In the

United States Court of Appeals

For the Seventh Circuit ____________________ 

No. 22-2067 

KAREN R. HIRLSTON, 

Plaintiff-Appellant, 

v.

COSTCO WHOLESALE CORPORATION, 

Defendant-Appellee. 

____________________ 

Appeal from the United States District Court for the

Southern District of Indiana, Indianapolis Division. 

No. 1:17-cv-04699-TWP-MPB — Tanya Walton Pratt, Chief Judge. 

____________________ 

ARGUED FEBRUARY 7, 2023 — DECIDED SEPTEMBER 1, 2023 

____________________ 

Before HAMILTON, BRENNAN, and JACKSON-AKIWUMI, Circuit Judges. 

HAMILTON, Circuit Judge. Plaintiff Karen Hirlston worked 

for several years as the Optical Manager at a Costco store. 

Hirlston has disabilities that make it hard for her to bend, 

walk, and stand. In 2015, Costco planned to remodel the optical department in a way that would make it more difficult for 

Hirlston to continue working in that job. The parties discussed accommodations, including work restrictions 
2 No. 22-2067 

designated by Hirlston’s doctor. Costco determined that no 

accommodations would allow Hirlston to continue as Optical 

Manager after the remodeling. Costco also decided that she 

had not been carrying out the essential functions of her job 

before the remodeling. She had been acting contrary to her 

doctor’s restrictions and delegating to other employees tasks 

that Costco believed were essential for her to carry out herself. 

Costco placed Hirlston on involuntary leave and later assigned her to a different job paying less money. 

Hirlston filed this suit under the Americans with Disabilities Act (ADA) against Costco for disability discrimination 

and retaliation. See 42 U.S.C. §§ 12111(8), 12112, & 12203(a). A 

jury ruled against her, finding that she was not qualified to do 

the Optical Manager job at the critical time, in November 

2015. Hirlston has appealed. She argues that the trial court 

used an improper special verdict form, gave an erroneous 

jury instruction on the central issue of being qualified for the 

job, and erred by allowing Costco to show the jury two photographs that it had not timely disclosed in discovery. 

We affirm. First, the special verdict form simply was not 

erroneous. Second, Hirlston forfeited her appellate challenge 

to the jury instruction by failing to make a timely objection. 

On plain-error review, we find that the key instruction included an error, at least in the abstract, but we are not convinced the error harmed Hirlston’s case so as to require a new 

trial despite her forfeiture. Finally, the judge did not abuse her 

discretion by allowing both plaintiff and defendant to introduce a few photographs of the workplace that had not been 

disclosed in discovery.
No. 22-2067 3

I. Factual and Procedural Background

A. Hirlston’s Job as Optical Manager

Since Hirlston’s childhood, she has lived with disabilities 

that render her unable to lift significant weights, to stand for 

long periods of time, or to walk without a cane. Hirlston 

found a job at a Costco store in Indianapolis in its optical department. She quickly earned a promotion to Optical Manager. Five years into her tenure, though, Costco announced a 

plan to remodel the optical department. Before the remodel, 

computer monitors for handling customer orders and other 

information had been placed on countertops. With that arrangement, Hirlston could sit down to work with customers. 

Part of the planned remodeling was to build computer monitors directly into the counters to keep others from seeing customers’ confidential health information. The arrangement 

would have required Hirlston to stand much longer than she 

could tolerate. 

Hirlston approached Costco management to discuss possible accommodations that would enable her to continue as 

Optical Manager. Costco asked Hirlston for her doctor’s restrictions. These included significant limits on bending, 

stooping, and kneeling, as well as lifting, standing, and walking. These restrictions were not consistent with Costco’s view 

of the essential functions of an Optical Manager, both before 

and after the remodeling of the department. Costco thought 

the Optical Manager would need to be able to bend, stoop, 

and kneel occasionally, less than two and a half hours per day. 

Hirlston’s doctor said she could “never” bend, stoop, or kneel. 

Costco thought the Optical Manager would need to be able to 

lift ten pounds or more, but Hirlston’s doctor said she should 

not lift more than five pounds. Costco thought the Optical 
4 No. 22-2067 

Manager would need to stand two and a half to five hours per 

day. Hirlston’s doctor said she could stand no more than fifteen minutes at a time. And Costco thought the Optical Manager would need to walk two and a half to five hours per day. 

