PRECEDENTIAL 

UNITED STATES COURT OF APPEALS FOR THE 

THIRD CIRCUIT 

No. 20-2247 

KATHLEEN FOWLER, 

 Appellant 

v. 

AT&T, INC.; AT&T SERVICES, INC. 

Appeal from the United States District Court for the District 

of New Jersey (D.C. Civil Action No. 3-18-cv-00667) 

District Judge: Honorable Michael A. Shipp 

Argued on March 9, 2021 

 

Before: SMITH, Chief Judge, McKEE and AMBRO, Circuit 

Judges 

(Opinion filed: November 26, 2021)

 
2

Stephen G. Console 

Brian C. Farrell (Argued)

Laura C. Mattiacci 

Susan M. Saint-Antoine 

Console Mattiacci Law 

1525 Locust Street 

9th Floor 

Philadelphia, PA 19102 

Counsel for Appellant 

Kenneth Gage (Argued) 

Davis M. Woodruff 

Paul Hastings 

200 Park Avenue 

30th Floor 

New York, NY 10166 

Counsel for Appellee 
3

Sydney A. R. Foster 

Jennifer S. Goldstein 

Sharon F. Gustafson 

Jeremy D. Horowitz (Argued) 

Equal Employment Opportunity Commission 

5th Floor 

131 M Street, N.E. 

Washington, DC 20507 

Counsel for Amicus Appellant United States Equal 

 Employment Opportunity Commission 

OPINION OF THE COURT 

__________________

AMBRO, Circuit Judge

Kathleen Fowler, a thirty-year veteran of AT&T and an 

epileptic breast cancer survivor, sued her former employer for 

age and disability discrimination. She claims that AT&T 

discriminated against her twice. First, it placed her on “surplus 

status” in January 2016, effectively giving her 60 days to find 

a new job or be terminated. Second, after she found a new job 

within AT&T, she was again placed on surplus status in 

October of that same year and ultimately terminated. In 

addition, she argues that the company failed to accommodate 

her disabilities in her new position. 

The District Court granted AT&T’s motion for summary 

judgment on all claims. We agree with the Court in ruling 

against Fowler, but we do so for different reasons. Contrary to 
4

its conclusion, we hold that the January surplus selection for 

Fowler was an adverse employment action that could support 

a discrimination claim, even though she eventually found 

another job within the company. However, AT&T has 

provided powerful evidence that Fowler’s January surplus 

selection was simply a neutral reduction in force, and she has 

not provided sufficient evidence to suggest that the company’s 

explanation is actually a pretext masking discrimination. Thus 

her claims associated with the January action fail. 

As for Fowler’s termination following the October 

surplus selection, she may not maintain discrimination or 

failure-to-accommodate claims connected to a job for which 

she was not qualified. Because—by her own admission—

Fowler was not qualified for her new position, her claims tied 

to the October surplus selection must also fail. Thus we affirm 

the judgment of the District Court. 

I. Background 

AT&T employed Fowler from 1986 until her 

termination on December 27, 2016. She was diagnosed in 

2006 with a seizure disorder (epilepsy) that caused cognitive 

impairments, including a decline in memory. In 2011, Fowler 

disclosed to AT&T her disability and its effect on her memory. 

Then, in January 2015, she was diagnosed with breast cancer 

and subsequently informed AT&T of her diagnosis and 

treatments. 

In December 2015, AT&T planned to reduce Fowler’s 

business unit, Technology Planning and Engineering, by 

consolidating roles, eliminating duplicative work, and reducing 

nonessential work. Employees affected by the workforce 
5

reduction would be placed on “surplus status,” which is what 

AT&T calls its layoff procedures. Its guidelines make clear the 

intent of surplus status is to eliminate “positions which are no 

longer needed” but is “not a performance management tool” 

and “is not intended to facilitate turnover within [AT&T].” 

App. at 276. When an employee is placed on surplus status, 

she is given two options: either elect to terminate her 

employment immediately and receive severance, or extend her 

employment by sixty days to search for other jobs within 

AT&T. Id. at 294, 321–22. If the employee elects the latter 

option (which is the default), she receives some priority in 

hiring and must accept any job offer that is extended (so long 

as it does not require relocation), or she will lose eligibility for 

severance benefits. Id. at 294–95, 321–22. 

In January 2015, AT&T notified Fowler that she was 

being placed on surplus status. The company claims that her 

selection was purely neutral and was based on her performance 

ratings relative to her colleagues. It is undisputed that Fowler 

was performing her role competently prior to her surplus 

selection. See, e.g., id. at 475 (a recent performance review 

indicating that she was a “key contributor” whose 

“performance solidly meets expectations”); id. at 447–48 (her 

supervisor’s deposition stating that Fowler was “[a]bsolutely” 

a good employee who “did her job” and “cared very much 

about [it],” though there was room for improvement based on 

how she handled differences of opinion with her colleagues). 

Despite the satisfactory ratings, Fowler nonetheless received 

the sixth lowest ranking in her unit. Within her specific unit, 

seventeen employees were laid off. Fowler’s rating was a 2.95, 

which her supervisor contended reflected a “very strong 

performer;” but with her organization being cut in size by 

nearly a third, the surplus line was drawn at a rating of 3.0. Id. 
6

at 479. In response, Fowler purportedly told her manager that 

she “believes the company cannot surplus someone with 

cancer” and that “she could sue for that.” Id. While her 

supervisor acknowledged that she knew Fowler was going 

through chemotherapy for cancer, she did not think that 

“changes . . . this situation” one way or the other. Id. at 477. 

