DEBORAH K. CHASANOW, District Judge.
Presently pending and ready for resolution in this disability discrimination case are the motion for summary judgment filed by Defendant Montgomery County, Maryland ("the County") (ECF No. 79), and the cross-motion for partial summary judgment filed by Plaintiff Yasmin Reyazuddin (ECF No. 89). Additionally, both parties have filed motions to seal certain exhibits. (ECF Nos. 81 and 91). The issues have been fully briefed and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the
Plaintiff has been an employee of Montgomery County since 2002. She is blind. She is fluent in Urdu and Hindi and can conduct Braille translations. Beginning in January 2005, she worked as an Information and Referral Aide ("I & R Aide") in the County's Department of Health and Human Services ("DHHS"). She was hired as a Grade 16. Her duties included answering phone calls from County residents who had questions about obtaining DHHS services, updating residents on their cases, and making needed referrals, including those to MANNA, the County's food bank. As Plaintiff is blind, she needs to use a screen reader to operate a computer. Plaintiff uses a program called Job Access With Speech ("JAWS") which Defendant purchased and installed on her work computer along with providing her with a Braille embosser. JAWS reads aloud speech printed on the computer. Screen readers like JAWS cannot necessarily read everything; the text on the screen must be in a readable code.
Numerous departments within the County's executive branch had call centers similar to the one Plaintiff worked in at DHHS. Beginning in early 2008, the County, in an effort to improve accountability, responsiveness, and efficiency, undertook a project to create a single County-wide non-emergency call center. This project eventually came to be known as "MC 311." This case centers around MC 311's technology and staffing.
Mr. Thomas Street of the Office of the County Executive was the Project Sponsor for MC 311. He submitted an affidavit stating that the MC 311's technology had to be compatible with Oracle's Enterprise Resource Planning ("ERP") software the County had purchased in November 2008. (ECF No. 79-20 ¶ 8). Four vendors sought the County's business: Lagan, Active Network Solutions, AINS, and Oracle. (Id. ¶ 9). The County ultimately chose to license Oracle's Seibel software on January 3, 2009 because of its compatibility with the ERP software and relatively low cost. (Id. ¶¶ 10 and 15). It was a "Commercial Off the Shelf" ("COTS") product which meant it had already been developed and tested by the manufacturer and provided the benefit of limited configuration and thus limited cost. Mr. Street understood from Oracle that Seibel was accessible for users — i.e., county residents calling into the center — but did not know at the time that it was not accessible to employees. The decision to license from Oracle was made without the other three companies submitting formal proposals. (ECF No. 89-39, at 5, Trans. 14:1-15:4, 16:2-11, 19:3-5, Street Dep.).
The Oracle Seibel product licensed by the County was version 8.1.1. The County hired Opus Group, LLC to implement and maintain the Seibel system. Mr. John Park of Opus testified that he was not asked to take into account any of the requirements of the Americans with Disabilities Act ("ADA") or the Rehabilitation Act. (ECF No. 89-42, at 10, Trans. 110:21-111:10). The product has two modes: High Interactivity ("HI") and Standard Interactivity Plus ("SI +"). HI mode allows for more features, including dynamic editing, auto complete, drag and drop function
Ms. Leslie Hamm, head of MC 311, described the work of a CSR. The CSR uses the CTI toolbar to indicate if he or she is available to receive a call. If so, an incoming call will be routed to him or her. The Smartscript program displays a script on the CSR's computer screen that he or she reads from. Within Smartscript is a field for the CSR to begin taking notes or to transfer the call to 911 if he or she realizes that is more appropriate. Once that has been determined, Smartscript is closed and the notes the CSR has taken are populated into the service request template. That template allows for the CSR to do a keyword search (e.g., "pothole") to find relevant knowledge based articles. The CSR will select the most appropriate solution, which will route the issue to the corresponding department (e.g., Department of Transportation for a pothole). The CSR will be given another script to read to the caller providing the case number and any other details, such as expected time to address the problem. Once the call is completed, the CSR uses his or her CTI toolbar to go into a state dubbed "call work," which is his or her opportunity to finish any paperwork on the just-finished call while preventing the system from sending the CSR another call. Once that work is complete, the CSR is expected to use the CTI toolbar to make him or herself available for another call and the process repeats. (ECF No. 79-28, at 18-19, Trans. 66:8-73:8). The CTI toolbar captures metrics upon which CSRs are evaluated. The expected average talk time is three minutes and the after-call work time is ninety seconds. Tier 1 CSRs are expected to handle sixty to seventy calls per day, while those in Tier 2 handle fifty-five to sixty-five calls per day. (ECF No. 79-14 ¶¶ 6 and 8, Hamm Aff.). Ms. Hamm represented that one of the most frequent calls received by MC 311 concerns the current location of County buses. The CSR uses an electronic map called Smart Traveler that has both a visual and textual component. Only the text portion is accessible to a screen reader. Additionally, some of the knowledge based articles direct the CSR to PDF files, some of which also cannot be read by a screen reader. (Id. ¶¶ 10, 12).
Plaintiff first heard about MC 311 in May 2008 from her supervisor. She said that she hoped it would be accessible. (ECF No. 89-3, at 6-7, Trans. 61:12-62:7,
On November 18, 2009, the County first contacted Oracle regarding whether MC 311 could be made accessible. Oracle had told the County that a Voluntary Product Accessibility Template ("VPAT") — i.e., a patch — would be ready for version 8.1.1 in the first quarter of 2010. (ECF No. 79-24 ¶ 6, Defendant's Supplemental Answers to Plaintiff's First Interrogatories). Oracle would not meet that deadline. On December 16, 2009, Mr. Wright met with representatives of Oracle. He was told that Seibel was adaptable in one respect, but not in another. A Seibel system could be made accessible so long as it is configured at a basic level, not containing the high interactivity features the County chose to meet its operational needs, specifically the CTI toolbar, SmartScript, and Email Response. In order to achieve accessibility at the higher level, the technology would have to advance from the current "Phase 1" to "Phase 3." That was estimated to occur within the next eighteen months. He was told the cost to adapt Phase 1 — the basic model — would be between $150,000 and $200,000.
(ECF No. 102-19). On January 21, 2010, Ms. JoAnne Calderone, Plaintiff's I & R supervisor, was told by Mr. Wright that Plaintiff will be going to MC 311, but it will take about six months before they are ready for her. (ECF No. 89-20).
On February 4, 2010, DHHS's calls were automatically routed to MC 311. Plaintiff had no work to do. The next day, Mr. Wright sent a memo to Ms. Calderone authorizing her temporarily to reassign Plaintiff to a vacant position within DHHS. It was termed "temporary" "on the basis of allowing a period of time for which to sustain employment of [Plaintiff] until the potential occurrence of her transfer to MC 311 at a future date." (ECF No. 79-12). The memo went on to state that if a transfer to MC 311 was not feasible, Plaintiff will still have priority consideration for any vacant position where she met the essential job functions and grade. The County's personnel regulations define "priority consideration" as "[c]onsideration of a candidate for appointment, reassignment, or promotion to a vacant position before others are considered. It does not guarantee that the candidate will be selected for appointment, reassignment, or promotion." (ECF No. 79-13, at 1).
Senior leadership came up with two potential jobs for Plaintiff within DHHS at the same grade level at which Plaintiff was employed at the DHHS call center. One was with the Children's Resource Center; the other with the Aging and Disability Unit ("ADU"). Plaintiff first considered the Children's Resource Center ("CRC") where she was told that the staff was currently overloaded with work and she would be busy for a full eight hour day. She told the head of the Center that she wanted to hold off on committing to it until she heard more about the ADU option. Plaintiff preferred to work for ADU because she wanted to help those with disabilities. She was told that ADU did not have a specific position for Plaintiff, but they would work to put assignments together and create as much meaningful work as possible. She was told there would be some downtime in her work, owing to the fact that they were creating a new position. (ECF No. 79-4, at 23, Trans. 85:2-14; see also ECF No. 89-27 (email from John Kenney stating that they have a less than full time job worked out for Plaintiff, but he is concerned a sizable portion is "make work")). Plaintiff ultimately chose the job with Adult Services Intake ("ASI") within ADU because she understood the CRC job to be temporary. (ECF No. 89-79 ¶ 5).
