In the
United States Court of Appeals
For the Seventh Circuit
No. 15‐1753
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Plaintiff‐Appellant,
v.
AUTOZONE, INCORPORATED, et al.,
Defendants‐Appellees.
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:12‐cv‐00303‐WEC — William E. Callahan, Jr., Magistrate Judge.
ARGUED SEPTEMBER 30, 2015 — DECIDED JANUARY 4, 2016
Before BAUER, RIPPLE, and ROVNER, Circuit Judges.
BAUER, Circuit Judge. Plaintiff‐appellant, the Equal Employ‐
ment Opportunity Commission (“EEOC”), filed suit against
defendant‐appellee, AutoZone, Incorporated (“AutoZone”),
for dismissing Margaret Zych (“Zych”) from AutoZone’s
Cudahy, Wisconsin, location in violation of the Americans with
Disabilities Act, 42 U.S.C. § 12101 et seq. (“ADA”). Specifically,
the EEOC alleged that AutoZone failed to accommodate Zych’s
2 No. 15‐1753
lifting restriction and that Zych’s termination constituted
discrimination on account of her disability. After a five‐day
trial, the jury returned a verdict in favor of AutoZone, finding
that Zych was not a qualified individual with a disability or a
record of disability. The EEOC filed a motion for a new trial,
which the district court denied. The EEOC appealed. For the
reasons that follow, we affirm the district court.
I. BACKGROUND
AutoZone sells automobile parts in retail stores located
throughout the United States. AutoZone has a store located in
Cudahy, Wisconsin, which has a minimum staffing require‐
ment of two to three employees in the store at all times. In
2005, Zych began working at the Cudahy, Wisconsin,
AutoZone. In 2007, she was promoted to Parts Sales Manager
(“PSM”).
In July 2007, Zych injured her right shoulder while at work.
She underwent two years of physical therapy and treatment for
her shoulder. During those two years, she had several work
restrictions, which AutoZone accommodated. In June 2009,
Zych’s doctor permanently restricted her from lifting anything
with her right arm that weighed over 15 pounds. About one
month later, AutoZone discharged Zych because it was unable
to accommodate her permanent restriction.
Zych filed a charge with the EEOC, and on March 28, 2012,
the EEOC filed suit against AutoZone claiming that it failed to
accommodate Zych’s lifting restriction and illegally terminated
her employment. A jury trial was held from November 17‐21,
2014. At the close of AutoZone’s evidence, the EEOC moved
for judgment as a matter of law on the issue of whether Zych
No. 15‐1753 3
was “disabled” under the meaning of the ADA. The court
denied the motion.
Before the case was submitted to the jury, the EEOC offered
a proposed “team concept” jury instruction regarding how to
determine the essential functions of a job position. The pro‐
posed team concept instruction stated:
In team working environments, where team mem‐
bers per‐form tasks according to their capacities and
abilities, job functions that are not required of all
team members are not essential functions. Where
there is no required manner in which employees are
to divide the labor, the fact that one team member
may not be able to do all the tasks assigned to the
team does not mean that person is unable to per‐
form his or her essential functions.
The district court rejected the proposed instruction because
it found the instant matter was factually distinguishable from
prior cases dealing with the EEOC’s proposed team concept.
The judge said that the EEOC could argue this theory to the
jury in closing arguments. The EEOC did not do so; it argued
that the essential function of the PSM position was “customer
service,” and that lifting was just a “marginal function.”
The jury returned a special verdict finding that the EEOC
failed to prove by a preponderance of the evidence that Zych
was a “qualified individual with a disability or a record of
disability at the time that her employment was terminated.”
Following the verdict, the EEOC moved for a new trial. In
support of its motion, the EEOC argued: (1) the verdict was
against the manifest weight of the evidence; (2) the medical
4 No. 15‐1753
evidence established that Zych was disabled as a matter of law;
and (3) the jury instructions confused the jury. The district
court denied the motion.
