Garg, Anita v. Potter, John E. ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-2377
ANITA GARG,
Plaintiff-Appellant,
v.
JOHN E. POTTER, Postmaster General,
United States Postal Service,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 05 C 3947—Charles R. Norgle, Sr., Judge.
____________
ARGUED FEBRUARY 11, 2008—DECIDED APRIL 4, 2008
____________
Before BAUER, KANNE, and WILLIAMS, Circuit Judges.
KANNE, Circuit Judge. Anita Garg filed an employment-
discrimination suit against the United States Postal Service
under the Rehabilitation Act, see 29 U.S.C. § 794(a), alleging
that the Postal Service failed to accommodate her disabil-
ity and constructively discharged her. The district court
granted summary judgment to the Postal Service after
concluding that Garg was not permanently disabled, and
that the Postal Service made reasonable accommodations
to enable her to perform her job. We affirm.
2 No. 07-2377
I. HISTORY
Because the district court granted summary judgment to
the Postal Service, we recount the following facts in the
light most favorable to Garg. See Smith v. Potter, 445 F.3d
1000, 1006 (7th Cir. 2006). After three stints at various
locations throughout Illinois, Garg began her fourth job
with the Postal Service in 1999, as a mail processor at its
Palatine, Illinois facility. The Palatine facility—one of the
Chicago area’s major processing plants—sorts mail using
large machines that emit microscopic fibers into the air. At
the time of Garg’s employment, the Palatine facility
operated three eight-hour sorting shifts, or “tours,”
throughout the workday. Employees working on tour 1, the
night shift, sorted the day’s heaviest volume of mail—and
as one might expect, tour 1 was the least popular among
Postal Service employees. The sorters on tour 2 worked
from morning until mid-afternoon, and the sorters on tour
3 worked from mid-afternoon until the beginning of the
night shift. Garg began her tenure at Palatine on tour 3 as
a “part-time flexible mail processor.” In July 2000, Garg
became a “full-time flexible regular mail processor,” and
was assigned to tour 1. Garg’s duties included moving mail
from mail bags into tubs and sorter machines.
Beginning in late 1999, after working at Palatine for about
nine months, Garg began experiencing allergic reactions
and respiratory difficulties at work, which she alleges
resulted from her exposure to the particulate matter in the
air. Garg sought medical treatment from a general internist
and a dermatologist in 1999; the doctors recommended that
Garg undergo allergy testing, and prescribed allergy
medication. Despite receiving medical attention, Garg did
not complain to the Postal Service about her allergy
problems until being assigned to the night shift in July
No. 07-2377 3
2000. After working on tour 1 for roughly one month, Garg
requested a reassignment to tour 2 or tour 3 because, she
claimed, her allergy symptoms were aggravated by the
increased dust from the higher volume of mail sorted at
night. Garg also alleged that the more severe symptoms
required her to take a higher dosage of her allergy medica-
tion, which induced drowsiness. In response to Garg’s
request, the Postal Service asked Garg to submit to a
physical examination, which was conducted by Dr. William
McMahon, a contract physician for the Postal Service. After
conducting this examination and reviewing Garg’s medical
records, Dr. McMahon concluded that Garg’s condition did
not justify granting her request for a shift change.
Nevertheless, Garg’s supervisor, Alan Lipschultz,
granted Garg’s request. Between September 2000 and April
2001, Garg was reassigned to tour 3 in the Palatine plant’s
data-conversion room, where Garg and other “data-entry
operators” used computers to code mail for sorting pur-
poses. Although this room was also a dusty environment,
the data-entry operators were not usually required to
physically handle mail as the other workers did when
using the large sorting machines. Lipshultz allowed Garg
to work on tour 3 despite the Postal Service’s need to
employ more workers on tour 1 (the busiest shift) and in
contravention of established procedures. Although Garg
would not have been eligible for a permanent reassign-
ment—a shift change of more than 90 days—based on the
plant’s collective bargaining agreement, which mandated
preference based upon seniority for such reassignments,
the Postal Service allowed her to work as a data-entry
operator for over seven months.
