Janet Kotaska v. Federal Express Corporation ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-2730
JANET KOTASKA,
Plaintiě-Appellant,
v.
FEDERAL EXPRESS CORPORATION,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:16-cv-09321 — Robert M. Dow, Jr., Judge.
____________________
ARGUED APRIL 13, 2020 — DECIDED JULY 17, 2020
____________________
Before SYKES, Chief Judge, and HAMILTON, and ST. EVE, Cir-
cuit Judges.
ST. EVE, Circuit Judge. Federal Express Corporation
(FedEx) twice ęred Janet Kotaska because she could not lift
up to 75 pounds. The ęrst time, she was limited to lifting only
60 pounds after a shoulder injury. Eventually, her condition
improved so that she could lift 75 pounds to her waist, and a
FedEx supervisor rehired her “oě the books.” Within three
2 No. 19-2730
weeks, though, FedEx discovered her capabilities above the
waist remained severely limited and dismissed her again.
Kotaska contends that this second dismissal was a viola-
tion of the Americans with Disabilities Act (ADA), 42 U.S.C.
§§ 12101–12213. The district court entered summary judg-
ment for FedEx because Kotaska had not shown she was a
qualięed individual or that the second dismissal was in retal-
iation for her complaints about the ęrst. Because we agree that
Kotaska has not carried her burden, we aĜrm the judgment.
I
FedEx is a delivery company that employs couriers and
handlers at its distribution center in Cary, Illinois. Couriers
deliver and pick up packages for FedEx customers. Handlers
are tasked with unloading packages from large shipping con-
tainers transported to the facility each morning so the couriers
can place the packages on their trucks for delivery. In the
evening, handlers unload new packages from the trucks and
reload the containers. A handler needs to unload at a pace of
roughly 1,000 packages per hour and load more than 400 per
hour to keep FedEx on its schedule.
The Cary facility accepts packages weighing up to 150
pounds, although it also delivers documents and other small
items weighing ounces, leading to an average weight of 15
pounds. For the heaviest packages, FedEx provides tools or
has two people work together to move them. Per the job de-
scription, though, each handler or courier is expected to lift
packages weighing up to 75 pounds by herself.
That an employee must lift up to 75 pounds leaves an ob-
vious question: how high? The job description does not say.
The shipping containers could be up to 8ȇ tall, with packages
No. 19-2730 3
stacked up to the top. Inside the trucks, the shelves could be
as high as 4ȇ6Ȉ above the Ěoor. Based on these facts, FedEx as-
serts, and its management testięed, that a handler needs to be
able to lift a 75-pound package above her shoulders, or even
her head. Two couriers aĴested that they would never lift 75
pounds that high. Instead, they explained, packages that
heavy would usually be placed on the Ěoor or lower shelf of
the trucks and would not be at the top of a container, crushing
those beneath it. Moreover, the handlers would use heavy,
sturdy packages as step stools or carefully topple stacks to
minimize reaching where possible. The couriers were not
asked what weights a handler would need to lift to any given
height and so their testimony on that point was vague. One
explained that 30-pound packages could be at the top of the
container or on the top shelf of the truck. The other said only
that he had “probably” lifted a 15-pound package overhead
and that placing a 30-pound package at shoulder-height was
close to the limit before he worried another employee might
have trouble geĴing it back down.
Kotaska ęrst began working for FedEx in 1998. FedEx
hired her as a hybrid courier-handler but soon promoted her
to courier. In 2011, however, she slipped on ice while out on
delivery and injured her right shoulder.
Six months after Kotaska underwent surgery on her shoul-
der, her doctor declared that she had reached maximum med-
ical improvement and would continue to have permanent re-
strictions. She could lift only 60 pounds from the Ěoor to her
waist. Between her waist and shoulder, she was limited to 30
pounds occasionally and 15, frequently. Her doctor placed the
most stringent restrictions on lifting above her shoulder: only
4 No. 19-2730
5 pounds frequently, though she could occasionally lift 15, if
she used both hands.
With this information, FedEx notięed Kotaska that she ap-
peared unable to perform the essential functions of a courier.
It informed her she had 90 days to request accommodation or
apply to another position. She applied to a handler position,
but FedEx concluded it could not accommodate her, as the job
required lifting up to 75 pounds. After FedEx terminated Ko-
taska’s employment in August 2013, she disputed her dismis-
sal through the company’s internal procedures.
After her dismissal, Kotaska regularly applied to courier
positions with FedEx to no avail. Then, in March 2015, she re-
ceived a call from Jennifer Charles, the FedEx supervisor who
had initially hired her.
Charles said she needed Kotaska to come back as a han-
dler, since she was a reliable employee. Kotaska, however,
wanted the courier position and refused, until Charles prom-
ised “oě the books” and “behind closed doors” that she
would be repromoted to courier after three weeks as a han-
dler. (Charles denies this promise.) Kotaska then accepted an
oěer for the handler job before she even applied.
When she did apply, a few days later, she aĜrmed that
she was capable of “repetitive lifting and lowering of pack-
ages that may weigh up to 75 pounds in a fast-paced environ-
ment.” This was an accurate statement, Kotaska contends, be-
cause her doctor had amended her medical restrictions. She
could now lift up to 75 pounds to her waist frequently. Her
limits above the waist remained as strict as before. She could
still lift only 5 pounds overhead, or 15 using two hands, with
No. 19-2730 5
“limited frequency.” Between waist and shoulder, she was
still limited to 15 pounds frequently, 30 pounds occasionally.
Kotaska began her handler duties in April 2015 and
worked for just under three weeks. During this period, no one
complained of her performance, which was by all accounts
exemplary. A courier, though, said she asked Kotaska for help
with an oversized package, but Kotaska responded that her
shoulder prevented her from helping. Kotaska denies this
happened and insists that she had no problems.
The courier’s story bounced through various levels of
management (some of whom knew Kotaska and were already
curious whether her injuries had healed) before reaching Brad
Fowler, a human capital advisor for FedEx. Concerned,
Fowler instructed Charles and the Cary facility’s senior man-
ager to accommodate Kotaska temporarily while he investi-
gated how she had been rehired without providing updated
medical documentation. The supervisors, however, ignored
Fowler’s command, as they had no way to accommodate her.
Kotaska worked another week without incident until
Fowler wrote her a leĴer that stated she had been complain-
ing to management about problems with her shoulder
(though she had not). Fowler noted her medical restrictions
on ęle and asked Kotaska if she had an update. After receiv-
ing her new restrictions a few days later, Fowler determined
that Kotaska was still incapable of performing the essential
functions of a handler and put her on leave. FedEx again told
her she could seek accommodation or apply to another job
within 90 days.
