Noll v. Int'l Bus. Machs. Corp.
| Decision Date | 21 May 2015 |
| Docket Number | Docket No. 13–4096–cv. |
| Citation | 787 F.3d 89,31 A.D. Cases 1049 |
| Parties | Alfred J. NOLL, Plaintiff–Appellant, v. INTERNATIONAL BUSINESS MACHINES CORPORATION, Defendant–Appellee. |
| Court | U.S. Court of Appeals — Second Circuit |
Eugene Feldman (Michael A. Schwartz, Disability Rights Clinic, Syracuse University College of Law, Syracuse, N.Y., on the brief), Law Office of Eugene Feldman, Hermosa Beach, CA, for Plaintiff–Appellant.
Willis J. Goldsmith (Karen Rosenfield, on the brief), Jones Day, New York, N.Y., for Defendant–Appellee.
Before: JACOBS, SACK, and DRONEY, Circuit Judges.
Judge SACK dissents in a separate opinion.
Alfred J. Noll, a software engineer, sued his employer for disability discrimination, alleging that International Business Machines Corp. (“IBM”) did not accommodate his deafness by arranging that all video files stored on its corporate intranet be captioned when posted and that all audio files likewise be posted with transcripts. Noll asserts claims under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12112, and the New York State Human Rights Law (“NYSHRL”), N.Y. Exec. Law § 296, and appeals from the judgment of the United States District Court for the Southern District of New York (Baer, J.), dismissing those claims on summary judgment. The district court held that IBM reasonably accommodated Noll by providing American Sign Language (“ASL”) interpreters capable of translating files at Noll's request and that, in light of this accommodation, Noll has no claim that IBM failed to engage him in an interactive process.
On appeal, Noll argues (I) that the district court overlooked portions of the record creating a factual dispute about the effectiveness of ASL interpreters (and hence, whether they were a reasonable accommodation), and (II) that IBM is liable for failure to engage in an interactive process regardless of whether it provided reasonable accommodation. We affirm.
Noll, who is deaf, has worked as a software engineer at IBM since 1984, enjoying consistently positive performance reviews. In performing his work, Noll uses several accommodations provided by IBM, including on-site and remote ASL interpreters, as well as measures described as “communication access real-time translation (‘CART’), internet based real-time transcription, and video relay services.” Noll is active on behalf of IBM employees who are deaf and hearing-impaired, and helped develop many of the company's accommodations for that group.
IBM maintains a corporate intranet for its approximately 440,000 employees worldwide. Content ranges from official management messages to educational and training resources to such personal material as employees' vacation photos. The intranet hosts a huge volume of video and audio files in a number of locations, and thousands of files are continuously being uploaded. IBM's Media Library alone stores over 46,000 video files (and over 35,000 audio files), of which only about 100 videos are captioned.
From 2003 to 2008, Noll frequently asked the Persons with Disabilities program manager at IBM for captioning of particular intranet videos or transcripts of audio files. On these occasions, IBM typically provided Noll with transcripts (of both video and audio files) rather than on-screen captioning. However, the process of obtaining transcripts was imperfect: although transcripts were generally made available within five days of Noll's request, they occasionally took longer, and links to transcripts were sometimes broken.
During the relevant period, Noll also had access to ASL interpreters who provided real-time translation services, either on-site or remotely, for intranet content as well as for live meetings. The process by which IBM employees at the Poughkeepsie office (where Noll worked) could request and get ASL interpreters was coordinated by Noll.
Noll, who is fluent in ASL, regularly used the interpreters when he attended live meetings, and found them to be effective. Noll disliked using ASL interpreters for videos because he found it “confusing and tiring” to look back and forth between the video and the interpreter.
Noll filed this action on August 15, 2012, alleging that IBM discriminated against him on the basis of his disability, in violation of the ADA and the NYSHRL, by refusing to provide the accommodation he demanded: that, at the time they are posted, all intranet videos be captioned and all audio files have transcripts. Following discovery, IBM moved for summary judgment on June 18, 2013, arguing, among other things, that (1) the accommodations it provided—including ASL interpreters—were plainly reasonable, and (2) Noll's request that all videos be captioned and all audio files be transcribed was prima facie unreasonable. The district court granted IBM's motion on the ground that IBM reasonably accommodated Noll by providing ASL interpreters. The court also rejected Noll's claim that IBM failed to engage in an interactive process, reasoning that such a claim cannot be maintained if the employer provided reasonable accommodation.
