Petition for Writ of Certiorari — Montgomery County, Maryland, Petitioner v. Yasmin Reyazuddin

Supreme Court briefAug 26, 2021

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No. 21-____

IN THE

Supreme Court of the United States

————

MONTGOMERY COUNTY,

MARYLAND,

Petitioner,

YASMIN REYAZUDDIN,

————

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

————

PETITION FOR A WRIT OF CERTIORARI

————

MARC P. HANSEN

County Attorney

JOHN P. MARKOVS

Deputy County Attorney

EDWARD B. LATTNER

Chief Division of Government Operations

PATRICIA LISEHORA KANE

Chief Division of Litigation

ERIN J. ASHBARRY

Associate County Attorney

Counsel of Record

OFFICE OF THE COUNTY ATTORNEY FOR

MONTGOMERY COUNTY, MARYLAND

Executive Office Building

101 Monroe Street, Third Floor

Rockville, Maryland 20850

(240) 777-6700

erin.ashbarry@montgomerycountymd.gov

August 26, 2021

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002

QUESTION PRESENTED

Whether a plaintiff who obtains no judicial relief is

a “prevailing party” entitled to attorney’s fees.

(i)

RULE 29.6 DISCLOSURE STATEMENT

Montgomery County, Maryland, is a Charter county

and a political subdivision of the State of Maryland. As

a governmental entity, it has no parent corporation

and does not issue stock.

iii

DIRECTLY RELATED PROCEEDINGS

United States District Courts (District of Maryland):

A) Yasmin Reyazuddin v. Montgomery County,

Maryland, No. DKC 11-0951, September 9, 2019

B) Yasmin Reyazuddin v. Montgomery County,

Maryland, No. DKC 11-0951, August 21, 2017

C) Yasmin Reyazuddin v. Montgomery County,

Maryland, No. DKC 11-0951, March 20, 2014

United States Courts of Appeals (Fourth Circuit):

A) Yasmin Reyazuddin v. Montgomery County,

Maryland, No. 19-2144, February 24, 2021

B) Yasmin Reyazuddin v. Montgomery County,

Maryland, No. 17-2013, November 21, 2018

C) Yasmin Reyazuddin v. Montgomery County,

Maryland, No. 14-1299, June 15, 2015

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ...............................

PARTIES TO THE PROCEEDING ....................

RULE 26.9 DISCLOSURE STATEMENT .........

iii

TABLE OF AUTHORITIES ................................

OPINIONS BELOW ............................................

JURISDICTION ..................................................

STATUTORY PROVISIONS INVOLVED ..........

INTRODUCTION ................................................

STATEMENT ......................................................

A. Reyazuddin’s Rehabilitation Act Claim And

Failed Request For Damages .....................

B. Reyazuddin’s Failed Requests For Equitable Relief ..................................................

C. Reyazuddin’s Request For Attorney’s Fees..

REASONS FOR GRANTING THE PETITION..

I. THE FOURTH CIRCUIT’S HOLDING

CREATES A CIRCUIT SPLIT .................

II. THE FOURTH CIRCUIT’S DECISION

CONFLICTS WITH BUCKHANNON

AND RESUSCITATES THE CATALYST

THEORY ...................................................

(v)

TABLE OF CONTENTS—Continued

Page

III. THE FOURTH CIRCUIT’S DECISION

WILL CHILL ATTEMPTS TO COMPLY

WITH THE LAW WHILE LITIGATION

IS PENDING AND WILL INVITE A

“SECOND LITIGATION” INTO THE

SUBJECTIVE REASONS FOR A

DEFENDANT’S

EXTRA-JUDICIAL

CHANGE IN BEHAVIOR. .......................

CONCLUSION ....................................................

APPENDIX

APPENDIX A: Opinion of the United

States Court of Appeals for the Fourth

Circuit in Reyazuddin v. Montgomery

County, Maryland, 988 F.3d 794, dated

February 24, 2021 ..........................................

APPENDIX B: Judgment of the United

States Court of Appeals for the Fourth

Circuit in Reyazuddin v. Montgomery

County, Maryland, No. 8:11-0951-DKC,

dated August 5, 2021 .....................................

10a

APPENDIX C: Order of the United States

District Court for the District of Maryland

in Reyazuddin v. Montgomery County,

Maryland, No. DKC 11-0951, dated

September 19, 2019 ........................................

11a

vii

TABLE OF CONTENTS—Continued

Page

APPENDIX D: Memorandum Opinion of

the United States District Court for the

District of Maryland in Reyazuddin v.

Montgomery County, Maryland, No. DKC

11-0951, 2019 U.S. Dist. LEXIS 161174,

dated September 19, 2019 .............................

12a

APPENDIX E: Opinion of the United States

Court of Appeals for the Fourth Circuit

in Reyazuddin v. Montgomery County,

Maryland, 754 Fed. Appx. 186, dated

November 21, 2018 .........................................

18a

APPENDIX F: Memorandum Opinion of

the United States District Court for the

District of Maryland in Reyazuddin v.

Montgomery County, Maryland, No. DKC

11-0951, 276 F. Supp. 3d 462, dated August

21, 2017...........................................................

32a

APPENDIX G: Order of Judgment of the

United States District Court for the District

of Maryland in Reyazuddin v. Montgomery

County, Maryland, No. DKC 11-0951, dated

August 21, 2017 ..............................................

68a

APPENDIX H: Order of the United States

Court of Appeals for the Fourth Circuit

Denying Petition for Rehearing En Banc

in Reyazuddin v. Montgomery County,

Maryland, No. 8:11-0951-DKC, dated March

29, 2021...........................................................

71a

viii

TABLE OF CONTENTS—Continued

Page

APPENDIX I: Verdict Sheet from Reyazuddin

v. Montgomery County, Maryland, No. DKC

11-0951, United States District Court for the

District of Maryland, dated February 26,

2016 ................................................................

72a

TABLE OF AUTHORITIES

CASES

Page(s)

Bonner v. Guccione,

178 F.3d 581 (2nd Cir. 1999) ....................

Buckhannon Bd. & Care Home, Inc. v.

W. Va. Dep’t of Health & Human Res.,

532 U.S. 598 (2001) ..................................passim

Burlington v. Dague, 505 U.S. 557 (1992) ...

Canup v. Chipman-Union, Inc.,

123 F. 3d 1440 (11th Cir. 1997) ................

Carbalan v. Vaughn,

760 F.2d 662 (5th Cir. 1995) .....................

Caruthers v. P&G Mfg. Co.,

Nos. 99-3318 & 98-3035, 998 U.S. App.

LEXIS 24847 (10th Cir. Oct. 6, 1998) ......

Farrar v. Hobby,

506 U.S. 103 (1992) ............................. 10, 11, 16

Hannah P. v. Coats,

916 F.3d 327 (4th Cir. 2019) .....................

Harvey-Williams v. Peters,

Nos. 95-4272 & 95-4354, 1997 U.S. App.

LEXIS 17735 (6th Cir. July 10, 1997) ......

Hewitt v. Helms,

482 U.S. 755 (1987) ...................................

Initiative and Referendum Inst. v.

U.S. Postal Service,

794 F.3d 21 (D.C. Cir. 2015) .....................

Lefemine v. Wideman,

568 U.S. 1 (2015) ....................................... 10, 11

TABLE OF AUTHORITIES—Continued

Page(s)

Marek v. Chesny,

473 U.S. 1 (1985) .......................................

Mounson v. Moore,

117 Fed. Appx. 461 (7th Cir. 2004) .......... 12, 13

Nance v. Maxwell Fed. Credit Union,

186 F.3d 1338 (11th Cir. 1999) .................

Parham v. Southwestern Bell Tel. Co.,

433 F.2d 421 (8th Cir. 1970) ..................... 17, 18

Reyazuddin v. Montgomery Cnty., Md.,

7 F. Supp. 3d 526 (D. Md. 2014) ...............

Reyazuddin v. Montgomery Cnty., Md.,

789 F.3d 407 (4th Cir. 2015) .....................

Rhodes v. Stewart,

488 U.S. 1 (1998) .......................................

Robinson v. City of St. Charles, Mo.,

972 F.2d 974 (8th Cir. 1992) .....................

Ruckelshaus v. Sierra Club,

463 U.S. 680 (1983) ...................................

Salvatori v. Westinghouse Electric Corp.,

190 F.3d 1244 (11th Cir. 1999) .................

Sole v. Wyner,

551 U.S. 74 (2007) ..................................... 11, 16

Tunison v. Continental Airlines Corp.,

162 F.3d 1187 (D.C. Cir. 1998) .................

Walker v. Anderson Elec. Contractors,

944 F.2d 841 (11th Cir. 1991) ...................

TABLE OF AUTHORITIES—Continued

Page(s)

Warren v. Fanning,

950 F.2d 1370 (8th Cir. 1991) ................... 13-14

STATUTES:

28 U.S.C. § 1254(l) ........................................

29 U.S.C. § 794a(b) .......................................

2, 9

42 U.S.C. § 1983 ...........................................

REGULATIONS:

29 C.F.R. § 1630.2(o)(3) ................................

PETITION FOR A WRIT OF CERTIORARI

Montgomery County, Maryland, respectfully petitions for a writ of certiorari to review an important

judgment of the United States Court of Appeals for

the Fourth Circuit which redefined “prevailing party”

in a manner that creates a circuit split and conflicts

with decisions of this Court.

OPINIONS BELOW

The Fourth Circuit’s opinion is reported at 988 F.3d

794. App. 1a-9a. The decision of the United States

District Court for the District of Maryland is reported

at 2019 U.S. Dist. LEXIS 161174, 2019 WL 4536505

(D. Md. Sept. 19, 2019). App. 12a-17a.

JURISDICTION

The Fourth Circuit entered judgment on February

24, 2021, and denied a timely petition for panel rehearing en banc on March 29, 2021.* App. 10a; 71a. On

March 19, 2020, this Court extended the deadline to

file petitions for writs of certiorari to 150 days from the

date of the lower court judgment or order denying

rehearing. This Court’s jurisdiction is invoked under

28 U.S.C. § 1254(1).

The case captions for the Fourth Circuit’s opinion, judgment,

and order denying rehearing en banc omitted the fact that the

International Municipal Lawyers Association (IMLA) filed an

amicus brief in support of the County. Upon notice of the omission, the Fourth Circuit amended the captions of those documents

to include IMLA as an amicus in support of the County on August

5, 2021, and August 9, 2021. (ECF Nos. 419-422). As the Fourth

Circuit’s revisions changed only the case caption, the operative

dates for jurisdictional analysis remain the judgment entered by

the Fourth Circuit on February 24, 2021, and the order denying

the petition for rehearing en banc on March 29, 2021.

STATUTORY PROVISIONS INVOLVED

The fee-shifting provision of the Rehabilitation Act

provides, “In any action or proceeding to enforce or

charge a violation of a provision of this title, the court,

in its discretion, may allow the prevailing party, other

than the United States, a reasonable attorney’s fee as

part of the costs.” 29 U.S.C. § 794a(b).

