Kotaska v. Fed. Express Corp.

966 F.3d 624

Janet KOTASKA, Plaintiff-Appellant,

v.FEDERAL EXPRESS CORPORATION, Defendant-Appellee.

No. 19-2730

United States Court of Appeals, Seventh Circuit.

Argued April 13, 2020

Decided July 17, 2020

Rehearing En Banc Denied August 17, 2020

Edward M. Fox, Attorney, Ed Fox & Associates, Ltd., Chicago, IL, for Plaintiff - Appellant

Barak J. Babcock, Attorney, Federal Express Corporation, Legal Department, Memphis, TN, for Defendant - Appellee

Before Sykes, Chief Judge, and Hamilton, and St. Eve, Circuit Judges.

St. Eve, Circuit Judge.

Federal Express Corporation (FedEx) twice fired Janet Kotaska because she could not lift up to 75 pounds. The first time, she was limited to lifting only 60 pounds after a shoulder injury. Eventually, her condition improved so that she could lift 75 pounds to her waist, and a FedEx supervisor rehired her "off the books." Within three weeks, though, FedEx discovered her capabilities above the waist remained severely limited and dismissed her again.

Kotaska contends that this second dismissal was a violation of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101 - 12213. The district court entered summary judgment for FedEx because Kotaska had not shown she was a qualified individual or that the second dismissal was in retaliation for her complaints about the first. Because we agree that Kotaska has not carried her burden, we affirm the judgment.

I

FedEx is a delivery company that employs couriers and handlers at its distribution center in Cary, Illinois. Couriers deliver and pick up packages for FedEx customers. Handlers are tasked with unloading packages from large shipping containers transported to the facility each morning so the couriers can place the packages on their trucks for delivery. In the evening, handlers unload new packages from the trucks and reload the containers. A handler needs to unload at a pace of roughly 1,000 packages per hour and load more than 400 per hour to keep FedEx on its schedule.

The Cary facility accepts packages weighing up to 150 pounds, although it also delivers documents and other small items weighing ounces, leading to an average weight of 15 pounds. For the heaviest packages, FedEx provides tools or has two people work together to move them. Per the job description, though, each handler or courier is expected to lift packages weighing up to 75 pounds by herself.

That an employee must lift up to 75 pounds leaves an obvious question: how high? The job description does not say. The shipping containers could be up to 8' tall, with packages stacked up to the top. Inside the trucks, the shelves could be as high as 4'6" above the floor. Based on these facts, FedEx asserts, and its management testified, that a handler needs to be able to lift a 75-pound package above her shoulders, or even her head. Two couriers attested that they would never lift 75 pounds that high. Instead, they explained, packages that heavy would usually be placed on the floor or lower shelf of the trucks and would not be at the top of a container, crushing those beneath it. Moreover, the handlers would use heavy, sturdy packages as step stools or carefully topple stacks to minimize reaching where possible. The couriers were not asked what weights a handler would need to lift to any given height and so their testimony on that point was vague. One explained that 30-pound packages could be at the top of the container or on the top shelf of the truck. The other said only that he had "probably" lifted a 15-pound package overhead and that placing a 30-pound package at shoulder-height was close to the limit before he worried another employee might have trouble getting it back down.

Kotaska first began working for FedEx in 1998. FedEx hired her as a hybrid courier-handler but soon promoted her to courier. In 2011, however, she slipped on ice while out on delivery and injured her right shoulder.

Six months after Kotaska underwent surgery on her shoulder, her doctor declared that she had reached maximum medical improvement and would continue to have permanent restrictions. She could lift only 60 pounds from the floor to her waist. Between her waist and shoulder, she was limited to 30 pounds occasionally and 15, frequently. Her doctor placed the most stringent restrictions on lifting above her shoulder: only 5 pounds frequently, though she could occasionally lift 15, if she used both hands.

With this information, FedEx notified Kotaska that she appeared unable to perform the essential functions of a courier. It informed her she had 90 days to request accommodation or apply to another position. She applied to a handler position, but FedEx concluded it could not accommodate her, as the job required lifting up to 75 pounds. After FedEx terminated Kotaska's employment in August 2013, she disputed her dismissal through the company's internal procedures.

