ON PETITION FOR REHEARING AND REHEARING EN BANC Before ELROD, WILLETT, and OLDHAM, Circuit Judges. DON R. WILLETT, Circuit Judge: The petition for rehearing is DENIED and no member of this panel nor judge in active service having requested that the court be polled on rehearing en banc, the petition for rehearing en banc is also DENIED. The following is substituted in place of our opinion. In this workplace-discrimination appeal, Charles Clark says he was fired because of a diabetes-related condition. His employer, Champion National Security, Inc., offers a simpler explanation: Clark was sleeping at his desk during work hours, an immediately terminable offense. The district court granted Champion’s motion for summary judgment. We affirm. I. Background Champion provides uniformed security services to other companies. In October 2015, Champion hired Clark as a Personnel Manager.[1] In this position, Clark was responsible for human resources and employee-related issues at his branch.[2] His duties included interviewing, hiring, training, disciplining, and terminating security guards. For example, Clark “trained security guards and gave guidance about Champion’s policies, including the alertness policy.” He also “participated in the process of terminating Champion employees that [sic] appeared to be asleep at work.”[3] As such, Champion maintains that it was particularly important “for Clark to set a good example [for] guards and staff by being alert at work.” Generally, it’s important to Champion that “managers who are enforcing policy are also compliant with those same policies.” According to Clark, he suffered from multiple physical and mental ailments prior to and during his employment at Champion.[4] Most relevant to this case, Clark has been an insulin-dependent Type II diabetic for over a decade. Clark requested two accommodations for his diabetes, which Champion granted: First, he requested a refrigerator in his office in which to store insulin. Second, Clark requested flexibility to leave work to attend doctor appointments. Champion provided these accommodations throughout Clark’s tenure at the company. And Clark didn’t request any other accommodations related to his diabetes. But Clark did request exceptions to Champion policies. Due to the nature of its customer-facing and public-facing business, Champion requires officers and staff to adhere to specific dress and grooming requirements. Notably, Champion requires employees to be clean-shaven and wear dress shirts tucked into their pants.[5] But Clark wanted to “grow [a] small beard.” He believed Champion should have granted this request because he interacted with fellow employees, not clients. Champion denied Clark’s request. About three months later, Clark renewed his request. This time, Clark framed his request as one based upon his diabetes.[6] He submitted a note from his general practitioner. But the note merely stated, “[p]lease excuse [Clark] from the shaving requirement as he has eczema and dry skin.” Clark does not assert that eczema or dry skin is a disability. Champion assented to Clark’s request based on this doctor’s note. But Bill McCoy, Champion’s then-Senior Vice President, offered Clark an extra fifty cents per hour for complying with the shaving policy. Clark rejected the offer. Around the same time, Clark also requested an exception to Champion’s dress code. Clark had recently undergone shoulder surgery. So he requested an accommodation permitting him to leave his shirt untucked during his recovery. In support of this request, Clark submitted a note from his doctor. The note prohibited “manipulation of the left arm until released by the surgeon.” Because the note did not state that he was unable to tuck in his shirt, Champion initially denied Clark’s request, thinking that he could tuck in his shirt without using his left arm. Clark submitted additional documentation from his doctor, but it still didn’t explicitly say that he was unable to tuck in his shirt.[7] McCoy told Clark that Champion did not believe his request to leave his shirt untucked was reasonable. After Clark exchanged a series of emails about his dress and grooming requests with McCoy, Clark asserted that McCoy was harassing him on the basis of disability. So McCoy referred Clark to Jeff Mays, Champion’s Corporate Human Resources Director.[8] Clark submitted a formal complaint to Mays in April 2016.[9] And Mays investigated the allegations. Mays concluded that McCoy did not harass Clark on the basis of disability. Mays shared these findings with both McCoy and Clark—though Clark rejected the legitimacy of the investigation.[10] Let’s fast forward to August 2016. A Champion employee told Paul Bents, Clark’s manager, that “Clark was closing his office door for long periods of time” and she “could often hear him snoring.”