In April 2001, the Postal Service returned Garg to the
night shift, but reduced the number of hours she was
4 No. 07-2377
required to work on that shift—instead of arriving at 11
p.m. and leaving at 8 a.m. like the other workers on tour 1,
the Postal Service allowed Garg to arrive at 4 or 5 a.m. and
work only the hours at the end of the shift. Garg nonethe-
less requested medical leave shortly after returning to the
night shift because she claimed that the work environment
of the Palatine plant exacerbated her allergies. Garg failed
to report for work after making this request. On April 20,
2001, a plant supervisor denied Garg’s request for medical
leave because she had not submitted medical documenta-
tion to support it. The manager informed Garg that he
would not approve her absence, and Garg returned to
work. A few days later, Garg developed a skin rash and
was taken to the emergency room. The emergency-room
doctor treated Garg for the rash, prescribed Benadryl, and
released her the same day; he instructed her not to work
for one day. When Garg returned to work two days later,
she again complained about a rash and was again taken
to the emergency room. This time she was given a cortisone
injection, again prescribed Benadryl, and told she could
return to work that same day.
After these emergency room visits, the Postal Service
scheduled Garg for a fitness-for-duty examination with Dr.
Eva Ostrowski, another contract physician. Ostrowski
examined Garg in May 2001 and concluded that based on
Garg’s reported symptoms and medical records, Garg was
not fit for duty. However, Dr. Ostrowski did not attribute
Garg’s allergies to her work at the plant. Instead, Dr.
Ostrowski advised Garg to undergo allergy testing so that
the Postal Service could take steps to ensure a safe work
environment for her. One week later, a plant supervisor
sent a letter to Garg that said that as a result of Dr.
Ostrowski’s determination, Garg could not return to work
until the definitive cause or lack of cause of her condition
No. 07-2377 5
was determined. The letter also requested that Garg
undergo allergy testing and inform the Postal Service’s
medical unit about the results of those tests within seven
days. Garg never responded to this letter, nor did she ask
the Postal Service to place her in another job within or
outside of the Palatine facility.
Garg received a second letter from the plant supervisor
in August 2001, stating that Garg had not complied with
the Postal Service’s request for her allergy-test results. This
letter informed Garg that she had to respond within five
days, or her prolonged absence—which dated from the
time of her fitness-for-duty examination in May
2001—would be considered as without leave. After several
months passed without any communication from Garg, the
Postal Service sent Garg an “options letter” in early Octo-
ber 2001. This options letter allowed Garg to elect one of
three courses of action: (1) resignation from the Postal
Service; (2) disability retirement, if she qualified; or (3)
optional retirement. The options letter instructed Garg to
notify the Postal Service of her election within ten days.
Garg did not respond to this letter within ten days, but
instead verbally told the Postal Service a month later that
she wanted to schedule a retirement-counseling appoint-
ment. The Postal Service scheduled two such appoint-
ments, but Garg cancelled each time. After the second
cancellation, the Postal Service sent Garg another letter,
which stated that she would be separated from the Postal
Service in 30 days because she was “unable to perform
[her] duties.”
Five months after receiving the separation letter, Garg
finally underwent allergy testing. Garg had previously
filed a workers’ compensation claim with the United States
Department of Labor’s Office of Workers’ Compensation
6 No. 07-2377
Programs (OWCP) in April 2001. OWCP denied her claim
because it lacked medical substantiation, and instructed
Garg to obtain further medical testing if she wished to
pursue workers’ compensation. In May 2002—one full
year after the Postal Service first asked Garg to receive
allergy testing—an allergy specialist, Dr. James Moy,
determined that he could not conclude that Garg’s em-
ployment with the Postal Service caused her dust allergy.
In July 2005, after exhausting her administrative reme-
dies within the Postal Service, Garg filed this lawsuit
asserting that the Postal Service failed to accommodate her
disability and constructively discharged her in violation of
the Rehabilitation Act. See 29 C.F.R. § 1614.407. In January
2007, after discovery, the Postal Service filed a motion for
summary judgment, which argued that Garg was not
disabled under the Rehabilitation Act, and, in any event,
the Postal Service had reasonably accommodated her.