Hirlston’s doctor said she could walk no more than ten 

minutes at a time.

B. Discussions About Reasonable Accommodations

Hirlston proposed several accommodations that she said 

would enable her to perform the job’s essential functions, including a seated workstation so she could sit, polarized computer screens so no one else could directly see customer information, and a “grabber” so she could reach items on or close 

to the floor. Costco found that, even with Hirlston’s proposed 

accommodations, the Optical Manager job requirements 

would still have conflicted with her doctor’s restrictions, so 

that her proposed accommodations would not have been reasonable. 

Since Costco thought no accommodations could keep 

Hirlston in her Optical Manager job, it placed her on a leave 

of absence while she tried to find another job with Costco. 

Some months later, after updating her medical restrictions, 

Hirlston found a job at a different Costco location, but with 

less responsibility and lower pay. Hirlston later filed a charge 

with the EEOC, received a right-to-sue letter, and sued Costco 

for discrimination and retaliation in violation of the ADA. 

C. The Trial

At the three-day trial, the central dispute was whether any 

reasonable accommodation could have allowed Hirlston to 

perform the essential functions of an Optical Manager without violating her doctor’s restrictions. Hirlston argued that if 
No. 22-2067 5

Costco had not rushed to put her on leave, it would have identified one, such as a powered sit-to-stand wheelchair. Costco 

disagreed. It argued that Hirlston’s doctor’s restrictions made 

her unqualified for even her current job without “workarounds,” like asking other employees to do some of her work, 

that Costco thought were improper. Costco argued that it had 

provided Hirlston reasonable accommodations in the form of 

a leave of absence and reassignment to her new job. See 42 

U.S.C. § 12111(9)(B) (reasonable accommodation may include 

“reassignment to a vacant position”).

The jury found for Costco, answering on a special verdict 

form that Hirlston had not shown she was qualified to do the 

Optical Manager job in November 2015. The district court denied Hirlston’s post-trial motions and entered judgment for 

Costco.

II. Analysis

A. The Verdict Form

The jury verdict form included the same first question for 

Hirlston’s ADA claims for discrimination and failure to accommodate: “Was Ms. Hirlston qualified to perform her job 

as an Optical Department Manager in November 2015?” Hirlston argues on appeal that the question should have read differently. 

1. Whether Plaintiff Preserved Her Objection

The parties debate whether Hirlston preserved her objection to the verdict form. Federal Rule of Civil Procedure 51(b) 

requires the district court to inform the parties— before the 

court instructs the jury and before closing arguments—how it 

intends to instruct the jury. It must also give counsel an opportunity to register any objections. For purposes of Rule 51, 
6 No. 22-2067 

a verdict form is part of the jury instructions. See Schmitz v. 

Canadian Pacific Ry. Co., 454 F.3d 678, 683–84 (7th Cir. 2006) 

(applying Rule 51 to verdict form); Ayuyu v. Tagabuel, 284 F.3d 

1023, 1026 (9th Cir. 2002) (same). 

Rule 51(c) requires that objections to instructions and verdict forms be stated distinctly with supporting grounds. Objections are timely if made during the opportunity the court is 

supposed to provide under Rule 51(b). If the judge fails to 

provide an opportunity for a timely objection, however, an 

objection is timely if “the party objects promptly after learning that the instruction or request will be, or has been, given 

or refused.” Fed. R. Civ. P. 51(c)(2); see also 7th Cir. R. 56(a) 

(“Opportunity to Object and Make Proposals on the Record”). 

If no timely objection is made, a court may consider a “plain 

error” in the instructions if the error has affected “substantial 

rights.” Fed. R. Civ. P. 51(d)(2).

The record here shows that Hirlston made a timely objection to the verdict form because the court did not give counsel 

an opportunity to object before the court instructed the jury 

and provided the verdict form. The parties disputed the verdict form all through the trial. Even after closing arguments, 

the form had not been finalized. The judge then instructed the 

jury and sent the jurors to the jury room as their lunches arrived. While the jurors were presumably having lunch, the 

judge and lawyers continued to discuss the verdict form. The 

judge had urged the attorneys to agree on a verdict form but 

also said she was “inclined to give Costco’s version.” Hirlston 

objected, claiming Costco’s version did not track the jury instructions. The judge responded, “I’ll let you know.” After 

more debates over the verdict forms, the judge provided a 
No. 22-2067 7

final chance “to get together and give me a verdict form. And 

if not, I’ll just use the one that I want to use.” 

