Donald J. Kinsella v. BAKER HUGHES OILFIELD OPERATIONS , LLC and BAKER HUGHES , a GE COMPANY , LLC

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 22-2007
DONALD J. K INSELLA,
Plaintiff-Appellant,
v.
BAKER HUGHES O ILFIELD O PERATIONS ,
LLC and BAKER H UGHES , a GE
C OMPANY , LLC,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:18-cv-04589 — Robert W. Gettleman, Judge.
____________________
A RGUED M ARCH 29, 2023 — DECIDED M AY 8, 2023
____________________
Before S YKES , Chief Judge, and R OVNER and B RENNAN , Cir-
cuit Judges.
BRENNAN , Circuit Judge. An arbitrator rejected Donald Kin-
sella’s claim that his employer, Baker Hughes, violated the
Americans with Disabilities Act by failing to accommodate
him after he suffered work-related injuries. Kinsella sought
vacatur of the award, contending the arbitrator exceeded his

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2 No. 22-2007
powers by requiring proof of discriminatory intent for his
claim. But Kinsella misconstrues the arbitrator’s statements
concerning a lack of evidence showing discriminatory intent.
They were made as part of attributing fault on both sides for
a breakdown in the interactive process to find a reasonable
accommodation. So, we affirm the district court’s denial of va-
catur. Baker Hughes also seeks sanctions, which we deny be-
cause Kinsella had colorable grounds for this appeal.
I.
A.
Kinsella was a field operator for Baker Hughes Oilfield
Operations, LLC† when, in June 2013, he suffered work-re-
lated knee injuries that left him unable to work for three years.
He received disability benefits during that time and, in June
2016, his physician deemed him fit to work, but only in sed-
entary jobs. Baker Hughes’s human resources team, including
HR Business Partner Kristyn Martinez, helped him look for
jobs at the company that fit his physical capabilities. As part
of an interactive process to arrive at an accommodation, Kin-
sella submitted an ADA Reassignment Request form to his
employer, noting that he was permanently restricted to sed-
entary work with standing and sitting limitations. Based on
these restrictions, Martinez told Kinsella that Baker Hughes
could not accommodate him in his previous field operator job.
She also informed him that he had 30 days to look for jobs on
the company website and that a failure to find alternative
work within that time would result in termination.
† We refer to appellees Baker Hughes Oilfield Operations, LLC and its
parent, Baker Hughes, a GE Company, jointly as Baker Hughes.

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No. 22-2007 3
Though the 30-day period expired on August 20, 2016,
Martinez spoke with Kinsella on August 31 and suggested he
apply for the sedentary job of dispatcher and told him to do
so by September 6. She also told him to keep her apprised of
any developments in his job application process. Kinsella
failed to apply on time, and Martinez extended the deadline
to September 9, which Kinsella also missed. He applied for a
dispatcher position the next day, but he did not get an exten-
sion approval from Martinez.
Baker Hughes’s internal documents say Kinsella was re-
jected for the position on September 10, but his application
receipt, marked with the same date, said that Baker Hughes
would review his application and qualifications. Kinsella did
not follow up with Baker Hughes about his application, and
a non-disabled employee was hired for the position. Records
later revealed that Kinsella had two separate profiles in Baker
Hughes’s Taleo job application system. Martinez was not
aware of these two profiles or Kinsella’s application. She tes-
tified she had not seen any application in the profile of Kin-
sella that she had examined.
On October 25, Kinsella received a termination letter from
Martinez and his former supervisor, citing a failure to apply
for a position at Baker Hughes. Kinsella responded to this let-
ter on October 31, stating he did in fact apply for the
dispatcher position and attaching a receipt confirming his ap-
plication. After further investigation, Baker Hughes began the
process of reinstating Kinsella to his previous “inactive/long-
term disability” employment status. Baker Hughes’s investi-
gator continued to have discussions about this process with
Kinsella and his counsel until 2017 when, without clear expla-
nation, discussions ceased.

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4 No. 22-2007
B.
In April 2018, Kinsella filed a claim of disability discrimi-
nation against Baker Hughes with the Equal Employment
Opportunity Commission. The EEOC dismissed the claim as
untimely. Kinsella then sued the defendants in district court,
alleging failure-to-accommodate, discriminatory discharge,
and retaliation claims under the Americans with Disabilities
Act, 42 U.S.C. § 12101 et seq., as well as other state law claims.
The parties’ employment agreement contained an arbitra-
tion clause, so the district court granted the parties’ joint mo-
tion to stay the case pending arbitration. After learning that
arbitration was ongoing, the district court dismissed the case
“without prejudice with leave to reinstate within 7 days of the
arbitration ruling.” “If a motion to reinstate [was] not filed by
that date, the dismissal [would] convert to with prejudice
without further order of court.”
Following an evidentiary hearing, the arbitrator issued an
opinion and award, granting summary judgment on all
claims for Baker Hughes. Kinsella then asked the district court
to reinstate the case and to vacate the arbitration award on his
failure-to-accommodate claim. He sought vacatur under Sec-
tion 10 of the Federal Arbitration Act, 9 U.S.C. § 10, on the
ground that the arbitrator exceeded his powers by requiring
illegitimate elements of proof on the failure-to-accommodate
claim. The district court reinstated the case, but it denied va-
catur and entered a judgment of dismissal. Kinsella timely ap-
pealed the denial of vacatur. On appeal, Baker Hughes moved
for sanctions under Federal Rule of Appellate Procedure 38,
arguing this appeal is frivolous.

