McFarland v. City and County of Denver, The
ORDER granting 32 Motion for Summary Judgment. Plaintiffs Complaint is dismissed, by Magistrate Judge Kathleen M. Tafoya on 9/5/2017. (jgonz, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 15–cv–01258–KMT
THE CITY AND COUNTY OF DENVER,
This matter is before the court on “Defendant’s Motion for Summary Judgment.” (Doc.
No. 32 [“Mot.”].) Plaintiff filed a Response (Doc. No. 34 [“Resp.”]), to which Defendant replied
(Doc. No. 35 [“Reply”].)
Plaintiff began suffering from macular degeneration in approximately 1994 and this has
resulted in the loss of her vision except for “some peripheral vision.” (Doc. No. 33 at 4-5.)
Plaintiff applied for a job with Defendant in its 3-1-1 call center as a Customer Service Agent.
(Doc. No. 34-5; Doc. No. 34-6.) Plaintiff passed the initial requirements and Defendant invited
her to participate in the next stage of the hiring process consisting of computer testing related to
the ability to use Internet Explorer and Microsoft Outlook. (Doc. No. 33 at 11; Doc. No. 34-5 at
The following facts are undisputed unless otherwise noted.
In the email invitation sent to Plaintiff, Defendant stated that if she required an
accommodation for the computer skills testing, she should contact Defendant. (Doc. No. 33 at
11.) Additionally, Defendant’s Rule 3 – Recruitment, Section 3-34(B) provides,
1. The [Career Services Authority] will provide reasonable accommodations in
the assessment process, upon request, for candidates who are qualified individuals
with a disability under the Americans with Disabilities Act.
2. In instances where established assessment procedures are not appropriate for
such candidates, their eligibility shall be determined by alternate assessment
procedures which accurately measures their ability to perform the essential
functions of the position with or without reasonable accommodations.
(Doc. No. 34-17.)
Defendant’s computer skills tests for the 3-1-1 position included a test for use of
Microsoft Outlook and a test for Internet Explorer version 5 (“IE-5”). (Doc. No. 32-1 at 5; Doc.
No. 33 at 15-16.) The Microsoft Outlook test was “informational only,” meaning that a specific
score on the test is not required to pass to the next stage of the hiring process, but the hiring
manager may ultimately consider the score in making a hiring decision. (Doc. No. 32-1 at 2425.) On the IE-5 test, Defendant required a minimum score in order for the applicant to pass to
the next stage of the hiring process. (Doc. No. 32-1 at 17.) The IE-5 test included basic,
intermediate, and advanced questions and in order to advance in the hiring process, an applicant
had to answer at least five of the eight basic questions correctly. (Id. at 18.)
In 2012, Susan Maxfield was a Human Resources (“HR”) specialist for Defendant and
her job duties included identifying reasonable accommodations for people with disabilities
during the pre-employment testing process. (Doc. No. 34-14 at 4.) Although recognizing that a
blind computer user in the 3-1-1 position would accomplish tasks on a computer differently than
a sighted user, Ms. Maxfield did not make any assessment as to the validity of the Outlook and
IE-5 tests as applied to the applicant who is blind. (Id. at 5.) Nor did Ms. Maxfield perform any
analysis regarding whether the Outlook and IE-5 tests tended to screen out persons who were
blind on the basis of their blindness rather than their capability to perform the job for which they
were applying. (Id at 7.) Plaintiff was the first and only blind applicant to take the two tests
during Ms. Maxfield’s tenure as HR Specialist for Defendant. (Id.)
After receiving the request to participate in the computer testing portion of the 3-1-1
agent hiring process, Plaintiff contacted Ms. Maxfield and requested an accommodation. (Doc.
No. 32-2 at 2,7.) Specifically, Plaintiff requested Job Access With Speech (“JAWS”), a type of
speaking software used by blind and visually impaired individuals that reads audibly the text
displayed on the computer monitor and reads the label or tags of computer icons. (Doc. No. 32-2
at 7; Doc. No. 34-1 at 11-12; Doc. No. 34-2 at 3-4.) Ms. Maxfield testified she initially told
Plaintiff that she would look into whether Defendant could obtain JAWS. (Doc. No. 32-2 at 7.)
