### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ Nos. 21-1674 & 21-2580

T HOMAS O STROWSKI , Plaintiff-Appellant ,

v.

L AKE C OUNTY , et al ., Defendants-Appellees

.

____________________ Appeals from the United States District Court for the

Northern District of Indiana, Hammond Division. No. 2:18-cv-0423-RLM — Robert L. Miller , Jr. Judge

.

____________________
A RGUED J ANUARY 19 & A PRIL 8, 2022

— D ECIDED M AY 11, 2022

____________________

Before W OOD , H AMILTON , and J ACKSON -A KIWUMI , Circuit Judges

. W OOD , Circuit Judge . Thomas Ostrowsk i worked for the Lake County (Indiana) ěȂȱbefore a workplace injury left him permanently disabled. He now receives a monthly pension payment from the County. ȱȂȱȱ rub: ȱ¢Ȃȱ¢ȱȱȱȱȱȱ cost-of-living increases, while ȱ¢Ȃȱȱȱȱ non-disabled retirees does. Ostrowski brought this action2 Nos. 21-1674 & 21-2580

under both federal and state law, a ȱȱȱě ncebetween the two plans amounts to illegal disability discrimination.The district court never reached the merits, holding instead ȱ  Ȃȱ suit was barred by a waiver that he ȱ  ȱ Ĵȱ earlier litigation that he had broughtagainst Lake County. Ostrowski appealed from that judgment; later, he also appeal ȱȱȱȂȱ ȱ fees and costs for the defendants. We have consolidated both appeals for disposition. ȱȱ ȱ Ȃȱȱ ȱȱȱ¢ȱ ȱ claim waiver, but that the defendants are entitled to prevail on other grounds. We reverse the award of fees and costs.

I Because the case was resolved on summary judgment, we view the facts in the light most favorable to Ostrowski, the non-moving party. See Dixon v. County of Cook , 819 F.3d 343, 346 (7th Cir. 2016)

. In any case, the material facts in the account that follows are undisputed.
A
Ostrowski worked for ab out eight years as a ȱĜȱ ȱ ȱ ȱ ¢ȱ ěȂȱ  (“the Department”). In 1996, he ěȱ serious spinal injury during a training exercise. Although initially he returned to work, his condition worsened over time and forced him to undergo a double fusion surgery on his sp ine in 2003. Upon learning that the spinal surgery had ǰȱȱȱ¢ȱěȂȱȱ Board concluded that Ostrowsk i was permanently disabled. He retired and now receives a monthly disability pension.Nos. 21-1674 & 21-2580 3

The Department prov ȱ ¢ȱ ęȱ ȱ ȱ groups: retirees, disabled fo rmer employees, and some sur- ȱȱȱ ȱȱĜǯȱ It uses two formulas, each of which incorporates ȱę¢Ȃȱęȱ¢ȱ and years on the job, to calculate monthly b ęȱ ȱȬ bled former employees and no n-disabled retirees. For non- ȱǰȱȱȱȱęȱȱȱ the number of years the ę¢ȱȱȱȱ . For those who retire early because of disability, Lake County calculates ęȱȱȱ person spent 32 years working for the Department. ( ȱȂȱęȱ¢ȱȱȱ when their spouses passed away.) Former employees and surviving spouses receiving retire- ȱęȱȱȱȱȱȱ cost-of-living increase ȱȱę once they turn 55 years old. Those receiving ¢ȱ ȱ ęȱ ȱ ǯȱ  lthough Ostrowskiturned 55 in 2016, he has never received a cost-of-living adjustment. Believing that this system unlawfully discriminates against employees who became disabled on the job, Ostrowski sued Lake County, the Department, the Lake County ǰȱȱȱȱĴȱȱȱ Pension Plan of the ȱ¢ȱěǰȱȱȱȱ¢Ȃȱ policy violates the Equal Protection Clause of the Fourteenth Amendment, Title I of the Americans with Disabilities Act, 42 U.S.C. § 12112, Section 504 of the Rehabilit ation Act, 29 U.S.C. § 794, and state law.