II. DISCUSSION
The EEOC now appeals the district court’s denial of its
motion for a new trial. We address each of the issues raised by
the EEOC in turn.
A. Sufficiency of the Evidence Supporting the Jury
Verdict
We apply the “abuse of discretion” standard of review to
examine the district court’s denial of the EEOC’s motion for a
new trial on the basis that the verdict was against the manifest
weight of the evidence. Lewis v. City of Chicago Police Dep’t, 590
F.3d 427, 444 (7th Cir. 2009) (citation omitted). We will only set
aside the verdict and remand for a new trial if “no rational jury
could have rendered” the verdict. Smith v. Wilson, 705 F.3d 674,
677–78 (7th Cir. 2013) (citations omitted). This analysis involves
examining the evidence in the light most favorable to
AutoZone, while “leaving issues of credibility and weight of
evidence to the jury.” King v. Harrington, 447 F.3d 531, 534 (7th
Cir. 2006) (citation omitted).
To establish a prima facie failure to accommodate claim
under the ADA, the EEOC had to show that: (1) Zych was a
qualified individual with a disability; (2) AutoZone was aware
of her disability; and (3) AutoZone failed to reasonably
accommodate her disability. See James v. Hyatt Regency Chicago,
707 F.3d 775, 782 (7th Cir. 2013) (citation and quotation
omitted). In this case, the jury found that the EEOC failed to
No. 15‐1753 5
prove the first element, so the issue is whether a rational jury
could have found that Zych was not a qualified individual
with a disability.
Under the ADA, a “qualified individual” is someone who,
“with or without reasonable accommodation, can perform the
essential functions of the employment position” at issue. 42
U.S.C. § 12111(8) (emphasis added). In addition, EEOC
regulations clarify that essential functions are the “fundamen‐
tal job duties” of the position, as opposed to the “marginal
functions.” 29 C.F.R. § 1630.2(n)(1). Further, the employer’s
judgment, the amount of time performing the function at issue,
the work experience of prior employees in the same position,
and written job descriptions are among the relevant evidence
that can be considered to determine the essential functions of
a position. 29 C.F.R. § 1630.2(n)(3).
Here, Zych was unable to lift more than 15 pounds with her
right arm. Thus, if the evidence at trial showed that heavy
lifting was a fundamental duty of the PSM position, as op‐
posed to a marginal function, then a rational jury could have
found that Zych was not a qualified individual with a disabil‐
ity.
At trial, AutoZone presented testimony from former PSMs
at the Cudahy, Wisconsin, location regarding the lifting
requirements of a PSM. For example, Angel Maldonado
(“Maldonado”) testified that the PSM job functions included
lifting and moving the items at the store, as well as the items
brought in by the customers, at least 30‐40 times per day.
Maldonado agreed that lifting the products sold at the store
was a “regular part” of the job, and that when he initially
6 No. 15‐1753
received the PSM position, he understood that it involved
“heavy lifting.” Tabari Stewart (“Stewart”), another former
PSM at the Cudahy, Wisconsin, location, testified that it was a
regular aspect of customer assistance to retrieve an item from
the store, hold it for the customer to inspect, and even carry the
item to the customer’s car. In addition, the testimony at trial
established that the items at the store could weigh substantially
more than 15 pounds. For example, car batteries could weigh
anywhere from 25 to 75 pounds. Cases of antifreeze and motor
oil weighed around 30 pounds. AutoZone also established an
itemized list of other products within the store that weighed
over 15 pounds, such as brakes, rotors, brake drums, ready‐
mount struts, and radiators.
The testimony also brought out that the PSM position
involved performing customer service functions that required
heavy lifting, such as charging customers’ batteries, installing
car batteries, and recycling customers’ oil (which could weigh
up to 20‐30 pounds). The PSM had to organize “planograms”
as well. Planograms involve the way that the products are
arranged on the shelves throughout the store. Stewart testified
that the PSM sometimes had to conduct a “full reset”
planogram, in which all of the products (which could weigh
over 40 pounds each) had to be removed from the shelves, the
shelves re‐arranged, and then the products re‐stacked.
