TABLE OF CONTENTS

Table of Authorities.......................................................................................... ii

Statement Regarding Oral Argument................................................................ 1

Statement of Jurisdiction.................................................................................. 1

Statement of the Issues..................................................................................... 2

Statement of the Case....................................................................................... 3

A. Course of Proceedings........................................................................ 3

B. Statement of Facts.............................................................................. 3

C. Jury Trial........................................................................................... 9

D. Rulings on Post-Trial Motions ....................................................... 12

Summary of Argument................................................................................... 14

Argument........................................................................................................ 16

A. This Court should remand for a new trial because failure to

give the EEOC’s requested jury instruction confused the jury

and prejudiced the EEOC................................................................. 16

1. Standard of Review..................................................................... 16

2. Discussion................................................................................... 16

B. This Court should remand for a new trial because the jury’s

verdict was against the manifest weight of the evidence................... 20

1. Standard of Review..................................................................... 20

2. Discussion................................................................................... 20

C. The evidence was so one-sided on the issue of disability that

the district court should have granted judgment as a matter of law

on that issue..................................................................................... 21

1. Standard of Review..................................................................... 21

2. Discussion................................................................................... 22

Conclusion...................................................................................................... 24

Appendix

Certificate of Service

TABLE OF AUTHORITIES

Cases

Byrd v. Ill. Dep’t of Pub. Health, 423 F.3d 696 (7th Cir. 2005)........... 19, 21-22

Dazenko v. James Hunter Mach. Co., 393 F.2d 287 (7th Cir. 1968)............... 19

Huff v. Sheahan, 493 F.3d 893 (7th Cir. 2007)............................................... 16

Javier v. City of Milwaukee, 670 F.3d 823 (7th Cir. 2012).............................. 19

King v. Harrington, 447 F.3d 531 (7th Cir. 2006).......................................... 20

Majors v. Gen. Elec. Co., 714 F.3d 527 (7th Cir. 2013).................................. 22

Mejia v. Cook Cnty., Ill., 650 F.3d 631 (7th Cir. 2011)................................... 21

Miller v. Ill. Dep’t of Transp., 643 F.3d 190 (7th Cir. 2011)........................... 18

Moore ex rel. Estate of Grady v. Tuleja, 546 F.3d 423 (7th Cir. 2008)............ 20

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000)................... 22

Schmitz v. Canadian Pac. Ry., 454 F.3d 678 (7th Cir. 2006).......................... 16

U.S. v. Hassebrock, 663 F.3d 906 (7th Cir. 2011)........................................... 20

Statutes

28 U.S.C. § 1291.............................................................................................. 2

28 U.S.C. § 1331.............................................................................................. 1

Americans with Disabilities Act, 42 U.S.C. § 12101 et seq............................... 1

§ 12101 note § 2(b)(1)........................................................................... 22

§ 12102(1)(A)........................................................................................ 22

§ 12012(2)(A)........................................................................................ 22

§ 12117(a)............................................................................................... 1

Rules

Fed. R. App. P. 4(a)(1)(B)................................................................................ 2

Fed. R. Civ. P. 50.................................................................................... 1, 3, 12

Fed. R. Civ. P. 59.................................................................................... 1, 3, 12

STATEMENT REGARDING ORAL ARGUMENT

The Equal Employment Opportunity Commission (“EEOC”) requests oral argument. This appeal relies heavily on an understanding of the facts developed at trial. In light of those facts, the EEOC contends that the district court’s failure to give a requested jury instruction confused the jury and prejudiced the EEOC. Oral argument would allow the Court to clarify its understanding of the facts and explore the EEOC’s contentions in greater depth.

STATEMENT OF JURISDICTION

The EEOC sued AutoZone under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., alleging that AutoZone failed to make a reasonable accommodation for Margaret Zych’s disability and illegally terminated her. (R.1, Complaint) The district court had jurisdiction under 28 U.S.C. § 1331 and 42 U.S.C. § 12117(a). The EEOC consented in writing to entry of final judgment by the magistrate judge on April 26, 2012 (R.3, Consent), and AutoZone consented in writing on September 10, 2012 (R.17, Consent).