She was unsuccessful with both endeavors. Although Ko-
taska did not ask for accommodation, a commiĴee reviewed
6 No. 19-2730
whether it could accommodate her anyway. In its decision, it
discussed her entire employment history, including her dis-
pute about her prior termination, and concluded that it could
not accommodate her. The handler job, according to the com-
miĴee, required lifting up to 75 pounds over the waist and
overhead. She also applied to three courier positions but was
not hired.
After exhausting her administrative remedies, Kotaska
brought this suit alleging disability discrimination as well as
retaliation. She further alleged age and sex discrimination but
has abandoned those claims on appeal.
The district court entered summary judgment for FedEx.
It acknowledged there was a genuine dispute whether lifting
a 75-pound package over the waist or head was an “essential
function” of the handler position, but it concluded the dispute
was immaterial. Kotaska had provided no evidence from
which to infer that she could perform the essential functions
of the handler position without exceeding her medical re-
strictions. She also had no evidence of any causal connection
between her internal complaints and her dismissal. After un-
successfully moving for reconsideration, Kotaska appealed.
II
We review the entry of summary judgment de novo, con-
sidering the evidence in the light most favorable to Kotaska,
the nonmovant. See Bilinsky v. Am. Airlines, Inc., 928 F.3d 565,
569 (7th Cir. 2019). Under the ADA, a covered employer is
prohibited from “discriminat[ing] against a qualięed individ-
ual on the basis of disability.” 42 U.S.C. § 12112(a). A qualięed
individual is one who “can perform the essential functions of
the employment position” either “with or without reasonable
No. 19-2730 7
accommodation.” Id. § 12111(8). At summary judgment, it is
the plaintiě’s burden to provide evidence such that a rational
jury could ęnd her to be a qualięed individual. Wheatley v.
Factory Card & Party Outlet, 826 F.3d 412, 418 (7th Cir. 2016);
Miller v. Ill. Depȇt of Corr., 107 F.3d 483, 484 (7th Cir. 1997).
Whether a function is essential is a question of fact, not
law. Brown v. Smith, 827 F.3d 609, 613 (7th Cir. 2016). We are
obligated to consider the employer’s judgment and to con-
sider a job description as evidence of the job’s essential func-
tions. 42 U.S.C. § 12111(8); Shell v. Smith, 789 F.3d 715, 718 (7th
Cir. 2015). Still, the employer’s judgment is not absolute. Mil-
ler v. Ill. Depȇt of Transp., 643 F.3d 190, 198 (7th Cir. 2011).
Other factors are relevant, including the amount of time spent
on a function, the experience of those who previously or cur-
rently hold the position, and the consequences of not requir-
ing the employee to perform the function. See 29 C.F.R.
§ 1630.2(n)(3); Bilinksy, 928 F.3d at 569.
The parties agree that lifting packages, including above
the waist and shoulders, is an essential function (really the es-
sential function) of a handler. Kotaska also does not dispute
FedEx’s judgment that a handler must be able to lift up to 75
pounds by herself and up to 150 pounds with help. Where
they split is in the overlap of these facts. FedEx, at its most
extreme, asserts that a handler must also be able to lift a 75-
pound package overhead, as its management and a courier
testięed. Kotaska insists that a handler would, in practice,
carry the heaviest packages below the waist and that no han-
dler would or could lift 75 pounds overhead.
We agree that a rational jury could ęnd that the essential
functions of a handler do not include lifting a 75-pound pack-
age overhead. For one, the job description does not include
8 No. 19-2730
such specięcity. It says only that a handler must lift up to 75
pounds without any hint of a height. Two couriers further tes-
tięed that no employee would ever lift 75 pounds overhead,
and that makes sense: if 75 pounds is the upper limit of the
weight they need to lift, there is liĴle reason a handler would
place a package of that weight at the top of the pile.
This conclusion gets Kotaska only so far. To be a qualięed
individual, an employee must, if unable to perform a given
function, show that there is a dispute whether this function is
essential. See Graĵl v. OĜce of Chief Judges, 601 F.3d 674, 679
(7th Cir. 2010). Even successfully proving that one disputed
function is inessential, however, is not itself proof that the em-
ployee is qualięed. In concrete terms, that a handler need not
lift 75 pounds overhead does not show that someone who can
lift only 15 pounds overhead is qualięed to be a handler.
There are 60 pounds of possibilities in between.
Although FedEx’s position has shifted over the course of
this litigation, it has not forsaken this middle ground. It has
consistently asserted that a handler needs to lift packages
weighing up to 75 pounds over the waist and overhead. In its
initial motion for summary judgment, it contended that “up
to 75” is the same as 75 (distinguishing the two only in its re-
ply), but it did not force the position that a handler either
needs to lift 75 pounds overhead or nothing at all. Any evi-
dence that a handler needed to lift 75 pounds was competent
to prove that one also needed to lift 74 pounds, 20 pounds, or
10 pounds. The opposite is not true. Kotaska’s evidence that
No. 19-2730 9
suĜces to dispute whether a handler lifts 75 pounds does not
necessarily challenge these lesser weights.1
Again, the parties agree that lifting packages weighing up
to 75 pounds and lifting packages over the waist and overhead
are essential functions of the handler position (regardless of
who had the burden of production on this question). With
those functions established, Kotaska had the burden of per-
suasion on the question whether she was a qualięed individ-
ual. See Miller v. IDOC, 107 F.3d at 484. In other words, it was
not up to FedEx to convince us that its managers perfectly un-
derstood the job’s essential functions when they ęred Ko-
taska. Instead, it was Kotaska’s burden to provide evidence to
1 This distinction between lifting up to 75 pound and lifting 75 pounds ad-
dresses the bulk of the dissent’s criticisms of FedEx’s and the district
court’s handling of this case. The commiĴee’s leĴer made clear that a han-
dler must lift up to 75 pounds over the waist and overhead. Dissenting Op.
at 24. Likewise, the district court rightly noted overwhelming evidence
that the essential functions of a handler include lifting up to 75 pounds
over the waist and overhead (though it also rightly recognized a dispute
whether lifting 75 pounds overhead was essential in the same order). Id.
at 25. Finally, FedEx’s ground A for summary judgment (that the job re-
quires lifting up to and including 75 pounds) contains ground B (that the
job requires lifting less than 75 pounds but more than Kotaska’s limita-
tions). Id. at 28–29. This distinction is also not about FedEx being deliber-
ately vague or exaggerating. Id. at 21. It reĚects the fundamental duty of a
handler: moving packages weighing up to 75 pounds in and out of con-
tainers and trucks. FedEx did not need a handler to lift any specięc pack-
age to any specięc height, except as incidentally necessary based on where
space was available or the last person had placed the package.
