Reyazuddin v. Montgomery County, Maryland

Filing 353

MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 8/21/2017. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
YASMIN REYAZUDDIN
:
v.

:

Civil Action No. DKC 11-0951

:
MONTGOMERY COUNTY, MARYLAND
:
MEMORANDUM OPINION
After more than six years of litigation in this employment
discrimination

case,

the

remaining

issues

of

declaratory

and

injunctive relief are ready for resolution.
I.

Background
In April 2011, Plaintiff Yasmin Reyazuddin (“Plaintiff”), a

Montgomery County employee since 2002, brought the instant suit
in

which

she

has

brought

claims

under

Section

504

of

the

Rehabilitation Act of 1973, 29 U.S.C. § 794 and the Americans
with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq.
No. 1).

In early 2008, Defendant Montgomery County, Maryland

(“Defendant”
County’s

(ECF

or

“the

customer

County”)

service

began

employees

a

reorganization

from

various

of

the

executive

departments to a single county-wide call center, referred to as
“MC 311.”

At that time, Plaintiff worked as an Information and

Referral Specialist in the County’s Health and Human Services
Department (“HHS”).

Although her colleagues in the same or

similar positions were transferred to MC 311 as Customer Service
Representatives (“CSRs”) when the call center finally opened in
the fall of 2009, Plaintiff, who is blind, was not transferred
to the call center because the County thought it would be too
burdensome

to

make

accessible to her.
positions

within

failing

tools

and

software

used

by

CSRs

Instead, Plaintiff was transferred to two

the

section of HHS.
for

the

Aging

and

Disabilities

Services

(“ADS”)

Her discrimination claims faulted the County

to

provide

a

reasonable

accommodation

for

her

disability that would allow her to transfer to MC 311 as a CSR
with her non-disabled peers.
During
evidence

a

that

February

2016

her

positions

ADS

jury

trial,
failed

Plaintiff
to

presented

provide

her

with

consistent, meaningful work and that she could have performed
the job duties of a CSR with a reasonable accommodation.
court

instructed

the

jury

to

consider,

inter

alia,

The

whether

Plaintiff could perform “[t]he essential job functions . . .
routinely performed by individuals in the MC 311 call center.”
(ECF No. 212, at 11).
perform

the

essential

accommodation

and

The jury found that Plaintiff could
functions

that

of

Defendant

a
had

CSR

with

failed

reasonable accommodation for her disability.
The

jury

also

reviewed

and

rejected

a
to

reasonable
provide

a

(ECF No. 221).

Defendant’s

affirmative

defense that it would have been an undue hardship “to implement
2

the software accommodations Plaintiff had requested.”
No. 212, at 13-14).

It determined, however, that Plaintiff had

sustained zero dollars in damages.
Plaintiff’s

complaint

declaratory relief.

(Id.; ECF

(ECF No. 221).

also

sought

injunctive

(ECF Nos. 1, at 8-9; 58, at 10).

and

After the

jury trial, Plaintiff moved for an order requiring Defendant to
make MC 311 accessible and to give Plaintiff a job as a CSR,
consistent with the position she would have been in had the
discrimination not occurred.
argued,

first,

second,

that

accommodation

that

injunctive

Plaintiff’s
had

(ECF No. 228, at 7).

been

relief

was

entitlement

satisfied

when

Defendant

inappropriate
to

the

a

and,

reasonable

County

offered

Plaintiff a position at the Columbia Lighthouse for the Blind
(“CLB”) in October 2015.

(ECF No. 229).

This offer, which

Plaintiff rejected, was made during the litigation.
incorporate
Plaintiff

that

offer

limited

her

into
claims

the
at

then-upcoming
that

trial

to

Rather than
jury
the

trial,
County’s

conduct and her damages up until the October 2015 offer of a
position at CLB.

(See id. at 7-8).

Whether the CLB position

was a reasonable accommodation was therefore not considered by
the jury.

Thus, notwithstanding the jury’s verdict that the ADS

positions

were

not

a

reasonable

accommodation,

Plaintiff’s

initial motion for injunctive relief was denied because she had
not demonstrated that the CLB offer had not extinguished any
3

entitlement she might have had to injunctive relief.
235, at 1; 246, at 61-63).

(ECF Nos.

The parties proceeded to discovery

to litigate Plaintiff’s equitable claims in May 2016.

(ECF Nos.

236; 238; 241).
While

discovery

related

to

the

CLB

offer

was

ongoing,

Defendant notified Plaintiff that she would be transferred to MC
311.

(ECF No. 258-1, at 1).

This transfer occurred on October

26, 2016, and Plaintiff is now employed as a CSR II at MC 311.
Defendant

then

moved

to

stay

discovery

to

brief

Plaintiff’s claims had been mooted by her transfer.
258).

whether
(ECF No.

The court granted the stay temporarily and ultimately

determined that an evidentiary hearing was necessary to resolve
Plaintiff’s request for injunctive relief in light of her new
position.

(ECF Nos. 262; 266).

In advance of that hearing,

Plaintiff filed a new motion for injunctive relief and a motion
for partial summary judgment as to the CLB job offer.
295; 296).
judgment.

(ECF Nos.

Defendant filed a motion to dismiss or for summary
(ECF No. 300).

Each of these motions was briefed in

full by the parties, and the court deferred consideration of the
motions.

(ECF Nos. 304; 310; 311; 315; 316; 319; 322).

In light of Plaintiff’s current placement, she has modified
her request for injunctive relief.
MC

311,

Plaintiff

argues

discriminate against her.

that

Although she is working at
Defendant

continues

to

Specifically, Plaintiff contends that
4

differences between her job duties as a CSR and the duties of
other CSRs constitute an ongoing failure to provide a reasonable
accommodation.

Plaintiff

that

discriminated

Defendant

currently

seeks:

against

(1)

her

a

declaration

because

of

her

blindness and (2) a permanent injunction ordering the County to
make

certain

prohibiting

technology

it

from

systems

allowing

accessible systems to lapse.

the

accessible
accessibility

to

her

of

and

currently

(See ECF Nos. 295; 351).

The

issues were briefed in dispositive motions on injunctive relief
and mootness, and an evidentiary hearing was held from April 19
to April 28, 2017.

(See ECF Nos. 295; 300; 310; 311; 316; 319;

328; 329; 330; 331; 332; 346; 348).

Upon consideration of the

evidence adduced at the jury trial and the evidentiary hearing,
as well as the parties’ arguments with respect thereto, the
court

now

issues

findings

of

fact

and

conclusions

of

law

pursuant to Federal Rule of Civil Procedure 52(a).1
II.

Mootness

Defendant contends that the Plaintiff’s claim is now moot
because she has been placed at MC 311 as a CSR as she originally
requested.

The

mootness

doctrine

1

applies

“when

the

issues

Rule 52(a) provides, in relevant part, that “[i]n an
action tried on the facts without a jury . . . , the court must
find the facts specially and state its conclusions of law
separately. The findings and conclusions . . . may appear in an
opinion or a memorandum of decision filed by the court.”
5

presented are no longer ‘live’ or the parties lack a legally
cognizable interest in the outcome.”

