Yasmin Reyazuddin v. Montgomery County, Maryland

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 8:11-cv-00951-DKC. [999601708]. [14-1299]

Appeal: 14-1299

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-1299

YASMIN REYAZUDDIN,
Plaintiff – Appellant,
v.
MONTGOMERY COUNTY, MARYLAND,
Defendant – Appellee.
−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−----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

Before TRAXLER,
Judges.

Chief

Judge,

Decided:

and

DIAZ

and

June 15, 2015

THACKER,

Circuit

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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.

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DIAZ, Circuit Judge:
Montgomery
call

center

County,

using

employees.

The

Maryland,

software
County

opened

that

did

was

not

a

new,

consolidated

inaccessible

transfer

to

employee

blind
Yasmin

Reyazuddin, who is blind, to the call center along with her
sighted coworkers.
vacant

position

The County also did not hire her for a

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

accommodation.
that

providing

functions

of

a

job

with

a

reasonable

But an employer avoids liability if it can show
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

Accordingly,

do
we

so

may

be

reverse

excused
the

because

district
3

of

court’s

undue
order

hardship.
granting

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summary
claims.

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judgment

to

the

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County

on

Reyazuddin’s

Section

504

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: highinteractivity

or

standard-interactivity.

4

High-interactivity

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mode

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is

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accessible 1

not

ActiveX,

a

interpret.

technology

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because
that

it

is

screen

written

reader

in

Microsoft

software

cannot

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

operate

to

the

software

in

high-interactivity

while others work in standard-interactivity mode.

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
mode,

employees

use

three

features--the

CTI

In this
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
highinteractivity 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.
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SmartScript,

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and

Email

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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
caller’s

a

list

question.

of

articles
Once

to

help

employees

have

employees

answer

identified

the

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)
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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

the

it

would

accessible

cost

through

$200,000

to

make

standard-interactivity

Siebel

mode,

software

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

Siebel software at MC311.

to

configure

and

implement

the

The first estimate to make standard-

interactivity mode available at MC311 was $222,075.

A second

option

assigned

service

to

give

requests

“back
would

office”
cost

employees

$65,625.

By

access
April

to

2011,

estimates rose to $399,270 and $240,867, respectively.

these

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).

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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.
questions

from

Department’s

County

services,

In that role, she answered

residents

referrals

to

who

called

County

status of applications for benefits.

about

programs,

the

and

the

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

sixteen

months,

Referral

Aides

During

this

from

her

Reyazuddin
received

time,

the

then-supervisor.
and

updates
County

the
on

was

other

MC311’s

Over

the

next

Information

and

general

determining

how

progress.
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.

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Reyazuddin expressed concern about MC311’s accessibility.
She

also

told

Calderone

that

she

had

scheduled

leave

October 28 to November 28, 2009, for a trip to India.

from

Calderone

emailed this information to Leslie Hamm, then-Manager and nowDirector 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.
duties

by

answering

the

She continued to perform her

Department

information

line

until

February 4, 2010, when the information line was switched off and
calls were transferred to MC311.
nothing to do.

For one day, Reyazuddin had

Then the County decided that MC311 would not

handle Manna Food Center referrals, which allow eligible lowincome individuals to receive food from a private, non-profit
food bank.

Reyazuddin was assigned this task, but it was not

full-time work.

9

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In

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March

Department’s
Intake. 4

2010,
Aging

For

the

Reyazuddin

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was

and

Disability

next

six

assigned
Unit

months,

struggled to find work for her.

to

for

work

Adult

Reyazuddin’s

in

the

Services

supervisors

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

interviewed for one of two vacancies at MC311.

applicants

were

Reyazuddin was

not one of the two top-scoring applicants who the interviewers
recommended to fill the vacancies.

4

Although not required to do

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.
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so under County policy, Hamm ultimately hired the recommended
applicants.
C.
Reyazuddin
Section

504

of

alleges
the

that,

in

2009,

Rehabilitation

Act

the
by

County
(1)

violated

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.
solution

would

be

compatible

with

screen

reader

The custom
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.
actual

Ulrich noted flaws in the report and estimated that the
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.
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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
motion

judgment.
and

The

denied

district

court

Reyazuddin’s.

granted

Regarding

the

the

County’s

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

Reyazuddin, 7 F. Supp. 3d at 548.

of

the

[MC311]

job.”

