Equal Employment Opportunity Commission v. Red Roof Inns, Inc.

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

EQUAL EMPLOYMENT OPPORTUNITY :

COMMISSION, :

: Case No. 3:20-cv-381

Plaintiff, :

: Judge Thomas M. Rose

v. :

:

RED ROOF INNS, INC., :

:

Defendant. :

______________________________________________________________________________

ENTRY AND ORDER DENYING DEFENDANT RED ROOF INNS, INC.’S

AMENDED MOTION FOR SUMMARY JUDGMENT (DOC. NO. 58) AND

DENYING PLAINTIFF EEOC’S MOTION FOR PARTIAL SUMMARY

JUDGMENT (DOC. NO. 57)

______________________________________________________________________________

Plaintiff Equal Employment Opportunity Commission (the “EEOC”) alleges that

Defendant Red Roof Inns, Inc. (“Red Roof”) violated the American with Disabilities Act of 1990,

42 U.S.C. § 12101 et seq., as amended (the “ADA”). (Doc. No. 1; Doc. No. 59.) The EEOC

claims that Red Roof failed to accommodate Wesley Derby (“Derby”), an individual who is

visually impaired, in his attempt to learn more about a promotion, his attempt to compete for that

promotion, and the denial of that promotion. (Doc. No. 1 at PageID 1, 4.)

Pending before the Court are two motions: a motion for summary judgment filed by Red

Roof (Doc. No. 58) (“Red Roof’s MSJ”) and a motion for partial summary judgment filed by the

EEOC (Doc. No. 57) (“EEOC’s MSJ”). As explained below, the Court finds that neither motion

should be granted. Therefore, the Court DENIES Defendant Red Roof Inns, Inc.’s Amended

Motion for Summary Judgment (Doc. No. 58) and DENIES Plaintiff EEOC’s Motion for Partial

Summary Judgment (Doc. No. 57).

I. BACKGROUND

A. Derby’s Disability, Employment with Red Roof, and Use of the JAWS Program

Derby “is a visually impaired individual who formally worked at [Red Roof’s] Contact

Center beginning in 2016.” (Doc. No. 58 at PageID 735.) “Between 2016 and 2018, Mr. Derby

was promoted within the company several times.” (Id.) He worked as a Contact Representative,

then as a RediCard agent, then as a Guest Relations agent. (Doc. No. 59-6 (Derby Dep. Excerpts)

at PageID 887, 889, 891.)

“Throughout his employment at [Red Roof], Mr. Derby performed his job with the aid of

Jobs Access with Speech (‘JAWS’) software.” (Doc. No. 58 at PageID 735.) JAWS is a computer

screen reading program for Microsoft Windows that allows blind and visually-impaired

individuals to read the screen either with a text-to-speech output or a refreshable Braille display.

(Doc. No. 58-2 (Tudela Dep. Excerpts) at PageID 770; Doc. No. 59-8 (Buchness Rebuttal Report)

at PageID 907.) For example, Derby uses JAWS to browse the Internet. (Doc. No. 59-6 at PageID

885.)

A process called “scripting” is sometimes used to “bridge two different [computer]

programs together.” (Doc. No. 57-5 (Tudela Dep. Excerpts) at PageID 657.) Red Roof used Mark

Tudela (“Tudela”) to script certain computer programs that Derby utilized to perform his jobs with

Red Roof so that those programs would be compatible with JAWS. (Doc. No. 59-6 at PageID

893-94; Doc. No. 59-3 (Wright Dep. Excerpts) at PageID 868.) RediStay and Scorpion are two

examples of such programs, while other programs that Derby used to perform his jobs (such as

Microsoft Outlook) did not require scripting for use with JAWS because they worked with JAWS

“out of the box.” (Doc. No. 59-6 at PageID 886, 893, 894.) Derby has been using JAWS for

nearly thirty years, both personally and professionally. (Doc. No. 59-6 at PageID 884-85.) Tudela

considers Derby a “rock star” when it comes to his level of sophistication with JAWS, putting him

in the 95th percentile of JAWS users in terms of his ability to retain information. (Doc. No. 59-9

(Tudela Dep. Excerpts) at PageID 931.)

B. Open Position with Red Roof’s Online Connectivity Team

Cheryl Eichelberger (“Eichelberger”) was the Red Roof employee responsible for

interviewing and hiring employees for Red Roof’s Online Connectivity Team. (Doc. No. 59-2

(Eichelberger Dep. Excerpts) at PageID 843.) The Online Connectivity Team consisted of

Property Connectivity Coordinators (“PCCs”). On April 23, 2018, while serving as the Online

Connectivity Supervisor – Distribution Services, she sent out an email announcing an open PCC

position and inviting recipients of the email who were interested to apply. (Doc. No. 59-1 (Email)

at PageID 836.) Derby does not believe that he responded to that email. (Doc. No. 58-1 (Derby

Dep. Excerpts) at PageID 758.)

To perform their duties, PCCs used Red Roof’s RediStay program and “a lot of the online

travel agency extranets” for which Red Roof employees “had to have [their] own log-in and

passwords.” (Doc. No. 58-4 (Eichelberger Dep. Excerpts) at PageID 784.) Priceline and Expedia

are examples of the online travel agencies whose extranets the PCCs used. (Id. at PageID 784-

85.) Eichelberger, who supervised the PCCs at Red Roof, testified during her deposition about an

example of “the meat and potatoes” of what a PCC would do each day: “[I]f a national sales rep

wanted one of their [Red Roof] properties to run a promotion, for instance, 20 percent off a two-

night stay for the month of February, we as connectivity coordinators had to load those rates, that

percentage off in our system, push it through to the online travel agencies, and make sure that it

was done correctly on the online travel agencies to show up on the website when the consumers

went out to the different online travel agency sites.” (Id. at PageID 785.)

The PCC job description set forth the purpose of the job, its duties and responsibilities, its

qualifications, and additional information:

Job purpose

The Property Connectivity Coordinator will be trained in all aspects of Online

Connectivity and will have continued responsibilities in each area. The

responsibilities of the position include: loading and maintaining all promotional

rates on the Online Travel Agency (OTA) sites, adding and removing room types

or rates on the OTA sites, and coordinating the activation of hotels on these sites.

The OTA sites include: Expedia, Booking.com, Priceline, Hotwire, Getaroom,

Agoda and GTA (and any other sites which are introduced in the future). This

position is also responsible for processing commission inquiries from travel

agencies.

Duties and responsibilities

• Activate hotels on the OTA sites, including communication with the hotel

and our OTA partners, completing required spreadsheets/paperwork and

tracking process

• Load promotions received from Revenue Managers in a timely manner;

follow-up to ensure proper loading and display

• Update room types and/or rates for hotels on the OTA sites

• Work with OTA partners to investigate and correct any issues related to

rates or availability on the OTA sites

• Maintain detailed logs of promotions, activations and all department

procedures

• Ensure integrity of all data entered, with close attention to detail

• Support revenue management and operations departments in efforts to

maximize bookings across all channels

• Research commission inquiries and respond to travel agencies in a timely

manner

• Other duties as assigned

Qualifications

• Associates degree or equivalent work experience required

• Basic knowledge of Microsoft Office (Word, Excel), proficient knowledge

of Outlook (organizing emails across multiple boxes and archiving) and

experience using the Internet to research and collect information required

• Must have acute attention to detail, ability to learn quickly, excellent

organization and time-management skills and ability to execute on

overlapping multi-step processes

• Must be able to work under pressure, keep current on a multitude of

programs/policies and multi-task with the flexibility to switch focuses as

necessary to meet urgent deadlines

• Must be self-motivated and able to work independently

• Excellent verbal and written communication skills required

• Experience in hospitality or travel industry preferred

Additional Information

• Training will occur in the Springfield Contact Center

• Position will become home-based after training is complete; however,

monthly, weekly, and/or permanent in-office work may be required based

on performance and/or department need

• Position is Monday through Friday, during regular business hours (shift

ending no earlier than 5pm)

(Doc. No. 57-9 (emphasis in original).) Derby has an associate’s degree, knowledge of Microsoft

Office and Outlook, and experience using the Internet to research and collect information. (Doc.

No. 59-6 at PageID 881, 897.) Derby also testified that he believes he possesses each of the

qualifications listed in the PCC job description, as well as experience in the hospitality or travel

industry. (Id.) To move from his Guest Relations position to the PCC position would have been

a promotion for Derby. (Doc. No. 59-3 at PageID 861.)

C. Email Exchange between Eichelberger and Derby

After posting the position, Eichelberger sent an email regarding the posting and an

information seminar. (Doc. No. 58-4 at PageID 795.) The communication between Derby and

Eichelberger regarding the position, information seminar, and Derby’s interest in the position

consists of only four emails. The first is an email sent by Eichelberger (to an unknown number of

people) at 1:32 p.m. on May 2, 2018, with the subject line “Online Connectivity Information

Seminar”:

EXCITING NEWS!!!!

With the recent posting for the open position for the Online Connectivity Team, we

have decided to hold an Online Connectivity Information Seminar!

We have also decided to extend the deadline for you to get your Position Interest

Form (attached) and resume to your supervisor to the end-of-day on Friday May

11th.

What: Online Connectivity Information Seminar

When: Tuesday May 8th, 10:00 – 11:00 am

Where: Contact Center – Training Room

How: ‘Reply all’ to this email stating that you would like to attend and staffing

will get it added to your schedule.

Why: To help employees interested in joining the Online Connectivity Team get

a better understanding of the position.

Please let me know if you have any questions. I look forward to seeing you there!

