Gordan Bates v. Wisconsin Department of Workforce Development

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted May 12, 2010*

Decided May 24, 2010

Before

KENNETH F. RIPPLE, Circuit Judge

ANN CLAIRE WILLIAMS, Circuit Judge

JOHN DANIEL TINDER, Circuit Judge

No. 09-2870

GORDAN BATES, Appeal from the United States District

Plaintiff-Appellant, Court for the Western District of Wisconsin.

v. No. 3:08-cv-00465-slc

WISCONSIN DEPARTMENT OF Barbara B. Crabb,

WORKFORCE DEVELOPMENT, et. al, Judge.

Defendants-Appellees.

ORDER

Gordan Bates claims that several Wisconsin agencies and their employees violated

the Americans with Disabilities Act, see 42 U.S.C. § 12132, and the Wisconsin Deceptive

Trade Practices Act (WDTPA), see W IS. STAT. § 100.18. The district court granted summary

judgment for the defendants on both claims. Bates v. Wis. Dep’t of Workforce Dev., 636 F.

Supp. 2d 797, 799 (W.D. Wis. 2009). We affirm the judgment.

*

After examining the briefs and the record, we have concluded that oral argument is

unnecessary. Accordingly, the appeal is submitted on the briefs and the record. See FED. R.

A PP. P. 34(a)(2)-(3).

No. 09-2870 Page 2

Bates is a Bosnian refugee who worked as an architect before coming to the United

States. He suffers from a respiratory ailment similar to asthma. Bates was jobless and

applied for assistance from the Division of Vocational Rehabilitation (“DVR”), an agency

within the Wisconsin Department of Workforce Development that aids persons with

disabilities in finding gainful employment. In late 2005 the DVR began trying to find a job

for Bates in the field of architecture, but after a few months he decided that he preferred to

go into business for himself as an architect. The DVR then shifted its focus to helping him

get his business off the ground. Bates also received advice from employees of the

Wisconsin Department of Agriculture, Trade and Consumer Protection, which, through its

Client Assistance Program, supports persons in resolving disputes with the DVR. Yet two

years of collective effort proved fruitless. Bates insisted on a $70,000 grant from the DVR

for start-up funds, but the DVR conditioned any money on his submission of a satisfactory

business plan addressing sources of funding, operating costs, and the likelihood of

profitability. The DVR staff helped Bates prepare his plan, but the agency’s reviewing

committee disapproved it and denied funding with the explanation that Bates had not

provided information on bookkeeping and insurance, had a poor credit history, and had

not become licensed as an architect in Wisconsin. About eight months later, a hearing

officer employed by the Alliance of Impartial Hearing Officers upheld the committee’s

decision.

Bates did not try to remedy the shortcomings in his plan. Instead he filed this

lawsuit naming as a defendant every department, agency, and individual employee that

had any connection to his dealings with the DVR. Bates claimed that he was denied the

start-up grant because of his respiratory disorder and because he stutters, in violation of

Title II of the ADA. See 42 U.S.C. § 12132. He further claimed that, from the start, the

defendants had misrepresented his prospects of obtaining funding, in violation of the

WDTPA. See W IS. STAT. § 100.18.

Both sides moved for summary judgment. In their consolidated motion the

defendants asserted that Bates’s claims are barred by the Eleventh Amendment and, in

addition, lacking in merit. The district court rejected the immunity defense but agreed with

the defendants that the claims are groundless. Although the court accepted that Bates is

disabled by his respiratory disorder (but not the speech impediment), the court reasoned

that Bates lacked evidence of a satisfactory business plan and thus could not establish that

he was refused funding because of a disability. The district court also concluded that the

defendants’ discussions with Bates about his prospects for self employment could not be

the basis of a claim under the WDTPA.

No. 09-2870 Page 3

On appeal the defendants no longer argue that the Eleventh Amendment bars the

ADA claim, but still they insist that the claim is without merit. Bates makes a number of

arguments for reversal, but only two were raised in the district court, and so the rest are

waived. See Bus. Sys. Eng’g, Inc. v. Int’l Bus. Mach. Corp., 547 F.3d 882, 889 n.3 (7th Cir.

2008); Hicks v. Midwest Transit, Inc., 500 F.3d 647, 652 (7th Cir. 2007).

Bates spends a significant portion of his brief arguing that his speech impediment is

a disability, but the answer to that question falls away if, as the district court concluded,

Bates lacks evidence that a disability—whether it be one or both impairments—was the

reason for denying his grant application. Bates seems to believe that his ADA claim was

established simply because he has a disability that qualified him for assistance from the

DVR. But this assumption misses the mark. The ADA protects a “qualified individual

with a disability” who is, by reason of such disability, “excluded from participating in or

. . . denied the benefits of the services, programs, or activities of a public entity.” 42 U.S.C.

