Yasmin Reyazuddin v. Montgomery County, Maryland

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-1299

YASMIN REYAZUDDIN,

Plaintiff – Appellant,

v.

MONTGOMERY COUNTY, MARYLAND,

Defendant – Appellee.

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AMERICAN COUNCIL OF THE BLIND; AMERICAN CIVIL LIBERTIES
UNION; ASSOCIATION ON HIGHER EDUCATION AND DISABILITY;
CIVIL RIGHTS EDUCATION AND ENFORCEMENT CENTER; DISABILITY
RIGHTS ADVOCATES; LEGAL AID SOCIETY − EMPLOYMENT LAW
CENTER; MARYLAND EMPLOYMENT LAWYERS ASSOCIATION; NATIONAL
ASSOCIATION OF THE DEAF; NATIONAL DISABILITY RIGHTS
NETWORK; PUBLIC JUSTICE CENTER, INC.,

Amici Supporting Appellant.

Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Deborah K. Chasanow, Chief District
Judge. (8:11-cv-00951-DKC)

Argued: January 28, 2015 Decided: June 15, 2015

Before TRAXLER, Chief Judge, and DIAZ and THACKER, Circuit
Judges.
Affirmed in part, reversed in part, and remanded by published
opinion. Judge Diaz wrote the opinion, in which Chief Judge
Traxler and Judge Thacker joined.

ARGUED: Daniel Frank Goldstein, BROWN, GOLDSTEIN & LEVY, LLP,
Baltimore, Maryland, for Appellant. Karen Louise Federman
Henry, COUNTY ATTORNEY’S OFFICE FOR THE COUNTY OF MONTGOMERY,
Rockville, Maryland, for Appellee. ON BRIEF: Joseph B. Espo,
Matthias L. Niska, BROWN, GOLDSTEIN & LEVY, LLP, Baltimore,
Maryland, for Appellant. Marc P. Hansen, County Attorney,
Patricia P. Via, Chief, Division of Litigation, Patricia
Lisehora Kane, Associate County Attorney, COUNTY ATTORNEY’S
OFFICE FOR THE COUNTY OF MONTGOMERY, Rockville, Maryland, for
Appellee. Susan Mizner, Claudia Center, AMERICAN CIVIL
LIBERTIES UNION FOUNDATION, San Francisco, California; Amy
Robertson, CIVIL RIGHTS EDUCATION AND ENFORCEMENT CENTER,
Denver, Colorado, for Amici Curiae.

2
DIAZ, Circuit Judge:

Montgomery County, Maryland, opened a new, consolidated

call center using software that was inaccessible to blind

employees. The County did not transfer employee Yasmin

Reyazuddin, who is blind, to the call center along with her

sighted coworkers. The County also did not hire her for a

vacant position there. Reyazuddin challenged the County’s

actions as violating Section 504 of the Rehabilitation Act of

1973, 29 U.S.C.A. § 794 (West 2014), or Title II of the

Americans with Disabilities Act of 1990 (the “ADA”), 42 U.S.C.

§ 12131 et seq. (2012).

Section 504 forbids an employer from discriminating against

an employee because of her disability. It also requires an

employer to accommodate an employee with a disability who can

perform the essential functions of a job with a reasonable

accommodation. But an employer avoids liability if it can show

that providing an accommodation would constitute an “undue

hardship.”

We find that genuine issues of material fact remain as to

(1) whether Reyazuddin could perform the essential job functions

of a call center employee; (2) whether the County reasonably

accommodated her; and (3) if the County did not, whether its

failure to do so may be excused because of undue hardship.

Accordingly, we reverse the district court’s order granting

3
summary judgment to the County on Reyazuddin’s Section 504

claims. However, we affirm the district court’s order granting

summary judgment to the County on Reyazuddin’s Title II claim

because public employees cannot use Title II to bring employment

discrimination claims against their employers.

I.

A.

In early 2008, as part of its $80 million Technology

Modernization Project, Montgomery County decided to consolidate

its 1,500 telephone numbers for 38 offices and departments into

one call center that residents could reach by dialing 311. The

County’s goals for its consolidated call center (dubbed MC311)

were to achieve accountability, responsiveness, and efficiency.

In January 2009, the County decided to outfit MC311 with

software called Siebel Public Sector 8.1.1, licensed from

Oracle. This software met the County’s goals, was compatible

with other Oracle software already used by the County, and was

cost-effective as a “commercial-off-the-shelf,” as opposed to

custom, product.

The Siebel software can be operated in two modes: high-

interactivity or standard-interactivity. High-interactivity

4
mode is not accessible 1 because it is written in Microsoft

ActiveX, a technology that screen reader software cannot

interpret. Screen reader software enables users who are blind

to operate a computer through keyboard shortcuts, instead of

mouse clicks, and by hearing synthesized speech or using a

refreshable Braille display, in place of reading the screen.

Standard-interactivity mode, however, is accessible because it

is written in standard HTML and Javascript, which are compatible

with screen reader software.

The County’s license allows it to run the software in

either mode. Moreover, it is technologically feasible for some

employees to operate the software in high-interactivity mode

while others work in standard-interactivity mode. Doing so does

not impact overall employee productivity.