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No. 22-2007 5
II.
Pursuant to our order, the parties filed supplemental
memoranda on whether this court has jurisdiction in light of
Badgerow v. Walters, 142 S. Ct. 1310 (2022), in which the Su-
preme Court held that a federal court must discern an inde-
pendent jurisdictional basis on the face of an application to
confirm or vacate an arbitration award under 9 U.S.C. §§ 9, 10.
Id. at 1314, 1316–17. Badgerow took a different path than Vaden
v. Discover Bank, 556 U.S. 49, 53 (2009), where the Court held
that federal courts may “look through” an FAA Section 4 pe-
tition to compel arbitration by ascertaining the jurisdictional
basis in the underlying dispute. Vaden was based on Section
4’s specific language directing a federal court to determine
whether the court “would have jurisdiction” “save for [the ar-
bitration] agreement.” 556 U.S. at 62–63 (quoting 9 U.S.C. § 4).
Because Sections 9 and 10 have no such language, and the
FAA itself does not create federal jurisdiction, Badgerow re-
jected look-through jurisdiction for applications to confirm or
vacate an award. 142 S. Ct. at 1314, 1316.
Here, the underlying ADA failure-to-accommodate claim
arises under federal law, and because Kinsella originally filed
the claim in district court, federal jurisdiction continues over
his FAA Section 10 motion to vacate. In addition, although
Kinsella did not plead diversity jurisdiction in his complaint,
the parties’ subsequent filings sufficiently allege that the par-
ties are diverse and that the amount in controversy exceeds
$75,000. So, diversity is another basis for jurisdiction in the
underlying suit. Under our caselaw, the district court’s stay
did not impact its jurisdiction to confirm or vacate the arbitra-
tion award. See Davis v. Fenton, 857 F.3d 961, 962–63 (7th Cir.
2017); Baltimore & Ohio Chi. Terminal R.R. Co. v. Wis. Cent. Ltd.,

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6 No. 22-2007
154 F.3d 404, 407 (7th Cir. 1998). Similarly, the district court’s
dismissal without prejudice with leave to reinstate was in ef-
fect a stay, so it did not deprive the district court of jurisdic-
tion to rule on the motion to vacate. See Arrieta v. Battaglia, 461
F.3d 861, 863 (7th Cir. 2006); Baltimore & Ohio, 154 F.3d at 407–
08. Badgerow does not change these conclusions. The district
court’s entry of final judgment following the denial of vacatur
provided the basis for this court’s jurisdiction under 28 U.S.C.
§ 1291 and 9 U.S.C. § 16(a)(3).
III.
An arbitration award may be vacated “where the arbitra-
tors exceeded their powers, or so imperfectly executed them
that a mutual, final, and definite award upon the subject mat-
ter submitted was not made.” 9 U.S.C. § 10(a)(4). Kinsella
seeks vacatur under this provision, contending the arbitrator
exceeded his powers by inserting discriminatory intent as an
element of proof into the failure-to-accommodate claim.
When reviewing a district court’s decision on a motion to va-
cate an arbitration award, we review legal questions de novo
and factual findings for clear error. First Options of Chi., Inc. v.
Kaplan, 514 U.S. 938, 947–48 (1995); see Cont’l Cas. Co. v. Certain
Underwriters at Lloyds of London, 10 F.4th 814, 819 (7th Cir.
2021). There are no disputes of fact that must be resolved here.
The parties did not submit discriminatory intent to the
arbitrator as an element of Kinsella’s claim. In any case, dis-
criminatory intent is not an element of an ADA failure-to-ac-
commodate claim. See Williams v. Bd. of Educ. of City of Chi.,
982 F.3d 495, 503 (7th Cir. 2020); Seventh Circuit Pattern Civil
Jury Instruction 4.03. Before moving to the merits of Kinsella’s
legal contention, we put a finer point on our de novo review.