INTRODUCTION

Respondent Yasmin Reyazuddin, the plaintiff in

this Rehabilitation Act case, obtained none of the

judicial relief she sought against the petitioner and

defendant below, Montgomery County. The jury

awarded her no monetary damages; the trial court

denied her requests for a preliminary and permanent

injunction; and the trial court denied her request for a

declaratory judgment. When the trial court entered

judgment, the County was not ordered to do anything

at all.

Despite respondent’s lack of any enforceable judgment, the Fourth Circuit held she is a “prevailing party”

for purposes of seeking reimbursement of her attorney’s

fees. “Prevailing party” is a legal term of art in numerous federal statutes that allows for departure from

the “American Rule” (where each side must pay its

own attorney fees) and permits a “prevailing party” to

seek recovery of its attorney’s fees. Ignoring respondent’s lack of any enforceable judgment, the Fourth

Circuit focused erroneously on two factors that are

not relevant in the prevailing party analysis, thereby

redefining the term and creating a circuit split.

First, the Fourth Circuit relied on the fact that the

jury found the County had discriminated, even though

the jury awarded Reyazuddin no damages. This Court,

however, has made clear that a judicial finding that

a defendant violated the law, with no enforceable

relief, does not render a plaintiff a prevailing party. To

that end, all other federal appellate courts presented

with a jury finding of liability, but no damages or

other judicial relief, found the plaintiff was not a

prevailing party. The Fourth Circuit’s holding that

respondent “prevailed” despite obtaining no damages

or other judicial relief departs from this Court’s jurisprudence and creates a circuit split.

Second, the Fourth Circuit relied on the fact that the

County, in its continuing efforts to accommodate, voluntarily changed respondent’s employment circumstances while this litigation was pending. The Fourth

Circuit cited this voluntary accommodation to comply

with the law as a “capitulation” that effected the relief

respondent sought and provided grounds to award

her prevailing-party status. The Fourth Circuit’s

holding conflicts with this Court’s clear mandate in

Buckhannon, which held that a defendant’s voluntary,

extra-judicial change – even if it effects the relief

sought in plaintiff’s complaint – lacks the necessary

judicial imprimatur to crown plaintiff a prevailing

party. In so holding, Buckhannon resolved a circuit

split and rejected the then-prevalent “catalyst theory”

of recovery, under which a plaintiff could be deemed a

prevailing party if her complaint was the catalyst for

the defendant’s extra-judicial change and effectively

provided plaintiff the relief she sought in her

complaint. Buckhannon expressly rejected the catalyst

theory, making clear that a plaintiff must have an

enforceable judgment against the defendant to attain

prevailing-party status and that a voluntary, extrajudicial change by a defendant does not render

a plaintiff a prevailing party.

This Court should grant certiorari and reverse the

decision of the Fourth Circuit because the decision is

inconsistent with other federal appellate decisions, is

contrary to Buckhannon, and would resuscitate the

rejected catalyst theory for recovery of attorney fees,

thereby re-opening the circuit split resolved by

Buckhannon.

This decision should also not be allowed to stand

because of the chilling effect it will have upon

defendants’ good-faith efforts to comply with the law

to monitor and modify a plaintiff’s accommodation

while litigation is pending. Defendants nationwide

will be deterred from implementing accommodations

or otherwise taking steps in good faith to comply with

the law for fear of conceding the plaintiff’s prevailingparty status.

This Court should grant certiorari to reverse the

Fourth Circuit’s decision and re-affirm that an enforceable judgment is necessary for a plaintiff to become a

“prevailing party.”

STATEMENT

A. Reyazuddin’s Rehabilitation Act Claim And

Failed Request For Damages

Respondent Reyazuddin is a visually impaired

County employee. App. 3a; App. 12a. For years,

Reyazuddin answered the phones for a County department, fielding calls from County residents. App. 3a;

App. 12a. The County provided her with assistive

technology to interact with County information

systems so she could do her work. App. 20a.

In 2008, the County decided to consolidate all call

takers from its various executive branch departments into one customer service location, known as

“MC 311.” App. 3a; App. 20a. The County implemented Oracle’s Siebel software for MC 311 call takers

to input data about calls received, route them to

departments for resolution, and track their status.

App. 3a; App. 39a. Although the consolidation swept

up Reyazuddin’s department, the County did not

transfer Reyazuddin to MC 311 because Siebel was

not compatible with the assistive technology used by

Reyazuddin. App. 3a; App. 12a-13a. The County

viewed the cost to customize Siebel to communicate

with Reyazuddin’s assistive technology as unreasonably high, so the County instead made two attempts to

accommodate Reyazuddin by offering her two different, alternative positions within her existing department. App. 20a-21a; App. 33a-34a.

Reyazuddin accepted one of the offered positions.

App. 20a-21a. She nevertheless later filed this action

in April 2011 against the County, alleging discrimination under the Rehabilitation Act.1 App. 4a; App.

13a; App. 33a-34a; The complaint sought compensatory damages, a declaratory judgment that the

County violated the law, and an injunction ordering

the County to transfer her to MC 311 as a call taker,

or “Customer Service Representative,” and to make

Siebel accessible to her. App. 5a; App. 27a; App. 30a;

App. 34a; App. 36a; App. 46a.

The District Court set the case for a jury trial in

February 2016. App. 68a. Meanwhile, the County

Plaintiff amended her complaint to include a claim under the

Americans with Disabilities Act. App. 68a. The District Court

granted the County summary judgment on both counts. App. 68a;

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

2014). The Fourth Circuit reversed as to the Rehabilitation Act

count only. App. 68a; Reyazuddin v. Montgomery Cnty., Md., 789

F. 3d 407 (4th Cir. 2015). The ADA claim is not at issue here.

continued its attempts to accommodate Reyazuddin.

In October 2015, approximately five months before

the jury trial, the County offered her a collaborative

position with a non-profit, the Columbia Lighthouse

for the Blind, which the County would fund. App. 4a;

App. 21a; App. 34a-35a; (ECF No. 300-2). Reyazuddin

declined that proposed accommodation, and her case

proceeded to trial. App. 4a; App. 21a; App. 35a-36a.

The jury was asked to consider whether the County

violated the Rehabilitation Act, and if so, what compensatory damages to award. App. 34a; App. 68a-69a.

Reyazuddin asked the jury to award her damages for

emotional distress only. App. 5a n.2. She argued an

appropriate amount would be $129,000, which she

claimed was the cost to the County to make Siebel

accessible to her. (ECF No. 404). She did not ask for

nominal damages. App. 5a n.2. The parties agreed if

the jury found that the County did not discriminate or

that the County proved its affirmative defense of

undue hardship with respect to plaintiff’s requested

modifications to the Siebel software, the case would be

over. (ECF No. 143). If the jury found merit to the

plaintiff’s discrimination claim, then the matter would

proceed to a second hearing so the court could

determine whether plaintiff was entitled to any

declaratory or injunctive relief. (ECF No. 143).

At trial, the jury never heard about the County’s

third attempt in October 2015 to accommodate

Reyazuddin because she limited her claim for compensatory damages to the time period ending the month

before the County offered this accommodation. App.

34a-35a. With evidence of only two accommodation

attempts, the jury found that the County discriminated against Reyazuddin. App. 21a; App. 34a-35a,

72a-74a. But the jury rejected Reyazuddin’s request

for damages, awarding $0 in compensatory damages.

App. 74a.

B. Reyazuddin’s

Failed

Equitable Relief

Requests

For

After the $0 jury verdict, Reyazuddin moved for

entry of a declaratory judgment, a preliminary injunction, and permanent injunction. App. 5; App. 34a; App.

36a. After a May 2016 hearing, the District Court

denied preliminary injunctive relief due to the lack of

evidence as to whether the County’s third accommodation attempt was reasonable and as to the

current state of Reyazuddin’s employment. App. 5a;

App. 35a. Reyazuddin requested and the District Court

agreed that discovery was necessary before the court

could schedule an evidentiary hearing to consider

Reyazuddin’s request for a declaratory judgment and

a permanent injunction. (ECF Nos. 228, 241).

In October 2016, during the discovery period for

the pending evidentiary hearing, the County made a

fourth attempt to accommodate Reyazuddin. App. 5a;

App. 21a; App. 34a-35a. The County voluntarily transferred Reyazuddin to MC 311 to answer calls for

services administered by her former department and

created and incorporated a new piece of assistive

technology – an internet-based software program

known as the Internal Web Accessibility Accommodation (IWAA). App. 22a; App. 35a; App. 41a-46a.

Reyazuddin was able to perform her position at MC

311 in full with this new accommodation, but

Reyazuddin was still dissatisfied: she wanted the

County to modify the Siebel software so she could

access it directly. App. 36a. Further, because other

MC 311 Customer Service Representatives answered

calls for all departments instead of just one, she

claimed the accommodation to answer calls as a Cus-

tomer Service Representative only for her former

department was an insufficient accommodation. App.

36a; App. 53a. She chose to pursue her requests for

injunctive and declaratory relief. App. 35a-36a.

After a seven-day evidentiary hearing in April

2017, the District Court in August 2017 issued a

Memorandum Opinion that found the County’s fourth

and last accommodation sufficient. App.32a-67a. The

District Court found the jury verdict of discrimination

in February 2016 did not establish any ongoing harm

because the jury had not considered the County’s

third and fourth accommodations or Reyazuddin’s new

position and duties at MC 311. App. 47a-48a. Further,

the District Court found that the County’s various

accommodation attempts over the years reflected an

ongoing, “bona fide” attempt by the County to abide

by the law, App. 63a, and that the County’s fourth

accommodation was reasonable and provided her

with meaningful work. App. 56a-64a. Concluding that

the County had accommodated Reyazuddin fully as

required by law, the District Court entered an Order

of Judgment on August 21, 2017, that denied

Reyazuddin’s requests for declaratory and injunctive

relief, and entered judgment in favor of Reyazuddin

and against the County for $0. App. 68a-70a.

On Reyazuddin’s appeal, a three-judge panel of the

Fourth Circuit unanimously affirmed the District

Court’s opinion and order denying Reyazuddin’s

request for equitable relief. App. 18a-31a. The Fourth

Circuit held that the jury verdict did not mandate an

award of injunctive relief, that the District Court did

not abuse its discretion in denying an injunction, and

that the District Court did not abuse its discretion in

denying declaratory relief, stating expressly that

the jury verdict was of “limited relevance” in light of

Reyazuddin’s new position. App. 28a-29a; App. 27a30a; App. 30a. As the Fourth Circuit affirmed in full,

its decision did not direct the District Court or the

parties to take any further action. App. 31a.