The County nonetheless chose to configure the software at

MC311 in high-interactivity mode for all employees. 2 In this

mode, employees use three features--the CTI Toolbar,

1
By “accessible” here and in other variations throughout
the opinion, we mean “accessible to blind employees.”
2
The County expects employees operating in high-
interactivity mode to handle fifty-five to seventy calls per day
with an average call time of three minutes plus ninety seconds
to finish their after-call work. Although we do not know how
(or if) operating a call center in standard-interactivity mode
affects productivity, the record shows that four other U.S. call
centers are accessible by operating in both modes, operating in
standard-interactivity mode only, or using a custom solution.

5
SmartScript, and Email Response--that are not available in

standard-interactivity mode.

The CTI Toolbar integrates MC311’s phone system and the

Siebel software. Employees use the CTI Toolbar to make

themselves available to take calls and to answer and transfer

calls. SmartScript generates a pop-up window containing a

script for employees to read to callers, a field for typing

notes about the call, and a function to transfer emergency calls

to 911. Employees then close SmartScript and the service

request template pops up with fields automatically filled in

with the information previously typed into SmartScript.

The service request form has a keyword search function that

generates a list of articles to help employees answer the

caller’s question. Once employees have identified the best

article, they click on the “attach solution” button to add it to

the service request form. This in turn causes several fields in

the form to populate automatically. These fields include the

appropriate department; the County’s “public answer,” which is a

“short, concise paragraph about how the [C]ounty handles” the

caller’s particular concern; and instructions for employees on

how to handle the call. J.A. 487–88. 3

3
Email Response “is a program that allows [employees] to
send emails to customers in response to a telephone call.”
(Continued)
6
 The County first asked Oracle about MC311’s accessibility

in November 2009, more than eleven months after purchasing the

license. Oracle told the County that the CTI Toolbar,

SmartScript, and Email Response features of the Siebel software

would not be accessible until mid-2010. Oracle also estimated

that it would cost $200,000 to make the Siebel software

accessible through standard-interactivity mode, without those

three features.

Over the next sixteen months, the County received

increasing estimates about the cost of accessibility from Opus

Group, a subcontractor hired to configure and implement the

Siebel software at MC311. The first estimate to make standard-

interactivity mode available at MC311 was $222,075. A second

option to give “back office” employees access to assigned

service requests would cost $65,625. By April 2011, these

estimates rose to $399,270 and $240,867, respectively. All the

while, the CTI Toolbar, SmartScript, and Email Response features

remained inaccessible.

Reyazuddin v. Montgomery Cnty., Md., 7 F. Supp. 3d 526, 533 (D.
Md. 2014).

7
 B.

Since 2002, Yasmin Reyazuddin has worked in the County’s

Department of Health and Human Services, most recently as one of

five Information and Referral Aides. In that role, she answered

questions from County residents who called about the

Department’s services, referrals to County programs, and the

status of applications for benefits. Reyazuddin, who is blind,

performed her job using screen reader software. Reyazuddin also

used a Braille embosser, which allowed her to print in Braille.

Reyazuddin first learned about the County’s plans to create

MC311 in May 2008 from her then-supervisor. Over the next

sixteen months, Reyazuddin and the other Information and

Referral Aides received updates on MC311’s general progress.

During this time, the County was determining how to staff

MC311’s forty-nine positions.

In October 2009, JoAnne Calderone, Manager for Planning,

Accountability, and Customer Service in the Department of Health

and Human Services, met with the five Information and Referral

Aides and formally told them that their unit was transferring to

MC311. The County planned to transfer Reyazuddin and one other

aide on November 9, with the three remaining aides to follow two

weeks later. The other four Information and Referral Aides are

not blind.

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 Reyazuddin expressed concern about MC311’s accessibility.

She also told Calderone that she had scheduled leave from

October 28 to November 28, 2009, for a trip to India. Calderone

emailed this information to Leslie Hamm, then-Manager and now-

Director of MC311, who responded that the County’s Disability

Program Manager, Ricky Wright, suggested that “the date of

[Reyazuddin’s] detail to MC311 be delayed indefinitely or at

least until . . . she returns from pre-approved leave.” J.A.

1046.

One aide transferred as scheduled on November 9. By the

time Reyazuddin returned from her trip, the other three aides

had also transferred to MC311. But Reyazuddin was not

transferred and instead was told to return to her pre-vacation

job site at the main administrative building for the Department

of Health and Human Services. She continued to perform her

duties by answering the Department information line until

February 4, 2010, when the information line was switched off and

calls were transferred to MC311. For one day, Reyazuddin had

nothing to do. Then the County decided that MC311 would not

handle Manna Food Center referrals, which allow eligible low-

income individuals to receive food from a private, non-profit

food bank. Reyazuddin was assigned this task, but it was not

full-time work.

9
 In March 2010, Reyazuddin was assigned to work in the

Department’s Aging and Disability Unit for Adult Services

Intake. 4 For the next six months, Reyazuddin’s supervisors

struggled to find work for her. They thought her work situation

was temporary until she could be transferred to MC311. However,

on October 1, 2010, Wright informed Reyazuddin that she would

not be transferring to MC311 because it would be too expensive

for the County to make the software accessible. Wright

“recommend[ed] the reasonable accommodation of ‘reassignment to

a vacant position’ (priority consideration) in accordance with”

the County employees’ collective bargaining agreement. J.A.

