Mathew Neisler v. Robert Tuckwell

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-1804
M ATHEW NEISLER ,
Plaintiff-Appellant,
v.
R OBERT T UCKWELL, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 13-CV-821 — Rudolph T. Randa, Judge.
____________________
S UBMITTED S EPTEMBER 2, 2015* — DECIDED NOVEMBER 25, 2015
____________________
Before W OOD, Chief Judge, and POSNER and R OVNER , Cir-
cuit Judges.
W OOD, Chief Judge. After Mathew Neisler, a Wisconsin
inmate, lost his prison job, he brought a lawsuit under the
Americans with Disabilities Act, 42 U.S.C. § 12132, asserting
* After examining the briefs and record, we have concluded that oral
argument is unnecessary in this case. The appeal is thus submitted on
the briefs and record. See FED . R. A PP. P. 34(a)(2)(C).

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2 No. 15-1804
that the defendant prison administrators had fired him in
violation of Title II of that statute. The district court granted
summary judgment for the defendants, and Neisler has ap-
pealed. Because Title II does not apply to a prisoner’s claim
of employment discrimination in a prison job, we affirm.
Neisler worked as a stockman in food service during his
incarceration at the Waupun Correctional Institution. The
Wisconsin Department of Corrections does not permit pris-
oners to hold the same position for more than two years.
See WIS. DEP ’ T OF C ORRS., DIV. OF A DULT I NSTS. POLICY
309.00.01. Under that policy, Neisler’s job as a stockman was
scheduled to end in November 2012. In March of that year,
however, an improperly loaded cart overturned on Neisler
as he was unloading an elevator. The falling cart broke his
prosthetic leg and left a one-inch cut where the prosthesis
had been attached. After the accident Neisler managed for a
time to continue working using a temporary prosthesis. But
four months later he was in too much pain to work, and
medical staff accordingly put him on “sick cell,” a designa-
tion prohibiting an inmate from working because of an ill-
ness. While on “sick cell” status, Neisler continued to receive
the same hourly wage of $0.42 per hour. See W IS. DEP ’ T OF
C ORRS., DIV. OF A DULT I NSTS. P OLICY 309.55.01.
Three months after that, in October 2012, Robert
Tuckwell, the Food Service Administrator at Waupun, fired
Neisler, citing “medical” reasons for his action. The loss of
his job caused Neisler to be removed from sick cell and to
lose his wage supplement. On the same day as his firing,
Neisler filed a grievance in which he asserted that he had
been “penalized” for being unable to “perform [his] job
duties because of a work related accident” and asked to be

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No. 15-1804 3
paid until his prosthesis could be repaired or he could begin
another job. James Muenchow, an inmate complaint
examiner, recommended denying Neisler’s grievance, and
William Pollard, the warden, adopted that recommendation.
Neisler’s administrative appeal was unsuccessful.
Neisler began a new job in January 2013. Later that
month he received $76.96 in back pay covering the seven-
week gap between the cessation of his wage supplement and
the time when his position as a stockman had been sched-
uled to end. Unsatisfied by that adjustment, Neisler sued
Tuckwell, Muenchow, and Pollard in July 2013 seeking
worker’s compensation and alleging that he had been fired
because of a disability in violation of Title II of the ADA. He
asked for about $50,000 in monetary damages. At screening,
see 28 U.S.C. § 1915A, the district court permitted Neisler to
proceed with his claim of disability discrimination.
The defendants moved for summary judgment, asserting
that Neisler is not entitled to pursue an employment-
discrimination claim under Title II, that the state’s sovereign
immunity bars him from suing state officials for monetary
damages, and that even if those hurdles were surmounted,
Neisler has no case on the merits. The district court rejected
the defendants’ argument about the scope of Title II; it rea-
soned that the ADA applies to vocational programs in pris-
ons, and that this category is broad enough to include Neis-
ler’s job as a stockman. The court bypassed the question of
sovereign immunity. These favorable rulings in the end did
not help Neisler, however, because the court granted sum-
mary judgment to the defendants on the ground that no ra-
tional finder of fact could find disability discrimination.
Neisler was fired because he was too sick to work, the court

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4 No. 15-1804
wrote, not because of any disability. It thus entered sum-
mary judgment for the defendants.
Neisler argues that the district court disregarded what he
believes to be evidence of discrimination. But his case
founders on a more basic point: contrary to what the district
court held, Title II of the ADA does not cover a prisoner’s
claim that he suffered workplace discrimination on the basis
of a disability. Title II provides that public entities may not
exclude “a qualified individual with a disability” from par-
ticipating in or receiving the benefits of “services, programs,
or activities” or otherwise subjecting that person to discrim-
ination. 42 U.S.C. § 12132. It does not apply to claims of em-
ployment discrimination. Brumfield v. City of Chicago, 735
F.3d 619, 622 (7th Cir. 2013); Reyazuddin v. Montgomery Cnty.,
Md., 789 F.3d 407, 420 (4th Cir. 2015) (collecting cases). Title I
of the ADA is the exclusive remedy under the Act for claims
of disability discrimination in employment. See Brumfield,
735 F.3d at 630; Elwell v. Okla. ex rel. Bd. of Regents of the Univ.
of Okla., 693 F.3d 1303, 1309 (10th Cir. 2012).
In order to circumvent Title I’s applicability, Neisler as-
serts that his prison job is part of a vocational program and
thus he may properly use Title II, which addresses programs
(among other things). It is true that the Supreme Court has
interpreted the statutory terms “services, programs, or activ-
ities” to include a prison’s vocational programs. See Pa. Dep’t
of Corrs. v. Yeskey, 524 U.S. 206, 210 (1998). But this does not
help Neisler unless we were to accept his effort to equate
prison employment with a vocational program. And we do
not accept that equation, because important differences exist
between a vocational program and paid employment. Title II
applies to vocational programs, the Supreme Court ex-