[11] The following month, Bents received a picture anonymously by text message. This picture appeared to show Clark asleep at his desk at work. “Lack of alertness” at work—which includes “sleeping or giving the appearance of sleeping”—is an immediately terminable offense at Champion.[12] But Champion did not terminate Clark at this time. Champion explained that using an anonymous picture as sole proof would have deviated from its usual process of terminating a non-alert employee, which includes collecting two witness statements. Plus, the supposed violation of the alertness policy was not properly documented. So Champion took no action against Clark. But December 7, 2017 was a different story. On that morning, another employee told Bents that it appeared Clark was sleeping at his desk during work hours. So Bents went to Clark’s office and took a picture of him around 8:30am. Both Bents and the reporting employee stated that they heard Clark breathing. Bents immediately sent to corporate management the picture of Clark sleeping and employee statements corroborating the event.[13] A few minutes later, Clark awoke on his own. Champion asserts that Clark did not appear to be in physical distress. And Clark does not provide evidence otherwise. Bents explained to Clark that at least two people saw him sleeping. Clark told Bents that he didn’t remember getting up that morning or driving to work, but woke up at his desk. Clark also told Bents that he might have been experiencing a diabetic emergency, and that he was going to the hospital. Then Clark left the office. While at the emergency room, he received a call from Mays. Mays terminated Clark for violating the alertness policy. Clark insisted that he wasn’t sleeping; he said he passed out from low blood sugar. But Mays simply wished him well in future endeavors. Clark contends that Champion fired him because of a condition resulting from his disability.[14] So Clark sued Champion, alleging violations of the Americans with Disabilities Act[15] and the Texas Labor Code.[16] Specifically, Clark alleges discrimination and harassment on the basis of disability, retaliation, failure to accommodate a disability, and failure to engage in the interactive process under both the ADA and TCHRA. Accordingly, he claims entitlement to myriad damages and fees pursuant to state and federal law. Both parties filed motions for summary judgment. The district court granted Champion’s motion, dismissing all of Clark’s claims. Clark timely appealed. II. Standard of Review “We review a district court’s summary judgment de novo, applying the same standard as the district court.”[17] Summary judgment is warranted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.[18] “A fact is material if it ‘might affect the outcome of the suit under the governing law,’ and a dispute is genuine if ‘the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’”[19] “When considering a motion for summary judgment, the court views all facts and evidence in the light most favorable to the non-moving party.”[20] “Mere conclusory allegations are insufficient to defeat summary judgment.”[21] III. Discussion A. Direct Evidence of Disability Discrimination Title II of the ADA prohibits an employer from discriminating against an employee who is a qualified individual with a disability on the basis of that disability.[22] “In a discriminatory-termination action under the ADA, the employee may either present direct evidence that [he] was discriminated against because of [his] disability or alternatively proceed under the burden- shifting analysis first articulated in McDonnell Douglas.”[23] Clark argues that he presented direct evidence of discrimination based on disability. But the district court disagreed. The district court determined that Clark would be unable to establish a claim for disability discrimination through direct evidence, and that “the evidence proffered fails to establish that [Champion] relied upon any forbidden factor in making the ultimate decision to fire [Clark].” Clark believes this finding was in error. The district court did not explain its conclusion. But we agree with it. “[D]irect evidence is rare.”[24] And this is not one of those rare cases. We have defined “direct evidence” as “evidence which, if believed, proves the fact without inference or presumption.”[25] “A statement or document which shows ‘on its face that an improper criterion served as a basis—not necessarily the sole basis, but a basis—for the adverse employment action [is] direct evidence of discrimination.’”