Simmons v. United Mortg. &

Loan Inv., LLC, 634 F.3d 754, 763 (4th Cir. 2011) (citing United
States v. Hardy, 545 F.3d 280, 283 (4th Cir. 2008)).
deprives a court of jurisdiction over a case.
factual

or

legal

events

effectively

Mootness

“If intervening

dispel

the

case

or

controversy during the pendency of the suit, the federal courts
are powerless to decide the questions presented.”

Ross v. Reed,

719 F.2d 689, 693-94 (4th Cir. 1983).
In its motion papers, the County argues that there is no
“ongoing

case

or

controversy

[]

involving

her

requested

injunctive relief – to be instated as a CSR II at MC 311.”
No. 300-2, at 24).

(ECF

The County claims that it has remedied the

injury that Plaintiff had previously suffered.

(Id. at 26-27).

It contends that the County provided the relief Plaintiff sought
when it “voluntarily transferred Plaintiff to MC 311 and []
invested hundreds of hours of employee and contractor time to
facilitate Plaintiff’s transition into working as a CSR II at MC
311.”

(Id. at 26).
It is undisputed that Plaintiff is working at MC 311 and

her job title is CSR II, but these facts alone are insufficient
to moot Plaintiff’s claims for injunctive relief without review
of the merits.

Defendant’s argument relies on the factual and

legal determinations presently before the court, specifically,
6

whether her current role provides her with a meaningful equal
employment

opportunity

as

required

by

the

ADA.

Here,

if

Plaintiff could prove her claim that, in spite of her change in
location

and

technological
failure
would

to

have

job

title,

tools

provide
a

Defendant’s

fully
her

“live”

accessible

with

claim

refusal
to

to

her

make

certain

constituted

a

reasonable

accommodation,

for

injunctive

relief.

a
she

Only

if

Defendant is correct that it is now complying with its legal
requirements under the ADA would the controversy cease to exist.
Mootness occurs when the resolution of the issues presented in
the case would not effectuate a remedy, even if the claims were
resolved in the plaintiff’s favor.

Because Defendant’s mootness

argument hinges on the merits of whether Plaintiff’s current
placement

satisfies

the

requirements

of

the

ADA,

the

case

clearly is not moot.
III. Facts from Evidence Presented at the Jury Trial and the
Evidentiary Hearing2

2

These findings are based on the evidence presented at the
jury trial and the evidentiary hearing.
At the latter, the
parties
presented
limited
live
testimony
and
submitted
deposition testimony from numerous witnesses.
Most evidentiary
objections were raised during the hearing and resolved.
A few
objections were noted for later resolution and remained at the
conclusion of the hearing.
None of those remaining objections
pertain to evidence that is germane to the rulings announced in
this opinion, and, accordingly, to the extent any pending
objections remain, they are denied as moot.
7

At

the

evidentiary

hearing,

Plaintiff

presented

fact

testimony from Dieter Klinger, Katherine Johnson, Chris Daniel,
Stephen Heissner, and Jay Kenney.

These witnesses and others at

the evidentiary hearing testified primarily as to the workings
of MC 311 and differences between Plaintiff’s CSR II role and
that of other CSR IIs.

Defendant presented fact testimony from

Plaintiff, Mr. Klinger, Mr. Daniel, Mr. Heissner, Mr. Kenney,
Chris

Turner,

Vivian

Green,

witnesses

Robert
and

are

Sinkler,

Leslie

either

William

Hamm.

employees

Potter,

Most
of

MC

of

311

Kim

Alfonso,

Defendant’s
who

fact

supervised

or

trained Plaintiff or other County employees, primarily in the
Department of Technology Services (“DTS”), who helped provide
technology accommodations for Plaintiff.

They testified as to

the

already

variety

of

ways

that

Defendant

Plaintiff in her new position.

has

accommodated

The parties’ experts testified

as to whether it was possible and at what costs, in terms of
time and money, to make certain systems accessible to Plaintiff.
a. The MC 311 Call Center
MC

311

Corporation
calls.
newer

uses
called

a

software

Seibel

to

system

track

and

produced
respond

by
to

Oracle
incoming

The County currently uses version 8.2.2.4 of Siebel, a
version

than

the

one

considered

in

the

jury

trial.

Version 8.2.2.4 is not the newest version of Seibel, however.
At least two updated versions, referred to as Innovation Pack 15
8

and Innovation Pack 16 (“IP 16”), exist and would increase the
accessibility of the system to blind users.

The County has a

contract in place to upgrade to IP 16 and expects to implement
it by the end of 2017.
Seibel has two interfaces: a public portal, through which
County residents can submit requests online, and an internal
portal, through which CSRs submit service requests on behalf of
the

people

who

call

MC

311.

The

comprehensive than the public portal.

internal

portal

is

more

While using the internal

portal, for example, CSRs read through Knowledge-Based Articles
(“KBAs”), pre-written instructions, based on a caller’s request
type, for how appropriately to answer the caller’s question and
submit

the

service

request.

The

internal

portal

is

also

integrated with the County’s phone system, which provides CSRs
with a series of tools, referred to as the CTI Toolbar, that
help manage calls, transfer caller information, and monitor CSR
status.

After

a

request

is

submitted,

it

appropriate County department to be resolved.

goes

to

the

Seibel assigns

each service request a reference number that can be tracked by
the resident or other CSRs to check progress on the request.
The call center divides calls into two “Tiers” based on the
types of knowledge and software necessary to respond to them.
Tier 1 calls are calls related to any department that can be
answered easily by most CSRs.

These calls include many of the
9

most common requests and are generally resolved using only the
Seibel

system,

Certain

other

KBAs,
calls

and

a

require

series
the

of

interactive

to

use

CSR

maps.

supplementary

software and databases related to several departments including
HHS (CARES), the Permitting Services Department (Hansen), the
Finance
County

Department
employees.

(Munis),
Some

as

of

well

those

as

Human

systems

Resources

for

created

and

are

maintained by other entities, separate from Montgomery County.
In

addition

to

creating

service

requests

in

Seibel,

CSRs

answering these calls must provide specialized information as to
the types of services available and must know how to use these
department-specific

databases.

MC

complicated calls as Tier 2 calls.

311

refers

to

these

more

All calls enter the system

as Tier 1 calls because the call center does not know why a
resident is calling before answering the call; calls are then
reassigned as Tier 2 if necessary.
MC 311 employs two corresponding types of CSRs.

A CSR I

can assist with Tier 1 requests but not Tier 2 requests.

They

answer all calls as they come in and directly respond to any
Tier 1 inquiries.

If answering a caller’s question requires the

specialized training and database access for one of the Tier 2
departments, the CSR I will place the call into the Tier 2 queue
specific to the appropriate Tier 2 department.

10

The caller will

then be transferred to a line that will be answered by someone
trained to assist with that type of Tier 2 call.
Those CSRs who can answer Tier 2 calls are called CSR IIs.
Most CSR IIs are trained in more than one, but not usually all
four, of the departments.
calls

from,

Departments.
calls.

for

Thus, a single CSR II might answer

example,

both

the

HHS

and

Permitting

CSR IIs generally are also able to answer Tier 1

The call center’s phone system will first route any Tier

2 calls to a CSR II trained in that queue.

