Heavy lifting was essential function of AutoZone parts sales job; EEOC can't overturn jury verdict
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Thursday, January 7, 2016

Heavy lifting was essential function of AutoZone parts sales job; EEOC can't overturn jury verdict

By Joy P. Waltemath, J.D. Substantial evidence supported a jury verdict that heavy lifting was an essential function of a parts sales manager’s job, and accordingly, the Seventh Circuit would not grant a new trial to the EEOC, which had claimed that when AutoZone fired an employee because it could not accommodate her permanent 15-pound lifting restriction, it violated the ADA (EEOC v. AutoZone, Inc., January 4, 2016, Bauer, W.). Hired in 2005 and promoted in 2007, the parts sales manager (PSM) injured her shoulder at work in 2007, and for two years AutoZone accommodated her work restrictions. But in 2009 when her physician made a lifting restriction for anything over 15 pounds permanent, AutoZone fired her, reasoning it was unable to accommodate her permanent restriction. The EEOC alleged that AutoZone failed to accommodate the employee’s lifting restriction and that firing her constituted disability discrimination. After a five-day trial, the jury returned a verdict in favor of AutoZone, finding in a special verdict that the employee was not a qualified individual. Although the EEOC moved for a new trial, it was denied. Essential function. On appeal, the EEOC argued that the verdict was against the manifest weight of the evidence and that heavy lifting was a marginal, as opposed to essential, function of the PSM job. Disagreeing, the Seventh Circuit cited testimony from several former PSMs testified that the PSM job included lifting and carrying parts, including items brought in by customers, at least 30-40 times per day; that lifting was a “regular part” of the job; and that retrieving items from the store, holding them for the customer to inspect, and carrying them to the customer’s car, was commonly required. Parts could weighing substantially more than 15 pounds, including car batteries (25 to 75 pounds), cases of antifreeze and motor oil (30 pounds), and brakes, rotors, brake drums, some struts, and radiators. Occasionally all products (which each could weigh over 40 pounds) had to be removed from the shelves, the shelves rearranged, and the products re-stacked. Truck days, occurring weekly, involved unloading items from delivery trucks in order to re-stock the store and required moving both light and heavy items. PSMs were also responsible for handling daily “hub deliveries,” which could also involve lifting heavy items. Written job description. The PSM position’s written job description stated that the position required “constantly” carrying items up to 50 pounds, but “usually 10 to 20 pounds” and “frequently” lifting items up to 75 pounds from floor to waist and up to 25 pounds horizontally. Two former PSMs testified that the written job description accurately reflected the physical requirements and tasks of the PSM. From this substantial trial evidence, a rational jury could have concluded that heavy lifting was a fundamental essential function of the PSM position, rather than merely a marginal function, which the employee could not performing with her 15-pound right arm lifting restriction. The verdict was not against the manifest weight of the evidence. The fact that a part-time employee (who AutoZone said was in a different position) had a paralyzed arm yet was not “unqualified” did not mean the employee here should be deemed a qualified individual, reasoned the appeals court. That employee had no official lifting restriction; plus, he lifted heavy items with his other arm. In any event, there was still sufficient record evidence to support the jury’s verdict, and while it might be inconsistent for AutoZone to find that he was qualified but she was not, that was not enough to set aside the jury’s verdict. Jury instruction. Nor was the EEOC successful in arguing that the district court’s denial of its proposed “team concept” jury instruction meant the jury received an “incomplete and misleading” statement of law, which confused the jury and prejudiced the EEOC. The agency relied exclusively on Miller v. Illinois Department of Transportation, a Seventh Circuit decision that involved a member of six-person bridge crew responsible for a wide variety of tasks whose members were each informally accommodated by their employer because it was the “normal course for individual members of the bridge crew to substitute and reassign tasks among themselves according to individual abilities, preferences, and limitations.” In that case, the court said a reasonable jury could find that “working at heights … was not an essential function for [the plaintiff] as an individual member of the bridge crew.” But the Seventh Circuit found the case here factually distinct, and it would not buy the EEOC’s argument that because AutoZone promoted cooperation and teamwork, and used teamwork as one criterion for evaluating its employees, the EEOC’s “team concept” instruction should have been admitted. AutoZone did not have a distribution of labor system in which the “normal course” was for the PSM to substitute and reassign discrete tasks involving lifting heavy items and, in exchange, other employees did not do discrete tasks that they were unable to do. Finding the case more factually analogous to cases in which the proposed accommodation was requiring someone else to do the lifting, the court found that accommodation not reasonable because it essentially delegated the PSM position to another employee. Instead, the appeals court characterized the EEOC’s proposed team concept instruction as an attempt to have the jury draw an inference that heavy lifting was not an essential function because coworkers could lift items that the PSM could not. Although the district court denied the instruction, it allowed the EEOC to argue its team concept theory to the jury during closing arguments—yet the EEOC chose not to present the team concept argument. Under those circumstances, the EEOC could not claim that it was prejudiced by the district court’s refusal to admit its proposed jury instruction.

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