1045.

From 2010 to 2012, Reyazuddin had the same salary, grade,

and benefits as she did before MC311’s launch. But although her

supervisors pieced together tasks for her to perform, she did

not have full-time work.

In 2012, Reyazuddin and eight other applicants were

interviewed for one of two vacancies at MC311. Reyazuddin was

not one of the two top-scoring applicants who the interviewers

recommended to fill the vacancies. Although not required to do

4
This assignment came after the County had given her a
choice between working with the Children’s Resource Center or
the Aging and Disability Resource Unit.

10
so under County policy, Hamm ultimately hired the recommended

applicants.

C.

Reyazuddin alleges that, in 2009, the County violated

Section 504 of the Rehabilitation Act by (1) failing to

accommodate her disability by making MC311’s software accessible

and (2) discriminating against her when it did not transfer her

to MC311 along with her coworkers. Reyazuddin also alleges

that, in 2012, the County violated Title II of the ADA by not

hiring her to fill an MC311 vacancy. 5

Reyazuddin retained an expert, Temeko Richardson, to

evaluate the cost of making MC311 accessible by developing a

custom “widget” as a workaround for the CTI Toolbar. The custom

solution would be compatible with screen reader software.

Richardson had previously seen this alternative at work in other

call centers. Her lowest cost estimate was $129,600.

The County had an expert, Brad Ulrich, review Richardson’s

report. Ulrich noted flaws in the report and estimated that the

actual cost to implement the least expensive accessibility

option suggested by Richardson would be $648,000.

5
The district court granted Reyazuddin’s motion for leave
to file a supplemental complaint in July 2012 to add allegations
about the County’s 2012 conduct, but the court previously denied
her motion for leave to amend her complaint to add a claim that
the County’s 2009 conduct violated Title II.

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 To give these cost estimates some context, the County’s

total budget for fiscal year 2010 was $3.73 billion. MC311’s

budget for fiscal year 2011 was about $4 million. By late

January 2011, the County had spent about $11.4 million on MC311.

But the County estimates that MC311 has saved it $10.3 million

in fiscal years 2010 and 2011.

Following a period of discovery, both parties moved for

summary judgment. The district court granted the County’s

motion and denied Reyazuddin’s. Regarding the failure-to-

accommodate claim, the court found that a genuine issue existed

“as to whether [Reyazuddin’s] proposed accommodation permits her

to perform the essential functions of the [MC311] job.”

Reyazuddin, 7 F. Supp. 3d at 548. But the court determined that

the County reasonably accommodated Reyazuddin by providing her

with comparable employment. Id. at 551. The court also

concluded that no genuine issue existed on the County’s undue

hardship defense and that the County prevailed on that defense

as a matter of law. Id. at 549.

On Reyazuddin’s disparate-treatment claim based on the

County not transferring her to MC311, the district court

determined that the claim rose and fell with the failure-to-

accommodate claim; because the County had shown as a matter of

law that accommodating Reyazuddin at MC311 was an undue

hardship, its decision to not transfer her lacked discriminatory

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intent. Id. at 554-55. Finally, as to Reyazuddin’s Title II

claim, the court concluded that Reyazuddin failed to present

sufficient evidence that the County’s decision not to hire her

for a vacant MC311 position was pretext for discrimination. Id.

at 557-58.

Reyazuddin appealed.

II.

We review de novo a district court’s summary judgment

order. D.L. ex rel. K.L. v. Balt. Bd. of Sch. Comm’rs, 706 F.3d

256, 258 (4th Cir. 2013). “Summary judgment is appropriate only

where there is no genuine issue of material fact and the movant

is entitled to judgment as a matter of law.” Id. The pertinent

inquiry is whether “there are any genuine factual issues that

properly can be resolved only by a finder of fact because they

may reasonably be resolved in favor of either party.” Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). The evidence

must be viewed in the light most favorable to the non-moving

party, with all reasonable inferences drawn in that party’s

favor. D.L., 706 F.3d at 258. “The court therefore cannot

weigh the evidence or make credibility determinations.” Jacobs

v. N.C. Admin. Office of the Courts, 780 F.3d 562, 569 (4th Cir.

2015).

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 Section 504 of the Rehabilitation Act mandates that “[n]o

otherwise qualified individual with a disability . . . shall,

solely by reason of her or his disability, be excluded from the

participation in, be denied the benefits of, or be subjected to

discrimination under any program or activity receiving Federal

financial assistance.” 29 U.S.C.A. § 794(a). Relevant to this

appeal, Section 504 defines “program or activity” as “all of the

operations of . . . a department . . . of a State or of a local

government.” 6 Id. § 794(b)(1)(A).

Employment discrimination claims brought under Section 504

are evaluated using the same standards as those “applied under

[T]itle I of the Americans with Disabilities Act of 1990.” Id.

§ 794(d). Of significance here, Title I prohibits employers

from “discriminat[ing] against a qualified individual on the

basis of disability” by “not making reasonable accommodations to

the known physical or mental limitations of an otherwise

qualified individual with a disability who is an applicant or

employee, unless [a] covered entity can demonstrate that the

accommodation would impose an undue hardship on the operation of

the business of such covered entity.” 42 U.S.C.

