In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 15-1804

MATHEW NEISLER,

Plaintiff-Appellant,

v.

ROBERT TUCKWELL, 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.

____________________

SUBMITTED SEPTEMBER 2, 2015* — DECIDED NOVEMBER 25, 2015

____________________

Before WOOD, Chief Judge, and POSNER and ROVNER, Circuit Judges.

WOOD, 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. APP. P. 34(a)(2)(C).
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 appealed. 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 prisoners to hold the same position for more than two years. 

See WIS. DEP’T OF CORRS., DIV. OF ADULT INSTS. 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 designation prohibiting an inmate from working because of an illness. While on “sick cell” status, Neisler continued to receive 

the same hourly wage of $0.42 per hour. See WIS. DEP’T OF 

CORRS., DIV. OF ADULT INSTS. POLICY 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 
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 sevenweek gap between the cessation of his wage supplement and 

the time when his position as a stockman had been scheduled 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 employmentdiscrimination 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 reasoned that the ADA applies to vocational programs in prisons, and that this category is broad enough to include Neisler’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 summary judgment to the defendants on the ground that no rational finder of fact could find disability discrimination. 

Neisler was fired because he was too sick to work, the court 
4 No. 15-1804

wrote, not because of any disability. It thus entered summary 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 participating in or receiving the benefits of “services, programs, 

or activities” or otherwise subjecting that person to discrimination. 42 U.S.C. § 12132. It does not apply to claims of employment 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 asserts 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 activities” 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-
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.”); Zimmerman v. Or. Dep’t of Justice, 170 F.3d 1169, 1176 (9th Cir. 1999) 

(explaining that securing or holding employment is not receipt of services, nor does public employment constitute 

program or activity). The Wisconsin statutes governing prison labor reflect this distinction. Vocational programs are 

“schools” in which inmates are instructed “in trades and 

domestic science.” See WIS. STAT. § 303.05. Prison employment, in contrast, entails work “necessary to be done in the 

regular business thereof” and for which prisoners may receive “pecuniary earnings and rewards.” See WIS. STAT.

§ 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 Armstrong 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 distinguished access to grievance procedures (to which Title II 

applies) from discrimination in employment (to which Title 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 better even if we assume that he meant to invoke Title I as well. 
6 No. 15-1804

To begin with, it is questionable whether a prisoner working 

at a prison job qualifies as an “employee” within the meaning 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 acting 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 Telecomms. Corp. v. Ill. Bell Tel. Co., 222 F.3d 323, 338–39 (7th Cir. 

2000), nor are they amenable to suit in their individual capacities 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 discrimination 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-
No. 15-1804 7

ployment”). Moreover, because Title III permits only injunctive relief for a person in Neisler’s position, and he now 

works in another prison job, any claim seeking an accommodation 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 dismissing at screening his claim for worker’s compensation. 

The court reasoned that this claim could not proceed because the Wisconsin statute allowing a prison inmate to recover for injuries incurred during a work assignment also 

provides that compensation does not become available until 

after his release. See WIS. STAT. § 303.21(1)(a). Commentators 

agree with the district court’s reading of the statute, see 2 

RIGHTS OF PRISONERS § 8:21 (4th ed. 2014); 17 WIS. PRACTICE,

WORKERS’ COMP. LAW § 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 AFFIRMED.