United States District Court, D. Maryland
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For Yasmin Reyazuddin, Plaintiff: Joseph B Espo, Brown Goldstein and Levy LLP, Baltimore, MD; Timothy R Elder, TRE Legal Practice, LLC, Baltimore, MD.
For Montgomery County, Maryland, Defendant: Patricia Lisehora Kane, Office of the Montgomery County Attorney, Rockville, MD.
For Array Information Technology, Inc., Movant: Russell James Gaspar, Cohen Mohr LLP, Washington, DC.
DEBORAH K. CHASANOW, United States District Judge.
Presently pending and ready for resolution in this disability discrimination case are the motion for summary judgment filed by Defendant Montgomery County, Maryland (" the County" ) (ECF No. 79), and the cross-motion for partial summary judgment filed by Plaintiff Yasmin Reyazuddin (ECF No. 89). Additionally, both parties have filed motions to seal certain exhibits. (ECF Nos. 81 and 91). The issues have been fully briefed and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the
following reasons, Defendant's motion for summary judgment will be granted and Plaintiff's cross-motion for partial summary judgment will be denied. Defendant's motion to seal will be granted in part and denied in part. Plaintiff's motion to seal will be granted.
A. Factual Background
Plaintiff has been an employee of Montgomery County since 2002. She is blind. She is fluent in Urdu and Hindi and can conduct Braille translations. Beginning in January 2005, she worked as an Information and Referral Aide (" I& R Aide" ) in the County's Department of Health and Human Services (" DHHS" ). She was hired as a Grade 16. Her duties included answering phone calls from County residents who had questions about obtaining DHHS services, updating residents on their cases, and making needed referrals, including those to MANNA, the County's food bank. As Plaintiff is blind, she needs to use a screen reader to operate a computer. Plaintiff uses a program called Job Access With Speech (" JAWS" ) which Defendant purchased and installed on her work computer along with providing her with a Braille embosser. JAWS reads aloud speech printed on the computer. Screen readers like JAWS cannot necessarily read everything; the text on the screen must be in a readable code.
Numerous departments within the County's executive branch had call centers similar to the one Plaintiff worked in at DHHS. Beginning in early 2008, the County, in an effort to improve accountability, responsiveness, and efficiency, undertook a project to create a single County-wide non-emergency call center. This project eventually came to be known as " MC 311." This case centers around MC 311's technology and staffing.
1. MC 311's Technology and Initial Staffing
Mr. Thomas Street of the Office of the County Executive was the Project Sponsor for MC 311. He submitted an affidavit stating that the MC 311's technology had to be compatible with Oracle's Enterprise Resource Planning (" ERP" ) software the County had purchased in November 2008. (ECF No. 79-20 ¶ 8). Four vendors sought the County's business: Lagan, Active Network Solutions, AINS, and Oracle. ( Id. ¶ 9). The County ultimately chose to license Oracle's Seibel software on January 3, 2009 because of its compatibility with the ERP software and relatively low cost. ( Id. ¶ ¶ 10 and 15). It was a " Commercial Off the Shelf" (" COTS" ) product which meant it had already been developed and tested by the manufacturer and provided the benefit of limited configuration and thus limited cost. Mr. Street understood from Oracle that Seibel was accessible for users - i.e., county residents calling into the center - but did not know at the time that it was not accessible to employees. The decision to license from Oracle was made without the other three companies submitting formal proposals. (ECF No. 89-39, at 5, Trans. 14:1 - 15:4, 16:2-11, 19:3-5, Street Dep.).