10 No. 19-2730
persuade a rational factęnder that she can perform the job’s
essential functions.2
With that understanding, Kotaska’s contentions on appeal
fall short of demonstrating a dispute of material fact on this
issue. She emphasizes supposed pretext. The ęrst time FedEx
dismissed her, it said that she needed to lift 75 pounds; it spec-
ięed over the waist and overhead only the second time. She
also deems suspicious inconsistencies in witnesses’ explana-
tions for how Fowler came to learn of her restrictions and his
uncorroborated statement that she had complained to super-
visors.
We can assume there is a dispute about whether FedEx or
its employees were truthful, but this does not itself create a
material dispute about the real question: whether Kotaska is
2 We do not understand our position to be creating a circuit split. As the
dissent acknowledges, even when other circuits place a burden of produc-
tion on the employer to prove that a function is essential, the burden of
persuasion remains with the plaintiě to prove she is a qualięed individual.
See, e.g., Hawkins v. Schwanȇs Home Serv., Inc., 778 F.3d 877, 893–95 (10th
Cir. 2015); EEOC v. Wal-Mart Stores, Inc., 477 F.3d 561, 568 (8th Cir. 2007).
This case is analogous to Bates v. United Parcel Serv., Inc., 511 F.3d 974 (9th
Cir. 2007) (en banc). The Ninth Circuit concluded that the defendant had
met its burden of producing evidence that “safe driving” was an essential
function, so the plaintiěs had to persuade a factęnder that they could
drive safely—a question independent from the validity of the qualięcation
the defendant used to make its decisions. Id. at 992. FedEx showed that
loading and unloading packages up to 75 pounds is an essential function,
and it is Kotaska’s burden to show she could perform that function. This
question, too, is theoretically independent of FedEx’s reasons for making
its decision. (It is less so practically, given the unique nature of a lifting
requirement—to prove she can do the job lifting only 15 pounds she must
logically also prove she can do it lifting less than 75.)
No. 19-2730 11
a qualięed individual. Perhaps a ęnding that FedEx was dis-
honest might help prove that a handler need not lift 75
pounds over the waist or head. What it will not do is establish
the weight a handler does need to lift or conęrm it is within
Kotaska’s capabilities. The record contains a “paucity of
facts,” as Kotaska’s counsel put it, on these critical questions,
with several employees testifying that a handler must lift 75
pounds overhead and the rest geĴing no more specięc than
somewhere between 15 and 75 pounds. Of course, a lack of
evidence rarely favors the plaintiě, who cannot stave oě sum-
mary judgment with speculation about what unproduced ev-
idence might show. See, e.g., King v. Hendricks Cty. Comm’rs,
954 F.3d 981, 985 (7th Cir. 2020); Monroe v. Ind. Depȇt of Transp.,
871 F.3d 495, 503 (7th Cir. 2017); cf. Bates v. United Parcel Serv.,
Inc., 511 F.3d 974, 992 (9th Cir. 2007) (en banc) (explaining that
“[m]erely ęnding an absence of evidence” of the plaintiě’s
ability to perform an essential function is “insuĜcient”).
The liĴle evidence we do have here is underdeveloped,
murky, and disputed. The dispute, however, is immaterial.
Whatever precise weight a handler might need to lift above
the waist or shoulders, no reasonable factęnder could place
that weight within Kotaska’s stringent medical restrictions.
It is undisputed that the average package going through
the Cary facility weighed 15 pounds. Combining this average
with Kotaska’s medical restrictions means she was prohibited
from ever lifting an above-average-weight package over her
shoulders, and she could only occasionally lift some of them
above her waist. Kotaska could face obstacles even with pack-
ages weighing less than this 15-pound average because she
could lift 5 pounds above her shoulders with only “limited
frequency” (an undeęned term). The ADA, of course, does
12 No. 19-2730
not obligate an employer to let its employees exceed their doc-
tor’s restrictions, even if they think they can. See Koshinski v.
Decatur Foundry, Inc., 177 F.3d 599, 603 (7th Cir. 1999); see also
Cannon v. Jacobs Field Servs. N. Am., Inc., 813 F.3d 586, 593 (5th
Cir. 2016); Alexander v. Northland Inn, 321 F.3d 723, 727 (8th
Cir. 2003). Regardless of whether the average is the mean or
median, as Kotaska asks us to distinguish, her medical re-
strictions precluded her from lifting a substantial portion of
packages above her waist or shoulders.
We accept that Kotaska would at times have options to
avoid lifting these packages too high but do not see how a
reasonable jury can ęnd that she could do so consistently and
reliably. Kotaska is 5ȇ2Ȉ and would need to load and unload 8ȇ
tall containers and 4ȇ6Ȉ tall shelves, so many packages would
be above her waist and shoulders. She also admiĴed that even
on her ęrst day, she lifted 30-pound packages to her shoul-
ders. Similarly, one of the couriers who denied lifting 75
pounds overhead conęrmed that handlers had to lift 15-
pound packages above their shoulders daily. This testi-
mony—by far the most favorable to Kotaska—means she
would buĴ right up against the edges of her restrictions on a
normal day. Not every day is a normal day, though, and Ko-
taska admits that she could not predict the size, weight, or
placement of packages that might be in a container or truck.
She did not load the containers that she would later unload,
and she had no real control over how others loaded them. As
the other courier who disputed the 75-pound requirement tes-
tięed, some employees placed heavier packages higher up
No. 19-2730 13
with no issues, and some containers held only heavy pack-
ages stacked to the top.3
Absent evidence to suggest that this inherent variance oc-
curred only within the bounds of Kotaska’s restrictions, she
was inevitably going to run into a package or string of pack-
ages in positions and at weights beyond her limited capabili-
ties. Viewing the evidence in the light most favorable to Ko-
taska, we assume such a scenario would be uncommon, but
even the capacity to respond to rare events can be an essential
function. See Peters v. City of Mauston, 311 F.3d 835, 845 (7th
Cir. 2002); Emerson v. N. States Power Co., 256 F.3d 506, 513 (7th
Cir. 2001). This is true here. Kotaska was the only handler at
the Cary facility, and the handler’s core function was to lift
packages weighing up to 75 pounds independently. Under
these circumstances, the district court rightly recognized that
having a second employee to assist when the work exceeded
her capabilities was not a reasonable accommodation as a
maĴer of law. See Majors v. Gen. Elec. Co, 714 F.3d 527, 535 (7th
Cir. 2013). Nor did the ADA obligate FedEx to let Kotaska
3 We respectfully diverge from the dissent’s view that more precise infor-
mation is uniquely in the employer’s hands. FedEx knows the height of its
containers and trucks and the average weight of packages, but it had no
reason to keep track of how high handlers lift packages of a given weight.