If there are no

callers waiting in a CSR II’s Tier 2 queues, the system will
instead send Tier 1 calls to that CSR II.
b. Plaintiff’s Current Position
Plaintiff now works at MC 311 as a CSR II.
only one of the Tier 2 queues, HHS calls.
Plaintiff

does

not

receive

Tier

1

calls

She is assigned

Unlike other CSR IIs,
because

she

cannot

currently access the internal portal of the Seibel system or the
interactive maps.

Because she can only answer Tier 2 HHS calls,

Defendant has set the phone system to make Plaintiff the primary
recipient in the queue of these calls; no other CSR II will
receive a Tier 2 HHS call unless Plaintiff is occupied.

In

addition to the Tier 2 HHS calls she is currently receiving,
Plaintiff has the capability to receive Tier 1 calls for the HHS
department.

Plaintiff has not been trained to take other types

of calls.
11

Plaintiff looks up information and submits service requests
using a screen reader called JAWS, an acronym for Job Access
With Speech, which reads aloud to a blind user the information
that is displayed on a screen for sighted users.

JAWS also

allows a blind user to set shortcuts for navigating a page using
specific key combinations, which helps users bypass the default
navigation of the page that sometimes leads through cumbersome
paths or to dead-ends.
and

navigate

a

The process of setting up JAWS to read

page

effectively

is

called

“scripting.”

Plaintiff uses a customized JAWS-scripted public portal on a
non-public County application designed for her.
refer

to

this

system

as

the

Internal

Web

The parties
Accommodation

Application (“IWAA”).
Plaintiff’s CSR II role differs from that of other CSR IIs
in a variety of ways.

Most importantly, Plaintiff does not have

access to the Seibel system’s internal portal, the CTI Toolbar,
or

the

specialized

maps,

and,

therefore,

Plaintiff

assigned to answer any general Tier 1 calls.

is

not

Additionally,

there are several differences between the tools Plaintiff uses
to respond to her Tier 2 HHS inquiries and the tools that other
CSR IIs answering the same calls use.

CSR IIs using the CTI

Toolbar receive the caller’s name and zip code from the Tier 1
CSR who transferred the caller into the HHS Tier 2 queue, but
Plaintiff does not receive this information and must ask the
12

caller for it herself.

While the internal portal creates a

service request number for other CSRs at the beginning of the
request creation process, the IWAA does not produce a service
request

number

until

the

request

has

been

submitted.

As

a

result, Plaintiff must fully submit the request before ending
the call in order to provide the caller with the service request
number for future reference.

To review and correct her requests

after hanging up the call, a process referred to as “quality
review,”
changes.

Plaintiff

must

ask

her

supervisor

to

process

any

Other CSRs also have the capability to telework, but

Plaintiff does not.

Finally, the CTI Toolbar interfaces with

the County’s phone system to notify sighted CSRs of their status
in the queue – that is, whether they are ready to receive calls
– using what the County calls AUX codes.

Plaintiff did not have

a method of accurately checking her AUX code status until the
County implemented a new system for her during the evidentiary
hearing.
Defendant’s

fact

witnesses

testified

as

to

the

numerous

ways that Defendant has already accommodated Plaintiff in her
role as a CSR II.

First, to facilitate Plaintiff’s new role,

the County moved from HHS to MC 311 her computer, JAWS screen
reader

software,

and

display and printer.

other

equipment,

including

a

braille

The County hired a contractor to script

the HHS Tier 2 software database, CARES, for a JAWS user.
13

It

also

hired

Thomas

Logan,

Defendant’s

accessibility

expert

witness, to educate several employees, including Mr. Turner and
Mr.

Sinkler,

about

manage Plaintiff.
applications

JAWS

usage

so

that

they

could

train

and

Second, Defendant has customized a series of

to

enable

Plaintiff

to

enter

service

requests.

When Plaintiff was initially transferred to MC 311, she was
given

an

Excel

spreadsheet

with

the

KBAs

and

instructed

to

submit service requests on behalf of callers through the public
portal of Seibel.

This workflow design proved to be difficult

for Plaintiff because she had to answer a CAPTCHA with each
request.

CAPTCHA, the robot-preventing software that typically

shows a picture of a number or word and asks the user to type
that

number

or

word

into

a

blank

field,

has

an

accessible

solution for blind users, but, for reasons not discussed by the
parties, Plaintiff was unable to answer the CAPTCHA correctly on
a consistent basis.

In order to resolve the CAPTCHA issue,

Defendant’s DTS employees developed and implemented the IWAA,
which allowed Plaintiff to submit requests through a similar,
but non-public, portal without answering a CAPTCHA.

Because the

IWAA was a custom solution tailored especially to Plaintiff, it
was designed to allow her to access the content necessary to
respond to incoming HHS requests using fewer keystrokes and JAWS
shortcuts.

14

Third,

the

County

has

spent

Plaintiff for her current role.
training

period

for

a

CSR,

extensive

time

training

During the customary ten-week
Plaintiff

received

one-on-one

training whereas other employees are typically trained in groups
of

around

eight.

Plaintiff’s

job

For

reasons

performance

at

disputed

MC

311

by
not

has

the

parties,

met

the

call

center’s standards, and the County has continued to provide her
with further training after the initial classes.

Mr. Sinkler

testified that Plaintiff has had difficulty with identifying the
caller’s issue, providing accurate information to the caller,
documenting calls and requests appropriately, exercising proper
tone

and

demeanor,

workload.

and

efficiently

(See DTX 50).3

managing

her

calls

and

He and Mr. Daniel testified that

Plaintiff has generally refused to take notes during training
and has frequently relied on her own memory, as opposed to the
KBAs, leading to her providing information to callers that is
incorrect or outdated.

She remains on a work improvement plan

because of these issues.
Mr. Sinkler also testified that, in addition to the Tier 2
HHS calls she is currently receiving, Plaintiff has been trained
to

use

the

department.
3

The
Defendant.

IWAA

to

In

order

designation

respond
to

to

limit

“DTX”

Tier
the

refers

15

1

Tier
to

calls
1

for

calls

exhibits

the

HHS

routed

to

offered

by

Plaintiff to calls for HHS inquiries, the County set up the
“press four option,” allowing a caller to press the four button
to

be

routed

directly

Plaintiff first.
option,

into

an

HHS

queue

that

was

sent

to

When the County implemented the press four

however,

Plaintiff

calls she received.

was

overwhelmed

by

the

number

of

The County therefore withdrew the press

four option, although the technical capability still exists.
The parties’ experts testified as to whether, how, and at
what costs certain MC 311 systems could be made accessible to
Plaintiff.

Defendant’s

expert

Mr.

Logan

testified

that

identified the thirteen accessibility issues with Seibel.
recommended

implementing

a

native

solution

–

a

he
He

solution

incorporated into a newer version of the software made by the
manufacturer – such as IP 16, as opposed to JAWS scripting,
which he considered more “fragile.”

Plaintiff’s expert Daniel

Buchness testified that he tested the Seibel system currently in
use at MC 311 for the thirteen accessibility errors identified
by Mr. Logan and for any unidentified errors.

He estimated that

it would cost a total of $63,050.43 to use JAWS scripting to
remediate

the

errors

he

found,

that

the

scripting

could

be

implemented in 3-5 weeks, and that the scripting changes would
“most likely” be compatible with upgrades from Oracle like IP
16.

