Richardson v. Friendly Ice Cream Corp.

United States Court of Appeals
For the First Circuit

No. 08-2423

KATHARINE RICHARDSON,

Plaintiff, Appellant,

v.

FRIENDLY ICE CREAM CORPORATION,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. George Z. Singal, U.S. District Judge]

Before

Lynch, Chief Judge,
Ebel* and Lipez, Circuit Judges.

Julie D. Farr, with whom Charles E. Gilbert was on brief, for
appellant.
Christopher T. Vrountas for appellee.

February 5, 2010

*
Of the Tenth Circuit, sitting by designation.
 LIPEZ, Circuit Judge. Appellant Katharine Richardson

alleges that her former employer, appellee Friendly Ice Cream

Corporation ("Friendly's"), discriminated against her in violation

of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101-

12213, and the Maine Human Rights Act ("MHRA"), 5 Me. Rev. Stat.

§§ 4551-4634, by failing to accommodate her disability and by

terminating her employment because of that disability. The

district court entered summary judgment for Friendly's, holding

that Richardson is not covered by the ADA or the MHRA because she

is not capable of performing the essential functions of her

position, with or without a reasonable accommodation, and hence is

not a "qualified individual." We affirm.

I.

Friendly's, a Massachusetts-based restaurant chain, hired

Richardson as an assistant manager of its Ellsworth, Maine store in

2000. Richardson worked alongside one other assistant manager

during the period of her employment. Both assistant managers

reported to Tina Emery, the general manager of the Ellsworth

restaurant, who in turn reported to Todd Mosher, the district

manager. Between 2000 and 2006, Richardson performed both

administrative and manual tasks as part of her job. Among other

duties, she regularly interacted with customers, supervised other

employees and inspected their work, carried plates to customers,

ordered new supplies, unloaded new supplies as they were delivered,

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operated the grill and the deep-frying machine, and cleaned the

restaurant. Because the general manager and the other assistant

manager preferred to work the opening and closing shifts,

Richardson typically worked the mid-day shift, which was the least

physically demanding of the three shifts.

In January 2006, Richardson began to experience severe

pain in her right shoulder. She claims, and Friendly's does not

dispute, that the pain was caused by the manual tasks that she had

been performing at work, such as working at the grill and scooping

ice cream. When she reported her injury to Friendly's that same

month, the company sent her to see a physician at Mednow Clinic in

Ellsworth. The physician diagnosed Richardson's pain as shoulder

impingement syndrome, prescribed an anti-inflammatory medication,

and recommended that Richardson discontinue all grill work and

other tasks that involved lifting objects heavier than ten pounds

with her right arm.

Between January 2006 and September 2006, Richardson

continued to work at Friendly's without missing any days. Although

the pain in her shoulder impeded the full use of her right arm, she

claims that she was able to modify her work behavior during that

period to enable her to perform most of the tasks that she had

previously performed. For example, when cooking French fries in

the deep-frying machine, she would cook small quantities at a time

and would remove the cooked product with tongs rather than by

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lifting the entire basket as she formerly did. She admits that she

was unable to perform certain tasks such as mopping the floor and

lifting heavy bags of trash, but she says that there were typically

other employees on duty who were able to perform those tasks. She

adds that she had been reprimanded before her injury for failing to

delegate manual tasks to other restaurant employees.

In September 2006, Richardson took a leave of absence to

undergo shoulder surgery. Following the surgery, Richardson

continued to experience intense pain in her shoulder and was unable

to return to work immediately. At that point, Friendly's workers'

compensation administrator retained a nurse case manager, Debra

Dwyer, to facilitate Richardson's recovery and return to work.

Dwyer was in regular contact with Emery, the general manager,

during the period after Richardson's surgery. Emery testified at

her deposition that she and Dwyer discussed Richardson's

anticipated return date, Richardson's anticipated medical

restrictions, and certain accommodations and transitional job

duties that might have enabled Richardson to work within her

medical restrictions.