§ 12132; Wis. Comty. Servs., Inc. v. City of Milwaukee, 465 F.3d 737, 750 (7th Cir. 2006).

Here the district court concluded that, as to the grant money, Bates was not a

“qualified individual” because he never supplied a satisfactory business plan. Bates, 636 F.

Supp. 2d at 809. Bates does not dispute that conclusion on appeal. If a government

program does not vary service on the basis of disability, but rather upon the basis of the

recipient’s ability to make meaningful use of the provided service, the program does not

violate Title II of the ADA. See Doe v. Pfrommer, 148 F.3d 73, 81-84 (2d Cir. 1998) (affirming

summary judgment for state agency that obtains employment for disabled persons where

plaintiff was not placed in employment because of his behavior patterns which plaintiff

refused to remedy, not because he suffered from personality disorder); Flight v. Gloeckler, 68

F.3d 61, 64 (2d Cir. 1995) (per curiam) (affirming summary judgment for state agency that

provides money to disabled persons where plaintiff was denied grant to modify vehicle

because he was unable to drive, not because of his multiple sclerosis); see also Berg v. Fla.

Dep’t of Labor & Employment Sec., 163 F.3d 1251, 1255 (11th Cir. 1998) (upholding rejection of

plaintiff’s Rehabilitation Act claim against state agency that funds disabled persons’ college

education where plaintiff was denied funds to attend law school because graduate school

funding was outside the scope of services, not because plaintiff was disabled); Mallet v. Wis.

Div. of Vocational Rehabilitation, 130 F.3d 1245, 1257 (7th Cir. 1997) (same).

As far as the WDTPA claim, the defendants press their position that all of them,

including the individual employees, are immune from liability as “public officers.” But the

Eleventh Amendment does not bar a state-law claim against a state employee in an

individual capacity. E.g., Guillemard-Ginorio v. Contreras-Gomez, 585 F.3d 508, 531 (1st Cir.

2009); Reyes v. Sazan, 168 F.3d 158, 162-63 (5th Cir. 1999); Bad Frog Brewery, Inc. v. N.Y. State

No. 09-2870 Page 4

Liquor Auth., 134 F.3d 87, 102 (2d Cir. 1998); Pena v. Gardner, 976 F.2d 469, 474 (9th Cir.

1992); Green v. Johnson, 977 F.2d 1383, 1388 (10th Cir. 1992). The defendants also advance

the contention that Bates failed to serve the Attorney General of Wisconsin with notice of

the claim against the individual employees, and thus could not proceed with this suit.

See W IS. STAT. § 893.82(3). But this argument is raised for the first time on appeal and

comes too late. See Bus. Sys. Eng’g, Inc., 547 F.3d at 889 n.3; Hicks, 500 F.3d at 652.

But it matters not because Bates’s WDTPA claim is meritless. The WDTPA prohibits

“any person, firm, corporation, or association” from making any untrue, deceptive, or

misleading representation “to the public” with the intent to induce an obligation. W IS.

STAT. § 100.18. This statute does not apply to representations made by the defendant

agencies because Wisconsin law presumes that state regulatory statutes do not apply to the

state and its agencies absent specific language to the contrary. Wis. Veterans Home v. Div. of

Nursing Home Forfeiture Appeals, 310 N.W.2d 646, 648 (Wis. Ct. App. 1981). Further, the

statute by its terms applies only to commercial transactions. See State v. Automatic

Merchandisers. of Am. Inc., 221 N.W.2d 683, 686-87 (Wis. 1974) (“[The WDTPA] is aimed at

protecting the public from untrue, deceptive or misleading representations made in sales

promotions.”); Dorr v. Sacred Heart Hosp., 597 N.W.2d 462, 473 (Wis. Ct. App. 1999) (“[The

WDTPA] prohibits deceptive, misleading, or untrue statements of any kind to the public

made in a commercial setting”). Here the DVR was not offering services or products for

commercial value, but rather grant money as part of a governmental program. But even if

the statute applies to a government agency offering special services, Bates is not a member

of “the public” as required under the WDTPA. See Novell v. Migliaccio, 749 N.W.2d 544, 553

(Wis. 2008) (stating that an essential element of liability under WDTPA is that plaintiff is a

member of “the public”); K & S Tool & Die Corp. v. Perfection Mach. Sales, Inc., 732 N.W.2d

792, 798-99 (Wis. 2007) (same). One is not a member of “the public” if there is a particular

relationship with the defendant. See Automatic Merchandisers. of Am. Inc., 221 N.W.2d at

686; Kailin v. Armstrong, 643 N.W.2d 132, 149 (Wis. Ct. App. 2002). And the undisputed

facts demonstrate that the discussions about grant funding occurred only after Bates was

accepted as a client of the DVR based on his disability. As the district court correctly noted,

this relationship distinguished him from the public at large.

AFFIRMED.