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Reyazuddin v. Montgomery County

United States District Court, D. Maryland

August 21, 2017




         After more than six years of litigation in this employment discrimination case, the remaining issues of declaratory and injunctive relief are ready for resolution.

         I. Background

         In April 2011, Plaintiff Yasmin Reyazuddin (“Plaintiff”), a Montgomery County employee since 2002, brought the instant suit in which she has brought claims under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 and the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq. (ECF No. 1). In early 2008, Defendant Montgomery County, Maryland (“Defendant” or “the County”) began a reorganization of the County's customer service employees from various executive departments to a single county-wide call center, referred to as “MC 311.” At that time, Plaintiff worked as an Information and Referral Specialist in the County's Health and Human Services Department (“HHS”). Although her colleagues in the same or similar positions were transferred to MC 311 as Customer Service Representatives (“CSRs”) when the call center finally opened in the fall of 2009, Plaintiff, who is blind, was not transferred to the call center because the County thought it would be too burdensome to make the tools and software used by CSRs accessible to her. Instead, Plaintiff was transferred to two positions within the Aging and Disabilities Services (“ADS”) section of HHS. Her discrimination claims faulted the County for failing to provide a reasonable accommodation for her disability that would allow her to transfer to MC 311 as a CSR with her non-disabled peers.

         During a February 2016 jury trial, Plaintiff presented evidence that her ADS positions failed to provide her with consistent, meaningful work and that she could have performed the job duties of a CSR with a reasonable accommodation. The court instructed the jury to consider, inter alia, whether Plaintiff could perform “[t]he essential job functions . . . routinely performed by individuals in the MC 311 call center.” (ECF No. 212, at 11). The jury found that Plaintiff could perform the essential functions of a CSR with a reasonable accommodation and that Defendant had failed to provide a reasonable accommodation for her disability. (ECF No. 221). The jury also reviewed and rejected Defendant's affirmative defense that it would have been an undue hardship “to implement the software accommodations Plaintiff had requested.” (Id.; ECF No. 212, at 13-14). It determined, however, that Plaintiff had sustained zero dollars in damages. (ECF No. 221).

         Plaintiff's complaint also sought injunctive and declaratory relief. (ECF Nos. 1, at 8-9; 58, at 10). After the jury trial, Plaintiff moved for an order requiring Defendant to make MC 311 accessible and to give Plaintiff a job as a CSR, consistent with the position she would have been in had the discrimination not occurred. (ECF No. 228, at 7). Defendant argued, first, that injunctive relief was inappropriate and, second, that Plaintiff's entitlement to a reasonable accommodation had been satisfied when the County offered Plaintiff a position at the Columbia Lighthouse for the Blind (“CLB”) in October 2015. (ECF No. 229). This offer, which Plaintiff rejected, was made during the litigation. Rather than incorporate that offer into the then-upcoming jury trial, Plaintiff limited her claims at that trial to the County's conduct and her damages up until the October 2015 offer of a position at CLB. (See Id. at 7-8). Whether the CLB position was a reasonable accommodation was therefore not considered by the jury. Thus, notwithstanding the jury's verdict that the ADS positions were not a reasonable accommodation, Plaintiff's initial motion for injunctive relief was denied because she had not demonstrated that the CLB offer had not extinguished any entitlement she might have had to injunctive relief. (ECF Nos. 235, at 1; 246, at 61-63). The parties proceeded to discovery to litigate Plaintiff's equitable claims in May 2016. (ECF Nos. 236; 238; 241).

         While discovery related to the CLB offer was ongoing, Defendant notified Plaintiff that she would be transferred to MC 311. (ECF No. 258-1, at 1). This transfer occurred on October 26, 2016, and Plaintiff is now employed as a CSR II at ¶ 311. Defendant then moved to stay discovery to brief whether Plaintiff's claims had been mooted by her transfer. (ECF No. 258). The court granted the stay temporarily and ultimately determined that an evidentiary hearing was necessary to resolve Plaintiff's request for injunctive relief in light of her new position. (ECF Nos. 262; 266). In advance of that hearing, Plaintiff filed a new motion for injunctive relief and a motion for partial summary judgment as to the CLB job offer. (ECF Nos. 295; 296). Defendant filed a motion to dismiss or for summary judgment. (ECF No. 300). Each of these motions was briefed in full by the parties, and the court deferred consideration of the motions. (ECF Nos. 304; 310; 311; 315; 316; 319; 322).

