# United States Court **of Appeals** 

**f or the Fifth Circuit** 

No. 20

- 40782

**Raquel I. Villarreal,**

Plaintiff

— Appellant

**,**

versus

**Tropical Texas Behavioral Health,**

Defendant

— Appellee

**.**

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:19

- cv

- 53

Before **Davis, Haynes,** and **Oldham,** Circuit Judges

**.**

**Per Curiam :**  *

Tropical Texas Behavioral Health fired Raquel Villarreal after she

missed a substantial amount of work without leave . Villarreal sued under the

Family and Medical Leave Act (“FMLA”) and the Americans with

Disabilities Act (“ADA”). The district court grante d summary judgment to

Tropical Texas. We affirm.

* Pursuant to **5th Circuit Rule**  47.5, the court has determined that this

opinion should not be published and is not precedent except under the limited

circumstances set forth in **5th Circuit Rule** 47.5.4. United States Court of Appeals

Fifth Circuit 

### FILED

August 10, 2021

Lyle W. Cayce

Clerk Case: 20-40782 Document: 00515972070 Page: 1 Date Filed: 08/10/2021No. 20

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2 I.

Raquel Villarreal is a single mother to a special

- needs daughter who

suffers from several illnesses. Tropical Texas hired Villarreal in April 2016

, as a program specialist. Shortly after being hired, Villarreal requested time

off to attend her daughter’s medical appointments. Tropical Texas exempted

Villarreal from a company policy prohibiting absences within the first 3

months and granted her req uest. Within a year, Villarre al applied for a

promotion to a program supervisor position for which she was eventually

approve d.

In March 2017

, Villarreal received a coaching plan from her

supervisor

. The plan highlighted productivity issues and documented

Villarreal’s failure to meet the company ’s targeted number of treatment

hours. The coaching plan noted an expectation that Villarreal would work

more efficiently to achieve company goals. Villarreal disagreed with the

coaching plan

, so she did not sign it.

Beginning in April 2017, Villarreal requested

— and Tropical Texas

approved

— intermittent FMLA leave so that Villarreal could care for her

daughter’s medical condition. Again in July, Villarreal re quested time off

work to tend to her ailing daughter. Tropical Texas approved Villarreal’s

request s and permitted her to cover her absences with FMLA leave in

addition to paid time off and leave without pay

.

Villarreal’s productivity issues remained. In October, Villarreal

received a quarterly evaluation and coaching plan warning her that if she

failed “to make drastic improvements regarding her performance

deficiencies within the next month” she could be subject to “further

disciplinary action up to termination.” The wide

- ranging c oaching plan

described Villa rreal as a problematic employee who didn’t “foster a

harmonious work environment

. . . as evidenced by multiple complaints from Case: 20-40782 Document: 00515972070 Page: 2 Date Filed: 08/10/2021No. 20

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3 staff and clients.” The plan went on to explain that “Villarreal has not been

able to develop an active caseload to provide CBT counseling sessions in a

consistent manner.” And it further highlighted Villarreal’s poor attendance

record as evidenced by her low PTO balance. To rectify the relevant

performance issues, Villarreal promised to “make every attempt to pre

schedule absences and provide dependable coverage and service.” Villarreal

disagreed with some issues raised in the coaching plan, but she testified that

her poor performance and attendance could be corrected, and recognized

that her consistently low PTO balance was problematic.

The program supervisor position proved too intensive, and Villarreal

had difficult y fulfilling her responsibilities as a program supervisor

, so in

November she requested a transfer to her original position as a program

specialist. The company obliged. The next month Villarreal was diagnosed

with a medical condition for which her doctor recommended surgery.

Villarreal requested FMLA leave for the surgery and recovery. Upon hearing

the request, Villar real’s supervisor asked if the surgery could be postponed

by a few weeks because the department needed staff. Villarreal consulted

with her doctor and confirmed that the surgery could be postponed to

January 2018.

Tropical Texas then approved Villarreal’s FMLA leave

, and she took

222.5 hours of approved leave between January 4 and February 12, 2018

, to

recuperate after her surgery. Thereafter, Villarreal return ed to the office, but

inconsistently

— she continued to miss work for doctors’ appointments and

other obligations.