Mr.

application

Buchness
or

acknowledged

browser

that

“hanging”
16

and

one

of

the

“crashing”

issues,

the

–

is,

that

lagging behind the user, freezing, or closing unexpectedly –
would

likely

be

improved,

but

not

entirely

resolved

by

his

proposed repairs.
Plaintiff’s

experts

Shiri

Azenkot

and

Charles

LaPierre

testified that the data used in the maps identified as necessary
to answering Tier 1 calls could likely be made accessible to a
blind user.
somewhere

Based on Mr. LaPierre’s estimates, it would cost

between

$258,300

and

$447,300

to

makes

these

maps

accessible.
Mr. Logan also demonstrated the difference between using
Seibel and using the IWAA to submit a hypothetical HHS request
pertaining to an eviction notice.

He concluded that the IWAA

was better sequenced, required fewer steps, and took less time.
Plaintiff herself acknowledged that the IWAA makes it easier for
her to access KBAs and submit requests.

Mr. Klinger testified

that adding more KBAs to the IWAA would not cost the County any
additional money.
IV.

Findings of Fact and Conclusions of Law
a. Injunctive Relief

Plaintiff seeks a permanent injunction requiring the County
to make the Seibel system’s internal portal and the data from
the commonly used maps accessible to her so that she can answer
Tier 1 calls like all other CSR IIs do.

Specifically, she asks

for an order requiring the County to: (1) use JAWS scripting as
17

necessary to make the Seibel system fully accessible to her
within 60 days; (2) upgrade to IP 16, which Oracle suggests
should fix most or all of the accessibility issues Plaintiff
complains of, by the end of the 2017 calendar year; (3) make
accessible the maps she would need most often within 18 months;
and

(4)

assign

Plaintiff

including Tier 1 calls.

all

of

the

duties

of

a

CSR

II,

She also seeks an order requiring the

County to replace Munis and Hansen, programs used by CSR IIs in
other Tier 2 queues, with accessible versions when they become
available.

Finally, she asks that the court order Defendant to

maintain the accessibility of all software that is currently
accessible.
i. The Effect of the Jury Verdict
Plaintiff
changes

first

she

has

argues

that

requested

the

because

County
the

must
jury

make
made

the
its

determination based on the proposed duties of a CSR that she
posited in the jury trial.
verdict,

it

is

She contends that, after the jury

“indisputable

that

had

Defendant

met

its

obligations under Section 504, the software at MC311 would be
accessible and Plaintiff would be working at MC311 as a CSR II
also

answering

[Tier

1]

calls.”

(ECF

No.

295-1,

at

8).

Plaintiff acknowledges that she is not automatically entitled to
equitable

relief

based

on

the

jury’s

findings,

but

contends

nevertheless that, “because she proved that she is the victim of
18

discrimination[,] she is entitled to an injunction to prevent
the ongoing harm she is suffering.”

(ECF No. 316, at 5).

Here, the jury verdict was based on whether Plaintiff’s
role at ADS was an equal employment opportunity to that of her
peers

who

had

been

transferred

to

CSR

positions

at

MC

311.

Making the accessibility changes Plaintiff now seeks would be
one way for Defendant to comply with the ADA requirements, but
the law is clear that the employer has the ultimate discretion
to

choose

between

effective

accommodations.

Reyazuddin

v.

Montgomery Cty. Md., 789 F.3d 407, 415-16 (4th Cir. 2015) (citing
Hankins v. The Gap, Inc., 84 F.3d 797, 800 (6th Cir. 1996); EEOC
Interpretive Guidance on Title I of the ADA, 29 C.F.R. § 1630
app. (2014)).

If Defendant had failed to offer Plaintiff any

accommodations since those considered by the jury, Plaintiff’s
request for injunctive relief based on the verdict would have
force.

In light of the CLB job offer and, more importantly,

Plaintiff’s current position as a CSR at MC 311, neither of
which

were

considered

by

the

jury,

the

verdict

no

longer

provides any insight as to the “ongoing harm she is suffering.”
Thus, that verdict is insufficient to dictate the outcome of
Plaintiff’s pending claim for injunctive relief.
ii. Applicable Legal Standard
The statutory provisions governing injunctive relief under
the ADA come from Title VII of the Civil Rights Act of 1964, 42
19

U.S.C. § 2000e et seq. (“Title VII”).

See 42 U.S.C. § 12133

(referring to 29 U.S.C. § 794a, which in turn refers to 42
U.S.C. § 2000e-5, the enforcement and remedies provisions of
Title

VII).

The

Supreme

Court

has

held

that

the

primary

objective of Title VII was the prophylactic aim “to achieve
equality of employment opportunities and remove barriers that
have operated in the past.”

Albemarle Paper Co. v. Moody, 422

U.S. 405, 417 (1975) (quoting Griggs v. Duke Power Co., 401 U.S.
424, 429-30 (1971)).
persons

whole

employment

for

Another purpose of the statute is “to make
injuries

suffered

discrimination.”

Id.

at

on

account

418.

of

unlawful

Therefore,

after

finding that an employer discriminated against an employee, a
court generally has a duty to “render a decree which will so far
as possible eliminate the discriminatory effects of the past as
well as bar like discrimination in the future.”
Louisiana

v.

United

States,

380

4

U.S.

145,

Id. (quoting
154

(1965)).4

In Albemarle Paper Co., the Court was considering whether
backpay money damages were an appropriate remedy in addition to
injunctive relief.
Because employers “would have little
incentive to shun practices of dubious legality” without the
prospect of money damages, the Court found that those damages
were necessary to effectuate Title VII’s prophylactic goal. 422
U.S. at 418, 421-22.
Although this case conversely considers
whether
injunctive
relief
is
necessary
after
a
damages
determination, the Court’s focus on “the central statutory
purposes of eradicating discrimination throughout the economy
and making persons whole for injuries suffered through past
discrimination” still guides the instant case. Id. at 421.
20

Injunctive relief thus serves two distinct purposes: to stop
ongoing discrimination and to prevent future discrimination.
The United States Courts of Appeals are divided as to the
correct approach – which party has the burden of proving what –
that governs a claim for injunctive relief after a plaintiff has
proven discrimination.
that,

“absent

clear

The Fifth and Ninth Circuits have held
and

convincing

proof

of

no

reasonable

probability of further noncompliance with the law[,] a grant of
injunctive relief is mandatory.”

James v. Stockham Valves &

Fittings Co., 559 F.2d 310, 354 (5th Cir. 1977); accord EEOC v.
Goodyear Aerospace Corp., 813 F.2d 1539, 1544 (9th Cir. 1987)
(“Generally, a person subjected to employment discrimination is
entitled to an injunction against future discrimination unless
the employer proves it is unlikely to repeat the practice.”
(citations omitted)).

The Second, Eighth, and Tenth Circuits

have held that “[t]here is no presumption that broad injunctive
relief

.

.

.

discrimination.”
Assocs.,

LLP,

should

issue

upon

a

finding

of

intentional

EEOC v. Siouxland Oral Maxillofacial Surgery
578

F.3d

921,

928

(8th

Cir.