§ 12112(b)(5)(A) (2012). A “qualified individual” is “an

6
The County on appeal has abandoned its defense to Section
504 liability based on MC311 not receiving federal funding.

14
individual who, with or without reasonable accommodation, can

perform the essential functions of the employment position that

such individual holds or desires.” Id. § 12111(8).

We consider in turn Reyazuddin’s Section 504 failure-to-

accommodate and disparate-treatment claims.

A.

To establish a prima facie case on her failure-to-

accommodate claim, Reyazuddin must show that (1) she qualifies

as an “individual with a disability” as defined in 29 U.S.C.A.

§ 705(20); (2) the County had notice of her disability; (3) she

could perform the essential functions of her job with a

reasonable accommodation; and (4) the County refused to make any

reasonable accommodation. 29 U.S.C.A. § 794(a); Wilson v.

Dollar Gen. Corp., 717 F.3d 337, 345 (4th Cir. 2013).

Even if Reyazuddin establishes her prima facie case, the

County avoids liability if it can show as a matter of law that

the proposed accommodation “will cause ‘undue hardship in the

particular circumstances.’” Halpern v. Wake Forest Univ. Health

Scis., 669 F.3d 454, 464 (4th Cir. 2012) (quoting U.S. Airways

v. Barnett, 535 U.S. 391, 401-02 (2002)). Courts have

reconciled and kept distinct the “reasonable accommodation” and

“undue hardship” requirements by holding that, at the summary

judgment stage, the employee “need only show that an

‘accommodation’ seems reasonable on its face,” and then the

15
employer “must show special (typically case-specific)

circumstances that demonstrate undue hardship.” Barnett, 535

U.S. at 401-02.

That Reyazuddin satisfied the first two elements is

undisputed, but the parties disagree on the third and fourth

elements and the County’s undue hardship defense.

1.

On the third element, the parties dispute whether

Reyazuddin’s proposed accommodations are reasonable and what

constitutes the essential job functions of an MC311 employee.

Title I provides that a “reasonable accommodation” includes

(A) making existing facilities used by employees
readily accessible to and usable by individuals with
disabilities; and

(B) job restructuring, part-time or modified work
schedules, reassignment to a vacant position,
acquisition or modification of equipment or devices,
appropriate adjustment or modifications of
examinations, training materials or policies, the
provision of qualified readers or interpreters, and
other similar accommodations for individuals with
disabilities.

42 U.S.C. § 12111(9).

To overcome a motion for summary judgment, Reyazuddin was

required to “present evidence from which a jury may infer that

the [proposed] accommodation is ‘reasonable on its face, i.e.,

ordinarily or in the run of cases.’” Halpern, 669 F.3d at 464

16
(quoting Barnett, 535 U.S. at 401). A reasonable accommodation

is one that is feasible or plausible. Barnett, 535 U.S. at 402.

To determine essential job functions, Title I requires that

consideration “be given to the employer’s judgment as to what

functions of a job are essential, and if an employer has

prepared a written description before advertising or

interviewing applicants for the job, this description shall be

considered evidence of the essential functions of the job.” 42

U.S.C. § 12111(8).

We agree with the district court that a genuine issue of

material fact exists on this element. Reyazuddin has suggested

two accommodations that she says will allow her to perform the

essential job functions of an MC311 employee: the County could

(1) configure its Siebel software to run concurrently in the

accessible standard-interactivity mode or (2) create a custom

workaround “widget” for the CTI Toolbar.

Reyazuddin supported the reasonableness of these proposals

through evidence from her expert, Temeko Richardson. Richardson

worked with two call centers in California and Pennsylvania that

were accessible by operating simultaneously in high-

interactivity and standard-interactivity modes. She also worked

with a third call center in Illinois where all employees,

including one blind employee, operated in standard-interactivity

17
mode. And a fourth call center client in Pennsylvania was

accessible through a custom solution.

The County counters that its decision to configure the

Siebel software in the inaccessible high-interactivity mode,

with the CTI Toolbar in particular, “maximize[s call center

employees’] efficiency and productivity . . . while keeping the

cost of delivering government services as low as possible.”

Appellee’s Br. at 17. The record, however, is silent about the

productivity of employees operating in standard-interactivity

mode, and so the County is left to speculate that employees

operating without the bells and whistles of the high-

interactivity mode configuration must be less productive. Even

if we were willing to credit that assumption, it does not

necessarily follow that using the high-interactivity software

configuration is an essential job function, particularly in

light of Reyazuddin’s evidence of other call centers functioning

without it.

The County also argues that Reyazuddin’s proposed

accommodations would not allow her to perform the essential job

function of reading maps and PDF documents, which are used to

respond to MC311’s most frequent call about the estimated

arrival time for the next public bus. However, this contention

is contrary to the deposition testimony of the County’s

Disability Program Manager, Ricky Wright, that Reyazuddin

18
“certainly has the knowledge, skills and abilities” to perform

the essential functions of the MC311 job. J.A. 317. Moreover,

when Reyazuddin applied for a vacancy at MC311 in 2012, she was

interviewed after the Office of Human Resources determined that

she met the minimum qualifications. In light of this evidence,

we think that a genuine issue remains as to whether Reyazuddin

could perform the essential job functions with a reasonable

accommodation.

