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.
2

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.
3

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 
4

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: highinteractivity or standard-interactivity. High-interactivity
5

mode is not accessible1 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 highinteractivity 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.
6

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)
7

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 standardinteractivity 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).
8

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.
9

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 nowDirector 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 lowincome individuals to receive food from a private, non-profit 

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

full-time work.
10

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. 
11

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.
12

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-toaccommodate 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-toaccommodate 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 
13

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).
14

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.
15

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-toaccommodate and disparate-treatment claims.

A.

To establish a prima facie case on her failure-toaccommodate 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 
16

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 
17

(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 highinteractivity 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 
18

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 highinteractivity 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 
19

“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.”)
20

(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 
21

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. 
22

§ 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 
23

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).
24

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-
25

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.
26

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-toaccommodate 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 
27

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 
28

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 
29

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).
30

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.
31

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, 
32

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 
33

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 
34

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.
35

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