Plaintiff does not recall what Ms. Maxfield stated with regard to whether Defendant had JAWS
but Plaintiff thought using it during the test was not going to be a problem. (Doc. No. 33 at 12.)
On January 6, 2012, Ms. Maxfield emailed Plaintiff stating, “Lance [Dorris] will be
calling you next week, if he hasn’t already to talk about a test time the week following. We
know we can accommodate the typing test by reading to you but are awaiting information on
securing speaking software for the Internet Explorer and MS Outlook test. Have a great
weekend.” (Doc. No. 33 at 12; Doc. No. 34-8.) Though Plaintiff does not recall attempting to
contact anyone following receipt of this email, Mr. Dorris received an email on January 17, 2012
from an HR technician indicating Plaintiff had attempted to reach either Ms. Maxfield or him in
order to request a test accommodation. (Id.; Doc. No. 34-9.) Mr. Dorris sent Plaintiff an email
on the same date, stating, “Sorry for the late response. I have not had many chances to be near a
phone all week with that ASA Series testing. Chressa, please plan to come in this Thursday, the
19th at 8:15 a.m. for your testing. You and I will work together in order to get this done for you.
You have taken the written portion of the exam and we will just have to do the computer part. If
you have any other issues or questions please contact me by email as I am constantly in the test
room and unavailable to answer the phone.” (Id.; Doc. No. 34-9.) Plaintiff did not respond to
this email. (Doc. No. 33 at 13.)
Plaintiff had previously applied for another position with Defendant, specifically, a
customer service position, and Ms. Maxfield recalled having provided a reader as a reasonable
accommodation for the required testing, though it did not include computer testing. (Doc. No.
32-2 at 7.) Plaintiff thought she used JAWS during the requisite testing for the customer service
position. (Doc. No. 33 at 14.) At no point did anyone tell Plaintiff that JAWS would be
available for the Outlook and IE-5 tests required for the 3-1-1 position. (Id. at 15.)
Upon arriving on January 19, 2012, Plaintiff asked Mr. Dorris about JAWS being
available and he told her that it was not available. (Doc. No. 33 at 15.) Instead, Mr. Dorris acted
as a reader for Plaintiff and administered the Outlook and IE-5 tests to her by reading the
multiple choice questions and the possible answers, and/or by describing the screen to Plaintiff
when necessary, in order for her to answer a question. (Doc. No. 32-1 at 20; Doc. No 33 at 15.)
Plaintiff was also provided extra time to complete her testing. (Doc. No. 32-2 at 8; Doc. No. 33
Plaintiff took the Outlook test first and she has described in detail the manner in which
having a reader, rather than speaking software, as an accommodation for the Outlook test did not
work well. (Doc. No 33 at 15-16.) Additionally, due to the difficulties posed by only having a
reader as an accommodation during the Outlook test, she was very tired by the end of it. (Id. at
28.) Plaintiff never indicated to Mr. Dorris that she was struggling with the Outlook test due to
her blindness, that she was tired by the end of the it due to the difficulties encountered by not
having speaking software, and/or that his assistance as a reader was an insufficient
accommodation. (Id. at 15.)
Plaintiff then took the IE-5 test and answered only three of the eight basic questions
correctly. (Doc. No. 34-12 at 1.) If she had answered two more basic questions correctly,
Plaintiff would have advanced in the hiring process. (Doc. No. 32-1 at 18, 24.) Of the five
questions missed, four of them, specifically numbers 12, 13, 22 and 23, were related to the use of
the “Favorites” function. (Doc. No. 32-4 at 4, 5, and 7.) Plaintiff testified that as to each of the
four Favorites questions she answered incorrectly, the reader was a sufficient accommodation
relative to speaking software because she could answer them with a specific keystroke on the
keyboard and did not need to be able to see anything. (Doc. No. 33 at 28-29.)2
Internet Explorer version 8 (“IE-8”) was released in 2009, three years prior to the test
taken by Plaintiff. (Doc. No. 34-14.) The Internet Explorer test that Plaintiff took in 2012
utilized IE-5, rather than IE-8. (Doc. No. 32-1 at 8.) Plaintiff used IE-8 at home. (Id. at 9.) The
letter Defendant sent to Plaintiff inviting her to take the computer tests for the 3-1-1 position
stated only, “The testing will be comprised of a written exam for Customer Service Agent 15010 and computer based assessments for Microsoft Internet Explorer, Outlook and typing.” (Id. at
Plaintiff also answered question number 16 incorrectly, and though it was not related to the
Favorites function, she testified that a reader was a sufficient accommodation for that question as
well. (Doc. No. 33 at 28-29.)