The Oracle Seibel product licensed by the County was version 8.1.1. The County hired Opus Group, LLC to implement and maintain the Seibel system. Mr. John Park of Opus testified that he was not asked to take into account any of the requirements of the Americans with Disabilities Act (" ADA" ) or the Rehabilitation Act. (ECF No. 89-42, at 10, Trans. 110:21 - 111:10). The product has two modes: High Interactivity (" HI" ) and Standard Interactivity Plus (" SI" ). HI mode allows for more features, including dynamic editing, auto complete, drag and drop function
for attachments, implicit save, client-side validation, graphical flow designer, and message broadcast scroll bar. While HI mode has these additional features, they are not compatible with a screen reader, and thus not accessible to a blind employee. SI mode, however, is accessible but lacks these additional features. The County chose to use HI mode for the additional efficiencies it provides, although a representative of Opus testified that a call center could have employees working on both modes simultaneously. ( See ECF No. 79-34, at 11, Trans. 41:8-15, Park Dep.). In addition to the HI functions listed above, the County chose to utilize three additional features: Computer Telephony Integration (" CTI" ) toolbar, Smartscript, and Email Response. The CTI toolbar was the heart of the system. It is a mechanism for MC 311 Customer Service Representatives (" CSRs" ) to accept, transfer, and block calls while allowing management to monitor various metrics such as time spent on a call and time spent away from the system. Smartscript is a program that would give CSRs a pop-up screen to read to customers. Email Response is a program that allows CSRs to send emails to customers in response to a telephone call. None of these functions were accessible in either HI or SI mode when the County selected Seibel. There is no evidence as to the capabilities of any competitor's products.
Ms. Leslie Hamm, head of MC 311, described the work of a CSR. The CSR uses the CTI toolbar to indicate if he or she is available to receive a call. If so, an incoming call will be routed to him or her. The Smartscript program displays a script on the CSR's computer screen that he or she reads from. Within Smartscript is a field for the CSR to begin taking notes or to transfer the call to 911 if he or she realizes that is more appropriate. Once that has been determined, Smartscript is closed and the notes the CSR has taken are populated into the service request template. That template allows for the CSR to do a keyword search ( e.g., " pothole" ) to find relevant knowledge based articles. The CSR will select the most appropriate solution, which will route the issue to the corresponding department ( e.g., Department of Transportation for a pothole). The CSR will be given another script to read to the caller providing the case number and any other details, such as expected time to address the problem. Once the call is completed, the CSR uses his or her CTI toolbar to go into a state dubbed " call work," which is his or her opportunity to finish any paperwork on the just-finished call while preventing the system from sending the CSR another call. Once that work is complete, the CSR is expected to use the CTI toolbar to make him or herself available for another call and the process repeats. (ECF No. 79-28, at 18-19, Trans. 66:8 - 73:8). The CTI toolbar captures metrics upon which CSRs are evaluated. The expected average talk time is three minutes and the after-call work time is ninety seconds. Tier 1 CSRs are expected to handle sixty to seventy calls per day, while those in Tier 2 handle fifty-five to sixty-five calls per day. (ECF No. 79-14 ¶ ¶ 6 and 8, Hamm Aff.). Ms. Hamm represented that one of the most frequent calls received by MC 311 concerns the current location of County buses. The CSR uses an electronic map called Smart Traveler that has both a visual and textual component. Only the text portion is accessible to a screen reader. Additionally, some of the knowledge based articles direct the CSR to PDF files, some of which also cannot be read by a screen reader. ( Id. ¶ ¶ 10, 12).
Plaintiff first heard about MC 311 in May 2008 from her supervisor. She said that she hoped it would be accessible. (ECF No. 89-3, at 6-7, Trans. 61:12 - 62:7,
Plaintiff Dep.). When the software for MC 311 was purchased in January 2009, the County had not yet decided whether it would staff MC 311 with new employees, contract employees, or transfer current employees. (ECF No. 79-20 ¶ 15, Street Aff.). In the middle of 2009, it was determined that staffing would be accomplished by transferring current employees. According to Mr. Street, " [s]ometime thereafter, we learned that a blind employee was being considered for transfer." ( Id. ¶ 16; see also ECF No. 89-12, at 3, Trans. 22:21 - 23:10 (Ms. Hamm first learns of Plaintiff in July 2009)). In August 2009, Ms. Hamm visited Plaintiff at DHHS to observe her work. She communicated her observations to the Opus team in August 2009 and requested that " they investigate the feasibility, time and cost of making the necessary accommodations for Plaintiff to be a fully functional [CSR] at MC 311." (ECF No. 102-5 ¶ ¶ 9 and 11; ECF No. 102-17). It was expected that Plaintiff, along with the other I& R Aides would transfer to MC 311. Plaintiff went to MC 311 orientation in October 2009; Mr. Ricky Wright, the County's Disability Program Manager, gave her a walk through where she asked about the accommodations. In December 2009, the other I& R Aides transferred to MC 311; Plaintiff did not. During that time, the County was still exploring whether MC 311's technology could be made accessible to a blind employee and, if not, finding Plaintiff alternative employment. She stayed back at DHHS, answering calls for them as she had done before.
