Yasmin Reyazuddin v. Montgomery County, Maryland , 789 F.3d 407 ( 2015 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1299
YASMIN REYAZUDDIN,
Plaintiff – Appellant,
v.
MONTGOMERY COUNTY, MARYLAND,
Defendant – Appellee.
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AMERICAN COUNCIL OF THE BLIND; AMERICAN CIVIL LIBERTIES
UNION; ASSOCIATION ON HIGHER EDUCATION AND DISABILITY;
CIVIL RIGHTS EDUCATION AND ENFORCEMENT CENTER; DISABILITY
RIGHTS ADVOCATES; LEGAL AID SOCIETY − EMPLOYMENT LAW
CENTER; MARYLAND EMPLOYMENT LAWYERS ASSOCIATION; NATIONAL
ASSOCIATION OF THE DEAF; NATIONAL DISABILITY RIGHTS
NETWORK; PUBLIC JUSTICE CENTER, INC.,
Amici Supporting Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Deborah K. Chasanow, Chief District
Judge. (8:11-cv-00951-DKC)
Argued: January 28, 2015 Decided: June 15, 2015
Before TRAXLER, Chief Judge, and DIAZ and THACKER, Circuit
Judges.
Affirmed in part, reversed in part, and remanded by published
opinion. Judge Diaz wrote the opinion, in which Chief Judge
Traxler and Judge Thacker joined.
ARGUED: Daniel Frank Goldstein, BROWN, GOLDSTEIN & LEVY, LLP,
Baltimore, Maryland, for Appellant. Karen Louise Federman
Henry, COUNTY ATTORNEY’S OFFICE FOR THE COUNTY OF MONTGOMERY,
Rockville, Maryland, for Appellee. ON BRIEF: Joseph B. Espo,
Matthias L. Niska, BROWN, GOLDSTEIN & LEVY, LLP, Baltimore,
Maryland, for Appellant. Marc P. Hansen, County Attorney,
Patricia P. Via, Chief, Division of Litigation, Patricia
Lisehora Kane, Associate County Attorney, COUNTY ATTORNEY’S
OFFICE FOR THE COUNTY OF MONTGOMERY, Rockville, Maryland, for
Appellee. Susan Mizner, Claudia Center, AMERICAN CIVIL
LIBERTIES UNION FOUNDATION, San Francisco, California; Amy
Robertson, CIVIL RIGHTS EDUCATION AND ENFORCEMENT CENTER,
Denver, Colorado, for Amici Curiae.
2
DIAZ, Circuit Judge:
Montgomery County, Maryland, opened a new, consolidated
call center using software that was inaccessible to blind
employees. The County did not transfer employee Yasmin
Reyazuddin, who is blind, to the call center along with her
sighted coworkers. The County also did not hire her for a
vacant position there. Reyazuddin challenged the County’s
actions as violating Section 504 of the Rehabilitation Act of
1973, 29 U.S.C.A. § 794 (West 2014), or Title II of the
Americans with Disabilities Act of 1990 (the “ADA”), 42 U.S.C.
§ 12131 et seq. (2012).
Section 504 forbids an employer from discriminating against
an employee because of her disability. It also requires an
employer to accommodate an employee with a disability who can
perform the essential functions of a job with a reasonable
accommodation. But an employer avoids liability if it can show
that providing an accommodation would constitute an “undue
hardship.”
We find that genuine issues of material fact remain as to
(1) whether Reyazuddin could perform the essential job functions
of a call center employee; (2) whether the County reasonably
accommodated her; and (3) if the County did not, whether its
failure to do so may be excused because of undue hardship.
Accordingly, we reverse the district court’s order granting
3
summary judgment to the County on Reyazuddin’s Section 504
claims. However, we affirm the district court’s order granting
summary judgment to the County on Reyazuddin’s Title II claim
because public employees cannot use Title II to bring employment
discrimination claims against their employers.
I.
A.
In early 2008, as part of its $80 million Technology
Modernization Project, Montgomery County decided to consolidate
its 1,500 telephone numbers for 38 offices and departments into
one call center that residents could reach by dialing 311. The
County’s goals for its consolidated call center (dubbed MC311)
were to achieve accountability, responsiveness, and efficiency.
In January 2009, the County decided to outfit MC311 with
software called Siebel Public Sector 8.1.1, licensed from
Oracle. This software met the County’s goals, was compatible
with other Oracle software already used by the County, and was
cost-effective as a “commercial-off-the-shelf,” as opposed to
custom, product.
The Siebel software can be operated in two modes: high-
interactivity or standard-interactivity. High-interactivity
4
mode is not accessible 1 because it is written in Microsoft
ActiveX, a technology that screen reader software cannot
interpret. Screen reader software enables users who are blind
to operate a computer through keyboard shortcuts, instead of
mouse clicks, and by hearing synthesized speech or using a
refreshable Braille display, in place of reading the screen.
Standard-interactivity mode, however, is accessible because it
is written in standard HTML and Javascript, which are compatible
with screen reader software.