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No. 22-2007 7
A.
“Judicial review of arbitration awards is tightly limited,”
Standard Sec. Life Ins. Co. of N.Y. v. FCE Benefit Adm’rs, Inc., 967
F.3d 667, 671 (7th Cir. 2020) (citation omitted), and a party
seeking relief under Section 10(a)(4) “bears a heavy burden,”
Oxford Health Plans LLC v. Sutter, 569 U.S. 564, 569 (2013) (cit-
ing Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662,
671 (2010)). Arbitrations are creatures of contract, Edstrom In-
dus., Inc. v. Companion Life Ins. Co., 516 F.3d 546, 552 (7th Cir.
2008), so the arbitrator’s power is constrained by the parties’
agreement to submit a particular question to arbitration. See
Oxford Health Plans, 569 U.S. at 569; First Options, 514 U.S. at
943. “With few exceptions, as long as the arbitrator does not
exceed this delegated authority, her award will be enforced.
This is true even if the arbitrator’s award contains a serious
error of law or fact.” Butler Mfg. Co. v. United Steelworkers of
Am., AFL-CIO-CLC, 336 F.3d 629, 632 (7th Cir. 2003) (citations
omitted); see Oxford Health Plans, 569 U.S. at 569 (citing E. As-
sociated Coal Corp. v. Mine Workers, 531 U.S. 57, 62 (2000)).
Section 10(a)(4) concerns whether the arbitrator inter-
preted the law or contract submitted by the parties—not
whether the arbitrator interpreted it correctly. Continental Cas-
ualty, 10 F.4th at 819 (“The question ‘is not whether the arbi-
trator or arbitrators erred in interpreting the contract; it is not
whether they clearly erred in interpreting the contract; it is not
whether they grossly erred in interpreting the contract; it is
whether they interpreted the contract.’” (quoting U.S. Soccer
Fed’n, Inc. v. U.S. Nat’l Soccer Team Players Ass’n, 838 F.3d 826,
832 (7th Cir. 2016) (quotations and citations omitted))). “Only
if ‘there is no possible interpretive route to the award’ may a

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8 No. 22-2007
‘noncontractual basis … be inferred and the award set aside.’”
Id.
B.
The arbitrator here applied the law governing Kinsella’s
claim for a failure to accommodate his disability under the
ADA. So, any objection that the arbitrator incorrectly inter-
preted the ADA must fail. Continental Casualty, 10 F.4th at 819.
Kinsella contends, however, that the arbitrator improperly
added an element to his failure-to-accommodate claim, re-
quiring him to also prove discriminatory intent.
He analogizes this case to those in which the arbitrator
strayed from the interpretation and application of the contract
in dispute. See Anheuser-Busch, Inc. v. Loc. Union No. 744, 280
F.3d 1133, 1142 (7th Cir. 2002) (The arbitrator “cast aside the
extensively negotiated contract and ignored the clear and spe-
cific language of the commission-rates clause, the arbitration
clause, and the zipper clause.”); Tootsie Roll Indus., Inc. v. Loc.
Union No. 1, 832 F.2d 81, 84 (7th Cir. 1987) (“The effect of the
arbitrator’s conclusion was to eliminate the agreement’s pro-
vision that Fikes would be terminated if she was absent ‘for
any reason whatsoever.’”). While Anheuser-Busch and Tootsie
Roll involved arbitrators’ failures to apply explicit contractual
terms—rather than an element of a legal claim—the cases cap-
ture the principle that arbitrators must not stray from submit-
ted subject matters. Kinsella also cites Edstrom, 516 F.3d at
552–53, in which this court directed vacatur of an arbitral
award where the arbitrator disregarded contractually se-
lected law and applied a different state’s law. The analogy to
Edstrom is on stronger footing, but unlike that case, the arbi-
trator here applied the correct law—the ADA.

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No. 22-2007 9
We have not addressed whether, under Section 10(a)(4),
an arbitrator exceeds his authority by introducing an extra
element of proof into a claim. And we need not do so here
because Kinsella’s legal argument is based on a misunder-
standing of this arbitrator’s treatment of discriminatory in-
tent. Before exploring this point, we review the law governing
ADA failure-to-accommodate claims.
To prevail on a failure to accommodate claim, a
plaintiff must prove that (1) he was a qualified
individual with a disability, (2) the employer
was aware of his disability, and (3) the employer
failed to reasonably accommodate his disability.
Relevant to—and sometimes determinative of—
the third element is the employer and em-
ployee’s respective cooperation in an interactive
process to determine a reasonable accommoda-
tion.
Williams, 982 F.3d at 503 (cleaned up and citation omitted).
“Once an employee commences the interactive process to find
a reasonable accommodation, employers have an ‘affirmative
obligation to seek the employee out and work with her to craft
a reasonable accommodation.’” Mlsna v. Union Pac. R.R. Co.,
975 F.3d 629, 638 (7th Cir. 2020) (quoting EEOC v. Sears Roe-
buck & Co., 417 F.3d 789, 807 (7th Cir. 2005) (citation and inter-
nal brackets omitted)).
“Both parties are required to make a ‘good faith effort’ to
determine what accommodations are necessary, but if a
breakdown of the process occurs, ‘courts should attempt to
isolate the cause … and then assign responsibility.’” Lawler v.
Peoria Sch. Dist. No. 150, 837 F.3d 779, 786 (7th Cir. 2016)