As Charles testięed, FedEx cared only that handlers maneuver packages
weighing up to 75 pounds “in whatever manner is needed to get that pack-
age moved” to “[w]herever it needs to go.” The best way to ęnd out how
high handlers need to lift a given weight to accomplish this goal would be
to ask, and either party can do that. Indeed, the parties did ask couriers
whether employees ever lifted 75 pounds overhead, and two of three an-
swered “no,” creating a genuine dispute. If Kotaska had asked whether a
handler ever needed to lift in excess of her restrictions and received the
same answer, this would be a diěerent case.
14 No. 19-2730
continue working until she either could not lift a package or
injured herself trying. See Peters, 311 F.3d at 846 (rejecting “try
and see” approach to accommodation).
For these same reasons, we do not ęnd Kotaska’s three
weeks as a handler to be particularly probative of whether she
is a qualięed individual. We have found a genuine dispute of
fact in cases where a plaintiě had performed the job success-
fully before being dismissed because of a pre-existing disabil-
ity. In every case, however, the disabled employee had
worked for a period far longer than three weeks. See, e.g.,
Brown, 827 F.3d at 614 (4 years); Shell, 789 F.3d at 718–19 (12
years); Miller v. IDOT, 643 F.3d at 192–93, 199 (4 years). The
district court decisions on which Kotaska principally relies
have similarly long periods. See Jankowski v. Dean Foods Co.,
378 F. Supp. 3d 697, 703 (N.D. Ill. 2019) (over 1 year); Crain v.
Roseville Rehab. & Health Care, No. 4:14-cv-04079, 2017 WL
1075070, at *1–2, 5 (C.D. Ill. Mar. 21, 2017) (4 to 5 years). In
contrast, we have refused to infer an employee was qualięed
from his working two weeks. Dyke v. OȇNeal Steel, Inc., 327
F.3d 628, 633–34 (7th Cir. 2003).
The logic of these cases is straightforward and supports
summary judgment for FedEx. A factęnder can reasonably in-
fer that a job function is not essential if an employee who can-
not perform the function nevertheless succeeded at the job for
a long period. We need not decide how long before this infer-
ence is reasonable. Wherever the line is will depend on the
facts of each case, but given the unpredictability of the han-
dler position, it is further out than the three weeks here.
On these facts, we conclude, any reasonable jury would
ęnd that lifting packages at some indeterminate weight and
frequency above Kotaska’s restrictions was an essential
No. 19-2730 15
function of the handler position. Whether this weight is closer
to 16 or 75 pounds above the shoulder—or even just 6 pounds
with more than limited frequency—might be up for debate.
Under any of these views, Kotaska has failed to show a triable
issue of fact on the question whether she is a qualięed indi-
vidual, so her discrimination claim fails as a maĴer of law. See
Garg v. PoĴer, 521 F.3d 731, 736 (7th Cir. 2008).
As a ęnal maĴer, Kotaska contends that the district court
erred by entering summary judgment on her retaliation claim.
We have said that even those who are not qualięed individu-
als can maintain a claim for retaliation. Rodrigo v. Carle Found.
Hosp., 879 F.3d 236, 243 (7th Cir. 2018). To survive summary
judgment, Kotaska needed evidence that (1) she engaged in
protected activity, (2) she suěered an adverse action, and (3)
there was a “but for” causal connection between the two. Row-
lands v. United Parcel Serv., 901 F.3d 792, 801 (7th Cir. 2018).
FedEx does not dispute that Kotaska’s complaints after her
ęrst dismissal were protected activities and that her second
dismissal was an adverse action.
Where Kotaska falters is the causal element. She objects to
the district court’s reasoning that over a year had passed be-
tween her complaints and her second dismissal and that this
time undermined any inference of causation. See Tomanovich
v. City of Indianapolis, 457 F.3d 656, 665 (7th Cir. 2006). To es-
cape this conclusion, she asks that we ignore the period she
was unemployed, since FedEx could not ęre her then. We
doubt that this suggestion helps her case. FedEx let Kotaska
go for her shoulder injury and limits on lifting, and when it
discovered she was rehired without proof that her condition
had suĜciently changed, it dismissed her again. Under these
circumstances, a rational jury could not infer retaliation from
16 No. 19-2730
two dismissals even in quick succession. Rather, the inevita-
ble inference is that the second dismissal was FedEx following
through with the ęrst, which here cannot be retaliatory since
it occurred before any protected activities, see Rozumalski v.
W.F. Baird & Assocs., Ltd., 937 F.3d 919, 926 (7th Cir. 2019).
Regardless, close timing alone is rarely enough to raise a
triable claim of retaliation. See Abrego v. Wilkie, 907 F.3d 1004,
1015 (7th Cir. 2018). There must be other circumstantial evi-
dence of retaliation. Id. On that front, Kotaska oěers only that
FedEx management referred to her 2013 restrictions, the com-
miĴee acknowledged she used the dispute procedure after
her ęrst dismissal, and the commiĴee’s members overlapped
with those involved in her ęrst dismissal. That her restrictions
had not changed enough since the ęrst dismissal was the non-
retaliatory reason for the second. It is not also evidence of re-
taliation. The commiĴee’s references to the dispute process
are also of no note. A valid retaliation claim requires that the
decisionmaker know of the protected activity, see Cervantes v.
Ardagh Grp., 914 F.3d 560, 566 (7th Cir. 2019), but that does not
mean one can infer retaliation from the decisionmaker’s
knowledge alone. That FedEx did not replace its decisionmak-
ers between Kotaska’s two dismissals does not make their
knowledge any more suspicious.
III
The judgment of the district court is AFFIRMED.
No. 19-2730 17
HAMILTON, Circuit Judge, dissenting. I respectfully dissent.
Plaintiff Kotaska showed that FedEx was not entitled to sum-
mary judgment on the reason it gave for firing her and as the
basis for its summary judgment motion. FedEx itself no
longer defends the rationale of its original motion or the fir-
ing. It concedes on appeal that its stated reason for firing Ko-
taska—an inability to lift 75 pounds over her waist or even
overhead—is just wrong. FedEx Br. at 2. Such heavy overhead
lifts are not required, period.
On a quite different basis, however, the district court
granted summary judgment, and now my colleagues affirm.
Both the district court’s decision and our affirmance stray
from summary judgment standards and fair procedures. The
majority opinion errs further by flipping the burden of pro-
duction on essential functions under the ADA. Kotaska de-
stroyed FedEx’s original and exaggerated claims about the es-
sential functions of the job. My colleagues affirm summary
judgment against Kotaska because she did not then go fur-
ther. They affirm because Kotaska did not herself prove the
details of the job’s essential functions in terms of the propor-
tion of packages of which weights needed to be lifted above
the waist and shoulders. I have not seen an ADA case before
where the employer did not come forward with evidence
needed to establish the essential functions of the job. The ma-
jority errs by holding this absence of evidence against the
plaintiff.
