[blindlaw] Reyazuddin v. Montgomery County, Maryland, No 14-1299 (4th Cir. June 15, 2015)

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