Counsel never agreed on a verdict form. The court submitted its own version to the jury. About two hours later, the jury 

reported that it had reached a verdict. Before the verdict was 

returned, the court noted on the record that counsel had been 

unable to agree and that the court had drafted its own version 

of the verdict form. Neither counsel saw the final verdict form 

before the jury began deliberations. When the jury returned 

its verdict, the only question it answered was the question 

whether Hirlston was qualified for her job as Optical Manager 

in November 2015. The jury answered “no” and did not proceed further. Under Rule 51, because there was no opportunity to register objections to the form the court actually gave 

to the jury, Hirlston did not forfeit her objection to the verdict 

form.

2. The Claimed Error

The verdict form was not erroneous, however. The form 

given to and returned by the jury asked: “Was Ms. Hirlston 

qualified to perform her job as an Optical Department Manager in November 2015?” Hirlston argues that the question 

should have had the following italicized phrase added: “Was 

Ms. Hirlston qualified to perform her job as an Optical Department Manager in November 2015 either with or without the 

reasonable accommodations?” 

Under the ADA, an employee with a disability is qualified 

for a position if she can perform the essential functions of the 

position with or without reasonable accommodations. 

42 U.S.C. § 12111(8). The jury instructions included the reasonable accommodation point in the definition of “qualified,” 
8 No. 22-2067 

as we discuss below. A question on a verdict form need not 

define or explain again terms that have already been adequately defined or explained in the jury instructions. EEOC v. 

Management Hospitality of Racine, Inc., 666 F.3d 422, 440 (7th 

Cir. 2012) (“In evaluating whether a verdict form is confusing 

or misleading, we consider the verdict form in light of the instructions given to determine ‘whether [the jury] had [an] understanding of the issues and its duty to determine those issues.’”), quoting Happel v. Walmart Stores, Inc., 602 F.3d 820, 

827 (7th Cir. 2010). The question on the verdict form thus did 

not need to include all the nuances of the concept, including 

the important reasonable accommodation point. In fact, the 

question in the judge’s verdict form here tracked closely the 

question in the special verdict form included in this circuit’s 

pattern jury instructions for ADA claims: “Was Plaintiff qualified to perform [his job] [the job he sought]?” Seventh Circuit 

Civil Pattern Instruction 4.15(2).1

B. The Jury Instructions

1. Whether Plaintiff Preserved Her Objection

The parties also debate whether Hirlston preserved her 

objection to the jury instruction on reasonable 

accommodations. Applying Rule 51 again, we conclude she 

did not. The evening before the final day of trial, counsel met 

with the district judge off the record to discuss the final jury 

1 Hirlston’s version of the question also posed two further problems. 

First, her phrase “with or without the reasonable accommodations” seems 

to refer to some particular accommodations without identifying which 

ones. Second, the proposed phrase also seemed to ask the court to declare 

certain proposed accommodations to have been reasonable when those 

issues were disputed. 
No. 22-2067 9

instructions. The next morning, Hirlston’s counsel modified 

their position on the instruction defining “qualified” under 

the ADA. Her counsel asked that the final jury instructions 

define “qualified” generically to mean she could do the job’s 

essential functions “with or without reasonable 

accommodation,” without any reference to who had 

proposed any accommodations or when. Costco’s lawyer 

agreed to that change, and the court agreed to make those 

revisions. Later, the court said that it had made Hirlston’s 

requested revisions. That was a mistake, however. The court 

had not made that change that both counsel had agreed upon. 

The problem is that neither Hirlston’s counsel nor anyone else 

noticed the oversight. Hirlston’s lead lawyer said, “I’m 

reviewing it now.” That was also a mistake. She apparently 

was reviewing not the definition of “qualified” but a different

instruction. Thus, Hirlston’s counsel continued to discuss 

other matters, apparently without detecting or objecting to 

the oversight on the definition of “qualified.” 

The misunderstanding here was unfortunate but not unprecedented. Similar events unfolded in Spanish Action Committee of Chicago v. City of Chicago, 766 F.2d 315 (7th Cir. 1985). 

