NEEDREPLACE, Civil Action No. DKC 11–0951.

CourtNew York District Court
Writing for the CourtDEBORAH K. CHASANOW
Citation7 F.Supp.3d 526
Docket NumberCivil Action No. DKC 11–0951.
Decision Date20 March 2014

7 F.Supp.3d 526


Civil Action No. DKC 11–0951.

United States District Court, D. Maryland.

Filed March 20, 2014

County's motion granted and employee's motion denied.

[7 F.Supp.3d 531]

Joseph B. Espo, Brown Goldstein and Levy LLP, Timothy R. Elder, Tre Legal Practice, LLC, Baltimore, MD, for Plaintiff.

Patricia Lisehora Kane, Rockville, MD, for Defendant.


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

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following reasons, Defendant's motion for summary judgment will be granted and Plaintiff'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.

I. Background A. Factual Background

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.

1. MC 311's Technology and Initial 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

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for attachments, implicit save, client-side validation, graphical flow designer, and message broadcast scroll bar. While HI mode has these additional features, they are not compatible with a screen reader, and thus not accessible to a blind employee. SI+ mode, however, is accessible but lacks these additional features. The County chose to use HI mode for the additional efficiencies it provides, although a representative of Opus testified that a call center could have employees working on both modes simultaneously. ( See ECF No. 79–34, at 11, Trans. 41:8–15, Park Dep.). In addition to the HI functions listed above, the County chose to utilize three additional features: Computer Telephony Integration (“CTI”) toolbar, Smartscript, and Email Response. The CTI toolbar was the heart of the system. It is a mechanism for MC 311 Customer Service Representatives (“CSRs”) to accept, transfer, and block calls while allowing management to monitor various metrics such as time spent on a call and time spent away from the system. Smartscript is a program that would give CSRs a pop-up screen to read to customers. Email Response is a program that allows CSRs to send emails to customers in response to a telephone call. None of these functions were accessible in either HI or SI+ mode when the County selected Seibel. There is no evidence as to the capabilities of any competitor's products.

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,

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Plaintiff Dep.). When the software for MC 311 was purchased in January 2009, the County had not yet decided whether it would staff MC 311 with new employees, contract employees, or transfer current employees. (ECF No. 79–20 ¶ 15, Street Aff.). In the middle of 2009, it was determined that staffing would be accomplished by transferring current employees. According to Mr. Street, “[s]ometime thereafter, we learned that a blind employee was being considered for transfer.” ( Id. ¶ 16; see also ECF No. 89–12, at 3, Trans. 22:21–23:10 (Ms. Hamm first learns of Plaintiff in July 2009)). In August 2009, Ms. Hamm visited Plaintiff at DHHS to observe her work. She communicated her observations to the Opus team in August 2009 and requested that “they investigate the feasibility, time and cost of making the necessary accommodations for Plaintiff to be a fully functional [ CSR] at MC 311.” (ECF No. 102–5 ¶¶ 9 and 11; ECF No. 102–17). It was expected that Plaintiff, along with the other I & R Aides would transfer to MC 311. Plaintiff went to MC 311 orientation in October 2009; Mr. Ricky Wright, the County's Disability Program Manager, gave her a walk through where she asked about the accommodations. In December 2009, the other I & R Aides transferred to MC 311; Plaintiff did not. During that time, the County was still exploring whether MC 311's technology could be made accessible to a blind employee and, if not, finding Plaintiff alternative employment. She stayed back at DHHS, answering calls for them as she had done before.

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...

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