[26] Clark’s case for direct evidence of discrimination boils down to the following assertions: (1) Bents, Mays, and vice President McCoy knew Clark had diabetes and believed it to be a condition that constitutes a disability; (2) Bents, Clark’s supervisor, stated that Clark “may have” informed him about previous problems with his insulin levels; (3) upon learning that co- workers discovered Clark not awake at his desk during work hours, McCoy responded, “perfect. . . . let him go”; and (4) after awakening, Clark told Bents that he was going to the hospital, but neither Bents nor anyone else attempted to determine whether there was a medical reason for Clark’s conduct. This evidence is a far cry from what we have previously found to be direct evidence of discrimination. For example, in Portis, a demoted bank employee alleging sex discrimination in violation of Title vII provided evidence of multiple occasions where her supervisor told her that she “wouldn’t be worth as much as the men would be to the bank” and “she would be paid less because she was a woman.”[27] We held that no inference was required to conclude that the employee was treated differently because of her sex, meaning her supervisor’s statements constituted direct evidence of discrimination.[28] There was also direct evidence of discrimination in Etienne, where a casino’s former employee, an African-American woman, alleged that she was not promoted to a managerial position due to her race in violation of Title VII.[29]We held that statements made “on several occasions” by the general manager—who was responsible for filling the position—that he did not allow “dark skin black person[s to] handle any money at” the casino and that he “thought [the employee] was too black to do various tasks at the casino” constituted direct evidence of discrimination.[30] Direct evidence was also present in our 2005 Jones case. There, an African-American applicant wasn’t hired for any of a casino’s vacant poker dealer positions and sued the owner under Title VII for race discrimination.[31] The applicant presented evidence that the casino’s poker room manager—who was responsible for hiring—regularly used racially derogatory language and stated that “the[y] were not going to hire a black person unless there were extenuating circumstances.”[32] Further, the applicant presented evidence that the same manager told his assistant that “good old white boys don’t want blacks touching their cards in their face” and said to a former employee “maybe I’ve been told not to hire too many blacks in the poker room.”[33] The court held that these statements were direct evidence of discrimination.[34] Our 2006 decision in Rodriguez is also instructive. “This case is one of those rare ADA cases in which we are presented with direct (rather than circumstantial) evidence of discriminatory intent: ConAgra and Ms. Zamora have both admitted that Rodriguez did not get his job because of his allegedly uncontrolled diabetes.”[35] “In its appellate brief, ConAgra twice concedes (albeit coupled with an irrelevant caveat) that it withdrew Rodriguez’s job offer because it regarded him as substantially limited by his diabetes in the major life activity of working.”[36] In this case, Champion’s brief makes no such concession. And Clark fails to point to any statement or document that directly and expressly links his disability to a decisionmaker’s choice to terminate him. Rather, Clark points to generalized knowledge about his diabetes and the termination itself as direct evidence of discriminatory intent. But that’s not direct evidence; it would require us to make an inference.[37] Clark’s strongest argument for direct evidence of discrimination is Vice President McCoy’s statement, “perfect. . . . let him go,” after he received a picture of Clark not awake at his desk during business hours with the subject line “Charles Clark sleeping.” “Where a plaintiff offers remarks as direct evidence, we apply a four-part test to determine whether they are sufficient to overcome summary judgment.”[38] “To qualify as direct evidence of discrimination, workplace comments must be 1) related [to the protected class of persons of which plaintiff is a member]; 2) proximate in time to the terminations; 3) made by an individual with authority over the employment decision at issue; and 4) related to the employment decision at issue.”[39] McCoy’s statement is from the same day as Clark’s termination and it was about terminating Clark, thus satisfying the second and fourth requirement. But unlike in Portis, Etienne, and Jones, the evidence suggests that the speaker (McCoy) was not the ultimate decisionmaker regarding termination.[40] And Clark admits as much in his brief—undercutting his own argument. Plus, there’s nothing in the email with the picture or McCoy’s response about Clark’s disability. So McCoy’s statement can’t be direct evidence of disability discrimination because it fails to satisfy the first and third requirement. And, problematically, accepting the statement as direct evidence would require an inference. If the subject line had been something like “Charles Clark in a diabetic emergency,” and McCoy had responded “perfect. . . . let him go,” that might pass muster as direct evidence of discrimination. It would certainly be more akin to the statements in Portis, Etienne, Jones, and Rodriguez, which all included explicit references to the forbidden factor (sex, race, or disability). But those are not the facts here. McCoy’s statement is not direct evidence of discrimination.