Court: District Court, D. Maryland; March 20, 2014; Federal District Court
Defendant Montgomery County's motion for summary judgment is granted, while Plaintiff Yasmin Reya-zuddin's cross-motion for partial summary judgment is denied. Motions by both parties to seal certain exhibits are partially granted for the Defendant and fully granted for the Plaintiff.
The Plaintiff, an employee since 2002 and blind, was hired as an Information and Referral Aide in the County’s Department of Health and Human Services. She utilized a screen reader, JAWS, to operate her computer, which required that screen text be in a compatible format. In early 2008, the County initiated a project to establish a County-wide non-emergency call center, known as MC 311, aimed at enhancing accountability and efficiency.
The technology for MC 311 was mandated to be compatible with the County's Oracle Enterprise Resource Planning software. The County selected Oracle's Siebel software on January 3, 2009, due to its cost-effectiveness and compatibility, despite the absence of formal proposals from competing vendors. It was later revealed that while the Siebel product was deemed accessible for callers, it was not accessible for employees, particularly blind employees using screen readers. The implementation team was not instructed to consider ADA or Rehabilitation Act requirements, and the Siebel product’s High Interactivity mode, which offered enhanced features, was incompatible with screen readers.
The County opted for HI mode over SI mode for its call center operations due to the additional efficiencies provided by HI mode, despite the possibility of employees working concurrently in both modes. In HI mode, the County integrated three key features: Computer Telephony Integration (CTI) toolbar, SmartScript, and Email Response, which were not available in either mode at the time of selecting the Siebel system. The CTI toolbar enables Customer Service Representatives (CSRs) to manage calls and monitor performance metrics, while SmartScript offers scripted responses for CSRs to follow during calls. Email Response allows CSRs to communicate via email post-call.
CSRs indicate their availability via the CTI toolbar, which routes incoming calls to them. SmartScript facilitates note-taking and call transfers, populating service request templates for efficient issue resolution. CSRs are expected to complete after-call work within a specific timeframe before becoming available for new calls. Performance metrics indicate that Tier 1 CSRs handle 60-70 calls daily, while Tier 2 handles 55-65. Frequent inquiries to MC 311 include the location of County buses, with CSRs using Smart Traveler for assistance, which has accessibility limitations.
In May 2008, the plaintiff learned about MC 311 and expressed hope for its accessibility. When the software was purchased in January 2009, the County had not finalized staffing plans, ultimately deciding to transfer current employees by mid-2009, which included considering a blind employee for the role.
In August 2009, Ms. Hamm observed the Plaintiff's work at DHHS and requested the Opus team to investigate accommodations for Plaintiff to function as a Customer Service Representative (CSR) at MC 311. Although Plaintiff attended orientation for MC 311 in October 2009, she did not transfer there in December 2009, as the County was still assessing the accessibility of MC 311’s technology for a blind employee. During this period, Plaintiff continued her previous role at DHHS. On November 18, 2009, the County contacted Oracle to determine if MC 311 could be made accessible, receiving a timeline for a Voluntary Product Accessibility Template (VPAT) for the technology, which Oracle ultimately could not meet. A meeting on December 16, 2009, revealed that while the Siebel system could be made accessible at a basic level, achieving full accessibility would require significant technological advances and an estimated cost of $150,000 to $200,000 for the basic adaptation. Mr. Wright concluded on January 6, 2010, that the costs and timeframes for the necessary adaptations would impose an undue hardship on the County. Consequently, he recommended reassigning Plaintiff to a vacant position as a reasonable accommodation. On January 21, 2010, Mr. Wright informed Ms. Calderone that Plaintiff would eventually transfer to MC 311, but it would take approximately six months. Following the automatic routing of DHHS calls to MC 311 on February 4, 2010, Plaintiff was temporarily reassigned due to a lack of work. A memo from Mr. Wright authorized this temporary reassignment while allowing for future consideration of a transfer to MC 311, stipulating that Plaintiff would receive priority consideration for any vacant positions for which she was qualified, though this did not guarantee her selection.
Senior leadership proposed two job options for the Plaintiff within the Department of Health and Human Services (DHHS) at the same grade level as her previous position at the DHHS call center: one at the Children’s Resource Center (CRC) and the other at the Aging and Disability Unit (ADU). The Plaintiff expressed interest in the CRC but preferred the ADU due to her desire to assist individuals with disabilities. Although ADU did not have a specific role available, they were willing to create meaningful assignments for her, albeit with anticipated downtime while establishing a new position. Ultimately, she accepted a position with Adult Services Intake (ASI) within ADU, believing the CRC job to be temporary. The job description for ASI indicated that her core duties would require four to five hours daily, primarily handling MANNA referrals, along with other occasional tasks. However, her supervisor noted that she did not complete all her assigned duties because other offices retained some of the tasks.