Plaintiff's job description with ASI estimated her "core duties" to take four to five hours a day, with the principal job being handling MANNA referrals, plus other periodic duties. (ECF No. 89-28). Ms. Aaron, Plaintiff's supervisor, testified that Plaintiff never performed all of her listed duties because, among other reasons, certain offices that she was going to do work for ended up wanting to keep these tasks with them. (ECF No. 89-17, at 8-9, Trans. 80:9-90:1).
Plaintiff spoke with Mr. Peter Wallack of Oracle in July 2010 at the convention of the National Federation of the Blind. At that meeting, according to Plaintiff, Mr. Wallack demonstrated an accessible Seibel system. He told her that a patch to fix the Montgomery County issues would be released on July 9. Plaintiff left numerous messages with Mr. Wright with this information, but he did not return her calls. (ECF No. 79-4, at 27-28, Trans. 99:2-103:16). The County inquired of Oracle again in July 2010 and was told that a fix should come soon. (ECF No. 102-22). In
On October 1, 2010, Mr. Wright provided an update on the situation to Plaintiff's supervisors. At that time, Oracle had accessible technology, but "such technology continues to only be at a basic level for which will not allow [Plaintiff] to perform the essential functions of her job at a grade 16 level in the actual MC 311 call center environment." (ECF No. 89-33, at 3). Additionally, the cost of such inadequate technology would be $260,000 initially, with a monthly cost of $78,000 for upkeep and maintenance for the life of Plaintiff's employment. To upgrade only the "back end," non-customer-facing part of Seibel, would cost an estimated $100,000 initially with a recurring monthly cost of $30,000. Mr. Wright concluded that providing a technology system for performance either within MC 311 or at the "back end" as a reasonable accommodation "would create an Undue Hardship, as such an action would be unduly costly." (Id. at 4). Consequently, he recommended reasonably accommodating Plaintiff by reassigning her to a vacant long-term position within HHS or elsewhere with the Executive Branch of the County. Mr. Wright spoke with Plaintiff about these recommendations the same day. Plaintiff told Mr. Wright to find her another position in the County while she continued to work in ASI. (Id. at 28, Trans. 104:17-105:13).
On November 15, 2010, the County again inquired about the timeline for a VPAT. (ECF No. 102-23). Opus presented a new ROM in April 2011 where it estimated the cost of accessibility at $640,136, which would allow an accessible employee to work only in SI + mode. This ROM still assumed the existence of version 8.1.1.3 or 8.2 which had not yet been released. Additionally, VPATs were needed for CTI Toolbar and SmartScript which still had not yet been published by Oracle. The increased cost was due to the increased sophistication of MC 311's system as it further integrated into the County's processes.
On July 1, 2011, Plaintiff was moved to the Aging and Disability Resource Unit ("ADRU"). She performs the same work as when she was in ASI, still with less than eight hours of work. Plaintiff continued to have priority consideration and checked for HHS transfer positions between October 2010 and April 2012. Although there were positions available, Plaintiff was not interested in any of the jobs. (ECF No. 79-4, at 35, Trans. 132:20-133:2). In her deposition, Plaintiff stated that the County has provided her "with accommodations, but not all the accommodations to do my job." She agreed that she has been given the necessary accommodations to perform her current position at ADRU. (ECF No. 79-4, at 37-38, Trans. 141:20-22, 142:2-6). Defendant alleges that on August 12, 2011, a representative of the National Federation for the Blind tested accessibility with JAWS in a Seibel test environment. JAWS would not work with the CTI toolbar and therefore she was not able to
Oracle finally published the VPATs for the CTI toolbar and Email Response on October 28, 2011. These VPATs were for version 8.2.2. They make these features accessible to screen readers only in SI + mode, not HI mode. (ECF Nos. 102-7 and 102-8). The VPAT recognizes that even with this patch, the CTI toolbar contains bugs, including the possibility that a transferred call could fail. Mr. Heissner stated this bug could be problematic as sometimes a CSR must transfer an emergency call to 911. (ECF No. 79-31 ¶ 5). Both of these VPATs are for Seibel version 8.2.2. Because the County is still using version 8.1.1, a prerequisite to accommodation would be installing and configuring the upgrade.
Each side presented experts to analyze the cost and other challenges with making MC 311 accessible. Plaintiff's expert is Ms. Temeko Richardson. She testified that she has worked with blind employees in other call centers that are able to use a Seibel CTI toolbar with their JAWS screen reader. One call center in California and one in New York has its blind employees use SI+ mode while their sighted colleagues use HI mode. Another in Chicago has all employees working in SI + mode. All these call centers were in private entities, however, and not with the government. (ECF No. 89-13, at 3-10, Trans. 6:18-13:13). Ms. Richardson testified that to accommodate a blind employee the County would have had to implement some additional solution to the Seibel system because the CTI toolbar was not accessible at the time MC 311 was being built. (ECF No. 89-13, at 19-20, Trans. 89:19-90:3). Ms. Richardson's proposed solution to the CTI toolbar issue was to build and install a widget so that blind employees could get the same functionality. Her toolbar would exist outside the Seibel software. (ECF No. 95-2, Report of Ms. Richardson). She estimated the total cost to the County at $129,600 to $193,200. (ECF No. 89-13, at 16-17, Trans. 84:21-85:3).
Defendant responded with Mr. Brad Ulrich, an outside IT consultant, and Mr. Stephen Heissner, a Senior IT Specialist for the County's Public Information Office. Mr. Ulrich examined Ms. Richardson's proposal and the Opus ROMs. He found serious flaws in Ms. Richardson's proposal. First, installing her separate widget would no longer make Seibel a COTS system with all of its advantages. Furthermore, Ms. Richardson's proposal would increase the time spent addressing problems with the software, which would reduce the time MC 311 would be up and running. The biggest flaw he found was that Ms. Richardson assumed that the CSR position was identical to Plaintiff's job with DHHS, when in fact a CSR has a much broader portfolio, encompassing all of the County's departments. That larger breadth means that any tool has to interact successfully with more systems which adds to the complexity, and consequently, the cost. He also believed that Ms. Richardson's cost estimate could not be trusted because her solution was incomplete in that it did not account for the added cost that will come with trying to incorporate a separate widget onto the Seibel system. Mr. Ulrich estimated that Ms. Richardson underestimated the cost of implementation by a factor of four to six and, additionally, her cost estimate did not include the costs of making the system accessible for the back office employees, although he was not sure whether back office employees used the CTI toolbar. Consequently, he estimated that to implement Ms. Richardson's proposals would actually cost somewhere between $648,000 and $1,159,200. His own proposal stayed within the Seibel infrastructure,
Ms. Richardson filed an affidavit, in which she responded to Mr. Ulrich's largest criticism and stated that her proposal included the initial costs of providing accessibility to each of the thirty-seven County departments that compromise MC 311, not just those previously encompassed in DHHS's portfolio. (ECF No. 105-2). In her supplemental answers to Defendant's interrogatories, Plaintiff acknowledged that Ms. Richardson has not calculated, nor does Plaintiff have any other information about, the projected costs for ongoing operations and maintenance of Ms. Richardson's solutions. (ECF No. 105-3, at 3).