After her dismissal, Kotaska regularly applied to courier positions with FedEx to no avail. Then, in March 2015, she received a call from Jennifer Charles, the FedEx supervisor who had initially hired her.

Charles said she needed Kotaska to come back as a handler, since she was a reliable employee. Kotaska, however, wanted the courier position and refused, until Charles promised "off the books" and "behind closed doors" that she would be repromoted to courier after three weeks as a handler. (Charles denies this promise.) Kotaska then accepted an offer for the handler job before she even applied.

When she did apply, a few days later, she affirmed that she was capable of "repetitive lifting and lowering of packages that may weigh up to 75 pounds in a fast-paced environment." This was an accurate statement, Kotaska contends, because her doctor had amended her medical restrictions. She could now lift up to 75 pounds to her waist frequently. Her limits above the waist remained as strict as before. She could still lift only 5 pounds overhead, or 15 using two hands, with "limited frequency." Between waist and shoulder, she was still limited to 15 pounds frequently, 30 pounds occasionally.

Kotaska began her handler duties in April 2015 and worked for just under three weeks. During this period, no one complained of her performance, which was by all accounts exemplary. A courier, though, said she asked Kotaska for help with an oversized package, but Kotaska responded that her shoulder prevented her from helping. Kotaska denies this happened and insists that she had no problems.

The courier's story bounced through various levels of management (some of whom knew Kotaska and were already curious whether her injuries had healed) before reaching Brad Fowler, a human capital advisor for FedEx. Concerned, Fowler instructed Charles and the Cary facility's senior manager to accommodate Kotaska temporarily while he investigated how she had been rehired without providing updated medical documentation. The supervisors, however, ignored Fowler's command, as they had no way to accommodate her.

Kotaska worked another week without incident until Fowler wrote her a letter that stated she had been complaining to management about problems with her shoulder (though she had not). Fowler noted her medical restrictions on file and asked Kotaska if she had an update. After receiving her new restrictions a few days later, Fowler determined that Kotaska was still incapable of performing the essential functions of a handler and put her on leave. FedEx again told her she could seek accommodation or apply to another job within 90 days.

She was unsuccessful with both endeavors. Although Kotaska did not ask for accommodation, a committee reviewed whether it could accommodate her anyway. In its decision, it discussed her entire employment history, including her dispute about her prior termination, and concluded that it could not accommodate her. The handler job, according to the committee, required lifting up to 75 pounds over the waist and overhead. She also applied to three courier positions but was not hired.

After exhausting her administrative remedies, Kotaska brought this suit alleging disability discrimination as well as retaliation. She further alleged age and sex discrimination but has abandoned those claims on appeal.

The district court entered summary judgment for FedEx. It acknowledged there was a genuine dispute whether lifting a 75-pound package over the waist or head was an "essential function" of the handler position, but it concluded the dispute was immaterial. Kotaska had provided no evidence from which to infer that she could perform the essential functions of the handler position without exceeding her medical restrictions. She also had no evidence of any causal connection between her internal complaints and her dismissal. After unsuccessfully moving for reconsideration, Kotaska appealed.

II

We review the entry of summary judgment de novo, considering the evidence in the light most favorable to Kotaska, the nonmovant. See Bilinsky v. Am. Airlines, Inc., 928 F.3d 565, 569 (7th Cir. 2019). Under the ADA, a covered employer is prohibited from "discriminat[ing] against a qualified individual on the basis of disability." 42 U.S.C. § 12112(a). A qualified individual is one who "can perform the essential functions of the employment position" either "with or without reasonable accommodation." Id. § 12111(8). At summary judgment, it is the plaintiff's burden to provide evidence such that a rational jury could find her to be a qualified individual. Wheatley v. Factory Card & Party Outlet, 826 F.3d 412, 418 (7th Cir. 2016) ; Miller v. Ill. Dep't of Corr., 107 F.3d 483, 484 (7th Cir. 1997).

Whether a function is essential is a question of fact, not law. Brown v. Smith, 827 F.3d 609, 613 (7th Cir. 2016). We are obligated to consider the employer's judgment and to consider a job description as evidence of the job's essential functions. 42 U.S.C. § 12111(8) ; Shell v. Smith, 789 F.3d 715, 718 (7th Cir. 2015). Still, the employer's judgment is not absolute. Miller v. Ill. Dep't of Transp....