In July 2010, during a convention, the Plaintiff learned from Mr. Peter Wallack of Oracle about an accessible Siebel system and a forthcoming patch for Montgomery County issues. She attempted to relay this information to Mr. Wright but received no response. The County later sought updates from Oracle and was informed a fix would be available soon. Opus submitted an estimate for making MC 311 accessible, projecting costs of $287,700 while indicating that accessibility would only be viable in certain operational modes. Mr. Stephen Heissner from the County IT department testified that the absence of the required software version hindered decision-making.
On October 1, 2010, Mr. Wright informed the Plaintiff’s supervisors that while Oracle had some accessible technology, it was insufficient for the Plaintiff to perform essential job functions at her grade level in the MC 311 environment. The projected costs for such technology were significant, including an initial $260,000 and ongoing maintenance expenses of $78,000 monthly. Mr. Wright concluded that accommodating the Plaintiff with the necessary technology would impose an undue financial hardship and recommended reassigning her to a long-term vacant position within the County. He communicated these recommendations to the Plaintiff, who requested assistance in finding another role while continuing her work in ASI.
On November 15, 2010, the County requested an update on the VPAT, and in April 2011, Opus provided a new ROM estimating accessibility costs at $640,136, which would only allow an employee to work in SI mode, based on unreleased software versions. VPATs for CTI Toolbar and SmartScript, essential for compliance, had not yet been published by Oracle. By July 1, 2011, the Plaintiff was reassigned to the Aging and Disability Resource Unit (ADRU), performing the same tasks with reduced hours. Despite having priority consideration for other positions between October 2010 and April 2012, she expressed disinterest in available roles. In her deposition, she acknowledged that while the County provided some accommodations, they were insufficient for her job, although she confirmed that she received necessary accommodations for her current position.
On August 12, 2011, a representative from the National Federation for the Blind found that JAWS was incompatible with the CTI toolbar, hindering her ability to process calls. Oracle published the VPATs for the CTI toolbar and Email Response on October 28, 2011, which only supported accessibility in SI mode and noted existing bugs, including issues that could affect emergency call transfers. The County was still using an older Siebel version, necessitating an upgrade for proper accommodations.
Experts from both sides evaluated the costs and challenges of making MC 311 accessible. The Plaintiff's expert, Ms. Temeko Richardson, cited successful implementations in private call centers but indicated that additional solutions were necessary for the County's Siebel system. She proposed a separate widget to enhance accessibility, estimating costs between $129,600 and $193,200. The Defendant's experts, Mr. Brad Ulrich and Mr. Stephen Heissner, critiqued Richardson’s proposal, highlighting that it would compromise the COTS nature of Siebel and increase the time required to resolve software issues, thereby affecting operational efficiency.
Ms. Richardson mistakenly equated the CSR position with the Plaintiff's job at DHHS, failing to recognize that the CSR role encompasses a broader range of responsibilities across all County departments. This broader scope complicates system interactions, increasing both complexity and costs. Mr. Ulrich criticized her cost estimate as unreliable, arguing it overlooked expenses related to integrating a separate widget into the Siebel system and underestimated implementation costs by four to six times. He estimated the actual implementation cost at between $648,000 and $1,159,200, while his proposal, which remained within the Siebel framework and assumed a bug-free CTI toolbar, was estimated at $929,071. Ms. Richardson countered in an affidavit that her proposal accounted for initial accessibility costs across all thirty-seven County departments involved in MC 311, not just DHHS. However, Plaintiff acknowledged a lack of information regarding ongoing operational and maintenance costs for her solutions. Mr. Heissner noted that implementing either of the proposed solutions would significantly disrupt MC 311 operations and hinder resource availability for essential tasks, and even with full accessibility, performance objectives for blind employees using screen readers might not be met. Opus provided an updated ROM on February 19, 2013, estimating implementation costs at $1,146,670 with annual costs of $229,334.
On April 23, 2012, the County advertised two CSR II positions classified at Grade 16, which matched the Plaintiff's grade. She applied without claiming a disability or requesting priority consideration. Out of forty-five initial applicants, two withdrew. The Office of Human Resources (OHR) reviewed applications for minimum qualifications, which the Plaintiff met, and forwarded qualifying candidates to MC 311 for further evaluation based on five preferred criteria. The applicants were rated on a scale of one to ten, and those who scored high enough were divided into 'qualified' and 'well qualified' lists, with only the latter eligible for interviews. Eight applicants, all sighted, made the eligible list.
