### In the



# United States Court of Appeals

For the Seventh Circuit

No. 15

‐ 1753

E QUAL E MPLOYMENT O PPORTUNITY

C OMMISSION

, Plaintiff

‐ Appellant

,

v.

A UTO Z ONE

, I NCORPORATED

, et al

., Defendants

‐ Appellees.

Appeal from the United States District Court for the

Eastern District of Wisconsin.

No. 2:12

‐ cv

‐ 00303

‐ WEC

— William E. Callahan, Jr.

, Magistrate Judge.

A RGUED S EPTEMBER 30, 2015

— D ECIDED J ANUARY 4, 2016

Before B AUER

, R IPPLE

, and R OVNER

, Circuit Judges.

B AUER

, Circuit Judge. Plaintiff

‐ appellant, the Equal Employ

‐

ment Opportunity Commission (“EEOC”), filed suit against

defendant

‐ appellee, AutoZone, Incorporated (“AutoZone”),

for dismissing Margaret Zych (“Zych”) from AutoZone’s

Cudahy, Wisconsin, location in violation of the Americans with

Disabilities Act, 42 U.S.C. § 12101 et seq. (“ADA”). Specifically,

the EEOC alleged that AutoZone failed to accommodate Zych’s2 No. 15

‐ 1753

lifting restriction and that Zych’s termination constituted

discrimination on account of her disability. After a five

‐ day

trial, the jury returned a verdict in favor of AutoZone, finding

that Zych was not a qualified individual with a disability or a

record of disability. The EEOC filed a motion for a new trial,

which the district court denied. The EEOC appealed. For the

reasons that follow, we affirm the district court.

I. BACKGROUND

AutoZone sells automobile parts in retail stores located

throughout the United States. AutoZone has a store located in

Cudahy, Wisconsin, which has a minimum staffing require

‐

ment of two to three employees in the store at all times. In

2005, Zych began working at the Cudahy, Wisconsin,

AutoZone. In 2007, she was promoted to Parts Sales Manager

(“PSM”).

In July 2007, Zych injured her right shoulder while at work.

She underwent two years of physical therapy and treatment for

her shoulder. During those two years, she had several work

restrictions, which AutoZone accommodated. In June 2009,

Zych’s doctor permanently restricted her from lifting anything

with her right arm that weighed over 15 pounds. About one

month later, AutoZone discharged Zych because it was unable

to accommodate her permanent restriction.

Zych filed a charge with the EEOC, and on March 28, 2012,

the EEOC filed suit against AutoZone claiming that it failed to

accommodate Zych’s lifting restriction and illegally terminated

her employment. A jury trial was held from November 17

‐ 21,

2014. At the close of AutoZone’s evidence, the EEOC moved

for judgment as a matter of law on the issue of whether ZychNo. 15

‐ 1753 3

was “disabled” under the meaning of the ADA. The court

denied the motion.

Before the case was submitted to the jury, the EEOC offered

a proposed “team concept” jury instruction regarding how to

determine the essential functions of a job position. The pro

‐ posed team concept instruction stated:

In team working environments, where team mem

‐

bers per

‐ form tasks according to their capacities and

abilities, job functions that are not required of all

team members are not essential functions. Where

there is no required manner in which employees are

to divide the labor, the fact that one team member

may not be able to do all the tasks assigned to the

team does not mean that person is unable to per

‐

form his or her essential functions.

The district court rejected the proposed instruction because

it found the instant matter was factually distinguishable from

prior cases dealing with the EEOC’s proposed team concept.

The judge said that the EEOC could argue this theory to the

jury in closing arguments. The EEOC did not do so; it argued

that the essential function of the PSM position was “customer

service,” and that lifting was just a “marginal function.”

The jury returned a special verdict finding that the EEOC

failed to prove by a preponderance of the evidence that Zych

was a “qualified individual with a disability or a record of

disability at the time that her employment was terminated.”