Following a five-day trial, the jury found for AutoZone on November 21, 2014. (App. at 1) The district court entered final judgment on the jury’s verdict on November 24, 2014. (App. at 4) On December 19, 2014, the EEOC filed a timely motion for (1) a new trial under Fed. R. Civ. P. 59, and (2) judgment as a matter of law under Fed. R. Civ. P. 50. (R.214, Motion) The district court denied these motions on February 9, 2015. (App. at 8) The EEOC filed a timely notice of appeal pursuant to Fed. R. App. P. 4(a)(1)(B) on April 7, 2015. (R.230, Notice of Appeal) This Court has jurisdiction pursuant to 28 U.S.C. § 1291.

STATEMENT OF THE ISSUES

1. Did the jury instructions confuse the jury and prejudice the EEOC because they did not explain that in a team working environment, it may not be necessary for every team member to be able to perform every team task?

2. Was the jury’s verdict that Margaret Zych was not a qualified individual with a disability against the manifest weight of the evidence where Zych performed her job successfully for two years following her injury, her managers and coworkers unanimously considered her an excellent employee, AutoZone had a policy and practice of having employees help one another lift heavy objects, and no one objected to helping Zych lift on the infrequent occasions when she needed help?

3. If this Court remands for a new trial, should it remove the issue of disability from the jury because the evidence on the issue is so one-sided that the district court should have granted judgment as a matter law?

STATEMENT OF THE CASE

A. Course of Proceedings

The EEOC filed this ADA action against AutoZone on March 28, 2012. (R.1, Complaint) A jury trial was held on November 17-21, 2014. (R.297, Minute Entry) At the conclusion of AutoZone’s defense, the EEOC moved for judgment as a matter of law on the issue of whether Margaret Zych had a disability or a record of a disability. (App. at 7) The district court denied this motion. (Id.) The jury found that Zych was not a qualified individual with a disability or a record of disability at the time of her termination, rendering it unnecessary for the jury to reach the issue of discrimination. (App. at 1) The district court entered judgment on the jury’s verdict on November 24, 2014. (App. at 4)

On December 19, 2014, the EEOC filed a timely motion for (1) a new trial under Fed. R. Civ. P. 59, and (2) judgment as a matter of law under Fed. R. Civ. P. 50. (R.214, Motion) The district court denied these motions on February 9, 2015. (App. at 8)

B. Statement of Facts

AutoZone sells car parts in retail stores throughout the United States and Puerto Rico. (Tr. at 698) Margaret Zych worked for AutoZone in Cudahy, Wisconsin from 2005-2009, starting as a part-time sales employee but quickly becoming a parts sales manager (“PSM”). (Tr. at 10, 48, 51, 167) As a PSM, her primary responsibility was customer service. (Tr. at 67-68, 186) By all accounts, she was excellent at this task and customers sought her out, even declining help from other employees and waiting for Zych when she was busy with another customer. (Tr. at 18-19, 760) A long-time customer testified that he always waited for Zych to help him because she had “awesome” knowledge of parts. (Tr. at 11, 18) Her store manager, Robert Diaz, called Zych his “star employee.” (Tr. at 767) Diaz relied on Zych to take care of the store in his absence and Zych stepped in seamlessly as acting manager when Diaz took two and a half months off in the summer of 2007. (Tr. at 48-49, 183, 186)

As part of their duties, PSMs were required to help unload merchandise when trucks made store deliveries, place merchandise on the sales floor shelves and in the back stock area, carry merchandise to the counter and/or to a customer’s car, retrieve items from customers’ cars when asked to do so, rearrange merchandise on the shelves in accordance with “planograms,” and take customers’ batteries into the back of the store for charging. (Tr. at 67-68, 71-72, 83, 129, 158) At times, PSMs would have to climb a ladder in the back stock area to retrieve items on high shelves. (Tr. at 83-84) Although AutoZone advised applicants that the job would involve heavy lifting, it did not administer a lifting test. (Tr. at 67, 127-28)

