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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

EQUAL EMPLOYMENT OPPORTUNITY 

COMMISSION, 

Plaintiff, 

v. 

KROGER COMPANY OF MICHIGAN, 

Defendant. 

Case No. 14-13757 

SENIOR U.S. DISTRICT JUDGE 

ARTHUR J. TARNOW

U.S. MAGISTRATE JUDGE 

DAVID R. GRAND

 / 

ORDER DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT [20]

AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [21] 

 Plaintiff Equal Employment Opportunity Commission (EEOC) has brought 

this disability discrimination case on behalf of Jarydith Mannella, a former 

employee of Defendant Kroger Company of Michigan. Plaintiff filed a Motion for 

Partial Summary Judgment [Dkt. #20] on July 9, 2015. The same day, Defendant 

filed its own Motion for Summary Judgment [21].1

 The parties filed Responses 

[25, 26] on August 3, 2015. Defendant filed its Reply [27] on August 13, 2015, 

while Plaintiff filed its Reply [30] on August 20, 2015. The Court held a hearing 

 

1

 Defendant filed a Motion to Amend/Correct Motion for Summary Judgment [22] 

the next day. That motion is GRANTED. 

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on the motions on January 8, 2015. At the conclusion of the hearing, the Court 

took the motions under advisement and held a settlement conference with counsel 

for both parties. The Court held a follow-up settlement conference on January 21, 

2016. The Court has since received a request from counsel to decide the motions, 

given a breakdown in settlement negotiations. 

 For the reasons stated below, Plaintiff’s Motion for Partial Summary 

Judgment [20] and Defendant’s Motion for Summary Judgment [21] are DENIED. 

FACTUAL BACKGROUND

 In June 2009, Jarydith Mannella started working for Defendant Kroger 

Company of Michigan as a grocery clerk. In June 2010, she suffered a serious onthe-job back injury. Defendant granted her request for a leave of absence. She 

was on leave for more than two years, during which time she had two back 

surgeries. In September 2012, her doctor concluded that she could return to work 

with certain restrictions. She provided her doctor’s written opinion to Defendant. 

The manager of Manella’s store, Rick Kane, let her return to work in a part-time 

cashier position. 

 Tenniqua Hayes, a total rewards manager for Defendant, told Edward 

Rushlow, an operations manager, to conduct an “interactive process” with Manella 

to determine whether, and how, her work restrictions could be accommodated. 

Rushlow met with her on November 6, 2012. He did not observe her working. He 

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interviewed her about her ability to work as a grocery clerk (her former position) 

and as a cashier (her then-current position). He showed her Defendant’s written 

description of the cashier job, which included a description of essential functions 

and a separate description of physical demands. Manella said she was capable of 

performing all of the essential functions, but not capable of performing some of the 

physical demands. Her responses were marked on the written job description. 

 Rushlow forwarded the responses to Hayes after the interview. Hayes spoke 

with Rushlow on the phone. Relying only on Rushlow’s notes, her conversation 

with him, and her experience, Hayes decided to terminate Manella. She wrote a 

termination letter stating the following: 

 It is our understanding that you have been on light duty work 

due to an injury or illness [that occurred] on or about 09/12/12. Since 

that time you have returned to work, with reasonable 

accommodations. 

 It is also our understanding that a company representative has 

been working with you in an attempt to find ... reasonable 

accommodations that would allow you to perform the essential 

functions of an available position .... Unfortunately, the search for 

such positions was not successful and there is no reasonable 

accommodation that would allow you to perform the essential 

functions of an available position. 

 Therefore, based upon the foregoing, this is to advise you that 

you are being administratively terminated from employment. 

On December 4, 2012, an HR rep called Manella into a manager’s office, informed 

her of her termination, and read Hayes’ letter aloud. Manella subsequently filed an 

EEOC complaint, resulting in the EEOC bringing this suit. 

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ANALYSIS

 Defendant assumes, without formally conceding, that Manella is “disabled” 

within the meaning of the Americans with Disabilities Act (ADA). Disability 

discrimination in violation of the ADA includes “the failure to provide reasonable 

accommodation to an otherwise qualified individual with a disability, unless doing 

so would impose an undue hardship on the employer’s business.” Keith v. County 

of Oakland, 703 F.3d 918, 923 (6th Cir. 2013) (citing 42 U.S.C. § 12112(b)(5)). 

