Angela Tonyan v. Dunham's Athleisure Corporatio ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19‐2939
ANGELA TONYAN,
Plaintiff‐Appellant,
v.
DUNHAM’S ATHLEISURE CORPORATION,
Defendant‐Appellee.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 18‐cv‐00402 — Barbara B. Crabb, Judge.
____________________
ARGUED MAY 19, 2020 — DECIDED JULY 20, 2020
____________________
Before EASTERBROOK, BRENNAN, and ST. EVE, Circuit Judges.
ST. EVE, Circuit Judge. Angela Tonyan worked as a store
manager at Dunham’s Athleisure Corporation (Dunham’s)
when she suffered a series of injuries, requiring multiple sur‐
geries and temporary restrictions to her shoulder, arm, and
hand movement. After her doctor imposed permanent re‐
strictions, including one preventing her from lifting more
than two pounds with her right arm, Dunham’s fired her.
2 No. 19‐2939
Dunham’s asserts, because of its lean staffing model, that
store managers must perform various forms of physical labor,
such as unloading and shelving merchandise, as essential
functions of their job duties. Tonyan, on the other hand, ar‐
gues that physical tasks were not essential functions of her job
and that, in any event, she was able to perform her job’s es‐
sential functions.
We conclude that physical tasks were essential functions
of Tonyan’s job. As a result, in light of the severe restrictions
on her movement, no reasonable factfinder could determine
that Tonyan was capable of performing the essential functions
of her position. We therefore affirm.
I. Background
A. Dunham’s
Dunham’s, a discount sporting goods retailer, employs a
business model designed to cut costs. Dunham’s purchases or
leases minimal space and stores merchandise in a way that
maximizes its use. To do so, it places some merchandise—
such as canoes and kayaks—on shelves ranging from five to
twelve feet high or hangs them from the ceiling. Roughly half
of the inventory sits at or above shoulder height for the aver‐
age employee, who uses garment hooks to remove merchan‐
dise placed beyond shoulder reach.
Similarly, Dunham’s toils to keep labor costs low. Each
store has a budget for both hourly and salaried employees
based on the particular store’s sales volume. Dunham’s con‐
tends that “[p]roviding stores with sufficient staff hours—
with management regularly engaged in principal tasks—is
necessary to ensure customers are assisted and inventory is
unloaded, handled, and displayed in a timely manner.” When
No. 19‐2939 3
a manager cannot perform the requisite physical tasks on a
regular basis, Dunham’s allocates additional hours to the
store for other employees to handle those tasks, which, To‐
nyan concedes, impacts the efficiency of the staffing model. In
particular, the store in Menomonie, Wisconsin, where Tonyan
worked at the time of her dismissal, relies on students as a
source of hourly labor. Students, though, typically have lim‐
ited availability and positions sometimes remain empty. As
Tonyan admits, a resulting labor shortage can delay merchan‐
dise inventorying and an employee’s ability to respond to
customers.
B. Job Duties
Corporate management agreed physical labor was a sig‐
nificant part of Tonyan’s job duties, although they varied
when describing specifics. District Manager Jeremy Gilson,
Tonyan’s direct supervisor, estimated Tonyan may have
spent up to twenty percent of her day performing manual la‐
bor, and up to thirty percent on days when trucks delivered
merchandise. Executive Vice President for Human Resources
Daniel Cieslak gave a higher estimate: he claimed Dunham’s
expected Tonyan to spend seventy to eighty percent of her
time performing physical labor. Employees have several tools
at their disposal to assist with physical tasks, including hooks,
pallet jacks, dollies, stools, ladders of varying sizes, and four‐
way wheeled carts.