Based on Richardson's post-operative medical evaluations,

Emery and Dwyer initially assumed that Richardson would be able to

return to work near the end of October 2006. Richardson did not

improve as expected, however. Her surgeon concluded that she had

"no work capacity," and Richardson remained on leave throughout

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October and November. On December 7, the surgeon estimated that

Richardson would be able to return to work on January 8, 2007.

Dwyer gave that projected return date to Emery, who then conveyed

the information to district manager Mosher.

Three days later, Mosher sent the following e-mail to

Theresa Marino, a human resources manager at Friendly's corporate

headquarters:

Theresa -

I'm sorry -- but I need your help. Can you
give us some guidance on Kathy Richardson? As
you know she is the Manager from Ellsworth
#1241 that has been out with a shoulder injury
from lifting French fry baskets.

She is supposed to be released the first week
of Jan. after a second opinion last week
revealed the opposite of what the original
physician said.

I would prefer to not bring her back if at all
possible (as she is just going to do the same
thing in '07).

Can you help guide us on this?

P.S. Please don't cc the restaurant on any of
this -- as Tina Emery (GM) is on vacation.

Thanks!

Diana Beach, a representative from Friendly's compensation and

benefits department, responded that same day:

She has reached the end of her FML [family and
medical leave] with Friendly as of 12/3/06
which means that our obligation of leaving her
job open has ended. Due to the fact that she
is out on WC [workers' compensation], you may
want to check with the legal department to see

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 if you have to bring her back. I will be
sending her out COBRA for her medical/dental
insurance.

There is some dispute about the sequence of events that

followed this exchange of e-mails. Friendly's claims that it

decided to terminate Richardson's employment on December 14, 2006

because she had remained on leave beyond the time reserved for her

by the Family and Medical Leave Act, 29 U.S.C. §§ 2601-2654. Diana

Beach sent Richardson a letter that day notifying Richardson of her

right to continue her group insurance coverage. Richardson

acknowledges receiving the letter but says that she did not

interpret it to be a notice of termination. When she questioned

Emery and Beach about the letter, neither explained that she had

been terminated. Dwyer also told Richardson that she and Emery

continued to correspond about Richardson's condition after that

date, giving Richardson the impression that she was still expected

to return to work.

In any case, Richardson's physician finally signed a work

release on January 4, 2007. Although he permitted her to return to

Friendly's, he prohibited her from performing repetitive activity

with her right arm and from lifting objects weighing more than five

pounds. Richardson delivered the release to the Ellsworth

restaurant that same day. Four days later, on January 8, Mosher

telephoned Richardson to notify her that she had been terminated.

According to Richardson, Mosher said: "Because you are still

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disabled and you have gone over your thirteen weeks of family

medical leave, we choose to terminate you."

On January 17, Richardson filed a charge of

discrimination with the Maine Human Rights Commission ("MHRC") and

the Equal Employment Opportunity Commission ("EEOC"). She alleged

in her charge that Friendly's reliance on the Family and Medical

Leave Act was pretextual and that Friendly's discharged her solely

because of her disability. The MHRC issued a right-to-sue letter,

and on October 31, 2007 Richardson filed a complaint in Maine

Superior Court asserting claims against Friendly's and its workers'

compensation administrator for violation of the ADA and the MHRA

and for tortious interference with contract. The defendants then

removed the action to federal court.

Friendly's moved for summary judgment after the close of

discovery, claiming that (1) Richardson was not eligible for relief

under the ADA or MHRA because she had not shown that she was

qualified for her position at the time of her discharge, and

(2) she was terminated in accordance with Friendly's generally

applicable leave policy rather than on the basis of disability.

The motion was referred to a magistrate judge, who recommended that

summary judgment be granted on the first ground. In a brief order,

the district judge approved the magistrate judge's reasoning and

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granted Friendly's motion. Judgment was entered that same day,1

and this appeal followed.

II.

