Before getting started on the blog entry of the day, yesterday was the 30th anniversary of the ADA. Happy anniversary!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!


One of the things that comes up is why is the ADA such a good idea if hiring people with disabilities has remained static over the years. My response to that question is twofold. First, the ADA is more than just employment. It also includes accessing nonfederal governmental entities (title II) and accessing places of public accommodations (title III). It has another title dealing with telecommunications (title IV). Finally, it protects against retaliation and interference (title V). With respect to employment, I am convinced that one of the reasons why employment of people with disabilities has remained static is because companies simply do not understand the calculations a person with a disability goes through in deciding whether to seek accommodations. Companies also are not using best practices. I discussed all of that on the Federal Bar Association blog last week, which can be found here.


Today’s blog entry was a real challenge to come up with. I debated strongly between a review of Justice Gorsuch’s book, A Republic If You Can Keep It, and a recent case from the Seventh Circuit dealing with the burden of proof when it comes to figuring out whether someone is qualified to do the essential functions of a job. If it was any other week besides the anniversary of the ADA happening yesterday, I would have opted for the book review. However, since it is the day after the 30th anniversary of the ADA, I felt I had to do something related to the ADA. I will say that I figured out a way to bring Justice Gorsuch’s book into the blog entry as well.


Our case of the day is Kotaska v. Federal Express Corporation decided by the Seventh Circuit on July 17, 2020, which can be found here. That the decision went against the person with the disability does not surprise me. What is really interesting about the decision is a vigorous dissent was filed. As usual, the blog entry is divided into categories and they are: facts; majority opinion (Judge St. Eve); dissenting opinion (Judge Hamilton); and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.




Federal Express fired the plaintiff twice from her courier job because she could not lift up to 75 pounds. 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. Within three weeks, Federal Express discovered her capabilities above the waist remain severely limited and dismissed her again. Plaintiff brought suit alleging the second dismissal was in violation of the ADA. The job description said that each handler or courier was expected to lift a package weighing up to 75 pounds but did not describe how high a person must lift those packages. The District Court granted summary judgment for Federal Express and plaintiff appealed.



Majority Opinion (Judge St. Eve)

  1. At summary judgment, the plaintiff has the burden to provide evidence that a rational jury could find her to be a qualified individual.
  2. Whether a function of the job is an essential one is a question of fact and not law.
  3. A court is obligated to consider the employer’s judgment and to consider a job description of evidence of the job’s essential functions, but the employer’s judgment is not absolute. Other factors include: the amount of time spent on a function; the experience of those who previously or currently hold the position; and the consequences of not requiring the employee to perform the function.
  4. The parties agree that lifting packages, including above the waist and shoulders, is an essential function of a handler.
  5. A rational jury could find that the essential functions of a handler do not include lifting a 75 pound package overhead.
  6. To be a qualified individual, an employee if he or she is unable to perform a given function, must show that there is a dispute whether that function is essential.
  7. Federal Express consistently asserted that its handlers need to lift packages weighing up to 75 pounds over the waist and overhead, which plaintiff cannot do.
  8. Plaintiff has the burden of persuasion on the question of whether he is a qualified individual.
  9. It is the plaintiff’s burden to provide evidence (emphasis added), to persuade a rational factfinder that she can perform the job’s essential functions.
  10. A reasonable factfinder simply could not find that the plaintiff could lift up to 75 pounds above her waist if needed. Considering plaintiff’s height, 5’2”, many packages would have to be lifted above her waist and shoulders.
  11. The ADA does not obligate an employer to let its employees exceed their doctor’s restrictions even if the employee thinks he or she can.
  12. The capacity to respond to rare events can still be an essential function of the job.
  13. A person on the job for just three weeks cannot be said to have established a sufficient amount of time to to find him or her to be a qualified individual. What is a sufficient amount of time will vary from case to case.
  14. With respect to retaliation, close timing of the adverse action alone is rarely enough to raise a viable claim of retaliation. That is, there has to be other circumstantial evidence of retaliation. That plaintiff’s restrictions had not changed enough since the first dismissal was the non-retaliatory reason for the second dismissal.