Following the verdict, the EEOC moved for a new trial. In

support of its motion, the EEOC argued: (1) the verdict was

against the manifest weight of the evidence; (2) the medical4 No. 15

‐ 1753

evidence established that Zych was disabled as a matter of law;

and (3) the jury instructions confused the jury. The district

court denied the motion.

II. DISCUSSION

The EEOC now appeals the district court’s denial of its

motion for a new trial. We address each of the issues raised by

the EEOC in turn.

A. Sufficiency of the Evidence Supporting the Jury

Verdict

We apply the “abuse of discretion” standard of review to

examine the district court’s denial of the EEOC’s motion for a

new trial on the basis that the verdict was against the manifest

weight of the evidence. Lewis v. City of Chicago Police Dep’t

, 590

F.3d 427, 444 (7th Cir. 2009) (citation omitted). We will only set

aside the verdict and remand for a new trial if “no rational jury

could have rendered” the verdict. Smith v. Wilson

, 705 F.3d 674,

677–78 (7th Cir. 2013) (citations omitted). This analysis involves

examining the evidence in the light most favorable to

AutoZone, while “leaving issues of credibility and weight of

evidence to the jury.” King v. Harrington

, 447 F.3d 531, 534 (7th

Cir. 2006) (citation omitted).

To establish a prima facie failure to accommodate claim

under the ADA, the EEOC had to show that: (1) Zych was a

qualified individual with a disability; (2) AutoZone was aware

of her disability; and (3) AutoZone failed to reasonably

accommodate her disability. See James v. Hyatt Regency Chicago

,

707 F.3d 775, 782 (7th Cir. 2013) (citation and quotation

omitted). In this case, the jury found that the EEOC failed toNo. 15

‐ 1753 5

prove the first element, so the issue is whether a rational jury

could have found that Zych was not a qualified individual

with a disability.

Under the ADA, a “qualified individual” is someone who,

“with or without reasonable accommodation, can perform the

essential functions of the employment position” at issue. 42

U.S.C. § 12111(8) (emphasis added). In addition, EEOC

regulations clarify that essential functions are the “fundamen

‐

tal job duties” of the position, as opposed to the “marginal

functions.” 29 C.F.R. § 1630.2(n)(1). Further, the employer’s

judgment, the amount of time performing the function at issue,

the work experience of prior employees in the same position,

and written job descriptions are among the relevant evidence

that can be considered to determine the essential functions of

a position. 29 C.F.R. § 1630.2(n)(3).

Here, Zych was unable to lift more than 15 pounds with her

right arm. Thus, if the evidence at trial showed that heavy

lifting was a fundamental duty of the PSM position, as op

‐ posed to a marginal function, then a rational jury could have

found that Zych was not a qualified individual with a disabil

‐ ity.

At trial, AutoZone presented testimony from former PSMs

at the Cudahy, Wisconsin, location regarding the lifting

requirements of a PSM. For example, Angel Maldonado

(“Maldonado”) testified that the PSM job functions included

lifting and moving the items at the store, as well as the items

brought in by the customers, at least 30

‐ 40 times per day.

Maldonado agreed that lifting the products sold at the store

was a “regular part” of the job, and that when he initially6 No. 15

‐ 1753

received the PSM position, he understood that it involved

“heavy lifting.” Tabari Stewart (“Stewart”), another former

PSM at the Cudahy, Wisconsin, location, testified that it was a

regular aspect of customer assistance to retrieve an item from

the store, hold it for the customer to inspect, and even carry the

item to the customer’s car. In addition, the testimony at trial

established that the items at the store could weigh substantially

more than 15 pounds. For example, car batteries could weigh

anywhere from 25 to 75 pounds. Cases of antifreeze and motor

oil weighed around 30 pounds. AutoZone also established an

itemized list of other products within the store that weighed

over 15 pounds, such as brakes, rotors, brake drums, ready

‐

mount struts, and radiators.

The testimony also brought out that the PSM position

involved performing customer service functions that required

heavy lifting, such as charging customers’ batteries, installing

car batteries, and recycling customers’ oil (which could weigh

up to 20

‐ 30 pounds). The PSM had to organize “planograms”

as well. Planograms involve the way that the products are

arranged on the shelves throughout the store. Stewart testified

that the PSM sometimes had to conduct a “full reset”

planogram, in which all of the products (which could weigh

over 40 pounds each) had to be removed from the shelves, the

shelves re

‐ arranged, and then the products re

‐ stacked.