2.

Turning to the fourth element of the failure-to-accommodate

claim, Reyazuddin argues that the district court erred by

finding as a matter of law that the County provided a reasonable

accommodation by reassigning her to “comparable employment.”

Reyazuddin, 7 F. Supp. 3d at 551. We agree that the district

court improperly engaged in fact finding instead of viewing the

evidence in the light most favorable to Reyazuddin.

An employer may reasonably accommodate an employee without

providing the exact accommodation that the employee requested.

Rather, the employer may provide an alternative reasonable

accommodation. See Hankins v. The Gap, Inc., 84 F.3d 797, 800

(6th Cir. 1996) (“[T]he employer providing the accommodation has

the ultimate discretion to choose between effective

accommodations, and may choose the less expensive accommodation

or the accommodation that is easier for it to provide.”)

19
(quoting EEOC Interpretive Guidance on Title I of the Americans

with Disabilities Act, 29 C.F.R. pt. 1630 app. at 406 (2014)).

Title I provides “job restructuring” and “reassignment to a

vacant position” as examples of reasonable accommodations. 42

U.S.C. § 12111(9). Nonetheless, “a reasonable accommodation

should provide a meaningful equal employment opportunity.

Meaningful equal employment opportunity means an opportunity to

attain the same level of performance as is available to

nondisabled employees having similar skills and abilities.”

H.R. Rep. No. 101-485, pt. 2, at 66 (1990), reprinted in 1990

U.S.C.C.A.N. 303, 349.

Here, although Reyazuddin maintained her salary, pay grade,

and benefits, the County cobbled together an assortment of

“make-work” tasks that did not amount to full-time employment.

For example, an email from a County employee shortly before

Reyazuddin was assigned to work in the Aging and Disability Unit

expressed concern that her job responsibilities would be “make

work” as opposed to “real, meaningful work.” J.A. 1041. In a

later email, JoAnne Calderone, Manager for Planning,

Accountability, and Customer Service in the Department of Health

and Human Services, suggested a meeting to discuss how to

provide Reyazuddin “with a full day of meaningful work.” J.A.

1024. And a separate series of emails demonstrates a tug-of-war

between Calderone and MC311 over Manna referrals, Reyazuddin’s

20
primary responsibility, with the work being transferred from

MC311 to Reyazuddin, back to MC311, and then back to Reyazuddin

despite a County employee’s opinion that residents “would be

served better” by having these referrals handled within MC311.

J.A. 294-95; Plaintiff’s Cross-Motion for Partial Summary

Judgment at Exhibit 65, Reyazuddin, No. 8:11-cv-951.

Moreover, in her supplemental affidavit, Reyazuddin stated

that Manna referrals--her only “regular task[]”--had decreased

and “could be done in about one hour per day.” J.A. 1015. She

also estimated that it “takes a maximum of four to five hours

per day . . . to complete all of [her] work.” Id.

We hold that the record evidence creates a genuine issue of

material fact as to whether the accommodation provided by the

County was reasonable. See Pandazides v. Va. Bd. of Educ., 13

F.3d 823, 833 (4th Cir. 1994) (noting that “reasonable

accommodation” is a question of fact).

3.

As an alternative to finding that Reyazuddin did not

establish a prima facie case, the district court held that the

County prevailed on its undue hardship defense as a matter of

law. We cannot agree.

An employer is not liable under Section 504 if it “can

demonstrate that the accommodation would impose an undue

hardship on the operation of [its] business.” 42 U.S.C.

21
§ 12112(b)(5)(A). Title I defines “undue hardship” as “an

action requiring significant difficulty or expense, when

considered in light of the factors set forth in subparagraph

(B).” Id. § 12111(10)(A). Subparagraph (B), in turn, provides

a non-exhaustive list of relevant factors:

(i) the nature and cost of the accommodation needed
under this chapter;

(ii) the overall financial resources of the facility
or facilities involved in the provision of the
reasonable accommodation; the number of persons
employed at such facility; the effect on expenses and
resources, or the impact otherwise of such
accommodation upon the operation of the facility;

(iii) the overall financial resources of the covered
entity; the overall size of the business of a covered
entity with respect to the number of its employees;
the number, type, and location of its facilities; and

(iv) the type of operation or operations of the
covered entity, including the composition, structure,
and functions of the workforce of such entity; the
geographic separateness, administrative, or fiscal
relationship of the facility or facilities in question
to the covered entity.

Id. § 12111(10)(B).

The district court gave two reasons for its conclusion that

the County was entitled to summary judgment on its undue

hardship defense. First, the court criticized the estimated

cost of $129,000 proffered by Reyazuddin’s expert as

“unsupported” because “it [did] not take into account increased

costs for maintenance and upkeep.” Reyazuddin, 7 F. Supp. 3d at

549. Second, the court explained that, as a result of

22
Reyazuddin’s proposed accommodation, the employee-facing portion

of MC311 “would be altered and would result in increased

maintenance and more downtime, which could spill over into the

customer service realm.” Id. We believe that the district

court’s analysis improperly weighed conflicting evidence, did

not view the evidence in the light most favorable to Reyazuddin,

and overemphasized one factor while overlooking the others.

