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

[Reyazuddin, Yasmin]

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 
>hen 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 Reyazuddin 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 Reyazuddin 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 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