Plaintiff, a current County employee applying for a same-grade position, was classified as a 'transfer on review' candidate, necessitating only a minimal qualifications screening by OHR, unlike other candidates who required a full review and rating. After being deemed minimally qualified, she became eligible for an interview, alongside eight other applicants, all of whom were current MC 311 employees except for her. Mr. Brian Roberts conducted an informal rating of Plaintiff, giving her a score of 34 out of 50, noting her strengths in customer service but weaknesses in communication and system experience. He suggested offering her an interview, while indicating that MC 311 could require call center experience for future hires. Ms. Hamm, however, felt it was customary to interview all candidates and proceeded to interview all nine applicants. The interviews were conducted by a panel of three, with questions prepared by Ms. Hamm and Mr. Roberts. Despite guidance to include specific questions regarding disability accommodations, these were not asked during any interview. Applicants typically received a preview of questions, but this was not provided to Plaintiff due to concerns about her disability, and the decision was made to proceed without it after delays in translating the questions into Braille.
Ms. Hamm did not explore alternative methods to provide interview questions to applicants in advance or consult the Plaintiff on the best approach. During interviews, each interviewer rated responses as 'below average,' 'average,' or 'above average,' leading to a consensus rating discussion among the interviewers, with Ms. Hamm having the discretion to deviate from their recommendations. The Plaintiff was the only candidate to pose a question, which concerned the accessibility of MC 311's system. The consensus rating for her was one above-average and six average scores, allowing her to outscore two other applicants. Ultimately, Ms. Hamm accepted the panel's recommendations for two applicants who scored higher, both of whom were not disabled and were already employed in MC 311. The Plaintiff was categorized as 'consider at a later date,' enabling her automatic consideration for future vacancies without reapplication. A conditional job offer required passing a 'limited core' medical exam, including a vision test, which the Plaintiff did not take as she did not receive a conditional offer. The vision test requirement was instituted after the 2010 decision not to transfer the Plaintiff to MC 311.
Procedurally, the Plaintiff filed a complaint on April 12, 2011, alleging violations of Section 504 of the Rehabilitation Act regarding the inaccessibility of MC 311 software and lack of appropriate work opportunities. The County responded on September 1, 2011, and later sought judgment on the pleadings. The Plaintiff attempted to amend her complaint to include a Title II ADA violation, but both motions were denied in January 2012. In July 2012, she was granted leave to file a supplemental complaint, adding a claim related to her failure to be hired for a call center position in 2012. The Defendant responded in November 2012, and subsequent motions for summary judgment and to seal were filed by both parties in 2013.
A court may grant summary judgment only when no genuine dispute exists regarding any material fact, and the moving party is entitled to judgment as a matter of law, as outlined in Federal Rule of Civil Procedure 56(a) and relevant case law. Summary judgment is inappropriate if material facts could reasonably favor either party. The opposing party must provide specific facts demonstrating a genuine issue for trial, rather than relying on mere allegations or denials. A minimal amount of evidence, or evidence that is not significantly probative, is insufficient to prevent summary judgment. The court must view the facts in the light most favorable to the non-moving party.
When cross-motions for summary judgment are presented, each motion is examined separately. Both motions will be denied if there is a genuine dispute of material fact; if one party prevails as a matter of law without any genuine issue, judgment will be rendered accordingly.
In the analysis of evidence disputes, the plaintiff challenges the defendant's affidavits and interrogatory responses, claiming they are based on "knowledge, information and belief," and thus insufficient. The defendant responds by submitting corrected affidavits affirming personal knowledge. The court finds that the defendant's affidavits comply with the necessary legal standards, and the plaintiff's objections are overruled. Additionally, the plaintiff raises concerns about hearsay within the affidavits; however, inadmissible hearsay cannot support summary judgment motions. The court clarifies that summary judgment affidavits must not be conclusory or based on hearsay, rejecting most of the plaintiff's assertions regarding the statements in question.
Operations and maintenance costs for enterprise CRM applications are typically estimated at around 20% of the initial investment annually throughout the system's lifespan. The Defendant mitigates hearsay concerns by providing statements directly from the original speakers, such as an email where Wright mentions Oracle's estimated costs for technology accessibility. The Plaintiff's motion to strike affidavits from Mr. Venzke and Mr. Delgado is rejected, as they were disclosed in a prior discovery dispute, and any failure to identify Mr. Venzke is deemed harmless since he is a successor to an already-known individual. The Plaintiff's objections to the supplemental expert statements of Mr. Ulrich and Mr. Heissner, claiming they are unsworn and improperly submitted, are overruled, particularly as any previous filing issues have been rectified. The Defendant challenges the credibility of the Plaintiff's affidavit, labeling it a "sham" due to inconsistencies with her deposition testimony. The Plaintiff's affidavit states her MANNA referrals could be handled in about one hour daily, while her deposition indicated spending three hours on various tasks. The court finds this not to be a direct contradiction, as the time frames are not mutually exclusive. Consequently, the Defendant's arguments regarding the Plaintiff's affidavit are rejected, allowing the Plaintiff's account to stand.