Summary judgment is proper where "the pleadings, the

discovery and disclosure materials on file, and any affidavits show

that there is no genuine issue as to any material fact and that the

movant is entitled to a judgment as a matter of law." Fed. R. Civ.

P. 56(c). We review the district court's grant of summary judgment

de novo, drawing all reasonable inferences in Richardson's favor.

Franklin Memorial Hosp. v. Harvey, 575 F.3d 121, 125 (1st Cir.

2009).

Title I of the ADA prohibits covered entities from

"discriminat[ing] against a qualified individual on the basis of

disability in regard to job application procedures, the hiring,

advancement, or discharge of employees, employee compensation, job

training, and other terms, conditions, and privileges of

employment." 42 U.S.C. § 12112(a).2 Richardson alleges that

Friendly's discriminated against her on the basis of disability

when it discharged her. In order to prevail on that claim at

trial, she must show: (1) that she was disabled within the meaning

1
Richardson voluntarily dismissed her claims against the
workers' compensation administrator, including the claim for
tortious interference with contract.
2
The parties assume that the Maine Human Rights Act is
coextensive with the ADA in all material respects. We do not
question that assumption here.

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of the ADA; (2) that she was qualified for her position; and

(3) that Friendly's discharged her because of her disability.

García-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 646 (1st

Cir. 2000) (citing Criado v. IBM Corp., 145 F.3d 437, 441 (1st Cir.

1998)).

Friendly's has not disputed Richardson's disability

status. It moved for summary judgment on the grounds that

Richardson was not qualified for her position as an assistant

manager and that Friendly's did not discharge her because of her

disability. The district court granted the motion on the first

ground and found it unnecessary to address the second. Richardson

argues on appeal that there is a genuine issue of material fact as

to both issues. Because we agree with the district court that no

reasonable jury could conclude that Richardson was qualified for

her position, we do not address her second argument about

Friendly's motive for terminating her.

To establish that she was qualified, Richardson must

demonstrate, first, that she had the necessary "skill, experience,

education, and other job-related requirements" for the assistant

manager position and, second, that she was able to perform the

"essential functions" of the position "with or without reasonable

accommodation." Mulloy v. Acushnet Co., 460 F.3d 141, 147 (1st

Cir. 2006) (quoting García-Ayala, 212 F.3d at 646). Friendly's

does not suggest that Richardson lacks the basic skill, experience,

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and education for the assistant manager position. We therefore

turn to the second requirement, and our assessment of whether

Richardson could perform the essential functions of the assistant

manager position with or without reasonable accommodation.

A. The Essential Functions of Richardson's Position

To determine whether Richardson was able to perform the

essential functions of her position, it is necessary to identify

those functions. Precision is critical, as the level of generality

at which the essential functions are defined can be outcome

determinative. See, e.g., Gillen v. Fallon Ambulance Serv., Inc.,

283 F.3d 11, 27-28 (1st Cir. 2002); Skerski v. Time Warner Cable

Co., 257 F.3d 273, 280-81 (3d Cir. 2001).

1. Legal Framework

An essential function is, at its most basic level, one

that is "fundamental" to a position rather than "marginal."

Kvorjak v. Maine, 259 F.3d 48, 55 (1st Cir. 2001). The ADA's

implementing regulations elaborate on this idea, listing three

nonexclusive reasons why a job function may be considered

essential: (1) the position exists for the purpose of performing

the function; (2) there are a limited number of employees among

whom responsibility for the function can be distributed; and/or

(3) the function is highly specialized and the incumbent was hired

for his or her expertise or ability to perform it. 29 C.F.R.

§ 1630.2(n)(2); see also EEOC Interpretive Guidance on Title I of

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the ADA, 29 C.F.R. pt. 1630, app., § 1630.2(n) [hereinafter EEOC

Interpretive Guidance] (illustrating the three reasons).3

Within these contours, "the complex question of what

constitutes an essential job function involves fact-sensitive

considerations and must be determined on a case-by-case basis."