C. Reyazuddin’s Request For Attorney’s Fees

Although the judgment gave Reyazuddin no enforceable relief against the County, she sought attorney’s

fees before the District Court. App. 12a. Under the

“American Rule,” parties in civil actions are not normally entitled to attorney’s fees, but a court may

award attorney’s fees if a statute authorizes the court

to do so. See Buckhannon Bd. & Care Home, Inc. v. W.

Va. Dep’t of Health & Human Res., 532 U.S. 598, 602

(2001). Here, Reyazuddin sought attorney’s fees under

the Rehabilitation Act, which provides that a court

may in its discretion allow the “prevailing party” a

reasonable attorney’s fee along with other costs. See 29

U.S.C. § 794a(b). The parties by consent briefed only

the question of whether Reyazuddin was a “prevailing party” under the law. App. 6a. Consistent with

Buckhannon, the District Court found Reyazuddin’s

judgment “cannot be characterized as an enforceable

one sufficient to make her a prevailing party,” App.

14a, as there was “no ‘court-ordered change in the

legal relationship between the plaintiff and the

defendant.’” App. 16a (quoting Buckhannon, 532 U.S.

at 604).

Reyazuddin appealed the District Court’s finding

that she is not a prevailing party. App. 3a. On February

24, 2021, a three-judge panel of the Fourth Circuit

reversed and remanded. App. 1a-9a. Abandoning

completely its prior stance that the jury verdict was

of limited relevance with respect to her claim for

equitable relief, the Fourth Circuit found that

Reyazuddin is a prevailing party “because she proved

her claim to a jury before the County capitulated by

transferring her to MC 311.” App. 9a. The Fourth

Circuit wrote that refusing Reyazuddin attorney’s

fees would be “unjust” because the County’s “timely

capitulation rendered unnecessary equitable relief

that Reyazuddin would otherwise have been entitled

to.” App. 9a (emphasis added).

The Fourth Circuit denied rehearing en banc, App.

71a, and this petition followed.

REASONS FOR GRANTING THE PETITION

I. THE FOURTH CIRCUIT’S

CREATES A CIRCUIT SPLIT.

HOLDING

The Fourth Circuit’s decision creates a circuit split

on the question of whether a plaintiff who obtains a

jury finding that the defendant violated the law, but

obtains no judicially enforceable relief, is a “prevailing party” for purposes of fee-shifting statutes. In

particular, the Fourth Circuit’s decision conflicts with

eight other Circuits that have held a plaintiff who

obtains no judicial relief – even where a jury found a

violation of the law – is not a prevailing party.2 These

other Circuits correctly applied this Court’s prevailingparty analysis, and the Fourth Circuit should be

reversed.

This Court’s prevailing-party analysis instructs that

a plaintiff prevails if “actual relief on the merits of his

claim materially alters the legal relationship between

the parties by modifying the defendant’s behavior in a

way that directly benefits the plaintiff.” Farrar v.

Hobby, 506 U.S. 103, 111-12 (1992); see also Lefemine

The term “prevailing party” is a legal term of art and interpreted consistently by courts regardless of the statute in which it

appears. See Buckhannon, 532 U.S. at 603 n.4.

v. Wideman, 568 U.S. 1, 4 (2015). The degree of alteration is not significant: an award of nominal damages

– even just one dollar – is sufficient to effectuate the

required alteration between the parties. See Farrar,

506 U.S. at 113 (a judgment for any amount, even

nominal, “modifies the defendant’s behavior for the

plaintiff’s benefit by forcing the defendant to pay an

amount of money he otherwise would not pay”). In

addition to a monetary damages award, a permanent

injunction alters the parties’ relationship and

affords a plaintiff prevailing-party status. Lefemine v.

Wideman, 568 U.S. 1, 4 (2015). Cf. Sole v. Wyner, 551

U.S. 74, 78 (2007) (holding a plaintiff is not a prevailing party if she obtains a preliminary injunction but

later loses her claim for permanent injunctive relief).

The material alteration must directly benefit plaintiff at the time of judgment; otherwise, the judgment

cannot be said to modify the defendant’s behavior. See

Farrar, 506 U.S. at 111. A judicial pronouncement of

a violation of the law – absent some favorable award

for the plaintiff to enforce – is not a material alteration

and is insufficient to render a plaintiff a prevailing

party. See Farrar, 506 U.S. at 113 (“[a] judicial pronouncement that the defendant has violated the

Constitution, unaccompanied by an enforceable judgment on the merits, does not render the plaintiff a

prevailing party” (citing Hewitt v. Helms, 482 U.S.

755, 762 (1987)). To that end, a declaratory judgment

constitutes relief for purposes of prevailing-party

status “[i]f, and only if, it affects the behavior of the

defendant toward the plaintiff.” Rhodes v. Stewart,

488 U.S. 1, 4 (1998).

Federal circuit courts applying these tenets have

held — in direct contrast with the Fourth Circuit’s

decision in this case — that a plaintiff who does not

obtain enforceable judicial relief is not a prevailing

party, even if the jury finds that the defendant

violated the law.

For example, a plaintiff with a jury finding of discrimination but no judicial relief was not a prevailing

party in Caruthers v. P&G Mfg. Co., Nos. 99-3318 &

98-3035, 1998 U.S. App. LEXIS 24847 (10th Cir. Oct.

6, 1998). In Caruthers, a jury found that the defendant

discriminated under the ADA, but awarded the plaintiff no damages, and the trial court denied equitable

relief. See Caruthers, 1998 U.S. App. LEXIS 24847, at

*2, *9. The Tenth Circuit held that a pronouncement

that the law was violated, but with no enforceable

judgment, does not render plaintiff a prevailing

party. Id. at *8. The court observed the plaintiff could

show no alteration in the parties’ legal relationship,

and that “[m]oral satisfaction . . . cannot bestow prevailing party status.” Id. at *8.

Similarly, in Tunison v. Continental Airlines Corp.,

162 F.3d 1187 (D.C. Cir. 1998), the court held a jury

finding of a violation of Air Carrier Access Act, but

awarding no damages, did not render plaintiff a

prevailing party. See Tunison, 162 F.3d at 1190.

The court stated that a declaration of a violation of

the law with no damages award is an “empty judgment . . . [which] carries no real relief and thus does

not entitle the judgment winner to be treated as a

prevailing party.” Id. at 1190. As “a judgment with no

damages at all is not an ‘enforceable judgment,’”

plaintiff was not a prevailing party. Id. at 1190.

These courts are in the majority with other circuit

courts who hold that a jury verdict that the law was

violated, with no other judicial relief, is not sufficient

to render the plaintiff a prevailing party. See Mounson

v. Moore, 117 Fed. Appx. 461, 462 (7th Cir. 2004)

(vacating attorney’s fee award where plaintiff received

“only a jury determination” that defendants violated

his constitutional rights but awarded him no damages; plaintiff was not a prevailing party as he had

nothing to enforce); Salvatori v. Westinghouse Electric

Corp., 190 F.3d 1244, 1245 (11th Cir. 1999) (plaintiff

not a prevailing party on Age Discrimination in Employment Act (ADEA) claim where jury found defendant

discriminated but awarded plaintiff no damages);

Nance v. Maxwell Fed. Credit Union, 186 F.3d 1338,

1342-43 (11th Cir. 1999) (after court vacated jury’s

damages award on appeal, ADEA plaintiff was not a

prevailing party as plaintiff had no judgment to

enforce despite jury finding of discrimination against

plaintiff); Bonner v. Guccione, 178 F.3d 581, 594 (2nd

Cir. 1999) (plaintiff was not a prevailing party under

Title VII where jury found sexual harassment but

awarded no damages); Canup v. Chipman-Union, Inc.,

123 F. 3d 1440, 1442-43 (11th Cir. 1997) (despite jury

finding in Title VII mixed-motive case that race was a

factor in plaintiff’s termination, jury also found

defendant employer would have terminated plaintiff

even had it not taken race into account, and plaintiff

was not a prevailing party as he failed to obtain any

damages or relief); Harvey-Williams v. Peters, Nos. 954272 & 95-4354, 1997 U.S. App. LEXIS 17735, *9 (6th

Cir. July 10, 1997) (affirming denial of attorney’s fees

to plaintiff under Title VII following a zero-damages

jury verdict as legal relationship between parties did

not change and there was no judgment to enforce);

Robinson v. City of St. Charles, Mo., 972 F.2d 974, 976

(8th Cir. 1992) (plaintiff was not a prevailing party

under 42 U.S.C. § 1983 where jury found excessive use

of force by police but awarded zero damages as the

verdict did not change legal relationship between

parties and was only a “technical victory”); Warren v.

Fanning, 950 F.2d 1370, 1374-75 (8th Cir. 1991) (a

jury finding of Eighth Amendment violation but

refusing to award plaintiff any damages was a

“Pyrrhic victory” that did not entitle plaintiff to prevailing party status); Walker v. Anderson Elec. Contractors, 944 F.2d 841, 847 (11th Cir. 1991) (plaintiff

was not a prevailing party under Title VII despite jury

finding of sexual harassment because jury awarded no

damages and jury verdict did not affect the behavior of

defendant toward the plaintiff); Carbalan v. Vaughn,

760 F.2d 662, 666 (5th Cir. 1985) (plaintiff was not a

prevailing party where jury found violation of

Constitutional prohibition against unreasonable bail

but awarded plaintiff no damages).3

Reyazuddin’s jury verdict entitled her to enforce

nothing, and she obtained no equitable relief. Under

other circuits’ precedent, she would not have been

deemed a “prevailing party” entitled to attorney’s

fees. The Fourth Circuit’s decision is not consistent

Although not involving a jury verdict, the D.C. Circuit

recently considered a “close” question as to whether a plaintiff

was a prevailing party in Initiative and Referendum Institute v.

U.S. Postal Service, 794 F.3d 21, 22 (D.C. Cir. 2015). In that case,

the Court held a party may achieve “prevailing party” status by

winning a remand that makes a substantive victory inevitable,

thereby effecting the required court-ordered change in the parties’ legal relationship. Id. at 25. Here, in contrast, Reyazuddin

never obtained an appellate court remand for relief akin to a

decision on the question of injunctive relief. Rather, the district

court’s denial of injunctive relief was affirmed. Moreover, unlike

Initiative, the verdict did not mandate any equitable relief. To the

contrary, Reyazuddin agreed after the verdict that discovery and

a separate proceeding were necessary on her request for equitable

relief, and a bench trial was held for 7 days to determine what if

any equitable relief was appropriate. The Fourth Circuit affirmed

in full the denial of that relief, and there was no remand upon

which Reyazuddin could expect a substantive victory.

with other federal appellate courts or this Court’s

precedent. This Court should grant certiorari to

resolve this circuit split.

II. THE FOURTH CIRCUIT’S DECISION

CONFLICTS WITH BUCKHANNON AND

RESUSCITATES

THE

CATALYST

THEORY.

In addition to creating a circuit court split as to

whether an enforceable judgment is a necessary

prerequisite to prevailing party status, the Fourth

Circuit’s decision conflicts with Buckhannon and

resuscitates the catalyst theory that Buckhannon

rejected.