On November 18, 2009, the County first contacted Oracle regarding whether MC 311 could be made accessible. Oracle had told the County that a Voluntary Product Accessibility Template (" VPAT" ) - i.e., a patch - would be ready for version 8.1.1 in the first quarter of 2010. (ECF No. 79-24 ¶ 6, Defendant's Supplemental Answers to Plaintiff's First Interrogatories). Oracle would not meet that deadline. On December 16, 2009, Mr. Wright met with representatives of Oracle. He was told that Seibel was adaptable in one respect, but not in another. A Seibel system could be made accessible so long as it is configured at a basic level, not containing the high interactivity features the County chose to meet its operational needs, specifically the CTI toolbar, SmartScript, and Email Response. In order to achieve accessibility at the higher level, the technology would have to advance from the current " Phase 1" to " Phase 3." That was estimated to occur within the next eighteen months. He was told the cost to adapt Phase 1 - the basic model - would be between $150,000 and $200,000. The cost to adapt to Phase 3 was unknown, as that technology was not yet ready. On January 6, 2010, Mr. Wright determined that
Given the fact that the adaption of technology will not provide the level of service needed within the timeframe necessary to aid the visually impaired individuals with performing the full range of their jobs; and given the fact that the cost to implement the technology for just basic services would amount to almost $200,000; all while taking into account the County's current budgetary concerns, an attempt to provide such a reasonable accommodation would impose an [u]ndue [h]ardship on the County in several areas of the undue burden's definition. As a result, because there is no reasonable accommodation useful to assist in the current job, I will be recommending a " reassignment to a vacant position" as a
form of a reasonable accommodation in accordance with Section 8-5(b)(4) of County Personnel Regulations.
(ECF No. 102-19). On January 21, 2010, Ms. JoAnne Calderone, Plaintiff's I& R supervisor, was told by Mr. Wright that Plaintiff will be going to MC 311, but it will take about six months before they are ready for her. (ECF No. 89-20).
On February 4, 2010, DHHS's calls were automatically routed to MC 311. Plaintiff had no work to do. The next day, Mr. Wright sent a memo to Ms. Calderone authorizing her temporarily to reassign Plaintiff to a vacant position within DHHS. It was termed " temporary" " on the basis of allowing a period of time for which to sustain employment of [Plaintiff] until the potential occurrence of her transfer to MC 311 at a future date." (ECF No. 79-12). The memo went on to state that if a transfer to MC 311 was not feasible, Plaintiff will still have priority consideration for any vacant position where she met the essential job functions and grade. The County's personnel regulations define " priority consideration" as " [c]onsideration of a candidate for appointment, reassignment, or promotion to a vacant position before others are considered. It does not guarantee that the candidate will be selected for appointment, reassignment, or promotion." (ECF No. 79-13, at 1).
Senior leadership came up with two potential jobs for Plaintiff within DHHS at the same grade level at which Plaintiff was employed at the DHHS call center. One was with the Children's Resource Center; the other with the Aging and Disability Unit (" ADU" ). Plaintiff first considered the Children's Resource Center (" CRC" ) where she was told that the staff was currently overloaded with work and she would be busy for a full eight hour day. She told the head of the Center that she wanted to hold off on committing to it until she heard more about the ADU option. Plaintiff preferred to work for ADU because she wanted to help those with disabilities. She was told that ADU did not have a specific position for Plaintiff, but they would work to put assignments together and create as much meaningful work as possible. She was told there would be some downtime in her work, owing to the fact that they were creating a new position. (ECF No. 79-4, at 23, Trans. 85:2-14; see also ECF No. 89-27 (email from John Kenney stating that they have a less than full time job worked out for Plaintiff, but he is concerned a sizable portion is " make work" )). Plaintiff ultimately chose the job with Adult Services Intake (" ASI" ) within ADU because she understood the CRC job to be temporary. (ECF No. 89-79 ¶ 5).