10.) On the day of testing, Plaintiff never asked what version of Internet Explorer the computer
test utilized. (Id. at 9-10.) On questions 13, 22, and 23, related to the Favorites function,
Plaintiff answered with the keyboard combination Alt+A. (Doc. No. 32-4 at 5, 7, 8.) The
correct answer to each of those questions was the keyboard combination Ctrl+I. (Id.) In IE-8,
both Ctrl+I and Alt+A open the Favorites menu. (Doc. No. 32-1 at 11; Doc. No. 34-15; Doc.
After completing the test on January 19, 2012, Plaintiff emailed an individual about the
computer testing, stating, “I believe the test was set up for sighted people to take it only. I don’t
see how a blind person could manage. Is there some way to see if they can get the test format
changed?” (Id. at 20.) Plaintiff did not contact anyone associated with Defendant regarding the
difficulties posed to blind applicants, nor did she inquire as whether Defendant could or would
change the test format. (Id.) On January 25, 2012, Plaintiff contacted the Equal Employment
Opportunity Commission (“EEOC”) regarding filing a complaint against Defendant based on the
computer tests. (Id. at 22.) The EEOC was reluctant to process Plaintiff’s complaint because
she had not received her test results. (Id.) On February 9, 2012, Plaintiff received notice from
Defendant that she had not passed the IE-5 test. (Id. at 19.) Plaintiff did pass the Microsoft
Outlook portion of the testing. (Id. at 15.) Plaintiff never informed anyone associated with
Defendant about her concerns regarding the testing process, how her disability affected her
performance on the IE-5 test, a need for additional or different accommodations, or that a reader
was not a reasonable accommodation. (Id. at 20, 22-23.)
2. Standard of Review
Summary judgment is appropriate if “the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter for law.” Fed. R. Civ.
P. 56(a). The moving party bears the initial burden of showing an absence of evidence in
support of the nonmoving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
“Once the moving party meets this burden, the burden shifts to the nonmoving party to
demonstrate a genuine issue for trial on a material matter.” Concrete Works, Inc. v. City & Cnty.
of Denver, 36 F.3d 1513, 1518 (10th Cir. 1994) (citing Celotex, 477 U.S. at 325). The
nonmoving party may not rest solely on the allegations in the pleadings, but must instead
designate “specific facts showing that there is a genuine issue for trial.” Celotex, 477 U.S. at
324; see also Fed. R. Civ. P. 56(c). A disputed fact is “material” if “under the substantive law if
is essential to the proper disposition of the claim.” Adler v. Wal-Mart Store, Inc., 144 F.3d 664
670 (10th Cir. 1998) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A
dispute is “genuine” if the evidence is such that it might lead a to reasonable jury to return a
verdict for the nonmoving party. Thomas v. Metro. Life Ins. Co., 631 F.3d 1153, 1160 (10th Cir.
2011) (citing Anderson, 477 U.S. at 248).
When ruling on a motion for summary judgment, a court may consider only admissible
evidence. See Johnson v. Weld Cnty. Colo., 594 F.3d 1202, 1209-10 (10th Cir. 2010). The
factual record and reasonable inferences therefrom are viewed in the light most favorable to the
party opposing summary judgment. Concrete Works, 36 F.3d at 1517. At the summary
judgment state of litigation, a plaintiff’s version of the facts must find support in the record.