B
This lawsuit was not Ostr  Ȃȱ ęȱ ȱ ȱ County. From 2014 to 2015, he wo rked for the County as a 911 dispatcher. In 2016, he brought a lawsuit alleging that he was forced to leave the job beca use his employer denied him4 Nos. 21-1674 & 21-2580

reasonable accommodations. Ostrowski named the Lake County Board of Commissioners, the Lake County E-911 Commission, the Lake County Council, and two individual supervisors as defendants in hi s 2016 complaint. This separate litigation ended in February 2017 ȱȱĴȱȱ between Ostrowski and Lake County.  Ȃȱ ȱ ȱȱŘŖŗŝȱĴȱ ǰȱȱȱȱȬvides that the common rule of construction resolving ambiguities “against the drafting party shall not be employed in” interpreting it. At the end of paragraph 1 of the 2017 Ĵȱ Ȭ ment, the following language a ppears: “Nothing in ... this ȱȱǰȱ¢ ǰȱ ǰȱȱěȱȱ¢ȱ ¢ȱ Ȃȱǰȱȱęǰȱȱ¢ȱȱȬ ȱęȱȱ ȱ ȱȱȱǰȱ w or in the future.” Paragraph 2 of the agreement is entitled “release”; it reads as follows in pertinent part: Ostrowski ... hereby forever releases and dis- ȱ ǰȱ ȱ Ĝǰȱ Ȭ ies, related entities, and each of their respective
successors, ... ǰȱ¢ ǰȱĴ¢ǰȱȱrepresentatives ... from any and all claims, demands, damages, causes of actions, rights,... and liabilities, of whatsoever kind or nature, known and unknown, matured or contingent, asserted or unasserted, foreseen or unforeseen, arising prior to this Agreement, including, but not limited to those resulting in any way from or inany way growing out of or arising from Ostrowski's employment with Defendants andNos. 21-1674 & 21-2580 5

termination of such employment which couldhave been discovered, including, but not limited to, claims arising under the Americans with Disabilities Act[.] ... Ostrowski understands and agrees that any claims he may have under the aforementioned stat ute, or any other federal, state, or local law, ordinance, rule or regulat ȱȱě¢ȱ ȱȱ ȱȬ
ment. No rights or claims arising after the execution of this agreement are waived hereby.(Emphasis added). The agreement also provides that Ostrowski released Lake County from any “damages or claims that are unknown to him at pres ent” that “may arise, develop or be discovered in the future.”

CWhen Ostrowski brought the present action, the defendants raised the release in the ŘŖŗŝȱĴȱȱȱȱ defense. The district court found that the release applied and granted summary judgment to the defendants on that basis.It reasoned that Ostrowski knew that his pension did not include cost-of-living increases be fore he signed the 2017 agreement. It also concluded that Os trowski had waived any claims against th ȱ ěǰȱ ǰȱ ȱ ȱ Ĵ because they were ȃĜȄȱ ȱ ȃȱ Ȅȱ ȱ ȱ County.  ȂȱęȱǰȱǯȱŘŗ -1674, challenges that judgment.

DShortly after the district court entered its judgment, the defendants moved for an award of fees and costs. The sole basis6 Nos. 21-1674 & 21-2580

for their motion was paragraph 15 of ȱ ŘŖŗŝȱ Ĵȱ agreement, which provides that: In the event Ostrowski or Defendants bring alawsuit relating to a breach of, or the enforcement of, this Agreement, or any of the Released Parties assert this Agreem ent as a defense to an action brought by or on behalf of Ostrowski, the prevailing party shall be entitled to seek attor- ¢Ȃȱȱȱȱȱ¢ǯ This provision does not apply to any action or claim Ostrowski may assert under any fede ral or state statute or law that prohibits the recovery of such fees, costs and expenses by the Released Parties.The district court granted the motion and awarded the defendants $221,577.25 ȱĴ¢ȂȱȱȱǞŚǰŚŞŝǯŖŞȱȱǯȱ Ostrowski ȂȱȱǰȱǯȱŘŗ -2580, challenges this decision.
II
We take a fresh look at a ȱȂȱȱȱ¢ȱ judgment. Dixon , 819 F.3d at 346. Summary judgment is warranted when there are no genuin e disputes of material fact  ȱ ȱȱȱȱȱ ęȱȱęȱ for the non-movant on an essential element on which it bears the burden of proof at trial. ¡ȱǯȱǯȱĴ , 477 U.S. 317, 322 (1986). Paragraph 6 of the ŘŖŗŝȱĴȱȱ states that the applicable law is that of Indiana (excluding its choice-oflaw rules). T ȱ Ȃȱ ȱ  ȱ Ĵȱ Ȭ ments, like other contracts, “with the intention of the parties regarding the purpose of the document governing” and byNos. 21-1674 & 21-2580 7