Plaintiff's job description with ASI estimated her " core duties" to take four to five hours a day, with the principal job being handling MANNA referrals, plus other periodic duties. (ECF No. 89-28). Ms. Aaron, Plaintiff's supervisor, testified that Plaintiff never performed all of her listed duties because, among other reasons, certain offices that she was going to do work for ended up wanting to keep these tasks with them. (ECF No. 89-17, at 8-9, Trans. 80:9 - 90:1).
Plaintiff spoke with Mr. Peter Wallack of Oracle in July 2010 at the convention of the National Federation of the Blind. At that meeting, according to Plaintiff, Mr. Wallack demonstrated an accessible Seibel system. He told her that a patch to fix the Montgomery County issues would be released on July 9. Plaintiff left numerous messages with Mr. Wright with this information, but he did not return her calls. (ECF No. 79-4, at 27-28, Trans. 99:2 - 103:16). The County inquired of Oracle again in July 2010 and was told that a fix should come soon. (ECF No. 102-22). In
that same month, Opus presented a Rough Order of Magnitude (" ROM" ) to the County estimating what it would take to make MC 311 accessible. It estimated the cost at $287,700 and assumed that version 220.127.116.11 or 8.2 would be installed, although neither version had been released. Furthermore, accessibility was only possible if the employee was operating in SI mode. Additionally, it noted that the CTI Toolbar, Smartscript, and Email Response had not been made accessible, in either HI or SI mode. Mr. Stephen Heissner, a County IT officer, testified that because version 18.104.22.168 was not available, the County was not in a position to make a decision on whether to proceed. (ECF No. 79-23, at 12, Trans. 45:9-14).
On October 1, 2010, Mr. Wright provided an update on the situation to Plaintiff's supervisors. At that time, Oracle had accessible technology, but " such technology continues to only be at a basic level for which will not allow [Plaintiff] to perform the essential functions of her job at a grade 16 level in the actual MC 311 call center environment." (ECF No. 89-33, at 3). Additionally, the cost of such inadequate technology would be $260,000 initially, with a monthly cost of $78,000 for upkeep and maintenance for the life of Plaintiff's employment. To upgrade only the " back end," non-customer-facing part of Seibel, would cost an estimated $100,000 initially with a recurring monthly cost of $30,000. Mr. Wright concluded that providing a technology system for performance either within MC 311 or at the " back end" as a reasonable accommodation " would create an Undue Hardship, as such an action would be unduly costly." ( Id. at 4). Consequently, he recommended reasonably accommodating Plaintiff by reassigning her to a vacant long-term position within HHS or elsewhere with the Executive Branch of the County. Mr. Wright spoke with Plaintiff about these recommendations the same day. Plaintiff told Mr. Wright to find her another position in the County while she continued to work in ASI. ( Id. at 28, Trans. 104:17 - 105:13).
On November 15, 2010, the County again inquired about the timeline for a VPAT. (ECF No. 102-23). Opus presented a new ROM in April 2011 where it estimated the cost of accessibility at $640,136, which would allow an accessible employee to work only in SI mode. This ROM still assumed the existence of version 22.214.171.124 or 8.2 which had not yet been released. Additionally, VPATs were needed for CTI Toolbar and SmartScript which still had not yet been published by Oracle. The increased cost was due to the increased sophistication of MC 311's system as it further integrated into the County's processes.
On July 1, 2011, Plaintiff was moved to the Aging and Disability Resource Unit (" ADRU" ). She performs the same work as when she was in ASI, still with less than eight hours of work. Plaintiff continued to have priority consideration and checked for HHS transfer positions between October 2010 and April 2012. Although there were positions available, Plaintiff was not interested in any of the jobs. (ECF No. 79-4, at 35, Trans. 132:20 - 133:2). In her deposition, Plaintiff stated that the County has provided her " with accommodations, but not all the accommodations to do my job." She agreed that she has been given the necessary accommodations to perform her current position at ADRU. (ECF No. 79-4, at 37-38, Trans. 141:20-22, 142:2-6). Defendant alleges that on August 12, 2011, a representative of the National Federation for the Blind tested accessibility with JAWS in a Seibel test environment. JAWS would not work with the CTI toolbar and therefore she was not able to
process calls or service requests. (ECF No. 79-24 ¶ 15).