Dissenting Opinion (Judge Hamilton)

  1. Federal Express conceded on appeal that its stated reason for firing the plaintiff, an inability to lift 75 pounds over her waist and even overhead, was wrong. Such heavy overhead lifting is not required.
  2. The majority opinion flipped the burden of production on essential functions to the plaintiff from the defendant.
  3. Judge Hamilton has not seen an ADA case before where the employer did not come forward with evidence needed to establish the essential functions of the job, but the majority opinion holds the absence of that evidence against the plaintiff.
  4. It is well established that the employee bears the ultimate burden of proving that he or she is capable of doing the essential functions of the job with or without reasonable accommodation. However, the employee should not bear the burden of producing evidence of what the essential functions are because that information is most readily available to the employer and not to the employee. Accordingly, the ninth, eighth, first, and sixth Circuits all have held that once an individual with a disability contends that a function is nonessential, the burden shifts to the employer to prove that it is an essential function of the job. Implicit in these cases is the expectation that the employer will meet the burden of what the essential functions of the job are by producing evidence.
  5. If the proper burden of proof is followed in this case, plaintiff refuted the employer’s version of the essential functions and presented evidence that she could do the job.
  6. The majority’s focus on up to 75 pounds allows an employer to not have to define essential functions of the job with any specificity. Instead, the employer can state the function at the highest level of generality and leave the plaintiff with the burden of establishing the specifics of the job for she then has to show that she can do it. If that is the case, the burden of production become trivial. Evidence about essential functions must provide meaningful and specific guidance about what the job entails. Otherwise, an employer’s description of the essential functions of the job provides no useful guidance.
  7. Giving the shelving and packaging containers that handler’s work with, Federal Express should have had to present evidence of how much weight handler’s must lift above their waist, above the shoulders, and above their heads.
  8. Discredited evidence should not be sufficient to shift the burden of proof to the plaintiff come forward with evidence of the real details of the job’s essential functions.
  9. While it is true that under the ADA an employer’s job description or other assertions are entitled to substantial but not conclusive weight in identifying a job’s essential function, employers must also describe the essential functions with enough specificity to tell the employee and the courts what the job entails.
  10. The employer’s description of the job functions must surely be at least plausible and not be vague and unbelievable assertions like the ones abandoned by Federal Express in this case.
  11. It is so obviously appropriate for the employer to carry the burden of production when it come to the essential functions of the job.
  12. To combat Federal Express’s strategy employed in this case, future plaintiff can protect themselves by insisting in discovery at the very outset of the case that the employer specify in detail the essential functions of the relevant job and then support those claims with evidence. An employer who has fired someone or denied an employment application for inability to perform essential functions should be able to answer such an interrogatory immediately.
  13. The evidence supports an inference that Federal Express’s managers were not honest in dealing with the plaintiff’s abilities in 2015.
  14. The evidence certainly supports an inference that the manager bungled the case. At best, Federal Express was confused about how the job was actually done and what abilities it actually requires. It is only by departing from summary judgment standards, speculating in favor of the defendants, and discounting evidence from the plaintiff and her coworkers that one could find that Federal Express had a legitimate basis for firing the plaintiff.
  15. It is not the province of the District Court to propose its own set of essential functions not offered by Federal Express.
  16. If the relevant frequency and weight information is material to deciding essential functions, then Federal Express had the burden of producing it. It is improper, impractical, and unfair to require the employee to describe in minute statistical detail the operations of an employer.
  17. Presumptions shifting the burden of proof are often created to reflect judicial evaluations of probabilities and to conform with the party’s superior access to the proof.
  18. When a party files a motion for summary judgment raising ground A, the District Court erred by granting on ground B, which the moving party could have raised but did not.
  19. Federal civil motion practice is expensive and burdensome enough when the party opposing a motion needs to respond to the moving party’s actual arguments. That should not be expanded to offering evidence to rebut any arguments the moving party might have made.
  20. The majority opinion is correct that evidence that might be used to prove that the job required lifting 75 pound overhead could also be used to show that the plaintiff had to lift some lower amount overhead. However, Federal Express made no such argument to the District Court.
  21. The majority opinion also erred by drawing inferences in favor of Federal Express rather than the plaintiff, which is improper on a defense motion for summary judgment.
  22. The logic of the majority opinion suggests that an employer can establish that an employee is not a qualified individual by showing that an individual with a disability works within her limits rather than beyond them and that is perverse. Under this logic, an employee who can do the job and has done the job could be removed based upon mere speculation. The ADA was enacted in large part to prevent discrimination against people with disabilities who can actually do their job.
  23. The majority’s speculation that plaintiff would encounter a package is too heavy for her is contradicted by the evidence from the plaintiff and her coworkers and supervisors that she was handling the job successfully.
  24. Evidence about how jobs are actually performed is sufficient to create a genuine dispute of fact.
  25. Federal Express offered no evidence to the effect that the job varies so much that three weeks are not a reasonable test of the ability to do the work. The majority’s speculation to the contrary is no substitute for such evidence.
  26. The plaintiff offered evidence that the Federal Express decision-makers not only knew about her earlier protected activity but took the entire episode into account in deciding what to do with her the second time around. When that is combined with federal Federal Express’s hasty, confused, and even dishonest decision to fire her without actually reviewing her new medical restrictions without even talking with plaintiff or supervisors, a jury could easily find a retaliatory motive.