“At the summary judgment stage the judge’s function is not

[her]self to weigh the evidence and determine the truth of the

matter but to determine whether there is a genuine issue for

trial.” Anderson, 477 U.S. at 249. By concluding that the

lowest estimate of cost was “unsupported,” the district court

credited the County’s expert, Brad Ulrich, and discredited

Reyazuddin’s expert, Temeko Richardson. At this point, however,

it is undisputed that both Ulrich and Richardson qualify as

experts. The evidence therefore sets up a battle of the

experts, which should not be resolved at summary judgment.

In addition, the district court focused almost exclusively

on the cost of the accommodations, without regard to the other

statutory factors. For instance, the district court’s analysis

does not mention the number of employees at MC311 (forty-nine)

or the considerable savings the County realized from creating a

centralized call center ($10 million).

23
 The district court also did not acknowledge the County’s

substantial personnel resources at MC311 during the

configuration and implementation of the Siebel software. At the

project’s peak, four Opus Group consultants were working for the

County on MC311; one consultant who worked 40 hours per week for

the County and spent 80% of his time doing maintenance of the

call center application testified that he was “not too busy”;

the County paid Opus Group $5,000 per week; and the County had a

Senior IT Specialist on staff who was certified as a Siebel

consultant. J.A. 583, 588-89, 594, 782. Thus, the evidence is

in dispute about the additional resources the County would have

needed to configure, implement, and maintain the Siebel software

in standard-interactivity mode or adopt another accessibility

solution.

Aside from cost, the district court credited the County’s

arguments that the proposed accommodations could negatively

affect the overall operation of MC311, result in increased

system maintenance and downtime, and potentially “spill over” to

impact the overall customer service experience. Reyazuddin, 7

F. Supp. 3d at 549. This analysis misapplies the summary

judgment standard. The evidence should be viewed in the light

most favorable to Reyazuddin as the non-moving party, not the

County. Reyazuddin presented evidence of other call centers

operating simultaneously in high-interactivity and standard-

24
interactivity mode as well as her expert’s opinion that the

proposed solutions for accessibility would “allow a blind user

to work at MC311 without altering the experience of sighted

users.” J.A. 909. Moreover, speculation about spillover

effects cannot aid the County in establishing its undue hardship

defense as a matter of law.

The district court also relied on an irrelevant factor in

assessing undue hardship--the County’s budget for reasonable

accommodations. Specifically, the court noted the County’s

“meager budget for reasonable accommodations: the first $500 is

paid for by the employee’s department. Whatever costs remain

can be paid from a $15,000 line-item in the County’s overall

budget.” Reyazuddin, 7 F. Supp. 3d at 549.

Allowing the County to prevail on its undue hardship

defense based on its own budgeting decisions would effectively

cede the legal determination on this issue to the employer that

allegedly failed to accommodate an employee with a disability.

Taken to its logical extreme, the employer could budget $0 for

reasonable accommodations and thereby always avoid liability.

The County’s overall budget ($3.73 billion in fiscal year 2010)

and MC311’s operating budget (about $4 million) are relevant

factors. See 42 U.S.C. § 12111(10)(B)(ii)-(iii). But the

County’s line-item budget for reasonable accommodations is not.

25
 In effect, the district court reduced a multi-factor

analysis to a single factor--cost--that the court believed was

simply too much for the County to bear. But while cost is

important, it cannot be viewed in isolation. Rather, it is the

relative cost, along with other factors, that matters. In that

regard, we think it particularly relevant that other call

centers have been able to accommodate blind employees. See Am.

Council of the Blind v. Paulson, 525 F.3d 1256, 1272 (D.C. Cir.

2008) (affirming the entry of a declaratory judgment on Section

504 liability in part by finding that “because other currency

systems accommodate the needs of the visually impaired, the

Secretary[ of the Treasury]’s burden in demonstrating that

implementing an accommodation [to make U.S. paper currency

accessible to blind individuals] would be unduly burdensome is

particularly heavy”).

Because we find a genuine issue for trial on the third and

fourth elements of Reyazuddin’s prima facie case and the

County’s defense, we reverse the district court’s order granting

summary judgment to the County on Reyazuddin’s failure-to-

accommodate claim.

B.

Reyazuddin’s disparate-treatment claim, related to the

County’s decision to not transfer her to MC311 in 2009 along

with her sighted colleagues, overlaps considerably with her

26
failure-to-accommodate claim. To establish a prima facie case

of disparate treatment, Reyazuddin must show that she (1) has a

disability; (2) is otherwise qualified for the employment; and

(3) was excluded from that employment due to discrimination

solely on the basis of her disability. Doe v. Univ. of Md. Med.

Sys. Corp., 50 F.3d 1261, 1264-65 (4th Cir. 1995). As with the

failure-to-accommodate claim, the first element here is

undisputed.

The “otherwise qualified” element is the same as the third

element of the failure-to-accommodate claim because a “qualified

individual” is someone “who, with or without reasonable

accommodation, can perform the essential functions of the

employment position that such individual holds or desires.” 42

U.S.C. § 12111(8). Thus, our earlier holding--that there is a

genuine issue of material fact as to whether Reyazuddin is able

to perform the essential job functions with a reasonable

accommodation--applies here as well.