         In light of Plaintiff's current placement, she has modified her request for injunctive relief. Although she is working at ¶ 311, Plaintiff argues that Defendant continues to discriminate against her. Specifically, Plaintiff contends that differences between her job duties as a CSR and the duties of other CSRs constitute an ongoing failure to provide a reasonable accommodation. Plaintiff currently seeks: (1) a declaration that Defendant discriminated against her because of her blindness and (2) a permanent injunction ordering the County to make certain technology systems accessible to her and prohibiting it from allowing the accessibility of currently accessible systems to lapse. (See ECF Nos. 295; 351). The issues were briefed in dispositive motions on injunctive relief and mootness, and an evidentiary hearing was held from April 19 to April 28, 2017. (See ECF Nos. 295; 300; 310; 311; 316; 319; 328; 329; 330; 331; 332; 346; 348). Upon consideration of the evidence adduced at the jury trial and the evidentiary hearing, as well as the parties' arguments with respect thereto, the court now issues findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a).[1]

         II. Mootness

         Defendant contends that the Plaintiff's claim is now moot because she has been placed at ¶ 311 as a CSR as she originally requested. The mootness doctrine applies “when the issues presented are no longer ‘live' or the parties lack a legally cognizable interest in the outcome.” Simmons v. United Mortg. & Loan Inv., LLC, 634 F.3d 754, 763 (4th Cir. 2011) (citing United States v. Hardy, 545 F.3d 280, 283 (4th Cir. 2008)). Mootness deprives a court of jurisdiction over a case. “If intervening factual or legal events effectively dispel the case or controversy during the pendency of the suit, the federal courts are powerless to decide the questions presented.” Ross v. Reed, 719 F.2d 689, 693-94 (4th Cir. 1983).

         In its motion papers, the County argues that there is no “ongoing case or controversy [] involving her requested injunctive relief - to be instated as a CSR II at ¶ 311.” (ECF No. 300-2, at 24). The County claims that it has remedied the injury that Plaintiff had previously suffered. (Id. at 26-27). It contends that the County provided the relief Plaintiff sought when it “voluntarily transferred Plaintiff to MC 311 and [] invested hundreds of hours of employee and contractor time to facilitate Plaintiff's transition into working as a CSR II at ¶ 311.” (Id. at 26).

         It is undisputed that Plaintiff is working at ¶ 311 and her job title is CSR II, but these facts alone are insufficient to moot Plaintiff's claims for injunctive relief without review of the merits. Defendant's argument relies on the factual and legal determinations presently before the court, specifically, whether her current role provides her with a meaningful equal employment opportunity as required by the ADA. Here, if Plaintiff could prove her claim that, in spite of her change in location and job title, Defendant's refusal to make certain technological tools fully accessible to her constituted a failure to provide her with a reasonable accommodation, she would have a “live” claim for injunctive relief. Only if Defendant is correct that it is now complying with its legal requirements under the ADA would the controversy cease to exist. Mootness occurs when the resolution of the issues presented in the case would not effectuate a remedy, even if the claims were resolved in the plaintiff's favor. Because Defendant's mootness argument hinges on the merits of whether Plaintiff's current placement satisfies the requirements of the ADA, the case clearly is not moot.

         III. Facts from Evidence Presented at the Jury Trial and the Evidentiary Hearing[2]

         At the evidentiary hearing, Plaintiff presented fact testimony from Dieter Klinger, Katherine Johnson, Chris Daniel, Stephen Heissner, and Jay Kenney. These witnesses and others at the evidentiary hearing testified primarily as to the workings of MC 311 and differences between Plaintiff's CSR II role and that of other CSR IIs. Defendant presented fact testimony from Plaintiff, Mr. Klinger, Mr. Daniel, Mr. Heissner, Mr. Kenney, Chris Turner, Robert Sinkler, William Potter, Kim Alfonso, Vivian Green, and Leslie Hamm. Most of Defendant's fact witnesses are either employees of MC 311 who supervised or trained Plaintiff or other County employees, primarily in the Department of Technology Services (“DTS”), who helped provide technology accommodations for Plaintiff. They testified as to the variety of ways that Defendant has already accommodated Plaintiff in her new position. The parties' experts testified as to whether it was possible and at what costs, in terms of time and money, to make certain systems accessible to Plaintiff.

         a. The MC 311 Call Center

         MC 311 uses a software system produced by Oracle Corporation called Seibel to track and respond to incoming calls. The County currently uses version of Siebel, a newer version than the one considered in the jury trial. Version is not the newest version of Seibel, however. At least two updated versions, referred to as Innovation Pack 15 and Innovation Pack 16 (“IP 16”), exist and would increase the accessibility of the system to blind users. The County has a contract in place to upgrade to IP 16 and expects to implement it by the end of 2017.