During her sixty-day job search period, and with the 

help of her managers, Fowler obtained two job offers within 

AT&T: one for a lead financial analyst position in Texas and 

another for a senior system engineer position in New Jersey. 

The latter position involved “software development,” “[s]enior 

level technical expertise” and “deep technical knowledge and 

subject matter expert[ise] on AT[&]T technologies.” Id. at 

202. After meeting briefly with Madhavi Aruva, the supervisor 

for the New Jersey position, Fowler believed she was qualified 

for the job. She based her belief “on what [she] knew” at the 

time, relying primarily on the job description and some highlevel descriptions Aruva had drawn on a whiteboard, which 

Fowler noted “sounded a little bit like things [she] had heard 

about in the past, [and that she had] worked on.” Id. at 162–

65. 

Despite admitting that the Texas position was a better 

fit, and the New Jersey position “wasn’t [her] first choice,” 

Fowler selected the latter position to avoid moving while she 

was receiving cancer treatments. Id. at 164. After she 

switched positions, AT&T claims that her earlier job duties 

were automated, discontinued, or spread out among three 

employees who were 49, 55, and 57 years of age. 

Fowler began her new position in March 2016, and 

shortly thereafter informed her new supervisor that she was 

undergoing chemotherapy treatments for breast cancer. She 
7

asserts that during her first week her new supervisor 

commented on her hair during a meeting, exclaiming “[O]h my 

goodness . . . what happened to your hair[?]” Id. at 138.

Fowler’s apparent hair style change was because she did not 

have on the wig she wore after her chemotherapy treatments. 

She reported that her supervisor “just didn’t understand that . . . 

was a [w]ig I [had been] wearing.” Id. 

It became clear almost immediately to Fowler and her 

supervisor that she was not a good match for this position. In 

April, less than two months after starting the job, Fowler 

emailed a higher-up supervisor requesting to be made 

releasable, i.e., for permission to be considered for other jobs 

within AT&T. She stated that her “current job is not a skills 

match,” stressing that her “experience in technical work was 

13+ years ago and at [a different] level of detail.” Id. at 8. In 

effect, she did not have the then-required skills or the training 

for the job. In May, Fowler sent another email, this time to her 

direct supervisor, bluntly stating that she was “not suited or 

qualified for this position” and that her “interpretation of the 

position, when originally interviewed, is not how [she] 

understood it to be nor does it align with [her] resume.” Id. 

Another employee suggested that there were also interpersonal 

conflicts between Fowler and her new supervisor, recounting a 

conversation where Fowler purportedly told Aruva: “Everyone 

hates you on your team, you’re a terrible supervisor, I can’t 

understand you when you talk to me.” Id. at 642. Fowler 

requested to be made “releasable” to pursue other positions 

within AT&T and told her supervisor that, were she instead 

offered a “[g]ood” early retirement package, she would 

“probably take it.” Id. at 250. While AT&T did not 

immediately make her releasable, her supervisors relented at 

the end of May. 
8

Aruva also contends that Fowler refused to perform 

projects in the main “HALO” system that her team used 

because they were “too complicated.” Id. at 495. In response, 

Aruva placed Fowler on a remedial action plan for job training 

and started assigning her “small projects” on different systems 

called “ABM” and “ND360.” Id. Fowler subsequently 

requested accommodations for longer deadlines because her 

medical conditions caused her to have memory and focus 

issues that made it difficult for her to learn new aspects of the 

job. AT&T, through an outsourced service center, went backand-forth with Fowler’s doctors on the accommodation 

requests for approximately two and a half months. The 

representatives found that Fowler “could not describe a 

specific accommodation that would help her on the job.” Id. at 

231. Hence no job accommodation, other than granting extra 

time to perform work, was made. 

In October 2016, AT&T again placed Fowler on surplus 

status. This time, she was the only one from her unit laid off. 

Id. at 2438. She alleges that this was by design, suggesting that 

the evidence tends to show that some AT&T managers preselected her as a “target” for termination prior to implementing 

the surplus procedures (and thus against internal AT&T 

policy). During the surplus period, Fowler could not find any 

replacement positions within AT&T and thus was terminated 

on December 27, 2016. She was sixty years old. 

After her termination, Fowler exhausted her 

administrative remedies with the Equal Employment 

Opportunity Commission (EEOC) and then sued AT&T in the 

District of New Jersey. She brought claims for age and 

disability discrimination (disparate treatment) under the 

Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, et
9

seq., and Age Discrimination in Employment Act (ADEA), 29 

U.S.C. § 621, et seq., as well as the New Jersey Law Against

Discrimination (NJLAD), N.J. Stat. Ann. §§ 10:5-1, et seq. 

She also brought claims for failure to accommodate her 

disabilities and a hostile work environment.1

The District Court granted summary judgment for 

AT&T on all claims. Fowler now appeals.2

II. Discussion 

Fowler, as noted, brings claims under both the ADA and 

the ADEA. Because claims under these statutes align with 

claims under Title VII of the Civil Rights Act of 1964, 42 

U.S.C. § 2000e et seq., we look to Title VII case law to help 

inform our analysis. See Barber v. CSX Distrib. Servs., 68 F.3d 

694, 698 (3d Cir. 1995); Walton v. Mental Health Ass’n. of Se. 

