such as constructing guard 

rails. In March 2011, Dillard injured his back and shoulder in an on-the-job 

car accident. His injuries rendered him unable to perform his previous position 

and initially made him unable to work in any job. In late April 2011, the City 

gave him time off in accord with the Family Medical Leave Act (FMLA). 

When his FMLA leave expired in July 2011, the City placed Dillard in 

its Return to Work Program, which helps injured employees find limited duty 

work or placement in an alternate position for which the employee meets 

minimum qualifications and can perform the job’s essential functions. 

Typically, the program provides a maximum 180 days of assistance in a year; 

90 days in which his department tries to find an internal position, and 90 days 

in the “Citywide Alternate Placement Process,” during which time the 

employee is considered for reassignment in other departments. Dillard exited 

the Return to Work Program in January 2012. The City was unable to place 

Dillard, as he remained on “no duty” status during the entire period he was 

enrolled in the program. Although Dillard exhausted both FMLA leave and 

his time limit in the Return to Work Program, the City allowed him to remain 

on leave.

After exiting the Return to Work Program, Dillard was referred back to 

his original department, Public Works. Between late January and late April 

2012, Dillard was released by his doctors to perform “limited duty” or 

“administrative duty” work. The City looked for positions within Public Works 

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that Dillard could perform given the limitations imposed by his doctors. It

offered Dillard a temporary position as an administrative assistant. Dillard 

testified that he was “stunned a little bit, because [he] didn’t know how to do 

no administrative work.” Despite expressing reservations about whether he 

could do the job, he accepted it. Dillard worked in this position from May 

through October 2012.

Dillard did not meet the listed minimum qualification for an 

administrative assistant position with the City, as he did not have the 

minimum three years clerical or secretarial experience. In light of his lack of 

experience, Dillard was given on-the-job typing and computer training, and 

shadowed another administrative assistant. Dillard’s supervisor, Valerie 

Dickens, testified that she repeatedly told Dillard to complete more training, 

and showed him how to sign up for the City’s training programs, but he did not 

do so. His computer and typing skills did not improve. Instead of working or 

training, he was found playing computer games and surfing the internet, 

sleeping, making personal calls, and applying for other positions within the 

City. Dickens also testified that Dillard repeatedly missed work without 

proper notice, came late and left early, and lied about his time. The City 

produced evidence that Dillard attended work only 74% of the time over a 21-

week period. As a result of his performance and behavior issues, Dickens gave 

Dillard an “unsatisfactory” year-end evaluation in September 2012. Dillard 

does not dispute these assertions about his performance.

Dillard did testify, however, that he was given almost no work to do, and 

that he could not finish the one assignment he was given in a timely manner 

because of his lack of typing skills. Dillard told Dickens that he was unhappy 

in the position and asked human resources to give him a different position.

Dickens also asked that he be removed because he did not have needed skills 

and was “demonstrating no initiative, no desire to learn,” but she was told to 

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keep trying and to document his deficiencies. Dillard also notes that during 

the time he was working in the administrative position, his doctors provided 

further releases and a functionality analysis—all of which expanded the list of 

activities he was cleared to perform, including some lifting and other physical 

activity.

Following his unsatisfactory review, Dillard was given a pretermination 

meeting. The Public Works Department Director noted that during this 

meeting, “Dillard was unapologetic for his inappropriate behavior and 

admitted that Dickens’ comments about his performance were accurate.” He 

reported that the City nonetheless looked for other options and 

accommodations after the meeting, but was unable to find one.1 The City fired 

Dillard on October 26, 2012. His termination letter notes:

Though you were provided with both on-the-job and computer 

training during the temporary assignment as an Administrative 

Assistant, you were unsuccessful performing the duties in the 

administrative role. . . . As you are currently at “no duty status” 

and are unable to return to your position as a Street & Drainage 

Maintenance Senior, and the placement opportunity was 

unsuccessful, the Department has made the difficult decision to 

separate you from employment with the City of Austin . . . .

Dillard brought suit in federal court claiming denial of reasonable 

accommodation and discrimination based on disability in violation of the 

Americans with Disabilities Act (ADA) and the Texas Commission on Human 

 

1 Dillard asserts that the City’s search was inappropriately restricted to the Public 

Works Department and that he should have been considered for vacancies across all 

departments once it became clear that he was not performing well as an administrative 

assistant. The Director’s testimony does not specify the scope of the City’s search, but, in its 

brief, the City acknowledged that it looked only within Public Works. We need express no 

opinion on whether this restriction was consistent with the City’s obligation to accommodate 

Dillard. Our analysis locates the breakdown of the interactive process at the point when

Dillard failed to make a good faith effort in the administrative position—a stage prior to when

the City purportedly should have continued the interactive process by considering him for 

other jobs.

