What if an entity slow walks the reasonable accommodation process with the hope that the person with the disability will, for example, graduate, age out of the program, simply go away? Is an unreasonable delay in granting a reasonable accommodation actionable under the ADA? Two cases out of the jurisdiction of the Seventh Circuit say that it is. It is interesting that it is two cases from Illinois as the Seventh Circuit is not generally speaking, particularly generous to people with disabilities with the exception of mandatory reassignment, which we discussed here, and unreasonable delay. The cases of the day are McCray v. Wilkie decided by the Seventh Circuit on July 16, 2020, here, and DiFranco v. City of Chicago decided by the Northern District of Illinois on March 7, 2022, here. As usual, the blog entry is divided into categories and they are: McCray facts taken from the opinion; McCray’s reasoning that a delay in providing an adequate replacement van was actionable; McCray’s reasoning with respect to failing to reassign plaintiff or give him a new office; DiFranco facts taken from the opinion; DiFranco’s reasoning that failure to accommodate claims can proceed; DiFranco’s reasoning that the ADA and the Illinois Human Rights Act discrimination claims get tossed; and McCray DiFranco thoughts/takeaways . Of course, the reader is free to concentrate on any or all of the categories.



McCray Facts


McCray is an employee of the Department of Veterans Affairs (“VA”). McCray worked at the Milwaukee VA Vet Center as a readjustment counselor from July 1997 until September 2000, when he left for 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 that capacity, McCray provides a variety of support services for military veterans, among them engaging in one‐on‐one counseling (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.


McCray alleges that he was subject to multiple forms of workplace discrimination. Two of the three claims he has pursued on appeal are claims that the VA failed to accommodate his disabilities; the third is a disparate treatment claim positing that other VA employees received more favorable accommodations than he did based on their race. (McCray is African American; the comparators are white women.) No. 19‐3145 3


McCray served in the Army for a period of eight years in the 1980s (achieving the rank of Sergeant prior to his honorable discharge), and in the course of his service sustained injuries to his big toes, ankles, knees, lower back, and shoulders. He also sustained mental injuries and has been diagnosed as having an adjustment disorder with depressed moods. As of February 2013, his VA disability rating was 100 percent. In addition to his service‐related disabilities, McCray suffers from hypertension, arthritis, diabetes, sarcoidosis (which is in remission), and post‐traumatic stress disorder (“PTSD”). McCray’s physical disabilities have a substantial negative impact on his ability to bend, stoop, climb, reach, twist, carry, sleep, and walk; pain attributed to McCray’s arthritis also causes him to experience difficulty with concentration. His mental disabilities likewise affect his ability to concentrate and in addition his breathing ability; they also contribute to a sense of extreme fatigue.


In July 2012, McCray asked his supervisor, Dr. Erin Williams, that the van he was using to transport VA clients to their appointments be replaced, because the van was hurting his knee. Since his return to the VA in 2004, McCray had not previously needed an accommodation in order to perform his duties. After a preliminary meeting between McCray and an ergonomics employee in August, the van was evaluated in October by a specialist, who concluded that the “knot” on McCray’s knee seemed to be caused by a lack of leg room in the van. (McCray is 6 feet 3 inches tall and weighs 390 pounds.) In November, the van began to “buck and jerk” in traffic. Although the motor pool evaluated the van and told McCray they could find nothing wrong, a co‐worker who drove the van one day experienced the same problem and told McCray the van was unsafe. In December, he was offered a temporary replacement van which he eventually accepted, but the replacement van allegedly had a cracked windshield, no rear brakes, inoperable power steering and horn, and was too small: McCray described it as worse than the original. McCray continued to ask for an appropriate replacement van as he had since he first made the request in July, but he did not get it until June 2013, 19 days after he told Williams that he was going to file an EEO complaint over the matter. In 2014, shortly after a white female coworker complained about her van bucking and jerking, all of the case managers received new vans.


In August 2013, McCray filed a charge (his second) with the Equal Opportunity Employment Commission (“EEOC”) complaining that he had improperly been denied a promotion to a higher grade level and that the VA had not reasonably accommodated him when he had requested a replacement van.


In October 2013, McCray experienced difficulty concentrating at work, which he attributed to various acts of discrimination and retaliation committed by co‐workers in the wake of the charges he had filed with the EEOC. He was initially granted a two‐week leave of absence, after which he returned to work and suffered a series of panic attacks. He asked that he be reassigned to another position as a reasonable accommodation; he also was prescribed (and granted) a second leave of 30 days. The following month, he was advised that the VA was unable to find him a reassignment.


