### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 19

‐ 2939

A NGELA T ONYAN

, Plaintiff

‐ Appellant

,

v.

D UNHAM ’ S A THLEISURE C ORPORATION

, Defendant

‐ Appellee

.

____________________

Appeal from the United States District Court for the

Western District of Wisconsin.

No. 18

‐ cv

‐ 00402

— Barbara B. Crabb

, Judge

.

____________________

A RGUED M AY 19, 2020

— D ECIDED J ULY 20, 2020

____________________

Before E ASTERBROOK

, B RENNAN

, and S T

. E VE

, Circuit Judges

.

S T

. E VE

, Circuit Judge

. Angela Tonyan worked as a store

manager at Dunham’s Athleisure Corporation (Dunham’s)

when she su ff ered 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 fi red her.2 No. 19

‐ 2939

Dunham’s asserts, because of its lean sta ffi ng 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 fact fi nder could determine

that Tonyan was capable of performing the essential functions

of her position. We therefore a ffi rm.

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.” WhenNo. 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 recounts4 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 promoted6 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 timeNo. 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 they8 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 theNo. 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 with10 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 notNo. 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 A FFIRM the judgment of the district

court.