The County’s license allows it to run the software in
either mode. Moreover, it is technologically feasible for some
employees to operate the software in high-interactivity mode
while others work in standard-interactivity mode. Doing so does
not impact overall employee productivity.
The County nonetheless chose to configure the software at
MC311 in high-interactivity mode for all employees. 2 In this
mode, employees use three features--the CTI Toolbar,
1
By “accessible” here and in other variations throughout
the opinion, we mean “accessible to blind employees.”
2
The County expects employees operating in high-
interactivity mode to handle fifty-five to seventy calls per day
with an average call time of three minutes plus ninety seconds
to finish their after-call work. Although we do not know how
(or if) operating a call center in standard-interactivity mode
affects productivity, the record shows that four other U.S. call
centers are accessible by operating in both modes, operating in
standard-interactivity mode only, or using a custom solution.
5
SmartScript, and Email Response--that are not available in
standard-interactivity mode.
The CTI Toolbar integrates MC311’s phone system and the
Siebel software. Employees use the CTI Toolbar to make
themselves available to take calls and to answer and transfer
calls. SmartScript generates a pop-up window containing a
script for employees to read to callers, a field for typing
notes about the call, and a function to transfer emergency calls
to 911. Employees then close SmartScript and the service
request template pops up with fields automatically filled in
with the information previously typed into SmartScript.
The service request form has a keyword search function that
generates a list of articles to help employees answer the
caller’s question. Once employees have identified the best
article, they click on the “attach solution” button to add it to
the service request form. This in turn causes several fields in
the form to populate automatically. These fields include the
appropriate department; the County’s “public answer,” which is a
“short, concise paragraph about how the [C]ounty handles” the
caller’s particular concern; and instructions for employees on
how to handle the call. J.A. 487–88. 3
3
Email Response “is a program that allows [employees] to
send emails to customers in response to a telephone call.”
(Continued)
6
The County first asked Oracle about MC311’s accessibility
in November 2009, more than eleven months after purchasing the
license. Oracle told the County that the CTI Toolbar,
SmartScript, and Email Response features of the Siebel software
would not be accessible until mid-2010. Oracle also estimated
that it would cost $200,000 to make the Siebel software
accessible through standard-interactivity mode, without those
three features.
Over the next sixteen months, the County received
increasing estimates about the cost of accessibility from Opus
Group, a subcontractor hired to configure and implement the
Siebel software at MC311. The first estimate to make standard-
interactivity mode available at MC311 was $222,075. A second
option to give “back office” employees access to assigned
service requests would cost $65,625. By April 2011, these
estimates rose to $399,270 and $240,867, respectively. All the
while, the CTI Toolbar, SmartScript, and Email Response features
remained inaccessible.
Reyazuddin v. Montgomery Cnty., Md., 7 F. Supp. 3d 526, 533 (D.
Md. 2014).
7
B.
Since 2002, Yasmin Reyazuddin has worked in the County’s
Department of Health and Human Services, most recently as one of
five Information and Referral Aides. In that role, she answered
questions from County residents who called about the
Department’s services, referrals to County programs, and the
status of applications for benefits. Reyazuddin, who is blind,
performed her job using screen reader software. Reyazuddin also
used a Braille embosser, which allowed her to print in Braille.
Reyazuddin first learned about the County’s plans to create
MC311 in May 2008 from her then-supervisor. Over the next
sixteen months, Reyazuddin and the other Information and
Referral Aides received updates on MC311’s general progress.
During this time, the County was determining how to staff
MC311’s forty-nine positions.
In October 2009, JoAnne Calderone, Manager for Planning,
Accountability, and Customer Service in the Department of Health
and Human Services, met with the five Information and Referral
Aides and formally told them that their unit was transferring to
MC311. The County planned to transfer Reyazuddin and one other
aide on November 9, with the three remaining aides to follow two
weeks later. The other four Information and Referral Aides are
not blind.
8
Reyazuddin expressed concern about MC311’s accessibility.
She also told Calderone that she had scheduled leave from
October 28 to November 28, 2009, for a trip to India. Calderone
emailed this information to Leslie Hamm, then-Manager and now-
Director of MC311, who responded that the County’s Disability
Program Manager, Ricky Wright, suggested that “the date of
[Reyazuddin’s] detail to MC311 be delayed indefinitely or at
least until . . . she returns from pre-approved leave.” J.A.
1046.
One aide transferred as scheduled on November 9. By the
time Reyazuddin returned from her trip, the other three aides
had also transferred to MC311. But Reyazuddin was not
transferred and instead was told to return to her pre-vacation
job site at the main administrative building for the Department
of Health and Human Services. She continued to perform her
duties by answering the Department information line until
February 4, 2010, when the information line was switched off and
calls were transferred to MC311. For one day, Reyazuddin had
nothing to do. Then the County decided that MC311 would not
handle Manna Food Center referrals, which allow eligible low-
income individuals to receive food from a private, non-profit
food bank. Reyazuddin was assigned this task, but it was not
full-time work.