Mr. Heissner stated that the labor required to carry out either of the Opus ROMs or the Ulrich ROM would be substantial and disruptive to MC 311's operations as it would restrict the County's ability to use its internal and contractor resources for necessary ongoing operations, bug fixes, upgrades, and enhancements. He went on to state that even if MC 311 was made fully accessible, there is no guarantee that a blind employee using a screen reader could meet the performance objectives such as average talk time and average after call work time. (ECF No. 79-31 ¶¶ 2 and 3).
Finally, Opus updated its ROM on February 19, 2013. It estimated the initial cost of implementation to be $1,146,670 with yearly costs of $229,334. (ECF No. 102-11 ¶ 10, Heissner Supp. Aff.).
On April 23, 2012, the County posted a job opening for a CSR II position within MC 311. There were two vacancies. The job was classified as Grade 16, Plaintiff's grade. Plaintiff applied for the job. She did not claim a disability or priority consideration in her application.
Forty-five employees initially applied for the position, with two eventually withdrawing. Pursuant to the County's procedures, all applicants were initially reviewed by the Office of Human Resources ("OHR") to determine if they met the minimum qualifications for the job. Plaintiff satisfied those minimum qualifications. The materials of those applicants that met the minimum requirements were forwarded to MC 311 for further review. Between May 2 and May 15, 2012, Ms. Patricia Jenkins and Ms. Anne Santora from MC 311 reviewed and rated the applicants against the job's five preferred criteria, each on a scale of one to ten, fifty being the highest overall score. Those ratings were then sent back to OHR who divided the group into two lists: "qualified" and "well qualified." There is not an exact science to the cut-off between the two categories; OHR tries to draw the line wherever there is a natural break between the two groups. Only those who are given the "well qualified" designation are placed on the "eligible" list and can be interviewed for the position. Eight applicants were placed on the "eligible" list. All were sighted.
Not all eligible applicants have to be interviewed. In determining whether to interview everyone, Mr. Brian Roberts, MC 311's Organization Capacity Specialist and Ms. Hamm's deputy, took it upon himself to do an informal rating of Plaintiff on the fifty point scale used for those who were not transfer on review applicants. (ECF No. 79-33, at 17, Trans. 63:17-64:14). On May 24, 2012, Mr. Roberts sent Ms. Hamm an email with his assessment. He gave Plaintiff a rating of thirty-four (34) out of fifty (50). He wrote that Plaintiff has a strong customer service background, but not in a call center. Her weakest attributes are her communication skills and experience with different systems. His score was right below the seventy (70) percent line for the eligible list (ECF No. 89-53), although Ms. Hamm testified that that line was "made up" and not something OHR uses in dividing the groups (ECF No. 79-33, at 17, Trans. 65:10-16). Mr. Roberts concluded his email by stating that ultimately "you [Ms. Hamm] could back up not inviting her to be interviewed. My recommendation is to offer her an interview.... Then you can evaluate Yasmin against other candidates, and let the chips fall where they may." Mr. Roberts also opined that in the future, MC 311 can require call center experience for a Grade 16 position. (ECF No. 89-53). Ms. Hamm testified that Mr. Roberts' email did not affect her thinking on the matter because she "already had felt like we should go ahead and interview everyone because we've typically done that every time." (ECF No. 79-33, at 17, Trans. 64:16-18). Ultimately, all nine applicants were interviewed.
Interviews are conducted by a panel of three. These interviews were conducted by Ms. Katherine Johnson, Mr. Robert Dejter, and Mr. Dwayne Jenkins, all MC 311 employees. The questions were crafted by Ms. Hamm and Mr. Roberts. Interviewers are instructed to ask the questions and only the questions. No follow-ups; just take notes on what the applicant says. The applicants are allowed a chance to ask questions of the interviewers at the end. Ms. Hamm and Mr. Roberts settled on seven questions.
During the interviews, each interviewer takes notes and rates the applicant's response to each question as either "below average," "average," or "above average." Following all the interviews, the three interviewers discuss among themselves and reach a consensus about how to rate each applicant's answers and finally recommend a slate of applicants to hire. The ultimate hiring decision rests with Ms. Hamm. She is free to deviate from the panel's recommendations.
Plaintiff was the only applicant to ask a question of the interviewers. She asked about the accessibility of MC 311's system and software. Ms. Johnson replied that the County uses Oracle/Siebel and the County would have to look into the matter with the company. (ECF No. 89-50, at 14-15, Trans. 59:5-60:1, Johnson Dep.).
The consensus rating for Plaintiff was one above-average rating and six average ratings. (ECF No. 54-1, at 1). She outscored two of the other applicants. The panel recommended the two applicants who scored the highest: one who received five above-average and two average scores, and another who received four above-average scores and three average scores. Ms. Hamm ultimately accepted the panel's recommendation and conditional offers were made to the two highest-scoring applicants. These applicants are not disabled and were already working in MC 311. Plaintiff was designated "consider at a later date." Under this designation, should a vacancy occur within the next six months, Plaintiff would automatically have been considered without having to reapply and go through an interview. An offer to work in MC 311 is conditional on passing a "limited core" medical exam. This exam includes a vision test. Mr. Street testified that a blind individual would not pass the vision test. (ECF No. 89-8, at 5, Trans. 47:14-18). Because Plaintiff was not given a conditional offer, she did not take the vision test. The limited core exam — and its vision test — were not in place when the decision was made in 2010 not to transfer Plaintiff to MC 311.
On April 12, 2011, Plaintiff filed a complaint asserting violations of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, specifically that Defendant's MC 311 computer software is inaccessible to Plaintiff and other blind individuals and that Defendant failed to provide Plaintiff full-time
On July 24, 2012, Plaintiff moved for leave to file a supplemental complaint (ECF No. 53), which was granted on October 18, 2012, 2012 WL 5193837 (ECF Nos. 56 and 57). Plaintiff's supplemental complaint added a claim asserting violations of Title II of the ADA, specifically the Defendant's failure to hire her for a call center position in 2012. (ECF No. 58). Defendant answered this complaint on November 1, 2012. (ECF No. 59).
On April 12, 2013, Defendant filed a motion for summary judgment and a motion to seal. (ECF Nos. 79 and 81). Plaintiff filed a cross-motion for partial summary judgment and her own motion to seal on May 13, 2013. (ECF No. 89 and 91).
A court may enter summary judgment only if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir.2008). Summary judgment is inappropriate if any material factual issue "may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); JKC Holding Co. LLC v. Wash. Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir.2001).
"A party opposing a properly supported motion for summary judgment `may not rest upon the mere allegations or denials of [his] pleadings,' but rather must `set forth specific facts showing that there is a genuine issue for trial.'" Bouchat v. Balt. Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir.2003) (quoting former Fed. R.Civ.P. 56(e)). "A mere scintilla of proof... will not suffice to prevent summary judgment." Peters v. Jenney, 327 F.3d 307, 314 (4th Cir.2003). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Liberty Lobby, 477 U.S. at 249-50, 106 S.Ct. 2505. (citations omitted). At the same time, the court must construe the facts that are presented in the light most favorable to the party opposing the motion. Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007); Emmett, 532 F.3d at 297.