Pa., 168 F.3d 661, 667 (3d Cir. 1999). Similarly, New Jersey 

law generally tracks the relevant federal statutes, and neither 

party points to any divergent aspect of New Jersey law that 

would not follow the outcome in this case. See Capps v. 

Mondelez Glob., LLC, 847 F.3d 144, 157 n.14 (3d Cir. 2017) 

(observing that “[t]he requirements for failure to accommodate 

claims under New Jersey's LAD have been interpreted in 

accordance with the [ADA]” (alterations in original) (quoting 

Armstrong v. Burdette Tomlin Mem’l Hosp., 438 F.3d 240, 246 

1 Fowler lost on the hostile work environment claim and does 

not press it on appeal, so we do not discuss it further. 

2 The District Court had jurisdiction over the federal claims 

under 28 U.S.C. § 1331 and supplemental jurisdiction over the 

related state law claims under 28 U.S.C. § 1367. We have 

jurisdiction under 28 U.S.C. § 1291. 
10

n.12 (3d Cir. 2006)); Lawrence v. Nat’l Westminster Bank N.J., 

98 F.3d 61, 65 (3d Cir. 1996) (“Age discrimination claims 

under the ADEA and LAD are governed by the same standards 

and allocation of burdens of proof.”); Abrams v. Lightolier, 

Inc., 50 F.3d 1204, 1212 (3d Cir. 1995) (“New Jersey courts in 

applying the NJLAD generally follow the standards of proof 

applicable under the federal discrimination statutes . . . .”). 

We analyze these claims under the burden-shifting 

framework set out in McDonnell Douglas Corp. v. Green, 411 

U.S. 792 (1973). See Barber, 68 F.3d at 698 (as to ADEA); 

Walton, 168 F.3d at 668–69 (as to ADA). To survive summary 

judgment, Fowler must present a claim that on first sight has 

enough merit to proceed (called a prima facie case). See 

Walton, 168 F.3d at 668. ADA and ADEA claims differ only 

slightly in the elements needed to show a prima facie case of 

discrimination. Essentially, Fowler must show that she was (1) 

disabled (for the ADA claim) or over the age of 40 (for the 

ADEA claim), (2) subject to an adverse employment action, (3) 

qualified for her position, and that (4) the adverse employment 

action was because of her disability (ADA) or her age (ADEA). 

McNelis v. Pa. Power & Light Co., 867 F.3d 411, 414 (3d Cir. 

2017) (ADA); Willis v. UPMC Child.’s Hosp. of Pittsburgh, 

808 F.3d 638, 644 (3d Cir. 2015) (ADEA).3

 In cases involving 

3 In ADA (but not ADEA) cases, we tend to truncate this into 

a three-prong test by combining prongs 2 and 4 into a single 

prong asking whether the employee “has suffered an adverse 

employment action because of that disability.” See, e.g., 

McNelis, 867 F.3d at 414. For clarity and efficiency, we 

present both tests in the four-prong framework, following the 

briefing by both parties. This presentation is purely for 

convenience and does not alter the substantive elements of the 
11

a reduction-in-force, the last prong of an age discrimination 

case may be satisfied by showing that an employer retained a 

sufficiently younger, similarly situated employee. Anderson v. 

Consol. Rail Corp., 297 F.3d 242, 249–50 (3d Cir. 2002). 

If Fowler is able to make out a prima facie case, the 

burden of production shifts to AT&T to provide a legitimate, 

non-discriminatory reason for its actions. Walton, 168 F.3d at 

668. If it does, Fowler may prevail at summary judgment only 

if she has evidence that AT&T’s response is merely a pretext, 

meaning evidence that could cause a jury “either [to] (1) 

disbelieve the employer’s articulated legitimate reasons[,] or 

(2) believe that an invidious discriminatory reason was more 

likely than not a motivating or determinative cause of the 

employer’s action.” Id. (quoting Lawrence v. Nat’l 

Westminster Bank N.J., 98 F.3d 61, 66 (3d Cir. 1996)). 

Our review on appeal is plenary, which means we 

review each element anew. See McNelis, 867 F.3d at 414. We 

view the facts and reasonable inferences “in the light most 

favorable” to Fowler, though recognizing that “mere 

allegations are insufficient,” and “[o]nly evidence sufficient to 

convince a reasonable factfinder” merits consideration at this

stage. Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 265 (3d 

Cir. 2014) (alteration in original) (quoting Lauren W. v. 

DeFlaminis, 480 F.3d 259, 255 (3d Cir. 2007)). “In essence,” 

the question is “whether the evidence presents a sufficient 

disagreement to require submission to a jury or whether it is so 

claims required by our precedents. Cf. Pivirotto v. Innovative 

Sys., Inc., 191 F.3d 344, 356–57 (3d Cir. 1999) (discussing the 

“fourth element of the prima facie case” for both “cases 

brought under the [ADA] and the [ADEA]”). 
12

one-sided that one party must prevail as a matter of law.” 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986). 

A. Fowler’s Discrimination Claims Stemming from the 

January Surplus Fail. 

For the January surplus, the only disputed issues are 

whether Fowler suffered an adverse employment action and 

whether she has sufficiently shown discrimination and pretext. 

While we hold that the January surplus selection was an 

adverse employment action, we conclude that, even assuming 

Fowler has shown a prima facie case of discrimination, she 

cannot show pretext, meaning that none of her claims 

associated with the January surplus selection survive summary 

judgment. 

1. The January surplus selection is an adverse 

employment action. 

The District Court concluded that the January surplus 

was not an adverse employment action because Fowler 

ultimately maintained her employment with AT&T. Supported 

by the EEOC, she disagrees, as do we. 