The governing law (on the standard for punitive damages) 

changed during trial, so the plaintiff submitted a revised instruction accurately stating the law at the end of the trial. Id. 

at 318. But the court gave an instruction that did not reflect 

the changes the plaintiff requested. The court told counsel incorrectly that it had made only certain changes but not others. 

The plaintiff’s counsel replied, “I see that,” and failed to object 

to the unchanged jury instruction because the lawyer was 

looking at the wrong language. After losing at trial, the plaintiff appealed. We held that the plaintiff’s objections to an earlier version of the punitive damages instruction did not 
10 No. 22-2067 

preserve objections to the court’s amended jury instruction as 

given. Id. at 319; accord, United States v. Hollinger, 553 F.2d 535, 

544–45 (7th Cir. 1977) (failure to make timely objection to district court’s erroneous reading of final instruction precluded 

review under earlier version of Fed. R. Crim. P. 30(d) that did 

not expressly authorize plain-error review for forfeited errors).

As in Spanish Action Committee, Hirlston proposed a revised instruction, which the district court inaccurately said it 

had revised. Hirlston then failed to object, perhaps because 

her counsel were reviewing the wrong final instruction. As in 

Hollinger, we can assume that Hirlston’s counsel thought the 

court would instruct the jury in accord with its description of 

the revisions. Still, counsel needed to check the actual final instructions presented to them, notwithstanding the judge’s erroneous or incomplete description of revisions. See Hollinger, 

553 F.2d at 544–45. To be timely, any objection to the final instructions needed to be made before the instructions were 

given and before the jury retired to deliberate. Id. at 545.

Citing Schmitz v. Canadian Pacific Railway again, however, 

Hirlston argues that she had no fair opportunity to object to 

the wording of the final version of the instruction. See 454 F.3d 

at 683–84. Hirlston contends that she had only one minute to 

review the proposed jury instructions. She notes that she received final jury instructions at 11:19 a.m., and that the lawyers and the judge went on the record to discuss them at 11:20 

a.m. That does not mean only one minute elapsed between 

discussion and agreement. An earlier morning conference on 

instructions consumed about 32 pages of transcript. R. 185 at 

510–42. After testimony of one last witness and arguments on 

legal motions, the teams of lawyers then spent roughly fifteen 
No. 22-2067 11

minutes, starting at 11:20 a.m., discussing with the judge the 

very-last-minute amendments to the jury instructions, which 

are the ones at issue on appeal. Hirlston’s attorneys divided 

responsibility between reviewing instructions and objecting 

to errors. As the court explained, “You’ve got several lawyers, 

so one lawyer needs to work on getting the instructions while 

the other argues.” That was not unreasonable given the press 

to send the case to the jury. “[A]lthough the opportunity to 

object in the time provided by Rule 51 was short in this case, 

the opportunity was nonetheless there.” Lewis v. City of Chicago Police Dep't, 590 F.3d 427, 435 (7th Cir. 2009). Hirlston 

failed to preserve her objection to the final instruction on the 

issue of being qualified for her job.

“When a party fails to object to an instruction, the court 

will reverse only if there was a ‘plain error affecting substantial rights.’” Id. at 433, citing Fed. R. Civ. P. 51(d)(2). Plain error 

under Rule 51(d)(2) requires that “(1) there must be an error; 

(2) the error must be plain; (3) the error must affect substantial 

rights; and (4) the error must seriously affect the fairness, integrity, or public reputation of judicial proceedings.” Walker 

v. Groot, 867 F.3d 799, 803–04 (7th Cir. 2017), quoting Fed. R. 

Civ. P. 51, 2003 note, citing in turn Johnson v. United States, 520 

U.S. 461, 466–67, 469–70 (1997); see also, e.g., Ammons–Lewis 

v. Metropolitan Water Reclamation Dist. of Greater Chicago, 488 

F.3d 739, 751 (7th Cir. 2007) (finding no plain error in jury instructions). 

When plain-error review for forfeited objections to civil 

jury instructions was introduced in amendments to Rule 51 in 

2003, the Advisory Committee notes signaled clearly that the 

standard for plain-error reversal in a civil case would be even 

more difficult to satisfy than in a criminal case. The notes 
12 No. 22-2067 

recognized that “the context of civil litigation often differs 

from the context of criminal prosecution” and that “actual application of the plain-error standard takes account of the differences.” Fed. R. Civ. P. 51, 2003 note. We said in Walker, “The 

clear implication is that the standard is more difficult to satisfy in civil cases, at least where liberty is not at stake and 

where the public interest at stake may be minimal.” 867 F.3d 

at 804 n.2; see also Henry v. Hulett, 969 F.3d 769, 786 (7th Cir. 

