Scott McCray v. Robert Wilkie

In the
United States Court of Appeals
For the Seventh Circuit
No. 19‐3145
SCOTT MCCRAY,
Plaintiff‐Appellant,
v.
ROBERT WILKIE, Secretary of the
Department of Veterans Affairs,
Defendant‐Appellee.
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:18‐cv‐1637‐DEJ — David E. Jones, Magistrate Judge.
SUBMITTED APRIL 7, 2020 — DECIDED JULY 16, 2020
Before ROVNER, HAMILTON, and BARRETT, Circuit Judges.
ROVNER, Circuit Judge. Scott McCray sued his employer, the
Department of Veterans Affairs, for the failure to accommodate
his disabilities as required by the Rehabilitation Act of 1973, 29
U.S.C. § 701 et seq. The district court dismissed his complaint
2 No. 19‐3145
for failure to state a claim. We reverse in part and remand for
further proceedings.
I.
As this case was resolved against McCray at the pleading
stage, we assume the truth of the well‐pleaded facts in his
complaint. See, e.g., Huon v. Denton, 841 F.3d 733, 738, 742–43
(7th Cir. 2016).
McCray is an employee of the Department of Veterans
Affairs (“VA”). McCray worked at the Milwaukee VA Vet
Center as a readjustment counselor from July 1997 until
September 2000, when he left for graduate studies. After
earning a Master’s degree in Educational Psychology/
Community Counseling and practicing as a community
psychologist, he returned to the VA in March 2004 as a Mental
Health Case Manager. In that capacity, McCray provides a
variety of support services for military veterans, among them
engaging in one‐on‐one counseling (including drug and
alcohol counseling), conducting clinical groups, helping to
complete benefits applications, making in‐home visits in at‐risk
neighborhoods, providing case management for veterans with
severe mental illness, and transporting clients to clinical
appointments.
McCray alleges that he was subject to multiple forms of
workplace discrimination. Two of the three claims he has
pursued on appeal are claims that the VA failed to accommo‐
date his disabilities; the third is a disparate treatment claim
positing that other VA employees received more favorable
accommodations than he did based on their race. (McCray is
African American; the comparators are white women.)
No. 19‐3145 3
McCray served in the Army for a period of eight years in
the 1980s (achieving the rank of Sergeant prior to his honorable
discharge), and in the course of his service sustained injuries to
his big toes, ankles, knees, lower back, and shoulders. He also
sustained mental injuries and has been diagnosed as having an
adjustment disorder with depressed moods. As of February
2013, his VA disability rating was 100 percent. In addition to
his service‐related disabilities, McCray suffers from hyperten‐
sion, arthritis, diabetes, sarcoidosis (which is in remission), and
post‐traumatic stress disorder (“PTSD”). McCray’s physical
disabilities have a substantial negative impact on his ability to
bend, stoop, climb, reach, twist, carry, sleep, and walk; pain
attributed to McCray’s arthritis also causes him to experience
difficulty with concentration. His mental disabilities likewise
affect his ability to concentrate and in addition his breathing
ability; they also contribute to a sense of extreme fatigue.
In July 2012, McCray asked his supervisor, Dr. Erin
Williams, that the van he was using to transport VA clients to
their appointments be replaced, because the van was hurting
his knee. Since his return to the VA in 2004, McCray had not
previously needed an accommodation in order to perform his
duties. After a preliminary meeting between McCray and an
ergonomics employee in August, the van was evaluated in
October by a specialist, who concluded that the “knot” on
McCray’s knee seemed to be caused by a lack of leg room in
the van. (McCray is 6 feet 3 inches tall and weighs 390 pounds.)
In November, the van began to “buck[ ] and jerk[ ]” in traffic.
Although the motor pool evaluated the van and told McCray
they could find nothing wrong, a co‐worker who drove the van
one day experienced the same problem and told McCray the
4 No. 19‐3145
van was unsafe. In December, he was offered a temporary
replacement van which he eventually accepted, but the
replacement van allegedly had a cracked windshield, no rear
brakes, inoperable power steering and horn, and was too
small: McCray described it as worse than the original. McCray
continued to ask for an appropriate replacement van as he had
since he first made the request in July, but he did not get it
until June 2013, 19 days after he told Williams that he was
going to file an EEO complaint over the matter.
In 2014, shortly after a white female coworker complained
about her van bucking and jerking, all of the case managers
received new vans.
In August 2013, McCray filed a charge (his second) with the
Equal Opportunity Employment Commission (“EEOC”)
complaining that he had improperly been denied a promotion
to a higher grade level and that the VA had not reasonably
accommodated him when he had requested a replacement van.