AutoZone further produced evidence regarding “truck

days.” Truck days occurred once a week, and involved

unloading items from delivery trucks in order to re

‐ stock the

supply at the store. Truck days involved moving both light and

heavy items, but even the light items could be heavier if they

were stored in “totes.” Stewart testified that truck daysNo. 15

‐ 1753 7

involved “nothing but lifting,” and that the PSM was expected

to lift along with all of the other AutoZone employees. In

addition to truck days, the PSM position was also responsible

for handling daily “hub deliveries,” which could also involve

heavy items that sometimes weighed over 20 pounds.

Finally, AutoZone introduced a written job description

regarding the physical functions involved with the PSM

position. Under “Arm Requirements,” it states that the position

requires “constantly” carrying items up to 50 pounds, but

“usually 10 to 20 pounds.” It also states the PSM must “fre

‐ quently” lift items up to 75 pounds from floor to waist, and up

to 25 pounds horizontally. In addition, the position involves

“constantly” reaching or working with arms extended or bent,

and “frequently” twisting or rotating. Stewart testified that the

written job description accurately reflected the physical

requirements and tasks of the PSM, as did Maldonado who

agreed that it included the key duties of the position. While

Zych acknowledged that the written job description repre

‐

sented the tasks that she performed as a PSM, she disagreed

with the phrase “constantly,” and stated that the position also

involved paperwork.

From the substantial evidence presented at trial, a rational

jury could have concluded that heavy lifting was a fundamen

‐

tal duty of the PSM position, rather than merely a marginal

function. Since Zych could not lift more than 15 pounds with

her right arm, there was sufficient evidence for a rational jury

to find that she could not perform the essential functions of the

PSM position. Thus, a rational jury could find that Zych was

not a qualified individual with a disability. Therefore, the

verdict was not against the manifest weight of the evidence8 No. 15

‐ 1753

and the district court did not abuse its discretion in denying

the motion for a new trial. 1

Also, the EEOC points out that Barry Kurta (“Kurta”),

another employee at the Cudahy, Wisconsin, AutoZone, had

a paralyzed left arm and could only lift objects with his right

arm. The EEOC argues that if Zych is not qualified because of

her lifting restriction with her right arm, then Kurta should be

deemed unqualified as well, and the fact that he is not means

that Zych should be deemed a qualified individual with a

disability. AutoZone responds that Kurta is a “red herring”; he

was a part

‐ time employee with a different position than Zych,

which meant that he would never be alone in the store.

Further, Kurta had no official lifting restriction, although there

was testimony that he needed help lifting objects that were too

awkwardly shaped to carry with one arm. Kurta also stated

that he did not do heavy lifting when he waited on customers.

But, there was testimony that he could lift heavy items such as

rotors and car batteries with one arm, and he participated in

lifting on truck days. In contrast, Maldonado testified that he

did not see Zych lift rotors or other heavy items with one arm.

As discussed above, regardless of Kurta’s status, there is

sufficient evidence in the record to support the jury’s verdict

that Zych was not a qualified individual with a disability. “Our

1 Since we are upholding the jury’s finding that Zych was not a “qualified

individual with a disability,” the issue of whether Zych was disabled as a

matter of law is moot and we need not discuss it. See Majors v. Gen. Elec. Co.

,

714 F.3d 527, 533 (7th Cir. 2013) (“We don’t need to decide whether [the

plaintiff] has a disability, though, because there was no issue of fact as to

whether [she] was a qualified individual”).No. 15

‐ 1753 9

appellate function is completed when we are convinced that

there is an evidentiary basis in the record for the jury’s verdict

... ‘it [is] immaterial that the court might draw a contrary

inference or feel that another conclusion is more reasonable.’”

Rogers v. ACF Indus., Inc.