2020) (en banc) (“our ability to review for plain error in civil 

cases is severely constricted, as a civil litigant should be 

bound by his counsel’s actions,”) (cleaned up), quoting SEC 

v. Yang, 795 F.3d 674, 679 (7th Cir. 2015), quoting in turn Deppe 

v. Tripp, 863 F.2d 1356, 1360 (7th Cir. 1988).

2. The Claimed Error

Both of Hirlston’s ADA claims required her to show she 

was a qualified individual with a disability, meaning she had 

to be able to perform the essential job functions of an Optical 

Manager with or without reasonable accommodations. 

42 U.S.C. § 12111(8); Curtis v. Costco Wholesale Corp., 807 F.3d 

215, 224 (7th Cir. 2015). 

Hirlston argues that the jury instructions erroneously defined “qualified.” The court instructed the jury: “Under the 

ADA, Ms. Hirlston was ‘qualified’ if she ... could do the job’s 

essential functions, either with or without the reasonable accommodation she proposed.” Hirlston argues that the “she proposed” phrase was erroneous because it effectively limited 

her case at trial to the accommodations she had proposed in 

the interactive process with Costco managers to find a reasonable accommodation. 
No. 22-2067 13

As a general rule, we agree with Hirlston that an ADA 

plaintiff is not necessarily limited at trial to the accommodations she proposed before the lawsuit. We are not convinced, 

however, that the instruction as given was so prejudicial to 

Hirlston that we should reverse on plain-error review and order a new trial on this forfeited issue. 

Hirlston’s argument on appeal raises a sometimes tricky 

but important issue in ADA litigation. The ADA plaintiff has 

the burden of showing at trial that a reasonable accommodation would have enabled her to do the essential functions of 

the job in question. E.g., Spurling v. C&M Fine Pack, Inc., 739 

F.3d 1055, 1062 (7th Cir. 2014). But the question may arise 

whether and to what extent the plaintiff might be limited at 

trial to accommodations she proposed to the employer or that 

were discussed in the “interactive process” between employer 

and employee contemplated by the ADA. The answer may 

depend on which side is deemed more responsible for the 

breakdown of the interactive process. See, e.g., Spurling, 739 

F.3d at 1062; EEOC v. Sears, Roebuck & Co., 417 F.3d 789, 805–

06 (7th Cir. 2005); Rehling v. City of Chicago, 207 F.3d 1009, 1016 

(7th Cir. 2000) (employer’s failure to engage in interactive process may explain failure to identify appropriate accommodation); Beck v. University of Wisconsin Board of Regents, 75 F.3d 

1130, 1135–36 (7th Cir. 1996). 

The problem is illustrated well in Mlsna v. Union Pacific 

R.R. Co., 975 F.3d 629 (7th Cir. 2020), where we made clear 

that, in determining potentially reasonable accommodations, 

the “employer must consider more than just what the plaintiff 

employee proposes.” Id. at 638. In Mlsna, a railroad conductor 

had suffered significant hearing loss. He needed hearing aids 

to improve his hearing, but railroad safety regulations 
14 No. 22-2067 

required him to wear hearing protection on the job, which reduced his hearing. The employee was unable to pass hearing 

tests while wearing both hearing aids and hearing protection 

at the same time. He proposed to his employer an accommodation using custom-made hearing aids. Id. at 637. The railroad rejected that accommodation, claiming that the proposed device did not meet noise-reduction ratings. But the 

railroad never identified an alternative. Id. at 631. It simply 

terminated the conductor’s employment. The employee sued 

for failure to accommodate and lost on summary judgment.