In October 2013, McCray experienced difficulty concentrat‐
ing at work, which he attributed to various acts of discrimina‐
tion and retaliation committed by co‐workers in the wake of
the charges he had filed with the EEOC. He was initially
granted a two‐week leave of absence, after which he returned
to work and suffered a series of panic attacks. He asked that he
be reassigned to another position as a reasonable accommoda‐
tion; he also was prescribed (and granted) a second leave of 30
days. The following month, he was advised that the VA was
unable to find him a reassignment. In response, McCray
indicated that he could probably manage to continue working
without reassignment if he were to be given an office on a
No. 19‐3145 5
lower floor as an accommodation to his disabilities. That
request was denied, notwithstanding the fact that there were
vacant offices two floors down in the building.
By contrast, when a white female co‐worker requested in
February or March 2014 that her office be moved due to a
medical condition, her request was granted.
McCray filed a complaint in the district court asserting,
inter alia, claims of disability discrimination under the Rehabil‐
itation Act of 1973, and race and sex discrimination in violation
of Title VII of the Civil Rights Act of 1964.
The VA moved to dismiss for failure to state a claim on
which relief could be granted, and the Magistrate Judge (to
whom the parties had consented to resolve the case pursuant
to Federal Rule of Civil Procedure 73) granted the motion with
prejudice.1 As to the delay in providing McCray with a
replacement van, the court assumed that the allegations of the
complaint were sufficient to indicate that McCray was a
qualified individual with a disability and that his employer
was aware of his disability. R. 27 at 13. But because the VA
eventually did provide him with an appropriate van, the court
concluded that he had been accommodated and that, conse‐
quently, he had no viable failure‐to‐accommodate claim. R. 27
at 13. As to the refusal to reassign McCray or move his office,
1
Because the Magistrate Judge resigned from the bench shortly after
ruling on the motion to dismiss and consequently this case will necessarily
be reassigned on remand, we need not address McCray’s contention that
the Magistrate Judge should have recused himself and allowed the motion
to be decided by a different judge, as he had previously advised the parties
he would do. See R. 29 at 3.
6 No. 19‐3145
the court concluded that none of the complaint’s allegations
supported a reasonable inference that he needed to move
offices in order to perform the essential functions of his job.
R. 27 at 14. The court did not address the race and sex discrimi‐
nation claims that McCray presses here because, as we note
below, those claims were not addressed in the briefing on the
motion to dismiss. See R. 27 at 7–8.
II.
We review the district court’s decision to dismiss the
complaint de novo, accepting as true all well‐pleaded facts and
drawing all reasonable inferences in the plaintiff’s favor. E.g.,
Word v. City of Chicago, 946 F.3d 391, 393 (7th Cir. 2020). To
survive a motion to dismiss, the allegations in the complaint
“must plausibly suggest ... a right to relief, raising that possibil‐
ity above a speculative level,” Horist v. Sudler & Co., 941 F.3d
274, 278 (7th Cir. 2019) (quoting EEOC v. Concentra Health
Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007)), and give the
defendant fair notice of what claim the plaintiff is making and
what the basis for that claim is, Windy City Metal Fabricators &
Supply, Inc. v. CIT Tech. Fin. Servs., Inc., 536 F.3d 663, 667 (7th
Cir. 2008) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555,
127 S. Ct. 1955, 1964 (2007)). We conclude that McCray has set
forth at least one viable claim of disability discrimination based
on the VA’s delay in providing him with the accommodation
of a new van.
A. Delay in providing adequate replacement van.
The Rehabilitation Act requires a federal employer to
reasonably accommodate the known physical and mental
disabilities of a qualified employee. See 29 U.S.C. § 794;
No. 19‐3145 7
McWright v. Alexander, 982 F.2d 222, 225 (7th Cir.1992). The
Rehabilitation Act incorporates the standards of the Americans
with Disabilities Act in determining whether an employer has
discriminated against its employee, and so we look to cases
decided under both statutes in evaluating an employer’s
compliance with this duty. § 794(d); Ashby v. Warrick Cnty. Sch.
Corp., 908 F.3d 225, 230 n.10 (7th Cir. 2018); Felix v. Wis. Dep’t
of Transp., 828 F.3d 560, 568–69 (7th Cir. 2016); Brumfield v. City
of Chicago, 735 F.3d 619, 630 (7th Cir. 2013).