The statements in question are not inherently contradictory and can be rationalized by the time gap of approximately one year between them, during which an individual's work responsibilities may evolve. Thus, the sham affidavit rule is not applicable, and the Plaintiff's affidavit will be accepted.
The Plaintiff asserts two claims: one under Section 504 of the Rehabilitation Act and another under Title II of the Americans with Disabilities Act (ADA). She alleges that in 2009, the Defendant failed to accommodate her disability by not transferring her to MC 311 or modifying its software for accessibility. In her supplemental complaint, she claims that her 2012 application to MC 311 was denied due to her disability and that she was discriminated against by not receiving interview questions in an accessible format.
The legal standards for evaluating claims under the Rehabilitation Act align with those under Title I of the ADA. There are three grounds for relief: intentional discrimination or disparate treatment, disparate impact, and failure to make reasonable accommodations. The Plaintiff asserts claims of disparate treatment and failure to accommodate, specifically arguing that the Defendant’s use of Seibel software, which is not accessible to blind employees, effectively prevents her transfer to MC 311. She also contends that the Defendant has not provided suitable full-time work matching her skills and experience.
To prevail on her failure to accommodate claim, the Plaintiff must demonstrate that she has a disability, the employer was aware of it, she can perform essential job functions with reasonable accommodations, and the employer refused to provide those accommodations. The ADA defines reasonable accommodations to include making facilities accessible, job restructuring, modifying work schedules, reassignment, and providing necessary equipment or support. The burden of proof lies with the Plaintiff to show her ability to perform the essential functions of the CSR position with reasonable accommodation.
The court in Tyndall v. Nat’l Educ. Ctrs. Inc. must evaluate two main issues: (1) whether the plaintiff can perform the essential job functions, which are significantly related to the job, and (2) if not, whether reasonable accommodations by the employer could enable her to perform those functions. The determination of essential job functions involves considering the employer's judgment, written job descriptions created prior to hiring, and the experiences of previous employees in similar roles. The burden is on the plaintiff to prove she can perform essential functions with reasonable accommodation, while the defendant must demonstrate that specific job functions are indeed essential. If a disabled employee challenges a job requirement as non-essential, the employer must prove its necessity.
The ADA stipulates that an employer's written job description is pertinent evidence of essential functions. To oppose an employer's summary judgment motion, the plaintiff must show that a proposed accommodation appears reasonable, which is assessed based on its feasibility. Once the plaintiff establishes that the accommodation is plausible, the employer must then prove that it would face undue hardship due to the accommodation in the specific context of its operations. The plaintiff argued for a transfer to a CSR position and necessary modifications to facilitate her employment in that role.
The plaintiff asserts that the MC 311 Customer Service Representative (CSR) position is her rightful role, and the County does not dispute this perspective but questions whether the proposed accommodations would allow her to perform essential job functions. The plaintiff contends that the County is incorrect in claiming that her modification request involves converting the MC 311 computer system, arguing that the County has a prior obligation under Title II and Section 504 to make its systems accessible, irrespective of current staff disabilities. Her accommodation claim is solely based on Section 504, as her attempt to amend the complaint to include a Title II violation was denied, making her references to Title II cases irrelevant.
Section 504 requires that employment discrimination claims be evaluated using the same standards as Title I of the ADA, which necessitates that an employee informs the employer of their disability. The County argues that it is not required to accommodate every possible disability and that staffing decisions were uncertain at the time the computer system was initially configured. They assert that the plaintiff cannot equate her previous position in the Department of Health and Human Services (DHHS) with the CSR role, which requires access to various agency documents, including PDF files and maps, essential for answering common inquiries. The County outlines performance expectations for CSRs, including managing a high volume of calls and completing tasks within strict time limits.
In response, the plaintiff argues that reading maps is irrelevant, as the Smart Traveler system is accessible through text, and that some PDFs are screen-reader compatible. She claims the County has not justified why unreadable PDFs cannot be reformatted. The essential functions cited by the County were not mentioned in the CSR II job description and were introduced only in litigation. Although she does not challenge the performance metrics, she believes she can fulfill these requirements with reasonable accommodation. Additionally, she highlights that prior to the accommodation issues, the County had plans to transfer her to MC 311, suggesting a recognition of her capability to perform the job.
