Labor & Employment Law Daily Eleven-month delay in providing requested accommodation of new work van could violate Rehab Act
Tuesday, July 21, 2020

Eleven-month delay in providing requested accommodation of new work van could violate Rehab Act

By Marjorie Johnson, J.D.

The VA’s failure to engage in any dialogue about what else could be done in the interim and on what timeline could also be deemed a violation of its duty to engage in an interactive process, and served as evidence of its lack of good faith.

A mental health case manager for the Department of Veterans Affairs (VA) revived his Rehabilitation Act claim that by delaying his request for a replacement van for 11 months, his employer failed to reasonably accommodate his known disability. Reversing dismissal of his lawsuit, the Seventh Circuit also allowed him to clarify his claim that he was unlawfully denied his request for reassignment to a different position or office as a reasonable accommodation, but refused to reinstate his waived Title VII claim that white female coworkers received more favorable accommodations because of their race and gender (McCray v. Wilkie, July 16, 2020, Rovner, I.).

Mental and physical disabilities. As a mental health case manager for a VA center, the employee provided a variety of support services for military veterans. These included providing one-on-one drug and alcohol counseling, conducting clinical groups, making in-home visits, and transporting clients to clinical appointments. He was an Army veteran and in the course of his service had sustained numerous physical and mental injuries. He also suffered from hypertension, arthritis, diabetes, and post-traumatic stress disorder (PTSD).

Delay in van replacement. In July 2012, he asked his supervisor to arrange for a replacement of the van that he used to transport VA clients to their appointments because the vehicle was hurting his knee. After an ergonomics expert met with him in August, the van was evaluated in October by a specialist who concluded that the “knot” on his knee seemed to be caused by a lack of leg room in the van. In November, the van began to “buck” and “jerk” in traffic, but the motor pool evaluated it and told him they could find nothing wrong. A coworker who drove the van one day experienced the same problem and agreed that the van was unsafe.

In December, the VA provided the employee a temporary replacement van which was worse than the original one as it had a cracked windshield, no rear brakes, inoperable power steering and horn, and was too small. He continued to ask for an appropriate replacement van but did not get it until June 2013, 19 days after he told his supervisor that he was going to file an EEO complaint. A white female coworker subsequently complained about her van bucking and jerking and shortly thereafter, all of the case managers received new vans.

Denied reassignment, new office. After he was assigned the new van, he complained to the EEOC that he was improperly denied a promotion and a reasonable accommodation. In October, he experienced difficulty concentrating at work, which he attributed to various acts of discrimination and retaliation committed by coworkers following his EEOC activity. After he suffered a series of panic attacks, he asked that he be reassigned to another position as a reasonable accommodation, but his request was denied. He was also denied his subsequent request to be moved to an office on a lower floor even though a white female coworker was allowed to move her office due to a medical condition.

Motion to dismiss granted. He filed this lawsuit asserting disability bias under the Rehab Act and race and sex bias under Title VII. The court granted the VA’s motion to dismiss, ruling that the VA provided him a reasonable accommodation since it eventually provided him with an appropriate van and that he failed to plausibly allege that his requests for a reassignment and for a new office were needed for him to perform the essential functions of his job. The court did not address his Title VII claims since he did not address them in his briefing.

Delay in providing adequate van. Reversing in part, the Seventh Circuit ruled that VA’s delay in providing the employee with a replacement van could potentially equate with the denial of a reasonable accommodation. Whether the delay qualified as unreasonable turned on the totality of the circumstances, which included 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.”

Arguably unreasonable. Under the alleged circumstances, a reasonable jury could conclude that the 11-month delay was unreasonable. Notably, the employee informed his supervisor that the van was causing him pain when he was driving, and an ergonomic specialist agreed that he needed a different van. Also, replacing the van was arguably not an especially complex or burdensome accommodation. Indeed, new vans were given to all counselors the following year. And while he raised the issue at weekly staff meetings, yet the only interim accommodation he was offered was a van that was worse in material respects.

The VA also did not engage in any dialogue with the employee about what else could be done and on what timeline. This was “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 accommodation, and also as evidence of the employer’s lack of good faith.” Moreover, the VA did not provide him with an appropriate van until he threatened to file an EEOC charge.

Refusal to reassign to a new office. Though the employee also alleged that the VA failed to accommodate him when it denied his reassignment and new office requests, his complaint did not make clear whether this claim was actually based on his employer’s failure to reasonably accommodate a known disability or instead is a retaliation or HWE claim. On remand, he would have the opportunity to attempt to clarify and support this claim.

Waived Title VII claims. However, he failed to revive his Title VII claim alleging he was denied his requested accommodations because of his race and gender. Though he claimed that the VA responded more favorably to white female coworkers’ requests for new equipment and for a new office, he waived those claims by not identifying and addressing them in responding to the VA’s underlying motion to dismiss.

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