Gerald Swain v. Christine Wormuth

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-2938
GERALD SWAIN,
Plaintiff-Appellant,
v.
CHRISTINE WORMUTH, Secretary of the Army,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 4:20-cv-04143 — Sara Darrow, Chief Judge.
____________________
ARGUED MAY 18, 2022 — DECIDED JULY 25, 2022
____________________
Before HAMILTON, BRENNAN, and KIRSCH, Circuit Judges.
BRENNAN, Circuit Judge. As a civilian employee for the
United States Army, Gerald Swain received several accommo-
dations for his physical limitations. He nevertheless sued the
Army under the Rehabilitation Act, 29 U.S.C. § 701 et seq., al-
leging disability discrimination in two forms: failure to ac-
commodate and disparate treatment. The district court
granted summary judgment to the Army on both claims. We
affirm.
2 No. 21-2938
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 or-
ganizations 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 assign-
ment 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 cer-
tain tool drawers he needed to open. His supervisor then di-
rected 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.
No. 21-2938 3
Several months later, Swain was diagnosed with a hernia.
His doctors ordered a ten-pound weight restriction and rec-
ommended that he avoid lifting objects below his waist,
climbing, working above shoulder height, and operating ma-
chinery. 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, motor-
ized cart with power steering, the Army procured one for him
within two months.
Most relevant to this appeal are Swain’s requests for auto-
matic 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 dif-
ferent door that led to a men’s restroom. In October 2015, the
chief of plant engineering learned that these openers were
4 No. 21-2938
approved. They were installed by August 2016, which is also
when Swain claims he learned for the first time that his super-
visor did not approve an opener on the double hallway doors.
Swain also took issue with the Army’s assignment of over-
time. Under the applicable collective bargaining agreement,
employees must be considered for overtime if their medical
restrictions can be accommodated. Overtime became availa-
ble 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 as-
signed 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 with-
drew that grievance. Then, in October 2016, Swain filed a
formal complaint of discrimination against the Army for al-
legedly 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 com-
plaint in February 2017, but that complaint was dismissed for
1 A federal employee who believes he has been subjected to disability
discrimination must follow the same procedures applicable under Title
VII. 29 U.S.C. § 794a; 29 C.F.R. § 1614.103(a). Under those procedures, an
employee must first attempt to resolve the matter informally by initiating
contact with his employer’s Equal Employment Opportunity Counselor.
29 C.F.R. § 1614.105(a). If that effort fails, the employee may file a formal
complaint “with the agency that allegedly discriminated against [him].”
Id. § 1614.106(a). If the agency rules against the employee, he may file a
civil action in federal district court. Id. § 1614.407(a).
No. 21-2938 5
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, dis-
parate treatment, and retaliation under the Rehabilitation
Act. 2 He requested backpay, compensatory damages, attor-
ney’s fees, and costs.
II
Swain’s claims flow from the Rehabilitation Act, which
provides that “[n]o otherwise qualified individual with a dis-
ability 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
2 The record does not indicate whether Swain exhausted administra-
tive remedies—likely a requirement for Rehabilitation Act claims, though
our case law has not been clear on the point. Compare Teal v. Potter, 559
F.3d 687, 691 (7th Cir. 2009) (observing that Rehabilitation Act plaintiffs
“can seek relief pursuant to the procedures and requirements outlined in
Title VII of the Civil Rights Act, which include exhausting administrative
remedies prior to bringing suit.”), and Johnson v. Runyon, 47 F.3d 911, 916
n.5 (7th Cir. 1995), with Williams v. Milwaukee Health Servs., Inc., 732 F.3d
770, 770–71 (7th Cir. 2013) (“A seeker of relief under the Rehabilitation Act
against a recipient of federal money is not required to exhaust the admin-
istrative remedies that the Act provides.”). But this issue is not jurisdic-
tional, Teal, 559 F.3d at 691, and the Army forfeited its opportunity to raise
it as an affirmative defense. Burton v. Ghosh, 961 F.3d 960, 965 (7th Cir.
2020).
6 No. 21-2938
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 accom-
modations 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 phys-
ical 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 accom-
modated Swain, then, is the only issue we need to resolve.
3 The ADA defines “qualified individual” as “an individual who, with
or without reasonable accommodation, can perform the essential func-
tions of the employment position that such individual holds or desires.”