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No. 15-1804 5
plained, because those programs “theoretically ‘benefit’ the
prisoners.” Id. As the Tenth Circuit has observed, “we don’t
ordinarily understand employees who help make programs
possible as themselves participating in or receiving their
benefits.” Elwell, 693 F.3d at 1307; see Brumfield, 735 F.3d at
626 (“[E]mployment is not ordinarily conceptualized as a
‘service, program, or activity’ of a public entity.”); Zimmer-
man v. Or. Dep’t of Justice, 170 F.3d 1169, 1176 (9th Cir. 1999)
(explaining that securing or holding employment is not re-
ceipt of services, nor does public employment constitute
program or activity). The Wisconsin statutes governing pris-
on labor reflect this distinction. Vocational programs are
“schools” in which inmates are instructed “in trades and
domestic science.” See W IS. S TAT. § 303.05. Prison employ-
ment, in contrast, entails work “necessary to be done in the
regular business thereof” and for which prisoners may re-
ceive “pecuniary earnings and rewards.” See WIS. S TAT.
§ 303.19(2), (4).
The district court relied on Armstrong v. Schwarzenegger,
622 F.3d 1058 (9th Cir. 2010), to conclude that Neisler’s
stockman job was a type of vocational program, but Arm-
strong does not support that broad conclusion. It involved
state prisoners’ access to grievance procedures while they
were housed in county jails, id. at 1063, not work performed
by prisoners. Indeed, the court in Armstrong expressly dis-
tinguished access to grievance procedures (to which Title II
applies) from discrimination in employment (to which Ti-
tle II does not apply). Id. at 1067 n.2.
In addition, although Neisler does not argue that his
complaint raises a claim under Title I, he would fare no bet-
ter even if we assume that he meant to invoke Title I as well.

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6 No. 15-1804
To begin with, it is questionable whether a prisoner working
at a prison job qualifies as an “employee” within the mean-
ing of Title I, see Murdock v. Washington, 193 F.3d 510, 512
(7th Cir. 1999); White v. State of Colo., 82 F.3d 364, 367 (10th
Cir. 1996); see also Williams v. Meese, 926 F.2d 994, 997 (10th
Cir. 1991) (inmates not employees under Rehabilitation Act).
If that problem is surmounted, a new one would arise in the
form of the Eleventh Amendment, which bans any award of
monetary damages under Title I against state defendants act-
ing in their official capacities. See Bd. of Trustees of the Univ. of
Ala. v. Garrett, 531 U.S. 356, 360 (2001); Toeller v. Wis. Dep’t of
Corrs., 461 F.3d 871, 872–73 (7th Cir. 2006). The defendants
here have not taken any step that can be construed as a
waiver, see College Sav. Bank v. Fla. Prepaid Postsecondary
Educ. Expense Bd., 527 U.S. 666, 675–76 (1999); MCI Tele-
comms. Corp. v. Ill. Bell Tel. Co., 222 F.3d 323, 338–39 (7th Cir.
2000), nor are they amenable to suit in their individual ca-
pacities for alleged violations of Title I, see Silk v. City of Chi.,
194 F.3d 788, 797 n.5 (7th Cir. 1999), Albra v. Advan, Inc., 490
F.3d 826, 830 (11th Cir. 2007).
Neisler does not gain any ground by seeking relief under
Title III of the ADA, a theory that he specifically mentions
for the first time on appeal. That title prohibits discrimina-
tion by places of public accommodation; it does not cover
claims of employment discrimination. See 42 U.S.C.
§ 12182(a); Menkowitz v. Pottstown Mem’l Med. Center, 154
F.3d 113, 118–19 (3d Cir. 1998) (“[I]t is evident that Congress
sought to regulate disability discrimination in the area of
employment exclusively through Title I, notwithstanding the
broad language of Title III.”); see also Brumfield, 735 F.3d at
628 (concluding that “Title I specifically, comprehensively,
and exclusively addresses disability discrimination in em-

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No. 15-1804 7
ployment”). Moreover, because Title III permits only injunc-
tive relief for a person in Neisler’s position, and he now
works in another prison job, any claim seeking an accom-
modation related to the stockman position would be moot.
See Wojewski v. Rapid City Reg’l Hosp., Inc., 450 F.3d 338, 342
(8th Cir. 2006).
Neisler also asserts that the district court erred in dis-
missing at screening his claim for worker’s compensation.
The court reasoned that this claim could not proceed be-
cause the Wisconsin statute allowing a prison inmate to re-
cover for injuries incurred during a work assignment also
provides that compensation does not become available until
after his release. See WIS. S TAT. § 303.21(1)(a). Commentators
agree with the district court’s reading of the statute, see 2
R IGHTS OF PRISONERS § 8:21 (4th ed. 2014); 17 W IS. PRACTICE,
WORKERS’ C OMP . L AW § 7:12 (2014), and Neisler has not
submitted any authority—nor have we found any—
suggesting that the district court misinterpreted state law.
The judgment of the district court is A FFIRMED.

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