"When cross-motions for summary judgment are before a court, the court examines each motion separately, employing the familiar standard under Rule 56 of the Federal Rules of Civil Procedure." Desmond v. PNGI Charles Town Gaming, LLC, 630 F.3d 351, 354 (4th Cir.2011). The court must deny both motions if it finds there is a genuine dispute of material fact, "[b]ut if there is no genuine issue and one or the other party is entitled to prevail
Before evaluating the merits of Plaintiff's claims, it is necessary to consider both parties' objections to their opponent's evidence. Plaintiff argues that numerous affidavits and interrogatory answers submitted by Defendant are sworn to "on knowledge, information and belief," which is insufficient for summary judgment purposes. Plaintiff asserts that these affidavits fail to demonstrate that they are based on personal knowledge, as opposed to hearsay, or information and belief. Defendant responds by rectifying this alleged error in regard to the affidavits of Ms. Hamm and Mr. Street by filing supplemental versions (see ECF Nos. 102-2 and 102-5), but also pointing to the fact that each challenged affidavit contains the statements, "I have personal knowledge of the facts set forth in this Affidavit," and "I am competent to testify to the facts set forth in this Affidavit." (See, e.g., ECF No. 79-5, Ahluwalia Aff.). Furthermore, each affidavit concludes with the statement: "I do solemnly declare and affirm under penalties of perjury that the foregoing statement are true and correct to the best of my knowledge, information and belief." Defendant's affidavits substantially comply with the requirements of 28 U.S.C. § 1746 and Plaintiff's objections will be overruled. See Hamilton v. Mayor & City Council of Balt., 807 F.Supp.2d 331, 353 (D.Md.2011).
Plaintiff also points to statements in multiple affidavits and answers to interrogatories that contain hearsay. Inadmissible hearsay cannot be considered in support of a party's motion for summary judgment. Fed.R.Civ.P. 56(c)(4); Whittaker v. Morgan State Univ., 524 Fed. Appx. 58, 60 (4th Cir.2013) (citing Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 962 (4th Cir.1996) ("[S]ummary judgment affidavits cannot be conclusory or based upon hearsay.")). Plaintiff is incorrect as to most of the statements she cites. (See, e.g., ECF No. 79-37 ¶ 16, Heissner Aff. ("As a general rule in the software industry, operations and maintenance costs for enterprise CRM applications may be estimated at approximately 20% per year of the initial investment for the life of the system.")). To the extent Defendant submits hearsay statements, it also submits those statements from the speaker himself, thereby eliminating any hearsay issues. (Compare, e.g., ECF No. 102-19 (Wright recounts in an email that Oracle told him it would cost $150,000 to $200,000 to make the phase 1 technology accessible) with ECF No. 80-8 (email between Oracle employees recounting the $150,000 — $200,000 estimate by Oracle's implementation team)).
Next, Plaintiff argues that the affidavits of Mr. Venzke and Mr. Delgado should be
Plaintiff also argues that the supplemental expert statements of Mr. Ulrich and Mr. Heissner (ECF Nos. 79-31 and 79-46), should be stricken because they are unsworn and Defendant has failed to offer properly any evidence that would qualify them as experts. In addition, Mr. Heissner's supplemental report was not served on Plaintiff until the last day of discovery. Plaintiff's objections will be overruled. To the extent there were any problems with Defendant's original filings, the errors have been corrected by documents attached to its reply brief. (See ECF Nos. 102-11 to 14).
Defendant likewise objects to Plaintiff's evidence, characterizing Plaintiff's affidavit as a "sham." Defendant points to the fact that in her deposition, Plaintiff described her daily work as approximately three hours on MANNA referrals, one to two hours on intake calls, one hour on the HHS mailbox, and thirty minutes on the bridge line. (ECF No. 79-4, at 33, Trans. 125:2-126:13). In the affidavit she submitted as part of her motion, by contrast, she states that her only regular work is MANNA referrals which could be done in about one hour per day. (ECF No. 89-79 ¶¶ 3 and 4). Defendant characterizes this affidavit as a "sham" that should be disregarded as Plaintiff is contradicting her prior testimony in an attempt to create a genuine dispute of material fact.
"[A] party cannot create a genuine issue of fact sufficient to survive summary judgment simply by contradicting his or her own previous sworn statement (by, say, filing a later affidavit that flatly contradicts that party's earlier sworn deposition) without explaining the contradiction or attempting to resolve the disparity." Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806, 119 S.Ct. 1597, 143 L.Ed.2d 966 (1999). "Application of the sham affidavit rule at the summary judgment stage must be carefully limited to situations involving flat contradictions of material fact." Elat v. Ngoubene, 993 F.Supp.2d 497, 528, 2014 WL 253411, at *23 (D.Md. Jan. 21, 2014) (quoting Zimmerman v. Novartis Pharm. Corp., 287 F.R.D. 357, 362 (D.Md.2012)). Defendant's arguments concerning Plaintiff's affidavit will be rejected. While Plaintiff submits in her affidavit that she has less work to do, this is not a flat contradiction of her deposition testimony. Plaintiff testified at her deposition that she spends "not more than three hours" on MANNA referrals (ECF No. 89-3, at 15, Trans. 125:2-4), while in her affidavit she states that MANNA referrals currently "could be done in about one hour per day," (ECF No. 89-79 ¶ 3). These two statements are not flatly contradictory and could also be explained by the fact that the two statements were made approximately one year apart, and over time one's work duties could change. Therefore, it is not appropriate to invoke the sham affidavit rule and Plaintiff's affidavit will be considered.
Plaintiff brings two claims, one for violation of Section 504 of the Rehabilitation
The standards used to evaluate claims brought under the Rehabilitation Act are the same as those brought under Title I of the ADA. 29 U.S.C. § 794(d) ("The standards used to determine whether this section [of the Rehabilitation Act] has been violated in a complaint alleging employment discrimination under this section shall be the standards applied under title I of the Americans with Disabilities Act of 1990 and the provisions of sections 501 through 504, and 510, of the Americans with Disabilities Act of 1990"); Doe v. Univ. of Md. Med. Sys. Corp., 50 F.3d 1261, 1264 n. 9 (4th Cir.1995) ("Because the language of the two statutes is substantially the same, we apply the same analysis to both."). There are "three distinct grounds for relief: (1) intentional discrimination or disparate treatment; (2) disparate impact; and (3) failure to make reasonable accommodations." A Helping Hand, LLC v. Balt. Cnty., Md., 515 F.3d 356, 362 (4th Cir.2008). Plaintiff brings claims of disparate treatment and failure to accommodate. Plaintiff claims that Defendant has violated Section 504 in 2009 by procuring Seibel software and then configuring it in such a way that it is not accessible to blind employees, thereby making transfer of blind employees to MC 311 impossible. According to Plaintiff, the County has compounded the problem by failing to provide her with full-time work appropriate to her skill and experience. Next, Plaintiff argues that the decision not to transfer her to MC 311 in 2009 was disparate treatment on the basis of her disability.
To succeed on her failure to accommodate claim, Plaintiff must demonstrate that: (1) she was an individual who had a
42 U.S.C. § 12111(9).
Plaintiff bears the burden of establishing her ability to perform the essential functions of the CSR position with a reasonable accommodation. Tyndall v. Nat'l Educ. Ctrs., Inc. of Cal., 31 F.3d 209, 213 (4th Cir.1994). The court must decide "(1) whether she could perform the essential functions of the job, i.e., functions that bear more than a marginal relationship to the job at issue, and (2) if not, whether any reasonable accommodation by the employer would enable [her] to perform those functions." Id. (internal quotation marks and citation omitted). To determine whether a particular job function is essential, the court may look to the employer's judgment as to which functions are essential, written job descriptions prepared before interviewing applicants for the job, and the work experience of past employees in the position or similar positions. 29 C.F.R. § 1630.2(n). The "[p]laintiff bears the burden of demonstrating that she could perform the essential functions of her job with reasonable accommodation," Tyndall, 31 F.3d at 213, but the defendant "should bear the burden of proving that a given job function is an essential function," Dahlman v. Tenenbaum, No. DKC 10-2993, 2011 WL 3511062, at *10 (D.Md. Aug. 9, 2011) (citing Ward v. Mass. Health Research Inst., Inc., 209 F.3d 29, 35 (1st Cir.2000) (noting that the defendant "has better access to the relevant evidence" to meet this burden); Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1184 (6th Cir. 1996) ("if a disabled individual is challenging a particular job requirement as unessential, the employer will bear the burden of proving that the challenged criterion is necessary.")). The text of the ADA specifically notes that:
42 U.S.C. § 12111(8).
The terms "reasonable accommodation" and "undue hardship" are reconciled as follows:
U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 401-02, 122 S.Ct. 1516, 152 L.Ed.2d 589 (2002).