giving unambiguous contract terms “their clear and ordinary meaning.” Haire v. Parker , 957 N.E.2d 190, 195–96 (Ind. Ct. App. 2011). Paragraph 1 ¡¢ȱȱȱȱȱ Ȃȱ ȱęǯȱ It states that “[n]ot hing in ... this Agree- ȱȱǰȱ¢ǰȱ ǰȱȱěȱȱ¢ȱ ¢ȱȬ  Ȃȱ ǰȱ ȱ ęǰȱ ȱ ¢ȱ ȱ ȱ ęȱȱ ȱ ȱ has a right, now or in the future.” In other words, ȱĴȱin its entirety has no ěȱȱ Ȃȱ disability pension. The release appears in paragraph 2 of the agreement, and thus is one of those things that does not“change, modify ǰȱ ǰȱȱěȱȱ ¢ȱ ¢Ȅȱ Ȃ ȱ¢ȱǯȱ That is enough to dispose of the threshold issue on which the district court relied. In the interest of completeness, how- ǰȱ ȱȱȱ ȱȱ Ȃȱ lternative argument. It is based on the preservation of “rights or claims arising after ȱ ¡Ȅȱ ȱ ȱ  Ĵȱ ǯȱ ȱ each of Os-  Ȃȱ¢ȱȱ ȱ ěȱȱȱ ȱĴȱ generates a fresh legal claim, then this would be an alternative path for him. The Supreme Court held in Bay Area Laundry and Dry Cleaning Pension Trust Fund v. Frebar Corp. of California , that,for the purposes of a Multiemployer Pension Plan Amendments Act claim, “each missed [pension] payment creates a separate cause of action.” 522 U.S. 192, 195 (1997). The generalrule is that a new claim accrues with each payment of an installment obligation, ȱ ȱ ěȱ ¢¢ȱȱ ȱ until a defendant “misses a particular payment before suing to collect that payment .” See id. at 208 (emphasis in the original); see also Kuhn v. Kuhn , 273 Ind. 67, 70 (1980). The pension8 Nos. 21-1674 & 21-2580

obligation at issue in Bay Area Laundry, like the one in Ostrows Ȃȱ case, was paid in installments; therefore, the Court said, each new pension payment (or non-payment) generates a unique claim. Applying that reasoning to Ostrowski Ȃȱǰȱ each payment ȱ ȱ ȱ ȱ Ĵȱ ȱ ȱ February 2017 has generated a dist inct claim that falls outside the scope of the release. Lake County relies on Fair v. International Flavors & Fragrances, Inc. , 905 F.2d 1114 (7th Cir. 1990), but the two cases ěȱ in important ways. As we explained in Fair, under Illinois law a general release of claims applied to “all claims of which a signing party has actual knowledge or that he could have discovered upon reasonable inquiry.” Id. at 1116 (internal quotation marks ĴǼǯȱ But this is a default rule, which applies only if there is no co ntractual language to the contrary. There is such language in the 2017 agreement. Moreover, to the extent that Fair is in tension with Bay Area Laundry, it is the Ĵȱȱȱǯ
Ostrowski also argues that ȱŘŖŗŝȱĴȱȱ ȱȱěȱȱȱȱȱěǰȱǰȱȱ ȱȱĴ because these entities were not parties to the agreement. ȱ ȱ Ȃȱ  ument, thedistrict court found that these additional entities were covered because the waiver in th e agreement covered not only the County, but also its ȃĜǰȄȱȃĜǰȄȱȱȃǯȄȱ This raises an issue of state law. We see no reason to delve intoit, because nothing turns on it. The general exclusion in paragraph 1 of the ȱ ȱ Ĵȱ ěȱ  Ȃȱ pension resolves this part of the case. We thus move on to the merits.Nos. 21-1674 & 21-2580 9