In response, McCray indicated that he could probably manage to continue working without reassignment if he were to be given an office on a lower floor as an accommodation to his disabilities. That request was denied, notwithstanding the fact that there were vacant offices two floors down in the building. By contrast, when a white female co‐worker requested in February or March 2014 that her office be moved due to a medical condition, her request was granted.



McCray’s Reasoning That a Delay in Providing an Adequate Replacement Van Was Actionable


  1. Rehabilitation Act requires a federal employer to reasonably accommodate the known physical and mental disabilities of a qualified employee.
  2. The Rehabilitation Act incorporate the standards of the ADA when determining whether an employer had discriminated against an employee. Therefore, cases under both statutes are looked to in evaluating an employer’s compliance with that duty.
  3. Plaintiff alleged that he had a variety of physical and mental conditions that could obviously affect major life activities. He also alleged that prior to 2012, he had been able to perform the essential functions of the job without any accommodations, and that all he needed to continue was a new van to resolve the difficulty have begun to experience with his knee.
  4. An unreasonable delay in providing an accommodation for an employee’s known disability can amount to a failure to accommodate his disability that violates the Rehabilitation Act.
  5. Whether a particular delay qualifies as an unreasonable one necessarily turns on the totality of the circumstances, including but not limited to looking at such factors as: 1) the employer’s good faith in attempting to accommodate the disability; 2) the length of the delay; 3) the reason for the delay; 4) the nature, complexity, and burden of the accommodation requested; and 5) whether the employer offered alternative accommodations.
  6. Plaintiff informed his supervisor that the van he was driving was causing him pain when he was driving and an ergonomics specialist agreed that he needed a different van. Replacing the van was not an especially complex or burdensome accommodation since new vans were given to all counselors in the following year. Plaintiff also raised the issue at weekly staff meetings with his supervisor, and yet the only interim accommodation he was offered was a van that was even worse in material respects.
  7. The employer had no dialogue with the plaintiff about what else could be done and on what timeline. Such a lack of dialogue could be understood to violate the employer’s duty to engage in the interactive process with its employee to arrive in an appropriate accommodation. It is also evidence of the employer’s lack of good faith.
  8. None of the other cases cited by the defendant, which were summary judgment matters, suggest that a delay in granting a reasonable accommodation of any particular duration will be invariably reasonable regardless of the surrounding circumstances.


McCray’s Reasoning with Respect to Failing to Reassign Plaintiff or Give Him a New Office


  1. It is unclear whether the failure to reassign or to give plaintiff a new office is a failure to accommodate claim or a retaliation claim.
  2. Such confusion can be cleared up because the case is remanded for further proceedings and plaintiff can then clarify and support that claim.


Di Franco Facts Taken Directly from the Opinion


Marco suffered from cystic fibrosis, a permanent and progressive lung disease, and cystic fibrosis-related diabetes. Doc. 1 at ¶ 9. At the time of his death, he was employed by the City as a CPD police officer. Id. at ¶ 1. Marco informed the City of his cystic fibrosis and cystic fibrosis-related diabetes when he began working for CPD in May 1998. Id. at ¶ 11. In 2005, Marco was assigned to the Narcotics Division, which required him to work at CPD’s Homan Square facility and in the field. Id. at ¶¶ 12-13.

On March 9, 2020, in response to the COVID-19 outbreak, the Governor of Illinois issued a Disaster Proclamation, and on March 13, the President declared a National Emergency. Id. at ¶¶ 19, 21. COVID-19 can lead to “serious, long-term complications in some cases, including inflammation and clogged air sacs in the lungs, restriction of the body’s oxygen supply, blood clots, organ failure, liver damage, intestinal damage, heart inflammation, neurological malfunction, and acute kidney disease.” Id. at ¶ 15. According to the Centers for Disease Control and Prevention (“CDC”), individuals with underlying medical conditions, such as lung disease and diabetes, face an increased risk of severe illness and death from COVID-19. Id. at ¶ 16.