Oracle finally published the VPATs for the CTI toolbar and Email Response on October 28, 2011. These VPATs were for version 8.2.2. They make these features accessible to screen readers only in SI mode, not HI mode. (ECF Nos. 102-7 and 102-8). The VPAT recognizes that even with this patch, the CTI toolbar contains bugs, including the possibility that a transferred call could fail. Mr. Heissner stated this bug could be problematic as sometimes a CSR must transfer an emergency call to 911. (ECF No. 79-31 ¶ 5). Both of these VPATs are for Seibel version 8.2.2. Because the County is still using version 8.1.1, a prerequisite to accommodation would be installing and configuring the upgrade.
Each side presented experts to analyze the cost and other challenges with making MC 311 accessible. Plaintiff's expert is Ms. Temeko Richardson. She testified that she has worked with blind employees in other call centers that are able to use a Seibel CTI toolbar with their JAWS screen reader. One call center in California and one in New York has its blind employees use SI mode while their sighted colleagues use HI mode. Another in Chicago has all employees working in SI mode. All these call centers were in private entities, however, and not with the government. (ECF No. 89-13, at 3-10, Trans. 6:18 - 13:13). Ms. Richardson testified that to accommodate a blind employee the County would have had to implement some additional solution to the Seibel system because the CTI toolbar was not accessible at the time MC 311 was being built. (ECF No. 89-13, at 19-20, Trans. 89:19 - 90:3). Ms. Richardson's proposed solution to the CTI toolbar issue was to build and install a widget so that blind employees could get the same functionality. Her toolbar would exist outside the Seibel software. (ECF No. 95-2, Report of Ms. Richardson). She estimated the total cost to the County at $129,600 to $193,200. (ECF No. 89-13, at 16-17, Trans. 84:21 - 85:3).
Defendant responded with Mr. Brad Ulrich, an outside IT consultant, and Mr. Stephen Heissner, a Senior IT Specialist for the County's Public Information Office. Mr. Ulrich examined Ms. Richardson's proposal and the Opus ROMs. He found serious flaws in Ms. Richardson's proposal. First, installing her separate widget would no longer make Seibel a COTS system with all of its advantages. Furthermore, Ms. Richardson's proposal would increase the time spent addressing problems with the software, which would reduce the time MC 311 would be up and running. The biggest flaw he found was that Ms. Richardson assumed that the CSR position was identical to Plaintiff's job with DHHS, when in fact a CSR has a much broader portfolio, encompassing all of the County's departments. That larger breadth means that any tool has to interact successfully with more systems which adds to the complexity, and consequently, the cost. He also believed that Ms. Richardson's cost estimate could not be trusted because her solution was incomplete in that it did not account for the added cost that will come with trying to incorporate a separate widget onto the Seibel system. Mr. Ulrich estimated that Ms. Richardson underestimated the cost of implementation by a factor of four to six and, additionally, her cost estimate did not include the costs of making the system accessible for the back office employees, although he was not sure whether back office employees used the CTI toolbar. Consequently, he estimated that to implement Ms. Richardson's proposals would actually cost somewhere between $648,000 and $1,159,200. His own proposal stayed within the Seibel infrastructure,
and assumed the existence of a bug-free CTI toolbar. His estimated cost was $929,071.
Ms. Richardson filed an affidavit, in which she responded to Mr. Ulrich's largest criticism and stated that her proposal included the initial costs of providing accessibility to each of the thirty-seven County departments that compromise MC 311, not just those previously encompassed in DHHS's portfolio. (ECF No. 105-2). In her supplemental answers to Defendant's interrogatories, Plaintiff acknowledged that Ms. Richardson has not calculated, nor does Plaintiff have any other information about, the projected costs for ongoing operations and maintenance of Ms. Richardson's solutions. (ECF No. 105-3, at 3).
Mr. Heissner stated that the labor required to carry out either of the Opus ROMs or the Ulrich ROM would be substantial and disruptive to MC 311's operations as it would restrict the County's ability to use its internal and contractor resources for necessary ongoing operations, bug fixes, upgrades, and enhancements. He went on to state that even if MC 311 was made fully accessible, there is no guarantee that a blind employee using a screen reader could meet the performance objectives such as average talk time and average after call work time. (ECF No. 79-31 ¶ ¶ 2 and 3).