An official testified that the Plaintiff possesses the necessary skills to perform the essential job functions of MC 311. However, both parties present a genuine dispute regarding the essential functions that must be met with or without reasonable accommodation, preventing either side from obtaining summary judgment. The Defendant contends that current technology cannot adequately support a blind employee in fulfilling these essential functions, citing that the Plaintiff’s system would need to operate in SI mode, which would sacrifice key features such as dynamic editing and client-side validation. Nonetheless, evidence indicates that it is feasible for one employee to use the system in SI+ mode while others use HI mode, suggesting that the lost features may be conveniences rather than critical job functions.
The Defendant further argues that issues with the CTI toolbar undermine confidence in accommodating a blind employee, yet the Plaintiff's proposed solution bypasses these issues entirely. The County raises concerns about the costs and maintenance of implementing this accommodation, but these concerns pertain to its defense of undue hardship, rather than the feasibility of the accommodation itself.
The court recognizes a genuine factual dispute regarding whether the Plaintiff's proposed accommodation allows her to perform essential CSR functions. The concept of "undue hardship" is defined as requiring significant difficulty or expense for the employer. Factors influencing this determination include the nature and cost of the accommodation, the financial resources of the facility, and the overall size and structure of the employer's operations.
The excerpt evaluates the impact of a proposed accommodation on the operation of a facility, particularly regarding its effects on employee performance and business operations, as outlined in 29 C.F.R. 1630.2(p)(2) and 42 U.S.C. 12111(10)(B). The assessment of "undue hardship" considers various factors, including financial costs, administrative burdens, implementation complexity, and potential negative impacts on business operations and workforce. In this case, the defendant claims that the plaintiff's proposed accommodation imposes undue hardship due to its high cost and disruptive nature to MC 311, with cost estimates ranging from $1 million (defendant's expert) to $129,000 (plaintiff's expert). The defendant argues that even the lower estimate is excessive given MC 311's annual operating budget of over $4 million, which primarily covers personnel costs, leaving limited funds for maintenance and accommodations. Additionally, the accommodation would require parallel systems and increase the complexity and workload for MC 311. The plaintiff counters that the overall county budget of approximately $3.73 billion should be considered, asserting that the accommodation costs are minor in comparison. The plaintiff also argues that the proposed changes, while potentially time-consuming, are not overly complex. Despite this, the defendant maintains that the accommodation would constitute undue hardship, particularly due to unaccounted ongoing maintenance costs associated with the proposed changes.
Plaintiff has acknowledged that Ms. Richardson did not project costs for ongoing operations and maintenance of her solutions, characterizing Plaintiffs' estimate as an initial cost with subsequent ongoing costs. While the customer-facing elements of MC 311 remain unchanged, internal modifications would increase maintenance needs and potentially cause more downtime, affecting customer service. The County has established an undue hardship defense regarding Plaintiffs' requested accommodation. It is not required to provide the specific accommodation requested, as long as a reasonable alternative is offered. A reasonable accommodation must effectively address job-related challenges stemming from the employee’s disability, enabling equal achievement and participation compared to non-disabled individuals in similar roles.
Reassignment is acceptable as an accommodation but is considered a last resort, utilized only when accommodations in the current position would cause undue hardship. Employers are not obligated to create new positions or reassign disabled employees to occupied roles, nor are they required to reallocate essential job functions or assign permanent light duty. If a vacant position is available, the employer must offer it to the employee, prioritizing equivalent roles regarding pay and status. Reassignment is deemed unreasonable if it involves a significant reduction in salary, benefits, or seniority compared to the employee's previous position.
If an employee cannot be accommodated in her previous position, she must identify a vacant, funded position at or below her level for which she qualifies. If, after discovery, she fails to do so, summary judgment must be granted for the defendant. Plaintiffs alleging violations of the ADA must prove the existence of a vacant position for which they are qualified. This includes demonstrating that such a position existed when accommodation was requested. To survive summary judgment, a plaintiff must specifically identify an appropriate vacant job available at the time of the reassignment request. The Eighth Circuit requires evidence that any reassigned position offered was inferior to the former job and that a comparable position was open. In this case, the County offered the plaintiff two job options, one temporary and one permanent with fluctuating hours. The plaintiff ultimately chose the less stable position and was given priority for any suitable job openings at or below her grade. Despite searching for positions, she found none that interested her. Importantly, she did not present evidence of any comparable job being available when she was offered the two positions.