Fowler’s discrimination claims accrued when she 

received notification of her January surplus status. See Watson 

v. Eastman Kodak Co., 235 F.3d 851, 853, 855, 857 (3d Cir. 

2000) (holding that the statute of limitations begins to run at 

the time an employee is notified of an impending termination, 

even if her notification of termination “left open the possibility 

of [her] continued employment with the company” if she was 

“successful in obtaining another position within [it]”); see also 

Del. State Coll. v. Ricks, 449 U.S. 250, 258 (1980) (concluding, 
13

in the context of a denial of tenure that was communicated well 

before the eventual loss of employment, “the only alleged 

discrimination occurred . . . at the time the tenure decision was 

made and communicated. . . . even though one of the effects of 

the denial of tenure—the eventual loss of a teaching position—

did not occur until later”) (emphasis in original). 

Before now, we have not considered whether a notice as 

we have here is an “adverse employment action” sufficient to 

satisfy a prima facie case, but it is a small and logical step to 

so hold based on our statute-of-limitations case law. Reaching 

the opposite conclusion—that a prima facie case may only be 

satisfied after an employee actually loses her job—could 

produce an absurd result where a plaintiff’s limitations period 

expires before she was actually terminated, and thus before her 

substantive claim even accrues.4

 

Fortunately, the relevant statutes preclude this illogical 

outcome because their text comfortably covers surplus 

selections like Fowler’s. Even were her selection not a 

discharge per se, discrimination is prohibited more broadly in 

4 This would not be the only incongruous result. Such a 

conclusion would perversely place the burden on plaintiffs to 

work hard to seek other jobs to mitigate the consequences of a 

potentially discriminatory surplus selection. It would also 

protect employers from suit in even the most egregious cases 

of discriminatory surplus selection if the employee was lucky 

enough to secure a position elsewhere in the company. This 

could reward “not-in-my-backyard” discrimination where 

bosses would be free to keep their divisions free of diversity as 

long as they ensured that any protected individuals they pushed 

out would get a job in a different division of the company. 
14

the “terms, conditions, and privileges of employment.” 42 

U.S.C. § 12112(a); 29 U.S.C. § 623(a)(1). Fowler’s selection 

for surplus status altered the terms and conditions of her 

employment; as soon as she received notice of it, her 

employment became conditional. Absent mitigating action by 

Fowler, e.g., finding another job, or unexpected developments 

that could cause AT&T to reverse course, she would be 

terminated at a set future date. After AT&T’s January notices 

went out, the employees who were selected for surplus were in 

a materially different position than those who were not, despite 

both groups continuing in the short term to work for AT&T. 

That an employee is able to find a new job does not mean that 

her initial surplus selection was not an adverse employment 

action; it means merely that the employee was able to lessen 

the adversity—and potentially the damages—of the 

employer’s action. 

Our thinking accords with that of every other circuit 

court to consider the issue. See Singletary v. Howard Univ., 

939 F.3d 287, 300 (D.C. Cir. 2019) (concluding that “the mere 

notice of termination is a cognizable adverse employment 

action regardless of whether the employer follows through”); 

Shultz v. Congregation Shearith Israel, 867 F.3d 298, 305– 06 

(2d Cir. 2017) (holding that “notice of termination itself 

constitutes an adverse employment action, even when the 

employer later rescinds the termination”); see also Almond v. 

Unified Sch. Dist., 665 F.3d 1174, 1177 (10th Cir. 2011) 

(noting, though in a dictum, that “adverse employment actions 

can involve entirely deferred consequences— such as . . . a 

notice of termination with a grace period before actual firing 

occurs”).
15

Today we hold that a notice of termination, like the 

selection for surplus status here, is an adverse employment 

action even if an employee is given a window of time—small 

or large—before her actual discharge. Such a notice is adverse 

without regard to whether the employee is permitted to apply 

for other positions within the company, or even if she 

ultimately succeeds in finding another position.5

 

2. Fowler has not provided sufficient evidence that 

AT&T’s facially neutral surplus selection was 

merely pretext for discrimination.

Fowler argues that she has met her burden to show a 

prima facie case of discrimination because she has identified 

three younger, non-disabled employees with similar historical 

performance ratings who were retained in the January surplus. 

See Anderson, 297 F.3d at 250 (holding that “to present a prima 

5 We recognize that panels of our Court have declined in nonprecedential opinions to conclude lateral job transfers are 

actionable adverse employment actions when those transfers 

do not result in a loss of pay, benefits, status, or advancement 

opportunities. See, e.g., Stewart v. Union Cnty. Bd. Of Educ., 

655 F. App’x 151, 157 (3d Cir. 2016); Swain v. City of 

Vineland, 457 F. App’x 107, 110 (3d Cir. 2012); Langley v. 

Merck & Co., 186 F. App’x 258, 260 (3d Cir. 2006). Fowler, 

in contrast, did not experience a lateral transfer. When AT&T 

placed Fowler on surplus status, the terms and conditions of 

her employment materially changed. Fowler faced an 

impending termination date and avoided discharge only 

because she applied for and received a completely different 

job. 
16

facie case raising an inference of age discrimination in a 

reduction in force situation, the plaintiff must show, as part of 

the fourth element [i.e., the causal link to discrimination], that 

the employer retained someone similarly situated to him who 

was sufficiently younger”). We assume, for the sake of 

argument, that these employees sufficiently serve as 

comparators in the age-discrimination context. And we also 

assume, without deciding, that identifying these non-disabled 

individuals as similarly situated retained employees is 

sufficient to satisfy the fourth prong of her prima facie ADA 

case. But even had she made out a prima facie case, Fowler 

has not provided evidence to infer that AT&T’s neutral reason 

for her surplus selection was merely pretextual. 

