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Tonyan v. Dunham's Athleisure Corp.

United States District Court, W.D. Wisconsin

September 4, 2019




         Plaintiff Angela Tonyan brought this suit under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12112, against her former employer, defendant Dunham's Athleisure Corporation. She contends that defendant failed to accommodate her shoulder disability and terminated her from her job as a store manager because of her disability. Defendant has filed a motion for summary judgment, contending that plaintiff's ADA claims fail because she cannot show that she could perform the essential functions of her job with or without reasonable accommodation. Dkt. #16. I agree with defendant that plaintiff has failed to present evidence from which a reasonable jury could conclude that she could perform the essential functions of her job. Therefore, I am granting defendant's motion for summary judgment.

         From the parties' proposed findings of facts and responses, I find the following facts to be material and undisputed unless otherwise noted.


         A. The Parties

         Plaintiff Angela Tonyan worked for defendant Dunham's Athleisure, a discount sporting goods retailer, from 2007 until her termination in December 2015. Plaintiff was hired by defendant as an assistant store manager at its Rice Lake, Wisconsin store in November 2007. On September 25, 2009, plaintiff injured her left arm while working. She had left rotator cuff surgery in April 2010. After September 25, 2009, plaintiff had temporary restrictions on her left arm, which defendant accommodated. In September 2011, while still on temporary restrictions for her left shoulder, plaintiff was promoted to store manager in Menomonie, Wisconsin. In January 2012, plaintiff was given permanent restrictions on her left shoulder, which included the following: lifting limit of 15 pounds overhead and 60 pounds to waist; occasional reaching above shoulder; and restrict right and left hand and wrist torqueing.

         B. Defendant's Business Model

         As a discount retailer, defendant seeks to keep labor costs low, maximize available store space and make as much product available on the sales floor as possible. Each store is assigned a budget for both hourly and salaried employees based on the store's sales volume. Defendant attempts to provide stores enough staff hours so that customers are assisted and inventory is unloaded, handled and displayed in a timely manner. Defendant does not pay overtime wages to hourly staff. Defendant's staffing model requires its salaried store management, including managers and assistant managers, to engage in physical labor throughout their workday. This includes tasks such as receiving shipments, unloading trucks, storing and putting away inventory, moving inventory to the sales floor, stocking and merchandising inventory, assisting customers, training associates, moving inventory from displays and moving heavy items to customer vehicles. In most stores, at least some merchandise is stored high on shelves and hung from the ceilings.

         C. Menomonie Store

         The Menomonie store at which plaintiff worked was 23, 200 square feet, including an approximately 1, 600 square foot stock room. Products are displayed at all levels. Approximately half of the inventory is displayed between five feet to 12 feet high. Bikes are stored overhead on bike racks and canoes and kayaks are stored overhead. Boxed merchandise is stored on all levels in the stockroom. Throughout the day, product is moved from the stockroom to the retail floor.

         The Menomonie store has various tools available for employees to retrieve products that are stored above shoulder level. Employees use telescoping hooks that extend approximately 14 feet high to hang or remove merchandise. To retrieve heavier apparel, such as heavy jackets or sweatshirts, employees must use both hands to lift and balance an extended pole. The store has ladders in various sizes, some of which require reaching outwards and lifting above shoulder level to open, move or close them. Other tools include pallet jacks, stools and four-way wheeled carts.

         D. Store Manager Position

         When plaintiff was promoted to store manager of the Menomonie store, she signed a job description that set forth “responsibilities” and “essential functions” of store management positions. The job description was developed by defendant's human resources team and was based on an existing job description from 2008, personal experience of the human resources team, outside sources, store observation, store manager interviews and a review by the operations team. (Plaintiff argues that it is not clear which job description applied to her, but her argument is not persuasive. The various job descriptions submitted by the parties are nearly identical and do not differ in any way that is material to this case.)

         The job description identifies several areas of “responsibilities, ” including customer service, sales volume, scheduling, merchandising, human resource functions, training, general maintenance, shipping and receiving. These areas of responsibility encompass tasks such as recruiting and training new associates, reviewing store employees, scheduling, completing reports, assigning daily work to staff, balancing and reconciling receipts, entering financial data and making bank deposits.

         The “essential functions” section of the written job description states, among other things:

         Constantly: Stand, Walk, Reach Outward, Handling/Fingering.

         Frequently: Reach Above Shoulders, Squat or Kneel, Lift/Carry up to 40 lbs., Push/Pull up to 40 lbs.

         Occasionally: Sit, Climb, Crawl, Lift/Carry 41 to 100 lbs. with assistance.

         Not Applicable: Lift/Carry over 100 lbs. without assistance. Dkt. #19-1. Defendant considered “constant” to mean activities performed regularly and on a daily basis; “frequent” to be activities performed more than 50 percent of the time; and “occasionally” to be activities engaged in up to 50 percent of the time. The written job description did not spell out how the managers were to insure that all of the necessary tasks were accomplished, as store management was expected to delegate some tasks to associates.

         The job description was intended to convey the point that physical activities are an essential function of store management positions. Defendant expects store management to engage in physical activities so that defendant can assign fewer persons to a store. If a manager is unable to perform some of the physical tasks on a regular basis, other members of the management team must either perform additional work or defendant must allocate additional labor hours to the store so that sales associates can handle physical tasks. Assigning additional labor hours can undermine defendant's cost efficient staffing model.

         In some geographic areas, including Menomonie, there is a labor shortage. The Menomonie store relies on students as a source of hourly labor. Students and other part-time associates typically have limited availability and cannot always take on extra work hours. Thus, even if defendant approves additional labor hours, the store may not be able to find employees who can fill the hours. If a store is understaffed and sales associates have to take on physical jobs, sales associates may be less responsive to customer needs and customer satisfaction can suffer.

         The parties dispute how “physical” the store manager position is. Defendant says that store managers across all of its stores spend more than 50 percent of their time performing “physical” tasks. Plaintiff says that in her experience, she spent approximately 10 percent of her day engaged in physical activities. It is undisputed that before plaintiff became manager of the Menomonie store in September 2011, Jane Campbell and Lucas Henning were the managers of the store. Both Campbell and Henning regularly performed physical tasks that required them to lift items above their heads or reach above shoulder level, including unloading trucks, storing ...

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