Thomson v. Salt Lake Cnty., 584 F.3d 1304, 1312 (10th Cir. 2009). “When opposing parties tell
two different stories, one of which is blatantly contradicted by the record, so that no reasonable
jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a
motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007); Thomson, 584 F.3d
Plaintiff asserts a claim under the Americans with Disabilities Act (“ADA”) alleging
Defendant failed to provide her with reasonable accommodations for the computer testing
required for the 3-1-1 position. (Resp. at 3.) To establish a prima facie case of failure to
accommodate in violation of the ADA, Plaintiff must show: (1) she is a qualified individual with
a disability; (2) the potential employer was aware of her disability; and (3) the employer failed to
reasonably accommodate the disability. Allen v. SouthCrest Hosp., 455 F. App’x 827, 836 n.4
(10th Cir. 2011) (citing Kotwica v. Rose Packing Co., Inc., 637 F.3d 744, 747-48 (7th Cir.
2011)). There is no dispute that Plaintiff has established the first and second elements of her
claim. Thus, the court will address the third element related to reasonable accommodation.
Plaintiff argues Defendant’s computer tests tended to disqualify her because she is blind, rather
than assessing her ability to perform with reasonable accommodations the 3-1-1 job for which
she applied. (Resp. at 3.)
The ADA prohibits discrimination against a “qualified individual” with a disability on the
basis of that disability. 42 U.S.C. § 12112(a). It defines discrimination as including
(5)(A) 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…; or
(6) using qualification standards, employment tests or other selection criteria that
screen out or tend to screen out an individual with a disability or a class of
individuals with disabilities unless the standard, test or other selection criteria, as
used by the covered entity, is shown to be job-related for the position in question
and is consistent with business necessity; and
(7) failing to select and administer tests concerning employment in the most
effective manner to ensure that, when such test is administered to a job applicant
or employee who has a disability that impairs sensory, manual, or speaking skills,
such test results accurately reflect the skills, aptitude, or whatever other factor of
such applicant or employee that such test purports to measure, rather than
reflecting the impaired sensory, manual, or speaking skills of such employee or
applicant (except where such skills are the factors that the test purports to
42 U.S.C. § 12112(b). The EEOC issued guidelines related to these provisions explaining,
“Read together with the reasonable accommodation requirement of section 1630.9, this provision
requires that employment tests be administered to eligible applicants or employees with
disabilities that impair sensory, manual, or speaking skills in formats that do not require the use
of the impaired skill.” 29 C.F.R. pt. 1630.11, app. A reasonable accommodation includes
“[m]odifications or adjustments to a job application process that enable a qualified applicant with
a disability to be considered for the position such qualified applicant desires.” 29 C.F.R.
a. Outlook test
As an initial matter, the court addresses Plaintiff’s ADA claim as it relates to her Outlook
test. Although Plaintiff requested JAWS as a reasonable accommodation for her computer
testing, an employer is not required to provide the exact accommodation requested by an
employee to satisfy the ADA, but merely a reasonable one. See Selenke v. Med. Imaging of
Colo., 248 F.3d 1249, 1261 (10th Cir. 2001). Plaintiff argues that supplying a reader was not a
reasonable accommodation for the Outlook test. (Resp. at 9-10, 17.)
Relevant to this claim, the Tenth Circuit has explained,
A proposed accommodation is not reasonable on its face if it would not enable the
employee to perform the essential function at issue. See 29 C.F.R. §
1630.2(o)(1)(ii) (defining “reasonable accommodations” to include those “that
enable an individual with a disability who is qualified to perform the essential
functions of that position”); Hennagir v. Utah Dep’t of Corr., 587 F.3d 1255,
1264 (10th Cir. 2009) (deeming proposed accommodations unreasonable because
they would not enable plaintiff to perform the essential functions of a position).
Osborne v. Baxter Healthcare Corp., 798 F.3d 1260, 1267 (10th Cir. 2015). Based on Plaintiff’s
testimony describing the Outlook test and her difficulties in taking it with a reader, the court
finds Plaintiff has established a question of fact as to whether a reader was an effective and
therefore, reasonable accommodation under the ADA for that particular test. (Doc. No. 33 at 1516.)