In Buckhannon, a plaintiff nursing home corporation challenged a West Virginia state law that

required residents to be capable of “self-preservation,”

or to self-evacuate, in the event of an emergency. See

Buckhannon, 532 U.S. at 600. In response to ceaseand-desist orders requiring closure of its nursing

home facilities, plaintiff challenged the law under the

ADA and the Fair Housing Act. See id. at 600-01. After

plaintiff filed suit, West Virginia eliminated the “selfpreservation” requirement and successfully moved for

dismissal of the case as moot. See id. at 601. As

plaintiff obtained no judicial relief, the trial court

and the Fourth Circuit found the plaintiff was not a

prevailing party entitled to attorney’s fees. See id. at

601-02. This holding departed from the majority of

other federal circuits at the time, which then followed the “catalyst theory,” under which a plaintiff

could be a prevailing party if a defendant voluntarily

changed its conduct to effectuate the relief plaintiff

sought in the litigation. See id. at 602 n.3, 605.

The Buckhannon court rejected the catalyst theory,

affirming the denial of attorney’s fees and holding that

a defendant’s voluntary, extra-judicial change in

conduct could not render a plaintiff a prevailing party.

“[A] defendant’s voluntary change in conduct,

although perhaps accomplishing what the plaintiff

sought to achieve by the lawsuit, lacks the necessary

judicial imprimatur on the change.” Id. at 605.

Buckhannon listed “enforceable judgments on

the merits” or “settlement agreements enforced through

a consent decree” as having that necessary judicial

imprimatur. Id. at 604-05. In contrast, Buckhannon

made clear that a private settlement agreement lacking the judicial approval and oversight provided by a

consent decree does not make plaintiff a prevailing

party. See id. at 604 n.7; see also Farrar, 506 U.S. at

113.4 The Court emphasized that it had never

“awarded attorney’s fees for a nonjudicial alteration

of actual circumstances.” Buckhannon, 532 U.S. at 606

(quotation marks omitted). Thus, the appropriate test

to determine whether a plaintiff is a prevailing party

is whether there has been a “material alteration of the

legal relationship of the parties” and there is a

“judicial imprimatur on the change.” Id. at 603-05;

see also Sole v. Wyner, 551 U.S. 74, 81 (2007) (material alteration is the “touchstone” of prevailing party

status).

As Chief Justice Rehnquist noted in his opinion for the Court,

“[f]ederal jurisdiction to enforce a private contractual settlement

will often be lacking unless the terms of the agreement are

incorporated into the order of dismissal.” Buckhannon, 532 U.S.

at 604 n.7. This limited the Farrar Court’s broader declaration

that, “[n]o material alteration of the legal relationship between

the parties occurs until the plaintiff becomes entitled to enforce

a judgment, consent decree, or settlement against the defendant.”

Farrar, 506 U.S. at 113 (emphasis added).

The Fourth Circuit’s decision in this case resuscitates the catalyst theory: it relies erroneously upon the

County’s voluntary, extra-judicial accommodation of

Reyazuddin as proof that she obtained “relief.” This is

not the correct standard enunciated in Buckhannon,

which requires an enforceable judgment.

After ten years of litigation, Reyazuddin has no

enforceable judgment. The jury trial resulted in

nothing for Reyazuddin to enforce. The evidentiary

hearing for declaratory and injunctive relief resulted

in nothing for Reyazuddin to enforce. The District

Court combined the $0 jury verdict and the denial of

declaratory and equitable relief into one Order of

Judgment that required the County to take no action

whatsoever and affected no change in the legal relationship between Reyazuddin and the County. App.

68a-70a. The District Court’s decision was affirmed in

full by the Fourth Circuit and contained no directive

for the County to change its behavior towards the

plaintiff in any way. App. 31a; App. 68a-70a. With no

enforceable judgment, Reyazuddin is not a prevailing

party.

Rather than following Buckhannon, the Fourth

Circuit relied on Parham v. Southwestern Bell Telephone Company, 433 F.2d 421 (8th Cir. 1970). See App.

7a-9a. But Parham does not support conferring prevailing party status to Reyazuddin.

The trial court in Parham denied a class action

request for injunctive relief against the defendant

employer, finding that any discriminatory hiring

practices in violation of Title VII were mitigated by

the employer’s new affirmative-action hiring policy.

See Parham, 433 F.2d at 422, 425. The Eighth Circuit

disagreed, finding a violation proven by statistical

evidence of discriminatory hiring practices. See id. at

426. On remand, the Eighth Circuit did not order

entry of injunctive relief, but did instruct the district

court to retain jurisdiction of the case to continue to

judicially supervise the defendant’s compliance with

its new policies. See id. at 429 (“[w]e remand the case

to the district court with directions to retain jurisdiction over the matter for a reasonable period of time to

insure the continued implementation of the appellee’s

[affirmative action policy]”).

Contrary to the Fourth Circuit’s analysis, the

Buckhannon Court specifically held that Parham

“does not support a theory of fee shifting untethered

to a material alteration in the legal relationship of

the parties.” Buckhannon, 532 U.S. at 607 n.9. Rather,

the Court explained that the trial court’s retention of

jurisdiction in Parham to monitor defendant’s compliance meant the case was not over: if the defendant

failed to continue to implement its EEO policies,

injunctive relief could be entered by the trial court. See

id. As Justice Scalia’s separate opinion explained, the

court’s retention of jurisdiction in Parham was significant for prevailing-party purposes because it meant

that the “finding [of discrimination] could be given

effect, in the form of injunctive relief, should the

defendant ever backslide in its voluntary provision of

relief to the plaintiffs.” Id. at 616-17 n.3 (Scalia, J.,

concurring).

Here, in contrast, the Fourth Circuit affirmed the

District Court’s denial of injunctive relief. App. 31a.

The Fourth Circuit did not reverse denial of injunctive relief or remand with instructions to retain

jurisdiction over the County to monitor its elimination of discrimination. App. 31a. To address this

discrepancy with Parham, the Fourth Circuit stated

that Reyazuddin could “[r]einvoke the district court’s

jurisdiction simply by filing a new lawsuit.” App. 8a

n.4. But Reyazuddin’s ability to file a future lawsuit

does not represent success in this suit — i.e., the suit

for which Reyazuddin seeks fees — by any objective

measure. Any litigant who fails to obtain relief can try

again, to the extent principles of res judicata allow.

But the “prevailing party” exception to the American

Rule applies only to that limited group of plaintiffs

who obtain a “material alteration in the legal relationship of the parties.” Buckhannon, 532 U.S. at 604

(quotation marks omitted). The Fourth Circuit’s analysis upends the American Rule by finding that

Reyazuddin’s mere ability to try again, after all her

requests for judicial relief were rejected, entitles her

to prevailing party status. A new lawsuit — even if not

precluded, and even if successful on the merits —

would not give Reyazuddin any judicially enforceable

relief in this case.

Reyazuddin obtained no monetary, declaratory, or

equitable relief at any phase of this litigation. The

jury’s finding of discrimination completed just one

phase of this case, and it was a pyrrhic victory

that yielded no relief. Buckhannon dictates that

Reyazuddin’s lack of any judicial relief by the end of

her litigation means she is not a prevailing party. The

County’s ongoing, good-faith efforts to accommodate

her visual impairment do not alter that analysis. This

Court should grant certiorari to prevent the Fourth

Circuit’s decision from sowing confusion as to whether

the catalyst theory is an acceptable basis to award

prevailing party status.

III. THE FOURTH CIRCUIT’S DECISION

WILL CHILL ATTEMPTS TO COMPLY

WITH THE LAW WHILE LITIGATION IS

PENDING AND WILL INVITE A “SECOND

LITIGATION” INTO THE SUBJECTIVE

REASONS FOR A DEFENDANT’S EXTRAJUDICIAL CHANGE IN BEHAVIOR.

The question presented in this petition is important

and recurring. Numerous federal statutes use the

phrase “prevailing party” as the standard by which

attorney’s fees may be awarded. See Buckhannon, 532

U.S. at 600; Marek v. Chesny, 473 U.S. 1, 43-51 (1985)

(appendix to opinion of Brennan, J., dissenting)

(listing over 100 federal statutes that authorize courts

to award attorney’s fees, including various civil rights

laws, the Voting Rights Act, the Lanham Act, the

Ruckelshaus v. Sierra Club, 463 U.S. 680, 684 (1983)

(observing more than 150 federal statutory feeshifting provisions, applying “prevailing party,” “substantially prevailing party,” or “successful” as standard to award). The Fourth Circuit’s decision will

impact application of the prevailing party standard

beyond this Rehabilitation Act case.

Moreover, the Fourth Circuit’s analysis will deter

defendants from engaging in the interactive process

required to accommodate plaintiffs with disabilities

under the Rehabilitation Act.5 Employers will be

The Rehabilitation Act requires an interactive process

between an employer and an individual with a disability to

identify potential reasonable accommodations that could overcome the precise limitations of the disability. See Hannah P. v.

Coats, 916 F.3d 327, 337 (4th Cir. 2019); 29 C.F.R. § 1630.2(o)(3)

(“to determine the appropriate reasonable accommodation it may

be necessary for the covered entity to initiate an informal,

concerned that any such accommodation or change in

a plaintiff’s employment circumstances could be

grounds for a court to label the change a “capitulation,” declare plaintiff a prevailing party, and award

attorney’s fees. Indeed, this disincentive for defendants to change conduct during litigation to avoid

threat of assessment of attorney’s fees was a significant reason for Buckhannon’s rejection of the catalyst

theory in the first place.6

Here, the Fourth Circuit’s decision that the fourth

accommodation was a “capitulation,” is particularly

troubling and chilling as the fourth accommodation

provided only a part of the relief Reyazuddin sought.

It did not provide her with direct access to Siebel or

the ability to answer calls for multiple departments.

Reyazuddin was so dissatisfied with the fourth

accommodation that she continued to pursue her

claims for declaratory and injunctive relief. If an

employer’s willingness to provide an accommodation

which includes a part of what an employee seeks

during litigation is construed as a capitulation,

employers will be wary of offering any accommodations remotely or potentially related to a plaintiff’s

request for fear of having to pay her attorney fees.

In addition to the deterrent effect of the Fourth

Circuit’s analysis, Buckhannon also warned against

the possibility of a “second litigation” into a defendant’s subjective motivation for its change in conduct

interactive process with the individual with a disability in need

of the accommodation”).

See Buckhannon, 532 U.S. at 608 (observing that the catalyst theory creates disincentive for defendant to change conduct,

which may not be illegal, during litigation to avoid threat of

assessment of attorney’s fees).

as “not a formula for ‘ready administrability’ by

district courts.” Buckhannon, 532 U.S. at 609 (quoting

Burlington v. Dague, 505 U.S. 557, 566 (1992)). The

Fourth Circuit’s analysis in this case does precisely

that for future litigants. It invites a second investigation, through discovery and fact-finding hearings, as

to the nature of and motivations for a defendant’s

extra-judicial change, to determine whether the

change should be considered a “capitulation” caused

by the lawsuit, even if that change was made in good

faith to comply with the law. See Buckhannon, 505

U.S. at 609.

