James Graham, Jr. v. Arctic Zone Iceplex LLC

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-3508
JAMES GRAHAM, JR.,
Plaintiff-Appellant,
v.
ARCTIC ZONE ICEPLEX, LLC,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:17-cv-01742 — William T. Lawrence, Judge.
____________________
ARGUED APRIL 9, 2019 — DECIDED JULY 23, 2019
____________________
Before KANNE, BARRETT, and BRENNAN, Circuit Judges.
BARRETT, Circuit Judge. James Graham, Jr., sued Arctic
Zone Iceplex, his former employer, for discrimination. Ac-
cording to Graham, Arctic Zone failed to accommodate his
disability and ultimately fired him for it. The district court
granted summary judgment to Arctic Zone. We affirm.
2 No. 18-3508
I.
In December 2014, Arctic Zone hired Graham as its head
mechanic and maintenance supervisor. Graham’s responsibil-
ities included maintaining Arctic Zone’s ice rink and operat-
ing its Zamboni, a machine that smooths the surface of ice on
a rink.
Graham’s tenure at Arctic Zone was not without issues.
Shortly after he began working at the rink, Arctic Zone re-
ceived customer complaints about his attitude. And the cus-
tomers were not the only ones who noticed. Arctic Zone ob-
served Graham’s attitude problems firsthand, as well as his
difficulty completing tasks on time. Arctic Zone did not write
Graham up, however, for either the insubordination or time-
liness issues at the time that they occurred.
In February 2015, Graham was injured on the job. He did
not work from February to May of that year. During that time,
he received worker’s compensation. Graham returned to
work in May with certain medical restrictions, including the
requirement that he work sitting down. In an effort to accom-
modate him, Arctic Zone assigned Graham to the task of skate
sharpening. Arctic Zone asserts that skate sharpening is a job
that can be accomplished from a seated position; Graham
maintains that the task requires standing. Yet he did not in-
form Arctic Zone of his belief that skate sharpening did not
meet his restrictions. He alleges that there were a few times
when he was caught sitting down to rest and was told to get
back to work.
Starting in August 2015, Graham transitioned back to full-
time work. Arctic Zone assigned him to work evenings rather
No. 18-3508 3
than during the day, which it attributes to seasonal need. Gra-
ham characterizes this as a “demotion” to the position of
“night mechanic.”
In October 2015, Graham caused a Zamboni accident. Arc-
tic Zone says that the accident resulted in “over two feet of
jagged plastic” protruding from the rink wall and onto the
rink itself. Arctic Zone suggests that the plastic was a hazard
to its customers.
Arctic Zone fired Graham on the day of the accident. It
gave five reasons for doing so in his Termination Notice. They
can be summarized as follows: (1) poor attitude about his
change in position; (2) poor attitude toward customers (citing
customer complaints); (3) lack of timeliness in completing his
duties; (4) insubordination with management; and (5) the
Zamboni accident, which put customers in danger and caused
Arctic Zone to lose revenue while the rink was being repaired.
Graham sued Arctic Zone for discrimination in violation
of the Americans with Disabilities Act. See 42 U.S.C. § 12101.
He alleged two violations: first, that Arctic Zone failed to rea-
sonably accommodate his disability; and second, that it termi-
nated him because of his disability. The district court granted
summary judgment to Arctic Zone on both counts. Graham
appeals.
II.
We first address whether Arctic Zone failed to accommo-
date Graham’s disability. “The [ADA] requires employers to
make ‘reasonable accommodations that will allow a qualified
individual with a disability to perform the essential functions
of his or her job.’” Brown v. Milwaukee Bd. of Sch. Dirs., 855 F.3d
818, 820 (7th Cir. 2017) (citation omitted). Graham asserts that
4 No. 18-3508
Arctic Zone fell short of this standard when it assigned him
to skate sharpening, which he says could not be accomplished
while sitting down.
But “[i]dentifying reasonable accommodations for a disa-
bled employee requires both employer and employee to en-
gage in a flexible, interactive process.” Id. at 821. If an em-
ployee “does not provide sufficient information to the em-
ployer to determine the necessary accommodations, the em-
ployer cannot be held liable for failing to accommodate the
disabled employee.” Id. (citations omitted). Graham acknowl-
edges that he did not make Arctic Zone aware of his belief
that his skate sharpening assignment didn’t comport with his
medical restrictions. This is a textbook example of an em-
ployee “not provid[ing] sufficient information to the em-
ployer to determine the necessary accommodations.” Id. (cita-
tions omitted). Because he failed to uphold his end of the in-
teractive process, we affirm the district court’s grant of sum-
mary judgment on the accommodation issue.
III.
