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Bunn v. Khoury Enters., Inc.

United States Court of Appeals, Seventh Circuit

May 28, 2014

JOSHUA BUNN, Plaintiff-Appellant,
KHOURY ENTERPRISES, INC., Defendant-Appellee

Argued December 13, 2013.

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:11-cv-01540 -- William T. Lawrence, Judge.

For Joshua Bunn, Plaintiff - Appellant: Christopher K. Starkey, Attorney, Indianapolis, IN.

For Khoury Enterprises, Inc., Defendant - Appellee: Michael Shaun Dalrymple, Attorney, Law Office of Michael Dalrymple, Indianapolis, IN.

Before EASTERBROOK, KANNE, and ROVNER, Circuit Judges.


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Kanne, Circuit Judge .

Joshua Bunn quit his job at a Dairy Queen franchise and sued the franchisee, his former employer, under the Americans with Disabilities Act. Bunn, who is vision-impaired, believed that the employer failed to accommodate his disability as required by law and that it subjected him to illegal disparate treatment when it reduced his scheduled hours during the winter months. The district court granted the employer's motion for summary judgment on all claims, and Bunn appealed. After disposing of an initial procedural argument, we find that Bunn's failure-to-accommodate claim falls short because the employer did reasonably accommodate Bunn's disability. Next, we find that his disparate treatment claim fails because he has not introduced sufficient evidence to create a triable issue of material fact and because the undisputed facts show that the defendant is entitled to judgment as a matter of law. We affirm the judgment of the district court in all respects.

I. Background

Joshua Bunn is legally blind. He has no vision in one eye and greatly reduced vision in the other. On July 25, 2010, Bunn applied for employment with Khoury Enterprises (" Khoury" ), a firm operating Dairy Queen franchises in the Indianapolis area. On September 27, 2010, Khoury hired Bunn for an hourly position. The parties dispute whether that position was formally classified as " full-time" or " part-time," but for the purposes of this lawsuit that distinction is irrelevant.

Typically, hourly employees at Khoury's Dairy Queen stores were required to rotate between various duty stations. These included preparing ice cream treats, preparing grilled food, working the cash register, maintaining the dining area, and more. Bunn's first assignment was to the " Chill" department, in which Dairy Queen's well-known ice cream treats were prepared. Bunn was unable to perform certain duties within the department without accommodation. The type on the ingredient labels was too small, and the monitors displaying orders to be filled were too high.

Store manager Larry Johnson took responsibility for finding a position better

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suited to Bunn's needs. Eventually, he trained Bunn in the " Expo" department, in which employees were responsible for delivering food to dine-in customers and keeping the store and the dining area clean. Bunn was able to perform his duties in the Expo department with minimal accommodation, and Johnson decided to schedule Bunn exclusively in Expo. That meant Bunn's position was different from the position held by most of his hourly peers, as they continued to rotate between departments while he stayed put. But it did not mean that Bunn was given fewer hours. From the time he was trained until the time he was suspended due to insubordinate conduct towards a supervisor, Bunn was scheduled full-time.

On November 17, 2010, night manager Norma Caballero asked Bunn to put his cell phone away while working (Bunn had been warned about using his phone during his shift on multiple occasions). Bunn refused, and Caballero reported that he gave her an " attitude" for the rest of the shift, including shoving a trash can at her when she asked him to take out the garbage. Caballero contacted Larry Johnson, and Bunn was suspended for ten days. Bunn signed a written suspension notice indicating that he understood why he was being disciplined.

Bunn's hours decreased following the suspension. In December 2010, Bunn requested and received seven days off. Khoury's restaurants were also closed for the holidays, and on occasion closed due to inclement weather. Bunn worked only 23.41 hours that month. In January 2011, after returning from vacation, Bunn worked just 12.33 hours. It is undisputed that, given the nature of a Dairy Queen franchise's business, Khoury's restaurants saw decreased demand during the cold weather months and adjusted many employee schedules accordingly. On ...

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