The record contains two job descriptions for “Store Man‐
agement,” one from August 2011 and one from September of
that same year.1 They vary only slightly. Both identify similar
1 In her appellate briefing, Tonyan discusses a job description that
does not appear in the district court record. The version she recounts
4 No. 19‐2939
areas of responsibility, such as customer service, sales vol‐
ume, scheduling, merchandising, human resources, training,
and general maintenance. The August 2011 version, which
Tonyan signed, lists these “essential functions” as:
Constantly: Stand, Walk, Reach Outward, Han‐
dling/Fingering.
Frequently: Reach Above Shoulders, Squat or Kneel,
Lift/Carry up to 50 lbs., Push/Pull up to 50 lbs.
Occasionally: Sit, Climb, Crawl, Lift/Carry 51—100 lbs.
with assistance.
Not Applicable: Lift/Carry over 100 lbs. without assis‐
tance. 2
The September 2011 version, which contains no signature, dif‐
fers in only one substantial way: it requires that a manager
frequently “Lift/Carry” forty pounds instead of fifty. Neither
job description instructs managers how to complete the re‐
quired tasks, as Dunham’s allows and expects store managers
to delegate some duties. The Human Resources (“HR”)
differs slightly from those that do appear. For example, Tonyan’s pre‐
ferred job description uses the language “minimum qualifications” in‐
stead of “essential functions,” whereas the two versions in the district
court record invoke the “essential functions” label. After the conclusion of
appellate briefing, Tonyan apparently noticed her omission and at‐
tempted to supplement the record. We denied her motion, as the district
court did not consider this document in the first instance. We note, how‐
ever, that, even if we had granted Tonyan’s motion, she does not explain
how “minimum qualifications” differ from “essential functions.”
2 Cieslak quantified “constantly” as almost one hundred percent of
the time, “frequently” as fifty percent or more of the time, and “occasion‐
ally” as less than fifty percent of the time.
No. 19‐2939 5
Department created the 2011 job descriptions by modifying a
version from 2008 using field research, store observation, and
interviews with store managers.
These job descriptions applied not only to Tonyan, but
also to Reed Lein, Tonyan’s assistant store manager, and Eliz‐
abeth Sand, the department manager for apparel. Lein per‐
formed physically demanding duties sixty to seventy percent
of the time, including placing and pulling merchandise on
and off shelves and organizing boxes. Lein is over six feet tall
and at least fifty percent of the store merchandise sat above
his shoulder. Likewise, Sand reported often engaging in phys‐
ically demanding tasks, including taking kayaks and tread‐
mills to customers’ cars. The store managers preceding To‐
nyan—Jane Campbell and Lucas Henning—also performed
physical tasks. Importantly, Tonyan does not dispute any of
these characterizations.
Tonyan, though, says her role involved much less physical
labor than Dunham’s suggests. She contends she had five ar‐
eas of responsibility: customer service, sales, controlling ex‐
penses, controlling shrink, and store maintenance. In her
view, only ten percent of her duties were physically demand‐
ing, though she admits this contradicts the expectations of
corporate management. She frequently delegated physical
tasks, especially those involving heavy lifting.
C. Tonyan’s Injuries and Physical Limitations
Dunham’s hired Tonyan as an assistant store manager at
its Rice Lake, Wisconsin store in 2007. She injured her left arm
in 2009, resulting in left rotator cuff surgery in 2010. Dun‐
ham’s accommodated temporary restrictions on her left arm
after her injury and surgery. In 2011, Dunham’s promoted
6 No. 19‐2939
Tonyan to manager of its Menomonie location while these in‐
itial temporary restrictions were in place. In January 2012, To‐
nyan’s physician—Dr. Floren—placed permanent restrictions
on her left shoulder: lifting limited to fifteen pounds overhead
and sixty pounds to her waist, and reaching above the shoul‐
der limited to only occasionally.
Tonyan’s injuries plagued not only her left side; they even‐
tually impacted her right as well. At some point in 2013 or
2014, she injured her right shoulder while using a fabric pole
to hang jackets. Her condition deteriorated to the point where
she could no longer lift her right arm. In June 2014, she had
right shoulder surgery and began leave under the Family and
Medical Leave Act, 29 U.S.C. § 2601–2654 (“FMLA”). Tonyan
returned to work in September, with restrictions including a
one‐pound lifting limit and a prohibition on reaching forward
or above her shoulder with her right arm, among others.