9
In March 2010, Reyazuddin was assigned to work in the
Department’s Aging and Disability Unit for Adult Services
Intake. 4 For the next six months, Reyazuddin’s supervisors
struggled to find work for her. They thought her work situation
was temporary until she could be transferred to MC311. However,
on October 1, 2010, Wright informed Reyazuddin that she would
not be transferring to MC311 because it would be too expensive
for the County to make the software accessible. Wright
“recommend[ed] the reasonable accommodation of ‘reassignment to
a vacant position’ (priority consideration) in accordance with”
the County employees’ collective bargaining agreement. J.A.
1045.
From 2010 to 2012, Reyazuddin had the same salary, grade,
and benefits as she did before MC311’s launch. But although her
supervisors pieced together tasks for her to perform, she did
not have full-time work.
In 2012, Reyazuddin and eight other applicants were
interviewed for one of two vacancies at MC311. Reyazuddin was
not one of the two top-scoring applicants who the interviewers
recommended to fill the vacancies. Although not required to do
4
This assignment came after the County had given her a
choice between working with the Children’s Resource Center or
the Aging and Disability Resource Unit.
10
so under County policy, Hamm ultimately hired the recommended
applicants.
C.
Reyazuddin alleges that, in 2009, the County 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. Reyazuddin also alleges
that, in 2012, the County violated Title II of the ADA by not
hiring her to fill an MC311 vacancy. 5
Reyazuddin retained an expert, Temeko Richardson, to
evaluate the cost of making MC311 accessible by developing a
custom “widget” as a workaround for the CTI Toolbar. The custom
solution would be compatible with screen reader software.
Richardson had previously seen this alternative at work in other
call centers. Her lowest cost estimate was $129,600.
The County had an expert, Brad Ulrich, review Richardson’s
report. Ulrich noted flaws in the report and estimated that the
actual cost to implement the least expensive accessibility
option suggested by Richardson would be $648,000.
5
The district court granted Reyazuddin’s motion for leave
to file a supplemental complaint in July 2012 to add allegations
about the County’s 2012 conduct, but the court previously denied
her motion for leave to amend her complaint to add a claim that
the County’s 2009 conduct violated Title II.
11
To give these cost estimates some context, the County’s
total budget for fiscal year 2010 was $3.73 billion. MC311’s
budget for fiscal year 2011 was about $4 million. By late
January 2011, the County had spent about $11.4 million on MC311.
But the County estimates that MC311 has saved it $10.3 million
in fiscal years 2010 and 2011.
Following a period of discovery, both parties moved for
summary judgment. The district court granted the County’s
motion and denied Reyazuddin’s. Regarding the failure-to-
accommodate claim, the court found that a genuine issue existed
“as to whether [Reyazuddin’s] proposed accommodation permits her
to perform the essential functions of the [MC311] job.”
Reyazuddin, 7 F. Supp. 3d at 548. But the court determined that
the County reasonably accommodated Reyazuddin by providing her
with comparable employment. Id. at 551. The court also
concluded that no genuine issue existed on the County’s undue
hardship defense and that the County prevailed on that defense
as a matter of law. Id. at 549.
On Reyazuddin’s disparate-treatment claim based on the
County not transferring her to MC311, the district court
determined that the claim rose and fell with the failure-to-
accommodate claim; because the County had shown as a matter of
law that accommodating Reyazuddin at MC311 was an undue
hardship, its decision to not transfer her lacked discriminatory
12
intent. Id. at 554-55. Finally, as to Reyazuddin’s Title II
claim, the court concluded that Reyazuddin failed to present
sufficient evidence that the County’s decision not to hire her
for a vacant MC311 position was pretext for discrimination. Id.
at 557-58.
Reyazuddin appealed.
II.
We review de novo a district court’s summary judgment
order. D.L. ex rel. K.L. v. Balt. Bd. of Sch. Comm’rs, 706 F.3d
256, 258 (4th Cir. 2013). “Summary judgment is appropriate only
where there is no genuine issue of material fact and the movant
is entitled to judgment as a matter of law.” Id. The pertinent
inquiry is whether “there are any genuine factual issues that
properly can be resolved only by a finder of fact because they
may reasonably be resolved in favor of either party.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). The evidence
must be viewed in the light most favorable to the non-moving
party, with all reasonable inferences drawn in that party’s
favor. D.L., 706 F.3d at 258. “The court therefore cannot
weigh the evidence or make credibility determinations.” Jacobs
v. N.C. Admin. Office of the Courts, 780 F.3d 562, 569 (4th Cir.
2015).
13
Section 504 of the Rehabilitation Act mandates that “[n]o
otherwise qualified individual with a disability . . . shall,
solely by reason of her or his disability, be excluded from the
participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving Federal
financial assistance.” 29 U.S.C.A. § 794(a). Relevant to this
appeal, Section 504 defines “program or activity” as “all of the
operations of . . . a department . . . of a State or of a local
government.” 6 Id. § 794(b)(1)(A).
Employment discrimination claims brought under Section 504
are evaluated using the same standards as those “applied under
[T]itle I of the Americans with Disabilities Act of 1990.” Id.
