Jose Vargas v. Louis DeJoy ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-1116
JOSE L. VARGAS,
Plaintiff-Appellant,
v.
LOUIS DEJOY, Postmaster General,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:17-cv-05085 — Charles R. Norgle, Judge.
____________________
ARGUED SEPTEMBER 16, 2020 — DECIDED NOVEMBER 23, 2020
____________________
Before EASTERBROOK, MANION, and SCUDDER, Circuit
Judges.
MANION, Circuit Judge. Jose Vargas, a mail carrier for the
U.S. Postal Service, aggravated an old foot injury on the job in
early 2011. He was placed on work restrictions that prohibited
him from lifting and carrying heavy weights. This created a
problem for Vargas because his duties included carrying
heavy loads and packages. Vargas asked his employer for ac-
commodations, but without any alternative jobs for him to do,
2 No. 20-1116
his request was denied. As a result, Vargas had to take paid
sick leave for several weeks and eventually went on leave
without pay.
Vargas sued his employer under Title VII and for disabil-
ity-based discrimination. Apparently, his endgame is to re-
store the paid sick leave hours he took. He’s not out any
wages—he received backpay through workers’ compensation
for the time spent on leave without pay—and he still works
for the Postal Service.
The district court granted summary judgment for the
Postal Service. We affirm because Vargas could not perform
the only job available to him, with or without a reasonable ac-
commodation, and the record is devoid of evidence indicating
he was treated differently because of his race or that he suf-
fered unlawful workplace retaliation.
I. Background
Vargas began working as a mail carrier for the Postal Ser-
vice’s Romeoville, Illinois, office in 2005. Mail carriers must be
able to carry heavy weights, up to 35 pounds in their shoulder
bags. Vargas’s assigned route came with an additional duty
of shuttling mail and equipment weighing up to 75 pounds
between the post office and a satellite location.
Vargas sustained a foot injury on the job in 2008. He was
diagnosed with plantar fasciitis as a result. He received med-
ical treatment, submitted a successful claim for workers’ com-
pensation benefits, and continued working.
In January 2011, Vargas filed an EEO complaint that raised
miscellaneous workplace grievances from 2010 and linked
them to alleged race- and disability-related discrimination.
He later withdrew this complaint.
No. 20-1116 3
Also in early 2011, Vargas’s plantar fasciitis caused his foot
pain to worsen. His doctor placed him on work restrictions,
effective March 1 through March 22, 2011, that prohibited him
from lifting or carrying items weighing more than 15
pounds. 1
On March 14, 2011, when Vargas returned to work from a
vacation, he wanted his route restructured to cut out lifting
and carrying heavy loads. His superiors did not oblige and he
applied for workers’ compensation the next day. He also
made daily requests to be assigned less strenuous work—
“light duty”—from March 14 until March 22. But there was
no light duty work available for him, so he had to take paid
sick leave. 2
Vargas, who is Hispanic, sued his employer for disability-
based discrimination pursuant to the Americans with Disabil-
ities Act. He also raised retaliation and racial discrimination
claims under Title VII. The gist of Vargas’s lawsuit: the Postal
Service refused to reasonably accommodate his physical lim-
itations, and it did so because he is Hispanic, because he filed
an EEO complaint, or both. The alleged failure to accommo-
date occurred between March 14 and March 22, 2011, when
1 Vargas’s restrictions continued into the summer, though he could
carry slightly heavier loads, up to 25 pounds, from late May through late
July 2011.
2Vargas took paid sick leave from March 14 until June 27, 2011, with
a few days of annual leave in May. Beginning June 27, he was placed on
leave without pay. Vargas’s workers’ compensation application was ap-
proved October 26, 2011, and his pay dating back to June 27 was restored.
4 No. 20-1116
Vargas requested but was denied alternative work arrange-
ments for his plantar fasciitis. 3
The district court granted summary judgment for the
Postal Service and Vargas appeals.
II. Discussion
We review summary judgment de novo, asking whether a
genuine dispute exists over any material fact. Kopplin v. Wis.
Cent. Ltd., 914 F.3d 1099, 1102 (7th Cir. 2019).
The record reveals no triable issues. Vargas cannot demon-
strate he was a qualified individual with a disability and noth-
ing indicates he was subjected to racial discrimination or un-
lawful retaliation. These shortcomings prove fatal to his
claims.
