“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.
Trump Seventh Circuit judge Amy St. Eve wrote a divided decision dismissing a woman’s claim that she was improperly fired by Federal Express Corporation (Fedex) in violation of the Americans with Disabilities Act (ADA). The July 2020 case is Kotaska v. Federal Express Corp.
Janet Kotaska began working as a courier at Fedex in Illinois in 1998. While on a delivery in 2011, she slipped on ice and injured her shoulder, which limited the weight of packages she could lift. She was fired in 2013 but contested the firing through Fedex internal procedures until April 2014. She was later rehired as a handler, with what she contended was an “off the books” promise that she would be promoted to after three weeks, and began working in April 2015.
She worked for around three weeks with no complaints, and her performance was “exemplary.” Fedex claimed that a courier then asked her for help with an oversized package that she declined because her “shoulder prevented” it, although Kotaska denied that the incident occurred. She worked another week without incident and then got a letter from a Fedex official who had heard the courier story and had been involved in her earlier firing, claiming inaccurately that she had been complaining to management about problems with her shoulder. The official then asserted that Kotaska could not perform the “essential functions” of a handler and put her on leave, which led to her firing. Fedex claimed that the handler job required her to lift up to 75 pounds above her waist, which she could do, but also above her head, which she could not.
Kotaska filed suit against Fedex for violating the ADA in her second firing and retaliating against her for her earlier complaints. The lower court acknowledged that there was a dispute as to whether being able to lift 75 pounds above the head was essential to the job but granted summary judgment to Fedex. It claimed that Kotaska had not presented evidence that she was able to perform the essential functions of the handler job or that there had been any retaliation for her raising disability claims in connection with her first firing. Kotaska appealed.
In a 2-1 decision, Trump judge St. Eve affirmed the court below and threw out Kotaska’s case. Although acknowledging that Fedex’s position had “shifted over the course of the litigation,” St. Eve maintained that there was agreement that a handler must be able to lift packages up to 75 pounds and lift some packages over the waist and head. With that essential function established, the majority went on, Kotaska had failed to prove that she could perform that function as required under the law. The majority also claimed that Kotaska had not produced enough evidence that there was a “causal connection” between her raising disability claims in connection with her first firing and Fedex’s firing her a second time.
Judge David Hamilton strongly dissented. He began by noting that Kotaska had “destroyed” Fedex’s “original and exaggerated” claim that being able to lift 75 pounds over her head was an “essential function” of the job. He continued that it was “improper, impractical and unfair” to require Kotaska to come forward and demonstrate precisely what the essential functions of the job are, and the majority’s requirement that Kotaska do so contradicted the decisions of “at least four circuits” that properly place that burden on the employer. Hamilton went on to point out that Kotaska “did offer evidence” that was sufficient for a jury to decide whether she could perform the job, including testimony from herself, her co-workers, and her supervisor that she “performed the job successfully, without pain.”
Resolving the disputed factual issue about whether Kotaska could perform the job, Hamilton pointed out, should be up to a jury, and should not be decided by the lower court or the appeals court majority on summary judgment. The same conclusion applied to her retaliation claim, he went on, as to which Kotaska provided evidence that Fedex officials “knew about her earlier protected activity” and “took that entire episode into account in deciding what to do with her in 2015.” A reasonable jury “could easily find” for Kotaska on the retaliation and the ADA discrimination claims, Hamilton concluded, and the case should have been sent back to the lower court for a jury trial.
As a result of St. Eve’s opinion, however, Kotaska will not have the chance to prove her disability and other claims against Fedex to a jury. Other victims of ADA discrimination may also suffer as a result of the majority decision, because it serves as binding precedent throughout the Seventh Circuit, which covers all federal courts in Illinois, Indiana, and Wisconsin.