According to a lengthy dissent, however, the majority erred by “flipping the burden of production on essential functions under the ADA.”
Although a rational jury could find the essential functions of a FedEx handler did not include lifting a 75-pound package overhead, as FedEx had at one point claimed, a divided Seventh Circuit, affirming summary judgment against her ADA claims, explained that “any reasonable jury would find that lifting packages at some indeterminate weight and frequency above [the employee’s] restrictions was an essential function of the handler position.” Nor would the court revive the twice-fired employee’s retaliation claim, finding that “FedEx let [her] go for her shoulder injury and limits on lifting, and when it discovered she was rehired without proof that her condition had sufficiently changed, it dismissed her again.” Dissenting, Judge Hamilton argued that the “majority’s theory for affirming summary judgment backs into creating a circuit split under the ADA on which party has the burden of producing evidence of a job’s essential functions” (Kotaska v. Federal Express Corp., July 17, 2020, St. Eve, A.).
Not long after she was hired by FedEx in 1998, the employee was promoted to courier, which required her to deliver and pick up packages for FedEx customers. According to FedEx’s job description, couriers and handlers are expected to lift packages weighing up to 75 pounds by themselves, although the job description did not specify how high they had to lift those packages.
Fired. In 2011, the employee injured her shoulder and, after surgery, her doctor determined that she would have permanent restrictions of lifting only 60 pounds from the floor to her waist; lifting between her waist and shoulder 30 pounds occasionally and 15 frequently; and lifting above her shoulder only five pounds frequently, though she could occasionally lift 15 pounds if she used both hands. Finding that the employee could not, with these restrictions, perform the essential functions of her job, it fired her in August 2013.
Rehired. In March 2015, she received a phone call from a former supervisor, asking her to come back as a handler and promising “off the books” that after three weeks, she would be promoted again to courier. She accepted the job, claiming that her doctor had amended her medical restrictions and she could now lift up to 75 pounds to her waist frequently.
Fired again. For her first three weeks, there were no complaints regarding her performance. After another week, however, she received a letter from a human capital advisor for FedEx who stated that she had been complaining to management about her shoulder (which she hadn’t) and asked for an updated list of medical restrictions. After receiving her new restrictions, FedEx determined that she was incapable of performing the essential functions of a handler. Although she was told she could seek accommodation or apply for another job, she was unable to do either and she was again discharged.
Lower court proceedings. She then sued under the ADA and the district court granted summary judgment for FedEx. Although it found a genuine dispute whether lifting a 75-pound package over the waist or head was an “essential function” of the handler position, the dispute was immaterial because she provided no evidence from which to infer that she could perform the essential functions of the job without exceeding her medical restrictions.
Essential function? On appeal, the court noted that although FedEx had argued that a handler must be able to lift a 75-pound package overhead, the job description said only that a handler had to lift up to 75 pounds “without any hint of a height.” In addition, two couriers testified that no employee would ever lift 75 pounds overhead. However, said the court, “that a handler need not lift 75 pounds overhead does not show that someone who can lift only 15 pounds overhead is qualified to be a handler. There are 60 pounds of possibilities in between.” Although the court acknowledged that FedEx’s position had shifted over the course of the litigation, it consistently argued “that a handler needs to lift packages weighing up to 75 pounds over the waist and overhead” and the parties agreed that lifting packages weighing up to 75 pounds and lifting packages over the waist and overhead were essential job functions.
Thus, said the court, with those functions established, it was the employee’s burden to show that she could perform those functions. Relying on pretext, she argued that the first time FedEx fired her, it said only that she needed to lift 75 pounds. It wasn’t until the second time that it claimed it had to be over the waist and overhead. She also pointed to inconsistences in witness statements regarding how the human capital advisor learned of her restrictions and his uncorroborated statement that she had complained about her shoulder to supervisors. This, however, was not enough to create a fact dispute as to whether she was a qualified employee, said the court, as this did not establish the weight a handler had to lift or confirm it was within her capabilities.
Murky. While the evidence was “underdeveloped, murky, and disputed,” it was undisputed that the average package going through the facility weighed 15 pounds. “Combining this average with [the employee’s] medical restrictions means she was prohibited from ever lifting an above-average-weight package over her shoulders, and she could only occasionally lift some of them above her waist.” Moreover, the court observed, she could face obstacles with packages weighing less than 15 pounds as she could lift five pounds above her shoulders with only “limited frequency.”
