Garg, Anita v. Potter, John E.

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

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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