[blindlaw] Reyazuddin v. Montgomery County, Maryland, No 14-1299 (4th Cir. June 15, 2015)
David Andrews
dandrews at visi.com
Thu Jun 18 01:36:38 UTC 2015
>
>
>By Paul Mollica of Outten & Golden LLP posted in
><http://www.employmentlawblog.info/daily-developments-in-eeo-law/>Daily
>Developments in EEO Law on Monday, June 15, 2015.
>
>New technology, if applied thoughtlessly, can
>leave disabled employees behind. The Fourth
>Circuit today reverses summary judgment in a
>Rehabilitation Act case where a public employer
>allegedly "opened a new, consolidated call
>center using software that was inaccessible to blind employees."
>
><http://www.ca4.uscourts.gov/Opinions/Published/141299.P.pdf>Reyazuddin
>v. Montgomery County, Maryland, No 14-1299 (4th
>Cir. June 15, 2015): The county moved its "its
>1,500 telephone numbers for 38 offices and
>departments into one call center that residents
>could reach by dialing 311." The system (called
>MC311) was powered by Siebel software, operated
>in "high-interactivity" mode, which - "because
>it is written in Microsoft ActiveX" - was
>inaccessible to blind users because it used "a
>technology that screen reader software cannot interpret."
>
>Had the county chosen to run at least some
>stations in "standard-interactivity" mode,
>though, the system would have been "accessible
>because it is written in standard HTML and
>Javascript" compatible with such readers.
>
>The county looked into making three features -
>"CTI Toolbar, SmartScript, and Email Response" -
>accessible to the blind, but was informed that
>the software was not yet ready, and that an
>intermediate fix would cost no less than
>$200,000. The county declined to pursue that option.
>
>Reyazuddin, an Information and Referral Aide,
>learned in 2009 that her position would be
>transferred to MC311. She was not offered the
>option of transferring, like her sighted
>co-workers, and no other full-time work with the
>county was offered in replacement. She was told
>in 2010 "that she would not be transferring to
>MC311 because it would be too expensive for the
>County to make the software accessible."
>Reyazuddin also applied for a transfer to MC311 in 2012, but was turned down.
>
>Her complaint alleged that the county in 2009
>"violated Section 504 of the Rehabilitation Act
>by (1) failing to accommodate her disability by
>making MC311's software accessible and (2)
>discriminating against her when it did not
>transfer her to MC311 along with her coworkers."
>She also alleged discrimination under Title II
>of the ADA for not hiring her to fill the MC311
>vacancy in 2012. The plaintiff and county each
>retained expert witnesses, who testified that
>the cost of an accommodation at MC311 would have
>been (respectively) $129,600 and $648,000. The
>low-cost estimate was for a custom workaround "widget" for the CTI Toolbar.
>
>The district court granted summary judgment on all claims.
>
>The Fourth Circuit reverses summary judgment on
>the 2009 Rehabilitation Act claim. (It affirmed
>summary judgment on the 2012 claim, holding that
>Title II did not create a cause of action for
>discrimination in public employment.) The panel
>holds that there are genuine disputes of material fact on three issues.
>
>(1) Whether Reyazudden could perform the
>essential functions of her job with a reasonable
>accommodation: Plaintiff established through her
>expert (Temeko Richardson) that other public
>employers were able to make comparable systems
>accessible with a custom solution or by
>operating simultaneously in high-interactivity
>and standard-interactivity modes. While the
>county contended that its system required
>high-interactivity, the record was "silent about
>the productivity of employees operating in
>standard-interactivity mode." Moreover, a county
>employee testified that plaintiff "certainly has
>the knowledge, skills and abilities" to perform
>the essential functions of the MC311 job.
>
>(2) Whether the County refused to make any
>reasonable accommodation: While the county might
>have accommodated Reyazudden by assigning her to
>other work, the best that the county offered was
>for her to retain her title, salary and
>benefits, but without full-time duties. The
>panel holds that there is a genuine dispute
>about whether the make-work tasks offered to
>plaintiff - resulting in no more than five hours
>of work a day - were a reasonable accommodation.
>Documentary evidence supported the plaintiff's
>contention. "For example, an email from a County
>employee shortly before Reyazuddin was assigned
>to work in the Aging and Disability Unit
>expressed concern that her job responsibilities
>would be 'make work' as opposed to 'real, meaningful work.'"
>
>(3) Whether the county could prove that the
>proposed accommodation constituted an "undue
>hardship": The panel holds that the county did
>not make out a defense of "undue hardship" as a
>matter of law. The district court erred by
>weighing and accepting the defense expert's cost estimate as more credible.
>
>"By concluding that the lowest estimate of cost
>was "unsupported," the district court credited
>the County's expert, Brad Ulrich, and
>discredited Reyazuddin's expert, Temeko
>Richardson. At this point, however, it is
>undisputed that both Ulrich and Richardson
>qualify as experts. The evidence therefore sets
>up a battle of the experts, which should not be resolved at summary judgment."
>
>Moreover, the panel holds, the district court
>exalted cost over every other factor, despite
>that the relevant sections (42 U.S.C. §§
>12111(10)(B) and 12112(b)(5)(A)) provide a
>non-exhaustive list of four factors to consider.
>"For instance, the district court's analysis
>does not mention the number of employees at
>MC311 (forty-nine) or the considerable savings
>the County realized from creating a centralized
>call center ($10 million)." The county also
>failed to make a record that the proposed
>accommodation would degrade public services.
>
>The county also tried arguing that "the County's
>budget for reasonable accommodations" was only $25,000. Holds the panel:
>
>"Allowing the County to prevail on its undue
>hardship defense based on its own budgeting
>decisions would effectively cede the legal
>determination on this issue to the employer that
>allegedly failed to accommodate an employee with
>a disability. Taken to its logical extreme, the
>employer could budget $0 for reasonable
>accommodations and thereby always avoid liability."
>
>The panel also finds that there is genuine
>dispute of material fact about whether the
>county discriminated against Reyazuddin in 2009
>by not transferring her to MC311. The panel
>notes that the county "has not offered any other
>nondiscriminatory reason for not transferring
>Reyazuddin," other than undue hardship. "Because
>we hold that a genuine issue for trial remains
>on the County's undue hardship defense, that
>same issue precludes summary judgment for the
>County under the McDonnell Douglas framework."
>__._,_.___
>
>----------
>Posted by: Sam Joehl <sam.joehl at ssbbartgroup.com>
>
>----------
>
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>__,_._,___
David Andrews and long white cane Harry.
E-Mail: dandrews at visi.com or david.andrews at nfbnet.org
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