In July 2007, Zych injured her right shoulder at work. (Tr. at 184) An MRI and x-ray revealed a torn tendon, torn rotator cuff, and separation of her shoulder bone and collar bone. She also developed tendonitis in her elbow. (Tr. at 203, 205) Over the course of two years, Zych went through physical therapy, occupational therapy, pain medication, cortisone injections, and two surgeries. (Tr. at 204-06, 230-36) A nurse retained by AutoZone’s third party insurance administrator attended Zych’s medical appointments with her and regularly reported to the company on her progress. (Tr. at 194) AutoZone’s worker’s compensation program ended up paying $166,000 for Zych’s medical expenses and $31,000 for indemnity. (Ex. 1021 at D00564, App. at 28)

Prior to her injury, Zych was able to lift 30-50 pounds. (Tr. at 342) Following her injury, her doctor imposed a series of restrictions, all of which AutoZone accommodated during her two-year recovery period. (Tr. at 208, 234, 290, 293-94) At one point, Zych was prohibited from lifting anything at all with her right arm. (Tr. at 208, 233) At the conclusion of her treatment in June 2009, Zych’s doctor permanently restricted her to lifting no more than fifteen pounds with her right arm. (Tr. at 230-31) Zych could still lift more than this amount with her left arm. (Tr. at 348-49, 460)

AutoZone showed videos of the merchandise in the Cudahy store and catalogued, item by item, the products that Zych could no longer lift. (Tr. at 346-65, 752-55) However, AutoZone did not controvert the EEOC’s evidence that most parts in the store weighed less than fifteen pounds and that, on an average day, Zych needed to ask for help with lifting only once or twice. (Tr. at 158, 202)

The Cudahy store, where Zych worked, had a minimum staffing requirement of two to three people at all times. (Tr. at 72) Performance evaluations graded employees in part on whether they “work[ed] effectively as a team member” and “help[ed the] team succeed.” (Tr. at 52, 55) The store handbook instructed employees not to lift more than they could carry and to “ask for help [with lifting] when needed.” (Tr. at 60-61) Employees carried out this mandate.

One of Zych’s coworkers, sales associate Barry Kurta, had a paralyzed left arm. (Tr. at 56) Unlike Zych, who could lift fifteen pounds with her disabled arm (and more with her non-disabled arm), Kurta could lift only with his non-disabled arm. (Id.) AutoZone’s district manager acknowledged that it “wouldn’t have been possible” for Kurta to do all of his own lifting. (Tr. at 63) He testified that Kurta was “absolutely” able to get help when he needed to lift a heavy item. (Tr. at 56) Kurta confirmed that if things were too heavy for him to carry, other employees helped him. (Tr. at 556) AutoZone did not introduce any evidence to the contrary.

Although Kurta was a sales associate and Zych was a sales manager, their jobs were essentially the same. District manager Alfredo Morales testified that the only difference between associates and managers is that managers carry a key, giving them access to the store and to money. (Tr. at 56-57)

Even before her injury, Zych received help lifting heavy items. (Tr. at 500) Other non-disabled employees received help as well. Zych testified, “There were other women who worked there too, [and] people would help them if they couldn’t carry something.” (Tr. at 427) AutoZone did not dispute this evidence.

Nor did AutoZone dispute the testimony of Zych’s supervisors and coworkers, who unanimously testified that it was not a hardship for them to help Zych lift heavy items. “It’s not only not a problem [for Zych to get help lifting a heavy part],” Morales testified, “it’s encouraged.” (Tr. at 85-86) Store manager Diaz testified, “We were all there to help out when she couldn’t do certain tasks.” (Tr. at 768) He added that he did not consider it a hardship to help Zych lift a part or move something. (Id.) Coworker Angel Maldonado also testified that it was not a hardship for him to help Zych lift. “I was getting paid for it,” he said. (Tr. at 633) Coworker Tabari Stewart testified that he never objected to having to help Zych. He added that Zych was knowledgeable and that she trained him and helped him with things other than lifting. (Tr. at 761)

Even when Zych was unable to lift heavy objects, she fully participated as part of the AutoZone team. If another employee had to leave the counter or a register to help her, Zych temporarily took over his duties until he could return to what he had been doing. (Tr. at 201-02) During weekly truck deliveries, when there was an increase in the amount of heavy lifting that was required, Zych spent more time up front on the sales floor or doing required paperwork in the back. (Tr. at 380) Because Diaz had taught her how to fulfill the duties of a store manager, Zych knew how to do scheduling and paperwork, which coworkers Garcia and Maldonado did not. (Tr. at 380, 382)

