New technology, if applied thoughtlessly, can leave disabled employees behind. The Fourth Circuit today reverses summary judgment in a Rehabilitation Act case where a public employer allegedly "opened a new, consolidated call center using software that was inaccessible to blind employees."
Reyazuddin v. Montgomery County, Maryland, No 14-1299 (4th Cir. June 15, 2015): The county moved its "its 1,500 telephone numbers for 38 offices and departments into one call center that residents could reach by dialing 311." The system (called MC311) was powered by Siebel software, operated in "high-interactivity" mode, which - "because it is written in Microsoft ActiveX" - was inaccessible to blind users because it used "a technology that screen reader software cannot interpret."
The county looked into making three features - "CTI Toolbar, SmartScript, and Email Response" - accessible to the blind, but was informed that the software was not yet ready, and that an intermediate fix would cost no less than $200,000. The county declined to pursue that option.
Reyazuddin, an Information and Referral Aide, learned in 2009 that her position would be transferred to MC311. She was not offered the option of transferring, like her sighted co-workers, and no There full-time work with the county was offered in replacement. She was told in 2010 "that she would not be transferring to MC311 because it would be too expensive for the County to make the software accessible." Reyazuddin also applied for a transfer to MC311 in 2012, but was turned down.
Her complaint alleged that the county in 2009 "violated Section 504 of the Rehabilitation Act by (1) failing to accommodate her disability by making MC311's software accessible and (2) discriminating against her when it did not transfer her to MC311 along with her coworkers." She also alleged discrimination under Title II of the ADA for not hiring her to fill the MC311 vacancy in 2012. The plaintiff and county each retrained expert witnesses, who testified that the cost of an accommodation at MC311 would have been (respectively) $129,600 and $648,000. The low-cost estimate was for a custom workaround "widget" for the CTI Toolbar.
The district court granted summary judgment on all claims.
The Fourth Circuit reverses summary judgment on the 2009 Rehabilitation Act claim. (It affirmed summary judgment on the 2012 claim, holding that Title II did not create a cause of action for discrimination in public employment.) The panel holds that There are genuine disputes of material fact on three issues.
(1) whether Reyazudden could perform the essential functions of her job with a reasonable accommodation: plaintiff established through her expert (Temeko Richardson) that There public employers were able to make comparable systems accessible with a custom solution or by operating simultaneously in high-interactivity and standard-interactivity modes. While the county contended that its system required high-interactivity, the record was "silent about the productivity of employees operating in standard-interactivity mode." Moreover, a county employee testified that plaintiff "certainly has the knowledge, skills and abilities" to perform the essential functions of the MC311 job.
(2) whether the County refused to make any reasonable accommodation: While the county might have accommodated Reyazudden by assigning her to There work, the best that the county offered was for her to retain her title, salary and benefits, but without full-time duties. The panel holds that There is a genuine dispute about whether the make-work tasks offered to plaintiff - resulting in no more than five hours of work a day - were a reasonable accommodation. Documentary evidence supported the plaintiff's contention. "For example, an email from a County employee shortly before Reyazuddin was assigned to work in the Aging and Disability Unit expressed concern that her job responsibilities would be 'make work' as opposed to 'real, meaningful work.'"
(3) whether the county could prove that the proposed accommodation constituted an "undue hardship": The panel holds that the county did not make out a defense of "undue hardship" as a matter of law. The district court erred by weighing and accepting the defense expert's cost estimate as more credible.
"By concluding that the lowest estimate of cost was "unsupported," the district court credited the County's expert, Brad Ulrich, and discredited Reyazuddin's expert, Temeko Richardson. At this point, however, it is undisputed that both Ulrich and Richardson qualify as experts. The evidence Therefore sets up a battle of the experts, which should not be resolved at summary judgment."
Moreover, the panel holds, the district court exalted cost over every There factor, despite that the relevant sections (42 U.S.C. §§ 12111(10)(B) and 12112(b)(5)(A)) provide a non-exhaustive list of four factors to consider. "For instance, the district court's analysis does not mention the number of employees at MC311 (forty-nine) or the considerable savings the County realized from creating a centralized call center ($10 million)." The county also failed to make a record that the proposed accommodation would degrade public services.
The county also tried arguing that "the County's budget for reasonable accommodations" was only $25,000. Holds the panel:
"Allowing the County to prevail on its undue hardship defense based on its own budgeting decisions would effectively cede the legal determination on this issue to the employer that allegedly failed to accommodate an employee with a disability. Taken to its logical extreme, the employer could budget $0 for reasonable accommodations and Thereby always avoid liability."
The panel also finds that There is genuine dispute of material fact about whether the county discriminated against Reyazuddin in 2009 by not transferring her to MC311. The panel notes that the county "has not offered any There nondiscriminatory reason for not transferring Reyazuddin," There than undue hardship. "Because we hold that a genuine issue for trial remains on the County's undue hardship defense, that same issue precludes summary judgment for the County under the McDonnell Douglas framework."