Thanks,

Cheryl

(Doc. No. 58-4 at PageID 793-96 (emphasis in original).) The second email is Derby’s response

to Eichelberger at 3:22 p.m. that same day:

Good Afternoon,

I’m interested in attending…However, is there an option to attend via Skype or

some other remote option? Being blind, I don’t drive, and the Uber ride from

Columbus to Springfield and back would be a couple days’ pay. So, if there’s a

distance option, I’m interested in checking this out and possibly applying.

Thanks.

(Id.) The third email is Eichelberger’s response to Derby the next day (May 3, 2018) at 11:01

a.m.:

Good morning Wesley.

Thanks so much for your interest. Unfortunately, the systems that we work with

do not integrate with the JAWS system, so we are not able to accommodate as far

as hiring. However, if you are looking to advance your knowledge of what happens

behind the scenes, we are happy to accommodate. I just don’t want you to waste

your time if you were looking to apply.

With this being our first seminar, we would like to get the bugs worked out before

we offer it via Skype. We will be holding more seminars in the near future for

informational purposes for other departments, so it may be more beneficial for you

to attend one of those when we can Skype you in.

Please let me know if you have any questions.

Thanks,

Cheryl

(Id.) Finally, the fourth email is Derby’s response back to Eichelberger two minutes later (on May

3, 2018 at 11:03 a.m.):

Hi, Cheryl.

Thanks so much for getting back to me. I’d definitely be interested in learning

more in [the] future. I’m always looking to diversify my knowledge, and move up

as far as I can in the company.

Thanks again.

Wes

(Id.)

Prior to this email exchange, Eichelberger had never communicated with Derby. (Doc.

No. 59-2 at PageID 848.) She learned that Derby was blind through this exchange, and she had

never supervised a visually-impaired employee. (Id. at PageID 853.) Eichelberger testified that

she does not recognize this email exchange as a request for an accommodation, although she does

not know why. (Doc. No. 58-4 at PageID 790.) She also testified that she thought it was great

that Derby was interested in possibly applying for the PCC position and that she told Derby not to

apply because she “didn’t want him to spend his money if [Red Roof] couldn’t have him in [her]

department because the systems didn’t integrate.” (Id.)

Eichelberger admitted that she never spoke to anyone about Derby before she sent her reply

to him. (Doc. No. 59-2 at PageID 848.) She testified that she “didn’t feel there was a reason to”

speak with anyone before responding. (Id.) Eichelberger testified that her understanding that the

Online Connectivity Team’s system did not integrate with the JAWS system—which she then

relayed to Derby in her email response—came from a prior discussion that she had with Shanna

Wright (“Wright”), a former director of Distribution Services. (Doc. No. 58-4 at PageID 790.)

Eichelberger testified that she “had been told [by Wright] that the JAWS system didn’t work with

the extranets that [they] had to deal with every day, so [she] didn’t see a reason to tell anybody

anything.” (Doc. No. 59-2 at PageID 848-49.) Eichelberger could not recall when she had this

alleged discussion with Wright (including whether it occurred in 2018), and Eichelberger did not

follow up to see if what she had allegedly been told by Wright still held true. (Doc. No. 58-4; Doc.

No. 59-2 at PageID 851.) Eichelberger acknowledged that the alleged conversation could have

taken place four years prior to her email to Derby. (Doc. No. 59-2 at PageID 849.)

On the other hand, Wright testified that she believes she did have a conversation with

Eichelberger around May 2, 2018 regarding whether someone who is visually-impaired would be

able to work in the Online Connectivity Department due to the systems used and JAWS’

capabilities. (Doc. No. 59-3 at PageID 869-70.) Wright testified that she believes that the nature

of the discussion was whether a blind person could work in the department, and she further testified

that they discussed the systems used in the department, the frequency with which those systems

changed, “and just generally about how we believed it would be difficult to keep up with all of the

scripting changes with all of these systems, and so it likely wouldn’t be reasonable for someone

who needed the JAWS system to fill this role.” (Id.) Wright acknowledged that, regardless of

when such a conversation took place (assuming that it did), she had not talked to anyone other than

Eichelberger about whether JAWS could be used with the extranet sites that the PCCs used, and

Wright does not believe that she had ever talked to anyone about whether a JAWS user could hold

a PCC position. (Id. at PageID 871.) Thus, she did not speak with anyone in Red Roof’s human

resources department or information technology department.

Additionally, Eichelberger acknowledged that she does not know anything about the JAWS

system other than “the visually-impaired use it” and it “helps the visually-impaired see to do [sic]

reservations.” (Doc. No. 59-2 at PageID 842.) She possesses no knowledge regarding JAWS’

capabilities and limitations. (Id.) Eichelberger further testified that she never inquired with

anyone regarding whether another accommodation other than JAWS was possible; she doesn’t

know “of anything else other than JAWS that would work for the blind.” (Id. at PageID 851.) In

explaining the statement in her email to Derby that she “just [doesn’t] want you to waste your time

if you were looking to apply,” she testified that meant that, “[i]f he wanted to apply, [she] knew

that the JAWS didn’t integrate, the JAWS system didn’t integrate, so there was no way he was

going to be able to get the position, because he wouldn’t be able to see it. He wouldn’t be able to

work the systems.” (Doc. No. 59-2 at PageID 851.)

Eichelberger also testified that, at the time she received Derby’s email, she did not reach

out to IT to see if it was possible to have Derby attend the information seminar by Skype. (Doc.

No. 58-4 at PageID 790.) She also did not have any additional informational seminars scheduled,

and it turned out that she never scheduled any additional information seminars; she left Red Roof

in August of 2018. (Doc. No. 59-2 at PageID 852.)

Red Roof offered company-wide training on topics that included the ADA and reasonable

accommodations. (Doc. No. 59-10 (Gillis Dep. Excerpts) at PageID 942.) Supervisors and

managers from the Contact Center were required to attend. (Id.) Eichelberger was the supervisor

of the Online Connectivity Department, and her direct report was in Red Roof’s corporate office.

(Id.) Wright was aware that Red Roof had a “process” related to reasonable accommodations for

individuals with disabilities, and her “understanding was that if such a request was made, it needed

to be brought to the attention of HR.” (Doc. No. 59-3 at PageID 862.) Wright also knew that Red

Roof employed visually-impaired individuals who used JAWS. (Id. at PageID 867.)

D. Expert Assessments of JAWS’ Use in the PCC position

Each party has designated someone with JAWS adaption and customization experience

and knowledge to testify on its behalf: Daniel Buchness (“Buchness”) on behalf of the EEOC and

Tudela on behalf of Red Roof. (See Doc. No. 58-2 (Tudela report); Doc. No. 59-8 (Buchness

rebuttal report).) Tudela explained that there are three overarching issues with attempting to

accommodate a blind individual to perform as a PCC by using JAWS: the online travel agency

extranets are outside of Red Roof’s control; changes are made to the online travel agency extranets

frequently and without notice1; and, until such changes can be addressed by a specialized JAWS

scripter, such changes may result in a period of downtime during which the blind employee may

be unable to perform the functions of a PCC. (See Doc. No. 58-2; Doc. No. 58 at PageID 739-40.)

Tudela also stated that his “hourly rate for contractor scripting with Red Roof Inn is $125 per

hour,” but, in his opinion, “it is impossible to predict how much time would be required to rescript

updates to any third party website because each update is unique and varies in terms of

complexity.” (Doc. No. 58-2 at PageID 771.)

In rebuttal, Buchness said that Tudela “did not perform a thorough assessment of the

applications before preparing his report to determine whether scripting for these specific

applications would be necessary, or to what degree it might be necessary given Mr. Derby’s skill

level with” access technologies. (Doc. No. 59-8 at PageID 991.) Red Roof pointed out that Tudela

admitted in his testimony that he did not conduct a full assessment before drafting his report. (Doc.

No. 59 at PageID 820; see also Doc. No. 59-9 (Tudela Dep. Excerpts) at PageID 935.) Tudela

testified that he “didn’t truly flesh out … what would be needed with each” of the online travel

agency extranets, including that he did not “write test scripts and really try to see how I could make

things work.” (Doc. No. 59-9 at PageID 936.) Tudela also testified that he was not asked to

provide an expert opinion on whether the PCC position could be made accessible to a JAWS user

1 Wright testified that there are “regular changes” to some of Red Roof’s own systems and “third party systems,” and

that “Expedia [and] Booking.com, those extranets in particular change very frequently, weekly, sometimes, maybe

even more often on occasion.” (Doc. No. 58-3 at PageID 777.)

and that he was not prepared to offer an expert opinion on that question. (Id. at PageID 937-38.)

Furthermore, it was not Tudela’s conclusion that the PCC position cannot be made accessible to a

JAWS user. (Id.)

Additionally, Buchness explained in his report that the applications required for use in the

PCC position are “partner extranet Web applications requiring secure login, meaning there is a

private partnership between Red Roof Inns and each of” those third parties. (Doc. No. 59-8 at

PageID 912.) Thus, in his opinion, the parties could work together and Red Roof could likely be

provided information related to updates prior to implementation of those updates. (Id.) He also

opined that “[n]ot only may the application not need to be ‘rescripted’ on every change, but the

application may improve completely, and could even require the scripted solutions to be rolled

back/off the PC.” (Id. at PageID 913 (emphasis in original).) He also said that proactive actions

can be taken to react to, or avoid, downtime. (Id. at PageID 917.) Although he admitted that he

had not performed enough of an assessment to say what other access solutions might be needed

for Derby (or any visually-impaired person) to use JAWS to perform as a PCC, Buchness testified

that he had not seen any reason to believe that the PCC position could not be made accessible.