Like the district court, we have no difficulty assuming that
McCray was a qualified individual with a disability and as
such was entitled to a reasonable accommodation for that
disability. R. 27 at 12. McCray has alleged that he has a variety
of physical and mental limiting conditions, a number of which
obviously could affect major life activities. He also alleges that
prior to 2012, he had been able to perform the essential
functions of his job without any accommodation, and that all
he needed to continue doing so after that point was a new van
to resolve the difficulty he had begun to experience with his
knee. The question is whether the VA’s delay in providing him
with that van could potentially equate with the denial of a
reasonable accommodation.
An unreasonable delay in providing an accommodation for
an employee’s known disability can amount to a failure to
accommodate his disability that violates the Rehabilitation Act.
Jay v. Intermet Wagner, 233 F.3d 1014, 1017 (7th Cir. 2000)
(ADA) (“unreasonable delay in providing an accommodation
can provide evidence of discrimination”); see also Valle‐Arce v.
Puerto Rico Ports Auth., 651 F.3d 190, 200–01 (1st Cir. 2011)
(ADA); Mogenhan v. Napolitano, 613 F.3d 1162, 1168 (D.C. Cir.
8 No. 19‐3145
2010) (Rehabilitation Act); Selenke v. Med. Imaging of Colo., 248
F.3d 1249, 1262 (10th Cir. 2001) (ADA). Whether a particular
delay qualifies as unreasonable necessarily turns on the totality
of the circumstances, including, but not limited to, such factors
as the employer’s good faith in attempting to accommodate the
disability, the length of the delay, the reasons for the delay, the
nature, complexity, and burden of the accommodation re‐
quested, and whether the employer offered alternative
accommodations. See Selenke, 248 F.3d at 1262–63; Olson v.
Chao, 2019 WL 4773884, at *18 (D. Mass. Sept. 30, 2019); Sturz
v. Wis. Dep’t of Corrections, 642 F. Supp. 2d 881, 889 (W.D. Wis.
2009).
McCray did not waive this claim for failing to develop it
below, as the VA argues. Although McCray’s presentation in
the district court certainly could have made a better legal case
for this claim, a review of the complaint and his memorandum
opposing dismissal below leaves little doubt that the delay in
accommodating him was among the claims he meant to assert
(R. 1 ¶¶ 48–61; R. 19 at 7), and the VA’s own citation in the
district court briefing (R. 17 at 12–13) to Morris v. Ford Motor
Co., 2016 WL 4991772 (W.D. Wis. Sept. 16, 2016) (which in turn
cites Jay), on the matter of delay leaves no doubt that its
counsel understood the nature of McCray’s claim and the legal
framework governing this claim.
The facts alleged in McCray’s complaint present a plausible
claim for relief based on the delay in accommodating his
disability. McCray informed his supervisor that the van he was
driving was causing him pain when he was driving. An
ergonomic specialist agreed that McCray needed a different
van. Replacing the van arguably was not an especially complex
No. 19‐3145 9
or burdensome accommodation and, indeed, the following
year, new vans were given to all counselors. McCray raised the
issue at weekly staff meetings with his supervisor, and yet the
only interim accommodation he was offered was a van that
was worse in material respects. Apart from that, there was no
dialogue with McCray about what else could be done and on
what timeline, an omission that could be understood to violate
the VA’s duty to engage in an interactive process with its
employee in an effort to arrive at an appropriate accommoda‐
tion, and also as evidence of his employer’s lack of good faith.
See Yochim v. Carson, 935 F.3d 586, 591 (7th Cir. 2019) (duty of
reasonable accommodation includes requirement that both
employer and employee engage in flexible interactive process
and to make good faith effort to determine what accommoda‐
tion is necessary) (citing Lawler v. Peoria Sch. Dist. No. 150, 837
F.3d 779, 786 (7th Cir. 2016)); Beck v. Univ. of Wis. Bd. of Regents,
75 F.3d 1130, 1135 (7th Cir. 1996) (“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.”). Only when
McCray threatened to file a charge with the EEOC did the VA
finally provide McCray with an appropriate van. On these
alleged facts, we cannot rule out the possibility that the
factfinder might conclude the 11‐month delay in accommodat‐
ing McCray’s disability was unreasonable.
In support of dismissal, the VA relies on several cases
holding that delays of varying lengths in accommodating an
employee’s disability were not unreasonable. See Jay, 233 F.3d
at 1017 (concluding that 20‐month delay in accommodating
employee’s disability by reassigning him to new position did
10 No. 19‐3145
not constitute a failure to accommodate where employer acted
“reasonably and in good faith”); Cloe v. City of Indianapolis, 712
F.3d 1171, 1179 (7th Cir. 2013) (“We do not think a reasonable
jury could find that the delay here [of two weeks to one month]
in tracking down a new piece of equipment was unreason‐
able.”), overruled on other grounds by Ortiz v. Werner Enters., Inc.,
834 F.3d 760, 764–65 (7th Cir. 2016); Keen v. Teva Sales & Mktg.,
Inc., 303 F. Supp. 3d 690, 730 (N.D. Ill. 2018), appeal docketed,
No. 18‐1769 (7th Cir. April 10, 2018). But these were summary
judgment cases that presented developed factual records to the
court, and none purports to say that a delay of any particular
duration will invariably be reasonable regardless of the
surrounding circumstances. As we have said, whether a
particular delay is reasonable turns on the facts of a given case.
