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No. 14-1299
YASMIN REYAZUDDIN,
Plaintiff Appellant,
v.
MONTGOMERY COUNTY, MARYLAND,
Defendant Appellee.
----AMERICAN COUNCIL OF THE BLIND; AMERICAN CIVIL LIBERTIES
UNION; ASSOCIATION ON HIGHER EDUCATION AND DISABILITY;
CIVIL RIGHTS EDUCATION AND ENFORCEMENT CENTER; DISABILITY
RIGHTS ADVOCATES; LEGAL AID SOCIETY EMPLOYMENT LAW
CENTER; MARYLAND EMPLOYMENT LAWYERS ASSOCIATION; NATIONAL
ASSOCIATION
OF
THE
DEAF;
NATIONAL
DISABILITY
RIGHTS
NETWORK; PUBLIC JUSTICE CENTER, INC.,
Amici Supporting Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt.
Deborah K. Chasanow, Chief District
Judge. (8:11-cv-00951-DKC)
Argued:
Before TRAXLER,
Judges.
Chief
Judge,
Decided:
and
DIAZ
and
THACKER,
Circuit
center
County,
using
employees.
The
Maryland,
software
County
opened
that
did
was
not
new,
consolidated
inaccessible
transfer
to
employee
blind
Yasmin
position
there.
Reyazuddin
challenged
the
Countys
29
U.S.C.A.
794
(West
2014),
or
Title
II
of
the
It also requires an
the
essential
accommodation.
that
providing
functions
of
job
with
reasonable
accommodation
would
constitute
an
undue
hardship.
We find that genuine issues of material fact remain as to
(1) whether Reyazuddin could perform the essential job functions
of a call center employee; (2) whether the County reasonably
accommodated her; and (3) if the County did not, whether its
failure
to
Accordingly,
do
we
so
may
be
reverse
excused
the
because
district
3
of
courts
undue
order
hardship.
granting
summary
claims.
judgment
to
the
County
on
Reyazuddins
Section
504
I.
A.
In
early
2008,
as
part
of
its
$80
million
Technology
The
called
Siebel
Public
Sector
8.1.1,
licensed
from
Oracle.
with other Oracle software already used by the County, and was
cost-effective
as
commercial-off-the-shelf,
as
opposed
to
custom, product.
The Siebel software can be operated in two modes: highinteractivity
or
standard-interactivity.
High-interactivity
mode
is
accessible 1
not
ActiveX,
interpret.
technology
because
that
it
is
screen
written
reader
in
Microsoft
software
cannot
clicks,
and
by
hearing
synthesized
speech
or
using
Countys
license
allows
it
to
run
the
software
in
either mode.
employees
operate
to
the
software
in
high-interactivity
mode
Doing so does
employees
use
three
features--the
CTI
In this
Toolbar,
The
County
expects
employees
operating
in
highinteractivity mode to handle fifty-five to seventy calls per day
with an average call time of three minutes plus ninety seconds
to finish their after-call work.
Although we do not know how
(or if) operating a call center in standard-interactivity mode
affects productivity, the record shows that four other U.S. call
centers are accessible by operating in both modes, operating in
standard-interactivity mode only, or using a custom solution.
5
SmartScript,
and
Response--that
are
not
available
in
standard-interactivity mode.
The CTI Toolbar integrates MC311s phone system and the
Siebel
software.
Employees
use
the
CTI
Toolbar
to
make
SmartScript
generates
pop-up
window
containing
911.
Employees
then
close
SmartScript
and
the
service
list
question.
of
articles
Once
to
help
employees
have
employees
answer
identified
the
the
best
J.A. 48788. 3
Oracle
told
the
County
that
the
CTI
Toolbar,
that
the
it
would
accessible
cost
through
$200,000
to
make
standard-interactivity
Siebel
mode,
software
without
those
three features.
Over
the
next
sixteen
months,
the
County
received
subcontractor
hired
to
configure
and
implement
the
A second
option
assigned
service
to
give
requests
back
would
office
cost
employees
$65,625.
By
access
April
to
2011,
these
All the
B.
Since 2002, Yasmin Reyazuddin has worked in the Countys
Department of Health and Human Services, most recently as one of
five Information and Referral Aides.
questions
from
Departments
County
services,
residents
referrals
to
who
called
County
about
programs,
the
and
the
Reyazuddin also
in
May
2008
sixteen
months,
Referral
Aides
During
this
from
her
Reyazuddin
received
time,
the
then-supervisor.
and
updates
County
the
on
was
other
MC311s
Over
the
next
Information
and
general
determining
how
progress.
to
staff
not blind.
also
told
Calderone
that
she
had
scheduled
leave
from
Calderone
emailed this information to Leslie Hamm, then-Manager and nowDirector of MC311, who responded that the Countys Disability
Program
Manager,
Ricky
Wright,
suggested
that
the
date
of
J.A.