(Doc. No. 59-14 (Buchness Dep. Excerpts) at PageID 970.)

E. Administrative Procedures, Complaint, and Current Motions

On June 21, 2018, Derby filed a charge of discrimination with the EEOC. (Doc. No. 8 at

PageID 33.) The EEOC subsequently issued to Red Roof a Letter of Determination after it found

reasonable cause to believe that Red Roof had violated the ADA, and the EEOC invited Red Roof

to engage in informal methods of conciliation. (Id.) Red Roof rejected the EEOC’s conciliation

offer. (Id. at PageID 34.) The EEOC then filed this lawsuit. (Doc. No. 1.)

In its Complaint, the EEOC alleges that Red Roof violated sections 102(a), 102(b)(1),

102(b)(2), and 102(b)(5)(A) and (B) of Title I of the ADA, 42 U.S.C. § 12112. (Doc. No. 1 at

PageID 3.) The EEOC asserts that Red Roof was aware of Derby’s disability and failed to (1)

accommodate him to allow for his participation in the information seminar; (2) allow for his

participation in the application process for the promotion; and (3) engage in the interactive process.

(Id. at PageID 5.) Additionally, the EEOC contends that Red Roof “denied Derby the promotion

because of his disability and need for accommodation.” (Id. at PageID 6.) The EEOC clarified in

its briefing that it asserts two claims: a failure to accommodate claim and a failure to promote

claim. (Doc. No. 59 at PageID 821-22.)

Red Roof filed a motion for summary judgment (Doc. No. 54) and, after being granted

leave to file an amended motion, filed Red Roof’s MSJ, which superseded its original motion.

(Doc. No. 58.) The EEOC filed a response in opposition to Red Roof’s MSJ, and Red Roof filed

a reply in support of its motion. (Doc. No. 59; Doc. No. 65.) The EEOC filed its motion for partial

summary judgment, to which Red Roof filed a response in opposition and the EEOC then filed a

reply in support. (Doc. No. 57; Doc. No. 66; Doc. No. 69.) Both Red Roof’s MSJ and the EEOC’s

MSJ are fully briefed and ripe for review.

II. LEGAL STANDARDS FOR SUMMARY JUDGMENT

Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment “shall be

rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine issue as to any material fact and

that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c).

Alternatively, summary judgment is denied “[i]f 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.’” Hancock v. Dodson, 958 F.2d 1367, 1374 (6th Cir. 1992) (quoting Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 250 (1986)).

The party seeking summary judgment has the initial burden of informing the court of the

basis for its motion and identifying those portions of the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, that it believes demonstrate

the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

The burden then shifts to the nonmoving party, who “‘must set forth specific facts showing that

there is a genuine issue for trial.’” Anderson, 477 U.S. at 250 (quoting Fed. R. Civ. P. 56(e)). In

opposing summary judgment, the nonmoving party cannot rest on its pleadings or merely reassert

its previous allegations. Id. at 248-49. It also is not sufficient to “simply show that there is some

metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio

Corp., 475 U.S. 574, 586 (1986). Rule 56 “requires the nonmoving party to go beyond the

[unverified] pleadings” and present some type of evidentiary material in support of its position.

Celotex Corp., 477 U.S. at 324.

A party’s failure “to properly address another party’s assertion of fact as required by Rule

56(c)” can result in the court “consider[ing] the fact undisputed for purposes of the motion.” Fed.

R. Civ. P. 56(e). Additionally, “[a] district court is not ... obligated to wade through and search

the entire record for some specific facts that might support the nonmoving party’s claim.”

InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989). “The court need consider only

the cited materials, but it may consider other materials in the record.” Fed. R. Civ. P. 56(c)(3).

In ruling on a motion for summary judgment, it is not the judge’s function to make

credibility determinations, “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, 255. In

determining whether a genuine issue of material fact exists, the court must assume as true the

evidence of the nonmoving party and draw all reasonable inferences in that party’s favor. Id. at

255; Matsushita, 475 U.S. at 587; Tolan v. Cotton, 572 U.S. 650, 660 (2014). However, the “mere

existence of a scintilla of evidence in support of the” nonmoving party is not sufficient to avoid

summary judgment. Anderson, 477 U.S. at 252. “There must be evidence on which the jury could

reasonably find for the plaintiff.” Id. The inquiry, then, is “whether reasonable jurors could find

by a preponderance of the evidence that the” nonmoving party is entitled to a verdict. Id.

III. ANALYSIS

As shown in the analysis below, the Court will first address Red Roof’s MSJ and then the

EEOC’s MSJ.

A. Framework for Considering the Alleged ADA Violations

(1) The ADA’s prohibition against discrimination

The Supreme Court has explained that the ADA “prohibits an employer from

discriminating against an ‘individual with a disability’ who, with ‘reasonable accommodation,’

can perform the essential functions of the job.” US Airways, Inc. v. Barnett, 535 U.S. 391, 393

(2002) (quoting 42 U.S.C. § 12112(a) and (b)). Specifically, the ADA provides that:

No covered entity shall discriminate against a qualified individual on the basis of

disability in regard to job application procedures, the hiring, advancement, or

discharge of employees, employee compensation, job training, and other terms,

conditions, and privileges of employment.

42 U.S.C. § 12112(a). As used in that provision, the term “covered entity” includes an employer

and the phrase “discriminate against a qualified individual on the basis of disability” includes, but

is not limited to:

[L]imiting, segregating, or classifying a job applicant or employee in a way that

adversely affects the opportunities or status of such applicant or employee because

of the disability of such applicant or employee; [or] …

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 such covered entity can demonstrate that the accommodation

would impose an undue hardship on the operation of the business of such covered

entity; or

denying employment opportunities to a job applicant or employee who is an

otherwise qualified individual with a disability, if such denial is based on the need

of such covered entity to make reasonable accommodation to the physical or mental

impairments of the employee or applicant.

42 U.S.C. § 12112(b)(1), (5). Additionally, the term “qualified individual” means “an individual

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).2

(2) Reasonable accommodation for the employee with a disability

The ADA’s regulations provide three alternatives for what can amount to a “reasonable

accommodation”:

(i) Modifications or adjustments to a job application process that enable a qualified

applicant with a disability to be considered for the position such qualified applicant

desires; or

(ii) Modifications or adjustments to the work environment, or to the manner or

circumstances under which the position held or desired is customarily performed,

that enable an individual with a disability who is qualified to perform the essential

functions of that position; or

(iii) Modifications or adjustments that enable a covered entity’s employee with a

disability to enjoy equal benefits and privileges of employment as are enjoyed by

its other similarly situated employees without disabilities.

29 C.R.F. § 1630.2(o)(1). ADA regulations also discuss how it may be necessary for an employer

to initiate an “informal, interactive process” to determine the appropriate reasonable

accommodation:

To determine the appropriate reasonable accommodation it may be necessary for

the covered entity to initiate an informal, interactive process with the individual

with a disability in need of the accommodation. This process should identify the

precise limitations resulting from the disability and potential reasonable

2 Furthermore, “consideration shall 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).

accommodations that could overcome those limitations.

29 C.R.F. § 1630.2(o)(3). The Sixth Circuit has explained that, “[e]ven though the interactive

process is not described in the statute’s text, the interactive process is mandatory, and both parties

have a duty to participate in good faith.” Kleiber v. Honda of Am. Mfg., 485 F.3d 862, 871 (6th

Cir. 2007). “When a party obstructs the process or otherwise fails to participate in good faith,

courts should attempt to isolate the cause of the breakdown and then assign responsibility.” Id.

(internal quotation marks omitted).

(3) Undue hardship for the employer

Under the ADA, “discrimination includes an employer’s not making reasonable

accommodations to the known physical or mental limitations of an otherwise qualified …

employee unless the employer can demonstrate that the accommodation would impose an undue

hardship on the operation of its business.” US Airways, 535 U.S. at 396 (internal quotation marks

omitted; emphasis in original); see also 29 C.F.R. § 1630.2(o)(3). The ADA specifies that “undue

hardship” means “an action requiring significant difficulty or expense, when considered in light of

the[se] factors”: “(i) the nature and cost of the accommodation needed”; “(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.” 42 U.S.C. § 12111(10).

(4) Framework for claims premised on direct evidence

The Sixth Circuit Court of Appeals has explained that “claims premised upon an

employer’s failure to offer a reasonable accommodation necessarily involve direct evidence (the

failure to accommodate) of discrimination.” Kleiber, 485 F.3d at 868 (emphasis added). However,

this “is not necessarily true of claims premised upon an adverse employment decision such as a

failure to hire, failure to promote, or discharge.” Id. at 868 n.2. Regarding what constitutes direct

evidence of discrimination, the Sixth Circuit has said that “[d]irect evidence of disability

discrimination does not require the fact finder to draw any inference to conclude that the disability

was at least a motivating factor.” Fisher v. Nissan N. Am., Inc., 951 F.3d 409, 416 (6th Cir. 2020);

see also Wiggins v. City of Montgomery, Ala., No. 2:17-cv-425-KFP, 2022 U.S. Dist. LEXIS

37492, 2022 WL 625075, at *4, 15-16 (M.D. Ala. Mar. 3, 2022) (explaining that the

“quintessential example of direct evidence would be a memorandum from company management

directing the termination of an employee because he is disabled”; following a bench trial, finding

that the plaintiff presented direct evidence that she was not promoted because of her disability

where the person in charge of hiring admitted that she would have promoted plaintiff but for

plaintiff’s disability and hired others because they were better able to do the job physically than

plaintiff).

