                                                                                FILED
                                                                    United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                        Tenth Circuit

                             FOR THE TENTH CIRCUIT                         June 20, 2018
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
SIMONE MIELNICKI,

      Plaintiff - Appellant,

v.                                                         No. 17-1396
                                              (D.C. No. 1:16-CV-01484-PAB-NYM)
WAL-MART STORES, INC.,                                      (D. Colo.)

      Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before BRISCOE, MATHESON, and EID, Circuit Judges.
                  _________________________________

      Simone Mielnicki sued her former employer, Wal-Mart Stores, Inc. (Walmart),

under the Americans with Disabilities Act (ADA) and the Colorado

Anti-Discrimination Act for discrimination on the basis of disability and under the

Colorado Wage Claim Act for unpaid compensation. She appeals the district court’s

grant of summary judgment in favor of Walmart on her ADA claim. Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm.



      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
I. Background

      The relevant facts are undisputed. Ms. Mielnicki is in her sixties but, due to a

developmental disability, has the mental capacity of a thirteen-year-old. Though she

lives independently, she cannot drive a car, and family members must assist her with

tasks such as shopping for food and paying bills. For about fourteen years, she was

employed by Walmart, first as a shopping-cart attendant, then as a maintenance

associate. When she accepted the latter position, she signed a job description

indicating that she both did and did not “have the ability to perform the essential

functions of this position either with or without a reasonable accommodation.” Aplt.

App., Vol. 1 at 33. Her job duties included providing assistance in various areas of

the store by moving items to the front of shelves, sweeping and mopping,

maintaining the spill stations, and serving on the safety committee. She had an

excellent attendance record, and her written evaluations were generally positive.

      The job description stated that cleaning the restrooms was an essential function

of the maintenance associate position. For years, the two other maintenance

associates did this job, but Ms. Mielnicki did not. After one of the other maintenance

associates left, however, a store manager directed Ms. Mielnicki to clean the men’s

restroom. She refused, stating that she was afraid a man would come in and attack

her. Later, she submitted an accommodation medical questionnaire from her doctor

stating that she “socially cannot handle certain situations such as being in [the] men’s

bathroom” and that she should not be exposed to cleaning products due to her

eczema. Id. at 52. The doctor made the following accommodation recommendation:

                                           2
“Patient has demonstrated a 14 year history at Walmart working as a special needs

employee in various positions that have not been a problem in the past. Returning to

one of those positions would be ideal.” Id. Walmart placed Ms. Mielnicki on

personal leave, pending job reassignment if a suitable position were to become

available. She soon obtained other employment with another employer, and Walmart

formally terminated her.

      Ms. Mielnicki then filed this lawsuit. Walmart moved for summary judgment,

arguing that cleaning the restrooms was an essential function of her job that she could

not perform with or without any reasonable accommodation. The district court

granted the motion, agreeing that cleaning the restrooms was an essential function of

being a maintenance associate and stating that Ms. Mielnicki “offers no legal or

factual authority for finding that she was in a special position and was merely called

a maintenance associate for record-keeping purposes.” Id., Vol. 2 at 372 (internal

quotation marks omitted).

      Ms. Mielnicki argues the district court erred by determining that she was a

maintenance associate and that cleaning the restrooms was an essential function of

her job.

II. Analysis

      We review de novo the district court’s grant of summary judgment, applying

the same standard as the district court. Duvall v. Ga.-Pac. Consumer Prods., L.P.,

607 F.3d 1255, 1259 (10th Cir. 2010). We must affirm if the evidence, viewed in the



                                           3
light most favorable to Ms. Mielnicki, reveals no genuine dispute as to any material

fact and that Walmart is entitled to judgment as a matter of law. See id.

      To state a prima facie case on her ADA claim, Ms. Mielnicki must show that

(1) she was disabled, (2) she was qualified, with or without reasonable

accommodation, to perform the essential functions of her job, and (3) she was fired

because of her disability. Hawkins v. Schwan’s Home Serv., Inc., 778 F.3d 877, 883

(10th Cir. 2015). If one of these elements is not shown, the others do not need to be

addressed. Hennagir v. Utah Dep’t of Corr., 587 F.3d 1255, 1261-62 (10th Cir.