AT&T presents powerful information that supports its 

claim that Fowler’s termination was simply the product of a 

neutral selection of employees for a reduction in force. First, 

it stresses that her termination occurred during a planned 

company-wide downsizing that led to eliminating over two 

hundred positions. Within Fowler’s work group, AT&T 

planned to place seventeen employees on surplus status, out of 

a total of fifty-five employees—reducing the group’s 

headcount by nearly one-third. Her selection for the surplus 

was the product of ranking employees based on their 

performance rating (with the exception of some employees 

who volunteered for surplus). In internal emails and notes 

around the time of Fowler’s surplus selection, her manager 

reiterated to colleagues that Fowler “is a very strong and 

capable employee, [but] unfortunately so is the rest of the 

organization and overall this is where she ranked.” App. at 

477. And Fowler’s manager’s contemporaneous notes indicate 

that she “worked with [Fowler’s] former supervisor and 

reviewed with [her] own supervisor her rating to assure it was 
17

appropriate.” Id. at 479. Yet Fowler had the sixth lowest rating 

in her group, placing her squarely within the seventeen 

employees they planned to terminate. And seven of the

employees who were rated and ranked against Fowler and 

ultimately retained were her age or older. This is particularly 

persuasive, as it would be odd to terminate Fowler because of 

her age but then retain other employees who were older. 

In response, Fowler argues that AT&T’s neutral 

reduction-in-force story was merely a pretext for 

discriminatory surplus selection. But we are not persuaded that 

any of Fowler’s arguments could convince a reasonable juror 

to “disbelieve [AT&T’s] articulated legitimate reasons” or that 

“an invidious discriminatory reason was more likely than not a 

motivating or determinative cause of the employer's action.” 

Walton, 168 F.3d at 668 (internal quotation marks omitted). 

We accept as true for purposes of summary judgment that she 

was a competent employee who historically received 

satisfactory ratings. But “the essence of a [reduction in force] 

is that competent employees who in more prosperous times 

would continue and flourish at a company may nevertheless 

have to be fired.” Healy v. N.Y. Life Ins. Co., 860 F.2d 1209, 

1220 (3d Cir. 1988). 

Further, it is not unexpected that after a layoff some job 

responsibilities that were formerly held by the terminated 

employees would be shifted to remaining employees. This 

does not, by itself, demonstrate pretext, especially here where 

AT&T contends that the employees who assumed some of 

these responsibilities were themselves similar in age to Fowler. 

See App. at 6–7, Dist. Ct. Op. at 4 (noting AT&T’s explanation 

that Fowler’s job responsibilities were assumed by employees 

who were 49, 55, and 57 years old, but declining to recognize 
18

a factual dispute as to whether another person took over her 

position entirely because “she provides no evidence” of that 

proposition). And though we know no reason to dispute her 

general assertion, supported by expert testimony,6 that some 

ostensibly neutral ratings systems may be inherently subjective 

and can sometimes reflect discriminatory bias, see Goosby v. 

Johnson & Johnson Medical, Inc., 228 F.3d 313, 321 (3d Cir. 

2000), or that AT&T’s process could be better, Fowler has 

simply not provided evidence here sufficient for a jury to 

conclude that her particular ratings were pretext for 

discriminatory bias.7

Fowler’s best argument is that she was the only disabled 

person selected for surplus, but she has not identified any 

evidence of pretext other than that her supervisor could not 

6 AT&T argues that this report would not be admissible under 

Rule 702 because it is not sufficiently reliable. We need not 

digress to consider its admissibility because the report fails to 

alter our decision even if it is reliable and admissible. See, e.g., 

App. at 695, Caren Goldberg, Ph.D., Dep. Tr., at 228:3–8 

(making clear that she “was not” asked and “didn’t” offer “any 

opinions in this case as to whether or not the decisions affecting 

Ms. Fowler were based on stereotypes or discrimination”); id.

at 708, Caren Goldberg, Ph.D., Dep. Tr., at 315:2–10 

(declining to express any opinion on whether “the process used 

by AT&T to evaluate people's leadership in any way led to bias 

on the basis of age”). 

7 We are confident that no reasonable juror would view the 

very general statements made by AT&T senior management 

about how the company has an aging workforce and the need 

to reinvent the company as evidence of pretext in Fowler’s 

case. 
19

remember at her deposition, after three years had passed, the 

specific reasons for the surplus ratings she gave Fowler—

meaning they could have been due to her disability. While this 

may be enough to state a prima facie case of disability 

discrimination, it is not enough for a reasonable jury to believe 

that AT&T’s ratings were pretextual. Cf. Brewer v. Quaker 

State Oil Refining Corp., 72 F.3d 326, 340–41 (3d Cir. 1995) 

(Roth, J., dissenting) (“‘While plaintiff is entitled to every 

favorable inference,’ he is not entitled to build a case on ‘the 

gossamer threads of whimsy, speculation and conjecture.’” 

(quoting Keller v. Bluemle, 571 F. Supp. 364, 371 (E.D. Pa. 