Here, when Derby informed Eichelberger that he was blind and expressed interest in the

PCC job, Eichelberger responded: “Unfortunately, the systems that we work with do not integrate

with the JAWS system, so we are not able to accommodate as far as hiring. … I just don’t want

you to waste your time if you were looking to apply.” (Doc. No. 58-4 at PageID 793-96.) The

EEOC argues that both of its claims—failure to accommodate and failure to promote—are direct

evidence claims. (Doc. No. 59 at PageID 821-22.) Red Roof does not argue otherwise, but instead

asserts that “even in cases involving direct evidence [of] discrimination, a plaintiff still has the

burden of proposing an accommodation and showing that the accommodation is objectively

reasonable” (and that the EEOC has failed to satisfy this burden). (Doc. No. 65 at PageID 1028.)

The Court proceeds with the understanding that both of the EEOC’s claims are direct

evidence claims. The following framework is used for analyzing an ADA claim premised upon

direct evidence:

(1) The plaintiff bears the burden of establishing that he or she is disabled. (2) The

plaintiff bears the burden of establishing that he or she is ‘otherwise qualified’ for

the position despite his or her disability: (a) without accommodation from the

employer; (b) with an alleged ‘essential’ job requirement eliminated; or (c) with a

proposed reasonable accommodation. (3) The employer will bear the burden of

proving that a challenged job criterion is essential, and therefore a business

necessity, or that a proposed accommodation will impose an undue hardship upon

the employer.

Kleiber, 485 F.3d at 869 (internal quotation marks omitted); see also Fisher, 951 F.3d at 417 (6th

Cir. 2020). There is no dispute that Derby is disabled.3 Additionally, Red Roof does not dispute

that the PCC position would have been a promotion for Derby, Derby was not promoted to the

open PCC position, and Red Roof filled the PCC position with a “sighted” employee. (See Doc.

No. 59 at PageID 818-19; Doc. No. 65 at PageID 1034-35.)

B. Red Roof’s MSJ

In Red Roof’s MSJ, Red Roof makes four arguments for why it is entitled to summary

judgment: (1) Derby “failed to request an accommodation from” Red Roof; (2) the EEOC “has not

articulated that a reasonable accommodation exists and is ‘objectively reasonable’”; (3) the EEOC

“has failed to establish that a ‘reasonable’ accommodation is possible”; and (4) the EEOC “has not

shown Mr. Derby was ‘otherwise qualified’ for the position, as required to establish a prima facie

3 “Legal blindness can qualify as a disability under the ADA.” Lankford v. RadioShack Corp., No. 3:04CV-294-H,

2006 U.S. Dist. LEXIS 30396, 2006 WL 1382265, at *2 (W.D. Ky. May 15, 2006); see also 29 C.F.R. §

1630.2(g)(1)(i) (ADA regulations defining disability to include “[a] physical or mental impairment that substantially

limits one or more of the major life activities of” an individual); 29 C.F.R. § 1630.2(i)(1)(i) (ADA regulations stating

that “seeing” is a major life activity).

case and to survive summary judgment.” (Doc. No. 58 at PageID 732; see also Doc. No. 65 at

PageID 1026.) Red Roof also argues that summary judgment is warranted on an alleged claim by

the EEOC for failure to engage in the interactive process, the EEOC’s failure to promote claim,

and the EEOC’s request for punitive damages. (Doc. No. 58 at PageID 746-48.) The Court

addresses these arguments below.

(1) Derby’s failure to request an accommodation

Red Roof’s first argument is that Derby was “required to request an accommodation” given

that doing so is “part of a prima facie case of failure to accommodate under the ADA.” (Doc. No.

58 at PageID 734.) The Court finds that Red Roof is not entitled to summary judgment based on

this argument. Fed. R. Civ. P. 56(c).

As an initial matter, the “prima facie case” to which Red Roof refers is for indirect evidence

claims, not direct evidence claims. Fisher, 951 F.3d at 416-17 (explaining that “ADA

discrimination claims are analyzed under two different rubrics, depending on whether the plaintiff

relies on ‘direct’ or ‘indirect’ evidence of discrimination”). Red Roof argues that, “[t]o survive

summary judgment, and to establish a prima facie case of failure to accommodate, an ADA

plaintiff must show that: (1) he is disabled within the meaning of the ADA; (2) he is otherwise

qualified for the position, with or without reasonable accommodation; (3) his employer knew or

had reason to know about his disability; (4) he requested an accommodation; and (5) the employer

failed to provide the necessary accommodation.” (Doc. No. 58 at PageID 740-41 (emphasis

added).) However, those five requirements to establish a “prima facie case” of discrimination are

part of the McDonnell-Douglass burden-shifting framework that is used “to determine whether a

viable discrimination claim exists” when there is “no direct evidence of discrimination,” i.e., for

indirect evidence claims. Deister v. Auto Club Ins. Ass’n, 647 F. App’x 652, 655 (6th Cir. 2016).

The Supreme Court has explained that, “if a plaintiff is able to produce direct evidence of

discrimination, he may prevail without proving all the elements of a prima facie case.”

Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002). As shown above, the EEOC’s claims in

this case are direct evidence claims. Therefore, the prima facie case requirements that Red Roof

relies on for its argument are inapplicable here. Kleiber, 485 F.3d at 869 (“[w]hen an ADA

plaintiff premises his claim upon direct evidence, we jettison the familiar McDonnell Douglas

burden-shifting framework applicable in indirect-evidence cases (also called ‘circumstantial-

evidence cases’)”).

Despite this, the Court recognizes that, “[g]enerally, an ADA plaintiff bears the initial

burden of proposing an accommodation.” Kleiber, 485 F.3d at 870 (emphasis added). This makes

sense. “The employer is not required to speculate as to the extent of the employee’s disability or

the employee’s need or desire for an accommodation.” Gantt v. Wilson Sporting Goods Co., 143

F.3d 1042, 1046-47 (6th Cir. 1998). As the Sixth Circuit pointed out in Gantt, “[t]he applicable

EEOC regulations provide that it is ‘unlawful for a covered entity not to make reasonable

accommodations to the known physical or mental limitations of an otherwise qualified applicant

or employee with a disability, unless such covered entity can demonstrate that the accommodation

would impose an undue hardship on the operation of its business.’” Id. at 1046 (quoting 29 C.F.R.

§ 1630.9(a); emphasis added in Gantt). Plus, “[t]he Commission’s interpretive guidelines indicate

that generally ‘it is the responsibility of the individual with a disability to inform the employer that

an accommodation is needed.’” Id. (quoting 29 C.F.R. pt. 1630 App. § 1630.9).

However, in certain instances, a request for accommodation can be inferred from the

context of the situation. Smith v. Henderson, 376 F.3d 529, 535 (6th Cir. 2004) (finding that “a

factfinder could infer that [plaintiff’s] letter constituted a request for an accommodation” based on

the context in which the letter was written). Furthermore, “[t]he employee is not required to use

magic words such as ‘accommodation’ and ‘disability.’” Fisher, 951 F.3d at 419; see also Smith,

376 F.3d at 535. “What matters under the ADA are not formalisms about the manner of the

request, but whether the employee or a representative for the employee provides the employer with

enough information that, under the circumstances, the employer can be fairly said to know of both

the disability and the desire for an accommodation.” Taylor v. Phoenixville Sch. Dist., 184 F.3d

296, 313 (3d Cir. 1999).

One case in which a court found that a jury could infer a request for accommodation from

the context of the employee and employer’s interaction is Applewhite v. FCA US LLC, No. CV 17-

11132, 2019 U.S. Dist. LEXIS 217242, 2019 WL 6894229 (E.D. Mich. Dec. 18, 2019). The

district court in Applewhite explained:

The Court’s analysis as to Plaintiff’s reasonable accommodation claim begins with

whether Plaintiff in fact requested an accommodation. Defendant argues that

Plaintiff did not make an accommodation request. However, Defendant concedes

in its brief that Plaintiff claimed to be able to work some tasks with his right arm

only. In fact, Plaintiff made this claim during the same meeting in which Defendant

told Plaintiff no work was available within his medical restriction. … Here, a

reasonable jury could infer that Plaintiff’s claim that he was able to do some of the

tasks with his right arm only—made during the meeting in which Defendant stated

no work was available within his restriction—constituted a request for reasonable

accommodation that triggered Defendant’s obligation to participate in an

‘interactive process’ with Plaintiff as to potential reasonable accommodations (i.e.,

determining which of the tasks could be done with only one arm). Defendant’s

conclusion at that time that all tasks require two arms did not make Plaintiff’s

accommodation request something other than what it was.

Applewhite, 2019 WL 6894229, at *5 (internal citations omitted). The district court concluded

that summary judgment on the plaintiff’s reasonable accommodation claim was inappropriate

because a genuine issue of material fact remained. Id.