Before long Tonyan aggravated her right shoulder again—
this time while pushing a computer terminal away from a
wall. As a result, in January 2015, she endured a second right
shoulder surgery and started another round of FMLA leave.
Tonyan’s doctor cleared her for returning to work with sev‐
eral restrictions on her right arm, including a mandate to wear
a sling for several hours a day and a lifting limit of five
pounds. Dunham’s, however, did not allow Tonyan to return
to work, citing that she could not lift even a ream of paper.
In May 2015, Tonyan’s doctor imposed new temporary re‐
strictions, including a four‐hour daily work limit, a one‐
pound lifting limit, and a bar on reaching above the shoulder.
Dunham’s again determined that these restrictions were too
severe for accommodation and allowed Tonyan to take time
No. 19‐2939 7
off for additional recovery despite her having exhausted her
FMLA leave.
Tonyan finally returned to work in August 2015, after her
doctor removed her hours restrictions and cleared her to lift
fifteen pounds overhead with both hands and reach above the
shoulder with her right arm. Upon returning, though, Tonyan
complained of “excruciating” pain. Lein performed many of
her job duties during this time, such as lifting, loading, and
unloading larger items. Tonyan was visibly in pain while per‐
forming physical tasks and would sometimes make audible
noises like “ouch, ouch, ouch.” Gilson requested and received
an allocation of additional hours to the store because Tonyan
was unable to perform physical tasks. On one occasion, her
store hired someone to take on additional hours.
In September 2015, Tonyan injured her right shoulder
while pushing a “light cart” with shirts on it. Later that
month, Tonyan told her physical therapist she struggled pull‐
ing stuffing out of shoes and taking plastic off clothing, and
the therapist noted that Tonyan was unable to lift one pound
overhead without pain. Over the next few weeks, Tonyan re‐
ported several additional complaints to her physical thera‐
pist: she struggled to control the steering wheel of her car, lift
one pound overhead, wash her hair, hold a blow dryer for
more than two minutes, sweep, vacuum, and carry a bag.
Dr. Thomas O’Brien examined Tonyan for the purpose of
a worker’s compensation claim in October 2015. He con‐
cluded that none of Tonyan’s job duties “are of sufficient mag‐
nitude or duration to cause any type of rotator cuff injury,”
and that Tonyan therefore did not require activity restrictions.
He also noted that her “work requirements as a full‐time store
manager do not place the shoulder in a position, nor do they
8 No. 19‐2939
require right shoulder activities, that would cause an ‘injury’
to the rotator cuff.”
In December 2015, Tonyan’s physician issued permanent
restrictions on her right arm. These restrictions prevented her
from using her right arm to lift more than two pounds, from
repetitively grasping, and from reaching forward or more
than five percent above the shoulder, even without bearing
weight. With these permanent restrictions in place, Dunham’s
fired her. They sent her a letter, explaining:
We received and reviewed the latest medical report
from Dr. Floran [sic] dated December 21, 2015. Due to
the restrictions stated by your doctor the decision has
been made to terminate your employment effective to‐
day’s date. Should you have additional information
you feel we should consider please feel free to forward
it to us in writing so it can be reviewed.
Tonyan filed a charge of discrimination with the Equal
Employment Opportunity Commission and Wisconsin’s
Equal Rights Division, which issued a right‐to‐sue letter.