Once a plaintiff shows that she is disabled and otherwise qualified for a position, 

with or without reasonable accommodation, the burden shifts to the defendant to 

show an undue hardship imposed by accommodating the plaintiff. Id. (citing 

Kiphart v. Saturn Corp., 251 F.3d 573, 581 (6th Cir. 2001)). “Otherwise 

qualified” means capable of performing the position’s “essential functions.” Id. at 

925 (citing 42 U.S.C. § 12111(8)). 

 The dispute in this case boils down to (1) whether Manella was capable of 

performing the essential functions of the cashier position she was fired from and, if 

not, (2) whether accommodations to make her capable, such as using hand 

scanners instead of lifting items or working only in the self-scanning area, would 

have been reasonable. “Whether a job function is essential is a question of fact 

that is typically not suitable for resolution on a motion for summary judgment.” 

Id. at 926 (citing Kiphart, 251 F.3d at 585). Whether an accommodation is 

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reasonable is also generally a question of fact. Id. at 927 (citing Haschmann v. 

Time Warner Ent. Co., L.P., 151 F.3d 591, 601 (7th Cir. 1998)). 

 Defendant argues that there is no genuine issue of material fact because 

Manella conceded that she was incapable of performing some of the “physical 

demands” identified on the written job description. An employer’s written job 

description is a factor to be considered in determining whether functions are 

essential. Keith, 703 F.3d at 925 (citing 29 C.F.R. § 1630.2(n)(3)). However, it is 

only one factor in a factual inquiry. Further, the factor is entitled to less weight 

given that the job description listed the “physical demands” separately from its list 

of “essential functions.” The description and Manella’s responses are also 

ambiguous in ways requiring interpretation (i.e., factfinding). For instance, the 

description identifies “twisting” as a physical demand of the job, and Manella said 

she cannot do it—but it is unclear what “twisting” means, why cashiers need to do 

it, and whether Manella could use other means, such as turning her whole body, to 

accomplish the tasks other cashiers accomplish through “twisting.” Further, the 

annotated job description indicates that Manella is incapable of “reaching,” which 

it identifies as necessary for removing merchandise from a cart, yet also indicates 

that she is capable of removing merchandise from inside a cart—an apparent 

contradiction that renders it less reliable. Ultimately, the Court concludes that 

Manella’s concessions about her physical limitations preclude summary judgment 

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in her favor, but are insufficient to support summary judgment in Defendant’s 

favor. 

 The Court also concludes that there remains a genuine dispute regarding 

whether Defendant could reasonably accommodate Manella by letting her 

occasionally ask other employees for assistance with lifting. In a declaration 

executed by Rushlow, the manager who interviewed Manella, he claims that 

Manella occasionally asked other employees for such assistance. Defendant relies 

on this allegation, pointing out that the ADA does not require an employer to shift 

essential functions from one employee onto others. The ADA does, however, 

require an employer “to restructure the marginal functions of a job as a reasonable 

accommodation.” Keith, 703 F.3d at 927 (quoting Holbrook v. City of Alpharetta, 

911 F. Supp. 1524, 1542 (N.D. Ga. 1995)). In light of this requirement, the Keith

court held that even though a deaf lifeguard’s disability imposed extra duties on 

other lifeguards, “such as following through with certain patron inquiries or first 

aid needs,” the shift in duties did not entitle the deaf lifeguard’s employer to 

summary judgment. Id. The Keith court also acknowledged that it was 

unreasonable to expect an auto mechanic’s employer to require other employees to 

perform as much as twenty percent of the auto mechanic’s lifting duties. Id. at 928 

(citing Bratten v. SSI Servs., Inc., 185 F.3d 625, 632–33 (6th Cir. 1999)). 

However, the Keith court emphasized “the extent of reallocation” of duties in the 

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auto mechanic case. Id. Here, even if Manella required occasional assistance with 

her lifting duties, the extent of the assistance she required is unclear—particularly 

since it may have been reduced with greater use of hand scanners or more shifts in 

the self-scanning area. Whether Manella was capable of performing the job’s 

essential lifting functions with reasonable accommodations is a question for the 

jury. 

 As noted above, summary judgment is generally inappropriate on issues of 

whether job functions are essential and accommodations are reasonable. See Keith, 

703 F.3d at 926–27. The evidence here is not so overwhelmingly favorable to 

either side to overcome this rule. Thus, the Court denies both parties’ motions for 

summary judgment. 

CONCLUSION

 For the reasons stated above, 

IT IS ORDERED that Plaintiff’s Motion for Partial Summary Judgment 

[20] and Defendant’s Motion for Summary Judgment [21] are DENIED. 

SO ORDERED. 

s/Arthur J. Tarnow 

 Arthur J. Tarnow 

Dated: March 4, 2016 Senior United States District Judge 

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