McCray v. McDonough, 2:18-cv-01637-BHL

Background:

Plaintiff Scott McCray is a VA Social Science Program Specialist and a disabled, service‑connected veteran who requested workplace accommodations (a different van; reassignment or office move) and filed multiple EEO complaints.
Supervisor Dr. Erin Williams required a peer review after a veteran on McCray’s caseload died; McCray later filed EEO complaints alleging discrimination, and a GS‑12 promotion promised in settlement was never obtained.
McCray requested a replacement van (July–December 2012); an ergonomics review found lack of leg room, a temporary inferior van was offered, and a safe replacement van was provided June 19, 2013.
McCray later sought reassignment or an office move after panic attacks and was denied; his performance rating for 2012–2013 was lowered from “outstanding” to “excellent.”
Procedurally: McCray sued under the Rehabilitation Act and Title VII for failure to accommodate (van; reassignment/office move), retaliation (lowered rating), and discriminatory failure to promote. The Secretary moved to dismiss under Fed. R. Civ. P. 12(b)(6); the court granted dismissal in full.

Issues:

Issue	Plaintiff's Argument	Defendant's Argument	Held
Failure to exhaust on failure‑to‑promote claim	McCray says he preserved and pursued his discrimination/retaliation failure‑to‑promote claim administratively	Wilkie says EEOC construed the claim as a breach‑of‑settlement claim and McCray did not challenge that construction, so he abandoned the discrimination claim	Court: Claim dismissed for failure to exhaust (abandoned at administrative level)
Failure to accommodate — van	McCray alleges VA failed to reasonably accommodate his knee by delaying/providing an inadequate replacement van	Wilkie argues complaint shows an ergonomics assessment and that McCray ultimately received a safe replacement van, so no failure to accommodate is pleaded	Court: Dismissed — complaint contradicts a failure‑to‑accommodate theory because an accommodation was provided
Failure to accommodate — reassignment/office move	McCray asserts he needed reassignment/office move as a reasonable accommodation after panic attacks and hostile work conditions	Wilkie contends plaintiff pleads only the legal conclusion of a "reasonable accommodation" and offers no facts showing an office move was necessary to perform essential job functions	Court: Dismissed — plaintiff failed to plead facts from which a court could infer the requested move was a reasonable accommodation
Retaliation — lowered performance evaluation	McCray contends lowering his rating was retaliation for opposing discrimination	Wilkie says a downgraded performance rating (outstanding→excellent) is not an adverse employment action absent tangible consequences	Court: Dismissed — lower rating alone is not an actionable adverse employment action; retaliation claim fails and amendment would be futile

Key Cases Cited

Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading must state a plausible claim beyond legal conclusions)
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility standard for complaints)
Brumfield v. City of Chicago, 735 F.3d 619 (7th Cir. 2013) (elements and definitions relevant to failure‑to‑accommodate claims)
Lavalais v. Village of Melrose Park, 734 F.3d 629 (7th Cir. 2013) (Title VII exhaustion requirement: claims not in EEOC charge cannot be litigated)
Cheek v. Western & Southern Life Ins. Co., 31 F.3d 497 (7th Cir. 1994) (administrative exhaustion as condition precedent)
Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002) (scope of pleading requirements in employment discrimination suits)
Longstreet v. Illinois Department of Corrections, 276 F.3d 379 (7th Cir. 2002) (what constitutes an adverse employment action for retaliation)
Gonzalez‑Koeneke v. West, 791 F.3d 801 (7th Cir. 2015) (denial of leave to amend where amendment would be futile)