Part I points out the circuit split the majority has backed
into with the theory it has improvised for FedEx’s benefit.
Part II lays out the plaintiff’s version of the facts, which is the
only version we need to worry about on summary judgment.
Part III explains the problems with the improvised theory for
18 No. 19-2730
affirming summary judgment. And Part IV explains how the
majority rejects plaintiff’s retaliation claim only by short-
changing her evidence.
I. The New Circuit Split
The majority’s theory for affirming summary judgment
backs into creating a circuit split under the ADA on which
party has the burden of producing evidence of a job’s essen-
tial functions. It’s well established that the employee bears the
ultimate burden of proving that she is capable of doing the es-
sential functions of the job, with or without a reasonable ac-
commodation. E.g., Cleveland v. Policy Mgmt. Systems Corp.,
526 U.S. 795, 806 (1999). But the employee should not bear the
burden of producing evidence of what the essential functions
are. That information is most readily available to the em-
ployer, not the employee (or applicant), so the employer
should bear the burden of production.
That’s why our colleagues in at least four circuits impose
on the employer at least the burden of production on the issue
of a job’s essential functions. Samper v. Providence St. Vincent
Medical Center, 675 F.3d 1233, 1237 (9th Cir. 2012) (“[Em-
ployer] has the burden of production in establishing what job
functions are essential as much of the information which de-
termines those essential functions lies uniquely with the em-
ployer.”) (quotation marks omitted), citing Bates v. United Par-
cel Service, Inc., 511 F.3d 974, 991 (9th Cir. 2007) (en banc);
E.E.O.C. v. Wal-Mart Stores, Inc., 477 F.3d 561, 568 (8th Cir.
2007) (reversing summary judgment; employer must put
forth evidence establishing essential functions); Ward v. Mas-
sachusetts Health Research Institute, Inc., 209 F.3d 29, 35 (1st Cir.
2000) (reversing summary judgment; employer bears burden
of proving that a job function is essential); Hamlin v. Charter
No. 19-2730 19
Township of Flint, 165 F.3d 426, 430–31 (6th Cir. 1999) (affirm-
ing plaintiff’s verdict; once a disabled individual contends
that a function is nonessential, burden shifts to employer to
prove that it is an essential function of the job).
When the burden of production is properly assigned to the
employer, the proper resolution of this case is clear. Kotaska
has refuted as false the employer’s version of the essential
functions and presented evidence that she can do the job.
FedEx presented no evidence that lifting packages weighing
over 15 pounds overhead—or frequently lifting packages of
up to 15 pounds overhead—was an essential function of Ko-
taska’s job. It has not met its burden of production and should
not prevail at summary judgment. Kotaska has offered spe-
cific evidence about her lifting abilities. But on this record, the
majority cannot pin down what the FedEx job requires other
than to say vaguely that it entails “lifting less than 75 pounds
but more than Kotaska’s limitations,” ante at 9 n.1, and to
speculate that Kotaska would “inevitably” encounter pack-
ages beyond her lifting restrictions. Ante at 13.
In footnote 2, the majority denies it is creating this circuit
split. Its rationale does not hold up to minimal scrutiny.
FedEx did actually offer some evidence that handlers have to
lift up to 75 pounds over their heads. Plaintiff responded with
evidence that blew that assertion out of the water, to the point
that FedEx has simply abandoned it. The majority acknowl-
edges the factual dispute, but it tries to finesse the production
burden by relying on the phrase “up to.” If 75 pounds is not
required, maybe 40, 30, or 20? Maybe only 15 if it is required
frequently? The majority reframes FedEx’s proposed essential
function as requiring a handler (1) to lift packages weighing
20 No. 19-2730
up to 75 pounds (but maybe less!) and (2) to lift some pack-
ages of unspecified weights over the waist and overhead.
The majority denies it is creating the circuit split only by
gutting the essential function inquiry, rendering the burden
of production meaningless. In the majority’s view, an em-
ployer need not define essential functions with any specific-
ity. Instead it can simply state the function at the highest level
of generality and leave the plaintiff with the burden of estab-
lishing the specifics of the job before she then has to show that
she can do it. If the employer can get away with defining the
functions so vaguely (“lifting packages over the waist and
overhead”), then the burden of production becomes trivial.
Evidence about an essential function must provide meaning-
ful and specific guidance about what the job entails. Without
such information, the essential function provides no useful
guidance.
This is presumably why FedEx’s job description for the
handler position included the weight to be lifted, and both its
stated reason for firing Kotaska and its arguments before the
district court included the height to which a given weight
would have to be lifted. Consider what a potential job posting
would need to say to tell an applicant if she should apply. If a
job posting said only that an employee would have to be able
to lift packages, an applicant would have no idea whether she
could do the job unless she were given the weight she would
be expected to lift. Even if the posting gave a maximum
weight (say, 75 pounds) an applicant might be mistaken about
her ability to do the job if she were required to lift that amount
not just off the ground but also overhead. Given the shelving
and package containers handlers work with, FedEx should
have to present evidence of how much weight handlers must
No. 19-2730 21
lift above their waists, above their shoulders, and above their
heads. See Jankowski v. Dean Foods Co., 378 F. Supp. 3d 697, 707
(N.D. Ill. 2019) (lifting restrictions identified height; essential
functions of job “include[] lifting cases weighing up to 38
pounds, pallets weighing 48 pounds, and garbage weighing
up to 38 pounds”).
The majority treats FedEx’s vague and discredited evi-
dence as sufficient to shift the burden to plaintiff to come for-
ward with evidence of the real details of the job’s essential
functions. This clever maneuver allows the employer to meet
its burden by offering vague and literally unbelievable evi-
dence of exaggerated job requirements. Our colleagues in
other circuits have soundly placed the burden of production
on the employer. Implicit in their cases is the expectation that
the employer will meet that burden by producing evidence
with meaningful detail and credibility. If evidence as feeble as
FedEx’s is enough to meet the burden of production, the bur-
den fails to serve its purpose.
It is well established under the ADA that an employer’s
job description or other assertions are entitled to substantial
(but not conclusive) weight in identifying a job’s “essential
functions.” E.g., Shell v. Smith, 789 F.3d 715, 717–18 (7th Cir.
2015); Stern v. St. Anthony's Health Center, 788 F.3d 276, 285
(7th Cir. 2015). But if courts are to rely on employers’ job de-
scriptions and judgment, employers must describe the essen-
tial functions with enough specificity to tell the employee and
courts what the job entails and, in ADA litigation, what the
employee must show to establish that she can do the job. And
an employer’s description of the job functions must surely be
at least plausible, not vague and unbelievable assertions like
those FedEx has abandoned here.