Gillen, 283 F.3d at 25. Among the types of evidence bearing on the

analysis are:

[1] The employer's judgment as to which
functions are essential;

[2] Written job descriptions prepared before
advertising or interviewing applicants for
the job;

[3] The amount of time spent on the job
performing the function;

[4] The consequences of not requiring the
incumbent to perform the function;

[5] The terms of a collective bargaining
agreement;

[6] The work experience of past incumbents
in the job; and/or

[7] The current work experience of
incumbents in similar jobs.

3
The EEOC Interpretive Guidance was published as an
appendix to the regulations implementing Title I of the ADA. See
Equal Employment Opportunity for Individuals With Disabilities, 56
Fed. Reg. 35,726, 35,739 (July 26, 1991) (codified at 29 C.F.R. pt.
1630, app.). We have often looked to it in construing the ADA.
See, e.g., Freadman v. Metro. Prop. & Cas. Ins. Co., 484 F.3d 91,
104 (1st Cir. 2007); Grenier v. Cyanamid Plastics, Inc., 70 F.3d
667, 672 (1st Cir. 1995).

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29 C.F.R. § 1630.2(n)(3). It is the employer's burden "to come

forward with some evidence" that a particular function is

essential, Tobin v. Liberty Mut. Ins. Co. ("Tobin I"), 433 F.3d

100, 107 (1st Cir. 2005), but the plaintiff always has the ultimate

burden of proving that she is a qualified individual, Laurin v.

Providence Hosp., 150 F.3d 52, 59 (1st Cir. 1998).

"The purpose of these provisions is not to enable courts

to second-guess legitimate business judgments, but, rather, to

ensure that an employer's asserted requirements are solidly

anchored in the realities of the workplace, not constructed out of

whole cloth." Gillen, 283 F.3d at 25. The ADA expressly provides

that "consideration shall be given to the employer's judgment as to

what functions of a job are essential, and if an employer has

prepared a written description before advertising or interviewing

applicants for the job, this description shall be considered

evidence of the essential functions of the job." 42 U.S.C.

§ 12111(8). Consistent with that directive, "we generally give

substantial weight to the employer's view of job requirements."

Mulloy, 460 F.3d at 147 (quoting Ward v. Mass. Health Research

Inst., Inc., 209 F.3d 29, 34 (1st Cir. 2000)). We have made it

equally clear, however, that "the employer's good-faith view of

what a job entails, though important, is not dispositive." Gillen,

283 F.3d at 25.

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 2. Analysis

Richardson argues that her sole essential function was to

"oversee the operation of the restaurant and ensure that it ran

smoothly." Friendly's disagrees, relying heavily on a written job

description for the assistant manager position as proof that it was

essential for Richardson to be able to perform a number of

predominantly manual tasks as well.

The six-page job description is divided into multiple

sections.4 The first substantive section, labeled "Primary Task,"

provides:

The primary function of this position is to
assist the General Manager with assigned
administrative and operational shift duties,
provide guidance and direction to restaurant
personnel, oversee, direct and assist in
kitchen, dining and take-out operations,
facilitate production and customer service,
ensure safety regulations and quality
standards are maintained and that customer
satisfaction is achieved.

The following section, labeled "Essential Functions," lists

thirteen general categories of job duties. Among other things, it

reiterates that an assistant manager must "[r]un shifts, oversee,

direct and assist in kitchen, dining and take-out operations to

facilitate production and customer service." The remaining

4
Richardson has objected to the job description as
inadmissible hearsay. The district court overruled her objection
on the ground that the job description was properly authenticated
as a business record. See Fed. R. Evid. 803(6). We agree that the
affidavit submitted by Friendly's is adequate for that purpose.
The district court did not err in admitting the job description.

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sections of the job description are significantly more detailed,

listing specific tasks and physical movements that the assistant

manager may be asked to perform.

Without addressing whether each individual task listed in

the written job description is an essential function of the

assistant manager position, we conclude that it was essential for

an assistant manager to "assist in kitchen, dining and take-out

operations to facilitate production and customer service." We

further conclude, on the basis of the overwhelming weight of the

summary judgment evidence, that an assistant manager had to be

capable of performing a broad range of manual tasks in order to

perform that function.