We reversed. One reason was that the railroad had failed 

to consider alternative devices, even though many were available. Mlsna, 975 F.3d at 637. Because the employer had not 

considered potential reasonable accommodations that could 

have enabled the employee to perform his job, there was a 

question of fact whether the employer “fulfilled its obligation 

to provide [the employee] with a reasonable accommodation.” Id. at 638. During the interactive process, “[a] proposed 

accommodation is not limited to what the plaintiff introduced 

into the process.” Id. at 638–39. “The defendant employer 

must consider more than just what the plaintiff employee proposes.” Id. at 638, citing Sears, 417 F.3d at 807 (employer has 

duty to work with employee to “craft a reasonable accommodation”); Lawler v. Peoria Sch. Dist. No. 150, 837 F.3d 779, 786–

87 (7th Cir. 2016) (employer must do more than “s[i]t on its 

hands” when employee requests accommodation); Snapp v. 

United Transp. Union, 889 F.3d 1088, 1098 (9th Cir. 2018) (“It is 

the employer’s responsibility, through participation in the interactive process, to assist in identifying possible accommodations.”), quoting Morton v. United Parcel Serv., Inc., 272 F.3d 

1249, 1256 (9th Cir. 2001). Where the employer had failed to 

propose accommodations, the employee was entitled to 
No. 22-2067 15

oppose summary judgment by coming forward for the first 

time in the lawsuit with evidence of other available accommodations.

The closest Hirlston comes to showing possible prejudice 

in this trial was a portion of Costco’s closing argument. Costco 

pointed out that Hirlston had not requested one particular accommodation—a powered wheelchair. The point was not developed, however. With the more leisurely time for reflection 

on appeal, we can see the implication of the comment was that 

Costco was not required to consider a possible accommodation if Hirlston had not proposed it while still on the job. That 

implied point was not correct, as shown by Mlsna, Sears, and 

Lawler, among other cases. Costco was required to consider 

options beyond those “she proposed” to keep Hirlston in her 

current position before resorting to reassignment. Reassignment is an accommodation of last resort. See Gile v. United Airlines, Inc., 95 F.3d 492, 497 (7th Cir. 1996), citing 29 C.F.R. app., 

§ 1630.2(o). Other circuits share our understanding of this issue. See Smith v. Midland Brake, Inc., 180 F.3d 1154, 1166 (10th 

Cir. 1999) (en banc) (“[T]he employer must determine that no 

reasonable accommodation could be made to keep the disabled employee in his present position. Only then should the 

employer move to the alternative accommodation of reassignment.”); Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1301 (D.C. 

Cir. 1998) (en banc); Cassidy v. Detroit Edison Co., 138 F.3d 629, 

634 (6th Cir. 1998); Wirtes v. City of Newport News, 996 F.3d 234, 

242–43 (4th Cir. 2021) (reassignment “strongly disfavored” 

when employee can still do current job with accommodation).2

2 Our treatment of reassignment as a last resort is consistent with the 

ADA’s implementing regulations, 29 C.F.R. app., § 1630.2(o) 
16 No. 22-2067 

But it is not enough for Hirlston to show an abstract legal 

error in the instructions. This is where the narrow review 

available for forfeited objections to jury instructions is an obstacle for Hirlston, as we explain next.

The core dispute at trial was whether Hirlston could perform the essential functions of the Optical Manager job with 

reasonable accommodations, consistent with her doctor’s restrictions on her physical activity. Under Costco’s view, Hirlston could not do the essential functions consistent with her 

doctor’s restrictions, so the leave of absence and later transfer 

to a lower-paid position were reasonable accommodations 

that let Hirlston continue to work for Costco. From Hirlston’s 

point of view, though, she had been able to do the job with 

appropriate “workarounds.” In her view, Costco discriminated against her and retaliated against her by putting her on 

leave and demoting her. In some cases, a leave of absence and 

reassignment can be reasonable accommodations, but in other 

circumstances, they can be adverse employment actions. They 

(“[R]eassignment should be considered only when accommodation 

within the individual’s current position would pose an undue hardship.”), 

and applicable EEOC guidance, EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002 (Oct. 17, 2002), https://www.eeoc.gov/laws/guidance/enforcement-guidance-reasonable-accommodation-and-unduehardship-under-ada, archived at https://perma.cc/722C-9WXR (“Reassignment is the reasonable accommodation of last resort.”). This treatment 

is also consistent with the key House and Senate reports on the ADA. H.R. 

Rep. No. 101-485(II), at 63 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 345

(“Efforts should be made ... to accommodate an employee in the position 

that he or she was hired to fill before reassignment is considered.”); S. Rep. 