In this case, for example, even if the County’s subjective motivation was appropriate for the Court to

review, and based upon Buckhannon it is not, the record is clear that the County made three prior attempts

to accommodate Reyazuddin before the successful

fourth accommodation. Both the District Court and

the Fourth Circuit found that these prior attempts to

accommodate demonstrated the County’s ongoing,

“bona fide” and “good faith” efforts to comply with the

law, remedy any past discrimination, and prevent its

recurrence. App. 29a; App. 63a. Yet the Fourth Circuit’s prevailing party analysis determined – inconsistently with its own prior ruling – that the last

accommodation was a “capitulation” because of this

litigation. If the Fourth Circuit’s “capitulation” standard is permitted to stand, it will spawn countless,

similar proceedings to investigate the purpose, timing,

and scope of a defendant’s change in conduct.

The specter of the chilling effect upon defendants’

compliance with the law to accommodate while

litigation is pending, and the potential for ongoing

“second litigations” clogging the courts, justifies this

Court’s review and reversal of the Fourth Circuit’s

opinion.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

MARC P. HANSEN

County Attorney

JOHN P. MARKOVS

Deputy County Attorney

EDWARD B. LATTNER

Chief Division of Government Operations

PATRICIA LISEHORA KANE

Chief Division of Litigation

ERIN J. ASHBARRY

Associate County Attorney

Counsel of Record

OFFICE OF THE COUNTY ATTORNEY FOR

MONTGOMERY COUNTY, MARYLAND

Executive Office Building

101 Monroe Street, Third Floor

Rockville, Maryland 20850

(240) 777-6700

erin.ashbarry@montgomerycountymd.gov

August 26, 2021

APPENDIX

APPENDIX A

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

————

No. 19-2144

————

YASMIN REYAZUDDIN

Plaintiff-Appellant,

MONTGOMERY COUNTY, MARYLAND,

Defendant-Appellee.

THE DISABILITY LAW CENTER OF VIRGINIA;

DISABILITY RIGHTS MARYLAND; DISABILITY RIGHTS

OF WEST VIRGINIA; PROTECTION AND ADVOCACY FOR

PEOPLE WITH DISABILITIES, INC. OF SOUTH CAROLINA;

DISABILITY RIGHTS NORTH CAROLINA,

Amici Supporting Appellant.

INTERNATIONAL MUNICIPAL LAWYERS ASSOCIATION,

Amici Supporting Appellee.

————

Appeal from the United States District Court

for the District of Maryland, at Greenbelt.

Deborah K. Chasanow, Senior District Judge.

(8:11-cv-00951-DKC)

————

Argued: December 8, 2020

Decided: February 24, 2021

Before DIAZ, THACKER, and HARRIS, Circuit

Judges.

————

Vacated and remanded by published opinion. Judge

Diaz wrote the opinion, in which Judge Thacker and

Judge Harris joined.

————

ARGUED: Kevin Douglas Docherty, BROWN

GOLDSTEIN & LEVY, LLP, Baltimore, Maryland,

for Appellant. Patricia Lisehora Kane, OFFICE OF

THE COUNTY ATTORNEY, Rockville, Maryland, for

Appellee. ON BRIEF: Joseph B. Espo, BROWN

GOLDSTEIN & LEVY, LLP, Baltimore, Maryland;

Timothy Elder, Albert Elia, TRE LEGAL PRACTICE,

Fremont, California, for Appellant. Marc P. Hansen,

County Attorney, John P. Markovs, Deputy County

Attorney, Edward B. Lattner, Chief, Division of Human

Resources and Appeals, Patricia Victoria Haggerty,

Associate County Attorney, Erin J. Ashbarry, Associate

County Attorney, OFFICE OF THE COUNTY ATTORNEY, Rockville, Maryland, for Appellee. Steven

M. Traubert, Zachary Devore, Kalena C. M. Ek,

disABILITY LAW CENTER OF VIRGINIA, Richmond,

Virginia, for Amici The disAbility Law Center of

Virginia, Disability Rights Maryland, Disability

Rights of West Virginia, Protection and Advocacy for

People with Disabilities, Inc. of South Carolina, and

Disability Rights North Carolina.

————

DIAZ, Circuit Judge:

Yasmin Reyazuddin appeals the district court’s

order denying her motion seeking to recover reasonable attorney’s fees, costs, and expenses from

Montgomery County, Maryland. The district court

held that Reyazuddin isn’t eligible for such an award

because she’s not a “prevailing party” under 29 U.S.C.

§ 794a(b). Because we disagree, we vacate the order

and remand for further proceedings.

This case stems from Montgomery County’s failure

to reasonably accommodate Reyazuddin’s disability

(she is blind).1 In 2009, the County consolidated its

customer service employees into a single county-wide

call center, referred to as “MC 311.” At the time,

Reyazuddin worked as a customer service representative in the County’s health and human services

department. When the new call center opened, the

County didn’t transfer Reyazuddin along with her

colleagues because the software the County used at

the center wasn’t accessible to blind people. Instead,

Reyazuddin was offered (and worked) several alternate jobs for the County. But she wanted to resume

her customer service position at MC 311.

For additional background, see this court’s opinions in

Reyazuddin’s first and second appeals. Reyazuddin v.

Montgomery Cnty., 789 F.3d 407, 410–13 (4th Cir. 2015)

(“Reyazuddin I”); Reyazuddin v. Montgomery Cnty., 754 Fed.

Appx. 186, 188–89 (4th Cir. 2018) (“Reyazuddin II”).

Reyazuddin sued the County, alleging that it failed

to provide a reasonable accommodation for her disability. She brought claims under the Rehabilitation

Act and the Americans with Disabilities Act (the

“ADA”), seeking declaratory and injunctive relief as

well as compensatory damages. The district court

granted summary judgment to the County. In

Reyazuddin I, we affirmed the district court’s judgment with respect to Reyazuddin’s ADA claim but

remanded her Rehabilitation Act claim for trial.

A few months before trial, the County offered

Reyazuddin a job at the Columbia Lighthouse for

the Blind. Reyazuddin declined. The jury didn’t hear

about this job offer, as discovery closed before the

County made the offer and Reyazuddin opted to

confine her evidence at trial to events that occurred

prior to receiving it.

The jury found that the County discriminated

against Reyazuddin in violation of the Rehabilitation

Act. Specifically, the jury found that (1) Reyazuddin

is an individual with a disability; (2) the County

had notice of Reyazuddin’s disability; (3) Reyazuddin

could perform the essential functions of a customer

service representative with a reasonable accommodation either within or outside of MC 311; (4) the

County failed to provide a reasonable accommodation;

(5) the County’s failure to transfer Reyazuddin to

MC 311 was an adverse employment action; and

(6) it wasn’t an undue hardship for the County to make

MC 311 accessible for Reyazuddin. However, the jury

awarded Reyazuddin $0 in compensatory damages.2

After trial, Reyazuddin moved for an order requiring

the County to make MC 311 accessible and to transfer

her there. The district court determined that it needed

more information regarding what it would take for

the County to upgrade MC 311’s software and whether

the Columbia Lighthouse for the Blind job offer

constituted a reasonable accommodation such that the

County wouldn’t be required to transfer Reyazuddin to

MC 311. Thus, the court denied Reyazuddin preliminary injunctive relief and ordered discovery on her

equitable claims.

While discovery was ongoing, the County finally

transferred Reyazuddin to MC 311. Reyazuddin modified her request for injunctive relief and, after a

two-week evidentiary hearing, the district court

found that the County had reasonably accommodated

Reyazuddin and that its past discrimination was

isolated and unlikely to recur. Thus, the district court

denied Reyazuddin injunctive relief. It also declined

to issue a declaratory judgment because doing so would

have been superfluous to the jury’s verdict. Finally,

the court entered judgment in favor of Reyazuddin

and against the County for her Rehabilitation Act

claim “in the amount of $0.00 in compensatory damages.” J.A. 131. We affirmed the district court’s judgment in Reyazuddin II.

Shortly thereafter, Reyazuddin moved for an award

of reasonable attorney’s fees, costs, and expenses.

The district court subsequently granted a joint motion

by the parties to bifurcate briefing for the court

Reyazuddin sought damages only for emotional distress. She

didn’t request economic or nominal damages.

to determine two relevant questions separately:

(1) whether Reyazuddin is a “prevailing party” (making her eligible for such an award) and, if she is,

(2) how much the court should award Reyazuddin.

After the parties briefed the first question, the

district court held that Reyazuddin isn’t a “prevailing

party” and denied Reyazuddin’s motion on that basis.

Reyazuddin timely appealed.

II.

The sole issue before us is whether Reyazuddin is

a “prevailing party” under the Rehabilitation Act. The

Act provides that “[i]n any action or proceeding to

enforce or charge a violation” of a relevant provision,

the district court, “in its discretion, may allow the

prevailing party, other than the United States, a

reasonable attorney’s fee as part of the costs.” 29

U.S.C. § 794a(b).

The term “prevailing party” is a legal term of art

that we interpret consistently across all federal feeshifting statutes. Smyth ex rel. Smyth v. Rivero, 282

F.3d 268, 274 (4th Cir. 2002). We review de novo a

district court’s determination of whether someone is

a “prevailing party.” McAfee v. Boczar, 738 F.3d 81,

87–88 (4th Cir. 2013), as amended (Jan. 23, 2014).

Here, Reyazuddin won a jury verdict that found

the County liable for discrimination and entitled

Reyazuddin to equitable relief—at least until the

County capitulated by transferring her to MC 311. The

district court nonetheless concluded that Reyazuddin

isn’t a prevailing party because she didn’t obtain an

“enforceable judgment” that materially altered the

legal relationship between herself and the County.

J.A. 139–143 (citing Farrar v. Hobby, 506 U.S. 103

(1992); Hewitt v. Helms, 482 U.S. 755 (1987)). Thus,

the court reasoned that Reyazuddin is simply

advancing the “catalyst theory” that the Supreme

Court expressly rejected in Buckhannon Bd. & Care

Home v. W. Va. Dep’t of Health & Human Res., 532

U.S. 598 (2001). We disagree.

To begin, Farrar, Hewitt, and Buckhannon each

involved very different facts than those at issue here.

In Farrar, the Supreme Court considered “whether a

civil rights plaintiff who receives a nominal damages

award is a ‘prevailing party’ eligible to receive attorney’s fees” and answered in the affirmative. 506 U.S.

at 105. The Hewitt Court considered “whether a party

who litigates to judgment and loses on all of his claims

can nonetheless be a ‘prevailing party’ for purposes

of an award of attorney’s fees” and answered in

the negative. 482 U.S. at 757, 759–60. And the

Buckhannon Court considered “whether th[e] term

[‘prevailing party’] includes a party that has failed

to secure a judgment on the merits or a court-ordered

consent decree, but has nonetheless achieved the

desired result because the lawsuit brought about a

voluntary change in the defendant’s conduct.” 532 U.S.

at 600. The Court again answered in the negative.3 Id.