Meanwhile, Villarreal’s daughter’s health declined. In April, it was

determined that Villarreal’s daughter required open

- heart surgery. This

news sent Villarreal into emotional distress and caused her to miss 4 days of

work. Between March 1 and June 19, Villarreal requested and had approved Case: 20-40782 Document: 00515972070 Page: 3 Date Filed: 08/10/2021No. 20

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4 another 144.75 hours of FMLA leave. In June, Villarreal was diagnosed with

clinical depression, and informed Tropical Texas that she would take 79.25

additional FMLA hours between June 25 and July 9 to care for herself. On

June 27, Villarreal provided the company with a doctor’s note describing her

depression diagnos is and explaining that her illness posed “no limit” to the

“job activities . . . she can perform.”

On July 9, a Tropical Texas human resources director informed

Villarreal’s supervisor that Villarreal ’s FMLA leave would expire on July 10.

Villarreal’s supervisor then informed Villa r real that her leave was expired

and that she needed to return to work. Operating under the assumption that

her leave did not expire until July 12

, Villarreal did not return to work until

then

.

Upon her return

, Villarreal immediately informed her supervisor that

“she needed to reduce her work hours and have a flex schedule so that she

could care for her daughter’s disabilities/serious medical conditions as well

as her own.” Villarreal requested that her work week be reduced to 30 to 32

hours as an accommodation for her condition and her daughter’s recurring

health problems. Later that day, Villarreal’s supervisor denied her request

with an explanation that the company needed employees to perform her job

function

. Villarreal asked for reconsideration.

Villarreal’s unexcused absences continued. She missed work July 13,

17

– 20, 23

– 24, and 31. On July 23, a manager informed Villarreal that the

company stood by its denial of her reduced

- hours

- work

- week request. On

July 25, Villarreal met with a company HR director. The HR director told

Villarreal that her absences were a serious problem that affected the basic

functioning of the company

. Villarreal responded with an explanation that

“she and her daughter had serious medical conditions and disabilities.” HR

director re sponded that the company had been “more than generous” in Case: 20-40782 Document: 00515972070 Page: 4 Date Filed: 08/10/2021No. 20

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5 providing Villarreal with time off and with FMLA leave to care for herself

and her daughter.

On July 26, Villarreal submitted two proposed flex

- schedule

alternatives; one proposed a 33

- hour work week, the other a 3 5

- hour work

week. Each explained the request was “due to medical reasons” but provided

no further detail. The HR director forwarded Villarreal’s request to

management. Management rejected both alternatives because “a reduction

of 5 hours and [a modified] schedule [would] negatively impact the

program’s response time and volume of diagnoses completed via telehealth.”

The company determined , however, that a “community

- based” position

could accommodate Villarreal’s needs while protecting the integrity of the

company’s operations.

On July 31

, two management officials met with Villarreal to discuss

these accommodations. The company proposed two options. First, they told

Villarreal that they could approve her flex schedule request if she could

commit to taking no unprotected leave for 3

– 4 months. Villarreal declined

and explained that she could not guarantee her attendance at work given her

daughter’s (and her own) ongoing health issues. Alternately

, the company

offered Villarreal a lateral transfer to a “community

- based” position in which

she would be paid the same salary and permitted to plan her own schedule

,

which would include visiting patients in the field

.

Villarreal declined both options. Notwithstanding Villarre al’s failure

to provide the company with a doctor’s note proscribing driving (or

otherwise limiting her ability to work in any way)

, she claimed the company

knew that her anti

- depression medication made driving to appointments a

non

- starter

. And s he further explained that she preferred to keep her current

job and that she was “ not ready to move ” to a new position. Having failed to

secure her preferred schedule accommodation

, Villarreal left work for the Case: 20-40782 Document: 00515972070 Page: 5 Date Filed: 08/10/2021No. 20

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6 day

. Later that afternoon, Villarreal received an email informing her that

she’d been terminated for her excessive absences and her refusal to accept

the alternative s offered by the company

.

Villarreal filed a complaint with the Equal Employment Opportunity

Commission on November 1, claiming the company fired her on account of

“her disabilities, serious medical conditions, her request for accommodation

and FMLA leave, and her discrimination complaints and desire to file a

grievance.” And she then filed suit in the district court. The district court

granted summary judgment in favor of Tropical Texas on all claims. This

appeal followed. 1

II.

Review of a district court’s grant of summary judgment is de novo.

