Delay in Providing Accommodation Supports Discrimination Claim

By Jeffrey Rhodes September 8, 2020
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vehicle with a cracked windshield

The 7th U.S. Circuit Court of Appeals ruled that a Department of Veterans Affairs (VA) employee could pursue a claim under the Rehabilitation Act of 1973 based upon the VA's alleged 11-month delay in replacing a van that aggravated his disability.

Before working for the VA, the plaintiff served in the Army for eight years in the 1980s, achieving the rank of sergeant prior to his honorable discharge. During his service, he sustained injuries to his big toes, ankles, knees, lower back and shoulders.  An adjustment disorder with depressed moods as a result of his service was also diagnosed. His VA disability rating was 100 percent.

The plaintiff, a black male, worked at the Milwaukee Vet Center as a readjustment counselor from July 1997 until September 2000, when he left to pursue 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 this role, the plaintiff provided a variety of support services for military veterans, 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.

In July 2012, the plaintiff allegedly asked his supervisor to replace the van he was using to transport VA clients to their appointments because the van was hurting his knee. The van was evaluated by an ergonomics specialist, who concluded that the plaintiff's knee problems were caused by a lack of legroom in the van. The plaintiff was 6 feet 3 inches tall and weighed 390 pounds.

In November 2012, the van began to buck and jerk in traffic. In December, the plaintiff was offered a temporary replacement van, which he eventually accepted. However, it had a cracked windshield, no rear brakes, inoperable power steering, and a broken horn, and it was too small. The plaintiff found it worse than the original.

The plaintiff received an acceptable replacement van in June 2013, shortly after he told his supervisor that he was going to file an equal employment opportunity complaint. In 2014, soon after a white female co-worker complained about her van's bucking and jerking, all the case managers received new vans.

In August 2013, the plaintiff filed a charge of discrimination, complaining that he had been denied a promotion and the VA had not reasonably accommodated him when he had requested a replacement van. In October, the plaintiff had difficulty concentrating at work, which he attributed to acts of discrimination and retaliation by co-workers after he filed charges with the Equal Employment Opportunity Commission. He received a two-week leave of absence, but upon his return, he experienced panic attacks. He asked for a reassignment, which he received, and a 30-day leave of absence.

He sought another reassignment and then stated that his conditions might also be accommodated by receiving an office on a lower floor. That request was denied. In contrast, a white female co-worker requested a change of office due to a medical condition, and her request was granted.

The plaintiff filed a complaint asserting claims of disability discrimination under the Rehabilitation Act of 1973, and race and sex discrimination under Title VII of the Civil Rights Act of 1964. The VA moved to dismiss, and the court granted the motion.

[SHRM members-only how-to guide: How to Handle an Employee's Request for an ADA Accommodation]

On appeal, the 7th Circuit considered the delay that the plaintiff allegedly experienced when he asked for a new van. While some courts had ruled that delays as long as 20 months do not prove a failure to accommodate, the 7th Circuit found that reasonableness of each accommodation response must be judged on all of its circumstances.

Given the differing treatment afforded to white female co-workers, the 7th Circuit found that the plaintiff could pursue his failure to accommodate claim. The 7th Circuit also considered reversing the dismissal of the plaintiff's race- and sex-discrimination claims based on this disparity but found the plaintiff waived those claims in response to the VA's motion to dismiss arguments.

McCray v. Department of Veterans Affairs, 7th Cir., No. 19-3145 (July 16, 2020).

Professional Pointer: Employers often do not realize that differences in responding to disability accommodation requests or prolonged delays can result in liability, even if a request is ultimately granted.

Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.

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