We think this case is more like Parham v.

Southwestern Bell Telephone Co., 433 F.2d 421 (8th

Cir. 1970). In fact, we think Reyazuddin is even more

of a “prevailing party” than the Parham plaintiff was.

There, the plaintiff didn’t prove his claim at trial;

rather, in reversing the district court’s dismissal in

The County also cites our decision in McAfee. But there,

neither party disputed that the plaintiff was a prevailing party,

as he had obtained both a jury verdict and a damages award.

McAfee, 738 F.3d at 88.

part, the Eighth Circuit “h[e]ld as a matter of law” that

the defendant company had discriminated against

black Americans in violation of Title VII. Parham, 433

F.2d at 427. But the court also affirmed the district

court’s denial of injunctive relief due to changes the

company made to its hiring practices after the plaintiff

sued. Id. at 429. Nonetheless, our sister circuit reasoned that the plaintiff’s “lawsuit acted as a catalyst

which prompted” the company to change its behavior

and determined that the plaintiff had “prevailed in his

contentions of racial discrimination against blacks

generally” such that he was entitled to reasonable

attorney’s fees.4 Id. at 429–30.

Despite this language, the Buckhannon majority

expressly approved of the Parham decision, distinguishing it from the “catalyst theory” cases that

Buckhannon overruled. 532 U.S. at 607 n.9. And

Justice Scalia elaborated on that approval in disputing

the dissent’s suggestion that the majority’s opinion

“approves the practice of denying attorney’s fees to a

plaintiff with a proven claim of discrimination, simply

because the very merit of his claim led the defendant

to capitulate before judgment.” Id. at 616 (Scalia, J.,

concurring). “To the contrary,” Justice Scalia clarified,

“the Court approves the result in [Parham], where

The Parham court also ordered the district court to “retain

jurisdiction over the matter for a reasonable period of time to

insure the continued implementation of the [defendant company’s] policy of equal employment opportunities.” Id. at 429. But

we don’t think the mere threat of future injunctive relief (via

retained jurisdiction) was any more of an “enforceable judgment”

than Reyazuddin’s jury verdict and subsequent judgment in her

favor. If the County were to return to its discriminatory ways,

Reyazuddin could reinvoke the district court’s jurisdiction simply

by filing a new lawsuit.

attorney’s fees were awarded after a finding that the

defendant had acted unlawfully.” Id. (cleaned up).

This reasoning supports our holding here.

Reyazuddin isn’t a prevailing party because she catalyzed the County to change its behavior by filing a

lawsuit; rather, she’s a prevailing party because she

proved her claim to a jury before the County capitulated by transferring her to MC 311. And that transfer

was key to the district court’s subsequent finding that

the County reasonably accommodated Reyazuddin

and, thus, the court’s ultimate denial of Reyazuddin’s

request for equitable relief.

We note that our holding today is narrow. Had the

County transferred Reyazuddin to MC 311 before

she proved that its refusal to do so amounted to

discrimination, this would be a classic catalyst theory

case. Likewise, had Reyazuddin sought only damages

against the County, her failure to obtain any would

mean she wasn’t a prevailing party. But it would be

unjust to hold that Reyazuddin didn’t prevail simply

because the County’s timely capitulation rendered

unnecessary equitable relief that Reyazuddin would

have otherwise been entitled to.5

* * *

Accordingly, we vacate the district court’s order

denying Reyazuddin’s motion and remand for further

proceedings consistent with this opinion.

VACATED AND REMANDED

We express no opinion on what amount (if any) Reyazuddin

is entitled to in attorney’s fees. That question is for the district

court to determine in the first instance.

10a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

[Filed: August 5, 2021]

————

No. 19-2144

(8:11-cv-00951-DKC)

————

YASMIN REYAZUDDIN

Plaintiff-Appellant

MONTGOMERY COUNTY, MARYLAND

Defendant-Appellee

THE DISABILITY LAW CENTER OF VIRGINIA;

DISABILITY RIGHTS MARYLAND; DISABILITY RIGHTS

OF WEST VIRGINIA; PROTECTION AND ADVOCACY FOR

PEOPLE WITH DISABILITIES, INC. OF SOUTH CAROLINA;

DISABILITY RIGHTS NORTH CAROLINA

Amici Supporting Appellant

INTERNATIONAL MUNICIPAL LAWYERS ASSOCIATION

Amicus Supporting Appellee

————

JUDGMENT

In accordance with the decision of this court, the

district court order entered September 19, 2019, is

vacated. This case is remanded to the district court

for further proceedings consistent with the court's

decision.

This judgment shall take effect upon issuance of this

court’s mandate in accordance with Fed. R. App. P. 41.

/s/ PATRICIA S. CONNOR, CLERK

11a

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

[Filed September 19, 2019]

————

Civil Action No. DKC 11-0951

————

YASMIN REYAZUDDIN

MONTGOMERY COUNTY, MARYLAND

————

ORDER

For the reasons stated in the foregoing Memorandum Opinion, it is this 19th day of September, 2019,

by the United States District Court for the District

of Maryland, ORDERED that:

1. Plaintiff’s motion for a finding that she is

entitled to an award of reasonable attorneys’ fees,

costs, and expenses (ECF No. 403) BE, and the same

hereby IS, DENIED; and

2. The clerk will transmit copies of the Memorandum Opinion and this Order to counsel for the parties.

/s/

DEBORAH K. CHASANOW

United States District Judge

12a

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

[Filed September 9, 2019]

————

Civil Action No. DKC 11-0951

————

YASMIN REYAZUDDIN

MONTGOMERY COUNTY, MARYLAND

————

MEMORANDUM OPINION

Presently pending and ready for resolution in this

disability discrimination case is Plaintiff Yasmin

Reyazuddin’s motion for a finding that she is entitled

to an award of reasonable attorneys’ fees, costs, and

expenses. (ECF No. 403). The issues have been fully

briefed, and the court now rules, no hearing being

deemed necessary. Local Rule 105.6. For the following

reasons, the motion will be denied.

I. Background

In April of 2011, Ms. Reyazuddin sued Defendant

Montgomery County (“Defendant” or the “County”) for

violation of § 504 of the Rehabilitation Act, 29 U.S.C.

§ 794. (ECF No. 1). Ms. Reyazuddin’s claim stemmed

from the County’s failure to accommodate her disability: Ms. Reyazuddin is blind. As alleged in the

complaint, as of 2009, the County employed Ms.

Reyazuddin as a customer service representative at a

County call center. When the County moved to a new

13a

call center (“MC311”), Ms. Reyazuddin was denied the

opportunity to make the move. The County’s new call

center came with new software, which was not then

accessible to the blind. (Id.) Instead, Ms. Reyazuddin

was placed in a series of alternate positions.

Ms. Reyazuddin sought declaratory and injunctive

relief from the County, as well as compensatory

damages, based on the Rehabilitation Act and the

Americans with Disabilities Act. In 2014, this court

granted summary judgment in favor of Montgomery

County. (ECF No. 108). Ms. Reyazuddin successfully

appealed with regard to the Rehabilitation Act

claim, (ECF No. 113), and, in 2016, the remaining

issues went to trial. The jury found that the County

had failed to provide a reasonable accommodation

but awarded $0 in damages. (ECF No. 221). Several

months later, the County finally transferred Ms.

Reyazuddin to MC311. (ECF No. 403, at 4). In August

2017, this court denied Ms. Reyazuddin’s request

for injunctive relief on the ground that she was no

longer employed in inadequate alternate positions

and was now employed at MC311. (ECF No. 353). The

court also declined to issue a declaratory judgment

because “[t]he jury made clear that Defendant’s

earlier accommodation was insufficient[]” and “[f]urther

expounding on the jury’s verdict would be superfluous[.]” (Id. at 41-42). Ms. Reyazuddin again appealed

and the Fourth Circuit affirmed this court’s judgment.

(ECF No. 398-1).

On January 18, 2019, Ms. Reyazuddin filed a motion

for attorneys’ fees claiming she is a “prevailing party”

under the Rehabilitation Act. (ECF No. 403).

14a

II. Analysis

Under the Rehabilitation Act, “[i]n any action or proceeding to enforce or charge a violation of a provision

of this subchapter, the court, in its discretion, may

allow the prevailing party, other than the United

States, a reasonable attorneys’ fee as part of the

costs.” 29 U.S.C. § 794a. “The term ‘prevailing party’. . .

is a ‘legal term of art,’ . . . and is ‘interpreted. . . consistently’ – that is, without distinctions based on the

particular statutory context in which it appears.”

Smyth ex rel. Smyth v. Rivero, 282 F.3d 268, 274 (4th

Cir. 2002) (quoting Buckhannon Bd. & Care Home,

Inc. v. W. Va. Dep’t of Health and Human Resources,

532 U.S. 598, 603 n. 4 (2001))(internal citations omitted).

To be considered a “prevailing party,” a plaintiff

must obtain “an enforceable judgment . . . or comparable relief through a consent decree or settlement.”

Farrar v. Hobby, 506 U.S. 103, 111 (1992) (internal

citations omitted). There is no consent decree or

settlement in this case. Thus, the only avenue open

to Ms. Reyazuddin is the first of the Farrar options:

an enforceable judgment. As will be discussed, while

Ms. Reyazuddin has won a judgment, it cannot be

characterized as an enforceable one sufficient to make

her a prevailing party.

Plaintiff relies on a case from the United States

Court of Appeals for the District of Columbia, Select

Milk Producers, Inc. v. Johanns, 400 F.3d 939, 947

(D.C. Cir. 2005), as well as a Fourth Circuit case,

Dennis v. Columbia Colleton Med. Ctr. Inc., 290 F.3d

639, 652-53 (4th Cir. 2002), for the proposition the

amount of damages is irrelevant. (ECF No. 406, at 3).

Justice O’Connor’s much-cited concurrence in Farrar,

which plaintiff relies on – and which forms the basis

of both Select Milk Producers and Dennis – makes

15a

clear that there is a difference between nominal

damages and no damages: there, the plaintiff “obtained an enforceable judgment for one dollar in nominal damages. One dollar is not exactly a bonanza,

but it constitutes relief on the merits. And it affects

the defendant’s behavior toward the plaintiff, if only

by forcing him to pay one dollar – something he

would not otherwise have done.” Farrar, 506 U.S. 103,

116–17 (O’Connor, J., concurring). In sum, to claim

“prevailing party” status, the judgment must “materially alter[] the legal relationship between the parties

by modifying the defendant’s behavior in a way that

directly benefits the plaintiff.” Id. at 111-12 (majority

opinion). One dollar technically accomplishes that

(even if it does not ultimately warrant an award of

attorneys’ fees), but zero dollars does not.