1046.
One aide transferred as scheduled on November 9.
By the
time Reyazuddin returned from her trip, the other three aides
had
also
transferred
to
MC311.
But
Reyazuddin
was
not
by
answering
the
Department
information
line
until
February 4, 2010, when the information line was switched off and
calls were transferred to MC311.
nothing to do.
handle Manna Food Center referrals, which allow eligible lowincome individuals to receive food from a private, non-profit
food bank.
full-time work.
In
March
Departments
Intake. 4
2010,
Aging
For
the
Reyazuddin
was
and
Disability
next
six
assigned
Unit
months,
to
for
work
Adult
Reyazuddins
in
the
Services
supervisors
However,
the
County
to
make
the
software
accessible.
Wright
County
employees
collective
bargaining
agreement.
J.A.
1045.
From 2010 to 2012, Reyazuddin had the same salary, grade,
and benefits as she did before MC311s launch.
2012,
Reyazuddin
and
eight
other
applicants
were
Reyazuddin was
504
of
alleges
the
that,
in
2009,
Rehabilitation
Act
the
by
County
(1)
violated
failing
to
MC311
along
with
her
coworkers.
Reyazuddin
also
alleges
retained
an
expert,
Temeko
Richardson,
to
would
be
compatible
with
screen
reader
The custom
software.
to
implement
the
least
expensive
accessibility
MC311s
By late
January 2011, the County had spent about $11.4 million on MC311.
But the County estimates that MC311 has saved it $10.3 million
in fiscal years 2010 and 2011.
Following a period of discovery, both parties moved for
summary
motion
judgment.
and
The
denied
district
court
Reyazuddins.
granted
Regarding
the
the
Countys
failure-to-
perform
the
essential
functions
of
the
[MC311]
job.
comparable
employment.
Id.
at
551.
The
court
also
Reyazuddins
Id. at 549.
not
disparate-treatment
transferring
her
to
MC311,
claim
based
the
district
on
the
court
determined that the claim rose and fell with the failure-toaccommodate claim; because the County had shown as a matter of
law
that
accommodating
Reyazuddin
at
MC311
was
an
undue
intent.
Id. at 554-55.
Id.
at 557-58.
Reyazuddin appealed.
II.
We
order.
review
de
novo
district
courts
summary
judgment
Id.
The pertinent
Anderson
The evidence
with
all
reasonable
inferences
drawn
in
that
partys
Jacobs
v. N.C. Admin. Office of the Courts, 780 F.3d 562, 569 (4th Cir.
2015).
13
qualified
individual
with
disability . . .
shall,
29 U.S.C.A. 794(a).
Relevant to this
Id. 794(b)(1)(A).
Id.
discriminat[ing]
against
qualified
individual
on
the
known
physical
or
mental
limitations
of
an
otherwise
business
12112(b)(5)(A)
of
such
(2012).
covered
A
entity.
qualified
42
individual
U.S.C.
is
an
14
Id. 12111(8).
establish
prima
facie
case
on
her
failure-to-
perform
the
essential
functions
of
her
job
with
accommodation.
29
U.S.C.A.
794(a);
Wilson
v.
Dollar Gen. Corp., 717 F.3d 337, 345 (4th Cir. 2013).
Even if Reyazuddin establishes her prima facie case, the
County avoids liability if it can show as a matter of law that
the proposed accommodation will cause undue hardship in the
particular circumstances.
Scis., 669 F.3d 454, 464 (4th Cir. 2012) (quoting U.S. Airways
v.
Barnett,
535
U.S.
391,
401-02
(2002)).
Courts
have
stage,
accommodation
the
seems
employee
reasonable
15
need
on
its
only
face,
show
and
that
an
then
the
employer
must
show
special
(typically
case-specific)
Barnett, 535
U.S. at 401-02.
That
Reyazuddin
satisfied
the
first
two
elements
is
the
Reyazuddins
third
proposed
element,
the
accommodations
parties
are
dispute
reasonable
whether
and
what
16
A reasonable accommodation
of
prepared
job
are
written
essential,
and
description
if
an
before
employer
has
advertising
or
42
U.S.C. 12111(8).
