SCOTT MCCRAY, Plаintiff-Appellant, v. ROBERT WILKIE, Secretary of the Department of Veterans Affairs, Defendant-Appellee.
No. 19-3145
United States Court of Appeals For the Seventh Circuit
SUBMITTED APRIL 7, 2020 — DECIDED JULY 16, 2020
Appeal from the United States District Court for the Eastern District of Wisconsin. No. 2:18-cv-1637-DEJ — David E. Jones, Magistrate Judge.
Before ROVNER, HAMILTON, and BARRETT, Circuit Judges.
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 еngaging 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 accommodate 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. (MсCray is African American; the comparators are white women.)
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
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 concentrating at work, which he attributed to various acts of discrimination 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 aсcommodation; 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
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
The VA moved tо 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
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 possibility 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
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 аlleges 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 thе 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. 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 requested, 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 oрposing 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
In support of dismissal, the VA relies on several cases holding that delays оf 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
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 coworkers, 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
C. Disparate treatment based on race and gender in providing accommodation
Finally, McCray has argued that his complaint plаusibly 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
But McCray waived these claims by not identifying and addressing them in responding to the VA‘s motion to dismiss. Although the VA‘s memоrandum 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
AFFIRMED IN PART, REVERSED IN PART, and REMANDED