From Plaintiff's perspective, she should have been transferred to the CSR position in MC 311 along with her former DHHS I & R colleagues and the County should have made the modifications necessary to allow her to do so. Thus, she treats the MC 311 CSR position as "her position." The County does not suggest any other perspective, but rather responds with several arguments, including questioning whether Plaintiff's proposed modifications would have enabled her to perform the essential functions of the MC 311 CSR job.
The parties dispute the appropriate focus of the proposed accommodation. Plaintiff argues that the County is incorrect to assert that the requested accommodation in this case is the conversion of MC 311's computer system because the County had an independent, ex ante, obligation under Title II and Section 504 to make its computer system accessible whether or not it presently employed any blind persons. As discussed in footnote 6, supra, Plaintiff's accommodation claim arises solely under Section 504; she moved to amend her complaint to add a claim for a violation of Title II but was denied. Consequently, her citations to cases arising under Title II are unavailing. (See ECF No. 99, at 70-71).
Section 504 states that employment discrimination claims brought under the Rehabilitation Act shall be judged by the same standards as those used for Title I of the ADA. 29 U.S.C. § 794(d); Myers v. Hose, 50 F.3d 278, 281 (4th Cir.1995). Under Title I, a disabled employee must put her employer on notice of her disability. Schneider v. Giant of Md., LLC, 389 Fed. Appx. 263, 269-70 (4th Cir.2010) (citing E.E.O.C. v. Fed. Express Corp., 513 F.3d 360, 369 (4th Cir.2008)); Rock v. McHugh, 819 F.Supp.2d 456, 473 (D.Md.2011). Employers do not have to plan for every possible disability with which they could be confronted. The evidence indicates that MC 311 staffing decisions were uncertain when initial decisions about Seibel's configuration were being made and Defendant began investigating the feasibility and that, in any event, those decisionmakers were not aware of Plaintiff until July 2009. Thus, the entire scope of the computer conversion would be within the proposed accommodation.
Defendant asserts that Plaintiff is incorrect to equate her old DHHS position with the CSR position in MC 311. MC 311
In response, Plaintiff contends that the ability to read maps is not relevant to the position as the Smart Traveler system also has a text component that is accessible to a screen reader. In terms of reading PDF documents, Plaintiff argues that some PDFs can be read by screen readers and Defendant has failed to demonstrate why it could not put the unreadable PDFs into a readable format. Furthermore, these alleged essential functions have been raised for the first time in this litigation and do not appear in the CSR II job description. (See ECF No. 89-48). She does not dispute the performance metrics provided by Defendant, but according to Plaintiff, even assuming all of these functions are essential, she has demonstrated that she can perform them with a reasonable accommodation. She points to the words and actions of the County, including the fact that before the accommodation issues became too great, the County was planning to transfer her. (See ECF No. 89-6, at 6, Trans. 40:18-41:15, Calderone Dep. (Plaintiff's DHHS supervisor said it was her understanding that Plaintiff would be going to MC 311 with her colleagues); ECF No. 89-16, at 2 (same)). Mr. Wright — the official who determined that the accommodation would constitute an undue burden — testified that Plaintiff had the knowledge, skills, and abilities to perform the essential job functions of MC 311. (ECF No. 89-8, at 3, Trans. 32:2-12). Given this state of the evidence, neither side is entitled to summary judgment: both sides have raised a genuine dispute as to whether these are essential functions that she must meet with or without a reasonable accommodation.
Defendant goes on to argue that the technology itself has not advanced to a point where it is capable of allowing a blind employee such as Plaintiff to perform the essential functions. Defendant points to the fact that Plaintiff's system would have to be put on SI + mode, which would result in the loss of some features, including dynamic editing, implicit save, drop and drag function, client side validation, message broadcast scroll, and graphic flow designer. But evidence in the record demonstrates that it is possible to have one employee using the system in SI+ mode with the rest in HI mode, (see ECF No. 89-42, at 7, Trans. 49:4-17, Park Dep.), and the County has not demonstrated what it is about those six features lost in SI + mode that are so important as to be considered part of the essential functions of a CSR. If anything, the evidence reflects that the features are useful conveniences, but not critical to the functioning of the MC 311. (ECF No. 89-43, at 4, Trans. 27:21-28:18, Heissner Dep. (implicit save will automatically save a record instead of having to hit or click a button)). Finally, Defendant argues that the critical CTI toolbar, even with the long-awaited VPAT from Oracle, has bugs which prevent the County from imparting full confidence in its ability to accommodate a blind employee. Even assuming that is the case, Plaintiff's proposed accommodation is a widget
One affirmative defense to a failure to accommodate claim is that the Plaintiff's proposed accommodation, although reasonable, would cause the employer an "undue hardship." 42 U.S.C. § 12112(b)(5)(A); 29 C.F.R. § 1630.9. "The term `undue hardship' means an action requiring [the employer to undertake a] significant difficulty or expense." 42 U.S.C. § 12111(10)(A); 29 C.F.R. § 1630.2(p). Determination of whether an accommodation would cause an employer an "undue hardship" is informed by consideration of a number of statutory and regulatory factors, including:
29 C.F.R. § 1630.2(p)(2); see also 42 U.S.C. § 12111(10)(B).
The "undue hardship" question focuses on the impact which the accommodation would have, if implemented, on the specific employer in question "at a particular time." See 29 C.F.R. § 1630.15(d). As explained in Bryant v. Better Business Bureau of Greater Maryland, Inc., 923 F.Supp. 720, 737 (D.Md.1996), this is a multi-faceted, fact-intensive inquiry, requiring consideration of: (1) financial cost; (2) additional administrative burden; (3) complexity of implementation; and (4) any negative impact which the accommodation may have on the operation of the employer's business, including the accommodation's effect on its workforce. 29 C.F.R. § 1630.2(p). "The analysis is essentially one of balancing the benefits and the burdens of the proposed accommodation for a particular employer." Id.
Defendant argues that Plaintiff's proposed accommodation constitutes an undue hardship because it is too expensive and disruptive to MC 311. The parties differ in their estimates of how much it would cost to make MC 311 accessible for Plaintiff, with estimates ranging from $1 million from Defendant's expert to $129,000 from Plaintiff's expert. The County argues that even accepting Plaintiff's $129,000 estimate for the purposes of these motions is far too much money given the County's budget for such matters.
Plaintiff responds that the Defendant fails to recognize the overall budget of the County: $3.73 billion in fiscal year 2010. Even accounting for the fact that roughly $2 billion of that goes to the County's public schools, the costs of accessibility are miniscule. Plaintiff argues that this broader scope is the correct way to examine the cost issue because to do otherwise would encourage municipal governments to divide up their budgets into ever increasing silos in order to claim that the specific department forced to accommodate does not have the necessary funding. In terms of the alleged increased complexity of Ms. Richardson's proposal, Plaintiff argues that it may be somewhat time consuming, but it is not overly complex.
Defendant has demonstrated that Plaintiff's proposed accommodation — even assuming it permits Plaintiff to perform the essential functions of the CSR position — would constitute an undue hardship. Plaintiff's $129,000 figure is unsupported in as much as it does not take into account increased costs for maintenance and upkeep. Indeed, Plaintiff has acknowledged that Ms. Richardson has not calculated the projected costs for ongoing operations and maintenance for Ms. Richardson's solutions. Plaintiff's estimate is more appropriately deemed an initial cost, with ongoing follow-on costs. While the customerfacing portion of MC 311 may not be altered by Plaintiff's proposal, the internal portion would be altered and would result in increased maintenance and more downtime, which could spill over into the customer service realm. Accordingly, the County has established the undue hardship defense as a matter of law as it relates to Plaintiff's preferred accommodation.