Then, on May 24, 2018, Tonyan filed a civil action against
Dunham’s alleging disparate treatment and failure to accom‐
modate her disability, in violation of 42 U.S.C. § 12112(a) and
42 U.S.C. § 12112(b)(1)–(7). Dunham’s moved for summary
judgment. In opposition to this motion, Tonyan submitted an
expert report by Dr. Joseph Hebl, an occupational medicine
physician who examined her in 2018. Dr. Hebl opined that
Tonyan could perform physical labor but only with re‐
strictions, including no more than occasional reaching above
the shoulder. The district court granted the summary judg‐
ment motion in its entirety, concluding that Tonyan had failed
to meet her burden of proving that she could perform the
No. 19‐2939 9
essential functions of her position with or without accommo‐
dations. Tonyan now appeals.
II. Discussion
We review a district court’s summary judgment ruling de
novo, considering the evidence and drawing all reasonable
inferences in the light most favorable to the non‐moving
party. Bilinsky v. Am. Airlines, Inc., 928 F.3d 565, 569 (7th Cir.
2019). Summary judgment is proper if the moving party
“shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a).
The Americans with Disabilities Act (“ADA”) prohibits a
covered employer from “discriminat[ing] against a qualified
individual on the basis of disability.” 42 U.S.C. § 12112(a). A
“qualified individual” is one “who, with or without reasona‐
ble accommodation, can perform the essential functions of the
employment position.” Id. § 12111(8). There are two types of
discrimination claims under the ADA. Curtis v. Costco Whole‐
sale Corp., 807 F.3d 215, 224 (7th Cir. 2015). “First is a disparate
treatment claim, where the plaintiff alleges the employer
treated him or her differently because of the plaintiff’s disa‐
bility.” Id. (citing Sieberns v. Wal‐Mart Stores, Inc., 125 F.3d
1019, 1021–22 (7th Cir. 1997)). “The second is the employer’s
failure to provide a reasonable accommodation.” Id. Alt‐
hough Tonyan brought both types of claims before the district
court, on appeal she challenges only the district court’s ruling
regarding her disparate treatment claim.
To prevail on this claim, Tonyan “must identify a genuine
issue of material fact as to whether (1) she is disabled; (2) she
is able to perform the essential functions of the job either with
10 No. 19‐2939
or without reasonable accommodation; and (3) she suffered
an adverse employment action because of her disability.” Ma‐
jors v. Gen. Elec. Co., 714 F.3d 527, 533 (7th Cir. 2013). The par‐
ties do not dispute that Tonyan satisfies the first prong (her
shoulder disability) and the third prong (her firing). Rather,
this case hinges on the second prong—her ability to perform
the essential functions of her job with or without reasonable
accommodation. Tonyan disputes the district court’s determi‐
nations that physical tasks were essential functions of her job
as a store manager and that, in any event, she was unable to
perform these functions.
A. Essential Functions
Whether a function is essential is a question of fact, not
law. Brown v. Smith, 827 F.3d 609, 613 (7th Cir. 2016). When
resolving this question, we consider the employer’s judg‐
ment, including written job descriptions, as evidence. 42
U.S.C. § 12111(8); Rooney v. Koch Air, LLC, 410 F.3d 376, 382
(7th Cir. 2005). We usually do not “second‐guess the em‐
ployer’s judgment in describing the essential requirements
for the job.” DePaoli v. Abbott Labs., 140 F.3d 668, 674 (7th Cir.
1998). But this deference is not unqualified. We also look to
the reality on the ground: the consequences of not requiring
the employee to perform the function, the amount of time an
employee actually spends performing the function, and the
experience of those who previously or currently hold the po‐
sition. Miller v. Ill. Dep’t of Transp., 643 F.3d 190, 197–98 (7th
Cir. 2011) (citing 29 C.F.R. § 1630.2(n)(3)).
Every consideration points to physical tasks as essential
functions of Tonyan’s job. Both job descriptions in the rec‐
ord—including one that Tonyan signed—list physically de‐
manding tasks as essential functions. Tonyan does not
No. 19‐2939 11
dispute that HR developed these versions of the job descrip‐
tions through a detailed process involving consultation with
several sources, including field research, store observation,
and manager interviews, indicating that the descriptions re‐
flect the lived experience of managers in Dunham’s stores.