AutoZone terminated Zych one month after learning that her fifteen pound lifting restriction would be permanent. (Tr. at 99-100) No one admits to having made the termination decision. (Tr. at 505 (Devereaux), 511 (Jones), 512-13 (Teel), 573 (Gage), 724 (Young)) Regional human resources manager Dawn Devereaux[1] directed Morales to fire Zych without ever asking about Zych’s performance. (Tr. at 92, 100-02) Her sole explanation for the termination was “cannot accommodate permanent restriction.” (Tr. at 101-02) Devereaux testified that at the time of the termination, she was relatively new at the company and did not understand the accommodation obligation. (Tr. 651-53)

If they had asked him about Zych’s capability of working with her restriction, Morales testified, “I would have told them that her restriction is a non-issue. It wasn’t a problem for anybody in the store.” (Tr. at 92) Diaz, the store manager, responded to news of Zych’s termination by exclaiming, “This is bullshit.” (Tr. at 104)

After Zych filed a charge with the EEOC, AutoZone sent the EEOC a job description stating that PSMs had to meet certain “arm requirements,” including the ability to lift up to 75 pounds. (Ex. 1019, App. at 24) This job description differed from the one that AutoZone had provided during Zych’s worker’s compensation proceedings. (Tr. at 593) The first job description, supplied before Zych’s termination, said nothing about meeting any arm requirements. (Ex. 6, App. at 20-21)

Notwithstanding AutoZone’s 2009 determination that it could not accommodate Zych’s fifteen pound lifting restriction, one of its 2012 training documents instructed that lifting restrictions of ten pounds or more should generally be accommodated. (Ex. 19, App. at 23) Nothing about the PSM job changed between 2009 and 2012. (Tr. at 678) Asked about the 2012 training document, Devereaux testified that if accommodating a ten pound restriction is good advice now, it was good advice then. (Tr. at 679)

C. Jury Trial

At trial, AutoZone argued that lifting heavy objects was an essential function of Zych’s job. (R.237, Tr. at 18-19, 24) The EEOC argued that even if lifting heavy objects was an essential function of the store team, it was not essential that every employee on the team be able to lift every object in the store. (Id. at 9)

The district court instructed the jury:

Under the ADA, Ms. Zych was qualified if she had the skill, experience, education, and other requirements for the job and could do the job’s essential functions, either with or without a reasonable accommodation. . . . Not all job functions are ‘essential.’ Essential functions are a job’s fundamental duties. In deciding whether a function is essential, you may consider the reasons the job exists, the number of employees Defendants have to do that kind of work, the degree of specialization the job requires, Defendants’ judgment about what is required, the consequences of not requiring an employee to satisfy that function, and the work experience of others who held the position. The amount of time spent on the job performing the function is also a factor used to determine whether a task is an essential function. However, an essential function need not encompass the majority of an employee’s time, or even a significant quantity of time, to be essential.

(R.208, Jury Instr. at 13)

Consistent with its argument that lifting heavy objects was essential for the team but not for each individual employee, the EEOC asked the court to include the following language in its jury instruction:

In team working environments, where team members perform tasks according to their capacities and abilities, job functions that are not required of all team members are not essential functions. Where there is no required manner in which employees are to divide the labor, the fact that one team member may not be able to do all the tasks assigned to the team does not mean that person is unable to perform his or her essential functions.

(R.199-1, EEOC Supp. Proposed Jury Instr. No. 8; Tr. at 780-81) The district court refused to give this “team” instruction. (Tr. at 780)

AutoZone also argued that Zych was not disabled. (R.237, Tr. at 26-29) AutoZone elicited testimony that no one had witnessed the accident leading to Zych’s injury. (Tr. at 184-85) Under persistent questioning, Zych’s doctor conceded that he could not objectively verify Zych’s reports of pain and therefore could not know whether Zych was telling the truth. (Tr. at 243-46) AutoZone pointed to the financial hardship that Zych incurred when she was out of work seeking worker’s compensation, suggesting this as a possible motivation for her to exaggerate her pain. (R.237, Tr. at 29-30)

The EEOC countered that the medical evidence established the existence of a disability. (Id. at 11-12) The EEOC moved for judgment as a matter of law at the conclusion of AutoZone’s defense on the issue of whether Zych had a disability or a record of a disability. (App. at 7) The court denied this motion and sent the issue to the jury. (Id.)