However, it is undisputed that Plaintiff’s performance on the Outlook test did not have
any bearing on Defendant’s decision that she would not advance further in the hiring process.
(Doc. No. 32-1 at 24-25.) The Outlook test was “informational only” and though her score on
the same might have been considered by a hiring manager later in the hiring process, Plaintiff did
not advance that far due to the score on her IE-5 test. (Id.) Thus, the Outlook test did not screen
out Plaintiff from consideration for the 3-1-1 service position, as prohibited by the ADA. See 42
U.S.C. § 12112(a), (b)(5), (b)(6), (b)(7). Moreover, Plaintiff passed the Outlook portion of the
testing. (Doc. No. 33 at 15.)
Further, as explained in more detail below, presuming the Outlook test had screened out
Plaintiff, her claim would likely not proceed based on her failure to participate in the interactive
process of determining a reasonable accommodation.
b. IE-5 test
Unlike her ADA claim related to the Outlook test, Plaintiff concedes a reader was a
sufficient accommodation relative to her request for speaking software because she could answer
the questions with specific keystrokes on the keyboard and did not need to be able to see
anything in that regard. (Doc. No. 33 at 28-29.) Instead, Plaintiff contends Defendant should
have provided a completely alternate assessment procedure because the IE-5 test, as given, is not
a fair test for a blind applicant. (Resp. at 19-20.)
The record establishes that if Plaintiff had answered two more basic level questions
correctly on the IE-5 test, she would have moved forward in the hiring process. (Doc. No. 32-1
at 18, 24.) She contends her responses to three of the basic questions would have been correct
under IE-8. (Doc. No. 32-1 at 11; Doc. No. 32-4 at 4, 5, 7, and 8; Doc No. 34-15; Doc No. 3416.) Plaintiff was unaware when she took the test that it was based upon IE-5 rather than IE-8,
the version she used at home, because she was “not able to see any visual cues to the differences
in the versions of Internet Explorer.” (Resp. at 19-20.) According to Plaintiff, “[t]he test
significantly disadvantaged her as a blind applicant who had no idea the current keyboard
commands she used were incorrect in the context of the test.” (Id. at 20.) However, Plaintiff’s
failure to communicate with Defendant in any way regarding the difficulties she experienced
with the IE-5 test is fatal to her claim.
To facilitate the reasonable accommodation of employees with disabilities, “[t]he federal
regulations implementing the ADA envision an interactive process that requires participation by
both parties.” Templeton v. Neodata Servs., Inc., 162 F.3d 617, 619 (10th Cir. 1998); 29 C.F.R.
§ 1630.2(o)(3). The purpose of the interactive process is to “identify the precise limitations
resulting from the disability and potential reasonable accommodations that could overcome those
limitations.” 29 C.F.R. § 1630.2 (o)(3). Typically, this interactive process begins with an
employee providing notice to her employer of a disability and any resulting limitations. Smith v.
Midland Brake, Inc., 180 F.3d 1154, 1172 (10th Cir. 1999). It is undisputed in this case that
Plaintiff notified Defendant of her disability and the need for a reasonable accommodation in
order to participate in the computer testing portion of the hiring process. See, supra.
“Once the employer’s responsibilities within the interactive process are triggered by
appropriate notice by the employee, both parties have an obligation to proceed in a reasonably
interactive manner…” Midland Brake, 180 F.3d at 1172. Essentially, this interactive process
includes good-faith communications between the employer and employee. Id.; see also 29
C.F.R. pt. 1630, app. (“The appropriate reasonable accommodation is best determined through a
flexible, interactive process that involves both the employer and the [employee].”) If this
process fails to lead to a reasonable accommodation of the disabled employee’s limitations,
responsibility will lie with the party that caused the breakdown.
No hard and fast rule will suffice, because neither party should be able to cause a
breakdown in the process for the purpose of either avoiding or inflicting liability.