Here, Red Roof is not entitled to summary judgment due to Derby’s failure to specifically

request an accommodation. Although Eichelberger testified that she does not recognize her email

exchange with Derby as a request for an accommodation (Doc. No. 58-4 at PageID 790), the email

exchange itself could support a finding that a request for accommodation is inferred from the

context. Applewhite, 2019 WL 6894229, at *5; see also Smith, 376 F.3d at 535-36 (reversing grant

of summary judgment to employer; finding a genuine issue of material fact as to whether plaintiff’s

communication to her employer was a request for a reasonable accommodation). In response to

Eichelberger’s email announcing the recent posting for the open PCC position and the information

seminar, Derby indicated that he was interested in attending the information seminar, is blind, and

was interested in possibly applying for the position. (Doc. No. 58-4 at PageID 793-96.) In her

response to Derby, Eichelberger said: “Unfortunately, the systems that we work with do not

integrate with the JAWS system, so we are not able to accommodate as far as hiring.” (Id.) Based

on the email exchange, a reasonable jury could find that Red Roof knew of Derby’s disability and

desire for an accommodation. Taylor, 184 F.3d at 313. In fact, one could find that Eichelberger

understood Derby’s initial email to her as a request for an accommodation due to his blindness and

that she then preemptively proposed an accommodation for Derby (JAWS) and shot it down—all

in one sentence. The Court believes “[a] reasonable factfinder could conclude that these

interactions [between Derby and Eichelberger] constituted a request for accommodation.” Fisher,

951 F.3d at 420; see also Smith, 376 F.3d at 535-36.

Thus, Red Roof is not entitled to summary judgment based on its argument that the EEOC

“has failed to establish that Mr. Derby requested an accommodation.” (Doc. No. 58 at PageID

741.) Red Roof’s cited caselaw does not convince the Court otherwise.4 For example, in Aldini

4 Counsel is instructed to avoid misconstruing caselaw. For example, Red Roof’s MSJ states: “The ADA’s reasonable

accommodation requirement does not apply unless ‘triggered by a request’ from the employee. Alsept v. Honda of

Am. Mfg., 2013 U.S. Dist. LEXIS 77530 (S.D. Ohio June 3, 2013).” (Doc. No. 58 at PageID 742 (emphasis added).)

However, the full quote from Alsept clearly demonstrates that the requirement is not as absolute as Red Roof’s

counsel’s statement to the Court portrayed: “Because an employee’s disability and concomitant need for

accommodation are often not known to the employer until the employee requests an accommodation, the ADA’s

reasonable accommodation requirement usually does not apply unless ‘triggered by a request’ from the employee.”

Alsept, 2013 U.S. Dist. LEXIS 77530, at *24 (emphasis added).

(one case relied on by Red Roof), the Sixth Circuit recognized that, “[i]n certain situations, a

request for accommodation can be inferred by context.” Aldini v. Kroger Co. of Mich., 628 F.

App’x 347, 350-51 (6th Cir. 2015) (citing Smith, 376 F.3d at 535). The court in Aldini then went

on to say that “a request for a reasonable accommodation—whether explicitly or by inference” is

required to establish a prima facie claim for failure to accommodate. Id. However, the court’s

recitation of the requirements to establish a prima facie claim for failure to accommodate is for

indirect evidence claims. Id. at 350. As shown above, the Sixth Circuit in Fisher clarified that

“‘claims premised upon an employer’s failure to offer a reasonable accommodation necessarily

involve direct evidence (the failure to accommodate) of discrimination.’” Fisher, 951 F.3d at 417

(quoting Kleiber, 485 F.3d at 868). In fact, the Sixth Circuit in Fisher used Aldini as an example

of a failure to recognize this distinction:

[W]e have occasionally—though generally in unpublished cases—analyzed a

failure-to-accommodate claim under the indirect test. See, e.g., Keogh v. Concentra

Health Servs., 752 F. App’x 316, 326 (6th Cir. 2018); Mosby-Meachem v. Memphis

Light, Gas & Water Div., 883 F.3d 595, 603 (6th Cir. 2018); Aldini v. Kroger Co.

of Mich., 628 F. App’x 347, 350 (6th Cir. 2015); Johnson v. Cleveland City Sch.

Dist., 443 F. App’x 974, 982–83 (6th Cir. 2011). These cases do not explain why

they apply the indirect test rather than the direct, nor do they distinguish Kleiber

and its progeny. And each can be traced back to a single case, DiCarlo v. Potter,

that applied the indirect test when analyzing a failure to accommodate claim under

the Rehabilitation Act, not the ADA. 358 F.3d 408, 419 (6th Cir. 2004). Our court,

sitting en banc, has explained that though the two statutes have many similarities,

they are not identical. Lewis v. Humboldt Acquisition Corp., 681 F.3d 312, 314–17

(6th Cir. 2012) (en banc). Kleiber, our foundational case establishing that ADA

failure to accommodate claims are analyzed pursuant to the direct test, controls.

Fisher, 951 F.3d at 416-17. Thus, Aldini applied the indirect evidence requirements, rather than

the direct evidence requirements applicable in this case.

Perhaps more importantly,5 the Aldini case is also factually distinguishable. In that case,

5 The direct evidence test still requires the plaintiff to establish “that he or she is otherwise qualified for the position

despite his or her disability: (a) without accommodation from the employer; (b) with an alleged essential job

requirement eliminated; or (c) with a proposed reasonable accommodation.” Kleiber, 485 F.3d at 869 (emphasis

although the plaintiff requested an accommodation by presenting a doctor’s note setting out certain

restrictions, he had retracted his request less than 24 hours later (by presenting a new doctor’s note

clearing him to return to work without restrictions), and, “[f]rom that point on, [the plaintiff]

worked with no restrictions for two years and, according to his own testimony, never again

requested an accommodation.” Aldini, 628 F. App’x at 351 (emphasis in original). The Sixth

Circuit in Aldini explained that, although the plaintiff “relies heavily on Smith to argue we should

infer he requested an accommodation, this case is easily distinguishable because we have no

evidence to establish that anyone at Kroger was aware Aldini had a disability or needed an

accommodation after” plaintiff presented the new doctor’s note two years earlier. Id.

(2) Whether Derby was otherwise qualified for the PCC position with a

reasonable accommodation

Red Roof next argues that the EEOC “cannot establish that Mr. Derby was ‘otherwise

qualified’ for the position within the meaning of the ADA because the unpredictability of

independent, third-party websites and the inherent limitations of JAWS’ software render Mr.

Derby unable to perform the essential functions of the job, with or without a reasonable

accommodation.” (Doc. No. 58 at PageID 745.) Red Roof also argues that it is entitled to

summary judgment because the EEOC “has not shown an accommodation is possible and

objectively reasonable” and the EEOC has failed to establish that Derby “was otherwise qualified

for the PCC position.” (Doc. No. 58 at PageID 744-45.) In response, the EEOC argues that JAWS

was such an accommodation, it was known that Derby already relied on JAWS to access the

programs used in his previous positions, and—from a financial perspective—providing JAWS as

an accommodation would have been facially plausible, given Red Roof’s revenue and history of

taking measures to implement JAWS for other positions. (Doc. No. 59 at PageID 826-27.)

added; internal quotation marks removed).

Additionally, the EEOC contends that Red Roof’s “arguments about the alleged unpredictability

of third-party websites are a smokescreen, designed to obscure the fact that Red Roof did not assess

whether the [PCC] position could be made JAWS accessible before rejecting Derby.” (Id.)

As set forth above, in analyzing an ADA claim premised upon direct evidence, the

“plaintiff bears the burden of establishing that he or she is ‘otherwise qualified’ for the position

despite his or her disability: … with a proposed reasonable accommodation.” Kleiber, 485 F.3d

at 869. Given that there is no dispute that Derby is disabled, “to survive summary judgment, it is

[the EEOC’s] burden to submit evidence sufficient to create a genuine issue of material fact

regarding whether [Derby] is qualified for [the PCC] position with a proposed reasonable

accommodation.” Kleiber, 485 F.3d at 869. An employee is “qualified” only if he or she can

perform the essential functions of the employment position with or without a reasonable

accommodation. 42 U.S.C. § 12111(8) (defining “qualified individual” for purposes of the ADA

as “an individual who, with or without reasonable accommodation, can perform the essential

functions of the employment position that such individual holds or desires”). The Sixth Circuit in

Fisher provided an example illustrating the issue of an employee being “not qualified”:

Imagine … a school that lacked an elevator to accommodate a teacher with mobility

problems. It could not refuse to assign him to classrooms on the first floor, then

turn around and fire him for being late to class after he took too long to climb the

stairs between periods. In other words, even though presence in the classroom

when the bell rings is an attendance requirement, a tardy teacher is not unqualified

if his tardiness results from his employer’s unwillingness to accommodate. If, by

contrast, no reasonable accommodation would cure the attendance problem—as,

for example, when an employee is not medically cleared to work at all or blames

his absences on car problems rather than disability—the employee is not qualified.

Fisher, 951 F.3d at 418; see also 42 U.S.C. § 12112(a) (prohibiting discrimination against a

“qualified individual” on the basis of disability in regard to—among other things—job application

procedures, hiring, and advancement of employees).

Here, Derby testified that he possesses each of the qualifications listed in the PCC job

description. (Doc. No. 59-6 at PageID 881, 897.) Red Roof’s position is that an essential function

of a PCC “is to access, interact with, and utilize multiple third party websites outside of the [Red

Roof] internal system and, therefore, outside of [Red Roof’s] control.” (Doc. No. 65 at PageID

1029.) Yet, Derby “is not unqualified” for the PCC position if his inability to perform its essential

functions “results from his employer’s unwillingness to accommodate.” Fisher, 951 F.3d at 418.

The EEOC’s position is that Derby could, with JAWS (the alleged reasonable accommodation),

perform the essential functions of the PCC position. (Doc. No. 59 at PageID 826-27.)

To defeat a defendant-employer’s motion for summary judgment, a plaintiff-employee

“need only show that an accommodation seems reasonable on its face, i.e., ordinarily or in the run

of cases.” US Airways, 535 U.S. at 401 (internal quotation marks omitted). “The defendant then

must show either ‘special (typically case-specific) circumstances that demonstrate undue hardship

in the particular circumstances’ or that the proposed accommodation eliminates an essential job

requirement.” Fisher, 951 F.3d at 419 (quoting US Airways, 535 U.S. at 402). Notably, “[t]he

reasonableness of a proposed accommodation is a question of fact.” Id.