It is undisputed that Richardson was often required to

assist her subordinates in performing their jobs and to fill in for

them as necessary. Richardson admitted as much in her deposition

testimony:

Q: And part of your job was, basically, to
be able to do any of those jobs in the
restaurant that you were trained to do?

A: Yes. I think. Ideally, I'm not -- if
I'm a manager, I am not going to be in
the grill area trying to run the floor
and take care of a customer . . . . I
needed to be able to do everything so
that I could train . . . and that I
could effectively take care of the
restaurant.

Q: Right. And also to fill in when
needed --

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 A: Yes.

Q: -- if you needed [to] fill in, right?
So if you needed to fill in at the
grill, you'd fill in at the grill.

A: Yes.

Q: And if you needed to fill in to help in
the dining room --

A: Yes.

Richardson described in detail the duties she was often required to

perform, which included cooking, cleaning, serving food, and

unloading delivery trucks. Richardson's husband and physician

confirmed in their testimony that her job had a substantial

physical component. Indeed, the very premise of Richardson's

workers' compensation claim was that her injury was caused by the

heavy, repetitive manual tasks that she performed at Friendly's on

a daily basis. All of this evidence indicates that Richardson

spent a substantial amount of time on the job performing manual

tasks around the restaurant. See 29 C.F.R. § 1630.2(n)(3)(iii)

("Evidence that a particular function is essential

includes . . . [t]he amount of time spent on the job performing the

function . . . .").

The written job description also indicates that it was

essential for an assistant manager to physically assist in

restaurant operations. See 29 C.F.R. § 1630.2(n)(3)(i)-(ii)

("Evidence that a particular function is essential

includes . . . [t]he employer's judgment as to which functions are

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essential [and w]ritten job descriptions prepared before

advertising or interviewing applicants for the job . . . ."). As

we have noted, that function is listed as both a "Primary Task" and

an "Essential Function." Other manual tasks are listed in the

"Essential Functions" section as well: "[r]eceive deliveries,

unload products from the trailers with conveyor, hand-truck or by

hand as required"; "[t]ransport stock items to the appropriate

storage area cooler, freezer or dry storage area as required"; and

"clean and secure facility and all equipment." When Richardson was

asked at her deposition whether the "Essential Functions" section

of the job description accurately described her responsibilities as

an assistant manager, she replied, "I guess so."

The "Task Analysis" section of the job description lists

other duties that the assistant managers were expected to perform:

"physically assist and/or perform kitchen, dining and take-out

operations"; "cook food items on the grill, in the Fry-o-lator and

[in the] microwave oven"; "deliver prepared meals, beverages, and

dessert items to customers"; "clean and reset tables"; "bus

dishware and utensils to the dishwashing area"; "load and operate

the dishwasher"; "perform general housekeeping duties"; and "clean

and secure facility, the grounds and all equipment." Again,

Richardson admitted at her deposition that this list accurately

described her operational duties.

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 In an attempt to rebut this evidence, Richardson argues

that she "was an assistant manager and thus her primary function

was not to do each job itself -- the restaurant specifically

employed cooks, wait staff, dishwashers, and other employees to do

those jobs. Rather, her primary function was to oversee the

operation of the restaurant and ensure that it ran smoothly." To

the extent that Richardson means to suggest that the designation of

her position as "assistant manager" implies that her essential

functions were limited to managing other employees, we reject that

argument. It is not uncommon for "managers" of small restaurants

and retail stores to spend little of their time managing others.

See, e.g., Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233,

1272-73 (11th Cir. 2008) (noting, in action under the Fair Labor

Standards Act, that "store managers" spent "80 to 90% of the time

performing manual labor").