Even considering the testimony of corporate management in
the light most favorable to Tonyan, Dunham’s expected To‐
nyan to spend twenty to thirty percent of her time engaged in
physical labor. This is a sufficient amount: a function “need
not encompass the majority of an employee’s time, or even a
significant quantity of time, to be essential.” Basith v. Cook
Cty., 241 F.3d 919, 929 (7th Cir. 2001). In Basith, we concluded
that a duty taking only forty‐five minutes to an hour of an
eight‐hour‐day is essential. Id. Tonyan’s own assessment—
that ten percent of her duties involved physical labor—still
meets this threshold.
Moreover, the evidence Dunham’s put in the record
shows that managers’ performance of physical labor is essen‐
tial to its business model, as Dunham’s incurs extra costs or a
diminished quality of customer service if a manager cannot
complete physical tasks. To save costs on retail space, Dun‐
ham’s stores merchandise on elevated shelves and ceilings,
which requires employees to reach and lift large items up and
down from high locations. Tonyan’s inability to perform these
tasks required Dunham’s to expand its budget to account for
additional labor, which was in short supply, to avoid affecting
the quality of customer service. Rather than dispute these
facts, Tonyan argues that Dunham’s incurred an expense for
extra hours only once on her behalf, suggesting that Dun‐
ham’s exaggerates the problem. But the fact that the expense
did occur shows it was, at least in one instance, necessary.
12 No. 19‐2939
And even so, Tonyan has not refuted that extra hours were
allocated even if not filled.
The experiences of four employees in store management—
Lein, Sand, Campbell, and Henning—confirm that physical
labor was a significant part of management positions. To‐
nyan, meanwhile, has not identified any store manager who
did not perform physical labor. Indeed, Tonyan’s own expe‐
rience supports that the job was physically demanding. De‐
spite having restrictions in place for much of the period from
2013 onward, Tonyan repeatedly injured herself on the job
and was noticeably in pain while performing routine tasks at
work.3
Tonyan relies heavily on the fact that she delegated tasks
and that corporate management encouraged her to do so. The
ability to delegate a task, however, does not necessarily ren‐
der that task non‐essential. “[T]ask reassignments within a job
can be unreasonable in situations where the reassigned task is
an essential function of the job. In those situations, reassign‐
ment or delegation of the task would equate, essentially, to
reassignment or delegation of the job itself.” Miller, 643 F.3d
at 199; see also Peters v. City of Mauston, 311 F.3d 835, 845 (7th
Cir. 2002) (a request to have someone else perform a duty was
unreasonable because it “requires another person to perform
an essential function” of the job); Jones v. Walgreen Co., 679
3 Tonyan cursorily contends in her reply brief that the argument Dun‐
ham’s makes about her prior injuries is “a poorly disguised direct defense
and argument,” pursuant to 42 U.S.C. § 12113(b), and that Dunham’s did
not raise this defense in its answer. But Dunham’s does not suggest that
they fired Tonyan out of concern that she would injure herself; rather,
Dunham’s argues that Tonyan’s repeated injuries demonstrate her duties
were, in fact, physical.
No. 19‐2939 13
F.3d 9, 17 (1st Cir. 2012) (“[T]he fact that at any given time
certain tasks ascribed to the role of Store Manager may be del‐
egated or reassigned to other store personnel may inform our
inquiry into the job’s essential functions but by no means ends
it.”). This is particularly so here where delegation can result
in allocating additional hours that Dunham’s often cannot
even fill, impacting its business model and, sometimes, cus‐
tomer service.
Tonyan also argues that physical tasks are not an “essen‐
tial function” of her job pursuant to 29 C.F.R. § 1630.2(n)(2)
because the tasks do not satisfy any of the three enumerated
reasons in that section. But the provision explicitly states that
its list of reasons is non‐exhaustive. Id. And even if it were a
complete list, one of the three enumerated reasons is that
“[t]he function may be essential because of the limited num‐
ber of employees available among whom the performance of
that job function can be distributed.” Id. at § 1630.2(n)(2)(ii).