We next address whether Arctic Zone violated the ADA
when it fired Graham. See 42 U.S.C. § 12112(a). While the dis-
trict court assumed that Graham was disabled for purposes of
the statute, it held that Graham had failed to provide suffi-
cient evidence that his disability was the but-for cause of the
termination. It granted Arctic Zone summary judgment on
that ground, and it was right to do so.
Under Ortiz v. Werner Enterprises, Inc., the ultimate ques-
tion in a discriminatory employment termination case is
“[w]hether a reasonable juror could conclude that [the plain-
No. 18-3508 5
tiff] would have kept his job if he [was not disabled], and eve-
rything else had remained the same.” 834 F.3d 760, 764 (7th
Cir. 2016). One way to demonstrate this is by showing that the
stated reasons for the firing were pretextual. See Hitchcock v.
Angel Corps, Inc., 718 F.3d 733, 737–38 (7th Cir. 2013). In eval-
uating pretext, “the question is not whether the employer’s
stated reason was inaccurate or unfair, but whether the em-
ployer honestly believed the reason it has offered to explain
the discharge.” Monroe v. Ind. Dep't of Trans., 871 F.3d 495, 505
(7th Cir. 2017) (citation omitted). Pretext requires more than
just “faulty reasoning or mistaken judgment on the part of the
employer; it is [a] lie, specifically a phony reason for some ac-
tion.” Id. (alteration in original). Graham argues that the five
reasons that Arctic Zone gave in its Termination Notice were
pretextual.
To start, Graham asserts that the behavioral problems
cited by the notice—his apparent bad attitude, inability to
complete work on time, and insubordination—could not be
legitimate bases for his termination because he had received
no written notice or discipline for them before the Zamboni
accident. His premise seems to be that by not addressing the
issues earlier, Arctic Zone somehow forfeited its right to
count these problems as black marks on his record. Not so.
Arctic Zone’s decision to let something slide without a formal
response does not mean that it went unnoticed or untallied.
And even minor grievances can accumulate into a record that
justifies termination. A reasonable jury could not conclude
that Arctic Zone was lying about the impact of these viola-
tions solely because Arctic Zone held its tongue when they
occurred.
6 No. 18-3508
Graham next tries to show pretext by pointing to the testi-
mony of his supervisor, Floyd Johnson. In a deposition, John-
son testified that Graham’s “position” never changed when
he began working nights. Graham says that this contradicts
the Termination Notice’s assertion that Graham was unhappy
about his “change of position” when he became the “night
mechanic.” But Graham’s “gotcha” argument relies on an
overly technical reading of the word “position.” When he be-
gan working nights, Graham’s schedule changed, and in that
sense, his position could be thought to have changed as well.
The Termination Notice acknowledges this fact, as well as the
fact that Graham apparently saw this change as significant.
But according to Johnson, Graham’s schedule was the only
meaningful change—his compensation and title remained
constant. So in another sense, Johnson’s assertion that Gra-
ham’s “position” didn’t change was a reasonable conclusion.
The minor inconsistency in the usage of this nontechnical
term does not support an inference of bad faith.
Graham’s last argument addresses the Zamboni incident.
He disputes neither his responsibility for causing the accident
nor the fact that it caused damage. Instead, he makes two ar-
guments. First, he asserts that Arctic Zone overstated the se-
riousness of the accident, which ultimately cost only around
$150 in repairs. Second, he argues that Arctic Zone treated
him differently than another former employee, Geoff
Heavner, who had previously caused a similar accident—
which caused roughly $1,500 in damage—but was not fired.
In response, Arctic Zone notes that when it fired Graham,
it did not yet know how much his accident would end up cost-
ing. As to the differences between Graham and Heavner, Arc-
No. 18-3508 7
tic Zone points to Heavner’s otherwise sterling employee rec-
ord prior to the accident. It also states that it was particularly
concerned because Graham’s accident created a hazard for its
customers, whereas there is no suggestion that Heavner’s ac-
cident did so.
Here too, Graham fails to provide enough evidence to sup-
port an inference of bad faith. Heavner ultimately caused
more damage. But that was his first strike, whereas Graham
had several strikes before the Zamboni incident. And the fact
that Heavner’s accident did not pose a danger to customers
seals the deal—the two employees were not “similarly situ-
ated” enough for us to infer that the stated reasons for their
different treatment were pretextual. See Lloyd v. Swifty Trans.,
Inc., 552 F.3d 594, 601 (7th Cir. 2009).
***
Graham has failed to establish an issue of material fact
about whether Arctic Zone discriminated against him by fail-
ing to reasonably accommodate him or by terminating him.
The district court’s judgment is AFFIRMED.