Moreover, the County provided an alternative reasonable accommodation. The employer need not have "provided the specific accommodation requested ..., or even ... provide[d] the best accommodation, so long as the accommodation ... is reasonable." Jacob v. Didlake Corp., No. DKC-2006-0342, 2007 WL 178256, at *7 (D.Md. Jan. 22, 2007) (quoting Scott v. Montgomery Cnty. Gov't, 164 F.Supp.2d 502, 509 (D.Md.2001)). "In order to be reasonable, the accommodation must be effective (i.e., it must address the job-related 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 individual in the same position would be able to
Reassignment is an acceptable form of accommodation, 42 U.S.C. § 12111(9), but has traditionally been seen as an "accommodation of last resort," that does not arise unless accommodation within the employee's current position would pose an undue hardship. See 29 C.F.R. Pt. 1630, App. at 1630.2(o) ("reassignment should be considered only when accommodation within the individual's current position would pose an undue hardship."); Cravens v. Blue Cross and Blue Shield of Kansas City, 214 F.3d 1011, 1019 (8th Cir.2000) (same); Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1301 (D.C.Cir.1998) (same). An employer is not required to create a new position in order to accommodate an employee. See Kleiber v. Honda of Am. Mfg., Inc., 485 F.3d 862, 869 (6th Cir.2007); Graves v. Finch Pruyn & Co., Inc., 457 F.3d 181, 187 (2d Cir.2006) (collecting similar decisions from the Fifth, Eighth, and Tenth Circuits). An employer is not required to reassign a disabled employee to a position currently occupied, E.E.O.C. v. Sara Lee Corp., 237 F.3d 349, 355 (4th Cir.2001), nor is the employer required to reallocate essential job functions or assign an employee to "permanent light duty," Carter v. Tisch, 822 F.2d 465, 467 (4th Cir.1987). If the employee can be accommodated by reassignment to a vacant position, the employer must offer the employee the vacant position. E.E.O.C. v. United Airlines, Inc., 693 F.3d 760, 761 (7th Cir. 2012); Duvall v. Georgia-Pacific Consumer Prods., L.P., 607 F.3d 1255, 1260 (10th Cir.2010). EEOC regulations provide that reassignment should first be to "an equivalent position in terms of pay, status, etc., if the individual is qualified, and if the position is vacant within a reasonable amount of time." 29 C.F.R. Pt. 1630, App. at 1630.2(o); Simmons v. N.Y. City Transit Auth., 340 Fed.Appx. 24, 26 (2d Cir.2009) ("reassignment does not constitute reasonable accommodation ... where a position comparable to the employee's former placement is available, but the employee instead is assigned to a position that would involve significant diminution in salary, benefits, seniority or other advantages that she possessed in her former job." (quoting Norville v. Staten Island Univ. Hosp., 196 F.3d 89, 99 (2d Cir.1999)); Smith v. Midland Brake, Inc., 180 F.3d 1154, 1177 (10th Cir.1999) (en banc) (same); Cassidy v. Detroit Edison Co., 138 F.3d 629, 634 (6th Cir.1998) (same). "If the employee cannot be reasonably accommodated in her previous position, she must identify another position that is vacant and funded, at or below her level, for which she is qualified to perform the essential functions." Castellani v. Bucks Cnty. Municipality, 351 Fed.Appx. 774, 777 (3d Cir.2009) (citing Williams v. Phila. Housing Auth. Police Dep't, 380 F.3d 751, 770 (3d Cir.2004)). Crucially, "if, after an opportunity for discovery, the employee still has not identified a position into which she could have transferred, the court must grant summary judgment in favor of the defendant." Shapiro v. Twp. of Lakewood, 292 F.3d 356, 360 (3d Cir.2002); Kotwica v. Rose Packing Co., Inc., 637 F.3d 744, 750 (7th Cir.2011) ("plaintiffs, when alleging that an employer's failure to reassign them violated the ADA's anti-discrimination provisions, bear the burden of showing that there is a vacant position in existence for which they are qualified."); McBride v. BIC Consumer Prods. Mfg. Co., Inc., 583 F.3d 92, 97-98 (2d Cir.2009) (plaintiff "must demonstrate the existence, at or around the time when accommodation was sought, of an existing vacant position to which she could have been reassigned."); Taylor v. Pepsi-Cola Co., 196 F.3d 1106, 1111 (10th Cir.1999) ("To survive summary judgment, Plaintiff must establish that he
While the County's alternative did not involve transfer to MC 311, it still provided Plaintiff with comparable employment. Defendant presented several options for Plaintiff's consideration. Plaintiff was initially given the option of two jobs: Children's Resource Center or Adult Services Intake. The Children's Resource Center was going to be a full-time job, but Plaintiff understood it to be temporary. The Adult Services Intake position, by contrast, was a more permanent job but the amount of work would fluctuate and often be less than full-time. Plaintiff was informed of these facts when it came time to choose and ultimately selected the Adult Services Intake position. As was stated to her, the job was often less than full-time as its primary responsibility — referrals to MANNA — ebbed and flowed depending on a variety of factors outside of Plaintiff's or Defendant's control. Plaintiff was given, however, priority consideration for any position for which she met the minimum qualifications and which was at or below her current grade. In other words, she would be considered before all other applicants for any vacancy that she applied for that was classified at a Grade 16 or lower and for which she met the minimum qualifications. Plaintiff testified that periodically, she would search for positions on the County's transfer database, but never found a job that interested her. Even accepting Plaintiff's argument as to the inferiority of her new position, she has come forth with no evidence that a job comparable to a CSR was open at the time Defendant presented her with the choice between CRC and ADU. See Crabill v. Charlotte Mecklenburg Bd. of Educ., 423 Fed.Appx. 314, 324 (4th Cir.2011) (evidence that employer did not reveal all vacancies that employee could have transferred to). If anything, the evidence illustrates that in the years since Plaintiff chose the ADU position knowing it was less than full-time work, she has seen multiple vacancies with DHHS but chose not to apply for them because they did not interest her. See Rehrs, 486 F.3d at 358-59 (employer encouraged employee to apply for positions not requiring shift rotation, but employee declined and instead applied for, and was granted, partial disability leave, but while on leave, employer again encouraged employee to apply for other positions by sending him notices of vacancy, which employee did not act upon); Scott v. Montgomery Cnty. Gov't, 164 F.Supp.2d 502, 508-09 (D.Md.2001) (employer acted in good faith to provide accommodation where it gave employee six months in order fully to determine extent of disability, met with the government's disability program manager in order to find a position to which he could be reassigned consistent with the terms of the collective bargaining agreement, and was ultimately recommended for disability retirement). Consequently, she has failed to carry her burden that she was not reasonably accommodated.
Plaintiff also claims that the failure to transfer her to MC 311 constitutes
Neither party disputes that Plaintiff has a disability. Assuming, arguendo, Plaintiff is "otherwise qualified," and the failure to transfer her to MC 311 constitutes an "adverse employment action,"
Plaintiff argues that there is direct evidence of Defendant's discriminatory attitude toward Plaintiff and her disability. Plaintiff argues that Defendant spent months planning to make accommodations for her transfer to MC 311 before ultimately deciding against making the necessary investments. She points to the fact that Plaintiff's supervisors told her she would be transferring while MC 311's managers were figuring out whether a transfer was feasible. She draws attention to the fact that on October 1, 2010, Mr.