2009);

accord

Bridgeport Guardians Inc. v. City of Bridgeport, 933 F.2d 1140,
1149 (2d Cir. 1991) (holding that a court has broad power “to
fashion the relief it believes appropriate” after establishing a
Title VII violation); EEOC v. Gen. Lines, Inc., 865 F.2d 1555,
1565 (10th Cir. 1989).
21

The case of Spencer v. General Electric Co., 894 F.2d 651
(4th Cir. 1990), abrogated on other grounds by Farrar v. Hobby,
506 U.S. 103 (1992), guides the analysis of cases like these in
the

Fourth

Circuit.

In

Spencer,

the

plaintiff

in

a

sexual

harassment case proved her hostile work environment claim and
was awarded nominal damages.

Spencer v. Gen. Elec. Co., 703

F.Supp. 466, 469 (E.D.Va. 1989).

On the plaintiff’s motion for

injunctive relief, the district court found that an injunction
was

not

mandatory

and

articulated

the

following

principles:
Injunctive relief is uniquely designed to
prevent illegal conduct.
Such relief,
however, is not mandatory in all Title VII
cases.
Only where there are lingering
effects or a not insubstantial risk of
recurring
violations
is
such
relief
necessary.
At the same time, injunctive
relief is not automatically precluded simply
because the offending party has ceased the
illegal conduct, demonstrated its good faith
intent to comply with the law, or even
implemented an affirmative plan to remedy
past discrimination. Rather, the court must
carefully examine the circumstances of each
case, taking into account “the bona fides of
[defendant’s] expressed intent to comply,
the effectiveness of the discontinuance and,
in some cases, the character of the past
violations.”
United States v. W.T. Grant,
345 U.S. 629, 633 (1953).
Before granting
injunctive relief, the court must then
conclude
that
a
“cognizable
danger
of
recurrent violation” exists.
United States
v. Hunter, 459 F.2d 205, 210 (4th Cir. 1972)
[citing W.T. Grant Co., 345 U.S. at 633].

22

governing

703 F.Supp. at 469-70 (alterations in original).

The district

court also emphasized the difference between cases where there
was

“abundant

evidence

of

past

discrimination,”

“widespread

misconduct or lingering effects,” or “a systematic pattern of
harassment”

and

where

“illegal

the

individual
group.”

cases

within

a

like
conduct

Spencer’s
was

relatively

sexual

harassment

precipitated
small

and

by

isolated

703 F.Supp. at 469 nn.4, 9.

In evaluating these claims, the court also noted:
Plaintiff relies on W.T. Grant Co. for
the proposition that defendant bears a heavy
burden
to
defeat
injunctive
relief
by
demonstrating
“there
is
no
reasonable
expectation
that
the
wrong
will
be
repeated.” United States v. W.T. Grant Co.,
345 U.S. at 633. That reliance, however, is
misplaced and the quotation taken out of
context.
In W.T. Grant Co., the Supreme
Court did place a heavy burden on defendant,
but only to prove that [the] case was mooted
by the cessation of the alleged illegal
activity, thereby depriving the court of
jurisdiction.
Here, the issue is not
subject matter jurisdiction, but rather the
appropriate
remedy
after
a
finding
of
liability.
Id.
Once Title VII liability
has been established, it is reasonable to
shift to defendant the burden to come
forward with evidence of remedial measures,
as well as evidence to show that the
violations will not recur.
After all,
defendant is in the best position to provide
such evidence.
The ultimate burden of
persuasion may equally reasonably remain
with plaintiff.

23

a

claim
single

working

703 F.Supp. at 469 n.10.

Because the defendant in Spencer had

shown “a genuine, not transitory, commitment to banning sexual
harassment

in

harassment

policy,

unnecessary.
On

the

workplace”
the

court

by

instituting

found

that

an

new

sexual

injunction

was

703 F.Supp. at 471, 473.

appeal,

the

Fourth

Circuit

affirmed

plaintiff’s motion for injunctive relief.
661.

a

as

to

the

Spencer, 894 F.2d at

It agreed that, “[a]lthough injunctions are by no means

mandatory in a Title VII case, a district court must, of course,
exercise its discretion in light of the prophylactic purposes of
the Act to ensure that discrimination does not recur.”
at 660.

894 F.2d

Like the district court, the Fourth Circuit underscored

the difference between “systematic company-wide discrimination”
and “isolated incident[s].”

894 F.2d at 661.

It affirmed the

district court’s determination that “once Title VII liability
was

established,

[discrimination]

the

will

onus

not

to

recur

produce

lies

with

evidence
the

that

defendant[.]

However, the ultimate burden of proof that an injunction is
necessary always remains with the plaintiff.”

894 F.2d at 660

n.13.
Accordingly,
must

be

Plaintiff
provided

the

answered
in
her

her
a

in

two
this

current
reasonable

questions

from

case:

first,

position

at

MC

accommodation
24

Albemarle
whether,
311,
for

Paper
by

placing

Defendant

her

Co.

has

disability,

ceased its discrimination, and “eliminate[d] the discriminatory
effects

of

necessary

the
to

past;”

prevent

and

second,

further

whether

an

discrimination

injunction

in

the

is

future.

Defendant has the burden of providing evidence both that the
County

has

ceased

discriminating

against

Plaintiff

and

that

further discrimination against Plaintiff is unlikely to recur.
Plaintiff,
entitlement

however,
to

bears

the

injunctive

ultimate

relief

in

burden

light

of

of

showing

Defendant’s

evidence.
iii. Injunctive Relief for Ongoing Discrimination
In her proposed injunctive order, Plaintiff seeks further
changes

to

Essentially,
claim

that

reasonable

accommodate
Plaintiff’s
the

County

her

in

request
still

accommodation

her

for

has

despite

current

injunctive

not

provided

her

current

position.

relief
her

is

a

with

a

placement.

Plaintiff suggests that the County has provided only a “partial
accommodation”

and

that

she

continues

to

suffer

from

discrimination because Defendant has assigned her limited duties
and provided her insufficient technological tools compared to
her CSR II peers at MC 311.

(See ECF No. 316, at 6-7).

To

accommodate her completely, she argues, the County must enable
her to answer Tier 1 calls.

Defendant argues that no further

action is needed to accommodate Plaintiff, although the County
notes that it has contracted to implement IP 16 for Seibel,
25

which it expects will make the system accessible to Plaintiff,
and that it intends to make maps accessible on a yet-to-bedetermined schedule.
Unlike typical ADA cases, in which plaintiffs seek to limit
the

scope

of

their

work

to

avoid

tasks

made

difficult

or

impossible due to their disabilities, Plaintiff is seeking to
expand her job duties.

Defendant, on the other hand, is arguing

that the County has reasonably accommodated Plaintiff by putting
her at MC 311 as a CSR II answering HHS Tier 2 calls even if her
job responsibilities are limited compared to her peers.
instances,

the

parties

positions

during

the

have

jury

even

trial

changed

earlier

In some

course

from

their

this

case.

For

in

example, where Defendant sought at trial to show that reading
maps

was

an

essential

CSR

function

of

which

Plaintiff

was

incapable, it now argues that it has accommodated her without
the need for her to read maps, and therefore it should not be
ordered to make its maps accessible.
Although the parties’ roles may be unusual, the guideposts
for accommodation remain the same.