[41] At best, Clark could argue that McCoy’s statement provides circumstantial evidence that his disability influenced Champion’s decision to fire him. Thus, the district court did not err in finding no direct evidence of discrimination on the basis of disability. We affirm the district court’s finding on this issue. B. “Qualified Individual” Although Clark—like most plaintiffs in disability discrimination suits— failed to provide direct evidence of discrimination, he may still “proceed under the burden-shifting analysis first articulated in McDonnell Douglas.”[42] Under McDonnell Douglas, the plaintiff must carry the initial burden of establishing a prima facie case of discrimination.[43] “To establish a prima facie discrimination claim under the ADA, a plaintiff must prove: (1) that he has a disability; (2) that he was qualified for the job; and (3) that he was subject to an adverse employment decision on account of his disability.”[44] This discussion focuses on the second prong—whether Clark was “qualified” for the job. The district court found that Clark was “not a qualified individual under the ADA.”[45] Clark argues that the court erred. A plaintiff can establish that he is “qualified” by showing that “either (1) [he] could perform the essential functions of the job in spite of [his] disability,” or “(2) that a reasonable accommodation of [his] disability would have enabled [him] to perform the essential functions of the job.”[46] “[T]he question is whether he was qualified at the time of his termination.”[47] We agree with the district court: The evidence suggests that Clark could not perform the essential functions of the job with or without an accommodation. The Champion Handbook details expectations of employees, including offenses “that may result in . . . immediate termination.”[48] One such offense is “failure to maintain alertness.” Clark conceded that if he is not awake at work, he is not alert and can’t do his job.[49] But Clark still argues in his brief that he is qualified. Yet Clark fails to cite a single case from the Fifth Circuit to support his argument that he was a “qualified individual.”[50] His argument boils down to two points: First, Clark contends that his sleeping or being unconscious on the job would not pose a safety risk to others. Even if true, that does not satisfy Clark’s burden of proving that he could perform the essential functions of his job. And we have found that an employee in a non-safety-related position was not a “qualified individual” under the ADA where he repeatedly fell asleep at work due to his disability.[51] Second, Clark argues that Champion fails to present evidence of his poor performance in general. But Champion doesn’t need to. Champion insists that it terminated Clark because he was sleeping at his desk during the work day. Even assuming Clark does his job well while he’s awake, by his own admission he cannot do his job at all when he’s asleep. As we have held, maintaining consciousness is a basic element of any job.[52] In Grubb, a flight instructor sued an airline under the ADA after it terminated him because he repeatedly fell asleep at work.[53] But we held that the instructor was not a “qualified individual” under the ADA due to his sleep apnea because being conscious and alert was a basic element of his job performance.[54] Like the ground-based flight instructor in Grubb, Clark was responsible for training. Although Champion doesn’t allege Clark fell asleep during training, he certainly wasn’t able to train—or complete any other essential functions of his job—without being awake. So Clark failed to prove that he could perform the essential functions of his job in spite of his disability. Clark also fails to show that a reasonable accommodation would have allowed him to perform his job. Clark requested—and was granted—multiple accommodations related to his diabetes, including a refrigerator to store insulin and time off for doctor appointments. But he did not request an accommodation for loss of consciousness due to diabetes.[55] And Clark still has not identified any accommodation that would have allowed him to perform his job while suffering from diabetes-induced amnesia and unconsciousness—probably because interviewing, hiring, training, disciplining, and terminating security guards requires him to be awake. Thus, Clark has failed to prove that, at the time of his termination, he could perform the essential functions of his job—with or without accommodation. So we affirm the district court’s finding that Clark was not a “qualified individual.” C. Disability-based Harassment The next issue is whether the district court erred in finding that Clark’s “disability harassment claim fails to meet the standards imposed by the Fifth Circuit.” Clark argues that he was subjected to “a