Even assuming it is true that Richardson's "primary

function" was to oversee restaurant operations, the point does not

advance Richardson's case. The essential functions of a position

are not limited to the "primary" function of the position. For

example, we concluded in Kvorjak v. Maine, 259 F.3d at 56, 58, that

it was essential for a claims adjudicator to be able to provide

advice to other employees notwithstanding our recognition that the

"core function" of the position was adjudicating claims.

Similarly, the Tenth Circuit determined in Frazier v. Simmons, 254

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F.3d 1247, 1259-61 (10th Cir. 2001), that it was essential for a

criminal investigator to be capable of physically restraining

violent individuals even though the primary functions of the

investigator position (investigation and desk work) did not require

physical exertion.

Richardson points out that some of her physical duties

were reduced or shifted to other employees after she was injured in

2006. That evidence has minimal value, however. "[A] court must

evaluate the essential functions of the job without considering the

effect of [any] special arrangements." Phelps v. Optima Health,

Inc., 251 F.3d 21, 25 (1st Cir. 2001); see also Laurin, 150 F.3d at

60-61 ("An employer does not concede that a job function is

'non-essential' simply by voluntarily assuming the limited burden

associated with a temporary accommodation . . . ."). The voluntary

accommodations that Friendly's made following Richardson's injury

do not alter our assessment of the essential functions of the

assistant manager position.5

Importantly, the evidence shows that there were a limited

number of employees among whom the performance of the manual tasks

at the Ellsworth restaurant could be distributed. See 29 C.F.R.

§ 1630.2(n)(2)(ii) ("[A] function may be essential because of the

limited number of employees available among whom the performance of

5
We address in more detail below Richardson's contention
that it was permissible for her to delegate manual tasks to other
restaurant employees. See infra.

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that job function can be distributed."). Tina Emery testified that

during the slowest times of the year, eight to ten employees would

be on duty over the course of an entire day. Richardson echoed

this testimony, adding that only one of the three managers would be

on duty at the beginning and end of each day. Richardson also

testified that in the early mornings an assistant manager and a

server would typically be the only employees on duty. At those

times, the assistant manager would be responsible for preparing all

of the food and the server would be responsible for interacting

with the customers. This evidence supports a finding that manual

duties were essential to Richardson's position. See Hirschhorn v.

Sizzler Restaurants Int'l, Inc., 913 F. Supp. 1393, 1399 (D. Nev.

1995) ("[F]unctions that might not be considered essential if there

were a larger staff may become essential because the staff size is

small compared to the volume of work that has to be done."); EEOC

Interpretive Guidance, § 1630.2(n) ("[I]f an employer has a

relatively small number of available employees for the volume of

work to be performed, it may be necessary that each employee

perform a multitude of different functions. Therefore, the

performance of those functions by each employee becomes more

critical and the options for reorganizing the work become more

limited.").6

6
Of course, it does not follow that an otherwise essential
job function may be deemed non-essential simply because there are
a large number of employees available to perform it. A job

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 We conclude that any reasonable jury presented with the

summary judgment record here would find that it was essential for

Richardson to "assist in kitchen, dining and take-out operations,"7

and that she had to be capable of performing a broad range of

manual tasks in order to carry out that function. Especially

during periods of light staffing, an assistant manager whose

disability prevented her from performing a substantial number of

the manual tasks that were part of the daily operations of the

Ellsworth restaurant would not be able to fulfill one of her

fundamental job duties.

B. Richardson's Ability to Perform the Essential Functions of her
Position without a Reasonable Accommodation

Having identified the relevant essential function, we now

turn to whether Richardson was able to perform that function

without a reasonable accommodation. We must ask whether the

summary judgment evidence would permit a jury to conclude that

Richardson was capable of performing a sufficiently broad range of

manual tasks to effectively "assist in kitchen, dining and take-out

function "may be considered essential for any of [the] reasons"
listed in 29 C.F.R. § 1630.2(n)(2); however, none of those reasons,
standing alone, is necessary to support a finding that a job
function is essential.
7
The question whether a particular job function is
essential is for the jury when there is sufficient evidence. See,
e.g., Tobin v. Liberty Mut. Ins. Co. ("Tobin II"), 553 F.3d 121,
136 (1st Cir. 2009); Hamlin v. Charter Twp. of Flint, 165 F.3d 426,
430-31 (6th Cir. 1999); 3C Fed. Jury Practice & Instructions
§ 172.33 (5th ed. 2001 & Supp. 2009).