2009). This case hinges on the second element. “We weigh heavily the employer’s

judgment regarding whether a job function is essential.” Id. at 1262. “Provided that

any necessary job specification is job-related, uniformly enforced, and consistent

with business necessity, the employer has a right to establish what a job is and what

is required to perform it.” Id. (internal quotation mark omitted).

      Ms. Mielnicki concedes that cleaning the restrooms is an essential function of

being a maintenance associate and that she could not perform it, with or without any

reasonable accommodation. But she argues that the district court erred by

determining that she was in fact a maintenance associate. She contends that she was

a maintenance associate in name only and that her actual job was something different

because for years she performed various tasks as a Walmart employee that did not

include cleaning the restrooms. However, “[w]e are reluctant to allow employees to

define the essential functions of their positions based solely on their personal

viewpoint and experience.” Mason v. Avaya Commc’ns, Inc., 357 F.3d 1114, 1122

                                           4
(10th Cir. 2004). That Walmart did not direct her to clean the restrooms for several

years does not mean it was not an essential function of her job. The requirement is

clearly job-related, and the evidence shows that it was uniformly enforced with

respect to the other maintenance associates. When one of those associates left,

Ms. Mielnicki was asked to perform that function out of business necessity.

      The essential-function inquiry depends on “whether a job function was

essential at the time it was imposed.” Hennagir, 587 F.3d at 1262 (emphasis added).

“A particular job duty may be essential because the reason the position exists is to

perform that function, or because of the limited number of employees available

among whom the performance of that job function can be distributed.” Hawkins,

778 F.3d at 884 (citation and internal quotation marks omitted). Ms. Mielnicki cites

no authority for the proposition that a job function is not essential if an employer for

an extended period excuses an employee from performing it. To the contrary, we

have held that an employer may require an employee to be able to perform functions

that she might rarely, or even never, need to perform. See Hennagir, 587 F.3d at

1263-64 (listing job functions that might be needed only infrequently but could be

deemed essential nonetheless).

      Ms. Mielnicki also argues that Walmart must have intended to hire her for a

position that did not require the ability to perform all the essential functions of a

maintenance associate because the job description she signed is equivocal—she

simultaneously certified that she did and did not have the ability to perform the

essential functions of the job. But this ambiguity does not mean that Walmart

                                            5
created a special position for her, as she contends. Rather, Walmart excused her

from performing an essential function of the position even though it was not required

to do so. An employer that goes beyond what is required under the ADA to permit an

employee to perform only some of the essential functions of the position is not then

estopped from insisting that the employee perform all of the essential functions of her

job. “[W]e will not obligate an employer to create a position out of wholecloth to

accommodate the individual in question.” Hawkins, 778 F.3d at 884. Nor is Ms.

Mielnicki’s 2007 evaluation, on which her position is listed as “salesfloor,” Aplt.

App., Vol. 2 at 331, sufficient to raise a genuine issue of material fact about what her

job was. Walmart produced evidence that no such position existed, and every

subsequent evaluation in the record indicated that Ms. Mielnicki held a

“maintenance” position, id. at 332-44.

      Ms. Mielnicki’s contention that Walmart had experienced no hardship in not

requiring her to clean the restrooms also misses the mark. First, it ignores the

changed circumstances that arose when one of the other maintenance associates left.

In addition, it conflicts with the principle that “[a]n employer is not required to

reallocate essential functions” to accommodate a disabled employee. Duvall,

607 F.3d at 1262 (ellipsis and internal quotation marks omitted). Further, “[t]he

ADA does not limit an employer’s ability to establish or change the content, nature,

or functions of a job.” Hennagir, 587 F.3d at 1262 (internal quotation marks

omitted). Ms. Mielnicki has failed to raise a genuine issue of material fact



                                            6
concerning whether she could perform the essential functions of her job as a

maintenance associate.

III. Conclusion

      Because Ms. Mielnicki failed to establish a prima facie case of discrimination

on the basis of disability, the district court properly entered judgment in favor of

Walmart.


                                            Entered for the Court


                                            Mary Beck Briscoe
                                            Circuit Judge




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