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Steak ‘n Shake worker restricted to sedentary job can’t perform essential functions of fountain operator

By Kathleen Kapusta, J.D.

Affirming summary judgment against the ADA claims of a Steak ‘n Shake fountain operator who had been restricted to clerical or sedentary work with no lifting as a result of a prior hip replacement surgery, and who was removed from the work schedule for a safety evaluation after falling twice and then was subsequently terminated, the Eighth Circuit found he failed to show he was a qualified individual within the meaning of the Act. Despite his belief he could perform the job’s essential functions, his permanent medical restrictions barred him from performing the duties laid in the job description (Denson v. Steak ‘n Shake, Inc., December 3, 2018, Wollman, R.).

Four years before being hired by Steak n’ Shake, the employee broke his hip and underwent total hip replacement surgery. After he reached maximum medical improvement, his surgeon permanently restricted him to clerical or sedentary work with no lifting. An administrative law deemed him disabled and awarded him Social Security benefits.

Hired as fountain operator. Two years later, he was hired by Steak n’ Shake as a fountain operator, a job that required him to stand, bend, stretch, walk, and lift and carry up to 30 pounds. Although he informed Steak n’ Shake that he suffered back problems and had undergone hip replacement surgery, he stated that he could lift between 15 to 30 pounds.

Terminated. Several months later, after falling twice at work, he started physical therapy through the company’s workers’ comp program. He was subsequently examined by a doctor, who restricted him to no lifting more than 30 pounds; no kneeling, squatting, stooping, or climbing; and no walking or standing for more than 45 minutes per hour. After a second exam a month later, the doctor rescinded those restrictions and recommended that the employee remain on his original medical restrictions of clerical or sedentary work with no lifting. He was then removed from the work schedule for a safety evaluation and subsequently fired.

He thereafter sued, alleging that Steak ‘n Shake terminated him because of his disability in violation of the ADA and the district court granted summary judgment against this claim.

Not qualified. On appeal, the Eighth Circuit found he failed to show he was a qualified individual within the meaning of the ADA. Although he believed he could perform the essential job functions of the fountain operator, his permanent medical restrictions barred him from performing the duties laid out in the job description, said the court, noting it has held that “[t]he ADA does not require an employer to permit an employee to perform a job function that the employee’s physician has forbidden” and that an employee’s subjective belief that he or she can perform the essential functions of the job is irrelevant.

And while he argued that Steak ‘n Shake could have accommodated him by transferring him to the dish room, prep person, or host position at any of its restaurant in the metropolitan area, he conceded that these positions required employees to stand for long periods of time. Thus, pursuant to his medical restrictions, he could not perform the essential functions of these jobs. Because he was not a qualified individual, this claim failed as did his failure-to-accommodate claim for the same reasons.