The evidence indicates that the Plaintiff, after accepting a part-time ADU position, declined to apply for multiple available full-time vacancies at DHHS due to lack of interest. Relevant case law shows that an employer's encouragement to apply for other positions, even after an employee took partial disability leave, does not imply failure to accommodate if the employee does not pursue those opportunities. In terms of disparate treatment under the Rehabilitation Act, the Plaintiff must prove: (1) she has a disability, (2) she is qualified for the employment in question, and (3) she was excluded from this employment due to discrimination based solely on her disability. Although both parties agree on the Plaintiff’s disability status, the case hinges on whether the failure to transfer her to MC 311 constitutes an adverse employment action. The Plaintiff can demonstrate intentional discrimination through direct evidence—clear conduct or statements indicating discriminatory intent—or circumstantial evidence. Direct evidence must be blatant and unequivocal, showing that discrimination was a determining factor in the employment decision. To counter a motion for summary judgment, the Plaintiff must provide evidence that unmistakably shows discriminatory considerations influenced the employer’s actions.
Plaintiff may utilize a "pretext" framework, commonly known as the McDonnell Douglas approach, to establish a case of discrimination. Under this framework, the employee must first establish a prima facie case of discrimination and then demonstrate that the employer's stated legitimate reason for an adverse employment action is a pretext for discrimination. Plaintiff claims there is direct evidence of Defendant’s discriminatory behavior regarding her disability, citing that Defendant planned accommodations for her transfer to MC 311 but ultimately rejected them, with supervisors indicating that the transfer was initially under consideration. Specifically, Mr. Wright stated that the transfer was denied due to it being an undue hardship for the Defendant to accommodate her disability. However, this statement does not qualify as direct evidence of discrimination since the reasoning of undue hardship is a valid defense in a failure to accommodate claim. The County's assessment that accommodating Plaintiff would impose undue hardship undermines the alleged discriminatory intent. In the absence of direct evidence, Plaintiff must rely on circumstantial evidence within the McDonnell Douglas framework, which requires her to first show that she faced an adverse employment action despite being qualified, under circumstances that suggest unlawful discrimination. If she can establish her prima facie case, the burden shifts to the employer to provide a legitimate, non-discriminatory reason for the action. If the employer does so, the burden returns to Plaintiff to prove that the reason is merely a pretext for discrimination. Ultimately, Plaintiff retains the burden of proving intentional discrimination by the employer. Assuming the non-transfer was an adverse employment action indicative of discrimination, Defendant contends that the transfer was denied solely because accommodating Plaintiff would impose an undue hardship.
Plaintiff argues that the defendant's actions constitute discrimination based on disability, referencing 29 C.F.R. 32.13(c), which prohibits denying employment or training opportunities to qualified individuals if reasonable accommodations are needed. The term "reasonable" is crucial, as accommodations causing undue hardship for the employer cannot be deemed reasonable. The regulation defines reasonable accommodation as modifications to job structures or performance methods that do not impose undue hardship on the employer's operations, as outlined in 32 C.F.R. 32.3. Since the modifications needed for Plaintiff to perform in MC311 would impose undue hardship, they are not considered reasonable accommodations.
Defendant asserts that it is not denying Plaintiff a position in MC311 out of unwillingness to provide reasonable accommodations. The cases cited by Plaintiff are distinguished; they involved employers who failed to grant accommodations recognized as reasonable. In Carter v. Pathfinder Energy Servs., the employer's refusal to continue a reasonable accommodation raised a material fact issue regarding discrimination. In Baucom v. Potter, the employer terminated an employee for requesting a reasonable accommodation. Conversely, in Cathcart v. Flagstar Corp., a blind employee's inability to use a computer was a key factor in denying her a position, leading the court to potentially find discrimination, as the employer acted on incorrect assumptions about her capabilities.
The facts in Cathcart differ from the current case because the employer in Cathcart improperly assumed the effects of the employee's disability, whereas in this instance, the necessary changes for Plaintiff are deemed to create undue hardship.
Making assumptions about the abilities of individuals with disabilities is contrary to the objectives of disability laws. In this case, the Plaintiff notified the County of her disabilities, prompting an investigation into whether the MC 311 system could be adapted to accommodate her needs. It was concluded that such modifications would impose an undue hardship on the County due to significant costs, which led to her not being transferred to MC 311. The claims of failure to accommodate and disparate treatment are interconnected, with the Defendant's justification for not accommodating the Plaintiff also serving as a legitimate non-discriminatory reason for the disparate treatment claim. The burden of proof for demonstrating undue hardship rested with the Defendant, which it met, even when considering the evidence favorably for the Plaintiff. Consequently, the Plaintiff could not establish a genuine dispute of material fact regarding the Defendant's explanation, leading to a failure in her disparate treatment claim.