The Court finds that the EEOC has shown that an accommodation (specifically, using

JAWS) “seems reasonable on its face.” US Airways, 535 U.S. at 401. The PCC position involves

using a computer to review information and electronically input information using a computer (and

possibly field inquiries by telephone). (See Doc. No. 57-9.) JAWS is a computer screen reading

program for Microsoft Windows that allows blind and visually-impaired individuals to read the

information on a computer screen either with a text-to-speech output or a refreshable Braille

display. (Doc. No. 58-2 at PageID 770; Doc. No. 59-8 at PageID 907.) Derby is a very

experienced, sophisticated JAWS user. (Doc. No. 59-6 at PageID 884-85; Doc. No. 59-9 at PageID

931.) And, Red Roof has used Tudela to script computer programs for Derby’s other jobs with

Red Roof so that those programs would be compatible with JAWS and Derby could perform the

functions of those other jobs. (Doc. No. 59-6 at PageID 893-94; Doc. No. 59-3 at PageID 868.)

Moreover, Buchness opined that, given the relationship between Red Roof and the online travel

agencies who use the extranet applications, information related to updates on those applications

could likely be provided to Red Roof prior to implementation. (Doc. No. 59-8 at PageID 912.)

And, “[n]ot only may the application not need to be ‘rescripted’ on every change, but the

application may improve completely, and could even require the scripted solutions to be rolled

back/off the PC.” (Id. at PageID 913 (emphasis in original).)

Whether the EEOC establishes that JAWS actually was a “reasonable accommodation”

will be a question for the jury. Again, the “reasonableness” of an accommodation involves

questions of fact for the jury to decide. Fisher, 951 F.3d at 419. The Court believes that

evidence—including testimony from Buchness, Tudela, and Derby—could support a reasonable

jury finding that the use of JAWS was a reasonable accommodation (and, vice versa, could support

a finding that it was not a reasonable accommodation). Again, it is not the judge’s function at the

summary judgment stage to make credibility determinations and weigh the evidence. Anderson,

477 U.S. at 249, 255.

Additionally, the Court finds that Red Roof has not shown “either special (typically case-

specific) circumstances that demonstrate undue hardship in the particular circumstances or that the

proposed accommodation eliminates an essential job requirement.” Fisher, 951 F.3d at 419

(internal quotation marks omitted). Red Roof “has not set forth specific facts indisputably

demonstrating that such an accommodation would have resulted in ‘significant difficulty or

expense.’” Smith, 376 F.3d at 536-37 (emphasis added) (quoting 29 C.F.R. § 1630.2(p)) (employer

not entitled to summary judgment); see also Svoboda v. TimkenSteel Corp., No. 5:18-cv-1443,

2020 U.S. Dist. LEXIS 54542, 2020 WL 1513710, at *9-10 (N.D. Ohio Mar. 30, 2020)

(accommodation that plaintiff wear a full-hood breathing device while performing his duties was

reasonable on its face and defendants were not entitled to summary judgment on the basis that the

proposed accommodation was unreasonable where, although defendant-employer expressed

concerns about safety and plaintiff’s ability to perform his duties while wearing the device,

defendant-employer did not attempt to simulate plaintiff’s duties while wearing the device and had

never actually reached the determination of whether the device could be safely used by plaintiff

while performing his duties). For example, Tudela testified that he “didn’t truly flesh out … what

would be needed with each” of the online travel agency extranets, including that he did not “write

test scripts and really try to see how I could make things work.” (Doc. No. 59-9 at PageID 936.)

In response, Buchness stated that Tudela “did not perform a thorough assessment of the

applications before preparing his report to determine whether scripting for these specific

applications would be necessary, or to what degree it might be necessary given Mr. Derby’s skill

level with” access technologies. (Doc. No. 59-8 at PageID 991.) Additionally, Eichelberger

testified that she has no knowledge regarding JAWS’ capabilities and limitations, yet she told

Derby that “the systems that we work with do not integrate with the JAWS system” without ever

speaking to anyone. (Doc. No. 59-2 at PageID 842, 848.) And, Wright acknowledged that she

had not talked to anyone about whether JAWS could be used with the extranet sites that the PCCs

used and does not believe that she had ever talked to anyone about whether a JAWS user could

hold a PCC position. (Doc. No. 59-3 at PageID 871.)

As set forth in more detail below, whether Red Roof actually establishes that implementing

JAWS for use by a PCC would impose an undue hardship on Red Roof’s business operation will

be a question for the jury. (In fact, in its response to the EEOC’s MSJ, Red Roof acknowledges

that genuine issues of material fact exist regarding whether that alleged reasonable accommodation

would impose an undue hardship on the operation of its business. (Doc. No. 66 at PageID 1112,

1117.)) Evidence, including testimony from the two purported expert witnesses in this case, could

support a reasonable jury finding that implementing JAWS would not impose an undue hardship

on Red Roof (or vice versa). Once again, the Court will not make credibility determinations

regarding the competing testimony on these issues—which a reasonable jury could decide either

way.

Assuming as true the EEOC’s evidence (i.e., the evidence of the nonmoving party) and

drawing all reasonable inferences in its favor (Anderson, 447 U.S. at 255), the Court finds that

genuine issues of material fact exist regarding whether implementing JAWS was a reasonable

accommodation and whether Derby was qualified for the PCC position with that alleged

reasonable accommodation. See Fisher, 951 F.3d at 421 (concluding that the defendant was not

entitled to summary judgment on failure to accommodate claim because a factfinder could

conclude that the plaintiff was qualified for a vacant position); Blanchet v. Charter Commc’ns,

LLC, 27 F.4th 1221, 1231-32 (6th Cir. 2022) (reversing district court’s grant of summary judgment

on disability discrimination claim where a reasonable jury could find that the proposed

accommodation was reasonable based on certain evidence).

(3) Accommodation to participate in information seminar

The EEOC’s failure to accommodate claim also encompasses the alleged failure to allow

Derby to participate in the information seminar. (See Doc. No. 1 at PageID 5.) The argument in

Red Roof’s MSJ concerning the information seminar is relatively limited. It is undisputed that

Derby requested attending the information seminar “via Skype or some other remote option” and

that attending “via Skype or some other remote option” would be a reasonable accommodation.

Red Roof argues that it is entitled to summary judgment on this aspect of the claim because Derby

“was not denied the opportunity to attend an informational seminar, but rather, was asked to wait

until Ms. Eichelberger was able to determine how to present the seminar remotely in the near

future.” (Doc. No. 58 at PageID 743.) Red Roof asserts that “[a] disabled person is not entitled

to an accommodation of his choice but rather a reasonable accommodation given the

circumstances” and that “[r]equesting Mr. Derby wait until a date in the near future to attend the

seminar is objectively reasonable.” (Id. (citing Hedrick v. W. Rsrv. Care Sys., 355 F.3d 444, 457

(6th Cir. 2004)) (internal quotation marks omitted).)

The Court takes no issue with Red Roof’s assertion that a disabled person is not entitled to

an accommodation of his choice. The Court also acknowledges that, “although an employee is not

required to accept an offered accommodation, if an individual rejects a reasonable accommodation,

the individual will no longer be considered a qualified individual with a disability.” Hedrick, 355

F.3d at 457 (finding that the plaintiff employee rejected a reasonable accommodation). However,

Hedrick also held that “an employee cannot make his employer provide a specific accommodation

if another reasonable accommodation is instead provided.” Hedrick, 355 F.3d at 457; see also 42

U.S.C. § 12112(b)(5)(A) (defining “discriminate against a qualified individual on the basis of

disability” under the ADA to include “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 such covered entity can demonstrate that the accommodation would

impose an undue hardship on the operation of the business of such covered entity”) (emphasis

added); Black v. Wayne Ctr., No. 99-1225, 2000 U.S. App. LEXIS 17567, at *11 (6th Cir. July 17,

2000) (cited in Red Roof’s MSJ; “the law in this circuit does not entitle [plaintiff-employee] to the

accommodation of her choice, but only a reasonable accommodation” and the defendant-employer

“provided” the plaintiff-employee with reasonable accommodations).

Here, Derby did not reject the presumably reasonable accommodation of attending a later

seminar (Doc. No. 58-4 at PageID 793-96), yet there is no evidence that Red Roof actually

“provided” that presumably reasonable accommodation, despite having offered it. Hedrick, 355

F.3d at 457. In fact, Eichelberger told Derby that “[w]e will be holding more seminars in the near

future,” yet admitted at her deposition that she did not have any additional seminars scheduled and

never scheduled another seminar. (Doc. No. 58-4 at PageID 793-96; Doc. No. 59-2 at PageID

852.) Therefore, the Court does not agree with Red Roof that it is entitled to summary judgment

on this aspect of the EEOC’s failure to accommodate claim.

(4) Alleged claim for failure to engage in the interactive process

Red Roof also argues that summary judgment is warranted on the EEOC’s alleged failure

to engage in the interactive process “[c]laim.” (Doc. No. 58 at PageID 746-47.) Red Roof argues

that, because Derby “never requested an accommodation related specifically to the PCC position,”

its “duty to engage in the interactive process was never triggered.” (Doc. No. 58 at PageID 747.)

