United States District Court, E.D. Wisconsin
DECISION AND ORDER GRANTING DEFENDANT'S MOTION TO
E. JONES UNITED STATES MAGISTRATE JUDGE.
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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
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