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operations." See Miller v. Ill. Dep't of Corr., 107 F.3d 483, 485

(7th Cir. 1997) ("[I]f an employer has a legitimate reason for

specifying multiple duties for a particular job

classification . . ., a disabled employee will not be qualified for

the position unless he can perform enough of these duties to enable

a judgment that he can perform its essential duties.") (emphasis

altered).

In attempting to show that she was able to perform a

sufficiently wide range of manual tasks, Richardson focuses on the

time period between her January 6, 2006 injury and her September 6,

2006 surgery. The premise of her argument is that her physical

abilities as of her January 8, 2007 termination were roughly

equivalent to her abilities during the pre-surgery period.8 Cf.

Land v. Washington County, Minn., 243 F.3d 1093, 1096 (8th Cir.

2001) ("An ADA plaintiff may not rely on past performance to

establish that he is a qualified individual without accommodation

when there is undisputed evidence of diminished or deteriorated

8
In most cases, the relevant date for determining whether
an individual is qualified for her position is the date of the
adverse employment decision. See EEOC v. Stowe-Pharr Mills, Inc.,
216 F.3d 373, 379 (4th Cir. 2000); EEOC Interpretive Guidance,
§ 1630.2(m). But cf. McKnight v. General Motors Corp., 550 F.3d
519, 522-28 (6th Cir. 2008) (discussing a circuit split over the
relevant date for cases involving discrimination against a retired
employee). The parties have presented conflicting evidence
regarding the date of Richardson's termination. We use
Richardson's proposed date, January 8, 2007, because it is
supported in the record and is more favorable to her as the non-
moving party below.

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abilities."). Although it is not clear that Richardson had in fact

recovered to her pre-surgery level by that date, we will assume for

the purposes of this appeal that she had. Even so, we conclude

that she has not shown that there is a genuine issue of fact

regarding her ability to perform the necessary range of manual

tasks.

It is undisputed that Richardson was not able to lift

more than five pounds or engage in repetitive manual activity. She

contends that she overcame these limitations by altering the manner

in which she performed certain tasks. For example, she testified

that she was able to cook French fries by cooking small quantities

at a time and then removing cooked product with tongs rather than

by lifting an entire basket. She also testified that she was able

to perform some manual tasks using only her left arm.

Richardson admits, however, that even with those

modifications she remained unable to perform a number of tasks,

including mopping the floor, lifting heavy bags of trash, scooping

ice cream, and unloading supplies from delivery trucks. She

testified that "cooking was very hard for [her] to do with [her]

arm" and that "[t]here was a lot of times when [she] would ask

David [Carter, a cook,] for help with assisting [her] in anything

to do with lifting." For example, she "would have him help [her]

bring out the product so [she] could prep it, if it was too heavy.

And he'd also end up having to put it back on the shelf." She also

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suggested that she was unable to clean the Fry-o-lator thoroughly

and that she was not able to carry bus buckets full of dirty

dishes. Richardson's supervisor, Tina Emery, made similar

observations: "[Richardson] couldn't take out the trash. She

couldn't unload a truck. She couldn't refill our milk machine.

She couldn't cook because she couldn't flip Fry-o-lator baskets."

Richardson also admitted in more general terms that her

disability left her unable to perform a substantial number of

manual restaurant tasks. When asked whether there were any

unmentioned tasks for which she had to seek help, she replied, "I

can't think of any right now, but I'm sure there was plenty. It's

a restaurant." She reiterated the point in a colloquy with

Friendly's attorney:

Q: There's a lot of tasks you can do, but
there's a lot of tasks you cannot do; is
that correct?