§ 794(d). Of significance here, Title I prohibits employers
from “discriminat[ing] against a qualified individual on the
basis of disability” by “not making reasonable accommodations to
the known physical or mental limitations of an otherwise
qualified individual with a disability who is an applicant or
employee, unless [a] covered entity can demonstrate that the
accommodation would impose an undue hardship on the operation of
the business of such covered entity.” 42 U.S.C.
§ 12112(b)(5)(A) (2012). A “qualified individual” is “an
6
The County on appeal has abandoned its defense to Section
504 liability based on MC311 not receiving federal funding.
14
individual who, with or without reasonable accommodation, can
perform the essential functions of the employment position that
such individual holds or desires.” Id. § 12111(8).
We consider in turn Reyazuddin’s Section 504 failure-to-
accommodate and disparate-treatment claims.
A.
To establish a prima facie case on her failure-to-
accommodate claim, Reyazuddin must show that (1) she qualifies
as an “individual with a disability” as defined in 29 U.S.C.A.
§ 705(20); (2) the County had notice of her disability; (3) she
could perform the essential functions of her job with a
reasonable accommodation; and (4) the County refused to make any
reasonable accommodation. 29 U.S.C.A. § 794(a); Wilson v.
Dollar Gen. Corp., 717 F.3d 337, 345 (4th Cir. 2013).
Even if Reyazuddin establishes her prima facie case, the
County avoids liability if it can show as a matter of law that
the proposed accommodation “will cause ‘undue hardship in the
particular circumstances.’” Halpern v. Wake Forest Univ. Health
Scis., 669 F.3d 454, 464 (4th Cir. 2012) (quoting U.S. Airways
v. Barnett, 535 U.S. 391, 401-02 (2002)). Courts have
reconciled and kept distinct the “reasonable accommodation” and
“undue hardship” requirements by holding that, at the summary
judgment stage, the employee “need only show that an
‘accommodation’ seems reasonable on its face,” and then the
15
employer “must show special (typically case-specific)
circumstances that demonstrate undue hardship.” Barnett, 535
U.S. at 401-02.
That Reyazuddin satisfied the first two elements is
undisputed, but the parties disagree on the third and fourth
elements and the County’s undue hardship defense.
1.
On the third element, the parties dispute whether
Reyazuddin’s proposed accommodations are reasonable and what
constitutes the essential job functions of an MC311 employee.
Title I provides that a “reasonable accommodation” includes
(A) making existing facilities used by employees
readily accessible to and usable by individuals with
disabilities; and
(B) job restructuring, part-time or modified work
schedules, reassignment to a vacant position,
acquisition or modification of equipment or devices,
appropriate adjustment or modifications of
examinations, training materials or policies, the
provision of qualified readers or interpreters, and
other similar accommodations for individuals with
disabilities.
42 U.S.C. § 12111(9).
To overcome a motion for summary judgment, Reyazuddin was
required to “present evidence from which a jury may infer that
the [proposed] accommodation is ‘reasonable on its face, i.e.,
ordinarily or in the run of cases.’” Halpern, 669 F.3d at 464
16
(quoting Barnett, 535 U.S. at 401). A reasonable accommodation
is one that is feasible or plausible. Barnett, 535 U.S. at 402.
To determine essential job functions, Title I requires that
consideration “be given to the employer’s judgment as to what
functions of a job are essential, and if an employer has
prepared a written description before advertising or
interviewing applicants for the job, this description shall be
considered evidence of the essential functions of the job.” 42
U.S.C. § 12111(8).
We agree with the district court that a genuine issue of
material fact exists on this element. Reyazuddin has suggested
two accommodations that she says will allow her to perform the
essential job functions of an MC311 employee: the County could
(1) configure its Siebel software to run concurrently in the
accessible standard-interactivity mode or (2) create a custom
workaround “widget” for the CTI Toolbar.
Reyazuddin supported the reasonableness of these proposals
through evidence from her expert, Temeko Richardson. Richardson
worked with two call centers in California and Pennsylvania that
were accessible by operating simultaneously in high-
interactivity and standard-interactivity modes. She also worked
with a third call center in Illinois where all employees,
including one blind employee, operated in standard-interactivity
17
mode. And a fourth call center client in Pennsylvania was
accessible through a custom solution.
The County counters that its decision to configure the
Siebel software in the inaccessible high-interactivity mode,
with the CTI Toolbar in particular, “maximize[s call center
employees’] efficiency and productivity . . . while keeping the
cost of delivering government services as low as possible.”
Appellee’s Br. at 17. The record, however, is silent about the
productivity of employees operating in standard-interactivity
mode, and so the County is left to speculate that employees
operating without the bells and whistles of the high-
interactivity mode configuration must be less productive. Even
if we were willing to credit that assumption, it does not
necessarily follow that using the high-interactivity software
configuration is an essential job function, particularly in
light of Reyazuddin’s evidence of other call centers functioning
without it.