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10 No. 22-2007
(quoting Beck v. Univ. of Wis. Bd. of Regents, 75 F.3d 1130, 1135
(7th Cir. 1996)). This court has stated:
No hard and fast rule will suffice, because nei-
ther party should be able to cause a breakdown
in the process for the purpose of either avoiding
or inflicting liability. Rather, courts should look
for signs of failure to participate in good faith or
failure by one of the parties to make reasonable
efforts to help the other party determine what
specific accommodations are necessary. A party
that obstructs or delays the interactive process
is not acting in good faith. A party that fails to
communicate, by way of initiation or response,
may also be acting in bad faith.
Beck, 75 F.3d at 1135. Though we have not expressly ad-
dressed the issue, it follows that an employer’s discriminatory
animus or intent can factor into attributing fault for a break-
down of the interactive process. Cf. Burdett v. United Parcel
Serv., Inc., No. 1:18-CV-00418-HAB, 2021 WL 5115642, at *8
(N.D. Ind. Nov. 3, 2021); Powers v. USF Holland Inc., No. 3:12-
CV-461 JD, 2015 WL 1455209, at *10–11 (N.D. Ind. Mar. 30,
2015).
As the district court recognized, Kinsella misreads the ar-
bitrator’s opinion and award as inserting discriminatory in-
tent as a new element of his ADA failure-to-accommodate
claim. The arbitrator discussed discriminatory intent solely in
the context of finding fault on both sides for the breakdown
of the interactive process to arrive at a reasonable accommo-
dation for Kinsella. Kinsella applied after the deadline for the
dispatcher position and did so without approval for an exten-
sion. Once he applied, he failed to keep Martinez apprised of

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No. 22-2007 11
his application. For her part, Martinez failed to review both of
Kinsella’s profiles in the Taleo system.
It is in this context that the arbitrator wrote the two sen-
tences that Kinsella misapprehends:
[T]here is no evidence in the record that [Mar-
tinez] harbored any discriminatory animus
against [Kinsella] or any other disabled person,
or that she attempted to thwart his efforts to find
alternative employment that would be con-
sistent with his medical restrictions.
…
[T]he credible evidence shows no discrimina-
tory animus by Martinez, or that she intention-
ally kept [Kinsella] from being assigned to the
Dispatch job because of his disability, or that she
intentionally caused the interactive process to
fail.
On this basis, the arbitrator concluded that “there is fault on
both parties in the interactive dialogue process,” and thus,
that Baker Hughes did not fail to reasonably accommodate
Kinsella’s disability. These two sentences cannot be read as
requiring a new element for Kinsella’s ADA failure-to-accom-
modate claim. The caselaw mentioned above supports the ar-
bitrator’s consideration of discriminatory animus and intent
when considering fault. Nothing indicates that the arbitrator
exceeded his powers, so we affirm the district court’s denial
of vacatur.

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12 No. 22-2007
IV.
Sanctions may issue if “an appeal is frivolous.” F ED. R.
A PP . P. 38. Rule 38 serves “both a compensatory purpose and
a deterrent purpose,” and this court is especially wary of vex-
atious losing parties who levy frivolous arguments to delay
collection of arbitral awards. Wachovia Sec., LLC v. Loop Corp.,
726 F.3d 899, 910 (7th Cir. 2013) (quoting Harris N.A. v. Her-
shey, 711 F.3d 794, 801 (7th Cir. 2013)); see Prostyakov v. Masco
Corp., 513 F.3d 716, 726 (7th Cir. 2008). Kinsella does not seek
to delay Baker Hughes’s collection on a money award, as
there is none here.
We also discern no ill motives on Kinsella’s part in pursu-
ing this appeal, which is based on a legal issue that this court
has not addressed. His argument relied on a colorable—albeit
erroneous—premise that the arbitrator required Kinsella to
prove an extra element on his failure-to-accommodate claim.
Such mistakes are not the subject of Rule 38 sanctions. See
Dolin v. GlaxoSmithKline LLC, 951 F.3d 882, 887 (7th Cir. 2020)
(“‘Frivolous,’ we stress, is not a synonym for ‘unsuccessful,’
or ‘unlikely to succeed.’” (citing NLRB v. Lucy Ellen Candy
Div., 517 F.2d 551, 555 (7th Cir. 1975))). So, we deny the mo-
tion for sanctions.
* * *
For the reasons stated, we A FFIRM the district court’s de-
nial of vacatur and DENY the motion for sanctions.

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