On July 16, 2020, the 7th Circuit reversed the 12(b)(6) dismissal of a disability discrimination failure to accommodate claim predicated on the employer’s delay in providing the employee with a reasonable accommodation. McCray v. Wilkie, Secretary of the Department of Veterans Affairs, No. 19-3145 (7th Cir. July 16, 2020). The plaintiff sued his employer for the failure to accommodate his disabilities as required by the Rehabilitation Act (the federal sector equivalent of the Americans with Disabilities Act (“ADA”). The district court dismissed his complaint for failure to state a claim. The 7th Circuit reversed and held that an employer’s delay in providing an employee with a reasonable accommodation may form the basis of a disability discrimination claim for failure to accommodate.
The 7th Circuit concluded that the plaintiff set forth a viable claim of disability discrimination based on the employer’s delay in providing him with the accommodation of a new van for his knee-related disability. The Rehabilitation Act requires a federal employer to reasonably accommodate the known physical and mental disabilities of a qualified employee. The Rehabilitation Act incorporates the standards of the ADA in determining whether an employee has discriminated against its employee. The plaintiff is a qualified individual with a disability and, therefore, was entitled to a reasonable accommodation for his disability. He alleged that he has a variety of physical and mental limiting conditions, which could affect major life activities. He also alleged that previously, he had been able to perform the essential functions of his job without any accommodation, and that all he needed to continue doing so was a new van to resolve the difficulty he had begun to experience with his knee.
The question was whether the employer’s delay in providing him with that van could constitute a claim for denial of reasonable accommodation. An unreasonable delay in providing an accommodation for an employee’s known disability can amount to a failure to accommodate her disability that violates the Rehabilitation Act (or the ADA). Whether a particular delay is unreasonable depends on the totality of the circumstances, including 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. The allegations of the plaintiff’s complaint present a plausible claim based on the delay in accommodating his disability. The employer ignored his requests for a prolonged period of time, gave him a worse van as a interim accommodation, failed to engage in the interactive process, and only when he threatened to file an EEOC charge did the employer finally provide him with an appropriate van, after an 11-month delay. On these allegations, a fact-finder might conclude that the delay in accommodating the plaintiff’s disability was unreasonable. Therefore, the plaintiff has alleged a viable claim that the employer failed to accommodate his disability as a result of the delay in providing him with a new van.