Swain v. Wormuth

41 F.4th 892

Gerald SWAIN, Plaintiff-Appellant,

v.Christine WORMUTH, Secretary of the Army, Defendant-Appellee.

No. 21-2938

United States Court of Appeals, Seventh Circuit.

Argued May 18, 2022

Decided July 25, 2022

Stephen T. Fieweger, Esq., Attorney, Stephen T. Fieweger, P.C., Davenport, IA, for Plaintiff-Appellant.

Hilary W. Frooman, Attorney, Office of the United States Attorney, Springfield, IL, Kathy Laura Swett, Attorney, Office of the United States Attorney, Rock Island, IL, for Defendant-Appellee.

Before Hamilton, Brennan, and Kirsch, Circuit Judges.

Brennan, Circuit Judge.

As a civilian employee for the United States Army, Gerald Swain received several accommodations for his physical limitations. He nevertheless sued the Army under the Rehabilitation Act, 29 U.S.C. § 701 et seq. , alleging disability discrimination in two forms: failure to accommodate and disparate treatment. The district court granted summary judgment to the Army on both claims. We affirm.

I

Gerald Swain worked as a civilian employee at the Rock Island Arsenal, an Army installation in Illinois that employs over 6,000 personnel and is "home to more than 80 tenant organizations that provide critical products and services to [the U.S. military]." U.S. Army Garrison Rock Island Arsenal , https://home.army.mil/ria/ (last visited July 25, 2022). Swain worked at the Joint Manufacturing and Technology Center, a "vertically integrated metal manufacturing facility." About RIA-JMTC , https://ria-jmtc.army.mil/ (last visited July 25, 2022).

Swain was a machinist until 2014, when he suffered a shoulder injury. His doctor ordered him not to push or pull more than two times per hour and to use only his right hand for opening and closing doors. The Army accommodated this restriction by offering Swain a temporary light-duty assignment that involved observing operations and reporting his findings to a supervisor. Later that year, the Army offered Swain a permanent light-duty assignment as a tool attendant, with pay retention. Swain accepted the job.

Swain's first day of work did not go as planned. Because he underwent carpal tunnel surgery three days earlier, he was unable to use his right hand. Given this medical restriction, Swain complained to his supervisor about the weight of certain tool drawers he needed to open. His supervisor then directed other employees to weigh each drawer and mark that drawer with its weight. If a drawer weighed more than eight pounds, it was to be stamped with a label reading "Caution Heavy Drawer." Swain's supervisor assured Swain he would not need to open any unmarked drawer.

Several months later, Swain was diagnosed with a hernia. His doctors ordered a ten-pound weight restriction and recommended that he avoid lifting objects below his waist, climbing, working above shoulder height, and operating machinery. Swain and his supervisors concluded that he could not perform his duties with those restrictions. They agreed to a significant modification in Swain's work responsibilities: he would travel between cost centers "driving an[ ] electric car and perform[ing] inventory check[s]."

Swain asked for and received additional accommodations between 2014 and 2016. For example, within two months of his request, the Army provided Swain with a new scale to weigh items before he lifted them. And when Swain's doctor recommended that Swain have access to a personal, motorized cart with power steering, the Army procured one for him within two months.

Most relevant to this appeal are Swain's requests for automatic door openers. In November 2014, he requested an opener for the "tool setting door." About two months later, after noticing that work on the door opener had not begun, Swain renewed his request. Per management's instruction, Swain filled out reasonable-accommodation paperwork in which he made an additional request for an automatic door opener on the "double hallway doors in Building 210." His supervisor approved the installation of an opener on the tool-setting door, but not the double hallway doors, because he believed those doors required less than ten pounds of force (Swain's weight restriction) to open. As an alternative, Swain's supervisor approved an automatic opener on a different door that led to a men's restroom. In October 2015, the chief of plant engineering learned that these openers were approved. They were installed by August 2016, which is also when Swain claims he learned for the first time that his supervisor did not approve an opener on the double hallway doors.

Swain also took issue with the Army's assignment of overtime. Under the applicable collective bargaining agreement, employees must be considered for overtime if their medical restrictions can be accommodated. Overtime became available for tool attendants in January 2017, but the Army did not immediately consider Swain because it believed his medical restrictions precluded him from completing the work. Unhappy with that result, Swain acquired a doctor's note clearing him for overtime labor. Going forward, the Army assigned him overtime.

