Special verdict form in ADA case was not erroneous, 7th Circuit affirms

IL file photo

A special verdict form that a federal jury used to rule against a former Costco employee was not erroneous, the 7th Circuit Court of Appeals ruled in affirming a lower court’s decision.

Karen Hirlston — who has disabilities that make it hard for her to bend, walk and stand — worked as the optical manager at a Costco store.

In 2015, the store planned to remodel the department in a way that would make it more difficult for Hirlston to continue working in that job. The two sides discussed accommodations, including work restrictions designated by Hirlston’s doctor, but Costco determined no accommodations would allow her to continue working in that role.

The remodel included building computer monitors directly into the counters — as opposed to having monitors placed on countertops — which would have required Hirlston to stand for longer than she could tolerate.

The store also decided Hirlston wasn’t carrying out the essential functions of her job before the remodeling by acting contrary to her doctor’s restrictions and delegating essential tasks to other employees.

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

Hirlston filed a lawsuit under the Americans with Disabilities Act for disability discrimination and retaliation.

A jury in the Indiana Southern District Court, Indianapolis Division, ruled against her, finding she was not qualified for the optical manager position.

On appeal, Hirlston argued the trial court used an improper special verdict form, gave an erroneous jury instruction on the issue of being qualified for the job, and erred by allowing Costco to show the jury two photographs that it had not timely disclosed in discovery.

The 7th Circuit disagreed and affirmed jury’s decision.

The challenged jury verdict form included the same first question for Hirlston’s ADA claims for discrimination and failure to accommodate: “Was Ms. Hirlston qualified to perform her job as an Optical Department Manager in November 2015?”

Hirlston argued the question should have read differently.

The parties debated whether Hirlston preserved her objection to the verdict form, but the 7th Circuit ruled the record shows she made a timely objection because the court didn’t give counsel an opportunity to object before instructing the jury and providing the form.

Counsel never agreed on a verdict form, so the court crafted its own version, which neither counsel saw before the jury began deliberations.

When the jury returned its verdict, the only question it answered was the question of whether Hirlston was qualified for her job as optical manager in November 2015. The jury answered “no” and did not proceed further.

“Under Rule 51, because there was no opportunity to register objections to the form the court actually gave to the jury, Hirlston did not forfeit her objection to the verdict form,” the opinion says.

But the verdict form was not erroneous, the 7th Circuit ruled, because the question didn’t need to include all of the nuances of the concept of reasonable accommodations.

The 7th Circuit next ruled — again applying Rule 51 — that Hirlston did not preserve her objection to the jury question on reasonable accommodations.

The evening before the final day of trial, counsel met with the district judge off the record to discuss the final jury instructions. The next morning, Hirlston’s counsel modified their position on the instruction defining “qualified” under the ADA, asking that the instructions define “qualified” generically to mean she could do the job’s essential functions “with or without reasonable accommodation,” without any reference to who had proposed any accommodations or when.

Costco’s lawyer agreed to the change, and the court agreed to make the revisions.

But there was a mistake, the opinion says, because the court didn’t actually make the agreed change.

“The misunderstanding here was unfortunate but not unprecedented,” the opinion says, citing Spanish Action Committee of Chicago v. City of Chicago, 766 F.2d 315 (7th Cir. 1985).

Hirlston failed to object, but her counsel still needed to check the actual final instructions presented to them, the opinion says.

Hirlston also argued the jury instructions erroneously defined “qualified” as it relates to the ADA.

The jury instruction read: “Under the ADA, Ms. Hirlston was ‘qualified’ if she … could do the job’s essential functions, either with or without the reasonable accommodation she proposed.”

Hirlston argued the “she proposed” phrase was erroneous because it limited her case at trial to the accommodations she had proposed in her dealings with Costco management.

“As a general rule, we agree with Hirlston that an ADA plaintiff is not necessarily limited at trial to the accommodations she proposed before the lawsuit,” the opinion says. “We are not convinced, however, that the instruction as given was so prejudicial to Hirlston that we should reverse on plain-error review and order a new trial on this forfeited issue.”

The opinion continues: “Hirlston’s argument on appeal raises a sometimes tricky but important issue in ADA litigation. The ADA plaintiff has the burden of showing at trial that a reasonable accommodation would have enabled her to do the essential functions of the job in question. E.g., Spurling v. C&M Fine Pack, Inc., 739 F.3d 1055, 1062 (7th Cir. 2014). But the question may arise whether and to what extent the plaintiff might be limited at trial to accommodations she proposed to the employer or that were discussed in the ‘interactive process’ between employer and employee contemplated by the ADA. The answer may depend on which side is deemed more responsible for the breakdown of the interactive process.”

Costco pointed out at trial that Hirlston hadn’t requested a powered wheelchair, the opinion notes, with the 7th Circuit determining the store was still required to consider accommodations beyond those Hirlston proposed.

“But it is not enough for Hirlston to show an abstract legal error in the instructions,” the opinion says.

The 7th Circuit ruled it was not persuaded that the disputed “she proposed” phrase had any effect on the verdict.

Finally, addressing the photographs admitted, the opinion says the record shows both sides offered “less than a handful” of photographs as exhibits that weren’t properly disclosed before trial.

The court admitted late-disclosed photographs from both parties.

“Having tolerated plaintiff’s oversights, the district court did not abuse its discretion in allowing Costco similar leeway,” the opinion says.

The case is Karen R. Hirlston v. Costco Wholesale Corporation, 22-2067.