The third element contains two subparts: (1) an adverse

employment action and (2) discrimination based solely on

disability. The district court assumed without deciding that

Reyazuddin suffered an adverse employment action, but the County

argues on appeal that Reyazuddin did not because she continues

to be a Department of Health and Human Services employee with

the same salary, grade, and benefits as she had before MC311

27
opened. But, as discussed above, we think that a genuine issue

of material fact remains due to Reyazuddin’s evidence that her

new responsibilites involve make-work tasks that do not amount

to full-time work.

Turning to the discrimination subpart, the district court

properly applied the burden-shifting framework from McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973).

Under the McDonnell Douglas proof scheme, the
plaintiff has the initial burden of proving a prima
facie case of discrimination by a preponderance of the
evidence. If the plaintiff succeeds in proving the
prima facie case, the burden shifts to the defendant
to articulate some legitimate, nondiscriminatory
explanation which, if believed by the trier of fact,
would support a finding that unlawful discrimination
was not the cause of the [adverse] employment action.
If the defendant meets this burden of production, the
presumption created by the prima facie case “drops out
of the picture,” and the plaintiff bears the ultimate
burden of proving that she has been the victim of
intentional discrimination.

Ennis v. Nat’l Ass’n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 58

(4th Cir. 1995) (applying this framework to a Title I

discrimination claim). The district court assumed without

deciding that Reyazuddin met her initial burden. Because the

County does not dispute this on appeal, we proceed on the same

assumption.

Regarding the County’s burden, the district court concluded

that because the County had proved its undue hardship defense as

a matter of law, it had offered an irrefutably nondiscriminatory

28
reason for not transferring Reyazuddin. Reyazuddin, 7 F. Supp.

3d at 554-55. Other than undue hardship, the County has not

offered any other nondiscriminatory reason for not transferring

Reyazuddin. Because we hold that a genuine issue for trial

remains on the County’s undue hardship defense, that same issue

precludes summary judgment for the County under the McDonnell

Douglas framework. We therefore reverse the district court’s

grant of summary judgment to the County on Reyazuddin’s

disparate-treatment claim.

III.

Reyazuddin’s final claim is that the County violated Title

II of the ADA by not hiring her to fill a vacancy at MC311.

Title II prohibits discrimination against “qualified

individual[s] with a disability” in the delivery of “services,

programs, or activities of a public entity.” 42 U.S.C. § 12132.

The district court assumed without deciding that Title II

applies to public employment discrimination claims based on two

of our previous cases that similarly assumed without analysis

that Title II could be used in this context. Reyazuddin, 7 F.

Supp. 3d at 556 (citing Rogers v. Dep’t of Health & Envtl.

Control, 174 F.3d 431, 432-33 (4th Cir. 1999), and Doe, 50 F.3d

at 1264-65).

29
 Our sister circuits have divided on this issue. See Bd. of

Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356, 360 n.1

(2001) (acknowledging but not resolving the split). The Second,

Seventh, Ninth, and Tenth Circuits have held that litigants

asserting public employment discrimination claims against their

state and local government employers cannot rely on Title II.

Brumfield v. City of Chicago, 735 F.3d 619, 626 (7th Cir. 2013);

Mary Jo C. v. N.Y. State & Local Ret. Sys., 707 F.3d 144, 171

(2d Cir. 2013); 7 Elwell v. Okla. ex rel. Bd. of Regents of the

Univ. of Okla., 693 F.3d 1303, 1313 (10th Cir. 2012); Zimmerman

v. Or. Dep’t of Justice, 170 F.3d 1169, 1178 (9th Cir. 1999).

In addition, the Third and Sixth Circuits “have expressed the

view that Title I is the exclusive province of employment

discrimination within the ADA.” Elwell, 693 F.3d at 1314

(citing Menkowitz v. Pottstown Mem’l Med. Ctr., 154 F.3d 113,

118-19 (3d Cir. 1998), and Parker v. Metro. Life Ins. Co., 121

F.3d 1006, 1014 (6th Cir. 1997)). Only the Eleventh Circuit has

reached a contrary conclusion. Bledsoe v. Palm Beach Cnty. Soil

& Water Conservation Dist., 133 F.3d 816, 820 (11th Cir. 1998).

7
The Second Circuit limited its holding to employers with
at least fifteen employees because Title I defines “employer” as
“a person . . . who has 15 or more employees.” Mary Jo C., 707
F.3d at 167 n.9, 171 & n.12 (quoting 42 U.S.C. § 12111(5)(A)).
The other three circuits did not.

30
 We join the majority view. The Second, Seventh, Ninth, and

Tenth Circuits’ thorough analysis of the ADA’s text and

structure, both of which support the more limited reading of

Title II’s scope, is persuasive. See Brumfield, 735 F.3d at

624-29; Mary Jo C., 707 F.3d at 168-72; Elwell, 693 F.3d at

1306-14; Zimmerman, 170 F.3d at 1172-79. As these courts have

explained, the phrase “services, programs, or activities” in

Title II most naturally refers to an entity’s outputs provided

to the public rather than its inputs, such as employees.