To prevent discrimination by

employers, the ADA requires that employers provide a reasonable
accommodation
performing

the

accommodation.

when

the

essential

disabled

employee

functions

of

the

is
job

capable
with

such

of
an

42 U.S.C. § 12111(8); EEOC v. Stowe-Pharr Mills,

26

Inc., 216 F.3d 373, 377 (4th Cir. 2000).

As the House Report on

the matter states:
[T]he
reasonable
accommodation
requirement is best understood as a process
in
which
barriers
to
a
particular
individual’s equal employment opportunity
are removed.
The accommodation process
focuses on the needs of a particular
individual
in
relation
to
problems
in
performance of a particular job because of a
physical or mental impairment.
. . .
Having identified one or more possible
accommodations, the [next] step is to assess
the reasonableness of each in terms of
effectiveness
and
equal
opportunity.
A
reasonable accommodation should be effective
for the employee.
Factors to be considered
include the reliability of the accommodation
and whether it can be provided in a timely
manner.
. . . [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. 101-485(II), as quoted in Bryant v. Better Business
Bureau of Greater Md., Inc., 923 F.Supp. 720, 736-37 (D.Md.
1996).

Accordingly,

“[i]n

order

to

be

reasonable,

the

accommodation must be effective (i.e., it must address the jobrelated difficulties presented by the employee’s disability),
and it must allow the employee to attain an ‘equal’ level of
achievement, opportunity, and participation that a non-disabled
27

individual
Merrill

in

v.

the

same

McCarthy,

position

184

would

F.Supp.3d

be

221,

able

236

to

achieve.”

(E.D.N.C.

2016)

(quoting Fleetwood v. Harford Sys. Inc., 380 F.Supp.2d 688, 699
(D.Md. 2005)); see also Bryant, 923 F.Supp. at 736; 29 C.F.R.
pt. 1630, app. (2014) (“The reasonable accommodation that is
required

by

disability

this
with

part
an

should

equal

provide

employment

the

individual

opportunity.

with

a

Equal

employment opportunity means an opportunity to attain the same
level of performance, or to enjoy the same level of benefits and
privileges

of

employment

as

are

available

to

the

average

similarly situated employee without a disability.”).
On the other hand, an employer “may reasonably accommodate
an employee without providing the exact accommodation that the
employee requested.”

Reyazuddin, 789 F.3d at 415.

Under the

ADA, reasonable accommodations may include “job restructuring,
part-time or modified work schedules, reassignment to a vacant
position, acquisition or modification of equipment or devices,
[or] appropriate adjustment or modifications of examinations,
training materials or policies.”

42 U.S.C. § 12111.

As noted

above, the employer has discretion to choose between effective
accommodations, Reyazuddin, 789 F.3d at 415-16, and a court goes
too far when the effect of an injunction “would be to give
preferential treatment to people with disabilities, rather than
put them on equal footing as intended by Congress,” Pathways
28

Psychological v. Town of Leonardtown, Md., 223 F.Supp.2d 699,
717 (D.Md. 2002).
When this case began, Defendant had assigned Plaintiff, in
the

words

of

the

Fourth

Circuit,

a

“cobbled

together

[]

assortment of ‘make-work’ tasks” that were of questionable value
to the County and failed to fill up her day.
F.3d at 416.

Reyazzudin, 789

It was these job duties that failed to constitute

a reasonable accommodation for Plaintiff because they did not
provide

her

a

meaningful

equal

employment

opportunity.

The

jury’s verdict was based on those limited duties.
Since then, Plaintiff has been transferred to MC 311 and
classified as a CSR II.
time.

She is answering Tier II HHS calls full

None of the work she is presently doing is “make-work.”

In her current position, she assists callers with an array of
HHS requests that would otherwise be resolved by other CSR IIs
at MC 311.

Her work is related to a subject matter with which

she has familiarity and the potential to capitalize on her years
of HHS experience.

Although Plaintiff and Defendant appear to

be in an ongoing effort to find the right workload for her as a
CSR – and the parties dispute her skills, training, and progress
- she no longer complains that she has an insufficient workload.
If her Tier II HHS calls were to become insufficient, the County
has in place another accommodation, the “press four option,” to
increase her total number of calls to ensure that she can fill
29

her days with meaningful work that would otherwise be done by
her peers at MC 311.

The issues Plaintiff now presents are

considerably different from those that were previously in front
of the jury.

This evidence shows that Plaintiff is now doing

meaningful work.
Plaintiff argues, however, that the work assigned to her
does

not

because

provide

the

her

tools

with

an

equal

is

using

and

she

employment
tasks

she

opportunity
is

assigned

differentiate her from her peers and limit her performance.

She

contends that using the IWAA sets her up to fail because she
cannot easily do “quality review” to check her work.

Plaintiff

also emphasizes that the IWAA requires her to ask the caller for
name and zip code information that would normally be transferred
to the CSR II by the Tier 1 call-taker.

She argues that this

redundant request requires her to take more time on each call
than

her

peers.

Finally,

Plaintiff

points

out

that

the

unavailability of the Seibel system prevents her telecommuting,
which

at

least

reasons.
prevent

some

Defendant
Plaintiff’s

of

her

argues
current

peers
that
role

can

do

for

none

of

these

from

being

a

a

variety

of

differences
reasonable

accommodation.
Although Plaintiff may not be doing the exact same work in
the

exact

same

way

as

her

non-disabled

peers,

her

current

position at MC 311 does provide her with a meaningful equal
30

employment opportunity.

The current circumstances of this case

are somewhat similar to those in Bunn v. Khoury Enterprises,
Inc., 753 F.3d 676, 682-83 (7th Cir. 2014), where a legally blind
employee at a Dairy Queen restaurant was assigned exclusively to
one department instead of rotating through various departments
as non-disabled employees in the same position were required to
do.
the

Although the plaintiff sought a different accommodation,
court

found

that

permitting

and

assigning

him

to

work

exclusively in one department where he was best able to perform
all the necessary duties was “exactly the kind of accommodation
envisioned by the regulations applicable to the ADA” when they
reference

“job

restructuring”

or

a

“modified

work

schedule,”

even if it meant that his job was structured differently from
his peers.

Id.

Similarly, here, the County has restructured

Plaintiff’s CSR job to handle exclusively the calls that she is
most

capable

of

handling

with

the

tools

that

are

currently

accessible.
Plaintiff largely argues that answering Tier 1 calls is an
essential function of the CSR II position and that the County
must provide an accommodation sufficient for her to perform all
essential functions of the CSR II position in the same manner as
her peers.

Neither the statute nor case law imposes such a

requirement.

In Basith v. Cook County, 241 F.3d 919, 924-25 (7th

Cir. 2001), for example, the plaintiff’s employer restructured
31

his

job

as

a

Pharmacy

Technician

II

to

eliminate

delivery,

stocking, and cleaning duties when an injury left him unable to
do much walking or lifting.