On March 19, 2020, Marco received an email from CPD’s Chief Communications Officer advising all CPD employees of the CDC’s guidance that individuals with “health conditions like heart disease, diabetes, and lung disease are more likely to have serious illness” if they contract COVID-19. Id. at ¶ 22; Doc. 1-2 at 9. The email instructed employees who “believe[d] that [their] . . . medical condition places [them] at a higher risk of serious illness from COVID-19” to “contact the Medical Section of the Chicago Police Department to discuss next steps.” Doc. 1 at ¶ 22; Doc. 1-2 at 9. The Medical Section oversees and approves medical and sick leaves for CPD employees. Doc. 1 at ¶ 23. The email further instructed “[s]worn [m]embers” like Marco to “have your healthcare provider provide documentation related to your condition to medical.section@chicagopolice.org,” and stated that, “[o]nce your documentation is reviewed by the Medical Director, you will be contacted by Medical Services staff for instructions.” Id. at ¶ 25; Doc. 1-2 at 9.

Less than two hours after Marco received the email, his doctor sent a letter to the Medical Section stating that Marco had cystic fibrosis and cystic fibrosis-related diabetes. Doc. 1 at ¶ 26; Doc. 1-2 at 11. The letter further stated that, “[w]ith this underlying lung condition and these comorbidities, [Marco] is at higher risk of developing serious illness from COVID-19,” and asked that he “be given the opportunity to work remotely or be provided with alternative accommodations to distance himself from others while at work.” Doc. 1 at ¶ 26; Doc. 1-2 at 11.

While that request was pending, Marco was required to and did continue reporting for work at Homan Square and in the field. Doc. 1 at ¶ 27. On March 20, Marco called the Medical Section about his accommodation request and was told that someone would call him back. Id. at ¶ 28. He did not receive a call back that day. Id. at ¶ 29. On March 21, Marco called the Medical Section six times, but nobody answered his calls, and he could not leave a voicemail because the Medical Section’s voicemail inbox was full. Id. at ¶¶ 30-31. Also on March 21, Marco emailed the Medical Section a signed “Employee Self-Certification of Medical Condition” form certifying that he had a serious chronic medical condition placing him at an increased risk for contracting or suffering from complications of COVID-19. Id. at ¶ 32; Doc. 1-2 at 13. Later that day, a non-medical member of the Medial Section told Marco that a doctor employed by the City would review his accommodation request and contact him. Doc. 1 at ¶ 33. No City doctor contacted Marco on either March 21 or March 22. Id. at ¶ 34.

On March 23, Marco received a call from his commanding officer, Commander Ronald Kimble, who had learned from CPD’s Human Resources Department about his accommodation request. Id. at ¶ 36. Kimble “berated” Marco for submitting the request and accused him of trying to draw attention to himself. Id. at ¶ 37. Marco explained the severity of his cystic fibrosis and cystic fibrosis-related diabetes, and said that his sister, who had the same conditions, had died after being infected by a communicable virus. Id. at ¶ 38. Kimble continued to berate Marco, telling him to retire or to go on disability instead of seeking medical leave or placement on “sworn medical roll,” which “has a negative stigma” at CPD. Id. at ¶ 39. Kimble then ordered Marco to advise his sergeant, Sergeant Mark Vanek, of his conditions and of his request for an accommodation, which Marco did that day. Id. at ¶¶ 40-42.

After speaking to Vanek, Marco went to the Medical Section to inquire about the status of his accommodation request, as he still had not been contacted by a City doctor. Id. at ¶ 43. Marco was again advised by non-medical staff that a City doctor would review his request and contact him. Id. at ¶ 44.

From March 19 through March 27, despite his continued inquiries, Marco was not contacted by a City doctor regarding his accommodation request. Id. at ¶¶ 45-46. During that time, as required by CPD policy, Marco continued to report to work at Homan Square, as he had neither received information about his accommodation request nor received clearance from the City to take medical leave. Id. at ¶¶ 45, 47. To access the Homan Square facility, Marco had to place his palm on a biometric palm scanning system, which was used by hundreds of individuals per day and was not sanitized between uses. Id. at ¶¶ 48-51. Marco also had to take communal elevators, in which he came into contact with individuals from other CPD departments who were not wearing masks. Id. at ¶ 52.

On March 28, Marco began experiencing COVID-19 symptoms. Id. at ¶ 53. Around the same time, he was told that three individuals with whom he had been in contact at Homan Square during the previous week had tested positive for COVID-19. Id. at ¶ 54. At least one other detective in the building had also tested positive. Ibid. The next day, on March 29, Marco tested positive for COVID-19. Id. at ¶ 55. Between March 29 and April 2, Marco continued to attempt to contact CPD and the Medical Section about his accommodation request, but he was ignored. Id. at ¶¶ 57, 59, 61. He was never contacted by a City doctor about his accommodation request, nor was his request approved. Id. at ¶ 60. The City and CPD did grant accommodation requests made by other officers and employees, some of which had been submitted after Marco’s. Id. at ¶ 62.