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Rights Act. The City moved for summary judgment, which the court granted 

on both claims.

II

We review a summary judgment ruling de novo. Davis v. Fort Bend Cty., 

765 F.3d 480, 484 (5th Cir. 2014). We interpret all facts and draw all 

reasonable inferences in favor of the nonmovant. Ion v. Chevron USA, Inc., 

731 F.3d 379, 389 (5th Cir. 2013). Summary judgment is appropriate only 

when the record reveals “no genuine dispute as to any material fact and the 

movant is entitled to judgment as a matter of law.” FED.R.CIV.P. 56(a).

As Texas courts interpret their state’s disability legislation so as to 

mirror the federal statute, our analysis of Dillard’s ADA claims will determine 

the disposition of his state claims as well. See Rodriguez v. ConAgra Grocery 

Prods. Co., 436 F.3d 468, 473–74 (5th Cir. 2006) (citing NME Hosps., Inc. v. 

Rennels, 994 S.W.2d 142, 144 (Tex. 1999)).

Dillard alleges both that he was discharged because of his disability and 

that the City failed to take reasonable measures to accommodate him. The 

parties do not contest two of the elements these claims require: whether 

Dillard was disabled within the meaning of the Act or whether the City was 

aware of his disability and need for accommodation. See Feist v. La., Dep’t of 

Justice, Office of the Att’y. Gen., 730 F.3d 450, 452 (5th Cir. 2013) (reviewing 

these other elements).

A

We address first Dillard’s claim that the City terminated him based on 

his disability. The City maintains that it fired Dillard because of his record of 

misconduct and failure to perform his duties while working as an 

administrative assistant. The evidence consistently supports the City’s 

assertions that Dillard was frequently absent or late, that he lied about his 

attendance, and that he used work time to play games or tend to personal 

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business. In addition to this evidence of misconduct, it is uncontroverted that 

Dillard failed to take advantage of training opportunities available to him, 

failed to perform the duties of his assigned position, and in the words of his 

supervisor, he “demonstrat[ed] no initiative, no desire to learn” in his new role. 

As with other federal statutes proscribing workplace discrimination, the 

ADA places the initial burden on a plaintiff trying to prove a violation through 

circumstantial evidence to offer evidence that his termination was motivated

by an unlawful factor. EEOC v. LHC Grp., Inc., 773 F.3d 688, 694 (5th Cir. 

2014). Once the defendant articulates a nondiscriminatory reason for its 

decision, as the City has done here, the onus returns to the plaintiff, who must 

then bear the ultimate burden of proving that his dismissal was motivated by 

his disability. Id. at 702. Significantly, Dillard offered no evidence that the 

City’s reliance on his history of misconduct and poor performance was 

pretextual or blended with discriminatory motives. See id. (approving either 

form of proof). As such, the district court correctly held that Dillard failed to 

raise an issue of material fact as to whether the City terminated him because 

of his disability. See id. at 701–02 (“Terminating an employee whose 

performance is unsatisfactory according to management’s business judgment 

is legitimate and nondiscriminatory as a matter of law.”).

B.

Apart from any claim that an adverse employment action was motivated 

by the employee’s disability, an employer’s failure to reasonably accommodate 

a disabled employee may constitute a distinct violation of the Act. Id. at 703 

n.6. This comes from the ADA’s definition of discrimination, which includes

“not making reasonable accommodations to the known physical or mental 

limitations of an otherwise qualified individual with a disability who is an 

applicant or employee . . . .” 42 U.S.C. § 12112(b)(5)(A). 

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When it entered summary judgment on this reasonable accommodation 

claim, the trial court reasoned that the City could have fired Dillard once he 

exhausted his leave under federal law and city policy in January of 2012—a 

time when he had not been medically cleared for work of any kind. See Reed 

v. Petroleum Helicopters, Inc., 218 F.3d 477, 481 (5th Cir. 2000) (holding that 

an employer need not accommodate with indefinite leave an employee who is 

unable to return to work in any role). The district court concluded that the 

City’s obligation to reasonably accommodate Dillard ceased at that time. 

We disagree.2 Regardless of whether it could have discharged Dillard 

when his leave ran out, the City chose not to do so. Rather, it kept him on staff 

until it learned he was approved by his doctor for “limited duty” and placed 

him in the administrative assistant position. Because it continued to employ 

him, the City was obligated under the ADA to reasonably accommodate him 

once he was capable of returning to work. This follows from the principle that 

an employer’s obligation to accommodate is triggered when an employee 

requests an accommodation. See Taylor v. Principal Fin. Grp., Inc., 93 F.3d 

155, 165 (5th Cir. 1996). Nothing in the Act extinguishes that obligation 

merely because an employer had a basis for getting rid of the employee in the 

past.

