United States District Court, S.D. Indiana, Indianapolis Division
KAREN R. HIRLSTON, Plaintiff,
COSTCO WHOLESALE CORPORATION, Defendant.
ENTRY DENYING DEFENDANT'S MOTION FOR SUMMARY
WALTON PRATT, JUDGE United States District Court
matter is before the Court on Defendant Costco Wholesale
Corporation's (“Costco”) Motion for Summary
Judgment filed pursuant to Federal Rule of Civil Procedure
56. (Filing No. 44.) Also pending is Plaintiff's Motion
for Leave to File Surreply in Opposition to Defendant's
Motion for Summary Judgment. (Filing No. 59). After her
employer, Costco, denied her request for accommodation of her
workplace restrictions, Plaintiff Karen R. Hirlston
(“Hirlston”) filed this action alleging
discrimination and retaliation under the Americans with
Disabilities Act (“ADA”). (Filing No. 1.) For the
following reasons, the Court denies Costco's Motion for
Summary Judgment and grants Hirlston's request for leave
to file a Surreply.
following facts are not necessarily objectively true, but as
required by Federal Rule of Civil Procedure 56, the facts are
presented in the light most favorable to Hirlston as the
non-moving party. See Zerante v. DeLuca, 555 F.3d
582, 584 (7th Cir. 2009); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986).
is a chain of membership-only warehouses that retails goods
in bulk and provides services, including an optical
department. Hirlston has worked at Costco since December
2009. (Filing No. 56-12.) In August 2010, Hirlston was
promoted to the position of Optical Department Manager at the
Castleton location in Indianapolis, Indiana. Id.
During and before her employment with Costco, Hirlston
suffered from an array of disabilities. She was diagnosed
with fibromyalgia in 1995. Id. at 2. Since 2011, she
has suffered from four herniated disks, two of which are
“pushing on nerve roots.” Id. She has
also been diagnosed with spinal canal stenosis, facet
disease, and bone spurs, and she has suffered from arthritis
since she was 11 years old. Id. Because of her
spinal disabilities and fibromyalgia, Hirlston has used a
cane to get around since childhood. Id. Throughout
the years and during bad flare-ups, she has required
assistance dressing, stepping into clothing and other
everyday activities such as household chores. Id.
of her disability, Hirlston was required to abide by
stringent physical restrictions at work. Among other
restrictions, she was unable to stand for more than fifteen
minutes at a time, walk for more than ten minutes at a time,
and was not to push or pull any weight. (Filing No. 46-7.)
Her doctor indicated that she would need to sit frequently to
relieve pain. Id. She was only permitted to lift or
carry up to two pounds below her waist or five pounds above
her waist, could only do so “occasionally, ” and
could never lift or carry more weight. Id.
Hirlston's doctor also indicated that she could never
bend, stoop, squat, kneel, or climb stairs or ladders.
Id. The duration of each of these restrictions was
listed as permanent. Id.
October 2014, Hirlston reported to Mike Donaldson
(“Donaldson”), the warehouse manager at the
Castleton Costco warehouse, that her regional manager Scott
Francis (“Francis”) was discriminating against
her on the basis of her disability. (Filing No. 56-12 at 2;
Filing No. 56-11 at 38-39.) Donaldson contacted his boss,
Bill Koza, following Hirlston's report of discrimination.
(Filing No. 56-11 at 17.) No. follow-up investigation
occurred because Francis was out on leave at the time
Hirlston made the complaint. Id. at 17-18; 39.
Francis' treatment of Hirlston worsened when she had to
use her cane and her disability condition was visible.
(Filing No. 56-12 at 2.)
summer of 2014, Costco eliminated chairs with backs for their
employees, opting to switch to backless stools. Id.
at 3. In December 2014, Hirlston requested a chair with a
back as a reasonable accommodation for her disabilities.
Id. She provided Donaldson with a note from her
doctor.1 Costco eventually provided Hirlston with a chair,
however it was not until seven months after her request.
(Filing No. 56-12 at 3.)
2015, Costco announced that there would be a complete remodel
of the Optical Department. On May 13, 2015, Costco informed
Hirlston that all monitors in the Optical Department would be
built into countertops to protect the confidentiality of
personal health information. Id.; Filing No. 56-8.
This change would eliminate the need for seated workstations.