Put another way, “a judicial pronouncement that

the defendant has violated the [law],” standing alone,

“does not render the plaintiff a prevailing party.” Id.

at 112; see also Hewitt v. Helms, 482 U.S. 755, 762

(1987) (“the moral satisfaction of knowing that a federal court concluded that [a plaintiff’s] rights ha[ve]

been violated” is insufficient to render plaintiff a prevailing party”). There has been no material alteration

of the legal relationship between the parties by virtue

of a judgment in this case.

Plaintiff argues that her claim “is even stronger

than that of many other plaintiffs who have recovered

fees. For example, plaintiffs are routinely found to

be prevailing parties when a defendant settles[.]”

(ECF No. 403, at 5). Ms. Reyazuddin, however, can

point to no case in this circuit or out where a settlement alone was found to have the necessary “judicial

imprimatur” to render a plaintiff the “prevailing

16a

party.” All of Ms. Reyazuddin’s cited cases involve a

judicial grant of equitable relief.

The court has found, of course, that the County has

now reasonably accommodated Ms. Reyazuddin and

thus that Ms. Reyazuddin has achieved a measure of

success. That success, however, lacks the requisite

“judicial imprimatur.” Ms. Reyazuddin ultimately

did “prevail[] on the most significant issue in this

litigation (her request to be transferred to the MC311

Call Center with accommodations[.)]” (ECF No. 403,

at 11). Plaintiff may even be correct that “[t]he jury’s

verdict was the predicate for the relief that Ms.

Reyazuddin obtained.” (ECF No. 406, at 2) (emphasis

added). This, however, is just another way of saying

that “the jury’s verdict was the catalyst for the relief

that Ms. Reyazuddin obtained.”

In other words, Plaintiff is simply advancing the

“catalyst theory,” which “posits that a plaintiff is a

‘prevailing party’ if it achieves the desired result

because the lawsuit brought about a voluntary change

in the defendant’s conduct.” Buckhannon, 532 U.S. at

601. The Supreme Court has expressly held that “the

‘catalyst theory’ is not a permissible basis for the

award of attorney[s’] fees[.]” Id. at 610.

It bears repeating that “prevailing party” is a legal

term of art, and is not met even if Ms. Reyazuddin

has “prevailed” in the everyday meaning of the word.

Ms. Reyazuddin does not meet the legal definition of a

“prevailing party,” as there has been no “court-ordered

change in the legal relationship between the plaintiff

and the defendant.” Id. at 604 (internal citations and

quotations omitted).

17a

III. Conclusion

For the foregoing reasons, the motion for a finding

that Plaintiff is entitled to an award of reasonable

attorneys’ fees will be denied. A separate order will

follow.

/s/

DEBORAH K. CHASANOW

United States District Judge

18a

APPENDIX E

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

————

No. 17-2103

————

YASMIN REYAZUDDIN,

Plaintiff-Appellant,

MONTGOMERY COUNTY, MARYLAND,

Defendant-Appellee.

————

Appeal from the United States District Court

for the District of Maryland, at Greenbelt.

(8:11-cv-00951-DKC).

Deborah K. Chasanow,

Senior District Judge.

————

September 27, 2018, Argued;

November 21, 2018, Decided

————

19a

Counsel:

ARGUED:

Joseph B. Espo,

BROWN, GOLDSTEIN & LEVY, LLP,

Baltimore, Maryland, for Appellant.

Patricia Lisehora Kane,

OFFICE OF THE COUNTY ATTORNEY,

Rockville, Maryland, for Appellee.

ON BRIEF: Anthony J. May,

Jean M. Zachariasiewicz,

BROWN, GOLDSTEIN & LEVY, LLP,

Baltimore, Maryland; Albert Elia,

TRE LEGAL PRACTICE,

Fremont, California, for Appellant.

Marc P. Hansen, County Attorney,

John P. Markovs, Deputy County

Attorney, Patricia Victoria Haggerty,

Associate County Attorney, Erin J.

Ashbarry, Associate County Attorney,

Edward B. Lattner, Chief, Division

of Human Resources and Appeals,

OFFICE OF THE COUNTY ATTORNEY,

Rockville, Maryland, for Appellee.

Judges:

Before DIAZ, THACKER, and HARRIS,

Circuit Judges. Judge Diaz wrote the

opinion, in which Judge Thacker and

Judge Harris joined.

Opinion by: DIAZ

20a

OPINION

DIAZ, Circuit Judge:

Yasmin Reyazuddin appeals from a ruling that her

employer reasonably accommodated her for purposes

of the Rehabilitation Act. We hold that the district

court did not err in finding reasonable accommodation and in denying Reyazuddin equitable relief.

Accordingly, we affirm.

Yasmin Reyazuddin, who is completely blind,

answered calls at a call center for a Montgomery

County, Maryland, government department.1 She

used an audio program to access computer software.

In 2008, Reyazuddin’s supervisor told her the County

was consolidating its call centers into one location

called MC311. The supervisor noted Reyazuddin’s

accessibility concerns and assured her the County

would move her to MC311. But when the County

finally opened MC311, a manager put an indefinite

delay on Reyazuddin’s transfer because her audio

program was incompatible with MC311’s customer

service program, Siebel.

Reyazuddin then worked several jobs for the County

that several County officials described as insufficient

or not meaningful. At first, she answered intermittent

calls and processed food assistance referrals. Then

the department let her choose between a full-time job

in childcare resources and referral or a part-time job

in aging and disability. Reyazuddin chose the part1

For further background, see this court’s opinion in

Reyazuddin’s first appeal. Reyazuddin v. Montgomery County

(Reyazuddin I), 789 F.3d 407, 410-13 (4th Cir. 2015).

21a

time job. But she still wanted to work at MC311 as a

Customer Service Representative II (“CSR II”). CSR

IIs typically answer both ordinary customer service

calls (“Tier I calls”) and calls that require specialized

knowledge or databases (“Tier II calls”).

Believing the County discriminated against her

based on disability when it refused to transfer her to

MC311 as a CSR II, Reyazuddin sued the County

under the Rehabilitation Act and Title II of the

Americans with Disabilities Act (“ADA”). The district

court granted the County summary judgment on all

claims. This court affirmed on the ADA Title II claim

but remanded the Rehabilitation Act claims for trial.

A few months before trial, the County offered

Reyazuddin a job at the Columbia Lighthouse for the

Blind, which she declined.

When the trial concluded, the jury found that the

County failed to accommodate Reyazuddin’s disability,

rejecting the County’s undue burden defense. The jury

found that Reyazuddin could perform all essential

functions of a CSR II at MC311. But it awarded

Reyazuddin $0 in damages. After the jury verdict, the

district court considered Reyazuddin’s demands for

equitable relief.

Before the district court heard evidence, the County

transferred Reyazuddin to MC311 as a CSR II. She

maintained her salary and benefits and got seniority

at MC311 dating back to 2009. She received extensive

training, but Siebel remained inaccessible.

At MC311, Reyazuddin answered calls through a

landline instead of through Siebel’s interface. She

couldn’t check or set her “aux” code, which displayed

her availability for calls. She accessed internal articles

on a spreadsheet instead of on Siebel. And she had to

22a

use the external portal on MC311’s public site instead

of the internal portal on Siebel. On the public site

she had to pass a test (which gave her trouble) to

prove she was a human user. And she couldn’t use

digital maps maintained on Siebel.

But the County worked to improve the accessibility problems. Before the bench trial, the County developed the Internal Web Accommodation Application

(“IWAA”), an alternative to Siebel. Reyazuddin can

access it without having to pass a test. Through

IWAA, Reyazuddin can now access all internal articles

and instructions. During the bench trial, the County

discovered and fixed the problem with Reyazuddin’s

aux code.

Some differences remain. CSR IIs normally take

both Tier I and Tier II calls. While Reyazuddin temporarily handled Tier I calls, she found the volume of

calls overwhelming and now she only takes Tier II

calls. Because she can’t access Siebel, Reyazuddin

doesn’t receive partially completed service requests

when a CSR I forwards her a call. Instead, she must

start a new service request. Unlike other CSR IIs,

Reyazuddin must submit her service requests before

hanging up, so she can’t edit them after the call. Nor

can she directly do quality review on her requests.

Instead, she must email suggestions to her supervisor, who can enter corrections. Reyazuddin can access

only two of about twelve digital maps. And without

access to Siebel, she can’t work remotely during

inclement weather. The County could solve many of

these problems by upgrading Siebel. But while the

County has a contract with Siebel’s developer to

upgrade the system, it hasn’t identified when it will

complete it.

23a

Nonetheless, the district court held that the

County had reasonably accommodated Reyazuddin. It

found that she could perform to the same level as her

coworkers and faced no barriers to advancement. The

court denied Reyazuddin all equitable relief because it

considered the discrimination isolated and unlikely to

recur.

Reyazuddin now appeals, contending that the

district court erred in finding reasonable accommodation and erred by denying injunctive and declaratory

relief.

II.

Reyazuddin first contends that the district court

erred in finding that the County reasonably accommodated her at MC311. The Rehabilitation Act requires

the County to accommodate Reyazuddin if she can

perform a job’s essential functions. See 29 U.S.C.

§ 794; Reyazuddin I, 789 F.3d at 409. When the

district court determined the essential functions of a

CSR II and found reasonable accommodation, it made

findings of fact. See Pandazides v. Va. Bd. of Educ., 13

F.3d 823, 833 (4th Cir. 1994). We review these findings

of fact for clear error and will not reverse a finding if

it “is plausible in light of the record viewed in its

entirety.” TFWS, Inc. v. Franchot, 572 F.3d 186, 196

(4th Cir. 2009) (quoting Anderson v. Bessemer City,

470 U.S. 564, 573-74, 105 S. Ct. 1504, 84 L. Ed. 2d 518

(1985)).

The Rehabilitation Act requires reasonable accommodations unless it would be an undue burden. See

42 U.S.C. § 12112; 29 C.F.R. § 1630.9.2 Reasonable

We cite authorities for both the Rehabilitation Act and the

ADA, which contain identical standards regarding the issues in

24a

accommodations must enable an employee with a

disability to perform essential job functions and to

enjoy equal job privileges. See 29 C.F.R. § 1630.2(o).

Essential functions are “the fundamental job duties”

of a position. Id. § 1630.2(n)(1). To determine whether

a function is essential, we consider the employer’s

judgment, written job descriptions, and other defined

factors. 29 C.F.R. § 1630.2(n)(3); 42 U.S.C. § 12111(8);

see also Jacobs v. N.C. Admin. Office of the Courts,

780 F.3d 562, 579 (4th Cir. 2015).

Reasonable accommodations can include reallocating marginal functions to another employee. See

42 U.S.C. § 12111(9)(B); 29 C.F.R. § 1630.2(o)(2)(ii);

Benson v. Nw. Airlines, Inc., 62 F.3d 1108, 1112-13

(8th Cir. 1995). And while an “employer never has

to reallocate essential functions,” it may “do so if it

wishes.” U.S. Equal Emp. Opportunity Comm’n, No.