         Seibel has two interfaces: a public portal, through which County residents can submit requests online, and an internal portal, through which CSRs submit service requests on behalf of the people who call MC 311. The internal portal is more comprehensive than the public portal. While using the internal portal, for example, CSRs read through Knowledge-Based Articles (“KBAs”), pre-written instructions, based on a caller's request type, for how appropriately to answer the caller's question and submit the service request. The internal portal is also integrated with the County's phone system, which provides CSRs with a series of tools, referred to as the CTI Toolbar, that help manage calls, transfer caller information, and monitor CSR status. After a request is submitted, it goes to the appropriate County department to be resolved. Seibel assigns each service request a reference number that can be tracked by the resident or other CSRs to check progress on the request.

         The call center divides calls into two “Tiers” based on the types of knowledge and software necessary to respond to them. Tier 1 calls are calls related to any department that can be answered easily by most CSRs. These calls include many of the most common requests and are generally resolved using only the Seibel system, KBAs, and a series of interactive maps. Certain other calls require the CSR to use supplementary software and databases related to several departments including HHS (CARES), the Permitting Services Department (Hansen), the Finance Department (Munis), as well as Human Resources for County employees. Some of those systems are created and maintained by other entities, separate from Montgomery County. In addition to creating service requests in Seibel, CSRs answering these calls must provide specialized information as to the types of services available and must know how to use these department-specific databases. MC 311 refers to these more complicated calls as Tier 2 calls. All calls enter the system as Tier 1 calls because the call center does not know why a resident is calling before answering the call; calls are then reassigned as Tier 2 if necessary.

         MC 311 employs two corresponding types of CSRs. A CSR I can assist with Tier 1 requests but not Tier 2 requests. They answer all calls as they come in and directly respond to any Tier 1 inquiries. If answering a caller's question requires the specialized training and database access for one of the Tier 2 departments, the CSR I will place the call into the Tier 2 queue specific to the appropriate Tier 2 department. The caller will then be transferred to a line that will be answered by someone trained to assist with that type of Tier 2 call.

         Those CSRs who can answer Tier 2 calls are called CSR IIs. Most CSR IIs are trained in more than one, but not usually all four, of the departments. Thus, a single CSR II might answer calls from, for example, both the HHS and Permitting Departments. CSR IIs generally are also able to answer Tier 1 calls. The call center's phone system will first route any Tier 2 calls to a CSR II trained in that queue. If there are no callers waiting in a CSR II's Tier 2 queues, the system will instead send Tier 1 calls to that CSR II.

         b. Plaintiff's Current Position

         Plaintiff now works at ¶ 311 as a CSR II. She is assigned only one of the Tier 2 queues, HHS calls. Unlike other CSR IIs, Plaintiff does not receive Tier 1 calls because she cannot currently access the internal portal of the Seibel system or the interactive maps. Because she can only answer Tier 2 HHS calls, Defendant has set the phone system to make Plaintiff the primary recipient in the queue of these calls; no other CSR II will receive a Tier 2 HHS call unless Plaintiff is occupied. In addition to the Tier 2 HHS calls she is currently receiving, Plaintiff has the capability to receive Tier 1 calls for the HHS department. Plaintiff has not been trained to take other types of calls.

         Plaintiff looks up information and submits service requests using a screen reader called JAWS, an acronym for Job Access With Speech, which reads aloud to a blind user the information that is displayed on a screen for sighted users. JAWS also allows a blind user to set shortcuts for navigating a page using specific key combinations, which helps users bypass the default navigation of the page that sometimes leads through cumbersome paths or to dead-ends. The process of setting up JAWS to read and navigate a page effectively is called “scripting.” Plaintiff uses a customized JAWS-scripted public portal on a non-public County application designed for her. The parties refer to this system as the Internal Web Accommodation Application (“IWAA”).