We agree with the district court that a genuine issue of
material fact exists on this element.
two accommodations that she says will allow her to perform the
essential job functions of an MC311 employee: the County could
(1) configure its Siebel software to run concurrently in the
accessible standard-interactivity mode or (2) create a custom
workaround widget for the CTI Toolbar.
Reyazuddin supported the reasonableness of these proposals
through evidence from her expert, Temeko Richardson.
Richardson
accessible
by
operating
simultaneously
in
high-
with
all
third
call
center
in
Illinois
where
employees,
17
mode.
And
fourth
call
center
client
in
Pennsylvania
was
County
software
the
CTI
counters
in
that
the
Toolbar
its
decision
inaccessible
in
to
configure
high-interactivity
particular,
maximize[s
call
the
mode,
center
of
delivering
government
of
services
as
low
as
possible.
employees
operating
in
standard-interactivity
without
the
bells
and
whistles
of
the
high-
we
were
necessarily
willing
follow
configuration
is
to
that
an
credit
that
using
the
essential
assumption,
it
does
high-interactivity
job
function,
Even
not
software
particularly
in
County
also
argues
that
Reyazuddins
proposed
to
MC311s
most
frequent
call
contrary
Disability
to
the
Program
deposition
Manager,
the
estimated
testimony
Ricky
18
about
Wright,
of
the
that
Countys
Reyazuddin
J.A. 317.
Moreover,
perform
the
essential
job
functions
with
reasonable
accommodation.
2.
Turning to the fourth element of the failure-to-accommodate
claim,
Reyazuddin
argues
that
the
district
court
erred
by
by
reassigning
her
to
comparable
employment.
the
employer
accommodation.
may
provide
an
alternative
reasonable
ultimate
discretion
to
choose
between
effective
the
accommodation
that
is
19
easier
for
it
to
provide.)
provides
job
restructuring
and
reassignment
to
12111(9).
should
provide
Nonetheless,
meaningful
a
42
reasonable
accommodation
equal
employment
opportunity.
the
same
nondisabled
level
employees
of
performance
having
similar
as
is
skills
available
and
to
abilities.
benefits,
the
County
cobbled
together
an
assortment
of
example,
an
from
County
employee
shortly
before
email,
JoAnne
Calderone,
Manager
J.A. 1041.
for
In a
Planning,
Human
Services,
suggested
meeting
to
discuss
how
to
J.A.
primary
responsibility,
with
the
work
being
transferred
from
294-95;
Plaintiffs
Cross-Motion
for
Partial
Summary
J.A. 1015.
She
Id.
823,
833
(4th
1994)
(noting
that
reasonable
an
alternative
to
finding
that
Reyazuddin
did
not
establish a prima facie case, the district court held that the
County prevailed on its undue hardship defense as a matter of
law.
We cannot agree.
An employer is not liable under Section 504 if it can
demonstrate
hardship
on
that
the
the
accommodation
operation
of
21
[its]
would
impose
business.
an
42
undue
U.S.C.
12112(b)(5)(A).
action
Title
requiring
defines
significant
undue
difficulty
hardship
or
as
expense,
an
when
Id. 12111(10)(A).
County
was
entitled
hardship defense.
cost
of
$129,000
to
summary
judgment
on
its
undue
by
Reyazuddins
expert
as
Second,
the
court
Reyazuddin, 7 F. Supp. 3d at
explained
22
that,
as
result
of
MC311
would
be
altered
and
would
result
in
increased
maintenance and more downtime, which could spill over into the
customer service realm.
courts
analysis
Id.
improperly
weighed
conflicting
evidence,
did
the
Countys
expert,
Brad
Ulrich,
is
undisputed
experts.
The
that
both
evidence
Ulrich
therefore
and
sets
and
discredited
qualify
battle
of
as
the
23
personnel
resources
at
MC311
during
the
At the
projects peak, four Opus Group consultants were working for the
County on MC311; one consultant who worked 40 hours per week for
the County and spent 80% of his time doing maintenance of the
call center application testified that he was not too busy;
the County paid Opus Group $5,000 per week; and the County had a
Senior IT Specialist on staff who was certified as a Siebel
consultant.
standard-interactivity
mode
or
adopt
another
accessibility
solution.
Aside from cost, the district court credited the Countys
arguments
affect
that
the
the
overall
proposed
accommodations
operation
of
MC311,
could
result
negatively
in
increased
Supp.
3d
at
549.
judgment standard.
This
analysis
Reyazuddin, 7
misapplies
the
summary
in
high-interactivity
24
and
standard-
interactivity
mode
as
well
as
her
experts
opinion
that
the
work
at
users.