, 774 F.3d 814, 819 (7th Cir. 1985)

(citing Lavender v. Kurn

, 327 U.S. 645, 652–54 (1946)). “The fact

that [the EEOC] presented evidence that is inconsistent with

the jury’s verdict does not mean that the verdict should be

reversed.” Lowe v. Consol. Freightways of Del., Inc.

, 177 F.3d 640,

643 (7th Cir. 1999) (citation omitted). Thus, while it may be

inconsistent for AutoZone to find that Kurta is qualified but

Zych is not, it does not mandate this court to set aside the

jury’s verdict.

B. Denial of Proposed Team Concept Jury Instruction

The EEOC acknowledges that the district court’s jury

instructions for determining an “essential function” of a job

correctly cite the applicable federal regulations. However, the

EEOC argues that the district court’s denial of its proposed

team concept instruction provided the jury with an “incom

‐ plete and misleading” statement of the law, which confused

the jury and prejudiced the EEOC. We disagree.

“We review the district court’s refusal to give a jury

instruction only for abuse of discretion.” Rapold v. Baxter Int’l

Inc.

, 718 F.3d 602, 609 (7th Cir. 2013) (citation omitted). We

examine the jury instructions as a whole, and only reverse and

remand for a new trial if the instructions did not sufficiently

inform the jury of the applicable law and the instructions

prejudiced the EEOC. Id. (citations omitted). “Even if we

believe that the jury was confused or misled, we would need10 No. 15

‐ 1753

to find that the [EEOC] [was] prejudiced before ordering a new

trial.” Jimenez v. City of Chicago

, 732 F.3d 710, 717 (7th Cir. 2013)

(citations omitted).

The EEOC relies exclusively on Miller v. Illinois Department

of Transportation

, 643 F.3d 190 (7th Cir. 2011), to support its

argument that the district court had to allow its proposed jury

instruction. We agree with the district court that this case is

factually distinguishable from Miller

.

In Miller

, the plaintiff was a member of six

‐ person bridge

crew for the Illinois Department of Transportation (“IDOT”),

which was responsible for a wide variety of tasks. Miller

, 643

F.3d at 192. Once the plaintiff began his employment with

IDOT, he informed his team leader that had a fear of heights

and that there were a few discrete tasks (such as “walk a

bridge beam”) that he could not do. Id. IDOT informally

accommodated the plaintiff by having another member of the

bridge crew perform the duties involving heights. Id. at 193.

IDOT also informally accommodated other members of the

bridge crew who could not perform other discrete tasks in a

similar manner. Id. These included one member who could not

weld, one who would not ride in the “snooper bucket,” and

another who would not spray bridges or mow the yards due

to his allergies. Id. The court found that “[o]n this record, a

reasonable jury could find that working at heights

... was not

an essential function for [the plaintiff] as an individual member

of the bridge crew.” Id. at 198. The court also distinguished

prior cases in which reassigning an essential function to

another co

‐ worker did not constitute a reasonable accommoda

‐

tion, and stated that “[w]hat sets this case apart from those

earlier cases is [plaintiff’s] evidence that it was in fact theNo. 15

‐ 1753 11

normal course for individual members of the bridge crew to

substitute and reassign tasks among themselves according to

individual abilities, preferences, and limitations.” Id. at

199–200.

The EEOC argues that its proposed team concept instruc

‐

tion was necessary because the staffing at the Cudahy, Wiscon

‐

sin, AutoZone store presents a similar team work environment

as the IDOT bridge crew in Miller

. The EEOC supports this

comparison by citing a passage from the AutoZone employee

handbook that states that employees should “ask for help

when needed” if lifting heavy objects. In addition, the EEOC

notes that employees at AutoZone were evaluated based on

“teamwork” and whether the employee “helps the team

succeed.” The EEOC also relies on testimony from multiple

AutoZone employees who acknowledged helping Zych (and

Kurta) lift heavy objects, as well as Zych’s own testimony that

before her injury other co

‐ workers had occasionally helped her

or “other women” lift heavy items that she or the other women

could not carry by themselves. Finally, the EEOC notes that

during truck days, Zych testified that she would often do the

scheduling and other paperwork that her co

‐ workers in the

PSM position did not know how to do, and in exchange those

co

‐ workers would do Zych’s lifting instead.