McCray’s allegations do not preclude a finding of unreason‐
ableness. See, e.g., Krocka v. Riegler, 958 F. Supp. 1333, 1342
(N.D. Ill. 1997) (declining to hold, on motion to dismiss, that
eight‐month delay in granting plaintiff his requested job
assignment was reasonable as matter of law).
B. Refusal to reassign McCray or give him a new office.
McCray also alleges that the VA failed to accommodate him
when he requested reassignment or a new office, based on the
stress he was experiencing (manifesting, ultimately, in panic
attacks) due to various discriminatory actions taken by his
superior (with whom he had a tense relationship) and his co‐
workers, which he attributes to prior discrimination charges he
had filed.
As the complaint stands now, it is not clear whether this is
really a claim based on his employer’s failure to reasonably
No. 19‐3145 11
accommodate a known disability or instead is a retaliation
claim or a hostile environment claim. For example, the allega‐
tions are not pellucid as to what specific disabling condition or
conditions McCray’s reassignment and new office requests
were based on, such that the VA had a duty to consider a
possible accommodation to those conditions; and the briefing
does little to clear up this point. We might infer from the
complaint that McCray’s difficulty in concentration and his
panic attacks were due to his PTSD, and that assignment to a
different position or workspace might be helpful to the extent
the change would put distance between himself and the
individuals whose actions were triggering his difficulties. See
R.1 ¶¶ 79–85. But his opening brief suggests that a new office
was necessary to alleviate physical difficulties posed by his
knee disability. McCray Br. 14. In any event, because we are
remanding for further proceedings on the claim that the VA
unreasonably delayed accommodating McCray’s need for a
new van, McCray will have the opportunity to attempt to
clarify and support this claim.
C. Disparate treatment based on race and gender in providing
accommodation
Finally, McCray has argued that his complaint plausibly
states claims for race and sex discrimination based on the VA’s
response to the requests of other employees for new equipment
or a new office as compared with its response to his requests
for accommodation to his disabilities. He alleges, for example,
that when in 2014 a white, female co‐worker “complained
about her Uplander [van] bucking and jerking, all of the case
managers received new vans.” R. 1 ¶ 61. As we have noted,
this allegation supports McCray’s contention that the VA was
12 No. 19‐3145
guilty of unreasonable delay in accommodating his need for a
new van in violation of the ADA, but McCray contends that it
additionally supports a claim of race and sex discrimination in
violation of Title VII. Similarly, McCray points out that another
white, female co‐worker was given a new office when she
requested one due to a medical condition, whereas he was not.
R. 1 ¶ 85. This too he cites as an instance of race and sex
discrimination.
But McCray waived these claims by not identifying and
addressing them in responding to the VA’s motion to dismiss.
Although the VA’s memorandum in support of the motion
addressed other instances of alleged discrimination in violation
of Title VII, it evidently did not perceive these instances of
alleged disparate treatment as presenting claims of race and
sex discrimination as opposed to a failure to accommodate
McCray’s disabilities. See R. 17 at 1–2 (summarizing claims
presented in McCray’s complaint). When McCray responded
to the motion to dismiss, he did not correct the VA’s apparent
oversight by arguing that these disparities also supported
claims of race and sex discrimination. See R. 19. His failure to
do so amounted to a waiver of any such claims. See United
Cent. Bank v. Davenport Estate LLC, 815 F.3d 315, 318 (7th Cir.
2016); Lekas v. Briley, 405 F.3d 602, 614–15 (7th Cir. 2005).
III.
The dismissal of McCray’s complaint is reversed in part.
McCray has alleged a viable claim that the VA failed to
accommodate his disability as a result of the delay in providing
him with a new van. He shall also be free to amend his
complaint in order to clarify the nature of his claim(s) as to the
No. 19‐3145 13
denial that he be assigned to a different position or office. The
dismissal of his complaint is otherwise affirmed. The case is
remanded to the district court for further proceedings consis‐
tent with this opinion.
AFFIRMED IN PART, REVERSED IN PART,
and REMANDED