Finally, Opus updated its ROM on February 19, 2013. It estimated the initial cost of implementation to be $1,146,670 with yearly costs of $229,334. (ECF No. 102-11 ¶ 10, Heissner Supp. Aff.).
2. Plaintiff's 2012 Application to a CSR II position
On April 23, 2012, the County posted a job opening for a CSR II position within MC 311. There were two vacancies. The job was classified as Grade 16, Plaintiff's grade. Plaintiff applied for the job. She did not claim a disability or priority consideration in her application.
Forty-five employees initially applied for the position, with two eventually withdrawing. Pursuant to the County's procedures, all applicants were initially reviewed by the Office of Human Resources (" OHR" ) to determine if they met the minimum qualifications for the job. Plaintiff satisfied those minimum qualifications. The materials of those applicants that met the minimum requirements were forwarded to MC 311 for further review. Between May 2 and May 15, 2012, Ms. Patricia Jenkins and Ms. Anne Santora from MC 311 reviewed and rated the applicants against the job's five preferred criteria, each on a scale of one to ten, fifty being the highest overall score. Those ratings were then sent back to OHR who divided the group into two lists: " qualified" and " well qualified." There is not an exact science to the cut-off between the two categories; OHR tries to draw the line wherever there is a natural break between the two groups. Only those who are given the " well qualified" designation are placed on the " eligible" list and can be interviewed for the position. Eight applicants were placed on the " eligible" list. All were sighted.
Plaintiff's application traveled on a separate path from the above process. Because she was a current County employee applying for a job at the same grade, she was classified as a " transfer on review" candidate. As such, she had to pass OHR's initial screening for minimal qualifications, but did not have to pass through the review and rating and be placed on the " eligible" list like the other candidates. Once she was deemed minimally qualified, she was deemed eligible to be interviewed, but not put on the " eligible" list. Consequently, there were a total of nine applicants eligible to be interviewed. All but Plaintiff were current MC 311 employees.
Not all eligible applicants have to be interviewed. In determining whether to interview everyone, Mr. Brian Roberts, MC 311's Organization Capacity Specialist and Ms. Hamm's deputy, took it upon himself to do an informal rating of Plaintiff on the fifty point scale used for those who were not transfer on review applicants. (ECF No. 79-33, at 17, Trans. 63:17 - 64:14). On May 24, 2012, Mr. Roberts sent Ms. Hamm an email with his assessment. He gave Plaintiff a rating of thirty-four (34) out of fifty (50). He wrote that Plaintiff has a strong customer service background, but not in a call center. Her weakest attributes are her communication skills and experience with different systems. His score was right below the seventy (70) percent line for the eligible list (ECF No. 89-53), although Ms. Hamm testified that that line was " made up" and not something OHR uses in dividing the groups (ECF No. 79-33, at 17, Trans. 65:10-16). Mr. Roberts concluded his email by stating that ultimately " you [Ms. Hamm] could back up not inviting her to be interviewed. My recommendation is to offer her an interview. . . . Then you can evaluate Yasmin against other candidates, and let the chips fall where they may." Mr. Roberts also opined that in the future, MC 311 can require call center experience for a Grade 16 position. (ECF No. 89-53). Ms. Hamm testified that Mr. Roberts' email did not affect her thinking on the matter because she " already had felt like we should go ahead and interview everyone because we've typically done that every time." (ECF No. 79-33, at 17, Trans. 64:16-18). Ultimately, all nine applicants were interviewed.
Interviews are conducted by a panel of three. These interviews were conducted by Ms. Katherine Johnson, Mr. Robert Dejter, and Mr. Dwayne Jenkins, all MC 311 employees. The questions were crafted by Ms. Hamm and Mr. Roberts. Interviewers are instructed to ask the questions and only the questions. No follow-ups; just take notes on what the applicant says. The applicants are allowed a chance to ask questions of the interviewers at the end. Ms. Hamm and Mr. Roberts settled on seven questions. Prior to the ...