However, as shown above, the Court has found that the email exchange interaction between

Eichelberger and Derby could support a finding that a request for accommodation is inferred from

the context. Therefore, the Court disagrees with Red Roof’s argument regarding why it would be

entitled to summary judgment.6

However, because this case will continue after the Court issues this order, the Court finds

it necessary to clarify that the EEOC cannot pursue an independent claim in this case for failure to

engage in the interactive process (even assuming that Red Roof had a duty to engage in the

6 Red Roof’s cited cases do not convince the Court otherwise. See, e.g., Lockard v. Gen. Motors Corp., 52 F. App’x

782, 787-88 (6th Cir. 2002) (case distinguishable where the court found that plaintiff’s “failure to cooperate with the

procedures delineated in the collective bargaining agreement effectively precluded the defendants from further

assisting her in her search for an appropriate position at the Plant” and GM had provided plaintiff with a reasonable

accommodation such that GM would not be liable for a breakdown in the interactive process).

interactive process). First, there is no indication that the EEOC is pursuing such a claim. While

the EEOC does allege that Red Roof failed to engage in the interactive process, the Complaint

does not specify a claim for failure to engage in the interactive process (see Doc. No. 1), and, as

mentioned above, the EEOC clarified in its briefing that it asserts only two claims in this case: a

failure to accommodate claim and a failure to promote claim (Doc. No. 59 at PageID 821-22).

Second, even if the EEOC was pursuing such a claim, the claim would fail. The ADA regulation

that references the “interactive process” states the following:

To determine the appropriate reasonable accommodation it may be necessary for

the covered entity to initiate an informal, interactive process with the individual

with a disability in need of the accommodation. This process should identify the

precise limitations resulting from the disability and potential reasonable

accommodations that could overcome those limitations.

29 C.F.R. § 1630.2(o)(3). Thus, the purpose of the “interactive process” is “[t]o determine the

appropriate reasonable accommodation.” Id. In line with that purpose, the Sixth Circuit has held

that, even if an employer “did not put sufficient effort into the interactive process of finding an

accommodation, that failure is actionable only if it prevents identification of an appropriate

accommodation for a qualified individual.” E.E.O.C. v. Ford Motor Co., 782 F.3d 753, 766 (6th

Cir. 2015) (emphasis removed) (internal citation and quotation marks removed).

Here, as referenced above in the Court’s analysis of the failure to accommodate claim, the

EEOC’s position is that JAWS is the reasonable accommodation that would have allowed Derby

to perform the essential functions of the PCC position. (Doc. No. 59 at PageID 826 (EEOC arguing

that, “[h]ere, JAWS was the existent plausible accommodation Derby required”) (emphasis

removed).) Yet, JAWS is exactly what Eichelberger identified in her email chain with Derby.

(Doc. No. 58-4 at PageID 793-96.) Additionally, the EEOC has not argued that there was any

other possible accommodation besides JAWS or that Derby was prevented from identifying an

appropriate accommodation due to Red Roof’s alleged failure to engage in the interactive process.

See Kottke v. PetSmart, Inc., No. 16 C 8849, 2018 U.S. Dist. LEXIS 112433, 2018 WL 3329698,

at *3 (N.D. Ill. July 6, 2018) (despite employer’s failure to complete the interactive process, the

alleged reasonable accommodation had been identified and the employee had “not pointed to any

other accommodation that she would have proposed if the interactive process had continued” and

she had not suggested any other accommodation—even during the subsequent litigation). Red

Roof identified the alleged appropriate reasonable accommodation.7 Therefore, any alleged failure

by Red Roof to engage in the interactive process is not actionable because—even under the

EEOC’s theory of the case that Derby was a qualified individual—that failure did not “prevent[]

identification of an appropriate accommodation for a qualified individual.” Ford Motor, 782 F.3d

at 766; see also 29 C.F.R. § 1630.2(o)(3) (the purpose for engaging in the interactive process is to

determine the appropriate reasonable accommodation); Mbawe v. Ferris State Univ., 751 F. App’x

832, 840 (6th Cir. 2018) (where defendant university had identified the accommodation that would

have allowed plaintiff pharmacy student (who suffered from paranoid delusions) to continue in the

pharmacy program, and plaintiff rejected that proposed accommodation, plaintiff’s claim that

defendant failed to engage in an interactive process was unavailing).

(5) Claim for failure to promote

The EEOC claims that Red Roof denied Derby a promotion to the PCC position because

of his disability and need for accommodation. (Doc. No. 1 at PageID 6.) Red Roof argues that

the EEOC “cannot make a prima facie case for failure to promote because it cannot show that Mr.

Derby applied for the PCC position in question.” (Doc. No. 58 at PageID 747; see also Doc. No.

7 The same is true with respect to the alleged failure to allow Derby to participate in the information seminar. There

is no dispute that attending the information seminar “via Skype or some other remote option” was identified by Derby

and Red Roof as an appropriate accommodation, and the EEOC has not argued that there was any other possible

accommodation or that Derby was prevented from identifying an appropriate accommodation due to Red Roof’s

alleged failure to engage in the interactive process.

65 at PageID 1034-35.) Therefore, according to Red Roof, it is entitled to summary judgment on

the failure to promote claim. (Doc. No. 58 at PageID 747.)

The Court disagrees. Red Roof, citing Nguyen v. City of Cleveland, 229 F.3d 559, 562-63

(6th Cir. 2000), asserts that, “[i]n order to establish a prima facie case of failure to promote, a

plaintiff must demonstrate that: 1) he is a member of a protected class; 2) he applied for and was

qualified for a promotion; 3) he was considered for and denied the promotion; and 4) other

employees of similar qualifications who were not members of the protected class received

promotions at the time her request for a promotion was denied.” (Doc. No. 58 at PageID 747.)

Thus, demonstrating that the employee applied for a promotion is part of the second requirement

under this method for establishing a prima facie case. However, as set forth above, the Court

understands both of the EEOC’s claims to be direct evidence claims. (Doc. No. 59 at PageID 821-

22; Doc. No. 65 at PageID 1028.) And, Red Roof ignores that the Sixth Circuit in Nguyen said

that another way to establish a prima facie case of failure to promote is through direct evidence.8

Nguyen, 229 F.3d at 563.

(6) Punitive damages

Finally, Red Roof argues that the EEOC is not entitled to punitive damages “because the

undisputed facts fail to establish ‘malice’ or reckless indifference’ as a matter of law.” (Doc. No.

58 at PageID 748.) The EEOC responds by arguing that there is sufficient evidence to support an

award of punitive damages. (Doc. No. 59 at PageID 831-32.)

The ADA permits an award of punitive damages if the complaining party demonstrates

8 Therefore, the Court need not and does not consider the parties’ arguments concerning potential “exceptions” to the

application “requirement” (for non-direct evidence claims), as well as any potential concerns that all of Red Roof’s

cases cited in support of its argument for summary judgment on the failure to promote claim are Title VII non-

disability discrimination actions. (See Doc. No. 58 at PageID 747; Doc. No. 59 at PageID 830-31; Doc. No. 65 at

PageID 1034-35.)

that the employer engaged in a discriminatory practice “with malice or with reckless indifference”

to an employee’s federally protected rights. Bates v. Dura Auto. Sys., Inc., 767 F.3d 566, 582-83

(6th Cir. 2014); see also 42 U.S.C. §§ 1981a(a)(2) & (b)(1). “The terms ‘malice’ or ‘reckless

indifference’ pertain to the employer’s knowledge that it may be acting in violation of federal law,

not its awareness that it is engaging in discrimination.” Kolstad v. Am. Dental Ass’n, 527 U.S.

526, 535 (1999).

“The appropriateness of a punitive damage award is to be assessed under the three-part

inquiry set forth in Kolstad.” E.E.O.C. v. New Breed Logistics, 783 F.3d 1057, 1072 (6th Cir.

2015). First, to be potentially liable for punitive damages, “an employer must at least discriminate

in the face of a perceived risk that its actions will violate federal law.” Kolstad, 527 U.S. at 536.

“Employers who are simply unaware of the relevant federal prohibition or believe that the

discrimination is lawful are not subject to punitive damages liability.” Bates, 767 F.3d at 583

(internal quotation marks omitted). Second, if the plaintiff has made the requisite showing of

malice or reckless indifference on the part of certain individuals, then “[t]he plaintiff must impute

liability for punitive damages to” the employer. Kolstad, 527 U.S. at 539. Agency law applies to

determine whether liability can be imputed to the employer. Parker v. Gen. Extrusions, Inc., 491

F.3d 596, 602 (6th Cir. 2007); Kolstad, 527 U.S. at 539-43. The employer “may be liable for

punitive damages if it authorizes or ratifies the agent’s tortious act, or if it acts recklessly in

employing the malfeasing agent” or “where an employee serving in a managerial capacity

committed the wrong while acting in the scope of employment.” Kolstad, 527 U.S. at 543 (internal

quotation marks omitted). “Third, the defendant may avoid punitive-damages liability by showing

that it engaged in good-faith efforts to comply with” the antidiscrimination statute. New Breed

Logistics, 783 F.3d at 1072; see also Kolstad, 527 U.S. at 545 (“in the punitive damages context,

an employer may not be vicariously liable for the discriminatory employment decisions of

managerial agents where these decisions are contrary to the employer’s good-faith efforts to

comply with Title VII”) (internal quotation marks omitted); Denoewer v. Union Cnty. Indus., No.

2:17-cv-660, 2020 U.S. Dist. LEXIS 44966, 2020 WL 1244194, at *12 (S.D. Ohio Mar.16, 2020)

(“[a] defendant can avoid punitive damages by showing that it engaged in good faith efforts to

comply with the law”).