No. 101-116, at 29 (“[E]fforts should be made to accommodate an employee in the position that he or she was hired to fill before reassignment 

should be considered.”).
No. 22-2067 17

cannot be both at the same time in the same case. Ford v. Marion County Sheriff’s Office, 942 F.3d 839, 856 (7th Cir. 2019).

The parties presented conflicting evidence on these points, 

such as just how limiting the doctor’s restrictions were, 

whether Hirlston should have been permitted to delegate 

some physically difficult tasks to others, whether a “grabber” 

device would have allowed her to reach floor-level objects 

without bending, stooping, or kneeling, and whether a powered sit-to-stand wheelchair or a higher work chair would 

have allowed Hirlston to handle the work that she needed to 

do herself. Some evidence also addressed the interactive process, and the district court gave appropriate instructions 

about that process.

The question whether Hirlston was able to carry out the 

job’s essential functions with reasonable accommodations 

was decisive. As noted, the jury answered “no” to that question, which meant the jury went no further and ruled in favor 

of Costco on all claims before it. We are not persuaded, however, that the disputed “she proposed” phrase in the jury instruction had any effect on the verdict, let alone that it was so 

prejudicial to Hirlston that we should overlook her forfeiture. 

Even in closing argument, neither counsel focused on who 

proposed various possible accommodations or the “she proposed” phrase that Hirlston argues on appeal was so important for the jury. Defendant’s brief mention of the powered 

sit-stand wheelchair option emphasized plaintiff’s changing 

position on that option during trial, not whether she had proposed it during the interactive process. On plain-error review, 

we find that plaintiff was not prejudiced by the forfeited error 

in the instruction on the definition of “qualified” under the 

ADA. 
18 No. 22-2067 

Hirlston’s doctor’s restrictions said she could “never” 

stoop, bend, or kneel. An employer is entitled—and required—not to permit “employees [to] exceed their doctor’s 

restrictions, even if they think they can.” Tate v. Dart, 51 F.4th 

789, 801–02 (7th Cir. 2022), citing Kotaska v. Federal Express 

Corp., 966 F.3d 624, 631 (7th Cir. 2020). By the same token, an 

employee “is not entitled to ask a jury to bend the meaning of 

those restrictions.” Id.; see also Curtis v. Costco Wholesale Corp., 

807 F.3d 215, 224–25 (7th Cir. 2015) (affirming summary judgment for Costco on similar ADA claims by another Optical 

Manager; Costco honored plaintiff’s doctor’s restrictions and 

refused request for transfer until doctor cleared him for that 

work). Accordingly, despite the abstract error in the jury instruction defining “qualified,” Hirlston suffered no prejudice 

to her discrimination and failure-to-accommodate claims. The 

same reasoning extends to the retaliation claim decided by the 

district judge, whose decision was consistent with the jury’s 

verdict. Hirlston has not shown reversible error in the jury instructions. 

C. Photographs 

Finally, Hirlston argues on appeal that the district court 

erred by admitting two photographs that Costco offered despite having failed to disclose them to Hirlston during discovery. The discovery provisions in the Federal Rules of Civil 

Procedure attempt to prevent such surprises at trial. Rule 

26(a)(3)(A)(iii) requires disclosure of “each document or other 

exhibit” that the party expects to offer or may offer if the need 

arises. Rule 37(c)(1) provides that if a party has failed to provide information required under Rule 26(a), “the party is not 

allowed to use that information ... to supply evidence ... at 

trial, unless the failure was substantially justified or is 
No. 22-2067 19

harmless.” These requirements may be modified by the district court, and their enforcement is left to the court’s sound 

discretion. In re Golant, 239 F.3d 931, 937 (7th Cir. 2001). 

The record in this case shows that both sides offered as exhibits less than a handful of photographs that had not been 

properly disclosed before trial. The district court admitted 

plaintiff’s late-disclosed photographs, just as it admitted defendant’s late-disclosed photographs. Having tolerated plaintiff’s oversights, the district court did not abuse its discretion 

in allowing Costco similar leeway. In addition, we see no risk 

of unfair prejudice. The disputed photographs here showed 

storage cubicles in the optical department. Costco argued at 

trial, and used the photographs to help demonstrate, that 

these storage cubicles were too low to the floor for Hirlston to 

have used a “grabber.” We must assume that plaintiff was 

thoroughly familiar with the storage cubicles in the department she managed.

The judgment of the district court is

AFFIRMED.