1983), aff’d, 735 F.2d 1349 (3d Cir. 1984)). And while her 

supervisor, again three years later, was unable to recall why 

Fowler’s ratings were lower than several colleagues who had 

historically received similar performance ratings as her, it bears 

noting that even if she were rated higher than ten more 

employees, she still would have been laid off. And the reasons 

that her supervisor did recall years later for not rating Fowler’s 

performance higher—that she was neither deficient nor 

exceeded expectations, but rather “[s]he did what she was 

supposed to do”—do not provide evidence of pretext. App. at 

451. To the contrary, they are consistent with Fowler’s ranking 

in the surplus: not at the very bottom, but not above average. 

Thus we conclude Fowler has not shown pretext sufficient to 

survive summary judgment for any of her claims tied to the 

January surplus. 

B. Fowler’s Discrimination Claims Stemming from 

the October Surplus Fail at Summary Judgment 

Because She Was Not Qualified for Her Position. 

To maintain either an age or disability discrimination 

claim, Fowler must show that she was qualified for her 
20

position: she must have “the requisite skill, experience, 

education, and other job-related requirements of the position.” 

See Turner v. Hershey Chocolate USA, 440 F.3d 604, 611 (3d 

Cir. 2006). The ADA claim further requires Fowler to show 

that, “with or without reasonable accommodation, [she] can 

perform the essential functions of that position.” Id. At the 

prima facie stage, this requires an inquiry into whether she 

possessed the minimal objective qualifications for the position. 

See Fowle v. C & C Cola, a Div. of ITT-Cont’l Baking Co., 868 

F.2d 59, 64–65 (3d Cir. 1989) (choosing to consider only 

objective qualifications at the prima facie stage, while 

declining to establish any “blanket rule” about when more 

subjective qualification criteria can enter the analysis in 

particular cases); Makky v. Chertoff, 541 F.3d 205, 215–16 (3d 

Cir. 2008) (concluding, in the “narrow” context of a mixedmotive employment discrimination case resolved at a motion 

to dismiss, that the qualification inquiry is limited to “the bare 

minimum requirement necessary to perform the job” and that 

plaintiffs need not show “that they were subjectively qualified 

for their jobs, i.e., performed their jobs well”). 

Fowler’s case is unusual in that her argument that she 

was objectively qualified for her new position is belied by her 

own contemporaneous statements as well as those she made in 

her deposition. See App. at 1030, 1034; id. at 174, Fowler Dep. 

Tr., at 176:12–13 (“I did not have the skill set for that 

position”); id. at 198, Fowler Dep. Tr., at 243:7 (“I didn’t fit 

the position”); id., Fowler Dep. Tr., at 243:8–11 (agreeing that 

she “w[as]n’t qualified for the position” because of “the skill 

set required”). While we certainly do not expect employees to 

be experts in the nuances of employment discrimination law or 

to use the legal definition of “qualified” in their everyday 

statements, see Kengerski v. Harper, 6 F.4th 531, 540 (3d Cir. 
21

2021), the only logical conclusion is that Fowler was using the 

term “qualified” according to its ordinary meaning: she simply 

did not have the minimum skills necessary to perform the job. 

See App. at 1030, Email from Fowler to Srinivasa Marella 

(describing the job as “not a skills match for [her]”); App. at 

1034, Email from Fowler to Madhavi Aruva (Fowler 

explaining that she was “not suited or qualified for [the] 

position”). Any doubt about what Fowler meant is resolved by 

her clarifications that she lacked recent experience in a 

technical position. See App. at 1030, E-mail from Fowler to 

Srinivasa Marella (noting that her “experience in technical 

work was 13+ years ago and at [a different] level of detail”). 

Therefore, we view Fowler’s multiple statements in the record 

as directly contradictory to her arguments before the District 

Court and on appeal that she is sufficiently qualified for her job 

to bring an ADA or ADEA claim. 

When a plaintiff makes sworn statements that squarely 

concede her lack of qualifications, she faces a higher burden to 

make out a prima facie case and survive summary judgment: 

she must offer an explanation for the apparent contradiction. 

Cleveland v. Pol’y Mgmt. Sys. Corp., 526 U.S. 795, 797 

(1999); see also id. at 807 (“[T]he court should require an 

explanation of any apparent inconsistency with the necessary 

elements of an ADA claim.”) (emphasis added). Much of our 

case law on this point comes in the context of judicial estoppel 

stemming from statements made in previous proceedings 

before a court or agency or in sworn statements. See Detz v. 

Greiner Indus., Inc., 346 F.3d 109, 117–18 (3d Cir. 2003) (“We 

have similarly applied Cleveland . . . where, as here, the 

claimant clearly made a contradictory assertion after 

benefitting from a previous sworn assertion, the court or 

agency thus having accepted the previous assertion.”); see also
22

Hackman v. Valley Fair, 932 F.2d 239, 241 (3d Cir. 1991) 

(“When, without a satisfactory explanation, a nonmovant’s 

affidavit contradicts earlier deposition testimony, the district 

court may disregard the affidavit in determining whether a 

genuine issue of material fact exists.”). While many of 

Fowler’s statements were made in informal emails to her 

supervisors rather than in sworn statements or prior judicial 

proceedings, she repeated the substance of these statements in 

sworn testimony at her deposition in this case. See App. at 174, 

198.