Brumfield, 735 F.3d at 627; Mary Jo C., 707 F.3d at 167-68;

Elwell, 693 F.3d at 1306; Zimmerman, 170 F.3d at 1174. And

unlike Section 504 of the Rehabilitation Act, which extends to

employment discrimination claims by broadly defining “program or

activity” to mean “all of the operations” of a state or local

government, Title II does not provide a special definition for

“services, programs, or activities.” Compare 29 U.S.C.A.

§ 794(b)(1)(A) with 42 U.S.C. § 12131.

Title II does, however, define “qualified individual” to

mean “an individual with a disability who, with or without

reasonable modifications . . . meets the essential eligibility

requirements for the receipt of services or the participation in

programs or activities provided by a public entity.” 42 U.S.C.

§ 12131(2). In contrast, a “qualified individual” under Title I

is “an individual who, with or without reasonable accommodation,

31
can perform the essential functions of the employment position.”

Id. § 12111(8). Interpreting Title II not to cover employment

thus gives effect to Congress’s decision to define the term of

art “qualified individual” differently in Title I and Title II.

In terms of structure, courts in the majority have noted

that Congress divided the ADA’s prohibitions on discrimination

against individuals with disabilities into three parts, each

with its own heading: Title I for employment, Title II for

public services, and Title III for public accommodations. Mary

Jo C., 707 F.3d at 169; Elwell, 693 F.3d at 1309; Zimmerman, 170

F.3d at 1176. To read Title II to cover employment would

“diminish[], duplicate[], even render[] superfluous” Title I.

Elwell, 693 F.3d at 1309. That Title I and Title II should

encompass distinct spheres is further supported by Congress’s

decision to delegate authority to promulgate regulations to the

Equal Employment Opportunity Commission under Title I, but to

the Attorney General under Title II. Mary Jo C., 707 F.3d at

169-70 (comparing 42 U.S.C. § 12116 with § 12134(a)); Elwell,

693 F.3d at 1309 (same); Zimmerman, 170 F.3d at 1178 (same).

Lastly, Congress expressly cross-referenced Title I, but

not Title II, when mandating the standards that apply to

employment discrimination claims brought under Section 504 of

the Rehabilitation Act. 29 U.S.C.A. § 794(d). This provides

strong evidence of Congress’s view that Title I, but not Title

32
II, covers employment. Elwell, 693 F.3d at 1312; Zimmerman, 170

F.3d at 1178.

Based on the text and structure of Title II and the ADA, we

agree with the majority of circuits to have considered the

question that Title II unambiguously does not provide a vehicle

for public employment discrimination claims. The Eleventh

Circuit in Bledsoe reached the opposite view after a cursory

recitation of part of Title II’s text, no analysis of the ADA’s

structure, and heavy reliance on legislative history and the

Attorney General’s regulations. 133 F.3d at 820-23. However,

our conclusion that Title II is unambiguous means that we do not

reach legislative history or regulations. Dep’t of Housing &

Urban Dev. v. Rucker, 535 U.S. 125, 132 (2002) (“[R]eference to

legislative history is inappropriate when the text of the

statute is unambiguous.”); Chevron, U.S.A., Inc. v. Natural Res.

Def. Council, Inc., 467 U.S. 837, 842-43 (1984) (“If the intent

of Congress is clear, that is the end of the matter; for the

court, as well as the agency, must give effect to the

unambiguously expressed intent of Congress.”).

Our previous cases do not compel a different result. In

Rogers, we did not reach the appellee’s alternative argument

that the appellant could not use Title II to bring his

discrimination claim against his state employer. Instead, we

affirmed dismissal for failure to state a claim based on the

33
appellee’s primary argument that “the ADA does not require [a

state] to provide the same level of benefits for mental and

physical disabilities in its long-term disability plan for state

employees.” Rogers, 174 F.3d at 436. For purposes of that

case, we implicitly assumed, but did not decide, that Title II

covered employee benefits. And in Doe, the appellant advanced

his claim against his state employer under both Section 504 of

the Rehabilitation Act and Title II of the ADA. 50 F.3d at

1262. Thus, we had no occasion to decide whether the appellant

could have used Title II alone. Here, in contrast, Reyazuddin

alleges that the County’s 2012 conduct violated only Title II

and not the Rehabilitation Act. J.A. 51-52.

Because we hold that public employment discrimination

claims may not be brought under Title II, we affirm the district

court’s summary judgment order on Reyazuddin’s Title II claim. 8

8
Reyazuddin also contends that the County had an obligation
when first purchasing new software to ensure that it was
accessible to employees with disabilities “to the maximum extent
feasible.” Appellant’s Br. at 32 (quoting 28 C.F.R. § 35.151(b)
(2014) and citing 42 U.S.C. § 12183(a)(2)). She borrows this
standard from regulations promulgated by the Attorney General to
implement Title II of the ADA. See 28 C.F.R. § 35.101.
Reyazuddin does not argue that the County’s asserted obligation
arises under the Rehabilitation Act alone, but instead posits
that “Title II rules and regulations apply to Section 504.”
Appellee’s Br. at 30. However, our holding that Reyazuddin
cannot use Title II to bring a claim against the County
forecloses this argument.

34
 IV.

For the reasons given, the district court’s judgment is

affirmed in part and reversed in part, and the case is remanded

for further proceedings.

AFFIRMED IN PART,
REVERSED IN PART,
AND REMANDED

35