The County also argues that Reyazuddin’s proposed
accommodations would not allow her to perform the essential job
function of reading maps and PDF documents, which are used to
respond to MC311’s most frequent call about the estimated
arrival time for the next public bus. However, this contention
is contrary to the deposition testimony of the County’s
Disability Program Manager, Ricky Wright, that Reyazuddin
18
“certainly has the knowledge, skills and abilities” to perform
the essential functions of the MC311 job. J.A. 317. Moreover,
when Reyazuddin applied for a vacancy at MC311 in 2012, she was
interviewed after the Office of Human Resources determined that
she met the minimum qualifications. In light of this evidence,
we think that a genuine issue remains as to whether Reyazuddin
could perform the essential job functions with a reasonable
accommodation.
2.
Turning to the fourth element of the failure-to-accommodate
claim, Reyazuddin argues that the district court erred by
finding as a matter of law that the County provided a reasonable
accommodation by reassigning her to “comparable employment.”
Reyazuddin, 7 F. Supp. 3d at 551. We agree that the district
court improperly engaged in fact finding instead of viewing the
evidence in the light most favorable to Reyazuddin.
An employer may reasonably accommodate an employee without
providing the exact accommodation that the employee requested.
Rather, the employer may provide an alternative reasonable
accommodation. See Hankins v. The Gap, Inc., 84 F.3d 797, 800
(6th Cir. 1996) (“[T]he employer providing the accommodation has
the ultimate discretion to choose between effective
accommodations, and may choose the less expensive accommodation
or the accommodation that is easier for it to provide.”)
19
(quoting EEOC Interpretive Guidance on Title I of the Americans
with Disabilities Act, 29 C.F.R. pt. 1630 app. at 406 (2014)).
Title I provides “job restructuring” and “reassignment to a
vacant position” as examples of reasonable accommodations. 42
U.S.C. § 12111(9). Nonetheless, “a reasonable accommodation
should provide a meaningful equal employment opportunity.
Meaningful equal employment opportunity means an opportunity to
attain the same level of performance as is available to
nondisabled employees having similar skills and abilities.”
H.R. Rep. No. 101-485, pt. 2, at 66 (1990), reprinted in 1990
U.S.C.C.A.N. 303, 349.
Here, although Reyazuddin maintained her salary, pay grade,
and benefits, the County cobbled together an assortment of
“make-work” tasks that did not amount to full-time employment.
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.” J.A. 1041. In a
later email, JoAnne Calderone, Manager for Planning,
Accountability, and Customer Service in the Department of Health
and Human Services, suggested a meeting to discuss how to
provide Reyazuddin “with a full day of meaningful work.” J.A.
1024. And a separate series of emails demonstrates a tug-of-war
between Calderone and MC311 over Manna referrals, Reyazuddin’s
20
primary responsibility, with the work being transferred from
MC311 to Reyazuddin, back to MC311, and then back to Reyazuddin
despite a County employee’s opinion that residents “would be
served better” by having these referrals handled within MC311.
J.A. 294-95; Plaintiff’s Cross-Motion for Partial Summary
Judgment at Exhibit 65, Reyazuddin, No. 8:11-cv-951.
Moreover, in her supplemental affidavit, Reyazuddin stated
that Manna referrals--her only “regular task[]”--had decreased
and “could be done in about one hour per day.” J.A. 1015. She
also estimated that it “takes a maximum of four to five hours
per day . . . to complete all of [her] work.” Id.
We hold that the record evidence creates a genuine issue of
material fact as to whether the accommodation provided by the
County was reasonable. See Pandazides v. Va. Bd. of Educ., 13
F.3d 823, 833 (4th Cir. 1994) (noting that “reasonable
accommodation” is a question of fact).
3.
As an alternative to finding that Reyazuddin did not
establish a prima facie case, the district court held that the
County prevailed on its undue hardship defense as a matter of
law. We cannot agree.
An employer is not liable under Section 504 if it “can
demonstrate that the accommodation would impose an undue
hardship on the operation of [its] business.” 42 U.S.C.
21
§ 12112(b)(5)(A). Title I defines “undue hardship” as “an
action requiring significant difficulty or expense, when
considered in light of the factors set forth in subparagraph
(B).” Id. § 12111(10)(A). Subparagraph (B), in turn, provides
a non-exhaustive list of relevant factors:
(i) the nature and cost of the accommodation needed
under this chapter;
(ii) the overall financial resources of the facility
or facilities involved in the provision of the
reasonable accommodation; the number of persons
employed at such facility; the effect on expenses and
resources, or the impact otherwise of such
accommodation upon the operation of the facility;
(iii) the overall financial resources of the covered
entity; the overall size of the business of a covered
entity with respect to the number of its employees;
the number, type, and location of its facilities; and
(iv) the type of operation or operations of the
covered entity, including the composition, structure,
and functions of the workforce of such entity; the
geographic separateness, administrative, or fiscal
relationship of the facility or facilities in question
to the covered entity.
Id. § 12111(10)(B).