42 U.S.C. § 12111(8).
No. 21-2938 7
For years, the Army accommodated changes in Swain’s
temporary and permanent physical limitations. When he in-
jured his rotator cuff, the Army reassigned him to a light-duty
job with pay retention. When he underwent carpal tunnel sur-
gery, the Army marked every tool drawer’s weight. When a
hernia further limited his physical capabilities, the Army per-
mitted 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 sec-
ond, 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 ap-
proved his request for the tool-setting door, the supervisor be-
lieved the double hallway doors were light enough that an
automatic opener was not needed. As an alternative, he ap-
proved an automatic opener for a different door that led to a
men’s restroom. Swain asserts the Army unreasonably de-
layed 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 au-
tomatic door openers in November 2014, but the paperwork
was not filled out until April 2015. The person responsible for
8 No. 21-2938
installing the devices learned that management had approved
two sets of doors in October 2015. By August 2016, the open-
ers 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 unrea-
sonable delay in providing an accommodation for an
employee’s known disability can amount to a failure to ac-
commodate his disability that violates the Rehabilitation
Act.”).
Undoubtedly, there was a delay in getting the door open-
ers installed. The question is whether it was reasonable. To
answer that question, we look to the totality of the circum-
stances, “including, but not limited to, such factors as the
employer’s good faith in attempting to accommodate the dis-
ability, the length of the delay, the reasons for the delay, the
nature, complexity, and burden of the accommodation re-
quested, and whether the employer offered alternative ac-
commodations.” Id.As the Army points out, Swain needed to fill out paper-
work, that paperwork needed to be reviewed, the doors
needed to be inspected, parts needed to be ordered, and in-
stallation needed to be scheduled. Each step took a few
months until the door openers were installed. Given the long
list of accommodations the Army promptly provided for
Swain, a reasonable juror could not attribute the delay to bad
faith. As the district court noted, there is no evidence the
Army purposely stalled the project. While the Army could
have moved more quickly, given the steps necessary to initi-
ate and then install automatic openers on these doors, a rea-
sonable juror could not say the duration was unreasonable.
No. 21-2938 9
Also reasonable was the Army’s decision not to install an
opener on the double hallway doors. The ADA requires em-
ployers to make reasonable accommodations when doing so
would enable the employee to perform the essential functions
of the job. An employer may make an accommodation unteth-
ered to an essential function, but it is not required to do so.
Brumfield, 735 F.3d at 632 (“[A]n employer need not accom-
modate a disability that is irrelevant to an employee’s ability
to perform the essential functions of her job.”). As the district
court observed, Swain failed to connect the double hallway
doors with the essential functions of his job. If restroom access
was the concern, the Army resolved it by installing an opener
on an alternate door, which gave Swain access to a different
men’s restroom.
Swain further alludes to a breakdown in communication,
which is a relevant consideration when assessing whether
there was a failure to accommodate—an employer cannot
simply ignore an employee’s request. But a “breakdown of
[the] interactive process [does not] render an otherwise rea-
sonable accommodation unreasonable.” Rehling v. City of Chi-
cago, 207 F.3d 1009, 1016 (7th Cir. 2000). The process may not
have worked as quickly as Swain desired, but the Army even-
tually followed through on installing the door openers.
B
Swain also alleges disparate treatment. To prove a claim
of disability discrimination under the Rehabilitation Act, a
plaintiff must show that: (1) he is disabled, (2) he is otherwise
qualified to perform the essential functions of the job with or
without reasonable accommodation, and (3) he suffered an
adverse job action “solely by reason of … his disability.” 29
U.S.C. § 794(a); see also Felix v. Wis. Dep't of Transp., 828 F.3d
10 No. 21-2938
560, 568 (7th Cir. 2016). The “solely by reason of” causation
standard is stricter than the causation standard in Title I of the
ADA, which the Rehabilitation Act otherwise incorporates for
its liability standards. 29 U.S.C. § 794(d); see also Conners v.
Wilkie, 984 F.3d 1255, 1260 (7th Cir. 2021) 4; Brumfield, 735 F.3d
at 630. We assume for present purposes that denial of over-
time is an adverse employment action, see Lewis v. City of Chi-
cago, 496 F.3d 645, 654 (7th Cir. 2007), and it is undisputed that
Swain had a disability.
The Army defends its overtime decision by claiming
Swain’s medical limitations prevented him from performing
the overtime work. Although the Army presents this argu-
ment as a nondiscriminatory reason for its employment ac-
tion, its substance challenges Swain’s ability to perform the
overtime work with or without a reasonable accommodation,
i.e., whether Swain was an “otherwise qualified individual
with a disability.” 29 U.S.C. § 794(a).