III
A Ostrowski argues that the defe ndants, by providing a costof- ȱȱ ȱ  ȱęȱ ȱ¢ȱ ȱ ȱ¢ȱȱęǰȱȱȱȱȱȱ , 42 U.S.C. §§ 12111–17. But as Ostrowski recognizes, this claim isgoing nowhere, because we already have decided that “retired and other former workers ar e not protected” by Title I of the ADA. See Morgan v. Joint Admin. Bd. , 268 F.3d 456, 457–58 (7th Cir. 2001); see also EEOC v. CAN Ins. Cos ., 96 F.3d 1039, 1043–44 (7th Cir. 1996). In Morgan , we held that a retirement plan did not violate the employment provisions of the ADA by extending a cost-of-living increase to non-disabled retirees but not those who retire early because of disability. See 268 F.3d at 457–58. ȱȱ Ȃȱǯ

Ostrowski Ȃȱ¢ȱ ponse is to urge us to reconsider Morgan

. ȱȱȱȱȱȱǯȱȱǰȱ ȱęȱȱ he has preserved this issue fo r further review, should the en banc court or the Supreme Court wish to take it up.
Ostrowski Ȃ complaint also invoked section 504 of the Rehabilitation Act, 29 U.S.C. § 794. But on appeal,  Ȃȱbrief barely touched on this theory. This argument is thus forfeited. See Guzman v. City of Chicago , 689 F.3d 740, 744 n.3 (7th Cir. 2012) (“Perfunctory and undeveloped arguments” are forfeited. (cleaned up)).

B The Equal Protection Clause of the Fourteenth Amendment prohibits the states from denying any person “the equal protection of the laws.” U.S. Co nst. amend. XIV. When state action discriminates against a suspect class or denies a10 Nos. 21-1674 & 21-2580

fundamental right, courts apply strict scrutiny. See Srail v. Village of Lisle , 588 F.3d 940, 943 (7th Cir. 2009). Otherwise, it isenough for the state actor to show a rational basis for the classification. Id.
 Ȃȱ  m, as he concedes, qualifies only for rational basis review. See City of Cleburne v. Cleburne Living Ctr. , 473 U.S. 432, 446 (1985) (holding th at mental disability is not a suspect classification subject to heightened scrutiny under the Equal Protection Clause); United States v. Harris , 197 F.3d 870, 876 (7th Cir. 1999) (holding th at people with disabilities “are not a suspect or quasi-suspect class.”). A local policy that treats two groups of people differently will pass muster solong as there is some “rational relationship between the disparity of treatment and some legitimate governmental purpose.” Srail , 588 F.3d at 946. Local decisions can survive rational basis review even if they only imperfectly achieve the legitimate government interest they aim to advance. Id. Government actors may rely on disability, like other classifications reviewed under the ration al basis standard, as a proxy for other qualities or characteristic s, even if it “proves to be an inaccurate proxy in any individual case[.]” Stevens v. Ill. Dep’t of Transp ., 210 F.3d 732, 738 (7th Cir. 2000) (quoting Kimel v. Fla. Bd. of Regents , 528 U.S. 62, 84 (2000)).Lake County has a legitimate interest in providing pension plans that meet the differing needs of distinct groups. Moreover, the cost-of-living adjustment is only one of severalrelevant differences in the plans before us. Non-disabled retirees must contribute a portion of their salary to the plan every year until they are eligib le for retirement, and they become eligible only after 20 year s on the job or at age 60. Employees who retire on account of disability begin receivingNos. 21-1674 & 21-2580 11