The district court gave two reasons for its conclusion that
the County was entitled to summary judgment on its undue
hardship defense. First, the court criticized the estimated
cost of $129,000 proffered by Reyazuddin’s expert as
“unsupported” because “it [did] not take into account increased
costs for maintenance and upkeep.” Reyazuddin, 7 F. Supp. 3d at
549. Second, the court explained that, as a result of
22
Reyazuddin’s proposed accommodation, the employee-facing portion
of MC311 “would be altered and would result in increased
maintenance and more downtime, which could spill over into the
customer service realm.” Id. We believe that the district
court’s analysis improperly weighed conflicting evidence, did
not view the evidence in the light most favorable to Reyazuddin,
and overemphasized one factor while overlooking the others.
“At the summary judgment stage the judge’s function is not
[her]self to weigh the evidence and determine the truth of the
matter but to determine whether there is a genuine issue for
trial.” Anderson, 477 U.S. at 249. 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.
In addition, the district court focused almost exclusively
on the cost of the accommodations, without regard to the other
statutory factors. 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).
23
The district court also did not acknowledge the County’s
substantial personnel resources at MC311 during the
configuration and implementation of the Siebel software. At the
project’s peak, four Opus Group consultants were working for the
County on MC311; one consultant who worked 40 hours per week for
the County and spent 80% of his time doing maintenance of the
call center application testified that he was “not too busy”;
the County paid Opus Group $5,000 per week; and the County had a
Senior IT Specialist on staff who was certified as a Siebel
consultant. J.A. 583, 588-89, 594, 782. Thus, the evidence is
in dispute about the additional resources the County would have
needed to configure, implement, and maintain the Siebel software
in standard-interactivity mode or adopt another accessibility
solution.
Aside from cost, the district court credited the County’s
arguments that the proposed accommodations could negatively
affect the overall operation of MC311, result in increased
system maintenance and downtime, and potentially “spill over” to
impact the overall customer service experience. Reyazuddin, 7
F. Supp. 3d at 549. This analysis misapplies the summary
judgment standard. The evidence should be viewed in the light
most favorable to Reyazuddin as the non-moving party, not the
County. Reyazuddin presented evidence of other call centers
operating simultaneously in high-interactivity and standard-
24
interactivity mode as well as her expert’s opinion that the
proposed solutions for accessibility would “allow a blind user
to work at MC311 without altering the experience of sighted
users.” J.A. 909. Moreover, speculation about spillover
effects cannot aid the County in establishing its undue hardship
defense as a matter of law.
The district court also relied on an irrelevant factor in
assessing undue hardship--the County’s budget for reasonable
accommodations. Specifically, the court noted the County’s
“meager budget for reasonable accommodations: the first $500 is
paid for by the employee’s department. Whatever costs remain
can be paid from a $15,000 line-item in the County’s overall
budget.” Reyazuddin, 7 F. Supp. 3d at 549.
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 County’s overall budget ($3.73 billion in fiscal year 2010)
and MC311’s operating budget (about $4 million) are relevant
factors. See 42 U.S.C. § 12111(10)(B)(ii)-(iii). But the
County’s line-item budget for reasonable accommodations is not.
25
In effect, the district court reduced a multi-factor
analysis to a single factor--cost--that the court believed was
simply too much for the County to bear. But while cost is
important, it cannot be viewed in isolation. Rather, it is the
relative cost, along with other factors, that matters. In that
regard, we think it particularly relevant that other call
centers have been able to accommodate blind employees. See Am.
Council of the Blind v. Paulson, 525 F.3d 1256, 1272 (D.C. Cir.
2008) (affirming the entry of a declaratory judgment on Section
504 liability in part by finding that “because other currency
systems accommodate the needs of the visually impaired, the
Secretary[ of the Treasury]’s burden in demonstrating that
implementing an accommodation [to make U.S. paper currency
accessible to blind individuals] would be unduly burdensome is
particularly heavy”).
Because we find a genuine issue for trial on the third and
fourth elements of Reyazuddin’s prima facie case and the
County’s defense, we reverse the district court’s order granting
summary judgment to the County on Reyazuddin’s failure-to-
accommodate claim.
B.
Reyazuddin’s disparate-treatment claim, related to the
County’s decision to not transfer her to MC311 in 2009 along
with her sighted colleagues, overlaps considerably with her
26
failure-to-accommodate claim. To establish a prima facie case
of disparate treatment, Reyazuddin must show that she (1) has a
disability; (2) is otherwise qualified for the employment; and
(3) was excluded from that employment due to discrimination
solely on the basis of her disability. Doe v. Univ. of Md. Med.
Sys. Corp., 50 F.3d 1261, 1264-65 (4th Cir. 1995). As with the
failure-to-accommodate claim, the first element here is
undisputed.
The “otherwise qualified” element is the same as the third
element of the failure-to-accommodate claim because a “qualified
individual” is someone “who, with or without reasonable
accommodation, can perform the essential functions of the
employment position that such individual holds or desires.” 42
U.S.C. § 12111(8). Thus, our earlier holding--that there is a
genuine issue of material fact as to whether Reyazuddin is able
to perform the essential job functions with a reasonable
accommodation--applies here as well.