The Postal Service’s motion also argued that Garg’s
constructive-discharge claim was redundant to her failure-
to-accommodate claim because Garg was actually dis-
charged by the Postal Service in December 2001.
The district court granted summary judgment to the
Postal Service in May 2007. The court ruled that Garg’s
allergy condition was temporary and therefore did not
qualify her for accommodation under the Rehabilitation
Act. The court further determined that despite this, the
Postal Service had reasonably accommodated Garg by
temporarily changing her shifts and by allowing her to
work a reduced number of hours. The district court also
held that Garg’s constructive-discharge claim failed
because she had been actually and justifiably discharged,
and had not alleged that the Postal Service was a “hostile
work environment.” Garg subsequently filed this appeal.
No. 07-2377 7
II. ANALYSIS
Garg argues on appeal that the district court erred by
granting summary judgment to the Postal Service because
she alleges that she established a prima facie case under the
Rehabilitation Act. Specifically, Garg contends that she
raised a genuine issue of material fact regarding whether
she suffered from a disability under the terms of the
Rehabilitation Act. However, Garg does not challenge the
district court’s holding that regardless of the nature of her
condition, the Postal Service afforded reasonable accommo-
dations to her. Likewise, Garg does not appeal the district
court’s grant of summary judgment to the Postal Service on
her constructive-discharge claim.
We review the district court’s grant of summary judg-
ment de novo. See Smith, 445 F.3d at 1006. “Summary
judgment is only appropriate where ‘the pleadings,
depositions, answers to interrogatories, and admissions
on file, together with the affidavits . . . show that there is
no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.’ ”
Id. (quoting Fed. R. Civ. P. 56(c)); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). “ ’We may affirm sum-
mary judgment on any basis we find in the record.’ ”
Winters v. Fru-Con Inc., 498 F.3d 734, 743 (7th Cir. 2007)
(quoting Aviles v. Cornell Forge Co., 183 F.3d 598, 603
(7th Cir. 1999)).
The Americans with Disabilities Act (ADA), 42 U.S.C.
§ 12111 et seq., and Rehabilitation Act “ ’prohibit an em-
ployer from discriminating against a qualified individual
with a disability because of the disability.’ ” Jackson v. City
of Chicago, 414 F.3d 806, 810 (7th Cir. 2005) (quoting Silk v.
City of Chicago, 194 F.3d 788, 798 (7th Cir. 1999)). To estab-
lish a prima facie case under the Rehabilitation Act, Garg
8 No. 07-2377
must prove that she (1) falls within the ADA’s statutory
definition of “disabled,” meaning that she has a “physical
or mental impairment that substantially limits a major life
activity, a record of such impairment, or [is] regarded as
having such impairment,” see 42 U.S.C. § 12102(2); (2) is
otherwise qualified to perform the essential functions of
her job, with or without reasonable accommodation; and
(3) has suffered an adverse employment decision because
of the disability. Scheerer v. Potter, 443 F.3d 916, 918 (7th Cir.
2006); Peters v. City of Mauston, 311 F.3d 835, 842 (7th Cir.
2002). We examine our precedent under the ADA to
determine whether Garg has made out a prima facie case
under the Rehabilitation Act. Scheerer, 443 F.3d at 919;
Jackson, 414 F.3d at 810-11.