Regarding the Plaintiff's claim under Title II of the ADA concerning a vision requirement for MC 311 employees and her non-selection for a transfer in 2012, the Defendant contends that such employment discrimination claims are exclusively under Title I of the ADA. Title I prohibits discrimination against qualified individuals with disabilities in employment contexts, while Title II addresses discrimination in public services and activities. The Defendant cites the Tenth Circuit's decision in Elwell v. Oklahoma and the Supreme Court's denial of certiorari as support for this position, arguing that employment discrimination claims cannot be pursued under Title II. However, the Defendant's interpretation of the circuit decision and the implications of the certiorari denial are seen as flawed.
A circuit split exists regarding the applicability of Title II for employment discrimination claims, acknowledged by the Supreme Court, which has not resolved the issue. The Second, Third, Sixth, Seventh, Ninth, and Tenth Circuits have ruled that Title II does not cover disability discrimination in public employment, while the Eleventh Circuit has a contrary stance. In this district, persuasive authority comes from the Fourth Circuit and the Supreme Court, with the Fourth Circuit having assumed Title II could apply to employment discrimination without explicitly analyzing it. Consequently, the court assumes, without deciding, that the Plaintiff may bring her claims under Title II, incorporating the standards of Title I of the ADA for evaluation.
The Plaintiff alleges discrimination during a job interview due to the lack of accessible question formats. The Defendant argues that no discriminatory action occurred since all candidates received the same questions, and the Plaintiff fails to counter this argument, undermining her claim under Title II. Additionally, the Plaintiff claims she was denied a 2012 position based on disability, which she presents under the McDonnell Douglas framework, needing to establish a prima facie case that includes her disability status, application for the position, qualifications, and rejection under circumstances suggesting discrimination. The Plaintiff successfully meets the prima facie requirements.
Plaintiff's blindness qualifies her as disabled under the ADA, and she applied for a CSR II position with MC 311, for which she met the minimum qualifications. The two selected candidates were not disabled, suggesting potential discrimination. The Defendant argues that the hiring decision was based on the superior qualifications of the chosen candidates, who received "above average" ratings in multiple categories, while Plaintiff had only one such rating, ranking higher than only two out of nine applicants.
To establish pretext for unlawful discrimination, Plaintiff must show that the Defendant's reasons for not hiring her are not credible and that discrimination was the actual motive. Plaintiff argues that the Defendant's failure to accommodate her disability hindered her ability to gain relevant call center experience, impacting her interview performance, particularly on questions about county systems.
She alleges that the Defendant never intended to hire her, citing an email from Mr. Roberts suggesting that her qualifications could be overlooked and advocating for a requirement of call center experience for applicants. Additionally, an email from Mr. Wright indicated that the interview process was manipulated. Plaintiff contends that the hiring manager, Ms. Hamm, was not limited by interview scores and chose not to hire her due to the County's lack of commitment to making MC 311 accessible.
However, the court notes that Defendant's refusal to implement Plaintiff's proposed accommodations was permissible due to claims of undue hardship, undermining her argument that she should not have had to apply for the position in the first place.
Ms. Hamm's rationale for not hiring the Plaintiff is unconnected to the circumstances mentioned. Even if the Plaintiff had call center experience, her potential score of "above average" would still fall short compared to the selected candidates, who received four and five "above average" marks. The Plaintiff must demonstrate she was more qualified than those chosen, as established in E.E.O.C. v. Fed. Reserve Bank of Richmond, a requirement she has not met. The evidence provided by the Plaintiff does not create a genuine dispute regarding material facts. Mr. Roberts’ low score for the Plaintiff and his suggestion for future applicants to have call center experience did not influence Ms. Hamm's decision, as she focused on interviewing those deemed "well qualified" or on the transfer list, regardless of scores. There is no indication that the interviewers were aware of Mr. Roberts' email. Mr. Wright’s recommendation to interview the Plaintiff does not undermine the credibility of the interviewers’ ratings or Ms. Hamm's justification for her hiring decisions. Therefore, the Defendant's motion will be granted.
Both parties filed motions to seal certain exhibits. The Plaintiff seeks to seal Exhibits 49, 53, 55, 56, 57, 59, 60, 61, and 62, which include ratings, interview schedules, notes, evaluations, offer letters, and resumes related to the CSR II position, designated as "confidential" under a protective order. The Defendant does not oppose this motion. The Defendant also seeks to seal Exhibits 5, 6, 22, 31, 33, and 37, which consist of ROMs, interview notes, the Plaintiff's application, and email correspondence regarding accessibility, all relevant to the CSR II position.