During their deliberations, the jury sent a message to the court asking: “Can the jury make a statement about its beliefs about the conduct of the parties notwithstanding the verdict?” (Tr. at 789) The court responded, “Each individual juror may speak to the parties and/or their lawyers if they wish to do so after the verdict is returned and the jury is discharged; however, no juror is obligated to do so.” (Tr. at 789-90)

The jury returned a special verdict form finding that “the EEOC [did not] prove[ ] by a preponderance of the evidence that Margaret Zych was a qualified individual with a disability or a record of disability at the time her employment was terminated.” (App. at 1) Because the jury found against the EEOC on this preliminary coverage question, it never reached the question of whether AutoZone had failed to accommodate Zych or had terminated her because of her disability in violation of the ADA.

D. Rulings on Post-Trial Motions

The EEOC moved for a new trial under Fed. R. Civ. P. 59(a) and renewed its motion for judgment as a matter of law on the issue of disability under Fed. R. Civ. P. 50(b). (R.214, Motion) The EEOC argued: (1) the jury instructions confused the jury because they did not explain that otherwise essential job duties can be considered non-essential if they are reassigned among the team in the normal course (R.215, Memo at 5-10); (2) the jury verdict was against the manifest weight of the evidence (id. at 11-15); and (3) medical evidence from Zych’s treating physician established as a matter of law that Zych was a person with a disability and a record of a disability (id. at 16-17).

The district court denied both motions. (App. at 8) The court held that the evidence did not support the EEOC’s requested “team” instruction because “when Ms. Zych began her employment at AutoZone, she was not dependent on another employee at the Cudahy store to do the lifting that she simply was not capable of doing after her injury. It was Ms. Zych’s injury that has permitted the EEOC to argue that it was the ‘normal course’ at the Cudahy store for other employees to help her in lifting objects weighing more than fifteen pounds.” (Id. at 12) The court did not mention Zych’s undisputed testimony that both she and other employees received help lifting even before her injury. Nor did the court mention the undisputed evidence that other employees routinely helped Kurta, an employee with a paralyzed arm, whenever he needed to lift a heavy object.

The court also held that the jury’s verdict was not against the manifest weight of the evidence. (Id. at 9-10) “I find it unnecessary to rehash all of the evidence presented on the issue of whether Ms. Zych was a qualified individual with a disability,” the court said. “It was the province of the jury to discuss all of the evidence presented in this regard and follow the instructions as provided by the court. As previously found, the circumstances of this case did not warrant my providing the team instruction to the jury, and thus, because the jury was properly instructed, the integrity of its verdict will not be disturbed. (Id.)

In light of its rulings on the EEOC’s motion for a new trial, the district court denied as moot the EEOC’s motion for judgment as a matter of law on the issue of disability. (Id. at 10)

SUMMARY OF ARGUMENT

This case should be remanded for a new trial for two reasons: (1) because the jury instructions did not adequately convey the law and prejudiced the EEOC, and (2) because the jury’s verdict is against the manifest weight of the evidence.

The district court properly instructed the jury that Zych was qualified under the ADA only if she could perform the essential functions of her job with or without reasonable accommodation. However, overwhelming evidence showed that AutoZone employees operated as a team, that the company expressly required employees to help one another lift heavy items, that Zych’s coworkers routinely helped one another with lifting, and that Zych routinely helped her coworkers with other tasks. In these circumstances, the court should have advised the jury that, as this Court has held, not all team members must be able to perform all team tasks in order to be “qualified” under the ADA. The court’s failure to issue a “team” instruction confused the jury and prejudiced the EEOC.

The case should also be remanded for a new trial because the jury’s verdict is against the manifest weight of the evidence. Zych performed her job successfully for four years, including two years following her injury. Her coworkers and supervisors uniformly considered her to be an excellent employee. Because most of AutoZone’s stock weighed less than fifteen pounds, on an average day Zych needed to ask for help with lifting only once or twice. AutoZone expressly instructed its employees to help one another with lifting, and employees did so not only for Zych, but also for one of her coworkers who had only one functional arm. AutoZone does not claim that this coworker is unqualified for his job and has offered no explanation for why it is permissible for him, but not for Zych, to seek assistance when needed. Based on these facts, no reasonable jury could find that Zych was unqualified for her job.