AutoZone further produced evidence regarding “truck
days.” Truck days occurred once a week, and involved
unloading items from delivery trucks in order to re‐stock the
supply at the store. Truck days involved moving both light and
heavy items, but even the light items could be heavier if they
were stored in “totes.” Stewart testified that truck days
No. 15‐1753 7
involved “nothing but lifting,” and that the PSM was expected
to lift along with all of the other AutoZone employees. In
addition to truck days, the PSM position was also responsible
for handling daily “hub deliveries,” which could also involve
heavy items that sometimes weighed over 20 pounds.
Finally, AutoZone introduced a written job description
regarding the physical functions involved with the PSM
position. Under “Arm Requirements,” it states that the position
requires “constantly” carrying items up to 50 pounds, but
“usually 10 to 20 pounds.” It also states the PSM must “fre‐
quently” lift items up to 75 pounds from floor to waist, and up
to 25 pounds horizontally. In addition, the position involves
“constantly” reaching or working with arms extended or bent,
and “frequently” twisting or rotating. Stewart testified that the
written job description accurately reflected the physical
requirements and tasks of the PSM, as did Maldonado who
agreed that it included the key duties of the position. While
Zych acknowledged that the written job description repre‐
sented the tasks that she performed as a PSM, she disagreed
with the phrase “constantly,” and stated that the position also
involved paperwork.
From the substantial evidence presented at trial, a rational
jury could have concluded that heavy lifting was a fundamen‐
tal duty of the PSM position, rather than merely a marginal
function. Since Zych could not lift more than 15 pounds with
her right arm, there was sufficient evidence for a rational jury
to find that she could not perform the essential functions of the
PSM position. Thus, a rational jury could find that Zych was
not a qualified individual with a disability. Therefore, the
verdict was not against the manifest weight of the evidence
8 No. 15‐1753
and the district court did not abuse its discretion in denying
the motion for a new trial.1
Also, the EEOC points out that Barry Kurta (“Kurta”),
another employee at the Cudahy, Wisconsin, AutoZone, had
a paralyzed left arm and could only lift objects with his right
arm. The EEOC argues that if Zych is not qualified because of
her lifting restriction with her right arm, then Kurta should be
deemed unqualified as well, and the fact that he is not means
that Zych should be deemed a qualified individual with a
disability. AutoZone responds that Kurta is a “red herring”; he
was a part‐time employee with a different position than Zych,
which meant that he would never be alone in the store.
Further, Kurta had no official lifting restriction, although there
was testimony that he needed help lifting objects that were too
awkwardly shaped to carry with one arm. Kurta also stated
that he did not do heavy lifting when he waited on customers.
But, there was testimony that he could lift heavy items such as
rotors and car batteries with one arm, and he participated in
lifting on truck days. In contrast, Maldonado testified that he
did not see Zych lift rotors or other heavy items with one arm.
As discussed above, regardless of Kurta’s status, there is
sufficient evidence in the record to support the jury’s verdict
that Zych was not a qualified individual with a disability. “Our
1
Since we are upholding the jury’s finding that Zych was not a “qualified
individual with a disability,” the issue of whether Zych was disabled as a
matter of law is moot and we need not discuss it. See Majors v. Gen. Elec. Co.,
714 F.3d 527, 533 (7th Cir. 2013) (“We don’t need to decide whether [the
plaintiff] has a disability, though, because there was no issue of fact as to
whether [she] was a qualified individual”).
No. 15‐1753 9
appellate function is completed when we are convinced that
there is an evidentiary basis in the record for the jury’s verdict
… ‘it [is] immaterial that the court might draw a contrary
inference or feel that another conclusion is more reasonable.’”