Rather, courts should look for signs of failure to participate in good faith or
failure by one of the parties to make reasonable efforts to help the other party
determine what specific accommodations are necessary. A party that obstructs or
delays the interactive process is not acting in good faith. A party that fails to
communicate, by way of initiation or response, may also be acting in bad faith.
In essence, courts should attempt to isolate the cause of the breakdown and then
Beck v. Univ. of Wis. Bd. of Regents, 75 F.3d 1130, 1135 (7th Cir. 1996) (emphasis provided).
See also Albert v. Smith’s Food & Drug Ctrs., Inc., 356 F.3d 1242, 1253 (10th Cir. 2004)
(“Neither party may create or destroy liability by causing a breakdown of the interactive
Courts have repeatedly ruled in favor of employers in ADA claims where the employee
failed to participate in good faith during the interactive process. For example, the Seventh
Circuit affirmed a grant of summary judgment in favor of the University of Wisconsin where a
secretary suffering from osteoarthritis and depression stood in the way of the University’s efforts
to accommodate her. Beck, 75 F.3d at 1136-37. The secretary requested a reduction of her
repetitive keyboard use and suggested that an adjustable computer keyboard would be helpful.
Id. at 1133. The University responded to both requests, substantially reducing the secretary’s
workload and providing her with a wrist rest. Id. She never sought additional or different
accommodations for her osteoarthritis. Id. at 1134, 1136. However, upon filing her lawsuit, she
complained that the University never provided her with an adjustable keyboard. Id. at 1134. As
to her depression, the University provided various accommodations each time the employee
made an additional request. Id. at 1136. In affirming summary judgment for the University, the
court explained, “At no point did the University fail to respond in some manner to Beck’s
request for accommodation, and there is nothing in the record from which we can discern any
attempt by the University to sweep the problem under the rug.” Id. Because the University
made “reasonable efforts both to communicate with the employee and provide accommodations
based on the information it possessed,” it could not be responsible for the breakdown of the
interactive process. Id. at 1137.
Similarly, in Loulseged v. Akzo Nobel, Inc., 178 F.3d 731 (5th Cir. 1999), the employer
provided the plaintiff with several accommodations for her back injury, including permitting the
plaintiff to use contract workers whenever she needed to transport something heavy. Id. at 733.
When the employer decided the contract workers could no longer be used for this purpose, the
plaintiff abruptly quit. Id. The evidence showed, however, that the employer was looking into
new accommodations for the plaintiff, but she never commented on the new accommodations
and quit before any could be implemented. Id. The court concluded the breakdown in the
interactive process was attributable to the plaintiff and as a result, the employer was not liable.
Id. at 737-40.
After concluding the employer had taken “reasonable preliminary steps” in the
interactive process, the court explained:
We need not address the question whether [the preliminary steps] would have
been sufficient on their own to establish [the employer]’s good faith participation
in the interactive process, because [the employee]’s decision to quit deprived us
of the chance to know what further consultations [the employer] would have
initiated, just as it deprived us of the opportunity to know exactly what
accommodations would have ultimately been provided.
[The employee]’s characterization of [the employer]’s initial efforts as
“unilateral” is a bit one-sided, given her deafening silence when they were
presented to her. No matter how earnestly one party attempts to engage in an
interactive process, its efforts can always be superficially characterized as
unilateral if the other party refuses to interact. One cannot negotiate with a brick
wall. While [the employee] now goes into great detail about the manifest
injustice of the [proposed accommodation], she failed to vocalize any of these
concerns at the time she allegedly realized that she was expected to use [it]…
Indeed, not only did [the employee] testify that she never mentioned the
accommodation issue after her initial conversation with Wheeler, she also made
no detailed complaint touching on her disability in her letter announcing her
reasons for then quitting. [The employer] can fairly complain that its efforts to
begin the interactive process were stymied by [the employee]’s stony silence, and
her quitting robbed [the employer] of a chance to complete the process and
demonstrate its good faith. Thus, so far as is shown by this record, sole
responsibility for the breakdown of the process falls on [the plaintiff]. The
process broke down because she stayed silent, and quit.