Morrow v. Meachum , 917 F.3d 870, 874 (5th Cir. 2019). “Summary judgment

is proper if the moving party shows that ‘there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law. ’ ”

Williams v. Lockheed Martin Corp. , 990 F.3d 852, 864 (5th Cir. 2021) (quoting

**Fed. R.**  **Civ. P.**  56(a)). “A genuine dispute of material fact exists when the

evidence is such that a reasonable jury could return a verdict for the

nonmoving party” after taking the facts in the light most favorable to it. Sims

v. City of Madisonville , 894 F.3d 632, 637 (5th Cir. 20 18) (per curiam)

(quotation omitted).

A.

First, the FMLA retaliation claim. The FMLA prohibits employers

from “discharging[ing] or

. . . discriminat[ing] against any individual for

1 On appeal, Villarreal does not contest the district court’s entry of s ummary judgment on her FMLA interference claim. That claim is thus forfeited. See Norris v.

Causey , 869 F.3d 360, 373, n.10 (5th Cir. 2017). Case: 20-40782 Document: 00515972070 Page: 6 Date Filed: 08/10/2021No. 20

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7 opposing any practice made unlawful under this subchapter.” 29 U.S.C.

§ 2615(a)(2). To prevail on a claim of retaliation, an employee must show she

suffered an adverse employment decision because she took FMLA leave. See

Elsensohn v. St. Tammany Par. Sheriff’s Office

, 530 F.3d 368, 372 (5th Cir.

2008) (per curiam)

. Retaliation claims for exercising FMLA right are

analyzed under the familiar McDonnell Douglas burden

- shifting framework.

See Wheat v. Fla. Par. Ju venile Justice Comm’n , 811 F.3d 702, 705 (5th Cir.

2016). Under that framework, an employee must show that “(1) he engag ed

in a protected activity, (2) the employer discharged him, and (3) there is a

causal link between the protected activity and the discharge.” Amedee v. Shell

Chem.

, L.P.

, 953 F.3d 831, 835 (5th Cir. 2020) (quotation omitted). “If the

employee establishes a prima facie case, the burden shifts to the employer to

state a legitimate, non

- retaliatory reason for its decision.” LeMaire v. La.

Dep’t of Transp. & Dev.

, 480 F.3d 383, 388 (5th Cir. 2007)

. Thereafter, “ the

burden shifts back to the employee to demonstrate that the employer’s

reason is actually a pretext for retaliation. ” Id. at 388

– 89.

We don’t need to decide whether Villarreal established a prima facie

case for retaliation because even if she did, Tropical Texas had a non

pretextual reason for firing her: her unapproved absenteeism. Excessive

absenteeism can provide a compelling

— if not case ending

— justification for

terminating an employee. See Amedee , 953 F.3d at 835 (“[A]s should go

without saying, an employee’s failur e to show up for work is a legitimate

reason for firing her.” (quotation omitted)); Hypes ex rel. Hypes v. First

Commerce Corp. , 134 F.3d 721, 727 (5th Cir. 1998) (per curiam). Here,

Villar r eal missed work, continued missing work after the company told her it

was a problem, and said she could not commit to coming to work. That easily

constitutes a valid basis for firing her.

Confronted with Tropical Texas’ legitimate reason for her

termination, Villarreal must show by a preponderance of the evidence that Case: 20-40782 Document: 00515972070 Page: 7 Date Filed: 08/10/2021No. 20

- 40782

8 the company’s articulated reason for her firing was pretextual. See Burton v.

Freescale Semiconductor, Inc.

, 7 98 F.3d 222, 233 (5th Cir. 2015). Villarreal

“may establish pretext either through evidence of disparate treatment or by

showing tha t the employer’s proffered explanation is false or unworthy of

credence.” Laxton v. Gap Inc.

, 333 F.3d 572, 578 (5th Cir. 2003) (quotation

omitted). She does neither.

Villarreal first points to the temporal proximity between her return

from FMLA leave and her termination. But that’s not enough. We have been

clear: “Temporal proximity gets [a plaintiff] through [her] prima facie case,

but does not, on its own, establish that the company’s stated explanation for

[her] firing was mere pretext.” Garcia v. Pro. Cont. Serv s

., Inc.