Absent direct evidence, Plaintiff must prove her case circumstantially using the pretext framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Hooven-Lewis v. Caldera, 249 F.3d 259, 266-68 (4th Cir.2001) (applying McDonnell Douglas framework to a claim of disability discrimination in employment under the Rehabilitation Act). Under this framework, Plaintiff must first demonstrate a prima facie case of disparate treatment. Although the precise formulation of the required prima facie showing will vary in "differing factual situations," McDonnell Douglas, 411 U.S. at 802 n. 13, 93 S.Ct. 1817, the plaintiff is generally required to show that the employer took an adverse action against an employee who was qualified for employment, "under circumstances which give rise to an inference of unlawful discrimination," Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Once a plaintiff establishes a prima facie disparate treatment case, the burden then shifts to the employer to provide some legitimate, non-discriminatory reason for the disputed action. Hill, 354 F.3d at 285. If the employer can do so, the burden shifts back to the employee, who must demonstrate that the reason offered is, in fact, a pretext for discrimination. Id. In the end, "[t]he plaintiff always bears the ultimate burden of proving that the employer intentionally discriminated against her." Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 959 (4th Cir.1996). Assuming, arguendo, that Plaintiff's non-transfer constituted an adverse employment action and occurred under circumstances giving rise to an inference of unlawful discrimination such that she has established her prima facie case, Defendant responds that it only denied the transfer to MC 311 because it determined that the accommodation necessary to make MC 311 accessible to Plaintiff would constitute an undue hardship. Plaintiff responds that that is "transparent pretext for discrimination based on disability." She points to 29 C.F.R. § 32.13(c), which states that "[a] recipient [of federal funding] may not deny any employment or training opportunity to a qualified handicapped employee ... if the basis for the denial is the need to make reasonable accommodation to the physical or mental limitations of the employee." (emphasis added). But the word "reasonable" is key. An accommodation that would constitute an undue hardship for the employer is an accommodation, but it is not a "reasonable accommodation." Otherwise, the whole defense of undue hardship would be rendered meaningless so long as the plaintiff could come forth with some accommodation that would permit her to perform the job's essential functions. Indeed, earlier in the set of regulations "reasonable accommodation" is defined as: "changes and modifications which can be made in the structure of a job or employment and training program, or in the manner in
Plaintiff brings a claim under Title II of the ADA for the County's decision to impose a vision requirement on MC 311 employees and the failure to select her for a transfer in 2012. As an initial matter, Defendant argues that employment discrimination claims such as this are not cognizable under Title II of the ADA, only Title I.
Title I provides:
42 U.S.C. § 12112(a). Title II, by contrast, provides:
Id. § 12132.
Defendant misapprehends the force of a decision from a sister circuit and also places far too much meaning upon a denial of certiorari. There is no doubt a circuit split exists as to whether employment discrimination claims can be brought under Title II; the Supreme Court has acknowledged as much while refusing to settle the question. See Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 360 n. 1, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001). Presently, the Second, Third, Sixth, Seventh, Ninth, and Tenth Circuits have explicitly held that Title II does not cover disability
While the decisions of other circuit courts make for an interesting debate, ultimately in this district, jurisprudence from two federal courts are most persuasive: the Fourth Circuit and the Supreme Court. As discussed above, the Supreme Court has not ruled on this issue and the fact that it denied certiorari in Elwell certainly does not mean it approved its holding, given "the well-settled view that denial of certiorari imparts no implication or inference concerning the Court's view of the merits." Hughes Tool Co. v. Trans World Airlines, Inc., 409 U.S. 363, 365 n. 1, 93 S.Ct. 647, 34 L.Ed.2d 577 (1973). The Fourth Circuit has not explicitly decided the question but it has on two occasions assumed that Title II can be used for employment discrimination claims without expressly analyzing the issue. See Rogers v. Dep't of Health & Envtl. Control, 174 F.3d 431 (4th Cir.1999); Doe v. Univ. of Md. Med. Sys. Corp., 50 F.3d 1261 (4th Cir.1995). Consequently, this court assumes, without deciding, that Plaintiff may bring employment discrimination claims against Defendant under Title II. Lexington Mkt., Inc. v. Desman Assocs., 598 F.Supp.2d 707, 713 (D.Md.2009) ("dictum from the court of appeals should be considered presumptively correct by the district courts within that circuit.") (quoting Gee v. Lucky Realty Homes, Inc., 210 F.Supp.2d 732, 735 (D.Md.2002)). Plaintiff's claims will be analyzed under the language and precedent of Title I of the ADA. See 28 C.F.R. § 35.140 (regulation promulgated under Title II adopts Title I standards for purposes of evaluating employment discrimination claims against public entities).
In her supplemental complaint, Plaintiff alleges that "Defendant discriminated against Plaintiff in the conduct of its job interview by not providing her copies of the questions she was asked in a format accessible to her." (ECF No. 53-3 ¶ 47). Defendant, in its motion for summary judgment, argues that no discriminatory action was taken in regard to the interview questions because no candidates — blind or sighted — received the questions in advance. All candidates were asked the same seven questions. In both her opposition and reply, Plaintiff fails to address Defendant's arguments. Because the burden of proving discrimination rests with Plaintiff, her failure to address Defendant's arguments is fatal to this aspect of her claim that Defendant violated Title II.
Plaintiff alleges that Defendant denied Plaintiff's 2012 application to MC 311 on the basis of her disability in violation of Title II. Plaintiff presents her claim under the McDonnell Douglas framework discussed above. She must first establish a prima facie case for failure-to-hire based on disability. Plaintiff must show that she: (1) is disabled within the meaning of the ADA; (2) applied for the vacant position; (3) was qualified for the position; and (4) was rejected for the position under circumstances giving rise to an inference of unlawful discrimination. See Anderson v. Westinghouse Savannah River Co., 406 F.3d 248, 268 (4th Cir.2005).
Plaintiff satisfies her prima facie case. Neither party disputes that Plaintiff's blindness makes her disabled within the meaning of the ADA or that she applied for the vacant CSR II position in MC 311. She was qualified for the position as HR found she possessed the minimum
The burden then shifts to the Defendant to produce a legitimate, non-discriminatory reason for failing to select Plaintiff. Defendant submits that the decision not to hire Plaintiff for the CSR II position had nothing to do with her disability; instead, the two applicants selected were simply more qualified for the position. It points to the evaluation of the two applicants who were selected as compared to Plaintiff. The two selected applicants received "above average" ratings in five and four of the categories, respectively. Plaintiff, by contrast, received only one "above average" rating, higher than only two of the nine interviewed applicants.
Plaintiff responds with evidence that she contends demonstrates pretext. To establish pretext, a plaintiff must present evidence to allow a reasonable juror to find that (1) the legitimate, nondiscriminatory reasons were "unworthy of credence" and (2) unlawful discrimination was the actual motive for the decision. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, at 143, 147, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). Plaintiff may prove that the defendant's proffered reasons were unworthy of credence "by showing that the asserted reasons had no basis in fact, the reasons did not in fact motivate the discharge or, if they were factors in the decision, they were jointly insufficient to motivate the discharge." Maddox v. Univ. of Tenn., 62 F.3d 843, 848 (6th Cir.1995). Plaintiff points to numerous pieces of evidence as allegedly illustrative of pretext. First, if Defendant had met its obligations to accommodate Plaintiff from day one, she would have had call center experience that would have made her a more attractive candidate. In fact, if Defendant had done its duty and made MC 311 accessible to a blind employee, Plaintiff would not even find herself in this situation as she would already be working at MC 311 alongside her DHHS I & R colleagues. Plaintiff believes that this failure to obtain call center experience harmed her on the last interview question: County systems or databases used. Not surprisingly, she did not receive an "above-average" score on this question. Second, Plaintiff speculates that Defendant had no intention of ever hiring Plaintiff to MC 311 as evidenced by Mr. Roberts's unsolicited email to Ms. Hamm rating Plaintiff and telling her Ms. Hamm could justify not interviewing Plaintiff. He also suggested that in the future, the County require its applicants to have call center experience, something Plaintiff did not possess. Furthermore, Plaintiff points to the email from Mr. Wright, where he advised the hiring team that "it is most important that an applicant is not selected until after Yasmin has also interviewed," (ECF No. 89-54) (emphasis added), suggesting the interview was a sham. Finally, Plaintiff argues that Ms. Hamm was not bound by the interview scores. She could have hired whomever she chose. Plaintiff alleges that Ms. Hamm did not choose her because she knew the County had no intention of implementing an accessible system in MC 311.
