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