22 No. 19-2730
Saving this oddly improvised grant of summary judgment
is not worth creating this circuit split. The issue does not seem
to arise often because it is so obviously appropriate for the
employer to carry the burden of production. Even after this
decision, I expect that few employers in ADA cases will be
tempted to choose the risky strategy rewarded here: first pro-
pose an unrealistic essential function and then, after the plain-
tiff demolishes it, hope that courts will put the burden on the
plaintiff to offer a different and detailed account of the essen-
tial functions of a job she had been performing successfully—
all after discovery has concluded. Future plaintiffs can protect
themselves from this risky defense strategy by insisting in dis-
covery, at the very outset of the case, that the employer spec-
ify in detail the essential functions of the relevant job and sup-
port the claims with evidence. An employer who has fired
someone or denied an employment application for inability
to perform essential functions should be able to answer such
an interrogatory immediately.
II. Plaintiff’s Version of the Facts
The majority opinion sets out both sides’ versions of the
facts, but FedEx’s version is not relevant here. Here’s the story
if we apply the summary judgment standard: Plaintiff lost her
FedEx job in 2013 because she could not recover quickly
enough from an injury. She asserted rights under the ADA,
requesting an accommodation for her lifting restrictions, but
she did not receive one. FedEx told her: “The Handler posi-
tion at this location is physically demanding and requires re-
petitive lifting of weight up to 75 lbs unassisted,” but did not
specify how high.
By early 2015, with continued therapy, plaintiff had im-
proved to the point where she could lift 75 pounds from floor
No. 19-2730 23
to waist frequently, lift 30 pounds from waist to shoulder oc-
casionally (up to one-third of the time, in disability-speak), lift
15 pounds from waist to shoulder frequently (up to two-
thirds of the time), and lift 15 pounds above her head occa-
sionally when using both hands.1 With those greater abilities,
plaintiff was rehired by a FedEx manager as a handler. She
worked a part-time split shift, a couple of hours in the morn-
ing and a couple more in the evening. She performed that job
for three weeks in exemplary fashion, to the satisfaction of
managers and co-workers.2
But then FedEx officials who had been involved in firing
plaintiff two years earlier learned that she had been rehired.
They decided to fire her on the theory that plaintiff needed to,
but could not, lift 75-pound packages over her head. That’s
groundless. FedEx handlers need to be able to lift 75-pound
packages from floor to waist. Plaintiff could do that. She offered
evidence that FedEx handlers simply do not have to lift such
heavy packages over their heads or even above their waists.
And plaintiff did not merely raise a genuine issue of fact.
FedEx has conceded that she is correct and that the 75-
pounds-overhead theory of its motion for summary judgment
is just wrong. FedEx Br. at 2; Dkt. 50, at 5 n.1.
1See S.S.R. 83–10, 1983 WL 31251 at *5 (defining terms “frequently” and
“occasionally” for purposes of disability evaluation).
2 The majority opinion describes plaintiff’s rehiring with the loaded
phrase “off the books.” Ante at 1, 4. That’s not accurate. She was hired “on
the books” based on her on-line application. The only disputed point is
immaterial: whether the manager who hired plaintiff also told her that she
would move plaintiff to a preferred job as a courier if she worked success-
fully as a handler for several weeks.
24 No. 19-2730
The only written document regarding lifting ability said
that a handler needed to be able to lift 75 pounds. It did not
say how high. In its motion for summary judgment, FedEx
offered no specific evidence about the weights a handler must
lift over her waist or over her head. The closest it came was
an assertion that half of all packages weigh more than 15
pounds and that some unspecified portion of all packages
must be loaded above the waist and another unspecified por-
tion above the shoulder. That’s where the evidence in this case
is, as the majority says, “underdeveloped, murky, and dis-
puted.” Ante at 11. That’s FedEx’s failing, not plaintiff’s.
FedEx managers in Memphis ordered plaintiff removed
from the handler job with remarkable haste. They fired her
before they had seen, let alone evaluated, her current medical
restrictions. And they fired her without even taking time to
discuss with plaintiff or her supervisors her ability to actually
do the job.
When FedEx removed plaintiff from the handler position
in 2015, it gave her a letter written by Jennifer Ramos, the
same official who told plaintiff back in 2013 that her then-ef-
fective lifting restrictions could not be accommodated. Ra-
mos’s 2015 letter was false on two major points. First, she said
falsely that the job required lifting up to 75 pounds “over the
waist and overhead.” Second, she said falsely that plaintiff
had “notified management that you were having difficulty
lifting packages overhead.” Dkt. 28-8, Ex. 5. On appeal, FedEx
does not even try to defend these aspects of the Ramos letter.
The evidence here thus supports an inference that FedEx
managers were not even honest in dealing with plaintiff and
her abilities in 2015. It certainly supports an inference that the
managers bungled the case. At best they were confused about
No. 19-2730 25
how the job is actually done and what abilities it actually re-
quires. Only by departing from summary judgment stand-
ards, speculating in favor of FedEx, and discounting evidence
from plaintiff and her co-workers could we find that FedEx
had a legitimate basis for firing plaintiff.
III. The Improvised Theory for Affirmance
The majority opinion does not mention the district court’s
original error on plaintiff’s ADA claim, which led the district
court to improvise its “Plan B” theory for sticking with its ad-
mittedly erroneous grant of summary judgment.
The district court initially granted summary judgment on
the theory that FedEx had offered “overwhelming evidence”
that an essential function of plaintiff’s job was frequently lift-
ing and moving packages above her waist and head that
could weigh up to 75 pounds. App. 23. Plaintiff moved for
reconsideration because that factual error was so central and
so glaring. The district court frankly acknowledged that error:
“Plaintiff appears to be correct. Defendant has not presented
any evidence regarding the frequency with which packages
weighing more than 30 pounds must be lifted above the waist
and packages weighing more than 15 pounds must be lifted
overhead by a handler.” Order at 9. One would think the
proper step would have been to vacate summary judgment
and schedule a trial.
Nevertheless, the district court stuck to its original result.