And even if Fowler’s concessions do not “automatically 

estop [her] from pursuing an ADA claim” in a formal sense, 

Cleveland, 526 U.S. at 797, they are nonetheless relevant to our 

inquiry at summary judgment. The essence of our task here is 

to determine whether there is a “genuine dispute as to any 

material fact.” Fed. R. Civ. P. 56(a). Where Fowler herself 

has conceded her lack of qualifications, post-hoc assertions by 

her lawyers during litigation that she was in fact qualified, 

without more, are not enough to create a genuine dispute of 

material fact that stops summary judgment. Courts “cannot 

simply ignore the apparent contradiction . . . . Rather, [Fowler] 

must proffer a sufficient explanation.” Cleveland, 526 U.S. at 

806. It must “warrant a reasonable juror’s concluding that, 

assuming the truth of, or [her] good-faith belief in, the earlier 

statement, [she] could nonetheless ‘perform the essential 

functions’ of her job, with or without ‘reasonable 

accommodation.’” Id. at 807; see also Lexington Ins. Co. v. W. 

Pa. Hosp., 423 F.3d 318, 320–21 (3d Cir. 2005) (concluding 

that an “absence of evidence, coupled with the concession of 

West Penn’s General Counsel[,] . . . compels the conclusion 

that a reasonable jury could not [find in favor of West Penn]”). 
23

Here, Fowler has not offered any such explanation that 

is plausible enough to require consideration on a remand. On 

appeal, her primary explanation is that her earlier contradictory 

statements were made in the context of a request for 

accommodations. But this explanation is not supported by the 

record. We recognize that Fowler separately made explicit 

requests for various accommodations from AT&T, citing her 

disabilities. But accommodation requests alone do not conflict 

with her statements that she did not possess the minimum 

qualifications for the position. We look at the context in which 

those specific concessions were made to probe whether she can 

sufficiently explain the inconsistency. The reason Fowler 

provided for being unable to perform her new job was not her 

disabilities, but rather the “13+ years” since her last technical 

position that was “at [a different] level of detail.” App. at 1030. 

The email in which she stated she was not qualified did not 

mention her disabilities at all, let alone request any 

accommodations other than being reassigned to a completely 

different position. Id. at 1034. And though an earlier email 

mentioned her breast cancer treatments, it did not imply that 

they were the reason for her inability to do the job; rather, 

Fowler mentioned her medical condition to explain why she 

could not bear the stress of remaining in a job that “is not a 

skills match.” Id. at 1030. 

Fowler also stresses that her supervisor, Madhavi 

Aruva, viewed her as qualified. See Fowler’s Reply Br. at 8–

12. In the ordinary case, we would expect a district court to 

consider this evidence more thoroughly than the Court did 

here, especially where this assessment was based on a review 

of Fowler’s “experience[,] . . . technical skills[,] . . . 

communication skills[,] . . . and education background.” App. 

at 1422; see also id. at 1419, 1436 (noting that Aruva reviewed 
24

Fowler’s resume and chose her over other candidates because 

of her experience as “a system engineer . . . working on local 

and long distance,” which was “related” to what her team 

supports). 

Still, we ultimately agree with the District Court that a 

hiring official’s initial determination that an applicant is 

qualified “does not and cannot end the inquiry.” App. at 16. 

While evidence of a supervisor’s assessment of an employee’s 

qualifications and performance is relevant and may even be 

sufficient to state a prima facie case and survive summary 

judgment in some contexts, the rest of the record here shows 

that this evidence is not probative. Fowler conceded that the 

criteria used during hiring were not consistent with the skills 

actually required by the job, id. at 1926–27; thus we must look 

to the statements Fowler made after starting the new position 

to identify whether she was objectively qualified. 

Contrary to her assertions, Fowler’s Reply Br. at 9, we 

are not improperly weighing conflicting evidence to resolve a 

factual dispute against her. For the purposes of summary 

judgment, we view Aruva’s testimony and corresponding 

record evidence, see, e.g., App. at 1672–74, 1900-01, in the 

light most favorable to Fowler. But we still must determine 

whether she has given a sufficient explanation for her earlier 

statements that would allow us to conclude there is a genuine 

dispute on this point. The fact that Aruva believed (perhaps 

mistakenly) that Fowler was qualified at the time she hired her 

does not explain away Fowler’s concessions that she was, in 

fact, not qualified for the position. To the contrary, Fowler 

herself explained how Aruva’s testimony was consistent with 

her own admissions: she stated simply and explicitly that 

“whoever reviewed [her resume]” did an inadequate job and 
25

“should have . . . caught” the fact that it did not align with the 

position. Id. at 1926–27. 

Nor are we persuaded by Fowler’s claim that she was 

able to improve her job performance over time such that she 

eventually became qualified for her position. To be sure, “[t]he 

determination of whether an individual with a disability is 

qualified is made at the time of the employment decision . . . .” 

Turner, 440 F.3d at 611. But the record does not support 

Fowler’s assertion that her inability to do the job had changed 

by the time she was terminated. Any reasonable juror reading 

through the evidence she cites would be forced to conclude that 

Fowler’s reading is a misrepresentation. It is true Aruva 

conceded that Fowler had been satisfactorily performing the 

projects she had been given “with little help” at the time of her 

termination, but Fowler’s quote omits important context about 

those projects. App. at 1472. They were “small tasks” Aruva 

had assigned just to keep Fowler busy until she had completed 

remedial training. App. at 495. By contrast, the “HALO” 

projects—which typically made up ninety to one-hundred 

percent of the work for Aruva’s engineers—were continually 

refused by Fowler, who stated they were too complicated for 

her to perform. App. at 495–496. And her improvement on 

those small tasks, Aruva clarified, was only an improvement 

from “10 percent output to at least 25 percent output.” App. at 

1444. 