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.
On
County

Reyazuddin’s

Id. at 549.

not

disparate-treatment

transferring

her

to

MC311,

claim

based

the

district

on

the

court

determined that the claim rose and fell with the failure-toaccommodate 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
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Id. at 554-55.

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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
order.

review

de

novo

a

district

court’s

summary

judgment

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.”
v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).

Anderson

The evidence

must be viewed in the light most favorable to the non-moving
party,
favor.

with

all

reasonable

inferences

D.L., 706 F.3d at 258.

drawn

in

that

party’s

“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).

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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.”
§ 794(d).
from

Id.

Of significance here, Title I prohibits employers

“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

§ 12112(b)(5)(A)

of

such

(2012).

covered
A

entity.”

“qualified

6

42

individual”

U.S.C.
is

“an

The County on appeal has abandoned its defense to Section
504 liability based on MC311 not receiving federal funding.

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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-toaccommodate 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,

‘accommodation’

the
seems

employee
reasonable
15

“need
on

its

only
face,”

show
and

that

an

then

the

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employer

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“must

show

Pg: 16 of 35

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

Reyazuddin’s

third
proposed

element,

the

accommodations

parties
are

dispute

reasonable

whether
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.’”

16

Halpern, 669 F.3d at 464

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(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

prepared

a

a

job

are

written

essential,

and

description

if

an

before

employer

has

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

all

a

third

call

center

in

Illinois

where

employees,

including one blind employee, operated in standard-interactivity

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mode.

And

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a

fourth

call

Pg: 18 of 35

center

client

in

Pennsylvania

was

accessible through a custom solution.
The
Siebel
with

County

software

the

CTI

counters
in

that

the

Toolbar

its

decision

inaccessible

in

to

configure

high-interactivity

particular,

“maximize[s

call

the

mode,
center

employees’] efficiency and productivity . . . while keeping the
cost

of

delivering

government

Appellee’s Br. at 17.
productivity

of

services

as

low

as

possible.”

The record, however, is silent about the

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.
if

we

were

necessarily

willing
follow

configuration

is

to

that
an

credit

that

using

the

essential

assumption,

it

does

high-interactivity

job

function,

Even
not

software

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

arrival time for the next public bus.
is

contrary

Disability

to

the

Program

deposition

Manager,

the

estimated

However, this contention

testimony

Ricky
18

about

Wright,

of

the

that

County’s
Reyazuddin

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“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

Reyazuddin, 7 F. Supp. 3d at 551.

to

“comparable

employment.”

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

accommodation.

may

provide

an

alternative

reasonable

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
19

easier

for

it

to

provide.”)

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(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

vacant position” as examples of reasonable accommodations.
U.S.C.

§ 12111(9).

should

provide

Nonetheless,

a

a
42

reasonable

accommodation

equal

meaningful

“a

employment

opportunity.

Meaningful equal employment opportunity means an opportunity to
attain

the

same

nondisabled

level

employees

of

performance

having

similar

as

is

skills

available

and

to

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.”
later

email,

JoAnne

Calderone,

Manager

J.A. 1041.
for

In a

Planning,

Accountability, and Customer Service in the Department of Health
and

Human

Services,

suggested

a

meeting

to

discuss

how

provide Reyazuddin “with a full day of meaningful work.”
1024.

to

J.A.

And a separate series of emails demonstrates a tug-of-war

between Calderone and MC311 over Manna referrals, Reyazuddin’s
20

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primary

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responsibility,

with

Pg: 21 of 35

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.
F.3d

823,

833

(4th

See Pandazides v. Va. Bd. of Educ., 13
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
hardship

on

that
the

the

accommodation

operation

of
21

[its]

would

impose

business.”

an
42

undue
U.S.C.

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§ 12112(b)(5)(A).
action

Title

requiring

I

Pg: 22 of 35

defines

significant

“undue

difficulty

hardship”
or

as

expense,

“an
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

hardship defense.
cost

of

$129,000

to

summary

judgment

on

its

undue

First, the court criticized the estimated
proffered

by

Reyazuddin’s

expert

as

“unsupported” because “it [did] not take into account increased
costs for maintenance and upkeep.”
549.

Second,

the

court

Reyazuddin, 7 F. Supp. 3d at

explained
22

that,

as

a

result

of

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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.”
court’s

analysis

Id.

improperly

We believe that the district

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,

Reyazuddin’s expert, Temeko Richardson.
it

is

undisputed

experts.