Vargas’s failure-to-accommodate claim 4 requires him to
prove (1) he was a qualified individual with a disability, (2)
his employer was aware of his disability, and (3) his employer
3 This date range matches that listed in Vargas’s administrative com-
plaint. At oral argument, Vargas’s counsel confirmed this range as the rel-
evant time period.
4 We construe Vargas’s Americans with Disabilities Act claim as one
under the Rehabilitation Act because the former does not apply to federal
workers. 42 U.S.C. § 12111(5)(B)(i) (defining covered employers but ex-
cepting the United States and corporations owned by the United States);
see also Jones v. Potter, 488 F.3d 397, 403 (6th Cir. 2007) (“The Rehabilitation
Act, not the Americans with Disabilities Act (ADA), constitutes the exclu-
sive remedy for a federal employee alleging disability-based discrimina-
tion.”). In any event, we resolve Rehabilitation Act claims by looking to
the same standards and provisions that govern the Americans with Disa-
bilities Act. Jackson v. City of Chicago, 414 F.3d 806, 810–11 (7th Cir. 2005).
No. 20-1116 5
failed to reasonably accommodate his disability. Sansone v.
Brennan, 917 F.3d 975, 979 (7th Cir. 2019).
Vargas fails to present any evidence that he was a “quali-
fied individual with a disability” during the relevant eight-
day timeframe. A qualified individual is one who can perform
the “essential functions” of his position, with or without a rea-
sonable accommodation. 42 U.S.C. § 12111(8); Tonyan v. Dun-
ham’s Athleisure Corp., 966 F.3d 681, 687 (7th Cir. 2020).
Essential functions are “the fundamental job duties of the
employment position the individual with a disability holds or
desires.” 29 C.F.R. § 1630.2(n)(1). Whether a function is essen-
tial to the position is a question of fact, resolved by “con-
sider[ing] the employer’s judgment, including written job de-
scriptions, as evidence.” Tonyan, 966 F.3d at 687. We also ex-
amine the impact of not requiring the employee to perform
the function. Id. at 688. We do not typically second-guess the
employer’s judgment on this call, though our deference is not
absolute. Id. at 687–88 (citing DePaoli v. Abbott Labs., 140 F.3d
668, 674 (7th Cir. 1998)).
Being able to carry bundles of mail weighing more than 15
pounds—Vargas’s limit—is an essential function of a mail car-
rier’s job. The purpose of a Postal Service mail carrier is to de-
liver and collect mail, per the agency’s written job description.
The description notes a carrier executing that duty “[m]ay be
required to carry mail weighing up to 35 pounds in shoulder
satchels or other equipment and to load or unload container
[sic] of mail weighing up to 70 pounds.”
Yet the district court reasoned a mail carrier’s load might
not always weigh 35 pounds, so it’s ambiguous whether the
ability to carry such weight is an essential function of the job.
6 No. 20-1116
The amount of time devoted to a particular function is not
irrelevant. Tonyan, 966 F.3d at 688. Still, we have held “an es-
sential function need not encompass the majority of an em-
ployee’s time, or even a significant quantity of time, to be es-
sential.” Basith v. Cook Cnty., 241 F.3d 919, 929 (7th Cir. 2001).
That Vargas might not always have to carry 35 pounds does
not preclude that function from being essential to his job. Pe-
ters v. City of Mauston, 311 F.3d 835, 845 (7th Cir. 2002).
Consider the firefighter: while he may not often have to
carry an unconscious adult from a burning building, failing
to require that he ably perform this function when called
upon would run counter to his duty to public safety. See 29
C.F.R. app. § 1630.2(n). The same logic applies to Vargas,
though with less grave (hopefully) real-world ramifications.
A mail carrier’s lifting requirements are not optional. The con-
sequence of being unable to lift, carry, or load heavy bundles
and packages is simple though significant: the mail doesn’t
get delivered.
Vargas could not perform his job without accommodation
because he was restricted to carrying no more than 15 pounds.
Nor could he perform the same function even with the accom-
modations for which he asked. Vargas requested he either be
limited to the “collections” portion of his route—driving from
mailbox to mailbox collecting mail and no carrying of bags—
or else be allowed to perform “light duty” work, i.e., less
strenuous activity. 5
5 A postal employee injured on the job, like Vargas, may be assigned
“light duty” tasks while his workers’ compensation claim is reviewed.