payments as soon as they stop working, no matter how long they have paid into the pensio n system. Non-disabled retirees receive benefits based on the number of years they worked ȱȱȂȱǯȱ¢ȱǰȱ ȂȱȬ ity pension is calculated as though he had spent 32 years working for the Department, though he in fact was on the job for only about eight years. And while disabled retirees do not receive cost-of-living adjustments, they do receive a lump sum refund of all contributions they previously made to the retirement plan, with interest. Non-disabled retirees do not have that option.Viewed as a whole, the different plans provided to disabled and non-disabled former employees are rationally re- ȱȱȱ¢Ȃȱ ȱȱȱȱȬ fits that meet the needs of its employees, present and past. Lake County rationally could believe that disabled formeremployees will benefit more from an up-front lump sum payment returning their retirement contributions than from a cost-of-living adjustment provid ed years in the future. Lake County also has an interest in retention, the promotion of long- ȱȱȱȱȂȱǰȱȱ the provision of more generous benefits to the employees who worked for it the longest. There is no thing irrational about providing more generous benefits for former employees who worked ȱȱȱȂȱȱȱ ȱȱȱȱcontribution payments. Similarly, Lake County could permissibly believe that it is appropriate to provide more generous benefits to surviving spouses of employees who died on the job than to disabled employees, in light of the sacrifice those families made.12 Nos. 21-1674 & 21-2580

ȱ¢Ȃȱ¢ȱȱ ȱȱ¢ȱȱ ȱ achieve its goals. Rational basis review “is not a license for courts to judge the wisdom, fairness, or logic” of government Ȃȱǯȱ Heller v. Doe , 509 U.S. 312, 319 (1993) (citations omitted); see also Johnson v. Daly, 339 F.3d 582, 587 (7th Cir. 2003) (collecting cases). As long as a policy has some rational connection to a legitimate state interest, improving it is a task for the democrat ic branches of gove rnment, rather than the courts. Lake County easily meets that test.

C
Ostrowski also asserts a novel state-law claim under an Indiana statute providing that ȂȱȂ disability pension payments “as a result of line of duty activities ... must be in reasonable amounts.” I ND

. C ODE § 36-8-10-15(b). We assume, without deciding, that this state statute supports a private right of action. Ostrowski argues that a disability pension scheme that does not provide a cost-of-living increase is per se unreasonable. But Indiana courts have not gone that far. They have not even explained what constitu tes a “reasonable” disability pension payment, much less held that a “reasonable” amount necessarily includes a cost-of-living increase. Federal courts must exercise caution before re cognizing novel legal theories brought under unchar ted state laws. See Pisciotta v. Old Nat’l Bancorp , 499 F.3d 629, 635–36 (7th Cir. 2007). Because Ostrowski cannot point to some state law supporting his theory, we decline to hold that Indian a Code § 36-8-10-15 requires a cost-of-living increase for all disability pensions.Nos. 21-1674 & 21-2580 13

IV Although Lake County has prevailed on the merits, we conclude that it is not entitled to costs and fees. This court generally reviews fee awards fo r abuse of discretion, but we evaluate de novo the legal analysis un derlying a fee award. EEOC v. CVS Pharmacy, Inc. , 907 F.3d 968, 971 (7th Cir. 2018).The district court held that the defendants, as the prevailing parties, were entitled to fees and costs pursuant to the terms of the 2017 se ttlement agreement. 1 In so holding, the district court repeated the same mistake it made on the merits. Nothing in the settlement agreement affects any claims re- ȱȱ Ȃȱȱȱȱ¢ȱ ¢ . That means that the fees provis ion of the settlement agreement has no ef- ȱȱ Ȃȱ ȱȱȱȱǯ If the contract does not apply, the defendants must bear the cost of their own litigation. See Osler Inst., Inc. v. Forde , 386 F.3d 816, 818 (7th Cir. 2004) (“Indiana ad heres to the American rule, under which, in the absence of a statutory provision or an agreement providing for fees, eachparty is required to pay its own attorney fees.”). Therefore, the fee award must be set aside.

V  Ȃȱȱ ȱȱȱȱ¢ȱȱȱ settlement agreement with Lake County, but his claims fail on

1 Ostrowski filed for bankruptcy while this case was working its waythrough the courts. When someone declares bankruptcy, there is an automatic stay of most ongoing proceedings against her. See 11 U.S.C. § 362(a). The responsible bankruptcy court ma y modify the automatic stay upon request. Here, tȱ¢ȱȱȱ  Ȃȱȱȱȱȱ automatic stay for his fee appeal, and so we are free to resolve it now.14 Nos. 21-1674 & 21-2580

other grounds. We therefore AFFIRM the judgment of the district court granting summary judgment to the defendants. We

REVERSE the district Ȃȱȱȱȱȱȱȱȱ defendants.