Finally, if this Court remands for a new trial, it should remove from the jury the question of whether Zych was disabled. The EEOC presented abundant evidence of Zych’s disability, including MRI and x-ray results and testimony from her treating physician. AutoZone’s argument that Zych is not disabled relies entirely on speculation regarding Zych’s motives and credibility. No rational jury looking at the evidence in this case could find that Zych is not disabled.

ARGUMENT

A. This Court should remand for a new trial because failure to give the EEOC’s requested jury instruction confused the jury and prejudiced the EEOC.

1. Standard of Review

This Court reviews jury instructions de novo “to determine whether, taken as a whole, they correctly and completely informed the jury of the applicable law.” Huff v. Sheahan, 493 F.3d 893, 899 (7th Cir. 2007). “Instructions that are so misleading as to prejudice the appellant require reversal.” Schmitz v. Canadian Pac. Ry., 454 F.3d 678, 682 (7th Cir. 2006).

2. Discussion

A properly instructed jury would be hard-pressed to find that Zych’s fifteen-pound lifting restriction rendered her unqualified for her job. Most of AutoZone’s stock weighed less than fifteen pounds. (Tr. at 158) Zych’s coworkers and supervisors unanimously testified that it was not a hardship for them to help her with lifting (Tr. at 85-86, 633, 761, 768), and undisputed evidence showed that on a typical day, Zych needed help only once or twice. (Tr. at 202)

AutoZone’s written policies contemplated that not all employees would be able to lift all items and expressly directed employees to help one another. The store handbook instructed employees not to lift more than they could carry and to “ask for help when needed.” (Tr. at 60-61) Because the Cudahy store, where Zych worked, had a minimum staffing requirement of two to three people at all times, there was always someone available to help lift. (Tr. at 72) Performance evaluations graded employees in part on how effectively they worked as a team and whether they “help[ed] the team succeed.” (Tr. at 52, 55)

Zych’s coworkers routinely helped Barry Kurta, an employee with a paralyzed left arm, when he needed to lift a heavy item. (Tr. at 56, 63, 556) Likewise, they helped nondisabled female employees when items were too heavy for them. (Tr. at 427) Even before Zych’s injury, when she was stronger and could lift more, she sometimes needed help lifting and her coworkers helped her. (Tr. at 500) They also helped her for the two years after her injury. (Tr. at 85-86, 633, 761, 768)

Although Zych was not able to lift heavy items, she had other skills. Unlike Garcia and Maldonado, who did not know how to do scheduling and paperwork, Zych was comfortable with these tasks. (Tr. at 380, 382) Accordingly, when trucks delivered merchandise that had to be unloaded, Garcia and Maldonado spent more time unloading the trucks and Zych spent more time up front on the sales floor or doing required paperwork in the back. (Tr. at 380) This division of labor played to each employee’s strengths.

This Court has held that when employees work together as a team, “tak[ing] on tasks according to their capacities and abilities,” it may not be essential for every member of the team to be able to perform every required task. Miller v. Ill. Dep’t of Transp., 643 F.3d 190, 198 (7th Cir. 2011). Even if a specific job requirement is essential for the team as a whole, it may not be an essential job function for any particular employee. Id. This conclusion, the Court held, flows from federal regulations that consider an employer’s judgment as to which job functions are essential, but also consider the work experience of past and present individuals holding the job in question. Id. (citing 29 C.F.R. § 1630.2(n)(3)).

The district court held that the “team” concept does not apply to this case because Zych did not need help lifting when she began her job. (App. at 12) Accordingly, the court said, it was not routine for her coworkers to help her lift. (Id.) The district court’s analysis is not only factually wrong – Zych testified that she did, indeed, receive help lifting prior to her injury (Tr. at 500) – it also ignores the fact that employees routinely help Kurta and other nondisabled employees who cannot lift heavy objects on their own. (Tr. at 427, 556) The relevant inquiry is not whether it was routine for coworkers to help Zych when she began her job; rather, it is whether it was routine for coworkers to help any employee who needed assistance. See Miller, 643 F.3d at 198 (essential job function may be required of team but not individual where “the team accommodated the various skills, abilities, and limitations of the individual team members by organizing itself according to those skills, abilities, and limitations”).