Although the court had found that

delivery and stocking of medications were essential functions of
his job, id. at 927, it held that the employer had provided a
reasonable

accommodation

requirements

of

the

when

ADA”

it

by

“went

above

and

reallocating

beyond

these

the

essential

functions to other employees, id. at 932; cf. Feist v. La. Dep’t
of Justice, 730 F.3d 450, 453-54 (5th Cir. 2013) (emphasizing
that “a modification that enables an individual to perform the
essential

functions

categories

of

of

a

reasonable

position

is

only

one

accommodation,”

of

along

three
with

modifications that enable an applicant to be considered for a
desired

position

or

modifications

that

enable

a

disabled

employee “to enjoy equal benefits and privileges of employment”
(citing 29 C.F.R. § 1630.2(o)(1))); EEOC v. Life Techs. Corp.,
No. WMN-09-2569, 2010 WL 4449365, at *5 (D.Md. Nov. 4, 2010)
(noting in a different context that, although “the regulation
certainly indicates that some reasonable accommodations are for
the purpose of enabling an individual to perform the essential
functions of a job, nothing in its language indicates that all
reasonable

accommodations

must

be

for

that

purpose”);

Interpretive Guidance, 29 C.F.R. § 1630 app. (2016) (explaining
that restructuring essential functions to enable an individual
32

to perform a job is one type of modification that might be
required in a “supported employment” position and noting that
“it would not be a violation of [the reasonable accommodation
requirement]

for

an

employer

to

modifications or adjustments”).

provide

any

[such]

personal

This view is also supported by

the ADA’s inclusion of reassignment to a vacant position, which
would inherently change the essential functions of the job held,
as a reasonable accommodation, so long as the employee is able
to perform the essential functions of the new position and the
position

is

equivalent

to

the

employee’s

previous

one.

Interpretive Guidance, 29 C.F.R. § 1630 app. (2016).
The evidence here does not show that using the IWAA and
answering

only

Tier

2

HHS

calls

prevents

Plaintiff

attaining the same level of performance as her peers.

from

The queue

of calls Plaintiff receives has no bearing on her salary, job
benefits,

union

status,

or

any

other

privileges

of

her

employment, with the possible exception of the opportunity to
telework.

Telecommuting, however, is permitted only in limited

circumstances and at the discretion of a supervisor, not as of
right.

Plaintiff is also capable of doing quality review of her

service requests and figuring out her AUX code status, just
under different circumstances than her peers.

As described in

the job classification, the role of a CSR II focuses almost
entirely

on

general

skills

related
33

to

helping

callers:

identifying problems, researching written materials, providing
information to the customer, and submitting service requests.
(DTX 7).

It makes no reference to the specific types of calls a

CSR II will answer.

(Id.).

Although all other CSRs are able to

answer Tier 1 calls, all CSR IIs are limited to taking only the
Tier II calls for the systems on which they are trained; thus,
not all CSR IIs need to answer the same types of calls in order
to attain the same level of performance.
The

same

opportunities.
her

lack

of

analysis

applies

to

Plaintiff’s

promotional

Plaintiff has not presented any evidence that
familiarity

with

Seibel’s

internal

portal

will

detract from her future opportunities if she shows a strong
ability to assist callers and the interpersonal skills necessary
to train new CSRs, manage employees, and handle difficult calls.
To

the

contrary,

the

testimony

of

Robert

Sinkler

and

other

managers indicated that it is common for MC 311 supervisors to
be unfamiliar with the Tier 2 calls from queues in which they
did

not

work,

yet

these

employees

are

still

eligible

to

be

promoted to supervise CSR IIs who take such calls.
In sum, the differences between Plaintiff working as a CSR
II using the IWAA to answer only Tier 2 HHS calls and her
Seibel-using peers are within the range of modifications “to the
manner

or

customarily

circumstances
performed”

under

that

which

the

regulations
34

position

permit

as

.

.

part

.
of

is
a

reasonable

accommodation.

29

C.F.R.

§

1630.2(o)(1)(ii).

Plaintiff’s current role allows her to attain an equal level of
achievement, opportunity, and participation as her CSR II peers.
The County has provided her a reasonable accommodation, and,
accordingly, its discriminatory conduct has ceased.
an

injunction

is

not

warranted

as

to

Therefore,

Plaintiff’s

current

position.5
iv. Prohibitory Injunction
Even where an employer has stopped discriminating against
an

employee,

“the

court’s

power

to

grant

injunctive

survives discontinuance of the illegal conduct.”

relief

W.T. Grant

Co., 345 U.S. at 633; accord Reiter v. MTA N.Y.C. Transit Auth.,
457 F.3d 224, 230 (2d Cir. 2006).

As discussed above, “the court

must carefully examine . . . ‘the bona fides of [defendant’s]
expressed

intent

to

comply,

the

effectiveness

of

the

discontinuance and . . . the character of the past violations.’”

5

At the hearing, the parties also presented testimony and
exhibits related to the CLB job offer. The evidence showed that
the CLB position would have been isolated from other County
employees and was created and offered in a manner that deviated
significantly from normal County or CLB practices. It therefore
seems doubtful that such a position would have provided
Plaintiff with a reasonable accommodation.
Because Plaintiff’s
current position satisfies the ADA requirements, however, there
is no need for injunctive or declaratory relief based on a
failure to accommodate related to the CLB offer.

35

Spencer, 703 F.Supp. at 469-70 (quoting W.T. Grant, 345 U.S. at
633) (alterations in original).
Plaintiff argues that a prohibitory injunction is necessary
to

prevent

Defendant

from

letting

its

current

accessibility

lapse and returning to its former discriminatory practices.

She

argues that despite Defendant’s ongoing efforts to accomplish
Seibel accessibility through IP 16, the County has made such
strides for accessibility reluctantly and only as a result of
this litigation.

It should not be trusted, Plaintiff maintains,

to continue its accessibility efforts or to make such efforts a
timely priority in the absence of a court order.6

In her motion

papers, Plaintiff suggests that, rather than “acknowledging its
6

In her motion papers, Plaintiff does not distinguish
between the analysis of mootness in this case and her
entitlement to a prohibitory injunction.
Put another way,
Plaintiff contends that because her transfer did not moot the
case, Defendant should be enjoined from transferring Plaintiff
back out of MC 311 or taking actions that negate the
accessibility measures it has undertaken to allow her to work as
a CSR II.
Without citing to any cases equating these two
analyses, Plaintiff states that “[w]hat is appropriate for a
mootness analysis is equally applicable to the question of
whether injunctive relief is appropriate.”
(ECF No. 295-1, at
10).
She is incorrect.
The mootness analysis determines
whether a court has jurisdiction to hear a case. The existence
of a live controversy is not enough to entitle Plaintiff to
relief.
Thus, where voluntary cessation might prevent a court
from mooting a case when a defendant is capable of reverting
back to past practices, to warrant injunctive relief, Plaintiff
must show, not that Defendant is capable of reverting back to
past
discriminatory
practices,
but
some
likelihood
of
recurrence. See Spencer, 703 F.Supp. at 469 (“Only where there
are lingering effects or a not insubstantial risk of recurring
violations is such relief necessary.”).
36

failings, Montgomery County is still conducting a battle to hold
onto what it regards as its management rights to do anything it
wants.”

(ECF No. 316, at 12).

In Spencer, the Fourth Circuit refused to adopt the rule
“that

remedial

instigation

measures

of

undertaken

litigation

will

by

never

a

defendant

be

adequate

after
to

the

obviate

injunctive relief” because doing so would “undercut the remedial
goals of Title VII . . . by removing any incentive for an
employer, once sued, to clean its own house.”
61.

894 F.2d at 660-

Moreover, the County has never contended that it need not

accommodate Plaintiff.