long and ongoing pattern of harassment” due to “conditions arising from his diabetes.” Specifically, Clark asserts that he developed eczema and dry skin because of his diabetes, which prevented him from following Champion’s policy requiring employees to maintain clean-shaven faces. Clark alleges that Champion denied him part of a raise because of this inability to shave. And Clark alleges that, due to surgery on his left shoulder, he was unable to follow Champion’s dress code requiring that employees tuck in their shirts. Clark claims that he was subjected to continuing ridicule relating to these dress code and grooming requirements. To prevail on a claim of disability-based harassment, “the plaintiff must prove: (1) that she belongs to a protected group; (2) that she was subjected to unwelcome harassment; (3) that the harassment complained of was based on her disability or disabilities; (4) that the harassment complained of affected a term, condition, or privilege of employment; and (5) that the employer knew or should have known of the harassment and failed to take prompt, remedial action.”[56] The parties don’t dispute that Clark belongs to a protected group. So we assume for argument’s sake that he does. Importantly, the disability-based “harassment must be sufficiently pervasive or severe to alter the conditions of employment and create an abusive working environment.”[57] “In determining whether a work environment is abusive, we consider the entirety of the evidence in the record, including ‘the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee’s work performance.’”[58] Here, Clark’s disability-based harassment claim is based upon a disagreement with Champion regarding his compliance with the company’s dress and grooming policy. In support of Clark’s allegations, he described a series of emails with Champion. These emails capture a disagreement between Clark and Champion regarding terms of employment and accommodations.[59]And we held in Credeur that a disagreement with an employer over terms of employment or an accommodation do not amount to harassment.[60] In fact, we contrasted the employee-plaintiff’s claims in Credeur to those of the employee-plaintiff in Flowers, where the alleged harassment included “humiliating and offensive ad hominem attacks that had no rational relation to Flowers’s work performance. The conduct Credeur identifies is not at all analogous.”[61] Notably, Clark does not allege any ad hominem attacks, teasing, physical or verbal threats, or inappropriate language. Clark’s allegations are like those in Credeur, not Flowers. Even assuming that the alleged harassment was based on Clark’s disability, it was not severe or pervasive and did not create an abusive working environment. So Clark’s disability-based harassment claim is unavailing. But the district court found another reason why Clark’s claim fails:[62] Clark failed to satisfy prong three—that is, he didn’t show that the harassment was based on his disability. The doctor’s letter excusing Clark from shaving mentions “eczema and dry skin”—not diabetes.[63] The only evidence Clark provided to connect the alleged harassment to his diabetes is his own conclusory assertion that his diabetes contributes to his skin condition, and thus his inability to shave. That is not enough.[64] So any alleged harassment is not based on Clark’s diabetic condition. Likewise, the conduct complained of regarding Champion’s dress code is based upon Clark’s alleged inability to tuck in his shirt due to surgery on his left shoulder, not diabetes. Yet Clark repeatedly stated in his deposition that diabetes is the only disability that is the basis for his lawsuit. In sum, Clark failed to sufficiently connect his harassment claims—based on his alleged inability to shave or tuck in his shirt—to his diabetes. So Clark failed to satisfy the third prong—that the alleged harassment was based on his disability. As such, we affirm the district court’s finding on this issue.[65] D. Accommodations The next issue is whether the district court erred in finding no failure to accommodate Clark’s disability and no failure to engage in an interactive process. “Under the ADA, it is unlawful for an employer to fail to accommodate the known limitations of an employee’s disability.”[66] Clark “must prove the following statutory elements to prevail in [his] failure-to-accommodate claim: (1) [he] is a qualified individual with a disability; (2) the disability and its consequential limitations were known by the covered employer; and (3) the employer failed to make reasonable accommodations for such known limitations.”[67] As explained in Part III.B, Clark failed to show that he’s a “qualified individual” under the ADA. That failure alone is fatal to his failure- to-accommodate claim.[68] Even if Clark was a “qualified individual,” his failure-to-accommodate claim fails at a more fundamental level. Clark devoted a mere two sentences to his argument on this issue.