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Reyazuddin v. Montgomery Cnty.

United States Court of Appeals, Fourth Circuit

June 15, 2015

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

Argued January 28, 2015.

Page 408

Appeal from the United States District Court for the District of Maryland, at Greenbelt. (8:11-cv-00951-DKC). Deborah K. Chasanow, Chief District Judge.

ARGUED:

Daniel Frank Goldstein, BROWN, GOLDSTEIN & LEVY, LLP, Baltimore, Maryland, for Appellant.

Karen Louise Federman Henry, COUNTY ATTORNEY'S OFFICE FOR THE COUNTY OF MONTGOMERY, Rockville, Maryland, for Appellee.

ON BRIEF:

Joseph B. Espo, Matthias L. Niska, BROWN, GOLDSTEIN & LEVY, LLP, Baltimore, Maryland, for Appellant.

Marc P. Hansen, County Attorney, Patricia P. Via, Chief, Division of Litigation, Patricia Lisehora Kane, Associate County Attorney, COUNTY ATTORNEY'S OFFICE FOR THE COUNTY OF MONTGOMERY, Rockville, Maryland, for Appellee.

Susan Mizner, Claudia Center, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, San Francisco, California; Amy Robertson, CIVIL RIGHTS EDUCATION AND ENFORCEMENT CENTER, Denver, Colorado, for Amici Curiae.

Before TRAXLER, Chief Judge, and DIAZ and THACKER, Circuit Judges. Judge Diaz wrote the opinion, in which Chief Judge Traxler and Judge Thacker joined.

OPINION

Page 409

DIAZ, Circuit Judge:

Montgomery County, Maryland, opened a new, consolidated call center using software that was inaccessible to blind employees. The County did not transfer employee Yasmin Reyazuddin, who is blind, to the call center along with her sighted coworkers. The County also did not hire her for a vacant position there. Reyazuddin challenged the County's actions as violating Section 504 of the Rehabilitation Act of 1973, 29 U.S.C.A. § 794 (West 2014), or Title II of the Americans with Disabilities Act of 1990 (the " ADA" ), 42 U.S.C. § 12131 et seq. (2012).

Section 504 forbids an employer from discriminating against an employee because of her disability. It also requires an employer to accommodate an employee with a disability who can perform the essential functions of a job with a reasonable accommodation. But an employer avoids liability if it can show that providing an 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 do so may be excused because of undue hardship. Accordingly, we reverse the district court's order granting summary judgment to the County on Reyazuddin's Section 504 claims. However, we affirm the district court's order granting summary judgment to the County on Reyazuddin's Title II claim because public employees cannot use Title II to bring employment discrimination claims against their employers.

Page 410

I.

A.

In early 2008, as part of its $80 million Technology Modernization Project, Montgomery County decided to consolidate its 1,500 telephone numbers for 38 offices and departments into one call center that residents could reach by dialing 311. The County's goals for its consolidated call center (dubbed MC311) were to achieve accountability, responsiveness, and efficiency.

In January 2009, the County decided to outfit MC311 with software called Siebel Public Sector 8.1.1, licensed from Oracle. This software met the County's goals, was compatible with other Oracle software already used by the County, and was cost-effective as a " commercial-off-the-shelf," as opposed to custom, product.

The Siebel software can be operated in two modes: high-interactivity or standard-interactivity. High-interactivity mode is not accessible[1] because it is written in Microsoft ActiveX, a technology that screen reader software cannot interpret. Screen reader software enables users who are blind to operate a computer through keyboard shortcuts, instead of mouse clicks, and by hearing synthesized speech or using a refreshable Braille display, in place of reading the screen. Standard-interactivity mode, however, is accessible because it is written in standard HTML and Javascript, which are compatible with screen reader software.

The County's license allows it to run the software in either mode. Moreover, it is technologically feasible for some employees to operate the software in high-interactivity mode while others work in standard-interactivity mode. Doing so does not impact overall employee productivity. The County nonetheless chose to configure the software at MC311 in high-interactivity mode for all employees.[2] In this mode, employees use three features--the CTI Toolbar, SmartScript, and Email Response--that are not available in standard-interactivity mode.