The

that

both

evidence

Ulrich

therefore

and
sets

and

discredited

At this point, however,
Richardson
up

a

qualify

battle

of

as
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).

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The district court also did not acknowledge the County’s
substantial

personnel

resources

at

MC311

during

configuration and implementation of the Siebel software.

the
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
affect

that

the

the

overall

proposed

accommodations

operation

of

MC311,

could

result

negatively

in

increased

system maintenance and downtime, and potentially “spill over” to
impact the overall customer service experience.
F.

Supp.

3d

at

549.

judgment standard.

This

analysis

Reyazuddin, 7

misapplies

the

summary

The evidence should be viewed in the light

most favorable to Reyazuddin as the non-moving party, not the
County.
operating

Reyazuddin presented evidence of other call centers
simultaneously

in

high-interactivity
24

and

standard-

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mode

as

well

as

Pg: 25 of 35

her

expert’s

opinion

that

the

proposed solutions for accessibility would “allow a blind user
to

work

at

users.”

MC311

J.A.

without

909.

altering

Moreover,

the

experience

speculation

of

about

sighted

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

accommodations.

County’s

Specifically,

the

budget

court

for

noted

reasonable

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.

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In

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effect,

the

Pg: 26 of 35

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.
regard,

we

think

it

particularly

relevant

that

In that

other

centers have been able to accommodate blind employees.

call

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

Secretary[

of

implementing

the
an

the

needs

of

Treasury]’s

accommodation

the

visually

burden
[to

in

make

impaired,

demonstrating
U.S.

paper

the
that

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
26

considerably

with

her

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failure-to-accommodate claim.

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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

solely on the basis of her disability.

due

to

discrimination

Doe v. Univ. of Md. Med.

Sys. Corp., 50 F.3d 1261, 1264-65 (4th Cir. 1995).
failure-to-accommodate

claim,

the

first

As with the

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

accommodation,

someone
can

“who,

perform

the

with

or

essential

without

reasonable

functions

of

employment position that such individual holds or desires.”
U.S.C. § 12111(8).

the
42

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
disability.

action

and

(2)

discrimination

based

solely

on

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
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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)

discrimination

(applying

claim).

The

this

framework

district

court

to

a

assumed

deciding that Reyazuddin met her initial burden.

Title

I

without

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

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reason for not transferring Reyazuddin.
3d at 554-55.

Reyazuddin, 7 F. Supp.

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.
grant

of

summary

We therefore reverse the district court’s
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.”
The

district

court

assumed

without

42 U.S.C. § 12132.

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).

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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).
Seventh,

Ninth,

and

Tenth

Circuits

have

held

The Second,

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

discrimination

I

is

within

the
the

exclusive
ADA.”

province

Elwell,

693

of

employment

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)).
reached a contrary conclusion.

Only the Eleventh Circuit has

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.
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We join the majority view.
Tenth

Circuits’

thorough

Pg: 31 of 35

The Second, Seventh, Ninth, and

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.
explained,

the

phrase

“services,

As these courts have

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.”
§ 12131(2).

42 U.S.C.

In contrast, a “qualified individual” under Title I

is “an individual who, with or without reasonable accommodation,
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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
with

individuals

its

own

with

heading:

disabilities

Title

I

for

into

three

employment,

parts,
Title

each

II

public services, and Title III for public accommodations.

for
Mary

Jo C., 707 F.3d at 169; Elwell, 693 F.3d at 1309; Zimmerman, 170
F.3d

at

1176.

“diminish[],

To

read

Title

duplicate[],

even

Elwell, 693 F.3d at 1309.

II

to

cover

render[]

employment

superfluous”

would

Title

I.

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,
not

Title

Congress
II,

when

expressly

cross-referenced

mandating

the

standards

Title
that

I,

apply

but
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
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II, covers employment.

Pg: 33 of 35

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

Our previous cases do not compel a different result.

In

unambiguously expressed intent of Congress.”).

Rogers, we did not reach the appellee’s alternative argument
that

the

appellant

could

not

use

Title

II

discrimination claim against his state employer.

to

bring

his

Instead, we

affirmed dismissal for failure to state a claim based on the
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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.
1262.

50 F.3d at

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.
Because

we

hold

that

J.A. 51-52.

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

Appeal: 14-1299

Doc: 39

Filed: 06/15/2015

Pg: 35 of 35

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