[69] As the district court noted, he “fails to pinpoint any request(s) that were not subsequently accommodated.” Clark did not request an accommodation for loss of consciousness due to diabetes. Clark claims he “never had an opportunity to seek an accommodation or request the interactive process because he was fired while he was in the emergency room.” This “argument” is more of an admission. Clark had ample opportunity—over a year, in fact—to request an accommodation.[70] “It is the plaintiffs burden to request reasonable accommodations.”[71] Clark did not carry his burden. Regardless of the framing, Clark is really requesting an after-the-fact, retroactive exception to the alertness policy as an accommodation for his underlying disability—diabetes. But that is not an accommodation under the ADA.[72] Clark’s failure to request an accommodation means that his failure-to engage-in-the-interactive-process claim is dead on arrival: Without a request, Champion could not possibly fail to engage in an interactive process.[73] As such, we affirm the district court’s findings regarding Clark’s failure-to- accommodate and failure-to-engage-in-the-interactive-process claims. E. Retaliation The next issue is whether the district court erred in finding that Clark failed to present sufficient evidence to support his retaliation claim.[74] McDonnell Douglas provides the burden-shifting framework for claims of unlawful retaliation under the ADA.[75] “To show an unlawful retaliation, a plaintiff must establish a prima facie case of (1) engagement in an activity protected by the ADA, (2) an adverse employment action, and (3) a causal connection between the protected act and the adverse action.”[76] If “the plaintiff has established a prima facie case, the defendant must come forward with a legitimate, non-discriminatory reason for the adverse employment action.”[77] If the defendant does so, “the plaintiff must adduce sufficient evidence that the proffered reason is a pretext for retaliation. Ultimately, the employee must show that ‘but for’ the protected activity, the adverse employment action would not have occurred.”[78] Here, Clark asserts that he suffered retaliation—in the form of termination—after lodging an internal complaint alleging disability-based harassment. Clark easily satisfied prong two of the prima facie case: He suffered an adverse employment action when he was fired. But Clark runs into trouble with the rest of the test. Assuming that filing the complaint was protected activity, we agree with the district court that Clark failed to show a causal connection between his filing of the internal complaint and his termination. To establish this requisite causal link—prong three of the prima facie case—”the evidence must show that the employer’s decision to terminate was based in part on knowledge of the employee’s protected activity.”[79] Clark attempts to buttress his retaliation claim with emails suggesting that certain superiors at Champion were eager to see Clark leave—voluntarily or involuntarily. [80] To be sure, these emails are not exonerating. But neither are they incriminating. What matters is that Clark doesn’t connect his alleged “protected activity”—his complaint about the handling of the grooming issues filed eight months prior to his termination—to his superiors’ desire for him to leave. And some of the statements on which Clark relies explicitly undercut any argument for causation. One email chain specifically references Clark’s handling of unrelated overtime issues as the reason for his supervisor’s dissatisfaction: “Hopefully [Clark] resigns soon because if he had his way our OT would still be at 8%.” Even if Clark’s superiors were out to get him because of his handling of overtime, or for some other undisclosed reason, he presented no evidence connecting his internal complaint to his termination.[81] This failure to show a prima facie case is a sufficient basis to affirm the district court’s grant of summary judgment on this issue in Champion’s favor.[82] Clark has not proven that he would not have been terminated “but for” filing an internal harassment complaint eight months prior.[83] So we affirm the district court’s grant of summary judgment for Champion relating to Clark’s retaliation claim. F. Damages Finally, Clark argues that the district court erred in denying all of his claims for damages. Clark asserts in a conclusory manner that his “claims should be reinstated and that he is entitled to litigate his damages for back pay, front pay, compensatory damages, attorney fees, costs and interests.” As discussed in Parts III.A-E, we agree with the district court’s grant of summary judgment for Champion. Absent a finding of liability, Clark is not entitled to litigate his damages claims. So we affirm the district court on this issue as well. Conclusion For these reasons, we AFFIRM the district court across the board.