Plaintiff's first two arguments can be quickly dispensed with. As discussed above, Defendant acted permissibly not to adopt Plaintiff's proposed accommodation because it was an undue hardship. Thus the argument that Plaintiff should not even be in the position where she has to apply for an MC 311 job is unavailing. In any event, those circumstances have nothing to do with Ms. Hamm's explanation as to why Plaintiff was not hired. Furthermore, even assuming that with call center
Plaintiff and Defendant each filed motions to seal selected exhibits. Plaintiff seeks to seal Exhibits 49, 53, 55, 56, 57, 59, 60, 61, and 62. (ECF Nos. 90-1 to 90-11). These exhibits are: Ms. Jenkins and Ms. Santora's ratings for all applicants for the CSR II position (ECF No. 90-3, Ex. 49); the interview schedule for the CSR II position, listing each interviewee's name (ECF No. 90-4, Ex. 53); the interview notes and evaluations for every interviewee (ECF Nos. 90-5 to 90-7, Ex. 55 to 57); the offer letters to the two applicants selected for the CSR II position (ECF Nos. 90-8 and 90-9, Ex. 59 and 60); and the resumes of the two applicants selected for the CSR II position (ECF Nos. 90-10 and 90-11, Ex. 61 and 62). These documents were designated "confidential" pursuant to a January 11, 2012 Protective Order. (ECF No. 20-1). Defendant has not opposed Plaintiff's motion.
Defendant seeks to file under seal Exhibits 5, 6, 22, 31, 33, and 37. These exhibits are: the 2010 and 2011 ROMs by Opus (ECF No. 80-1 and 80-2, Ex. 5 and 6); the interview notes and evaluations for Plaintiff and the two applicants selected for the CSR II position (ECF No. 80-3 to 80-5, Ex. 22); Plaintiff's application to the CSR II position (ECF No. 80-7, Ex. 33); email correspondence between Opus, Montgomery County, and Oracle between
"The right of public access to documents or materials filed in a district court derives from two independent sources: the common law and the First Amendment." Va. Dep't of State Police v. Wash. Post, 386 F.3d 567, 575 (4th Cir. 2004). "The common law presumes a right of the public to inspect and copy `all judicial records and documents,'" id. at 575 (quoting Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 178, 180 (4th Cir.1988)), although this presumption "`can be rebutted if countervailing interests heavily outweigh the public interests in access.'" Id. (quoting Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 253 (4th Cir. 1988)); see also Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 597-99, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978). Under this common law balancing analysis, "[t]he party seeking to overcome the presumption bears the burden of showing some significant interest that outweighs the presumption." Rushford, 846 F.2d at 253. "Ultimately, under the common law[,] the decision whether to grant or restrict access to judicial records or documents is a matter of a district court's `supervisory power,' and it is one `best left to the sound discretion of the [district] court.'" Va. Dep't of State Police, 386 F.3d at 575 (quoting Nixon, 435 U.S. at 598-99, 98 S.Ct. 1306) (second alteration in original).
In addition to the public's common law right of access, the First Amendment provides a "more rigorous" right of access for certain "judicial records and documents." Va. Dep't of State Police, 386 F.3d at 575-76; see also In re Application of the United States for an Order Pursuant to 18 U.S.C. Section 2703(D), 707 F.3d 283, 290 (4th Cir.2013) (explaining the "significant" distinction between the two rights of access). Where the First Amendment does apply, access may be denied "only on the basis of a compelling governmental interest, and only if the denial is narrowly tailored to serve that interest." Stone, 855 F.2d at 180.
"For a right of access to a document to exist under either the First Amendment or the common law, the document must be a `judicial record'" in the first instance. In re Application, 707 F.3d at 290. The Fourth Circuit recently held that judicially authored or created documents are "judicial records," as are documents filed with the court that "play a role in the adjudicative process, or adjudicate substantive rights." Id. (citing Rushford, 846 F.2d at 252; In re Policy Mgt. Sys. Corp., 67 F.3d 296 (4th Cir.1995) (unpublished table decision)). "[T]he more rigorous First Amendment standard should ... apply to documents filed in connection with a summary judgment motion in a civil case." Va. Dep't of State Police, 386 F.3d
Thus, as a substantive matter, when a district court is presented with a request to seal certain documents, it must determine two things: (1) whether the documents in question are judicial records to which the common law presumption of access applies; and (2) whether the documents are also protected by the more rigorous First Amendment right of access. In re Application, 707 F.3d at 290; see also Va. Dep't of State Police, 386 F.3d at 576.
The sealing of any judicial records must also comport with certain procedural requirements. First, the non-moving party must be provided with notice of the request to seal and an opportunity to object. In re Knight Publ'g Co., 743 F.2d 231, 235 (4th Cir.1984). This requirement may be satisfied by either notifying the persons present in the courtroom or by docketing the motion "reasonably in advance of deciding the issue." Id. at 234. In addition, "less drastic alternatives to sealing" must be considered. Va. Dep't of State Police, 386 F.3d at 576; see also Local Rule 105.11 (requiring any motion to seal to include both "proposed reasons supported by specific factual representations to justify the sealing" and "an explanation why alternatives to sealing would not provide sufficient protection"). Finally, if sealing is ordered, such an order must "state the reasons (and specific supporting findings)" for sealing and must explain why sealing is preferable over its alternatives. Va. Dep't of State Police, 386 F.3d at 576.
Plaintiff's motion to seal will be granted. The proposed sealed documents are personnel records including the CSR II applicants' ratings, resumes, and offers of employment. These documents, concerning those who are not parties to this litigation, will be sealed. See Brown v. Siemens Healthcare Diagnostics, Inc., No. DKC 11-0769, 2012 WL 3136457, at *12 (D.Md. July 31, 2012) (granting a motion to seal the personnel records of employees who are not parties to this litigation). In addition, the court did not rely on the substance of these documents in reaching its decision to grant Defendant's motion for summary judgment and denying Plaintiff's cross-motion.
Defendant's motion to seal will be granted in part and denied in part. Its request to seal the personnel information of non-parties will be granted. Its request to seal Plaintiff's CSR II application will be denied as Plaintiff has waived her privacy right to that document. Its request that the two ROMs be sealed will be denied. Defendant quotes extensively from the ROMs in its motion for summary judgment. Furthermore, Defendant included in its entirety the deposition of Mr. Park of Opus, where he goes through each ROM slide in detail. (ECF No. 79-34). Defendant filed neither of these documents in a sealed or redacted form. See Butler v. DirectSAT USA, LLC, 876 F.Supp.2d 560, 577 (D.Md.2012) (denying a motion to seal documents that were discussed extensively in an unsealed memorandum). Finally, Defendant's request to seal its correspondence with Oracle will be denied. Defendant has not provided any justification as to why these documents need to be sealed besides arguing that they generally contain technical, confidential, and proprietary information that has been exchanged pursuant to the Confidentiality Order. That sort of blanket argument will not suffice on a motion to seal, especially where Defendant failed to explain how an alternative to sealing, such as submitting redacted copies, was not feasible. In addition, much of the information discussed concerns accessibility
For the foregoing reasons, Montgomery County's motion for summary judgment will be granted and Ms. Reyazuddin's cross-motion for partial summary judgment will be denied. Defendant's motion to seal will be granted in part and denied in part. Plaintiff's motion to seal will be granted. A separate order will follow.