MC311
J.A.
without
909.
altering
Moreover,
the
experience
speculation
of
about
sighted
spillover
undue
hardship--the
accommodations.
Countys
Specifically,
the
budget
court
for
noted
reasonable
the
Countys
Allowing
the
County
to
prevail
on
its
undue
hardship
accommodations
and
thereby
always
avoid
liability.
See
42
U.S.C.
12111(10)(B)(ii)-(iii).
But
the
25
In
effect,
the
district
court
reduced
multi-factor
Rather, it is the
we
think
it
particularly
relevant
that
In that
other
call
See Am.
Council of the Blind v. Paulson, 525 F.3d 1256, 1272 (D.C. Cir.
2008) (affirming the entry of a declaratory judgment on Section
504 liability in part by finding that because other currency
systems
accommodate
Secretary[
of
implementing
the
an
the
needs
of
Treasury]s
accommodation
the
visually
burden
[to
in
make
impaired,
demonstrating
U.S.
paper
the
that
currency
elements
of
Reyazuddins
prima
facie
case
and
the
judgment
to
the
County
on
Reyazuddins
failure-to-
accommodate claim.
B.
Reyazuddins
disparate-treatment
claim,
related
to
the
her
sighted
colleagues,
overlaps
26
considerably
with
her
failure-to-accommodate claim.
was
excluded
from
that
employment
due
to
discrimination
claim,
the
first
As with the
element
here
is
undisputed.
The otherwise qualified element is the same as the third
element of the failure-to-accommodate claim because a qualified
individual
is
accommodation,
someone
can
who,
perform
the
with
or
essential
without
reasonable
functions
of
the
42
perform
the
essential
job
functions
with
reasonable
action
and
(2)
discrimination
based
solely
on
opened.
applied
the
burden-shifting
framework
from
McDonnell
Cir.
1995)
discrimination
(applying
claim).
The
this
framework
district
court
to
assumed
Title
without
Because the
28
Reyazuddin, 7 F. Supp.
of
summary
to
the
County
on
Reyazuddins
disparate-treatment claim.
III.
Reyazuddins final claim is that the County violated Title
II of the ADA by not hiring her to fill a vacancy at MC311.
Title
II
prohibits
discrimination
against
qualified
district
court
assumed
without
42 U.S.C. 12132.
deciding
that
Title
II
Reyazuddin, 7 F.
29
See Bd. of
Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356, 360 n.1
(2001) (acknowledging but not resolving the split).
Seventh,
Ninth,
and
Tenth
Circuits
have
held
The Second,
that
litigants
that
Title
discrimination
is
within
the
the
exclusive
ADA.
province
Elwell,
693
of
employment
F.3d
at
1314
& Water Conservation Dist., 133 F.3d 816, 820 (11th Cir. 1998).
Circuits
thorough
analysis
of
the
ADAs
text
and
the
phrase
services,
programs,
or
activities
in
the
public
rather
than
its
inputs,
such
as
employees.
And
programs,
or
activities.
Compare
29
U.S.C.A.
an
individual
with
disability
who,
with
or
without
42 U.S.C.
individuals
its
own
with
heading:
disabilities
Title
for
into
three
employment,
parts,
Title
each
II
for
Mary
Jo C., 707 F.3d at 169; Elwell, 693 F.3d at 1309; Zimmerman, 170
F.3d
at
1176.
diminish[],
To
read
Title
duplicate[],
even
II
to
cover
render[]
employment
superfluous
would
Title
I.
Title
Congress
II,
when
expressly
cross-referenced
mandating
the
standards
Title
that
I,
apply
but
to
29 U.S.C.A. 794(d).
This provides
F.3d at 1178.
Based on the text and structure of Title II and the ADA, we
agree
with
the
majority
of
circuits
to
have
considered
the
public
employment
discrimination
claims.
The
Eleventh
However,
history
is
inappropriate
when
the
text
of
the
as
well
as
the
agency,
must
give
effect
to
the
In
the
appellant
could
not
use
Title
II
to
bring
his
Instead, we
his claim against his state employer under both Section 504 of
the Rehabilitation Act and Title II of the ADA.
1262.
50 F.3d at
we
hold
that
J.A. 51-52.
public
employment
discrimination
claims may not be brought under Title II, we affirm the district
courts summary judgment order on Reyazuddins Title II claim. 8
IV.
For the reasons given, the district courts judgment is
affirmed in part and reversed in part, and the case is remanded
for further proceedings.
AFFIRMED IN PART,
REVERSED IN PART,
AND REMANDED
35