Not every day is normal. Noting her testimony that on her first day, she lifted 30 pound packages to her shoulder and a courier’s testimony that handlers had to lift 15-pound packages above their shoulders daily, the court pointed out that the employee would “butt right up against the edges of her restrictions on a normal day” and not every day is normal as she could not predict the size, weight, or placement of packages that might be in a container or truck. Explaining that even the capacity to respond to rare events can be an essential job function, the court found this especially true here as the employee was the only hander at the facility where she worked and she was required to be able to lift packages weighing up to 75 pounds independently. Accordingly, the district court “rightly recognized that having a second employee to assist when the work exceeded her capabilities was not a reasonable accommodation as a matter of law.”
Three weeks. Nor, said the court, were her three weeks as a handler “particularly probative” of whether she was a qualified individual. Because she failed to raise a triable fact issue on this issue, her discrimination claim failed as a matter of law.
Retaliation. Turning to the employee’s retaliation claim, while she objected to the district court’s reasoning that over a year had passed between her complaints and her second discharge, arguing that the court should ignore the period she was unemployed, the court found that “the inevitable inference is that the second dismissal was FedEx following through with the first, which here cannot be retaliatory since it occurred before any protected activities.” Accordingly, summary judgment was affirmed at to this claim as well.
Dissent. Judge Hamilton, dissenting, argued that the majority erred “by flipping the burden of production on essential functions under the ADA.” While, in his opinion, the employee “destroyed FedEx’s original and exaggerated claims about the essential functions of the job,” the majority affirmed summary judgment against her because she “did not herself prove the details of the job’s essential functions in terms of the proportion of packages of which weights needed to be lifted above the waist and shoulders. I have not seen an ADA case before where the employer did not come forward with evidence needed to establish the essential functions of the job. The majority errs by holding this absence of evidence against the plaintiff.”
Employees, the dissent argued, should not bear the burden of producing evidence of what the essential functions are as that information is more readily available to the employer. “That’s why our colleagues in a least four circuits impose on the employer at least the burden of production on the issue of a job’s essential functions.” And had the burden of production been properly assigned here, “the proper resolution of this case is clear” as the employee refuted as false FedEx’s version of the essential job functions and presented evidence that she could do the job. On this record, the dissent asserted, “the majority cannot pin down what the FedEx job requires other than to say vaguely that it entails ‘lifting less than 75 pounds but more than [the employee’s] limitations,’ and to speculate that [she] would ‘inevitably’ encounter packages beyond her lifting restrictions.”
No guidance. In the majority’s view, Judge Hamilton continued, an employer does not need to define essential functions with any specificity but can instead state the function at the highest level of generality, leaving it to the plaintiff to establish the specifics of the job before showing she can do it. “Evidence about an essential function must provide meaningful and specific guidance about what the job entails. Without such information, the essential function provides no useful guidance.”
“Even after this decision,” Judge Hamilton wrote, “I expect that few employers in ADA cases will be tempted to choose the risky strategy rewarded here: first propose an unrealistic essential function and then, after the plaintiff demolishes it, hope that courts will put the burden on the plaintiff to offer a different and detailed account of the essential functions of a job she had been performing successfully—all after discovery has concluded.”
Inevitable. As to the majority’s assertion that the employee “was inevitably going to run into a package or string of packages in positions and at weights beyond her limited capabilities,” Judge Hamilton contended that this “highlights another troubling implication for future cases. The logic of the majority opinion suggests that an employer can establish that an employee is not a qualified individual by showing that an individual with a disability works within her limits rather than beyond them. This is perverse. Under this logic, an employee who can do the job and has done the job could be removed based on mere speculation.”
Retaliation claim. As to the employee’s retaliation claim, the dissent pointed out that the employee offered evidence the decisionmakers in her second termination not only knew about her earlier protected activity, they took that into account in deciding what to do with her in 2015. There was also evidence they retaliated against her at the very first opportunity to do so. Thus, Judge Hamilton would have reversed summary judgment on this claim as well.
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