It did so by proposing its own set of essential functions not
offered by FedEx. The Supreme Court has recently reminded
us that this is only rarely an appropriate role for a court. See
United States v. Sineneng-Smith, 140 S. Ct. 1575 (2020) (revers-
ing where court of appeals departed from principles of party
26 No. 19-2730
presentation of issues); Doherty v. City of Chicago, 75 F.3d 318,
324 (7th Cir. 1996) (“It is not the role of this court to research
and construct the legal arguments open to parties, especially
when they are represented by counsel.”). Such improvisation
is especially inappropriate in this situation: The plaintiff mar-
shaled her evidence to meet the defendant’s actual motion;
the court then punished her for failing to anticipate its new
theory and tailor her evidence to address that theory, as well.3
To salvage the original grant of summary judgment on
this new theory, the district court assembled seven para-
graphs of facts from the summary judgment record. Order at
10–11. They showed that plaintiff’s job required her to load
and unload some packages above her waist and above her
shoulders. She was loading and unloading freight containers
as much as eight feet tall, and loading and unloading courier
trucks with top shelves about four and a half feet above the
floor. But those collected facts contained nothing—nothing—
about the weight of packages that must be lifted or handled
above the waist or above the shoulders.
The district court held that silence in the record against
plaintiff. Because plaintiff had acknowledged, of course, that
lifting some packages above her waist and shoulders is an es-
sential function, the court said “it became her burden to prove
that she could perform those essential functions within her
doctor’s restrictions.” Order at 9, citing Miller v. Illinois Dep’t
3In responding to Kotaska’s motion for reconsideration, FedEx acknowl-
edged that “the entirety of FedEx’s arguments” was predicated on the job
description supposedly requiring handlers to lift 75 pounds overhead. Dkt.
50, at 5 n.1.
No. 19-2730 27
of Corrections, 107 F.3d 483, 484 (7th Cir. 1997) (saying gener-
ally that plaintiff has burden of proof on “the issue of capabil-
ity” in case where prison guard was fired after she lost her
vision).
As explained above, Miller’s point about the ultimate bur-
den of persuasion on plaintiff’s capabilities does not support
the district court’s (and now the majority’s) placing the bur-
den of production on essential function on the employee. The
burden of producing evidence of a job’s essential functions
should fall on the employer. Supra at 18—19 (cases from other
circuits imposing burden of production on employer).
If the relevant frequency and weight information is mate-
rial to deciding the essential functions, then FedEx had the
burden of producing it. It is improper, impractical, and unfair
to require the employee to describe in minute statistical detail
the operations of the employer. See Int'l Brotherhood of Team-
sters v. United States, 431 U.S. 324, 359 n.45 (1977) (“Presump-
tions shifting the burden of proof are often created to reflect
judicial evaluations of probabilities and to conform with a
party’s superior access to the proof.”), citing McCormick, Law
of Evidence §§ 337, 343 (2d ed. 1972), and James, Burdens of
Proof, 47 Va. L. Rev. 51, 61 (1961); see also Samper v. Provident
St. Vincent Medical Center, 675 F.3d 1233, 1237 (9th Cir. 2012)
(defendant has burden of production in identifying essential
functions because it controls the information). It’s even less
practical and more unfair if the employee needs to collect in-
28 No. 19-2730
formation to rebut not only the arguments the employer actu-
ally made but also arguments that the court might construct
on behalf of the employer.4
Even apart from the burden of production, plaintiff did of-
fer evidence here. She testified that she performed the job suc-
cessfully, without pain, and in the same way that her co-
workers did. Her co-workers and supervisors agreed. Plain-
tiff’s co-workers testified that handlers would have to lift 5 to
15 pounds overhead. Plaintiff testified that she did so and that
the work was consistent with her weight restrictions. FedEx
has not offered conflicting evidence, let alone established the con-
trary beyond reasonable dispute. Plaintiff also testified that
she in fact lifted 20- to 30-pound packages above her waist to
shoulder height, at least to the extent needed. That also fit
within her medical restrictions. She was doing the job! And if
FedEx disagreed, it was surely in the best position to know
how often its handlers actually need to handle heavier pack-
ages above their waists and shoulders. It offered nothing.
The majority’s error runs up against another line of our
cases, as well. The majority affirms by saying it was plaintiff’s
burden to refute the district court’s Plan-B theory after she de-
molished FedEx’s original theory. That’s not the way sum-
mary judgment works. When a party files a motion for sum-
mary judgment raising ground A, the district court errs by
granting on ground B, which the moving party could have
4 Imagine how FedEx and other carriers will respond to future discovery
requests—which will be necessary in similar cases—asking for granular
detail about package weights, percentage of packages that must be lifted
above certain heights, and so on. Such discovery will no doubt be burden-
some, but objections should be overruled given the majority’s novel allo-
cation of the burden of production in this case.
No. 19-2730 29
raised but did not. Edwards v. Honeywell, Inc., 960 F.2d 673, 674
(7th Cir. 1992) (reversing summary judgment); Titram v. Ack-
man, 893 F.2d 145, 148 (7th Cir. 1990) (same); Malhotra v. Cotter
& Co., 885 F.2d 1305, 1310 (7th Cir. 1989) (same) (superseded
by statute on other grounds). Federal civil motion practice is
expensive and burdensome enough when the party opposing
a motion needs to respond to the moving party’s actual argu-
ments. We should not expand that burden to offering evi-
dence to rebut any arguments the moving party might have
made.
The majority opinion insists that this is not a new theory,
but rather one implicit in FedEx’s insistence that a handler
must be able to lift packages weighing up to 75 pounds over
the waist and overhead. Ante at 9 & n.1. This implicit “greater
includes the lesser” approach is not how we address issues
raised at summary judgment. See A&C Construction & Instal-
lation, Co. WLL v. Zurich Am. Ins. Co., No. 19-3325, 2020 WL
3527303, at *4 (7th Cir. June 30, 2020) (plaintiff waived alter-
native argument for opposing summary judgment in part by
not raising it until motion to reconsider). The majority opin-
ion is correct that evidence that might be used to prove that
the job required lifting 75 pounds overhead could also be used
to show that Kotaska had to lift some lower amount overhead.
But FedEx did not make such an argument to the district
court. It said only vaguely that Kotaska would have to exceed
her lifting restrictions because of the average package weight
of 15 pounds. It never specified the essential function.5
5 The majority opinion also appears to understand “lifting up to 75
pounds” to mean “lifting some amount that may or may not be close to 75
pounds.” Ante at 8–9 & n.1. This is simply not what any reader would
understand the phrase to mean. The phrase “up to” indicates a maximum.
30 No. 19-2730
The majority opinion also errs by drawing inferences in
favor of FedEx rather than plaintiff. It relies heavily on the 15-
pound average, finding that plaintiff could not frequently lift
half the packages above her waist. Ante at 11–12. There’s no
evidence she needed to. Then, doubling down on its impro-
vised factual analysis, the majority asserts that plaintiff “was
inevitably going to run into a package or string of packages in
positions and at weights beyond her limited capabilities.”
Ante at 13.
With respect, where does “inevitably” come from? It’s not
in the evidence. It appears to be an inference from the asser-
tion that Kotaska “would butt right up against the edges of
her restrictions on a normal day” and that the work environ-
ment was not perfectly predictable See ante at 12. But this is
an inference in favor of FedEx, contrary to the summary judg-
ment standard. FedEx has access to real evidence on the point.