The third element contains two subparts: (1) an adverse
employment action and (2) discrimination based solely on
disability. The district court assumed without deciding that
Reyazuddin suffered an adverse employment action, but the County
argues on appeal that Reyazuddin did not because she continues
to be a Department of Health and Human Services employee with
the same salary, grade, and benefits as she had before MC311
27
opened. But, as discussed above, we think that a genuine issue
of material fact remains due to Reyazuddin’s evidence that her
new responsibilites involve make-work tasks that do not amount
to full-time work.
Turning to the discrimination subpart, the district court
properly applied the burden-shifting framework from McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973).
Under the McDonnell Douglas proof scheme, the
plaintiff has the initial burden of proving a prima
facie case of discrimination by a preponderance of the
evidence. If the plaintiff succeeds in proving the
prima facie case, the burden shifts to the defendant
to articulate some legitimate, nondiscriminatory
explanation which, if believed by the trier of fact,
would support a finding that unlawful discrimination
was not the cause of the [adverse] employment action.
If the defendant meets this burden of production, the
presumption created by the prima facie case “drops out
of the picture,” and the plaintiff bears the ultimate
burden of proving that she has been the victim of
intentional discrimination.
Ennis v. Nat’l Ass’n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 58
(4th Cir. 1995) (applying this framework to a Title I
discrimination claim). The district court assumed without
deciding that Reyazuddin met her initial burden. Because the
County does not dispute this on appeal, we proceed on the same
assumption.
Regarding the County’s burden, the district court concluded
that because the County had proved its undue hardship defense as
a matter of law, it had offered an irrefutably nondiscriminatory
28
reason for not transferring Reyazuddin. Reyazuddin, 7 F. Supp.
3d at 554-55. Other than undue hardship, the County has not
offered any other nondiscriminatory reason for not transferring
Reyazuddin. 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. We therefore reverse the district court’s
grant of summary judgment to the County on Reyazuddin’s
disparate-treatment claim.
III.
Reyazuddin’s final claim is that the County violated Title
II of the ADA by not hiring her to fill a vacancy at MC311.
Title II prohibits discrimination against “qualified
individual[s] with a disability” in the delivery of “services,
programs, or activities of a public entity.” 42 U.S.C. § 12132.
The district court assumed without deciding that Title II
applies to public employment discrimination claims based on two
of our previous cases that similarly assumed without analysis
that Title II could be used in this context. Reyazuddin, 7 F.
Supp. 3d at 556 (citing Rogers v. Dep’t of Health & Envtl.
Control, 174 F.3d 431, 432-33 (4th Cir. 1999), and Doe, 50 F.3d
at 1264-65).
29
Our sister circuits have divided on this issue. See Bd. of
Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356, 360 n.1
(2001) (acknowledging but not resolving the split). The Second,
Seventh, Ninth, and Tenth Circuits have held that litigants
asserting public employment discrimination claims against their
state and local government employers cannot rely on Title II.
Brumfield v. City of Chicago, 735 F.3d 619, 626 (7th Cir. 2013);
Mary Jo C. v. N.Y. State & Local Ret. Sys., 707 F.3d 144, 171
(2d Cir. 2013); 7 Elwell v. Okla. ex rel. Bd. of Regents of the
Univ. of Okla., 693 F.3d 1303, 1313 (10th Cir. 2012); Zimmerman
v. Or. Dep’t of Justice, 170 F.3d 1169, 1178 (9th Cir. 1999).
In addition, the Third and Sixth Circuits “have expressed the
view that Title I is the exclusive province of employment
discrimination within the ADA.” Elwell, 693 F.3d at 1314
(citing Menkowitz v. Pottstown Mem’l Med. Ctr., 154 F.3d 113,
118-19 (3d Cir. 1998), and Parker v. Metro. Life Ins. Co., 121
F.3d 1006, 1014 (6th Cir. 1997)). Only the Eleventh Circuit has
reached a contrary conclusion. Bledsoe v. Palm Beach Cnty. Soil
& Water Conservation Dist., 133 F.3d 816, 820 (11th Cir. 1998).
7
The Second Circuit limited its holding to employers with
at least fifteen employees because Title I defines “employer” as
“a person . . . who has 15 or more employees.” Mary Jo C., 707
F.3d at 167 n.9, 171 & n.12 (quoting 42 U.S.C. § 12111(5)(A)).
The other three circuits did not.
30
We join the majority view. The Second, Seventh, Ninth, and
Tenth Circuits’ thorough analysis of the ADA’s text and
structure, both of which support the more limited reading of
Title II’s scope, is persuasive. See Brumfield, 735 F.3d at
624-29; Mary Jo C., 707 F.3d at 168-72; Elwell, 693 F.3d at
1306-14; Zimmerman, 170 F.3d at 1172-79. As these courts have
explained, the phrase “services, programs, or activities” in
Title II most naturally refers to an entity’s outputs provided
to the public rather than its inputs, such as employees.
Brumfield, 735 F.3d at 627; Mary Jo C., 707 F.3d at 167-68;
Elwell, 693 F.3d at 1306; Zimmerman, 170 F.3d at 1174. And
unlike Section 504 of the Rehabilitation Act, which extends to
employment discrimination claims by broadly defining “program or
activity” to mean “all of the operations” of a state or local
government, Title II does not provide a special definition for
“services, programs, or activities.” Compare 29 U.S.C.A.