  1. The majority opinion when it talks about the burden of production and the burden of persuasion is very confusing. On the one hand, in the text of the opinion it clearly talks about how the burden of production about essential functions of the job are on the employee. On the other hand, in a footnote it seemed to cite with approval a decision saying that the burden of production for essential functions is on the employer and the employee has the burden of persuasion. Reading the text of the opinion one can understand how Judge Hamilton was of the strong opinion that the majority opinion had shifted the burden of production when it comes to essential functions.
  2. Part of the dissenting opinion almost seems to be written with Justice Gorsuch in mind. If you read his book, A Republic If You Can Keep It, he is no fan of how complicated the civil discovery system has come to be. He might be very sympathetic to the argument about how a plaintiff should not be penalized for an employer’s shifting litigation positions. He certainly, as discussed below, would be very receptive to claims that a judge came up with a theory of a decision that was not based upon any of the arguments made by either party.
  3. Three weeks not being long enough to establish whether a person is qualified to do a job per the ADA is extremely problematic. It simply should not matter how long a person is in the job, especially if the plaintiff can with testimony and other evidence show how that job is done. Assuming an employer has 15 or more employees, the ADA applies the minute that person starts a job.
  4. I am not sure I would be terribly optimistic about an en banc review by the Seventh Circuit, though it might be worth a try.
  5. People with disabilities have not done well at all at the Supreme Court with respect to employment matters. So normally I would say if you are a person with disability, you do not want to bring an employment claim to the United States Supreme Court. However, the dissenting opinion is very interesting. As mentioned above, there are a couple of aspects of that dissenting opinion that could appeal to Justice Gorsuch (in the prologue to one of his chapters in the book, he also states that he is a big believer in equality for all). Also, while Justice Roberts has often been termed a corporatist, he also has demonstrated sensitivity to people with disabilities. While the majority opinion is a bit confusing with respect to whether it is changing the burden of production, the plain reading of its text suggests that it did. If so, that creates a Circuit Court split.
  6. If the Democrats sweep the House, Senate, and the Presidency in November, might you see legislation specifying what the burden of proof is with respect to essential functions of the job?
  7. One of the mistakes made by Federal Express here is focusing on a task rather than on functions. The function of the job is moving packages safely from the truck to wherever the package is getting delivered. How the person accomplishes that isn’t the point. On the employer’s side, it would be wise to keep in mind that tasks are not the same as function if you don’t want to run into unnecessary litigation.
  8. Judge Hamilton flat out tells plaintiff’s attorneys that whenever dealing with essential functions of the job, they need to have an interrogatory pinning down the employer, complete with supporting evidence, as to what the essential functions of the job are.
  9. Another aspect of the dissenting opinion that might appeal to Justice Gorsuch is how the majority opinion takes a broad view of its discretion when it comes to deciding summary judgment motions. Justice Gorsuch is a big fan of jury trials and is not at all happy with summary judgment practice. From reading his book, I don’t believe he would say that the role of the judge is to screen out cases by the summary judgment motion. Instead, you have to be looking at whether a genuine issue of material fact exists. Also, he does specifically say in his book that it is not up to the judge to come up with his or her own arguments one way or the other as to why a particular party will prevail. Judges in his opinion are limited to what the parties argue.
  10. The rational jury standard varies quite a bit in its application from judge to judge and from Circuit to Circuit.
  11. Essential functions of the job are a question of fact and not law. Of course, that doesn’t answer the question of where is the burden of production for determining essential functions of the job.
  12. Always a good idea to engage in the interactive process before termination and be sure to get it right at discussed here.