Id. at 737-38 (citation omitted).
In the present case, the court finds that the breakdown in the interactive process lies with
Plaintiff, rather than Defendant. Presuming, without deciding, that an alternative assessment
procedure for the IE-5 test was necessary, Plaintiff never communicated this necessity to
Defendant. Prior to filing her EEOC charge and subsequent lawsuit, she never requested an
alternative assessment procedure for the IE-5 test or, more significantly, never told anyone
associated with Defendant, including Mr. Dorris and Ms. Maxfield with whom she had
previously communicated, about her concerns regarding the IE-5 test or that the reason she
missed three of the four questions related to Favorites was because she did not realize what IE
version the test utilized and was unable to see the differences. (Doc. No. 34-1 at 22-23.)3
Plaintiff relies on EEOC v. C.R. England, Inc., 644 F.3d 1028 (10th Cir. 2011) to argue
that she “satisfied her obligations in the interactive process by notifying the City that she was
blind, requesting a reasonable accommodation, and suggesting JAWS as the accommodation.”
(Resp. at 18.) The problem with Plaintiff’s reliance on C.R. England is two-fold. First,
Plaintiff’s assertion implies an employer must provide the accommodation requested by the
employee. However, “an employer is not required to provide the accommodation for a disabled
employee that is ideal from the employee’s standpoint, only one that is reasonable in terms of
costs and benefits.” Chan v. Sprint Corp., 351 F. Supp. 2d 1197, 1207 (D. Kan. 2005) (internal
quotations omitted); see also Selenke, supra. An employer “‘has the ultimate discretion to
choose between effective accommodations, and may choose the less expensive accommodation
It is not clear from the record when Plaintiff discovered that her answers would have been
correct under a more recent version of Internet Explorer than the one upon which she was tested.
However, Plaintiff was aware on the day of her testing that the test posed particular problems for
a blind applicant and wondered whether Defendant could change the testing format. (Doc. No.
33 at 20.) Plaintiff never voiced these concerns or inquiries to Defendant. (Id.)
or the accommodation that is easier for it to provide.’” Midland Brake, 180 F.3d at 1177
(quoting Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1137 (8th Cir. 1999)). “Stated plainly,
under the ADA a qualified individual with a disability is not entitled to the accommodation of
her choice, but only to a reasonable accommodation.” Id. (quoting Stewart v. Happy Herman’s
Cheshire Bridge, Inc., 117 F.3d 1278, 1285-86 (11th Cir. 1997)).
Second, C.R. England does not support Plaintiff’s assertion that an employee’s ADA
obligations are complete upon requesting an accommodation. In that decision, the Tenth Circuit
noted that an employee’s initial request for an accommodation triggers an employer’s duty to
participate in the interactive process between the parties to determine a reasonable
accommodation. Id. at 1049 (citing Midland Brake, 180 F.3d at 1171 (“In general, the
interactive process must ordinarily begin with the employee providing notice to the employer of
the employee’s disability and any resulting limitations . . . .”); Woodman v. Runyon, 132 F.3d
1330, 1345 (10th Cir.1997) (“The employee’s initial request for an accommodation . . . triggers
the employer’s obligation to participate in the interactive process.” (internal quotations
“The interactive process is a process that requires ‘give-and-take.’” Conlon v. City and
County of Denver, No. 11-cv-02039-RBJ-CBS, 2013 WL 143453, at *6 (D. Colo. Jan. 14, 2013)
(quoting EEOC v. Sears, Roebuck, & Co., 417 F.3d 789, 806 (7th Cir. 2005)). As soon as
Plaintiff requested a reasonable accommodation, Defendant engaged in the process and provided
an accommodation. Indeed, the EEOC regulations related to pre-employment testing in the
ADA context contemplate a situation similar to the present case.
