### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 15

- 1804
M ATHEW N EISLER , 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

- C V

- 821

— Rudolph T. Randa
, Judge

.

____________________
S UBMITT ED S EPTEMBER 2, 2015 *

— D ECIDED N OVEMBER 25, 2015

____________________

Before W OOD , Chief Judge , and P OSNER and R OVNER , Ci rcuit Judges

. W OOD , C hief 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 F ED

. R. A PP

. P . 34(a)(2)(C).2 No. 15

- 1804

that the defendant prison administrator s had fired him in violation of Title II of that statute. The district court granted summary judgment for the defendants, and Neisler has a ppealed. Because Title II does not apply to a prisoner’s claim of employment discrimination in a prison job, we affir m. Neisler worked as a stockman in food service during his incarceration at the Waupun Correctional Institution. The Wisconsin Department of Corrections does not permit p ri soners to hold the same p osition for more than two years. S ee W IS

. D EP ’ T OF C ORRS ., D IV

. OF A DULT I NSTS

. P OLICY 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 staf f accordingly put him on “sick cell,” a design ation prohibiting an inmate from working because of an il lness. While on “sick cell” status, Neisler continued to receive the same hourly wage of $0.42 per hour. See W IS

. D EP ’ T OF C ORRS ., D IV

. OF A DULT I NSTS

. P OLICY 309.55.01. Three months after that, in October 2012, Robert Tuc k well, the Food Service Administrator at Waupun, fired Nei s ler , citing “medical” reasons for his action. The loss of his job caused Neisler to be removed from sick cell and to lose his wa ge supplement. On the same day as his firing, N eisler filed a grievance in which he asserted that he had been “p e nalized” for being unable to “perform [his] job duties b e cause of a w ork related accident” and asked to beNo. 15

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paid until his prosthesis could be r epaired or he could begin another job. James Muenchow, an inmate complaint examiner, re c ommended denying Neisler’s grievance, and William Po l lard, the warden, adopted that recommendation. Neisler’s administrative appeal was unsuccessful. Neisler began a ne w job in January 2013. L ater 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 sche duled 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. § 1 915A, 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 re asoned that the ADA applies to vocational programs in pri sons, and that this category is broad enough to include Nei sler’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 g ranted su mmary judgment to the defendants on the ground that no r ational finder of fact could find disability discrimination. Neisler was fired because he was too sick to work, the court4 No. 15

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wrote, not because of any disability. It thus entered su mmary judgment for the defendants

. Neisler argues that the district court disregarded what he believes to be evidence of discrimination. But his c ase 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 exclu de “a qualified individual with a disability” from pa rticipating in or receiving the benefits of “services, programs, or activities” or otherwise subjecting that person to discri mination. 42 U.S.C. § 12132. It does not apply to claims of e mployment discrim ination. 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 discrimin ation 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 a sserts that his prison job is part of a vocat ional 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 acti vities” to include a prison’s vocational programs. See Pa. Dep’t of Corr s . 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 e x-No. 15

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plained, because those programs “theoretically ‘benefit’ the prisoners.” Id. As the Tenth Circuit has observed, “w e 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.” ); Zimme rman v. Or. Dep’t of Justice , 170 F.3d 1169, 1176 (9th Cir. 1999) (explaining that securing or holding employment is not r eceipt of services, nor does public employment constitute program or activity). The Wisconsin statutes governing pri son 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. P rison emplo yment , in contrast, entails work “necessary to be done in the regular business thereof” and f or which prisoners may r eceive “pecuniary earnings and rewards.” See W IS

. 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 Ar mstrong 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 di stinguished access to grievance procedures (to which Title II applies) from discrimination in employment (to which T itle II does not apply). Id. at 1067 n.2. In addition, although Neisler does not argue that his complain t raises a claim under Title I, he would fare no be tter even if we assume that he meant to invoke Title I as well.6 No. 15

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To begin with, it is questionable whether a prisoner working at a prison job qualif ies as an “employee” within the mea ning of Title I, see Mu rdock 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 Ac t). If that problem is su rmount ed, a new one would arise in the form of the Eleventh A mendment, which bans any award of monetary damages under Title I against state defendants ac ting in their official capacities

. S ee Bd. of Trustees of the Univ. of Ala. v. Garrett , 531 U.S. 356, 360 (20 01); 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); M CI Tel ecomms. Corp. v. Ill. Bell Tel. Co. , 222 F.3d 323, 338

– 39 (7th Cir. 2000) , nor are they amenable to suit in their individual c apacities for alleged violations of Title I, s ee Silk v. City of Ch i.
, 194 F.3d 788, 797 n.5 (7th Cir. 1999), Albra v. Ad van, 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 discrimin ation by places of public accom modation ; it does not cover claims of employment discrimination. S ee 4 2 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 e m-No. 15

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ployment”). Moreover, because Title III permits only injun ctive relief for a person in Neisler’s position, and he now works in another prison job, any claim see king an acco mmodation 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 di smissing at screening his claim for worker’s comp ensation. The court reasoned that this claim could not proceed b ecause the Wisconsin statute allowing a prison inmate to r ecover for injuries incurred during a work assignment also provides that compensation does not become available until after his releas e. See W IS

. S TAT

. § 303.21(1)(a). Commentators agree with the district court’s reading of the statute, see 2 R IGHTS OF P RISONERS § 8:21 (4th ed. 2014); 17 W IS

. P RACTICE , W ORKERS ’ 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

.