Email correspondence between Oracle and Montgomery County from December 2009, related to accessibility issues, is marked confidential under a Protective Order. The Plaintiff opposes sealing certain exhibits, arguing that the confidential information in the two ROMs is outdated and that Defendant extensively quotes from them in its summary judgment motion. She also contests sealing part of Exhibit 31, specifically emails among Montgomery County employees that were not labeled as confidential, but does not object to sealing correspondence between Oracle and Defendant. Additionally, the Plaintiff waives her privacy rights regarding her job application, requesting it be unsealed.
Public access to documents filed in district court is supported by both common law and the First Amendment. The common law grants a presumption of public inspection and copying of judicial records, which can be rebutted by demonstrating significant countervailing interests. The burden of proof lies with the party seeking to restrict access. The district court retains discretion over access decisions. The First Amendment offers a more stringent right of access for specific judicial records, allowing denial only if a compelling governmental interest is demonstrated, and any denial must be narrowly tailored.
For a document to qualify for access rights under either framework, it must be classified as a 'judicial record.' This includes documents created by the court or those that are integral to the adjudication process. The Fourth Circuit has determined that the First Amendment standard applies to documents filed with summary judgment motions. Consequently, when a request to seal documents arises, the district court must ascertain these distinctions and their implications for access.
Determining whether documents are judicial records subject to common law access and First Amendment protection is critical. Any request to seal judicial records requires procedural adherence: the non-moving party must receive notice and an opportunity to object, which can be satisfied by notifying courtroom attendees or by timely docketing the motion. Alternatives to sealing must be considered, and any sealing order must specify the reasons and findings supporting it. The court granted the plaintiff's motion to seal personnel records of non-parties, as they are not involved in the litigation. The defendant's motion to seal was partially granted; sealing was approved for non-party personnel information but denied for the plaintiff's CSR II application, which the plaintiff waived privacy rights over. The sealing requests for two ROMs and correspondence with Oracle were denied due to extensive prior disclosure and insufficient justification, respectively. The defendant's blanket argument for sealing the correspondence was inadequate without specific reasons or consideration of alternatives. Ultimately, Montgomery County's motion for summary judgment was granted, while Ms. Reyazuddin’s cross-motion for partial summary judgment was denied.
Defendant's motion to seal is partially granted, while Plaintiff's motion to seal is fully granted, with a separate order to follow. Testimony from Mr. Peter Wallack of Oracle indicated that Oracle did not provide cost estimates, attributing them to Opus. Operational and maintenance (O&M) costs are projected to be 20% of implementation costs for Mr. Ulrich's proposal and 25% for Ms. Richardson's, the latter being higher due to her proposal's separate device from the Seibel infrastructure. Mr. Ulrich criticized Ms. Richardson for omitting O&M cost estimates in her figures and validated Opus’s ROMs as sound at the time of writing.
Applicants responded to a series of questions regarding customer service, communication skills, and their experience with Montgomery County information systems. An unopposed motion to file a corrected memorandum in support of Plaintiff's cross-motion for partial summary judgment was granted, with references now pointing to the corrected document.
Under 28 U.S.C. § 1746, declarations made under penalty of perjury are valid in lieu of sworn statements. On November 29, 2011, Plaintiff sought to amend her complaint to include a claim under Title II of the ADA, which the court denied for failing to meet the "good cause" requirement under Rule 16(b). Defendant argues that Plaintiff cannot claim under Section 504 since MC 311 has not received federal funding, although MC 311 was housed within the Office of County Executive, which did receive federal funding until July 2010, implicating MC 311’s activities in that context.
Section 504 applies to the entire department when any part receives federal financial assistance, even if specific funding was not used for the contested program (MC 311). This necessitates an examination of the merits of the Plaintiff's claims under the Rehabilitation Act. The Fourth Circuit mandates that adverse employment actions are prerequisites for such suits. The core dispute revolves around whether the Plaintiff's denied transfer and reduced responsibilities constitute an adverse employment action. However, even if this is assumed, the Plaintiff fails to prove disparate treatment. Additionally, the Defendant has shown that accommodating the Plaintiff's requests would impose an undue hardship, challenging the reasonableness of her proposed accommodation and her qualification for the position. Unlike Title II, non-federal employees need only exhaust Title I claims. Both the ADA and Rehabilitation Act require a demonstration of adverse employment action, which is contested here. The Plaintiff did not receive a conditional job offer, and thus, the requirement for a medical exam, including a vision test, did not arise, making it unnecessary to assess the legitimacy of that requirement under the ADA.