Rogers v. ACF Indus., Inc., 774 F.3d 814, 819 (7th Cir. 1985)
(citing Lavender v. Kurn, 327 U.S. 645, 652–54 (1946)). “The fact
that [the EEOC] presented evidence that is inconsistent with
the jury’s verdict does not mean that the verdict should be
reversed.” Lowe v. Consol. Freightways of Del., Inc., 177 F.3d 640,
643 (7th Cir. 1999) (citation omitted). Thus, while it may be
inconsistent for AutoZone to find that Kurta is qualified but
Zych is not, it does not mandate this court to set aside the
jury’s verdict.
B. Denial of Proposed Team Concept Jury Instruction
The EEOC acknowledges that the district court’s jury
instructions for determining an “essential function” of a job
correctly cite the applicable federal regulations. However, the
EEOC argues that the district court’s denial of its proposed
team concept instruction provided the jury with an “incom‐
plete and misleading” statement of the law, which confused
the jury and prejudiced the EEOC. We disagree.
“We review the district court’s refusal to give a jury
instruction only for abuse of discretion.” Rapold v. Baxter Int’l
Inc., 718 F.3d 602, 609 (7th Cir. 2013) (citation omitted). We
examine the jury instructions as a whole, and only reverse and
remand for a new trial if the instructions did not sufficiently
inform the jury of the applicable law and the instructions
prejudiced the EEOC. Id. (citations omitted). “Even if we
believe that the jury was confused or misled, we would need
10 No. 15‐1753
to find that the [EEOC] [was] prejudiced before ordering a new
trial.” Jimenez v. City of Chicago, 732 F.3d 710, 717 (7th Cir. 2013)
(citations omitted).
The EEOC relies exclusively on Miller v. Illinois Department
of Transportation, 643 F.3d 190 (7th Cir. 2011), to support its
argument that the district court had to allow its proposed jury
instruction. We agree with the district court that this case is
factually distinguishable from Miller.
In Miller, the plaintiff was a member of six‐person bridge
crew for the Illinois Department of Transportation (“IDOT”),
which was responsible for a wide variety of tasks. Miller, 643
F.3d at 192. Once the plaintiff began his employment with
IDOT, he informed his team leader that had a fear of heights
and that there were a few discrete tasks (such as “walk a
bridge beam”) that he could not do. Id. IDOT informally
accommodated the plaintiff by having another member of the
bridge crew perform the duties involving heights. Id. at 193.
IDOT also informally accommodated other members of the
bridge crew who could not perform other discrete tasks in a
similar manner. Id. These included one member who could not
weld, one who would not ride in the “snooper bucket,” and
another who would not spray bridges or mow the yards due
to his allergies. Id. The court found that “[o]n this record, 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.” Id. at 198. The court also distinguished
prior cases in which reassigning an essential function to
another co‐worker did not constitute a reasonable accommoda‐
tion, and stated that “[w]hat sets this case apart from those
earlier cases is [plaintiff’s] evidence that it was in fact the
No. 15‐1753 11
normal course for individual members of the bridge crew to
substitute and reassign tasks among themselves according to
individual abilities, preferences, and limitations.” Id. at
199–200.
The EEOC argues that its proposed team concept instruc‐
tion was necessary because the staffing at the Cudahy, Wiscon‐
sin, AutoZone store presents a similar team work environment
as the IDOT bridge crew in Miller. The EEOC supports this
comparison by citing a passage from the AutoZone employee
handbook that states that employees should “ask for help
when needed” if lifting heavy objects. In addition, the EEOC
notes that employees at AutoZone were evaluated based on
“teamwork” and whether the employee “helps the team
succeed.” The EEOC also relies on testimony from multiple
AutoZone employees who acknowledged helping Zych (and
Kurta) lift heavy objects, as well as Zych’s own testimony that
before her injury other co‐workers had occasionally helped her
or “other women” lift heavy items that she or the other women
could not carry by themselves. Finally, the EEOC notes that
during truck days, Zych testified that she would often do the
scheduling and other paperwork that her co‐workers in the
PSM position did not know how to do, and in exchange those
co‐workers would do Zych’s lifting instead.