Defendant and Plaintiff have disputed

what constitutes a reasonable accommodation, and Defendant has
continued to maintain, as the law makes clear, that an employer
has discretion to choose among effective accommodations.
arguments
County

are

may

Plaintiff

a

“do
two

far

cry,

anything
positions

“wanted” to provide.

however,
it

from

wants.”

different

the

notion

Defendant
from

what

that

has

it

These
the

offered

originally

Nor has the County been slow to provide

the accommodations it believed were necessary.

Rather, in both

instances, Defendant offered Plaintiff a new position before it
was necessary and while it was still litigating the sufficiency
of its earlier accommodation efforts: before the jury found that
Plaintiff’s

ADS

positions

were

inadequate,

the

County

helped

create a new position that it thought would appeal to Plaintiff
37

at the CLB, and while the parties were litigating the adequacy
of the CLB position, Defendant transferred Plaintiff to MC 311.
Defendant

has

also

made

continued

efforts

to

improve

effectiveness of Plaintiff’s placement at MC 311.

the

The County

has dedicated extensive time and personnel to training Plaintiff
on the skills she needs for her position.

After encountering

issues with the CAPTCHA robot-prevention software, it created
the IWAA, a specialized portal for Plaintiff.
All of these steps indicate a bona fide intent to abide by
the

law.

Defendant’s

past

actions

do

not

suggest

an

unwillingness to provide a reasonable accommodation, but rather
a repeated failure to identify one that works for both Plaintiff
and the County.

Defendant did not fail to recognize that an

accommodation was required.

Rather, it failed to provide an

accommodation that met the requirements of the ADA.
There are no other reasons to conclude that a prohibitory
injunction is necessary.

The “character of the past violation”

is delimited; the violation was isolated in the sense that it
was caused by the one-time reorganization of the call center
functions.
evidentiary

Other
hearing

evidence

Defendant

indicates

that

it

put
has

forth
now

at

the

invested

significant training toward helping Plaintiff succeed in her new
role, despite numerous issues.

Defendant also has a contract in

place to implement IP 16 and has indicated that it expects this
38

upgrade

to

fix

the

accessibility

issues

that

Plaintiff from using Seibel’s internal portal.

have

prevented

Thus, the County

appears inclined to continue to implement further accessibility
features.
Plaintiff’s

contention

that

Defendant

might

fail

to

maintain the accessibility of the systems she is presently using
seems improbable.

Some of the accessibility features result

from software advances that serve multiple purposes.

The costs

and resources necessary to maintain accessibility of the systems
currently in place would likely be minimal compared to the staff
time

and

making

resources
the

CSR

that
II

the

County

position

has

already

accessible

invested

to

in

Plaintiff.

Additionally, if Defendant failed to maintain the accessibility
of the CARES system or the IWAA, Plaintiff would not be able to
help any customers at all.

The County has never suggested that

paying Plaintiff to do nothing at all would be appropriate.

The

County has discontinued its discrimination, which was only the
failure to identify and implement a reasonable accommodation.
Considering all of these circumstances, a prohibitory injunction
is not warranted.
b. Declaratory Judgment
Plaintiff

also

seeks

a

declaration,

the

jury

verdict, that Defendant violated her rights under the ADA.

The

Fourth Circuit has explained that:
39

based

on

While § 2000e–5(g)(2)(B)(i) places the power
to award declaratory relief in the district
courts’
discretion,
“such
discretionary
choices
are
not
left
to
a
court’s
inclination, but to its judgment; and its
judgment is to be guided by sound legal
principles.”
Albemarle Paper Co., 422 U.S.
at 416 (internal quotation marks omitted).
Pitrolo v. Cty. of Buncombe, N.C., 589 F.App’x 619, 627 (4th Cir.
2014).

The court further explained that:
“We have . . . enumerated several factors to
guide district courts in their exercise of
this discretion.”
Aetna Cas. & Sur. Co. v.
Ind–Com Elec. Co., 139 F.3d 419, 421–22 (4th
Cir. 1998) (per curiam) (internal quotation
marks omitted).
In Aetna, we held that,
when deciding whether to grant declaratory
relief pursuant to the Declaratory Judgment
Act, 28 U.S.C. § 2201, a district court
should consider several factors. See Aetna,
139 F.3d at 422–24.
Among those factors
relevant to this case are whether awarding
declaratory
relief
(1)
will
clarify
important issues of law in which the forum
state has an interest; (2) will “clarify the
legal relations between the parties” or
afford “relief from uncertainty, insecurity,
and
controversy
giving
rise
to
the
proceeding”;
and
(3)
“whether
the
declaratory judgment action is being used
merely as a device for procedural fencing.”
Id. (internal quotation marks omitted); see
also Am. Cas. Co. of Reading, Pa. v. Howard,
173 F.2d 924, 927 (4th Cir. 1949) (“We think
[judicial
discretion
whether
to
grant
declaratory relief] should be liberally
exercised to effectuate the purposes of the
[Declaratory
Judgment
Act]
and
thereby
afford
relief
from
uncertainty
and
insecurity with respect to rights, status
and other legal relations.”); [] Edwin
Bouchard, Declaratory Judgments 299 (2d ed.
1941) (“The two principal criteria guiding
the policy in favor of rendering declaratory
40

judgments are (1) when the judgment will
serve a useful purpose in clarifying ... the
legal relations at issue and (2) when it
will ... afford relief from the uncertainty,
insecurity, and controversy giving rise to
the proceeding.”).
Pitrolo, 589 F.App’x at 627-28.
In her motion papers, Plaintiff contends that a declaration
from the court “will afford relief to both parties about the
uncertainty, insecurity, and controversy that gives rise to this
case.”

(ECF No. 316, at 14).

A declaration is warranted, she

argues, because “the parties have strong disagreements about the
way

in

(Id.).
of

which

their

future

relations

should

be

organized.”

Plaintiff contends that Pathways Psychological v. Town

Leonardtown,

Md.,

223

F.Supp.2d

699,

718

(D.Md.

2002),

demonstrates that a court may enter a declaratory judgment even
after a jury determination of the same issue on the merits.

In

that zoning and land use case, the court issued a declaratory
judgment because it was “not in a position to determine whether
Pathways’ current use [was] different from that use [upon which
the jury determination relied].”

Id. at 717.

The court issued

a declaration stating that, if the plaintiff’s ongoing use was
the same, the jury’s verdict continued to control.
In the instant situation, there is no such confusion.
jury

made

clear

insufficient.

that

Defendant’s

earlier

accommodation

The
was

The County has now provided Plaintiff with an

41

entirely

new

accommodation

that

is

compliant

with

the

ADA.

Further expounding on the jury’s verdict would be superfluous
and have no bearing on the current legal issues.

Moreover, by

addressing Plaintiff’s claims for injunctive relief, the court
has removed any uncertainty, insecurity, and controversy over
Defendant’s

future

obligations

as

Plaintiff’s

employer.

Accordingly, declaratory relief is not appropriate here.
V.

Conclusion
For

favor

of

Yasmin
relief.

the

foregoing

Defendant

Reyazuddin’s

reasons,

Montgomery
requests

judgment
County,

for

will

be

Maryland

injunctive

and

entered

on

Plaintiff

declaratory

A separate order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

42

in