What does the obligation to accommodate entail? Consistent with the 

interpretive guidance of the EEOC, 29 C.F.R. pt. 1630, app. § 1630.9, we have 

held that ADA compliance requires an employer to engage in an interactive 

process with an employee who requests an accommodation for her disability to 

ascertain what changes could allow her to continue working. LHC Grp., 773 

 

2 This of course does not decide the outcome of this appeal since we may affirm a 

summary judgment on any ground supported by the record and advanced below, regardless 

of whether the district court relied upon it. Ballard v. Devon Energy Prod. Co., 678 F.3d 360, 

365 (5th Cir. 2012).

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F.3d at 700. In other words, employer and employee must work together in 

good faith, back and forth, to find a reasonable accommodation. EEOC v. 

Chevron Phillips Chem. Co., 570 F.3d 606, 621–22 (5th Cir. 2009). This should 

be an ongoing, reciprocal process, not one that ends with “the first attempt at 

accommodation,” but one that “continues when the employee asks for a 

different accommodation or where the employer is aware that the initial

accommodation is failing and further accommodation is needed.” Humphrey v. 

Memorial Hosps. Ass’n, 239 F.3d 1128, 1138 (9th Cir. 2001).

Dillard argues that the City failed to participate in the interactive 

process after it became clear he was not succeeding in the administrative 

position. Notably, he does not contend that his initial placement in that 

position was itself a failure to reasonably accommodate. He thus directs our 

attention to the record evidence showing that the City soon saw that the job 

was a poor fit for him as he lacked the skills and qualifications to do the work 

he was given. He also relies on evidence that his doctor steadily reported his 

improved condition and restored capacities during the months he worked as an 

assistant. In light of his improving condition, Dillard contends that the City 

should have considered him for alternative placements (identifying several 

vacancies he asserts he could have filled as his mobility improved) and that the 

City’s failure to do so violated its duty to work with him in good faith to find a 

reasonable accommodation.

Dillard’s position neglects that the interactive process is a two-way 

street; it requires that employer and employee work together, in good faith, to 

ascertain a reasonable accommodation. Chevron, 570 F.3d at 621–22. The City 

offered Dillard the administrative assistant position, and while he doubted his 

ability to do it, he accepted it. At this point, the ball was in his court: it was 

up to him to make an honest effort to learn and carry out the duties of his new 

job with the help of the training the City offered him. The same uncontroverted 

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evidence of misconduct and poor performance that doomed Dillard’s 

discriminatory termination claim is thus also decisive for his reasonable 

accommodation claim. We stress the evidence of misconduct (making personal 

calls, nonattendance, napping, lying, playing games) because even an 

employee unable to perform office tasks needs no special skill to avoid misusing 

company time, dishonesty, falling asleep, or absenteeism. As he did not 

attempt to fill his new role in good faith, Dillard cannot rely on the fact that he 

did not successfully adjust to that role to show that the City should have 

continued the interactive process by offering him a further alternative 

placement. See Loulseged v. Akzo Nobel Inc., 178 F.3d 731, 736 (5th Cir. 1999) 

(“[A]n employer cannot be found to have violated the ADA when responsibility 

for the breakdown of the ‘informal, interactive process’ is traceable to the 

employee and not the employer.”).

We are mindful that an employer might elude its obligation to 

accommodate a disabled employee by giving him a job that he was destined to 

botch with or without training. Cf. id. at 737 n.6 (describing how an employer 

might leave an employee needing accommodations in his current position, 

enumerate his deficiencies, and use its list as a basis for terminating him). 

Such predictable failure could be traceable to the worker’s want of skills or the 

demoralizing effects of failure and appearing inept. 

This case, however, does not present such a scenario. The City offered 

to make Dillard an assistant and he accepted. Dillard does not contend that 

the initial job assignment was an unreasonable accommodation. And once 

Dillard started the new position, the City provided training to help him gain 

necessary skills and gave him the opportunity of shadowing an experienced 

assistant. We thus do not see a basis for concluding that the City failed to

engage in good faith by not finding him a new position after he had shown no 

desire to try and succeed in the first position. See EEOC. v. Agro Distribution, 

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LLC, 555 F.3d 462, 471 (5th Cir. 2009) (“The ADA provides a right to 

reasonable accommodation, not to the employee's preferred accommodation.”). 

Given the undisputed evidence that Dillard did not make an honest attempt to 

succeed in the new position, he cannot make out a claim placing blame for the 

breakdown in the accommodation process on the City. 

* * * 

The judgment is AFFIRMED.

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