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McCray v. Wilkie

United States District Court, E.D. Wisconsin

September 30, 2019

SCOTT MCCRAY, Plaintiff,
v.
SECRETARY ROBERT WILKIE, Defendant.

          DECISION AND ORDER GRANTING DEFENDANT'S MOTION TO DISMISS

          DAVID E. JONES UNITED STATES MAGISTRATE JUDGE.

         Scott McCray filed this employment discrimination action with the assistance of counsel on October 15, 2018, naming Robert Wilkie, the Secretary of the Department of Veterans Affairs, as defendant. He alleges that Robert Wilkie, as the designated representative of the Department of Veteran Affairs, acted without regard to his rights as guaranteed under the Rehabilitation Act of 1973 and Title VII of the Civil Rights Act of 1964, by discriminating against him based on disability, sex, and race. Furthermore, Mr. McCray claims that he was retaliated against based on his complaints regarding discrimination. See Complaint 15, ECF No. 1.

         Robert Wilkie has moved to dismiss all of Mr. McCray's discrimination and retaliation claims, arguing that he failed to exhaust his administrative remedies on one claim and that he failed to allege facts sufficient to establish the essential elements of a claim under the Rehabilitation Act or Title VII for the remaining claims. See Defendant's Reply Brief in Support of Motion to Dismiss 1-2, ECF No. 20. Mr. McCray maintains that he has exhausted his administrative remedies and that he has plead enough facts supporting his claims to survive a motion to dismiss. See generally Plaintiff's Brief in Opposition, ECF No. 19. For the reasons that follow, the Court will grant Mr. Wilkie's motion to dismiss, and this action will be dismissed in its entirety.

         I. Factual Background

         The Court takes the following facts from Mr. McCray's complaint, accepts them as true, and draws all reasonable inferences in his favor. See Brumfield v. City of Chi., 735 F.3d 619, 622 (7th Cir. 2013). Scott McCray is a current employee of the Department of Veterans Affairs (VA) where he works as a Social Science Program Specialist and Mental Health Case Manager. Compl. ¶ 4. The VA is a federal agency covered by the Rehabilitation Act of 1973 and Title VII of the Civil Rights Act of 1964. Id. at ¶¶ 6-7. Through his role as Mental Health Case Manager, Mr. McCray, among other things, provides case management for veterans with severe mental illness; provides support with applications; does in-home visits; and provides transportation for clinical appointments. See Id. at ¶ 19.

         From September 9, 1981, through January 18, 1990, Mr. McCray served in the Army on active duty and obtained the rank of Sergeant prior to his discharge. Compl. ¶11. As a result of his military duty, Mr. McCray sustained physical injuries to both of his big toes, both ankles, his knees, his lower back, and both shoulders. He also sustained mental injuries and has been diagnosed with an adjustment disorder with depressed moods. Id. at ¶ 13. At the time of his hire at the VA, Mr. McCray was classified as a disabled veteran rated at thirty percent disabled. Id. at ¶ 10. As of February 2013, Mr. McCray's disability rating was 100 percent. Id. at ¶13.

         In December 2010, Dr. Erin Williams interviewed for the Program Manager position at the VA. Compl. ¶ 20. Mr. McCray was on the interview committee and participated in the decision to hire her into the position as his supervisor. Id. In one of the first department meetings with Williams as Program Manager, Williams looked at Mr. McCray and told him that she did not trust his eyes. Id. at ¶ 22. She then proceeded to grab her sweater and pull it tight around her front. Id. Williams is a white female. Id. at ¶ 21.

         About six months after Williams became Mr. McCray's supervisor, she required him to undergo a peer review because a veteran on Mr. McCray's caseload died while Mr. McCray was on vacation. Id. at ¶ 24. A peer review is a review of the paperwork about a particular patient by another peer. Id. at ¶ 26. Instead of being conducted by another mental health case manager, Mr. McCray's peer review was conducted by the VA Homeless Veterans Program. Id. at 26-27. The review suggested that Mr. McCray's care of the veteran was inappropriate because the veteran should have been relocated from his housing prior to his death. See Id. at ¶ 27.

         Ultimately, Mr. McCray was absolved of any wrong-doing in the veteran's death because the veteran had overdosed instead of dying from the heat in his home. See Id. ¶ 28. Subsequently, Mr. McCray filed an equal employment opportunity (EEO) complaint because “previously when other veterans had died in their homes, his non-African-American co-workers were not subjected to a peer review.” Id. Mr. McCray identified Williams as the Responding Management Official who was responsible for the alleged discrimination against him. Id. at ¶ 31.

         As part of the settlement of his first EEO complaint, Mr. McCray was promised a promotion to a position at a GS-12 level by Mental Health Division Manager Dr. Gibson, who charged Williams with the responsibility for making sure Mr. McCray got the promotion. Compl. ¶¶ 32-33. After Dr. Gibson retired, Williams conveyed to Mr. McCray that in order to get the promotion approved, she had to work with Human Resources to get his position description updated. Id. at ¶¶34-5. Williams later told Mr. McCray that she was having problems with the promotion, prompting Mr. McCray to request a meeting with the head of Human Resources. See Id. at ¶ 38.

         In May 2013, Mr. McCray attended a meeting with Williams and Human Resources personnel where he learned that Williams did not update or change his position description in any way before submitting it to Human Resources. See Id. at ¶¶ 39-43. Based on the position description that Williams submitted, Human Resources determined that Mr. McCray did not perform work at a GS-12 level and was not eligible for the position. See Id. at 44-47.

         On July 12, 2012, Mr. McCray made his first request for a reasonable accommodation for his disabilities. He verbally requested a reasonable accommodation from Williams relating to the van he was required to drive because the van was hurting his left knee, which had service-connected disability rating. Compl. ¶ 50. Mr. McCray was referred to the ergonomics department. The following month, Mr. McCray got an appointment set up with an ergonomics specialist to evaluate the van. On October 19, 2012, the ergonomics specialist assessed that the “knot” on Mr. McCray's left knee seemed to be caused by the lack of leg room. Id. at ¶ 53.

         On December 12, 2012, Mr. McCray was offered a replacement van, which he indicates was worse than the original as it had a cracked windshield, no back brakes, and was too small. See Id. at ¶57. Mr. McCray repeatedly asked Williams when he would get a better van, but it wasn't until June 19, 2013, nineteen days after he told Williams that he was going to file an EEO complaint about the situation, that he got a safe replacement van. See Id. at ¶ ¶ 59-60.

         Mr. McCray filed his second EEO complaint on August 6, 2013, based on the failure to promote to a GS-12 grade level and the failure to accommodate his disabilities by supplying him with a better van. Complaint ¶ 62. On September 6, 2013, the same day Williams was notified that Mr. McCray filed a complaint, Mr. McCray had an interaction with a peer counselor who took Mr. McCray's instructions as “threatening” and reported it to Williams. See Id. at ¶¶ 63-6. Williams contacted Mr. McCray to “get to the bottom of” what Mr. McCray said to the peer counselor. Id. at ¶68. In the course of the conversation, Williams called Mr. McCray “defensive and loud” in reference to his sonorous voice, and proceeded to yell at him. See Id. at ¶¶ 70-4.

         Although Mr. McCray was never disciplined for the incident with the peer counselor, he learned that he received a reduction in his performance evaluation from “outstanding” to “excellent” based on that incident and one other in which a white female claimed that he was being disruptive by being loud in the hallway. Compl. ¶ 77. For three years prior, Mr. McCray had received an “outstanding” rating in his performance ...


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