This allows the injured employee to keep working within his physical re-
strictions and avoid having to take paid sick leave. But light duty runs
only so long as there are corresponding tasks available, so an employee is
No. 20-1116 7
The Postal Service rejected Vargas’s reduced route idea
and there was no light duty work for him to perform alterna-
tively.
But Vargas’s proposal was not reasonable. Allowing Vargas
to perform only collections would force the Postal Service to
assign an essential function of his job—carrying heavy mail
bags and delivering their contents—to someone else. Employ-
ers need not reshuffle staff and resources if doing so would
require reallocating an essential function from the plaintiff to
another worker. Peters, 311 F.3d at 845–46 (holding requested
accommodation unreasonable because it would require an-
other employee to perform an essential function of plaintiff’s
job: lifting and carrying).
Nor was the Postal Service obligated to create light duty
work for Vargas where none existed. Hansen v. Henderson, 233
F.3d 521, 523 (7th Cir. 2000) (An employer need not “manu-
facture a job that will enable the disabled worker to work de-
spite his disability.”). And here, Vargas points to no evidence
of light duty work available for him to perform within his lift-
ing and carrying limitations between March 14 and March 22,
2011. He discusses four coworkers who worked while nursing
injuries, although only one of them, John Choate, did so dur-
ing the relevant timeframe in this case. But Choate is not a
useful comparison because he was on “limited duty” status,
not light duty status, as of March 15, 2011. In other words,
unlike Vargas, Choate’s workers’ compensation claim had
been accepted and therefore he was guaranteed 40 hours of
not guaranteed 40 hours of work per week while on light duty status. In-
deed, an employee is not entitled to light duty work at all if there is none
available. See Hill v. Potter, 625 F.3d 998, 1001, 1003 (7th Cir. 2010) (discuss-
ing “light duty” status).
8 No. 20-1116
pay per week while recovering. Moreover, Choate perform-
ing less strenuous tasks still does not prove similar work was
available for Vargas. Nothing indicates, for example, the post
office had light duty work from March 14 to March 22 that
went unperformed by anyone.
Vargas could not perform the essential functions of his job
on his own, and he put forth no reasonable accommodation
that would allow him to do so. Thus he was not a qualified
individual under the Rehabilitation Act and there remained
nothing for the jury to decide. 6 Cf. EEOC v. Lee’s Log Cabin,
Inc., 546 F.3d 438, 445–46 (7th Cir. 2008) (concluding plaintiff
was not a qualified individual where she proposed no accom-
modations for her lifting and carrying restrictions to prospec-
tive employer).
This element is Vargas’s to prove. Majors v. Gen. Elec. Co.,
714 F.3d 527, 535 (7th Cir. 2013). Having failed to do so, he
cannot pin his claim (as he tries) to whether the Postal Service
denied him a reasonable accommodation. Gratzl v. Office of
Chief Judges of 12th, 18th, 19th, and 22nd Judicial Circuits, 601
F.3d 674, 681 (7th Cir. 2010) (“To be entitled to a reasonable
accommodation—and thus to prove that the defendant failed
to provide such a reasonable accommodation—[plaintiff] has
the burden of establishing that [he] is a ‘qualified individual
with a disability’ under the ADA.”). The only
6 Vargas does not contest this conclusion meaningfully. He asks us to
skip the qualified individual question altogether because he did not raise
it on appeal. We can affirm on any ground supported by the summary
judgment record. St. Joan Antida High Sch. Inc. v. Milwaukee Pub. Sch. Dist.,
919 F.3d 1003, 1008 (7th Cir. 2019).
No. 20-1116 9
accommodations proposed were unreasonable as a matter of
law. Vargas’s Rehabilitation Act claim cannot succeed.
We can dispense with Vargas’s Title VII discrimination
and retaliation claims quickly. The record contains no evi-
dence—direct or circumstantial—that Vargas’s hoped-for ac-
commodations were denied because of his race. Nor does it
provide a causal link between his protected activity (the Jan-
uary 2011 EEO complaint) and any alleged adverse employ-
ment action, as required. Lewis v. Wilkie, 909 F.3d 858, 866 (7th
Cir. 2018). Therefore, summary judgment was proper on Var-
gas’s Title VII allegations, too.
We affirm.