We have stated that an employer violates the ADA only
if a terminated employee can establish that reasonable
accommodations exist that would have enabled that
employee to perform the essential functions of his or her
job. Hammel v. Eau Galle Cheese Factory, 407 F.3d 852, 865-66
(7th Cir. 2005). This is because “the ADA does not shelter
disabled individuals from adverse employment actions if
the individual, for reasons unrelated to his disability . . . is
not qualified for the job or is unable to perform the job’s
essential functions . . . .” Hammel, 407 F.3d at 862; see also
Williams v. United Ins. Co. of Amer., 253 F.3d 280, 282 (7th
Cir. 2001). It is clear that a worker who cannot do the job
even with a reasonable accommodation has no claim under
the ADA. See, e.g., DePaoli v. Abbott Labs., 140 F.3d 668, 674
(7th Cir. 1998); Matthews v. Commonwealth Edison Co., 128
F.3d 1194, 1195 (7th Cir. 1997). This is true even if the
employee’s inability to perform the job “ ’is due entirely to
a disability.’ ” Hammel, 407 F.3d at 865 (quoting Matthews,
128 F.3d at 1195).
No. 07-2377 9
Garg devoted her entire appellate brief, and the balance
of oral argument, to her contention that the district court
erred by finding that she was not disabled. But conspicu-
ously absent is any argument that the district court erred
by ruling that the Postal Service reasonably accommodated
her; Garg has therefore waived this point. See Local 15, Int’l
Bhd. of Elec. Workers v. Exelon Corp., 495 F.3d 779, 783 (7th
Cir. 2007) (“ ’A party waives any argument that it does not
raise before the district court or, if raised in the district
court, it fails to develop on appeal.’ ” (quoting Williams v.
REP Corp., 302 F.3d 660, 666 (7th Cir. 2002))); see also Heft v.
Moore, 351 F.3d 278, 285 (7th Cir. 2003) (“The failure to cite
cases in support of an argument waives the issue on
appeal . . . .”). This waiver is fatal to Garg’s appeal because
our ADA and Rehabilitation Act jurisprudence requires
that, in order to establish her prima facie case, Garg must
prove that she can perform the essential functions of a full-
time flexible regular mail processor with or without
reasonable accommodation. See Scheerer, 443 F.3d at 918;
Jackson, 414 F.3d at 810, 813; Hammel, 407 F.3d at 865-66.
Here, Garg cannot prove this prong of her prima facie case
because she did not perform the essential functions of her
job even after the Postal Service made reasonable accom-
modations to her. The Postal Service accommodated Garg
by reassigning her from tour 1 to tour 3 for seven months
despite clear Postal Service policies that would ordinarily
have precluded such an assignment. During much of this
time, Garg worked as a data-entry operator and did not
handle mail. The Postal Service then allowed Garg to work
a reduced number of hours after she returned to tour 1.
Garg never asked the Postal Service for any other accom-
modations and never introduced any evidence of other
positions within the Postal Service that she was qualified to
10 No. 07-2377
fill. Despite these reasonable accommodations, Garg
repeatedly missed work without permission, and by doing
so failed to perform the essential functions of her job. Garg
also entirely ignored several letters from the Postal Service
requesting that she undergo and report the results of her
allergy testing. Garg knew that she could not return to
work without receiving allergy testing, but she did not
submit to testing until five months after her termina-
tion—one year after the Postal Service initially asked her to
do so, and she only relented when she was required to
submit to testing for her workers’ compensation claim.
After Garg continually avoided allergy testing and the
Postal Service’s exhortations, the Postal Service labeled her
entire absence as without leave and terminated her em-
ployment.
Garg’s conduct clearly demonstrates her inability to
perform her job. And we have held that “when the evi-
dence demonstrates that an employee is incapable of
performing the job, the employer need not isolate the
disability-related causes for an employee’s inferior perfor-
mance from problems that stem from a poor attitude,
insubordination, carelessness, or outright disregard for the
safety of himself and his co-workers.” Hammel, 407 F.3d at
865; see also Waggoner v. Olin Corp., 169 F.3d 481, 484-85 (7th
Cir. 1999).
Because Garg did not challenge the district court’s
determination that the Postal Service provided her reason-
able accommodations, and because the record makes clear
that Garg could not perform her job even with these
accommodations, she has failed to establish the second
required element of her prima facie case under the Rehabili-
tation Act. See Scheerer, 443 F.3d at 918. We therefore need
not evaluate the district court’s conclusion that Garg was
No. 07-2377 11
not disabled within the meaning of the Rehabilitation Act.
See Springer v. Durflinger, Nos. 06-2168 & 06-2516, slip op.
at 8 (7th Cir. Feb. 29, 2008); Smith, 445 F.3d at 1009 n.20
(“[B]ecause we need not resolve this issue to dispose of
[the] appeal, we reserve judgment . . . .”).
III. CONCLUSION
The district court’s entry of summary judgment to the
Postal Service is AFFIRMED.
USCA-02-C-0072—4-4-08