We disagree with the EEOC’s comparison between this case
and Miller. First, since it is common practice for employers to
promote cooperation and teamwork amongst their employees,
the fact that AutoZone uses teamwork as a criteria for evaluat‐
ing its employees did not mandate the district court to admit
the EEOC’s proposed jury instruction. Second, the evidence
presented does not show a distribution of labor system in
12 No. 15‐1753
which the “normal course” was for Zych to substitute and
reassign discrete tasks involving lifting certain heavy items and
in exchange other employees did not do discrete tasks that they
were unable to do. Rather, the record indicates that if Zych, or
anyone else, needed help lifting something, someone would
help them, which both the employee guidelines and common
courtesy dictate.
This case is more factually analogous to cases involving
lifting restrictions in which the proposed accommodation was
requiring someone else to do the lifting for the employee at
issue. Here, as in those cases, such an accommodation is not
reasonable because it is essentially delegating the PSM position
to another employee. See James, 707 F.3d at 778, 783 (finding it
was not a reasonable accommodation for a banquet steward at
a hotel with a lifting restriction to delegate lifting objects
involved with maintaining the banquet hall and transporting
food and equipment to another employee at the hotel); see also
Majors, 714 F.3d at 531, 534 (employee with lifting restriction
was not qualified for position that involved “intermittent
movement of heavy objects,” and having another employee do
the lifting was not a reasonable accommodation).
Furthermore, “a judge need not deliver instructions
describing all valid legal principles.” Gehring v. Case Corp., 43
F.3d 340, 343 (7th Cir. 1994). “Rather than describing each
possible inference of the evidence, the judge may and usually
should leave the subject of the interpretation of the evidence to
the argument of counsel.” Hasham v. Cal. State Bd. of Equaliza‐
tion, 200 F.3d 1035, 1051 (7th Cir. 2000) (citation omitted). In
this case, the EEOC’s proposed team concept instruction was
an attempt to have the jury draw an inference that heavy lifting
No. 15‐1753 13
was not an essential function of the PSM position because
Zych’s co‐workers could lift the items that Zych was unable to.
The district court was not obligated to promulgate such an
inference within the jury instructions. Rather, it was proper for
the district court to instead allow the EEOC to make its team
concept argument to the jury in its closing arguments.
Finally, the district court’s denial of the proposed instruc‐
tion did not prejudice the EEOC. We determine whether the
EEOC was prejudiced by examining “the instructions as a
whole, along with all of the evidence and arguments, to deter‐
mine whether the jury was misinformed about the applicable
law.” United States v. White, 443 F.3d 582, 587–88 (7th Cir. 2006)
(emphasis added) (quotation and citation omitted). Although
the district court denied the instruction, the judge allowed the
EEOC to argue its team concept theory to the jury during its
closing arguments. Yet, the EEOC abandoned this theory, and
instead claimed during closing arguments that heavy lifting
was a “marginal function” of the PSM position. Since the
EEOC decided not to present the team concept argument,
despite the district court expressly stating that it could, the
EEOC cannot now claim that it was prejudiced by the district
court’s refusal to admit its proposed jury instruction.2
2
The EEOC also notes that during deliberations the jury asked for
permission to express its views on AutoZone’s conduct. The EEOC
interprets this request to mean that even though the jury believed that
heavy lifting was an essential function, the jury wanted AutoZone to allow
Zych “to continue receiving help.” The EEOC claims that this indicates that
if the proposed jury instruction was admitted, it would have led the jury to
vote differently. Therefore, the EEOC claims it was prejudiced. This
(continued...)
14 No. 15‐1753
III. CONCLUSION
For the foregoing reasons, the judgment of the district court
is AFFIRMED.
2
(...continued)
argument is pure speculation, and is insufficient to invalidate the jury’s
verdict.