It presented no evidence even asserting that package weight
varied significantly or that on some days handlers face del-
uges of heavy packages that would push Kotaska beyond her
limits.
The majority’s speculation about what is “inevitable”
highlights another troubling implication for future cases. The
logic of the majority opinion suggests that an employer can
establish that an employee is not a qualified individual by
showing that an individual with a disability works within her
limits rather than beyond them. This is perverse. Under this
So when FedEx describes “lifting up to 75 pounds,” it means that the max-
imum amount handlers would be expected to lift is 75 pounds and that
they are expected to lift that amount. To illustrate further, if a person said
that he runs “up to thirty miles a week” when in fact he has never run
more than ten, no one would think he was being truthful.
No. 19-2730 31
logic, an employee who can do the job and has done the job
could be removed based on mere speculation. The ADA was
enacted in large part to prevent such discrimination against
people with disabilities who can actually do their jobs. See
Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73, 85 (2002) (Con-
gress “was trying to get at refusals to give an even break to
classes of disabled people, while claiming to act for their own
good in reliance on untested and pretextual stereotypes”);
Siefken v. Village of Arlington Heights, 65 F.3d 664, 666 (7th Cir.
1995).
And of course, the majority’s speculation about Kotaska
“inevitably” encountering packages too heavy for her is con-
tradicted by the evidence from plaintiff and her co-workers
and supervisors that she was handling the job successfully. To
justify affirmance, therefore, the majority must discount that
evidence. We have often found that such evidence about how
jobs are actually performed is sufficient to create a genuine
dispute of fact. E.g., Brown v. Smith, 827 F.3d 609, 614 (7th Cir.
2016) (affirming jury verdict); Miller v. Illinois Dep’t of Trans-
portation, 643 F.3d 190, 192–93, 200 (7th Cir. 2011) (reversing
summary judgment).
The majority rejects plaintiff’s evidence because she
worked for only three weeks before FedEx fired her. Ante at
14 (offering no guidance but saying such evidence must be
evaluated case by case). To support this new and vague limit
on this well-established line of authority, the majority cites
only Dyke v. O’Neal Steel, Inc., 327 F.3d 628, 633–34 (7th Cir.
2003). Dyke is not at all similar to this case and does not sup-
port this discounting of plaintiff’s evidence. Plaintiff Dyke
had only one eye. He took a temporary job at a metal factory
with many hazards. After two weeks on the job, he was fired
32 No. 19-2730
because he could not pass physical and vision tests that re-
quired binocular vision. In affirming summary judgment on
his ADA claim, we relied on “unchallenged expert testimony”
that the vision requirements were “reasonable and appropri-
ate” because of the factory’s dangers for employees. In the
face of that expert testimony, plaintiff’s record of two weeks
at work was not enough to show he could safely perform the
essential functions.
That unchallenged expert testimony in Dyke is not re-
motely comparable to the messy factual record here. FedEx
has not been able to keep its story straight about its actual,
realistic requirements. The defense also offered no evidence
to the effect that the job varies so much that three weeks are
not a reasonable test of ability to do the work. The majority’s
speculation to the contrary is no substitute for such evidence.
Plaintiff’s ADA discrimination claim is loaded with genuine
issues of material facts. We should send it back for trial.
IV. Retaliation Claim
FedEx concedes that plaintiff engaged in activity pro-
tected by the ADA when she challenged her firing back in
2013. Several of the people engaged in firing her in 2015 had
been involved in the earlier firing, and they remembered it.
Ramos wrote both termination letters. Her 2015 letter actually
recounted plaintiff’s 2013–14 internal appeal based on disabil-
ity rights.
The majority affirms summary judgment for FedEx on
plaintiff’s retaliation claim on the theory that too much time
had passed. That conclusion is based on a legal error and a
reading error.
No. 19-2730 33
The delay between plaintiff’s protected activity and the al-
leged retaliation was just over one year, from February 2014,
when plaintiff’s internal appeal ended, to April 2015, when
the same FedEx managers acted to terminate her employment
a second time. Our case law on the passage of time in retalia-
tion cases does not lend itself to bright lines. When time is the
only factor the plaintiff relies upon to show a causal link be-
tween her protected activity and a new adverse action, even a
relatively short gap can defeat an inference of causation,
Abrego v. Wilkie, 907 F.3d 1004, 1015 (7th Cir. 2018), especially
where the plaintiff has remained employed. E.g., King v. Ford
Motor Co., 872 F.3d 833, 842 (7th Cir. 2017).
These precedents do not apply here for two reasons that
show the majority’s legal error and its reading error. The
reading error is the majority’s assertion that plaintiff relies on
timing, and only timing, to show causation. Ante at 15–16. In
fact, she relies on much more. Pl. Br. at 33–36. She offered ev-
idence that FedEx’s decisionmakers not only knew about her
earlier protected activity but took that entire episode into ac-
count in deciding what to do with her in 2015. Add in FedEx’s
hasty, confused, and even dishonest decision to fire her with-
out actually reviewing her new medical restrictions or even
talking with plaintiff or her supervisors. A reasonable jury
could easily find retaliatory motive. See, e.g., Lewis v. City of
Chicago, 496 F.3d 645, 656 (7th Cir. 2007) (plaintiff defeats
summary judgment when she puts forward other evidence of
a causal link in addition to suspicious timing).
Second, plaintiff’s evidence here supports the inference
that FedEx managers retaliated against her at their very first
opportunity to do so. She had not remained employed with
FedEx, so there was no earlier opportunity to retaliate. As
34 No. 19-2730
soon as Wibright and Fowler learned that plaintiff had been
rehired, they moved immediately to challenge that action.
They took just two weeks to remove her from her new job.
(They offer a benign explanation—concern for plaintiff’s
health—but that’s a jury question, especially given the evi-
dence of dishonesty and/or confusion among FedEx manag-
ers in this case.) See, e.g., Veprinsky v. Fluor Daniel, Inc., 87 F.3d
881, 891 n.6 (7th Cir. 1996) (long gap between protected activ-
ity and adverse employment action can support retaliation
claim if plaintiff presents evidence that employer was
“wait[ing] in the weeds” for the right time to retaliate); see
also Malin v. Hospira, Inc., 762 F.3d 552, 559–60 (7th Cir. 2014)
(reversing summary judgment; collecting cases showing we
do not use bright lines based on passage of time where retali-
ation plaintiffs offer additional evidence of retaliatory mo-
tives).
For these reasons, we should reverse summary judgment
and remand for trial on Kotaska’s ADA discrimination and
retaliation claims.