In light of evidence showing that AutoZone employees routinely helped one another with heavy lifting, it was critical for the jury to understand that heavy lifting was not necessarily an essential job function for each individual employee. The EEOC’s proposed jury instruction made this clear. (R.199-1, EEOC Supp. Proposed Jury Instr. No. 8) By refusing to give the proposed instruction, the district court provided an incomplete and misleading statement of the law. See Javier v. City of Milwaukee, 670 F.3d 823, 830 (7th Cir. 2012) (remanding for new trial where jury instruction was legally correct but “materially incomplete”); Byrd v. Ill. Dep’t of Pub. Health, 423 F.3d 696, 709 (7th Cir. 2005) (remanding for new trial where jury instruction was generally correct but omitted critical legal point); Dazenko v. James Hunter Mach. Co., 393 F.2d 287, 291 (7th Cir. 1968) (remanding for new trial where jury instruction did not “sufficiently perform[ ] the office of the . . . instruction requested and not given.”).

The jury asked the court for permission to express its views about AutoZone’s conduct. (Tr. at 789) This request at least suggests that even though the jury believed heavy lifting was an essential job function, it thought that AutoZone should have allowed Zych to continue receiving help. This window into the jury’s deliberations suggests that the team instruction might have led the jury to vote differently. Failure to give the instruction prejudiced the EEOC and is grounds for a new trial.

B. This Court should remand for a new trial because the jury’s verdict was against the manifest weight of the evidence.

1. Standard of Review

The Court must grant a new trial if the jury’s verdict was against the manifest weight of the evidence. See U.S. v. Hassebrock, 663 F.3d 906, 920 (7th Cir. 2011). Denial of a motion for a new trial is reviewed for abuse of discretion. Id. The Court must order a new trial if, viewing the evidence in the light most favorable to the prevailing party and leaving issues of credibility to the jury, “no rational jury” could have arrived at the verdict. Moore ex rel. Estate of Grady v. Tuleja, 546 F.3d 423, 427 (7th Cir. 2008); King v. Harrington, 447 F.3d 531, 534 (7th Cir. 2006).

2. Discussion

Even looking at the evidence in the light most favorable to AutoZone, no rational jury could have concluded that Zych was not a “qualified individual with a disability.” Zych performed her job successfully for four years, two of them following her injury. (Tr. at 10, 48, 167) Managers, coworkers, and customers all considered her an excellent employee and no one objected to helping her on the infrequent occasions when she was unable to lift. (Tr. at 18-19, 48-49, 767) Her supervisors disagreed with the decision to terminate her (Tr. at 92, 104) – a decision that was made by the corporate office without any inquiry into the quality of Zych’s work. (Tr. at 92, 100-02)

Critically, Zych worked successfully for the two years following her injury by doing exactly what AutoZone said she should do: asking her coworkers to help her lift heavy items. (Tr. at 60-61, 85-86) AutoZone has offered no explanation for why this approach remains acceptable for Kurta, who has only one functional arm, but not for Zych. Nor has AutoZone explained why it considers Kurta, but not Zych, qualified. If heavy lifting is, indeed, an essential job function for all employees, then Kurta, too, should be deemed unqualified. The fact that he is not means that Zych should not be considered unqualified either. No rational jury could find otherwise.

C. The evidence was so one-sided on the issue of disability that the district court should have granted judgment as a matter of law on that issue.

1. Standard of Review

The court’s denial of a motion for judgment as a matter of law is reviewed de novo. Byrd v. Illinois Dep’t of Pub. Health, 423 F.3d 696, 712 (7th Cir. 2005). Judgment as a matter of law is appropriate when the evidence, viewed in the light most favorable to the prevailing party, “‘supports but one conclusion – the conclusion not drawn by the jury.’” Mejia v. Cook Cnty., Ill., 650 F.3d 631, 634 (7th Cir. 2011) (citation omitted). In reviewing the evidence, the Court must credit “‘evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses.’” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151 (2000) (citation omitted). The Court must determine “only whether any rational jury could have found for [the non-movant].” Byrd, 423 F.3d at 712.