One might assume that if Swain performed the essential
functions of a tool attendant during regular work hours, he
could similarly do so during overtime hours. But the record
shows that the Army assigned only one tool attendant per
overtime shift. This is pertinent because, during Swain’s
4 In Conners, we stated that the Rehabilitation Act’s causation standard
contrasts with the ADA’s, “which requires only that the plaintiff’s disabil-
ity be a reason for the challenged action.” 984 F.3d at 1260. Conners refer-
enced Title II of the ADA, id., but the Rehabilitation Act incorporates Title
I, 29 U.S.C. § 794(d), and they contain different language. Compare 42
U.S.C. § 12112 (“on the basis of”), with id. § 12132 (“by reason of”). Neither
Title I nor Title II employs the phrase “solely by reason of,” though, so the
general observation that the “Rehabilitation Act has a stricter causation
requirement,” remains true. Conners, 984 F.3d at 1260.
No. 21-2938 11
regular shift, other employees assisted him by lifting heavier
objects—a form of reasonable accommodation an employer
can make. 42 U.S.C. § 12111(9) (listing “job restructuring” as
a possible accommodation); Majors v. Gen. Elec. Co., 714 F.3d
527, 534 & n.3 (7th Cir. 2013).
Just so, it is not reasonable for an employer to assign es-
sential functions to other employees. Majors, 714 F.3d at 534.
So, if lifting objects more than ten pounds was an essential
function of a tool attendant, the Army was not obligated to
assign a second overtime worker to assist Swain. Circum-
stances were different during regular hours, though, because
essential functions may be shared among employees. Id. at
534 n.3 (“[W]hen employees working in teams are able to
share duties among themselves, … such sharing might be a
form of reasonable accommodation.”). In other words, an ac-
commodation that is reasonable during normal work hours
may not be reasonable during overtime hours. That is the case
here. The Army reasonably believed that Swain could not per-
form the essential functions of a tool attendant and justifiably
withheld overtime assignments on that basis.
Even if lifting heavier objects was a nonessential func-
tion—in which case Swain was an “otherwise qualified indi-
vidual”—he must prove that the Army denied him overtime
work “solely” because of his disability. 29 U.S.C. § 794(a). The
Army believed that Swain’s medical restrictions, without
assistance from other employees, precluded him from per-
forming his duties in the overtime context. To overcome this
defense, Swain must demonstrate that the Army’s proffered
reason was pretextual, which “requires more than just faulty
reasoning or mistaken judgment on the part of the employer.”
12 No. 21-2938
Graham v. Arctic Zone Iceplex, LLC, 930 F.3d 926, 929 (7th Cir.
2019) (internal quotation marks omitted).
Swain insists he was previously assigned overtime hours
alongside another employee, and thus the Army’s decision to
deny him overtime was baseless. But his own submissions are
unclear on this. In his brief, Swain claimed that, before Janu-
ary 2017, he had worked overtime with a coworker, yet he as-
serted in a sworn declaration that he did not work overtime
before January 2017. In any event, the number of employees
needed for an overtime shift may change. Without evidence
of bad faith, the Army’s policy of assigning one tool attendant
to an overtime shift is a reasonable business decision, not ev-
idence of pretext.
Swain tries to show pretext in one other way. He argues
that similarly situated employees were given overtime while
he was not. Specifically, he claims that two employees with
respective weight restrictions of five and fifteen pounds were
permitted to “work overtime hours in the tool crib alone in
November 2017 and August and September 2018.” The Army
explains that one of those individuals was a contract em-
ployee who did not reveal any medical limitations to the
Army, if he had any. And the other had a limitation restricting
him from a particular piece of machinery, but there is no evi-
dence that using that piece of machinery was an essential
function of his job. In addition, Swain’s supervisor, who was
responsible for assigning overtime work, testified that he was
unaware that either individual had any restrictions. No rea-
sonable juror could infer pretext from these two undeveloped
comparators, especially given the Army’s unrebutted re-
sponse.
No. 21-2938 13
In short, Swain cannot persuade a reasonable juror that the
Army denied him overtime work solely because he was disa-
bled. To the contrary, the record reflects that as soon as his
medical limitations were lifted, the Army placed him on the
overtime list.
∗ ∗ ∗
For these reasons, we conclude that the Army met its obli-
gations under the Rehabilitation Act and AFFIRM the decision
of the district court.