Occasionally, an individual with a disability may not realize, prior to the
administration of a test, that he or she will need an accommodation to take that
particular test. In such a situation, the individual with a disability, upon becoming
aware of the need to an accommodation, must so inform the employer or other
covered entity. For example, an individual with a disabling visual impairment
does not request an accommodation for a written examination because he or she is
usually able to take written tests with the aid of his or her own specially designed
lens. When the test is distributed, the individual with a disability discovers that
the lens is insufficient to distinguish the words of the test because of the unusually
low color contrast between the paper and the ink, the individual would be entitled,
at that point, to request an accommodation. The employer or other covered entity
would, thereupon, have to provide a test with higher contrast, schedule a retest,
or provide any other effective accommodation unless to do so would impose an
29 C.F.R. pt. 1630, app. (emphasis provided).
If Plaintiff had communicated with Defendant regarding her difficulties with the IE-5
test, then depending on Defendant’s response to the same, a question of fact may have existed
related to Plaintiff’s claim in this regard. However, an employer cannot alleviate an obstacle of
which it is unaware and due to Plaintiff’s utter lack of communication with Defendant, the
parties never progressed that far into the interactive process.
Plaintiff argues that any request for an alternate assessment procedure would have been
futile. (Resp. at 18-19.) She contends that the only reasonable accommodation would have been
JAWS, which Defendant did not provide upon request, or an alternate assessment procedure,
which Defendant “continues to this day to insist” was unnecessary based on its position that the
reader and extra time was sufficient. (Id. at 19.) Notably, Plaintiff does not cite to any portion
of the record to support the latter argument of Defendant’s continued insistence. Regardless,
however, Plaintiff’s futility argument fails.
“Although the futile gesture doctrine is applicable in the ADA context, . . . only in the
rare case where an employer has essentially foreclosed the interactive process through its
policies or explicit actions will the futile gesture doctrine apply.” Davoll v. Webb, 194 F.3d
1116, 1133 (10th Cir. 1999) (citing Bultemeyer v. Fort Wayne Community Schs., 100 F.3d 1281,
1285 (7th Cir. 1996) (excusing mentally ill plaintiff from requesting reasonable accommodation
because “he may have thought it was futile to ask, after [his employer] told him he would not
receive any more special treatment.”)). In Davoll, the Tenth Circuit excused the plaintiff’s
failure to make a specific request for reassignment because the defendant had a written policy
against reassignment and she was also explicitly told by her superior that the defendant would
not help her find another position. Id.
Unlike Davoll, Defendant’s written policy was to accommodate disabilities, including by
offering alternate assessment procedures. (Doc. No. 34-17.) Further, there is no evidence in the
record before the court that anyone indicated to Plaintiff that the reader and extra time were the
only accommodations Defendant would offer. Plaintiff’s unsupported, conclusory statement that
Defendant “continues to this day to insist” a reader and unlimited time were sufficient implies
this assertion is based upon post-litigation testimony. Such assertions do not establish that prior
to filing a lawsuit, the reason Plaintiff failed to communicate with Defendant regarding
alternative accommodations was due to Defendant’s policies or actions. Moreover, the Tenth
Circuit has “emphasize[d] that an employee’s subjective belief about the futility of initiating the
interactive process will not, by itself, relieve him or her of that obligation.” Davoll, 194 F.3d at
1133 (citing Loulseged, 178 F.3d at 739).
Plaintiff’s failure to communicate regarding the difficulties presented by the IE-5 test
deprived this court of the chance to know what further consultations Defendant would have
initiated, just as it deprived this court of the opportunity to know exactly what alternate
accommodations, if any, Defendant would have ultimately provided. See Loulseged, 178 F.3d at
737; Beck, 75 F.3d at 1135. Plaintiff interrupted the ADA’s interactive process and is thus
precluded from claiming Defendant failed to provide a reasonable accommodation. Beck, 75
F.3d at 1135-36. To hold otherwise would allow per se liability against an employer each time
the initial accommodation provided is ultimately unsuccessful, or ineffective, in enabling the
employee to perform the requisite job functions. The ADA’s interactive process does not
contemplate such liability and the court declines to permit it here.
Therefore, it is
ORDERED that “Defendant’s Motion for Summary Judgment” (Doc. No. 32) is
GRANTED and Plaintiff’s Complaint is dismissed.
Dated this 5th day of September, 2017.
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