A: Well --

Q: Right?

A: I guess so.

Q: Well you just told me a number you
couldn't do; right?

A: Right

Q: And in a restaurant, there's a lot of
those tasks that you cannot do with an arm
that you shouldn't work overhead with,
shouldn't be using repetitively, and
shouldn't be lifting more than five
pounds?

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 A: Yes.

Finally, she stated in her affidavit: "There were times that I felt

that I was being required to do work beyond my work restrictions,

typically in performing closing duties, only because I was

scheduled with another individual, Angela Antonelli, who also was

on light duty because she had restrictions related to bilateral

wrist problems."

Richardson does not contest any of the foregoing

evidence. Instead, she argues that the portions of her affidavit

describing the manual tasks that she was able to perform raise a

genuine issue of material fact as to her qualifications. We

disagree. The number of tasks that Richardson was unable to

perform was simply too great for her to be able to effectively

perform her essential operational duties as assistant manager of a

small restaurant like the Ellsworth Friendly's. We conclude that,

on the facts of this case, no reasonable jury could find that

Richardson was capable of performing her essential function of

"assist[ing] in kitchen, dining and take-out operations to

facilitate production and customer service."

C. Richardson's Ability to Perform the Essential Functions of her
Position with a Reasonable Accommodation

Richardson bears the burden of proving that a "proposed

accommodation would enable her to perform the essential functions

of her job" and that, "at least on the face of things, [the

accommodation] is feasible for the employer under the

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circumstances." Tobin v. Liberty Mut. Ins. Co. ("Tobin II"), 553

F.3d 121, 136 (1st Cir. 2009). Richardson argues that the only

accommodation she needed was the ability to perform certain manual

tasks in a modified manner. As we have already explained, it would

be unreasonable for a jury to conclude that Richardson was able to

perform her essential function of physically assisting with the

restaurant's operations even when the modifications are taken into

account.

Richardson also argues that, as a manager, it was

reasonable for her to delegate certain manual tasks to other

restaurant employees. That argument does not take her far. "[T]he

law does not require an employer to accommodate a disability by

foregoing an essential function of the position or by reallocating

essential functions to make other workers' jobs more onerous."

Mulloy, 460 F.3d at 153 (internal quotation marks and citations

omitted). On the facts of this case, it would be unreasonable for

Richardson to delegate so many tasks that she would no longer be

performing her essential function of physically assisting with the

restaurant's operations. Richardson must be able to perform a

sufficient number of manual tasks on her own. As explained above,

she has not shown that there is a genuine issue of material fact as

to whether she can do that.

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D. Conclusion

Because Richardson has failed to present sufficient

evidence for a reasonable jury to find that she is a "qualified

individual" within the meaning of the ADA, her discriminatory

discharge claim must fail. See Phelps, 251 F.3d at 28. We

therefore have no reason to consider her argument that Friendly's

reliance on the Family and Medical Leave Act as a reason for

terminating her was pretextual.

III.

In addition to pressing the discriminatory discharge

claim, Richardson has argued that Friendly’s violated the ADA by

refusing to engage in an interactive process to determine whether

any reasonable accommodations were available. See 29 C.F.R.

§ 1630.2(o)(3); Tobin I, 433 F.3d at 108. An interactive process

claim cannot succeed unless the interaction could have led to the

discovery of a reasonable accommodation that would have enabled the

plaintiff to perform the essential functions of her position. See

Kvorjak, 259 F.3d at 53; Soto-Ocasio v. Fed. Express Corp., 150

F.3d 14, 19 (1st Cir. 1998). As we have already explained,

Richardson has not identified any such accommodation in her briefs.

The two accommodations she has identified -- performing tasks in a

modified manner and delegating tasks to other employees -- are,

respectively, on this record, inadequate to enable her to perform

a sufficiently broad range of manual tasks and unreasonable as a

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matter of law. Summary judgment was therefore properly granted on

her interactive process claim.

AFFIRMED.

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