2. Discussion

Zych, who had a permanent fifteen-pound lifting restriction, was disabled within the meaning of the ADA. The ADA defines “disability” as “a physical or mental impairment that substantially limits one or more major life activities of [an] individual.” 42 U.S.C. § 12102(1)(A). Under the 2008 amendments, lifting is a major life activity. Id. § 12012(2)(A). Although this Court held under pre-amendment law that a twenty-pound lifting restriction did not constitute a substantial limitation, see Majors v. Gen. Elec. Co., 714 F.3d 527, 533 n.1 (7th Cir. 2013) (citing cases), one of Congress’s stated purposes in enacting the amendments was to “reinstat[e] a broad scope of protection.” 42 U.S.C. § 12101 note § 2(b)(1).

AutoZone presented no evidence in support of its contention that Zych is not a person with a disability or a record of a disability. Instead, it asked the jury to speculate about Zych’s motives and credibility. AutoZone insinuated that because no one saw Zych’s accident, she must have been lying about her injury. (Tr. at 368) Ignoring MRI and x-ray results showing a torn tendon, torn rotator cuff, and separation of her shoulder bone and collar bone, AutoZone argued that Zych invented or exaggerated her pain in order to recover worker’s compensation benefits. (R.237, Tr. at 26-27) AutoZone would have the jury believe that two years of physical therapy, occupational therapy, pain medication, cortisone injections, two surgeries, and a permanent lifting restriction were meaningless. Although its own worker’s compensation program paid nearly $200,000 in connection with Zych’s injury (Ex. 1021 at D00564, App. at 28), AutoZone told the jury that Zych was lying. (R.237, Tr. at 27, 29)

The medical evidence speaks for itself. MRI and x-ray results confirm Zych’s injury. (Tr. at 203, 205) Her doctor and physical therapists chronicled her observable pain, and Zych spent two years pursuing a variety of treatments to lessen her symptoms. (Tr. at 204-06, 230-36) At one point, she could not lift anything at all with her right arm. (Tr. at 208, 233) Had she not undergone extensive physical therapy, surgery, and other treatments, she likely would not have improved to the same extent. Even after her treatments, she was left with a permanent fifteen-pound lifting restriction. (Tr. at 230-31) Looking at this evidence, no reasonable jury could find that Zych is not a person with a disability or a record of a disability.

The district court held that the EEOC’s motion for judgment as a matter of law on this issue was moot because it had already denied the motion for a new trial. (App. at 10) If this Court agrees with the EEOC that the case should be remanded, however, we urge it to reverse the denial of the motion for judgment as a matter of law. Based on the overwhelming and undisputed evidence of disability, this issue is not appropriate for resolution by a jury.

CONCLUSION

The district court’s failure to give the EEOC’s requested “team” jury instruction is reversible error. Especially in light of the jury’s stated desire to send a message to AutoZone, a clearer instruction regarding essential job functions could have led to a different result. The absence of the “team” instruction confused the jury and prejudiced the EEOC.

This Court should also remand for a new trial because the jury’s verdict is against the manifest weight of the evidence. AutoZone has not and cannot explain why Kurta (who has only one functional arm) is qualified for his job but Zych is not. If it is acceptable for coworkers to help Kurta lift heavy objects, it should be equally acceptable for them to help Zych. No rational jury could find otherwise.

Finally, if this Court remands for a new trial, it should reverse the denial of judgment as a matter of law on the issue of disability. AutoZone relies on speculation, not facts, to argue that Zych is not disabled. The evidence on this issue points in only one direction and there is no dispute for the jury to resolve.

For the foregoing reasons, the EEOC respectfully asks this Court to reverse, remand for a new trial, and remove the issue of disability from the jury.

Respectfully submitted,

P. DAVID LOPEZ Gail S. Coleman

General Counsel Attorney

EQUAL EMPLOYMENT

JENNIFER S. GOLDSTEIN OPPORTUNITY COMMISSION

Associate General Counsel Office of General Counsel

131 M Street, NE, Room 5SW24L

CAROLYN L. WHEELER Washington, DC 20507

Assistant General Counsel (202) 663-4055

gail.coleman@eeoc.gov

[1] Devereaux is referred to in the trial transcript both as Dawn Devereaux and Dawn Blyden.