§ 794(b)(1)(A) with 42 U.S.C. § 12131.
Title II does, however, define “qualified individual” to
mean “an individual with a disability who, with or without
reasonable modifications . . . meets the essential eligibility
requirements for the receipt of services or the participation in
programs or activities provided by a public entity.” 42 U.S.C.
§ 12131(2). In contrast, a “qualified individual” under Title I
is “an individual who, with or without reasonable accommodation,
31
can perform the essential functions of the employment position.”
Id. § 12111(8). Interpreting Title II not to cover employment
thus gives effect to Congress’s decision to define the term of
art “qualified individual” differently in Title I and Title II.
In terms of structure, courts in the majority have noted
that Congress divided the ADA’s prohibitions on discrimination
against individuals with disabilities into three parts, each
with its own heading: Title I for employment, Title II for
public services, and Title III for public accommodations. Mary
Jo C., 707 F.3d at 169; Elwell, 693 F.3d at 1309; Zimmerman, 170
F.3d at 1176. To read Title II to cover employment would
“diminish[], duplicate[], even render[] superfluous” Title I.
Elwell, 693 F.3d at 1309. That Title I and Title II should
encompass distinct spheres is further supported by Congress’s
decision to delegate authority to promulgate regulations to the
Equal Employment Opportunity Commission under Title I, but to
the Attorney General under Title II. Mary Jo C., 707 F.3d at
169-70 (comparing 42 U.S.C. § 12116 with § 12134(a)); Elwell,
693 F.3d at 1309 (same); Zimmerman, 170 F.3d at 1178 (same).
Lastly, Congress expressly cross-referenced Title I, but
not Title II, when mandating the standards that apply to
employment discrimination claims brought under Section 504 of
the Rehabilitation Act. 29 U.S.C.A. § 794(d). This provides
strong evidence of Congress’s view that Title I, but not Title
32
II, covers employment. Elwell, 693 F.3d at 1312; Zimmerman, 170
F.3d at 1178.
Based on the text and structure of Title II and the ADA, we
agree with the majority of circuits to have considered the
question that Title II unambiguously does not provide a vehicle
for public employment discrimination claims. The Eleventh
Circuit in Bledsoe reached the opposite view after a cursory
recitation of part of Title II’s text, no analysis of the ADA’s
structure, and heavy reliance on legislative history and the
Attorney General’s regulations. 133 F.3d at 820-23. However,
our conclusion that Title II is unambiguous means that we do not
reach legislative history or regulations. Dep’t of Housing &
Urban Dev. v. Rucker, 535 U.S. 125, 132 (2002) (“[R]eference to
legislative history is inappropriate when the text of the
statute is unambiguous.”); Chevron, U.S.A., Inc. v. Natural Res.
Def. Council, Inc., 467 U.S. 837, 842-43 (1984) (“If the intent
of Congress is clear, that is the end of the matter; for the
court, as well as the agency, must give effect to the
unambiguously expressed intent of Congress.”).
Our previous cases do not compel a different result. In
Rogers, we did not reach the appellee’s alternative argument
that the appellant could not use Title II to bring his
discrimination claim against his state employer. Instead, we
affirmed dismissal for failure to state a claim based on the
33
appellee’s primary argument that “the ADA does not require [a
state] to provide the same level of benefits for mental and
physical disabilities in its long-term disability plan for state
employees.” Rogers, 174 F.3d at 436. For purposes of that
case, we implicitly assumed, but did not decide, that Title II
covered employee benefits. And in Doe, the appellant advanced
his claim against his state employer under both Section 504 of
the Rehabilitation Act and Title II of the ADA. 50 F.3d at
1262. Thus, we had no occasion to decide whether the appellant
could have used Title II alone. Here, in contrast, Reyazuddin
alleges that the County’s 2012 conduct violated only Title II
and not the Rehabilitation Act. J.A. 51-52.
Because we hold that public employment discrimination
claims may not be brought under Title II, we affirm the district
court’s summary judgment order on Reyazuddin’s Title II claim. 8
8
Reyazuddin also contends that the County had an obligation
when first purchasing new software to ensure that it was
accessible to employees with disabilities “to the maximum extent
feasible.” Appellant’s Br. at 32 (quoting 28 C.F.R. § 35.151(b)
(2014) and citing 42 U.S.C. § 12183(a)(2)). She borrows this
standard from regulations promulgated by the Attorney General to
implement Title II of the ADA. See 28 C.F.R. § 35.101.
Reyazuddin does not argue that the County’s asserted obligation
arises under the Rehabilitation Act alone, but instead posits
that “Title II rules and regulations apply to Section 504.”
Appellee’s Br. at 30. However, our holding that Reyazuddin
cannot use Title II to bring a claim against the County
forecloses this argument.
34
IV.
For the reasons given, the district court’s judgment is
affirmed in part and reversed in part, and the case is remanded
for further proceedings.
AFFIRMED IN PART,
REVERSED IN PART,
AND REMANDED
35