We disagree with the EEOC’s comparison between this case

and Miller

. First, since it is common practice for employers to

promote cooperation and teamwork amongst their employees,

the fact that AutoZone uses teamwork as a criteria for evaluat

‐ ing its employees did not mandate the district court to admit

the EEOC’s proposed jury instruction. Second, the evidence

presented does not show a distribution of labor system in12 No. 15

‐ 1753

which the “normal course” was for Zych to substitute and

reassign discrete tasks involving lifting certain heavy items and

in exchange other employees did not do discrete tasks that they

were unable to do. Rather, the record indicates that if Zych, or

anyone else, needed help lifting something, someone would

help them, which both the employee guidelines and common

courtesy dictate.

This case is more factually analogous to cases involving

lifting restrictions in which the proposed accommodation was

requiring someone else to do the lifting for the employee at

issue. Here, as in those cases, such an accommodation is not

reasonable because it is essentially delegating the PSM position

to another employee. See James

, 707 F.3d at 778, 783 (finding it

was not a reasonable accommodation for a banquet steward at

a hotel with a lifting restriction to delegate lifting objects

involved with maintaining the banquet hall and transporting

food and equipment to another employee at the hotel); see also

Majors

, 714 F.3d at 531, 534 (employee with lifting restriction

was not qualified for position that involved “intermittent

movement of heavy objects,” and having another employee do

the lifting was not a reasonable accommodation).

Furthermore, “a judge need not deliver instructions

describing all valid legal principles.” Gehring v. Case Corp.

, 43

F.3d 340, 343 (7th Cir. 1994). “Rather than describing each

possible inference of the evidence, the judge may and usually

should leave the subject of the interpretation of the evidence to

the argument of counsel.” Hasham v. Cal. State Bd. of Equaliza

‐

tion

, 200 F.3d 1035, 1051 (7th Cir. 2000) (citation omitted). In

this case, the EEOC’s proposed team concept instruction was

an attempt to have the jury draw an inference that heavy liftingNo. 15

‐ 1753 13

was not an essential function of the PSM position because

Zych’s co

‐ workers could lift the items that Zych was unable to.

The district court was not obligated to promulgate such an

inference within the jury instructions. Rather, it was proper for

the district court to instead allow the EEOC to make its team

concept argument to the jury in its closing arguments.

Finally, the district court’s denial of the proposed instruc

‐

tion did not prejudice the EEOC. We determine whether the

EEOC was prejudiced by examining “the instructions as a

whole, along with all of the evidence and arguments

, to deter

‐

mine whether the jury was misinformed about the applicable

law.” United States v. White

, 443 F.3d 582, 587–88 (7th Cir. 2006)

(emphasis added) (quotation and citation omitted). Although

the district court denied the instruction, the judge allowed the

EEOC to argue its team concept theory to the jury during its

closing arguments. Yet, the EEOC abandoned this theory, and

instead claimed during closing arguments that heavy lifting

was a “marginal function” of the PSM position. Since the

EEOC decided not to present the team concept argument,

despite the district court expressly stating that it could, the

EEOC cannot now claim that it was prejudiced by the district

court’s refusal to admit its proposed jury instruction. 2

2 The EEOC also notes that during deliberations the jury asked for

permission to express its views on AutoZone’s conduct. The EEOC

interprets this request to mean that even though the jury believed that

heavy lifting was an essential function, the jury wanted AutoZone to allow

Zych “to continue receiving help.” The EEOC claims that this indicates that

if the proposed jury instruction was admitted, it would have led the jury to

vote differently. Therefore, the EEOC claims it was prejudiced. This

(continued...)14 No. 15

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III. CONCLUSION

For the foregoing reasons, the judgment of the district court

is AFFIRMED.

2 (...continued)

argument is pure speculation, and is insufficient to invalidate the jury’s

verdict.