         Plaintiff's CSR II role differs from that of other CSR IIs in a variety of ways. Most importantly, Plaintiff does not have access to the Seibel system's internal portal, the CTI Toolbar, or the specialized maps, and, therefore, Plaintiff is not assigned to answer any general Tier 1 calls. Additionally, there are several differences between the tools Plaintiff uses to respond to her Tier 2 HHS inquiries and the tools that other CSR IIs answering the same calls use. CSR IIs using the CTI Toolbar receive the caller's name and zip code from the Tier 1 CSR who transferred the caller into the HHS Tier 2 queue, but Plaintiff does not receive this information and must ask the caller for it herself. While the internal portal creates a service request number for other CSRs at the beginning of the request creation process, the IWAA does not produce a service request number until the request has been submitted. As a result, Plaintiff must fully submit the request before ending the call in order to provide the caller with the service request number for future reference. To review and correct her requests after hanging up the call, a process referred to as “quality review, ” Plaintiff must ask her supervisor to process any changes. Other CSRs also have the capability to telework, but Plaintiff does not. Finally, the CTI Toolbar interfaces with the County's phone system to notify sighted CSRs of their status in the queue - that is, whether they are ready to receive calls - using what the County calls AUX codes. Plaintiff did not have a method of accurately checking her AUX code status until the County implemented a new system for her during the evidentiary hearing.

         Defendant's fact witnesses testified as to the numerous ways that Defendant has already accommodated Plaintiff in her role as a CSR II. First, to facilitate Plaintiff's new role, the County moved from HHS to MC 311 her computer, JAWS screen reader software, and other equipment, including a braille display and printer. The County hired a contractor to script the HHS Tier 2 software database, CARES, for a JAWS user. It also hired Thomas Logan, Defendant's accessibility expert witness, to educate several employees, including Mr. Turner and Mr. Sinkler, about JAWS usage so that they could train and manage Plaintiff. Second, Defendant has customized a series of applications to enable Plaintiff to enter service requests. When Plaintiff was initially transferred to MC 311, she was given an Excel spreadsheet with the KBAs and instructed to submit service requests on behalf of callers through the public portal of Seibel. This workflow design proved to be difficult for Plaintiff because she had to answer a CAPTCHA with each request. CAPTCHA, the robot-preventing software that typically shows a picture of a number or word and asks the user to type that number or word into a blank field, has an accessible solution for blind users, but, for reasons not discussed by the parties, Plaintiff was unable to answer the CAPTCHA correctly on a consistent basis. In order to resolve the CAPTCHA issue, Defendant's DTS employees developed and implemented the IWAA, which allowed Plaintiff to submit requests through a similar, but non-public, portal without answering a CAPTCHA. Because the IWAA was a custom solution tailored especially to Plaintiff, it was designed to allow her to access the content necessary to respond to incoming HHS requests using fewer keystrokes and JAWS shortcuts.

         Third, the County has spent extensive time training Plaintiff for her current role. During the customary ten-week training period for a CSR, Plaintiff received one-on-one training whereas other employees are typically trained in groups of around eight. For reasons disputed by the parties, Plaintiff's job performance at ¶ 311 has not met the call center's standards, and the County has continued to provide her with further training after the initial classes. Mr. Sinkler testified that Plaintiff has had difficulty with identifying the caller's issue, providing accurate information to the caller, documenting calls and requests appropriately, exercising proper tone and demeanor, and efficiently managing her calls and workload. (See DTX 50).[3] He and Mr. Daniel testified that Plaintiff has generally refused to take notes during training and has frequently relied on her own memory, as opposed to the KBAs, leading to her providing information to callers that is incorrect or outdated. She remains on a work improvement plan because of these issues.

         Mr. Sinkler also testified that, in addition to the Tier 2 HHS calls she is currently receiving, Plaintiff has been trained to use the IWAA to respond to Tier 1 calls for the HHS department. In order to limit the Tier 1 calls routed to Plaintiff to calls for HHS inquiries, the County set up the “press four option, ” allowing a caller to press the four button to be routed directly into an HHS queue that was sent to Plaintiff first. When the County implemented the press four option, however, Plaintiff was overwhelmed ...

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