Labor & Employment Law Daily Wrap Up, DISCRIMINATION—DISABILITY—7th Cir.: VA’s alternate accommodation for employee’s scooter was reasonable given pandemic-related constraints, (Jul 8, 2025)

By Tulay Turan, J.D.

The VA did not leave the employee without an accommodation.

Affirming a district court’s grant of summary judgment in the Secretary of Veterans Affairs’ favor on an employee’s Rehabilitation Act non-accommodation claim, the Seventh Circuit found the VA offered an alternate, reasonable accommodation after it rescinded the original accommodation due to COVID-19 prevention measures. Although the alternate accommodation—a designated parking spot that was near storage space for his scooter—did not include his request for locked storage, it was reasonable considering the pandemic’s change in circumstances (Bourke v. Collins, No. 24-2221 (7th Cir. July 7, 2025)).

The employee, who is disabled, walked with a cane, and used a mobility scooter at work. He worked in Building 200 of a VA hospital. In 2019, the VA granted his request for a reserved parking spot behind that building to shorten his walk to a locked room where he kept his scooter overnight. Each day, he parked in his reserved spot, entered Building 200’s rear entrance, and retrieved his scooter.

COVID-19 screening. In March 2020, in response to the COVID-19 pandemic, the VA implemented several precautionary measures, including requiring employees to enter through designated entrances and receive screening for symptoms. Although the employee’s usual entrance at the rear of Building 200 was not among those approved, he continued to use it and then went to the designated screening area. Thereafter, the hospital announced that rear entrance would be locked.

Request for new accommodation. The employee requested a new accommodation: a parking space near the approved emergency room entrance to Building 200. The VA believed the request was unreasonable because there were no suitable storage places with locking doors near the emergency room, and an unassigned handicap spot would have to be redesigned. The hospital also was concerned it could not stop people from parking in the space reserved for him.

Alternate accommodation. An alternate accommodation was offered to the employee—a designated parking spot near Building 1. That building had an approved entrance with screening and a storage space for his scooter in the Patient Advocate Department. Although the storage space did not have a locked room, the space was secluded, out of public view, and saw little to no activity. Other employees also stored their scooters there. The employee, however, rejected the accommodation because he thought his scooter could be stolen if not stored in a locked room.

Prior proceedings. The employee rejected the alternate accommodation and sued the Secretary of Veterans Affairs in his official capacity under the Rehabilitation Act. He claimed the VA failed to reasonably accommodate his disability by rescinding his previous reasonable accommodation. He sought damages for the pain and suffering attributable to his extra walking.

The district court granted the VA’s motion for summary judgment, finding the alternate accommodation, the parking space in front of Building 1, was not too far from the scooter storage space in the Patient Advocate Department. In addition, the court found no evidence of a significant risk that his scooter was likely to be stolen. The court also rejected his argument that the VA could not alter the reasonable accommodation it provided to an employee in response to a changing circumstance. The employee filed this appeal.

Reasonable accommodation. Affirming the district court’s grant of summary judgment in the VA’s favor, the Seventh Circuit found the VA offered the employee an alternate, reasonable accommodation, and no reasonable jury could conclude otherwise. On appeal, the employee argued the alternate accommodation was unreasonable because he had no place to safely store his scooter. The appeals court disagreed, finding that the storage area was out of view from the public, not in a common area, and saw relatively little after-hours traffic. Other employees stored their scooters there without problems. A key was even left overnight in another scooter and that vehicle was not stolen. “Considering the pandemic-related constraints on the VA at the time, this alternate accommodation was reasonable,” the court wrote.

Interactive process. Turning to the issue of whether the VA and the employee engaged in an interactive process to determine a reasonable accommodation, the court found the VA’s unilateral retraction of his accommodation without conferring with him caused the process to break down. However, that alone, the court said, was not enough to prove a violation of the Rehabilitation Act. “Even if the VA acted too quickly and without conferring with [the employee], the result was a reasonable, alternate accommodation during a pandemic,” the court wrote.

No new rule. Finally, the court rejected the employee’s suggestion to create a new rule, which would require that any time an employer alters an accommodation, for any reason, the employer must show an undue hardship. That proposed rule would strip employers of their power over accommodations, the court concluded.

The case is No. 24-2221.

Judge: Brennan, M.

Attorneys: Joel A. Flaxman (Law Office of Kenneth N. Flaxman) for David Bourke. Nicole S. Flores, Office of the U.S. Attorneys, for Douglas A. Collins.

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