The CTI Toolbar integrates MC311's phone system and the Siebel software. Employees use the CTI Toolbar to make themselves available to take calls and to answer and transfer calls. SmartScript generates a pop-up window containing a script for employees to read to callers, a field for typing notes about the call, and a function to transfer emergency calls to 911. Employees then close SmartScript and the service request template pops up with fields automatically filled in with the information previously typed into SmartScript.

The service request form has a keyword search function that generates a list of articles to help employees answer the caller's question. Once employees have identified the best article, they click on the " attach solution" button to add it to the service request form. This in turn causes several fields in the form to populate automatically. These fields include the appropriate department; the County's " public answer," which is a " short, concise paragraph about how the [C]ounty handles"

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the caller's particular concern; and instructions for employees on how to handle the call. J.A. 487-88.[3]

The County first asked Oracle about MC311's accessibility in November 2009, more than eleven months after purchasing the license. Oracle told the County that the CTI Toolbar, SmartScript, and Email Response features of the Siebel software would not be accessible until mid-2010. Oracle also estimated that it would cost $200,000 to make the Siebel software accessible through standard-interactivity mode, without those three features.

Over the next sixteen months, the County received increasing estimates about the cost of accessibility from Opus Group, a subcontractor hired to configure and implement the Siebel software at MC311. The first estimate to make standard-interactivity mode available at MC311 was $222,075. A second option to give " back office" employees access to assigned service requests would cost $65,625. By April 2011, these estimates rose to $399,270 and $240,867, respectively. All the while, the CTI Toolbar, SmartScript, and Email Response features remained inaccessible.

B.

Since 2002, Yasmin Reyazuddin has worked in the County's Department of Health and Human Services, most recently as one of five Information and Referral Aides. In that role, she answered questions from County residents who called about the Department's services, referrals to County programs, and the status of applications for benefits. Reyazuddin, who is blind, performed her job using screen reader software. Reyazuddin also used a Braille embosser, which allowed her to print in Braille.

Reyazuddin first learned about the County's plans to create MC311 in May 2008 from her then-supervisor. Over the next sixteen months, Reyazuddin and the other Information and Referral Aides received updates on MC311's general progress. During this time, the County was determining how to staff MC311's forty-nine positions.

In October 2009, JoAnne Calderone, Manager for Planning, Accountability, and Customer Service in the Department of Health and Human Services, met with the five Information and Referral Aides and formally told them that their unit was transferring to MC311. The County planned to transfer Reyazuddin and one other aide on November 9, with the three remaining aides to follow two weeks later. The other four Information and Referral Aides are not blind.

Reyazuddin expressed concern about MC311's accessibility. She also told Calderone that she had scheduled leave from October 28 to November 28, 2009, for a trip to India. Calderone emailed this information to Leslie Hamm, then-Manager and now-Director of MC311, who responded that the County's Disability Program Manager, Ricky Wright, suggested that " the date of [Reyazuddin's] detail to MC311 be delayed indefinitely or at least until . . . she returns from pre-approved leave." 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 transferred and instead was told to return to her pre-vacation job

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site at the main administrative building for the Department of Health and Human Services. She continued to perform her duties by answering the Department information line until February 4, 2010, when the information line was switched off and calls were transferred to MC311. For one day, Reyazuddin had nothing to do. Then the County decided that MC311 would not handle Manna Food Center referrals, which allow eligible low-income individuals to receive food from a private, non-profit food bank. Reyazuddin was assigned this task, but it was not full-time work.

In March 2010, Reyazuddin was assigned to work in the Department's Aging and Disability Unit for Adult Services Intake.[4] For the next six months, Reyazuddin's supervisors struggled to find work for her. They thought her work situation was temporary until she could be transferred to MC311. However, on October 1, 2010, Wright informed Reyazuddin that she would not be transferring to MC311 because it would be too expensive for the County to make the software accessible. Wright " recommend[ed] the reasonable accommodation of 'reassignment to ...


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