Swain initiated a series of grievances with the Army's Equal Employment Opportunity counselor.¹ Beginning in 2014, he alleged disability discrimination, but he later withdrew that grievance. Then, in October 2016, Swain filed a formal complaint of discrimination against the Army for allegedly failing to accommodate him by installing, in a timely way, the automatic door opener he requested. After a coworker raised his voice at him, he filed another formal complaint in February 2017, but that complaint was dismissed for failure to state a claim. Finally, in March 2018, Swain filed a formal complaint, alleging he was discriminated against based on his disability when he was not assigned overtime hours.

On June 24, 2020, Swain filed this lawsuit against the Army (via its Secretary), alleging failure to accommodate, disparate treatment, and retaliation under the Rehabilitation Act.² He requested backpay, compensatory damages, attorney's fees, and costs.

II

Swain's claims flow from the Rehabilitation Act, which provides that "[n]o otherwise qualified individual with a disability in the United States ... shall, solely by reason of her or his disability, ... be subjected to discrimination ... under any program or activity conducted by any Executive agency." 29 U.S.C. § 794(a). The Rehabilitation Act expressly incorporates the standards and procedures applicable to claims brought under the Americans with Disabilities Act ("ADA"). See id. § 794(d).

Swain's opening brief failed to mention his retaliation claim (and he did not submit a reply brief), so we review only his failure-to-accommodate and disparate-treatment claims. Scheidler v. Indiana , 914 F.3d 535, 540 (7th Cir. 2019) ("A party ... generally forfeits issues and arguments it fails to raise in its initial appellate brief.").

A

First, we address Swain's failure-to-accommodate claim. Under the ADA, an employer must make "reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability." 42 U.S.C. § 12112(b)(5)(A). To prevail on his claim, Swain must show three things: he had "physical or mental limitations" known by the Army, he was "an otherwise qualified individual with a disability," and the Army failed to reasonably accommodate his limitations. Id. ; see also Brumfield v. City of Chicago , 735 F.3d 619, 631 (7th Cir. 2013) ; EEOC v. Sears, Roebuck & Co. , 417 F.3d 789, 797 (7th Cir. 2005).

It is undisputed that the Army knew about Swain's physical limitations. And although the Army initially argued that Swain was not a qualified individual,³ it failed to raise that argument on appeal. Whether the Army reasonably accommodated Swain, then, is the only issue we need to resolve.

For years, the Army accommodated changes in Swain's temporary and permanent physical limitations. When he injured his rotator cuff, the Army reassigned him to a light-duty job with pay retention. When he underwent carpal tunnel surgery, the Army marked every tool drawer's weight. When a hernia further limited his physical capabilities, the Army permitted him to focus on less demanding tasks, like inventory checks. When he asked for a new scale, the Army provided him one. When he requested a permanent motorized cart, the Army delivered it. And when he requested automatic door openers, the Army agreed as to one set, disagreed on the second, and installed an automatic opener on a different door as an alternative.

Swain's complaint disputes the Army's responsiveness to his requests for a new scale, motorized cart, and automatic door openers. But his brief discusses only the door openers, so we limit our review accordingly. Scheidler , 914 F.3d at 540.

Recall that Swain requested two doorways be fitted with automatic openers: the tool-setting door and the Building 210 double hallway doors. Although Swain's supervisor approved his request for the tool-setting door, the supervisor believed the double hallway doors were light enough that an automatic opener was not needed. As an alternative, he approved an automatic opener for a different door that led to a men's restroom. Swain asserts the Army unreasonably delayed installation of the automatic opener on the tool-setting door and had no legitimate reason for denying his request for an automatic opener on the double hallway doors.

As to delay, the timeline is important. Swain requested automatic door openers in November 2014, but the paperwork was not filled out until April 2015. The person responsible for installing the devices learned that management had approved two sets of doors in October 2015. By August 2016, the openers were installed. Swain argues this was an unreasonable delay—one that constitutes a failure to accommodate. See McCray v. Wilkie , 966 F.3d 616, 621 (7th Cir. 2020) ("An unreasonable delay in providing an accommodation for an employee's known disability can amount to a failure to...