Red Roof asserts that the EEOC’s “entire case is based exclusively on an email exchange

between” Derby and Eichelberger and that “[t]he tone of Ms. Eichelberger’s email is not malicious;

indeed, she used a ‘smile’ emoji.” (Id.) The EEOC responds by pointing to evidence that Red

Roof offered company-wide training on topics that included the ADA and reasonable

accommodations (which supervisors and managers from the Contact Center were required to

attend); Eichelberger was a supervisor; Wright was aware that Red Roof had a process related to

reasonable accommodations for individuals with disabilities, and her understanding was that if

such a request was made, it needed to be brought to the attention of HR; Wright testified that she

believes she had a conversation with Eichelberger about Derby’s email and that they discussed

whether they thought a blind person could work in the department and that it wouldn’t be

reasonable for someone who needed the JAWS system to fill the PCC position; and that Wright

“took no further steps to, for example, contact Human Resources, or consult Tudela about potential

JAWS accessibility.” (Doc. No. 59 at PageID 832; Doc. No. 59-10 at PageID 942.) Additionally,

as shown above, evidence supports that neither Eichelberger nor Wright made any effort to

determine JAWS’ capabilities or consulted with anyone with such knowledge regarding whether

a PCC’s functions could be performed by a JAWS user, before Eichelberger informed Derby that

“the systems that we work with do not integrate with the JAWS system, so we are not able to

accommodate as far as hiring.” (Doc. No. 58-4; Doc. No. 59-2 at PageID 842, 851; Doc. No. 59-

3 at PageID 871.) The evidence also supports that Eichelberger essentially lied to Derby when she

told him that more information seminars—which he could attend through Skype—would be held

in the near future. (Doc. No. 58-4 at PageID 793-96; Doc. No. 59-2 at PageID 852.)

Assuming the EEOC’s evidence as true and drawing all reasonable inferences in its favor,

the Court finds that genuine issues of material fact relevant to Kolstad’s three-part inquiry exist.

For example, whether the alleged conversation between Eichelberger and Wright actually

happened, when it happened (if it did happen), and what they discussed (if it did happen). Red

Roof’s MSJ does not address Kolstad’s three-part inquiry. Red Roof is not entitled to summary

judgment on the EEOC’s request for punitive damages. Fed. R. Civ. P. 56(c).

C. The EEOC’s MSJ

In the EEOC’s MSJ, the EEOC asks the Court to enter summary judgment in its favor on

Red Roof’s “undue hardship” affirmative defense. (Doc. No. 57 at PageID 595.) The EEOC

argues that Red Roof “lacks evidence that to accommodate Wesley Derby in the Property

Connectivity Coordinator position would create a significant difficulty or expense when

considering the factors set forth in 42 U.S.C. § 12111(10)(B).” (Id.) The EEOC “asks this court

to rule that, as a matter of law, Red Roof’s affirmative defense fails.” (Id. at PageID 597.) Red

Roof responds by arguing, among other things, that its undue hardship defense is “contingent on

a number of factual considerations” and genuine issues of material fact exist. (Doc. No. 66 at

PageID 1112.)

(1) Undue hardship principles

As stated above, the ADA’s prohibition on discriminating against a qualified individual on

the basis of disability includes “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 such 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)

(emphasis added). The ADA specifies that “undue hardship” means “an action requiring

significant difficulty or expense, when considered in light of the[se] factors”: “(i) the nature and

cost of the accommodation needed”; “(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.” 42 U.S.C. § 12111(10). Thus, “undue hardship” can involve

significant difficulty or significant expense. 42 U.S.C. § 12111(10). It need not involve both. Id.

(2) Application

Red Roof’s evidence of undue hardship focuses on trying to show significant difficulty in

implementing the alleged reasonable accommodation. For example, Wright testified that there are

“regular changes” to “third party systems,” and that the extranets for Expedia.com and

Booking.com “in particular change very frequently, weekly, sometimes, maybe even more often

on occasion.” (Doc. No. 58-3 at PageID 777.) She also testified that Red Roof “get[s] zero heads

up from” the third-party online travel agencies about such changes. (Doc. No. 66-1 at PageID

1123.) According to Wright, Red Roof’s belief was that the changes would require continuous

scripting for JAWS. (Id. at PageID 1123-24.) She also testified that Tudela, who Red Roof uses

for scripting purposes concerning JAWS, “was not always readily available” because he has other

responsibilities besides performing work for Red Roof. (Id. at PageID 1123.) She anticipated the

changes and Tudela’s availability would result in “a lot of downtime” during which a visually-

impaired person would not be able to perform a PCC’s functions. (Id.)

Similarly, Tudela explained that there are three overarching issues with attempting to

accommodate a blind person to perform as a PCC by using JAWS: the online travel agency

extranets are outside of Red Roof’s control; changes are made to the online travel agency extranets

frequently and without notice; and, until such changes can be addressed by a specialized JAWS

scripter, such changes may result in a period of downtime during which the blind employee may

be unable to perform the functions of a PCC. (See Doc. No. 58-2; Doc. No. 58 at PageID 739-40.)

In his report, Tudela opined:

The JAWS feature set and its configurability is complex. Many software programs

require JAWS scripting to allow blind or visually impaired users to utilize them.

JAWS scripters are not as common as general IT professionals as it is a specialized

skill set. In situations involving difficult software or advanced job efficiency

requirements, a JAWS scripter with an even more advanced skill set may be

required. …

… I am an independent contractor used on an as-needed basis by numerous

companies and JAWS users throughout the United States. For the past 9 years, I’ve

functioned as the primary JAWS script developer for Red Roof Inn’s JAWS users

in its call center. The first 2 years were funded by Ohio’s Vocational Rehabilitation

Agency and the remaining 7 years were funded directly by Red Roof Inn. Red Roof

Inn is one of many companies I perform work for involving JAWS scripting. …

… [T]he Property Connectivity Coordinator position requires the use of many third

party websites, outside of the Red Roof Inn internal system and outside of Red Roof

Inn’s control. …

The updates installed by third party websites may render the previous scripting of

the JAWS program to be incompatible with the newly updated third party website

and may render the website to be inaccessible for the JAWS user. It is impossible

for the JAWS software to be scripted to ensure future compatibility with updates to

the third party websites utilized in the Property Connectivity Coordinator position

or any other third party website. When a third party website updates its software,

the JAWS software may need to be re-scripted to allow the JAWS user to access

the third party website’s newly installed software. When a third party website

updates its software, there may be a period of down-time from the time the update

is identified by a JAWS user who is unable to access the website, or a specific

feature of the website, until it can be re-scripted by a specialized JAWS scripter.

Rescripting requires configuring the JAWS software to be compatible with another

piece of software. Rescripting also necessitates contact to a specialized JAWS

scripter and the amount of time to rescript a third party website to allow

accessibility to a JAWS user is contingent upon urgency, complexity, and the

availability of the specialized JAWS scripter.

(Doc. No. 58-2 at PageID 770.) Tudela also stated that his “hourly rate for contractor scripting

with Red Roof Inn is $125 per hour,” but, in his opinion, “it is impossible to predict how much

time would be required to rescript updates to any third party website because each update is unique

and varies in terms of complexity.” (Id. at PageID 771.)

Tudela and Buchness disagree on the amount of difficulty in implementing and maintaining

a PCC’s use of JAWS. (See, e.g., Doc. No. 58-2 at PageID 770-71; Doc. No. 59-8 at PageID 912-

13, 917.) This includes disagreements on the level of control that Red Roof has over receiving

advanced notice of changes made to the online travel agency extranets and the effect that such

changes would have (including the extent of “downtime” while scripting is performed). (Id.)

Assuming as true the evidence of Red Roof (the non-moving party for purposes of this

section of the order) and drawing all reasonable inferences in Red Roof’s favor, the Court finds

that reasonable jurors could find in favor of Red Roof on the undue hardship issue and affirmative

defense. Additionally, there are genuine issues of material fact regarding whether implementing

JAWS for use by a PCC would impose an undue hardship on Red Roof’s operation. 42 U.S.C. §

12112(b)(5); Holt v. Olmsted Twp. Bd. of Trs., 43 F. Supp. 2d 812, 823-25 (N.D. Ohio 1998)

(finding genuine issue of fact concerning whether plaintiff’s proposed reasonable accommodation

imposed an undue hardship where there “still exists a question of fact concerning what effect a

change to permanent shifts would have upon the Department”); E.E.O.C. v. Rock-Tenn Co., No.

1:14-cv-973, 2016 WL 6127844, at *6 (W.D. Mich. Feb. 3, 2016) (finding that whether the

difficulty in having other individuals temporarily perform plaintiff’s duties “was sufficient to be

an undue hardship is a question for the jury,” despite defendants not having “identified any expense

that was incurred, let alone a significant expense”). Given the evidence, the Court will not rule

that Red Roof’s affirmative defense of undue hardship fails as a matter of law. Therefore, the

EEOC’s MSJ is denied.

IV. CONCLUSION

For the reasons stated above, the Court DENIES Defendant Red Roof Inns, Inc.’s

Amended Motion for Summary Judgment (Doc. No. 58) and DENIES Plaintiff EEOC’s Motion

for Partial Summary Judgment (Doc. No. 57). The Court clarifies that it finds the EEOC is not

pursuing an independent claim for failure to engage in the interactive process and that, even if the

EEOC was pursuing such a claim, any alleged failure by Red Roof to engage in the interactive

process with Derby under the particular circumstances presented in this case is not itself actionable.

This case shall continue in accordance with the Court’s scheduling order.

DONE and ORDERED in Dayton, Ohio, this Tuesday, August 16, 2022.

s/Thomas M. Rose

________________________________

THOMAS M. ROSE

UNITED STATES DISTRICT JUDGE