In short, we do not believe that the evidence and 

explanations that Fowler has submitted are “sufficient to 

warrant a reasonable juror's concluding” that she was qualified 

for her position. Cleveland, 526 U.S. at 807. The District 

Court was thus correct to grant summary judgment in favor of 
26

AT&T on all claims stemming from her later surplus selection 

and eventual termination.8

C. Fowler’s Failure-To-Accommodate Claims Also 

Fail at Summary Judgment. 

As Fowler recognizes, there is significant “interplay 

between the two theories of ADA liability” that she advances: 

discrimination in the October surplus selection and a failure to 

8 Concerning, however, is some of the evidence Fowler 

provided to show that AT&T acted in a discriminatory manner 

and that its purportedly neutral surplus selection story was 

mere pretext. Compare App. at 667–668 (deposition testimony 

confirming that Fowler was designated as a “target employee” 

for surplus before employees were ranked and rated”) and App. 

at 2440 (email correspondence that could plausibly be read as 

engineering a bogus layoff process around Fowler), with App. 

at 1513–1514 (HR testimony that targeting procedures were 

inconsistent with AT&T’s policies), App. at 276 (AT&T’s 

internal documents making clear that surplus is not a 

“performance management tool” to fire low-performing 

employees), and App. at 1544 (testimony that an HR employee 

“would have slapped” a colleague if she knew he wanted to 

target particular employees like Fowler for surplus). But 

because we hold that Fowler was not qualified for this position, 

her claims necessarily fail. Thus we do not analyze 

discrimination and pretext any further. However, in future 

cases involving qualified employees, “disturbing procedural 

irregularities” like these may well preclude summary 

judgment. Timmerman v. U.S. Bank, N.A., 483 F.3d 1106, 

1122 (10th Cir. 2007).
27

accommodate her disabilities while she was a senior systems 

engineer. Fowler’s Br. at 37. Indeed, a claim stemming from 

an employer’s failure to accommodate an employee’s 

disabilities may be viewed simply as a type of discrimination 

claim, where the relevant adverse employment action is the 

employer’s “refus[al] to make reasonable accommodations for 

a[n employee’s] disabilities.” Colwell v. Rite Aid Corp., 602 

F.3d 495, 504 (3d Cir. 2010) (quoting Williams v. Phila. Hous. 

Auth. Police Dep’t, 380 F.3d 751, 761 (3d Cir. 2004)). An 

employee can only show that her employer “breached its duty 

to provide reasonable accommodations” if she “could have 

been reasonably accommodated but for the employer’s lack of 

good faith.” Id. (quoting Williams, 380 F.3d at 772). 

Therefore, “the plaintiff bears the burden of proving that she is 

otherwise qualified; if an accommodation is needed, the 

plaintiff must show, as part of her burden of persuasion, that an 

effective accommodation that would render her otherwise 

qualified exists.” Walton, 168 F.3d at 670. 

For substantially the same reasons as Section II.B, 

supra, we conclude that Fowler has not met her burden to show 

that she is otherwise qualified for her position. By her own 

admissions, her inability to perform the job functions were 

because she lacked the basic skills and experience for the 

position. She has not pointed to any reasonable 

accommodations that could plausibly make up for the highly 

technical skills she concedes she lacks. Thus she cannot 

maintain a failure-to-accommodate claim.9

9 In some circumstances, “an employer may be required to 

transfer an employee to an existing position” as a form of 

accommodation. Donahue v. Consol. Rail Corp., 224 F.3d 
28

* * * * *

We are sympathetic to Fowler’s situation. But while it 

is deeply unfortunate for a sixty-year-old cancer patient to lose 

her job, it is not necessarily a violation of employment 

discrimination laws. Those laws do not prohibit employers 

from terminating employees in protected classes when the 

termination is a part of a neutral reduction in force. And 

employers are not required to retain or accommodate 

employees who are not qualified for their jobs and could not 

perform them even with reasonable accommodations. When 

AT&T placed Fowler on surplus status in January 2016, she 

suffered an adverse employment action. But, her surplus 

selection was then a neutral reduction in force at AT&T, and 

Fowler has failed to provide sufficient evidence to show that 

226, 230 (3d Cir. 2000) (explaining the elements of a failureto-transfer theory). Yet Fowler has not shown that she made 

AT&T aware, as part of the interactive process, that she wanted 

a job transfer to accommodate her disabilities. Instead, her 

requests to supervisors to change positions are best read as 

reflecting her lack of qualifications for that position rather than 

as requests for a disability accommodation. See, e.g., App. at 

1034. And, in any event, while Fowler points to two vacant 

positions, Fowler’s Br. at 57, she has failed on appeal to point 

to any evidence showing that she would be “qualified to 

perform the essential duties of [those] job[s] with reasonable 

accommodation,” Donahue, 224 F.3d at 230, other than a 

reference to her own attestations that she believed she was 

qualified. See Fowler’s Br. at 57 (citing App. at 1080–81). 

Therefore, on this record and briefing, we conclude that she 

cannot save her failure-to-accommodate claims under a failureto-transfer theory. 
29

its neutral process was mere pretext for age or disability 

discrimination. Attempting to assure she had a job, Fowler 

sought and accepted a position elsewhere at AT&T. But, by 

her own admission, she was not qualified for her new position. 

Accordingly, we conclude that none of Fowler’s claims can 

survive summary judgment and affirm the judgment of the 

District Court.