(Filing No. 56-12 at 3.) In anticipation of the remodel's
incompatibility with her disabilities, Hirlston spoke with
Chris Albury (“Albury”), the Administrative
Manager, about the remodel. Id. Albury advised
Hirlston that she would need an accommodation. Id.
her conversation with Albury, Hirlston spoke separately to
Francis, the Regional Manager, and Charise McDonald
(“McDonald”), the Assistant Warehouse Manager,
about her concerns over the remodel. Id. She
informed them that her disability made it impossible for her
to stand all day and she asked what she should do.
Id. Both Francis and McDonald told Hirlston that
there was no way to accommodate her disability after the
remodel. Id. Francis did not offer a reason, and
McDonald said that her direction came from
“corporate.” Id. at 4. Following this
conversation, Hirlston contacted Costco's human resources
department and was told that Costco could make an
accommodation for her. Id. Based on the direction of
that department, Hirlston 1 Donaldson does not recall being
involved in Hirlston's request for a chair. Filing No.
56-11 at 14. provided her restrictions to Donaldson and
formally requested an accommodation on September 26, 2015.
mid-October 2015, Hirlston was contacted by Frances Parisi
(“Parisi”) from Rehab West, a company whose
services Costco utilizes to facilitate job assessment
meetings. Id.; Filing No. 45 at 2-3. Parisi asked
Hirlston to participate in a conference call with Donaldson
and herself to discuss Hirlston's work restrictions.
(Filing No. 56-12 at 4.) On November 3, 2015, Hirlston,
Donaldson, and Parisi, among others, attended a job
assessment meeting the purpose of which was to discuss
Hirlston's requested accommodations. Id. At this
meeting, Hirlston suggested two accommodations-the use of a
chair for when she needed to sit, and the use of a grabber
for when she needed to pick up documents from low shelves and
was unable to stoop or bend to pick them up. Id.
Hirlston was denied both of those accommodations at the job
assessment meeting. (Filing No. 56-11 at 16-17.) Costco
denied these proposed accommodations without researching them
or speaking to an independent vocational expert or to
Hirlston's physician. Id. at 24-26; 43-44.
Hirlston also explained that she was able to do the job of
Optical Department Manager without violating the lifting
restrictions placed on her by her doctor. (Filing No. 56-12
denying her request for an accommodation, Costco placed
Hirlston on a forced leave of absence on November 4, 2015.
(Filing No. 56-12 at 6.) Donaldson wrote a letter to Hirlston
explaining that at the job assessment meeting, “[i]t
was determined … that you were unable to perform the
essential functions of your position of Optical Manager
(full-time), with or without accommodations.” (Filing
No. 56-4.) “Accordingly, because you cannot return to
work with or without accommodation, as a reasonable
accommodation, we are placing you on a leave of absence both
as a reasonable accommodation and to provide us the
opportunity to further explore other potential positions for
possible reassignment.” Id. at 2. Hirlston was
not paid during this forced leave of absence, but she
received short-term disability benefits in accordance with a
Costco policy. (Filing No. 56-11 at 37; Filing No. 46-1 at
33-34.) While she was on this forced leave of absence,
Hirlston was depressed and unable to leave her house or get
out of bed. (Filing No. 56-12 at 8.) Only when Costco rehired
her did this depression abate. Id.
April 2016, Hirlston had another job assessment meeting, this
time with William Kaufman (“Kaufman”), the
warehouse manager at the new southside Indianapolis Costco
location. (Filing No. 56-12 at 6.) Hirlston believed the
meeting was to discuss a potential job at the new location,
but at the meeting she learned there was no such position
available for her in April 2016. Id. Following that
meeting, Donaldson sent Hirlston a letter asking her to
contact him by May 10, 2016, if she would like to discuss her
suitability for other positions at Costco. Id. at
October 11, 2016, Hirlston received an e-mail and a voicemail
from Kaufman offering her a job as a hearing aid attendant.
Id. at 7, 14. Hirlston accepted this position on
October 17, 2016, via email. Id. at 13. Six days
prior to Hirlston's acceptance of that position, Costco
posted a job listing for her old job as Optical Department
Manager. Id. at 82-83. In October 2016, Hirlston
returned to work at Costco at the southside Indianapolis
location as a hearing aid attendant. Id. at 7.
Hirlston viewed this as a demotion. Id. As the
Optical Department Manager, Hirlston earned approximately
$63, 000.00 per year, but as a hearing ...