Again, Tonyan does not dispute that, if a manager cannot per‐
form physical tasks, Dunham’s must allocate hours for addi‐
tional labor to perform them.
Lastly, Tonyan argues that physical labor is not an essen‐
tial function of her position because she is classified as “ex‐
empt” under the Fair Labor Standards Act, 29 U.S.C. §§ 201–
219 (“FLSA”). Tonyan does not provide any legal authority
explaining why the FLSA “primary duty” test for overtime
exemption is relevant here. Moreover, an exempt employee
may spend more than fifty percent of his or her time perform‐
ing non‐exempt work, such as manual labor. 29 C.F.R.
§ 541.700(b). The fact of her FLSA classification therefore does
not automatically exclude physical labor as an essential func‐
tion of her position.
14 No. 19‐2939
B. Ability to Perform Essential Functions
Having determined that physical tasks are essential func‐
tions of Tonyan’s job, we turn to whether Tonyan could, in
fact, perform them. Tonyan “bears the burden of establishing
that she could perform the essential functions of the position
with or without reasonable accommodation.” Majors, 714 F.3d
at 534. She failed to meet that burden here.
Even looking at the job description in the record most fa‐
vorable to Tonyan, the essential functions of her job included
constant outward reaching and handling, frequent reaching
above the shoulder, and frequent lifting of up to forty pounds.
The permanent restrictions Tonyan’s doctor imposed on De‐
cember 21, 2015—prohibiting her from using her right arm to
lift more than two pounds, reaching forward and above her
shoulder more than rarely, and grasping repetitively—would
have clearly impeded her ability to perform many essential
functions of her position. Dunham’s may rely on Tonyan’s
doctor’s assessment of her capabilities when deciding
whether she could perform the essential functions of her job.
See Koshinski v. Decatur Foundry, Inc., 177 F.3d 599, 603 (7th
Cir. 1999).
In response, Tonyan highlights evidence of tools available
at Dunham’s to assist her with reaching and lifting. But tools
were available throughout Tonyan’s employment at Dun‐
ham’s, and they did not permit Tonyan to perform her duties.
Indeed, the record shows she delegated them to Lein. Even
with tools, a person restricted to lifting no more than two
pounds with one of her arms could not lift canoes, for in‐
stance, to their proper storage space.
No. 19‐2939 15
Tonyan also points to the opinions of two medical ex‐
perts—Dr. O’Brien and Dr. Hebl—but they do not aid her
case. To begin, Dr. O’Brien’s evaluation took place before To‐
nyan’s doctor assigned her permanent restrictions, which ul‐
timately led to her dismissal. “The relevant inquiry is whether
[Tonyan] could perform the essential functions of [her] job at
the time [she] was fired.” Stern v. St. Anthony’s Health Ctr., 788
F.3d 276, 287 (7th Cir. 2015); see also Basden v. Prof’l Transp.,
Inc., 714 F.3d 1034, 1037 (7th Cir. 2013) (“[A plaintiff’s] ability
to come to work, or to otherwise perform the essential func‐
tions of her job, is examined as of the time of the adverse em‐
ployment decision at issue.”). Dunham’s properly relied on
the most recently available information about Tonyan’s capa‐
bilities. Furthermore, Dr. O’Brien’s report does not explicitly
address whether Tonyan could lift forty pounds, grasp, or
perform any of the tasks her own physician specifically pro‐
hibited. And Dr. Hebl would have imposed restrictions on
reaching outward and above the shoulder—restrictions in‐
compatible with the essential functions of her job. Dr. Hebl’s
examination also took place two years after Tonyan’s dismis‐
sal and thus has little bearing on her past capabilities.
III. Conclusion
For these reasons, we AFFIRM the judgment of the district
court.