On appeal, Noll argues that (I) the district court ignored evidence in the record creating a genuine dispute about the effectiveness of IBM's accommodations, and (II) an employer's failure to engage in an interactive process suffices for a disability discrimination claim, even if reasonable accommodation was made.
We review de novo a district court's grant of summary judgment. Mario v. P & C Food Markets, Inc., 313 F.3d 758, 763 (2d Cir.2002). Summary judgment must be granted if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “[I]n assessing the record to determine whether there is a genuine issue as to any material fact, the court is required to resolve all ambiguities and draw all factual inferences in favor of the party against whom summary judgment is sought.” Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 36 (2d Cir.1994). A genuine issue of material fact is one that “might affect the outcome of the suit under the governing law” and as to which “a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
The ADA and the NYSHRL require an employer to afford reasonable accommodation of an employee's known disability unless the accommodation would impose an undue hardship on the employer. 42 U.S.C. § 12112(b)(5)(A) ; N.Y. Exec. L. 296(3)(a). To maintain a claim under either statute, an employee must show that: “(1) [he] is a person with a disability under the meaning of the ADA; (2) an employer covered by the statute had notice of his disability; (3) with reasonable accommodation, [the employee] could perform the essential functions of the job at issue; and (4) the employer has refused to make such accommodations.” McBride v. BIC Consumer Prods. Mfg. Co., Inc., 583 F.3d 92, 97 (2d Cir.2009) (internal quotation marks omitted); see also Graves v. Finch Pruyn & Co., Inc., 457 F.3d 181, 184 n. 3 (2d Cir.2006) (). The only issue disputed in this case is whether IBM has refused to provide reasonable accommodations. Noll concedes that IBM provided him with transcripts and ASL interpreters, but argues that those accommodations were unreasonable.
The reasonableness of an employer's accommodation is a “fact-specific” question that often must be resolved by a factfinder. See Wernick v. Fed. Reserve Bank of N.Y., 91 F.3d 379, 385 (2d Cir.1996). But in a case such as this, in which the employer has already taken (or offered) measures to accommodate the disability, the employer is entitled to summary judgment if, on the undisputed record, the existing accommodation is “plainly reasonable.” Id. In other words, the plain reasonableness of the existing accommodation ends the analysis. There is no need to engage in further burden-shifting to consider whether the employee's requested accommodation would have been reasonable. See U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 400–02, 122 S.Ct. 1516, 152 L.Ed.2d 589 (2002) ; Borkowski v. Valley Cent. School Dist., 63 F.3d 131, 137–38 (2d Cir.1995).
A reasonable accommodation is one that “enable[s] an individual with a disability who is qualified to perform the essential functions of that position ... [or] to enjoy equal benefits and privileges of employment.” 29 C.F.R. § 1630.2(o )(1)(ii), (iii). Noll does not dispute that the accommodations provided enabled him to perform the essential functions of his position. Noll's claim is that immediate access to all video and audio postings on IBM's intranet was a benefit or privilege of employment, like a parking space, health insurance, or a locker. See 29 C.F.R. § 1630 app. (“The obligation to make reasonable accommodation applies to all services and programs provided in connection with employment, and to all non-work facilities provided or maintained by an employer for use by its employees [,] ... [including] employer provided cafeterias, lounges, gymnasiums, auditoriums, transportation and the like.”). We will assume that is so for the purpose of this appeal.1
Reasonable accommodation may take many forms, but it must be effective. Barnett, 535 U.S. at 400, 122 S.Ct. 1516 ( ); see also Borkowski, 63 F.3d at 139. At the same time, employers are not required to provide a perfect accommodation or the very accommodation most strongly preferred by the employee. 29 C.F.R. § 1630 app. (“[Although] the preference of the individual with a disability should be given primary...
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