Marco died on April 2 of COVID-related complications. Id. at ¶ 56. CPD classified his death as being in the line of duty. Id. at ¶ 58. On September 18, 2020, in her capacity as the independent administrator of Marco’s estate, Maria cross-filed charges with the Illinois Department of Human Rights (“IDHR”) and the U.S. Equal Employment Opportunity Commission (“EEOC”), alleging ADA and IHRA violations. Id. at ¶ 5. The IDHR and EEOC sent Maria right-to-sue letters, id. at ¶¶ 6-7, after which Maria timely filed this suit.


DiFranco’s Reasoning That Failure to Accommodate Claims Can Proceed

  1. Under the ADA, discrimination includes not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability in the absence of an undue hardship on the operation of its business.
  2. Establishing a claim for failure to accommodate, means that a plaintiff has to show: 1) he is a qualified individual with a disability; 2) the employer was aware of his disability; and 3) the employer failed to reasonably accommodate the disability.
  3. An unreasonable delay in providing an accommodation for an employee’s known disability can amount to a failure to accommodate his disability.
  4. Citing to McCray, above, the court said that whether a particular delay qualifies as unreasonable turns on the totality of the circumstances and cited to the McCray factors.
  5. Plaintiff’s allegations give rise to a plausible inference that the City’s delay in responding to plaintiff was unreasonable given the circumstances presented by Covid-19 pandemic and was also in bad faith. In particular, plaintiff alleged: 1) that the medical section failed to respond to his request for an accommodation despite his repeated and diligent effort to follow up on his initial request; 2) plaintiff also alleged that the City was aware that Covid-19 posed serious health risk individuals with lung disease and diabetes; 3) the City knew that plaintiff suffered from those conditions; 4) Cmdr. Kimble berated him for requesting an accommodation; and 5) the City managers in the pertinent timeframe did grant other employees’ accommodation requests. Therefore, these allegations are such that the court cannot hold on the pleading that the City’s failure to take action on plaintiff’s accommodation request within 10 days was not unreasonable.


DiFranco’s Reasoning That the ADA and IHRA Discrimination Claims Get Tossed

  1. failure to accommodate claims are separate and distinct under the ADA from claims alleging disparate treatment because of a disability.
  2. The essence of a failure to accommodate claim is that the plaintiff asked to be treated differently based on his disability-to be allowed to work remotely or socially distant from his co-workers-but that the Chicago Police Department failed to grant his request. Such allegations cannot be repackaged as a discrimination claim because the claim’s focus is that the Chicago Police Department did not treat plaintiff differently based on his disability.
  3. Plaintiff’s allegation that she was berated for requesting an accommodation by a commanding officer does not support a discrimination claim either because a single hostile call from a supervisor does not rise to the level of materially adverse employment action.

Separately, the defense argued that the Illinois wrongful death act was preempted by the Illinois pension code, but the court wasn’t buying it.





Thoughts/Takeaways From McCray and DiFranco


  1. In the Seventh Circuit, a failure to accommodate claim is a separate cause of action.
  2. Slow walking a delay in processing a reasonable accommodation request is a very bad idea. Even a short amount of time for processing the request may be an unreasonable delay as seen in DiFranco.
  3. McCray does a good job of laying out factors that can be used to figure out whether an unreasonable delay in granting a reasonable accommodation exists.
  4. A failure to accommodate claim cannot be repackaged as a disparate treatment claim without more.
  5. The ADA definitely applies to hostile work environment, see this blog entry for example, but what is a hostile work environment can be a moving target.
  6. You run into trouble when you treat people in protected groups differently from other protected groups in a way that doesn’t make any sense, such as being selective about when you grant accommodations.
  7. The Rehabilitation Act and the ADA get treated the same way. There are differences between the two laws (§504 causation, emotional distress damages if it is a matter involving title II or title III, and program accessibility for example), but the differences are not many.
  8. Undue hardship can either be financial (very difficult to show), or operational (best to think of that as a fundamental alteration).
  9. A bad idea to prorate an employee for requesting a reasonable accommodation. Such conduct raises the issue of hostile work environment. It also raises the issue of retaliation as well.
  10. Otherwise qualified (Rehabilitation Act), and qualified (ADA), mean the same thing.
  11. Remember the do’s and don’ts of the interactive process, here, and be sure to engage in the interactive process.
  12. While both of these cases discussed in this blog entry are title I cases, I see no reason why an unreasonable delay being actionable could not extend to title II and title III cases as well.