, 938 F.3d 236,

243 (5th Cir. 2019). Instead, “[a]t the pretext stage, the Supreme Court[]

. . . requires a showing of but

- for causation, which requires more than mere

temporal proximity.” Id. at 243

– 44 (citing Univ. of Tex. Sw. Med. Ctr. v.

Nassar

, 570 U.S. 338 (2013) ) ; see Feist v. La., Dep’t of Justice, Office of the

Att’y Gen.

, 730 F.3d 450, 454 (5th Cir. 2013). Thus, temporal proximity is

insufficient.

Next, Villarreal argues that emails between company managers

discussing her attendance record provide evidence of retaliation. On July 17,

Villarreal’s supervisor characterized Villarreal as a troubled employee and

expressed suspicion that she abused the company’s leave

- without

- pay

system for a trip to Arizona. But this email complained only of Villa r real’s

unprotected absence s . It does nothing to suggest anyone at the company was

frustrated with (or inclined to retaliate for) her protected absences.

Moreover, Tropical Texas has a record of granting Vi llarreal

accommodations whenever she requested and even when the law did not

compel them. This factor strongly weighs against an inference of pretext. See

Garcia v. Penske Logistics, L.L.C. , 631 F. App’x 204, 212 (5th Cir. 2015) (per Case: 20-40782 Document: 00515972070 Page: 8 Date Filed: 08/10/2021No. 20

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9 curiam) (finding emplo yer’s past approvals of FMLA leave to be evidence of

non

- pretextual, non

- discriminatory termination). Indeed from the first day

of her employment, Tropical Texas granted Villarreal 487.75 hours in FMLA

leave, and even permitted her to use PTO and leave without pay to attend to

her personal responsibilities. Furthermore, even after Villarreal had

exhausted her protected leave and after she missed more than a week of work

without excuse, Tropical Texas engaged in negotiations and made two offers

to retain Villarreal as an employee. Villarreal dismissed both offers and

refused to guarantee consistent attendance at work. It was only then that

Tropical Texas terminated her employment. Villar r eal’s FMLA retaliation

claim fails as a matter of law.

B.

Next, the ADA claim s

. Villarreal claims that Tropical Texas

(1) committed ADA discrimination by terminat ing her because she suffers

from depression

, and (2) violated the ADA by failing to offer a reasonable

accommodation

. The first ADA claim is g overned by the same McDonnell

Douglas framework that doomed Villar r eal’s FMLA

- retaliation claim

. See

Delaval v. PTech Drilling Tubulars, L.L.C.

, 824 F.3d 476, 479 (5th Cir. 2016).

So the ADA

- discrimination claim fails for the same reasons we gave in the

preceding section.

Villar r eal’s ADA

- acco m modation claim fails too. A plaintiff in the

Fifth Circuit must prove the following elements to prevail on a failure

- to

accommodate claim: (1) the plaintiff is a qualified individual with a disability;

(2) the disability and its consequential limitations were known to the

employer; a n d (3) the employer failed to make reasonable accommodations

for such known limitations. See Feist

, 730 F.3d at 452. But the ADA does not

protect the right to a preferred accommodation

— just a reasonable one

. See

Kitchen v. BASF

, 952 F.3d 247, 254 (5th Cir. 2020). Case: 20-40782 Document: 00515972070 Page: 9 Date Filed: 08/10/2021No. 20

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10 Villarreal fails on the first prong. A plaintiff can establish that s he is

“qualified” by showing “either (1) [she] could perform the essential

functions of the job in spite of [her] disability,” or “(2) that a reasonable

accommodation of [her] disability would have enabled [her] to perform the

essential functions of the job.” Moss v. Harris Cnty. Constable Precinct One

,

851 F.3d 413, 417 (5th Cir. 2017) (quot ation omitted). However, the inability

(or refusal) to attend work disqualifies one from being a “‘qualified individual

with a disability’ under the ADA.” Rogers v. Int’l Marine Terminals, Inc.

, 87

F.3d 755, 759 (5th Cir. 1996) (quoting 42 U.S.C. § 12111(8)). That i s because

“[a]n essential element of any

. . . job is an ability to appear for work

. . . and

to complete assigned tasks within a reasonable period of time.” Hypes , 134

F.3d at 727 ( quotation omitted )

.

**AFFIRMED**

. Case: 20-40782 Document: 00515972070 Page: 10 Date Filed: 08/10/2021