915.002, Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans

with Disabilities Act (2002), https://www.eeoc.gov/

policy/docs/accommodation.html#job (last visited Nov.

9, 2018) (saved as ECF opinion attachment). Beyond

reallocation, an employer may change how and when

an employee performs an essential function. See 29

C.F.R. § 1630 app. Courts should not discourage

employers from going beyond the Rehabilitation Act’s

requirements and restructuring essential functions as

accommodation. See Phelps v. Optima Health, Inc.,

251 F.3d 21, 26-27 (1st Cir. 2001); Holbrook v. City of

Alpharetta, 112 F.3d 1522, 1528 (11th Cir. 1977).

Reyazuddin gives three reasons why the County

has not reasonably accommodated her. First, it has

this case. See Constantine v. Rectors & Visitors of George Mason

Univ., 411 F.3d 474, 498 & n.17 (4th Cir. 2005).

25a

eliminated essential functions of her job. Second, it

has limited her job performance. And third, it has

denied her opportunities for advancement. All three

arguments are unavailing.

First, the County’s restructuring of Reyazuddin’s job

was a reasonable accommodation. It is true that

Reyazuddin doesn’t answer Tier I calls, must reenter

some information after receiving a forwarded service

request, and can’t use most digital maps or do direct

quality review. But to the extent these functions are

essential,3 the district court correctly observed that

the Rehabilitation Act doesn’t require that

Reyazuddin perform them the same way as her

coworkers.4 Because the County’s accommodations do

not change her job, they are acceptable alterations to

when and how Reyazuddin performs an essential

function. See 29 C.F.R. § 1630 app.

The County restricted Reyazuddin to Tier II calls

to keep her from getting overwhelmed and to focus

her work on calls she is best equipped to handle. As

part of an accommodation, employers may shift an

employee’s duties to fit their skills and capabilities.

See, e.g., Bunn v. Khory Enters., Inc., 753 F.3d 676, 680

(7th Cir. 2014) (deploying employee to single duty

station instead of rotating him between stations);

Basith v. Cook County, 241 F.3d 919, 930, 932 (7th Cir.

The district court was somewhat unclear on this point. See

Reyazuddin v. Montgomery County, 276 F. Supp. 3d 462, 475-77

(D. Md. 2017).

The district court relied in part on interpretive guidance

regarding supported employment. See Reyazuddin, 279 F. Supp.

3d at 476. That guidance is inapplicable to this case, but it doesn’t

affect the outcome. See 29 C.F.R. § 1630 app. (defining supported

employment); 42 U.S.C. § 15002(30) (defining supported employment services).

26a

2001) (moving employee to alternative shift with different duties). Moreover, the written job description

doesn’t require CSR IIs to answer Tier II calls from

all departments or any Tier I calls at all.

The Ninth Circuit case Reyazuddin cites in support

is inapposite. See Cripe v. City of San Jose, 261 F.3d

877 (9th Cir. 2001). First, it concerned different issues:

whether the plaintiffs could perform essential job

functions and whether the employer unlawfully segregated them. Id. at 888-90. And second, the Cripe

employer forced disabled employees into a distinct job

with no meaningful employment opportunities. See id.

at 882-83. In contrast, Reyazuddin performs the same

job as her peers—answering customer service calls.

She just performs it differently.

Second, the County hasn’t limited Reyazuddin’s job

performance. Her employment opportunities are

meaningfully equal to those of her peers. All CSR IIs

receive Tier II calls from some departments and not

others. And the fact that (at least for now) Reyazuddin

doesn’t receive Tier I calls hardly limits her performance: she still has many Tier II calls to answer. The

technical alterations made by the County, such as not

receiving forwarded service requests, do not change

her overall performance. And the accommodations

haven’t affected Reyazuddin’s salary or benefits. True,

Reyazuddin can’t telework during inclement weather.

But teleworking is at the County’s discretion: no

employee has a right to it.5 And when an employee

can’t reach the office, teleworking is for the County’s

The fact that Reyazuddin can’t currently telework because

she is on a Work Improvement Plan is irrelevant. The question

is whether the County would have to provide teleworking accommodations if she were otherwise eligible.

27a

benefit, not the employee’s. So the inability to telework

doesn’t limit Reyazuddin’s employment opportunities.

Third, the County has not denied Reyazuddin any

opportunity for advancement. The requirements to

advance are minimal. To advance to CSR Supervisor,

an employee only needs four years of customer service

experience with the County (at least two as a

CSR II) and familiarity with the systems in MC311.

Reyazuddin can be promoted if she does well in her

duties and develops supervisory skills. Unlike in

Cripe, the County hasn’t imposed a functional bar on

advancement for disabled employees. See 261 F.3d at

882, 894. And while Reyazuddin contends that the

County requires a vision test for promotion to CSR II,

County regulations say otherwise. See Montgomery

County, Md., Reg. § 33.07.01.08-6(b)(2)(B)(i)—(ii).

The district court did not err in finding reasonable

accommodation.6

III.

Reyazuddin next contends that the district court

erred by denying her injunctive relief. Reyazuddin

asked for two injunctions. First, she requested a mandatory injunction requiring the County to assign her

Tier I calls and make Siebel and the digital maps

accessible. Second, she requested a prohibitory

injunction forbidding the County from discriminating

against her again.

The County also argues that it made a reasonable accommodation when it offered to move Reyazuddin to Columbia Lighthouse for the Blind. Given our disposition, we (like the district

court) need not address this argument. See Reyazuddin, 279 F.

Supp. 3d at 477 n.5.

28a

We review a district court’s denial of an injunction

for abuse of discretion. See Nat’l Fed’n of the Blind v.

Lamone, 813 F.3d 494, 502 (4th Cir. 2016). Reyazuddin

contends that the district court erred in two ways.

First, Reyazuddin says the district court lacked discretion to deny injunctive relief because the jury

found that the County had discriminated against her.

Second, even if the district court had discretion, it

abused it here because the County systematically

discriminated against Reyazuddin and would not

accommodate her without litigation. We reject both

arguments.

Regarding the first argument, a district court

generally has broad discretion to fashion a remedy

that will “eliminate past discrimination and bar discrimination in the future.” United States v. County of

Fairfax, 629 F.2d 932, 941 (4th Cir. 1980); see also

Albemarle Paper Co. v. Moody, 422 U.S. 405, 418, 95

S. Ct. 2362, 45 L. Ed. 2d 280 (1975). Seeking to cabin

that discretion, Reyazuddin relies on a statement

from this court that “when a plaintiff has prevailed

and established the defendant’s liability under Title

VII, there is no discretion to deny injunctive relief

completely.” United States v. Gregory, 871 F.2d 1239,

1246 (4th Cir. 1989).

While phrased in absolute terms, we do not believe

Gregory intended to eliminate a district court’s discretion in granting equitable relief.7 We note that our

decision cited Supreme Court and circuit precedents

that don’t require injunctions in all civil rights cases.

See id. (citing Albemarle Paper, 422 U.S. at 418;

Reyazuddin also relies on King v. McMillan, 594 F.3d 301,

310 (4th Cir. 2010). But King cites Gregory for an unrelated proposition, and King‘s holding has no bearing on this case.

29a

County of Fairfax, 629 F.2d at 941-42). Moreover, this

court has affirmed the denial of injunctions in other

civil rights cases. See Spencer v. Gen. Elec. Co., 894

F.2d 651, 660 (4th Cir. 1990), abrogated on other

grounds by Farrar v. Hobby, 506 U.S. 103, 108 n.2, 113

S. Ct. 566, 121 L. Ed. 2d 494 (1992). In short, we’ve not

limited district courts’ discretion to fashion remedies

in civil rights cases, and we decline to do so now.8

Nor do we believe that the district court abused its

discretion here. An injunction is proper if “there exists

some cognizable danger of recurrent violation.” United

States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S. Ct.

894, 97 L. Ed. 1303 (1953). In a discrimination case,

an injunction is most appropriate when the employer

has failed to adequately remedy the discrimination

and prevent its recurrence. See Gregory, 871 F.2d at

1247; County of Fairfax, 629 F.2d at 941. If the

discrimination is unlikely to recur, we “should defer to

the lower court’s choice in crafting appropriate relief.”

Spencer, 894 F.2d at 660.

In this case, the County has acted in good faith to

remedy past discrimination and prevent its recurrence. As a result, a mandatory injunction requiring

further accommodation is unnecessary.9 And a prohibitory injunction would serve little purpose. The County

never denied that it had to accommodate Reyazuddin;

it only disputed the method. The County made

several accommodations without a court order. It

offered Reyazuddin a new job before the jury trial,

Given our holding, the parties’ dispute over whether

Reyazuddin “prevailed” in the district court is irrelevant.

Of course, the County can voluntarily make further accommodations, such as upgrading Siebel to make it accessible. But on

this record, the County’s current accommodations are sufficient.

30a

moved her to MC311 and spent money and time on

accommodations before the bench trial, and fixed the

aux code problem during the bench trial. And the

discrimination related to a one-time event—the

organization of MC311. It is unlikely to recur. Finally,

while the problem was less isolated than in Spencer, it

lacked the systematic and persistent quality found in

Gregory and County of Fairfax.

The district court acted well within its discretion in

declining to enter an injunction.

IV.

Reyazuddin contends last that the district court

erred by denying her declaratory relief. She sought

a declaration—based on the jury verdict—that the

County discriminated against her. A district court

should issue a declaration when it will help in

“clarifying and settling” legal relationships and will

“terminate and afford relief from the uncertainty,

insecurity, and controversy” driving the suit. Aetna

Cas. & Sur. Co. v. Ind-Com Elec. Co., 139 F.3d 419,

423 (4th Cir. 1998) (quoting Aetna Cas. & Sur. Co. v.

Quarles, 92 F.2d 321, 325 (4th Cir. 1937)). We review

the denial of a declaration for abuse of discretion. See

id. at 421.

The jury found that the County discriminated by

refusing to transfer Reyazuddin to MC311. That

verdict now has limited relevance because the County

has accommodated Reyazuddin. Expounding on it

would be superfluous as it would “neither clarify any

issue of law . . . nor provide relief from uncertainty.”

Pitrolo v. County of Buncombe, 589 F. App’x 619, 621

(4th Cir. 2014). The district court thus did not abuse

its discretion in denying this form of equitable relief.

31a

The district court did not err in finding that

Montgomery County reasonably accommodated

Reyazuddin. Nor did it abuse its discretion by denying

her injunctive and declaratory relief. Accordingly, the

district court’s judgment is affirmed.

AFFIRMED

32a

APPENDIX F

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF MARYLAND

————

Civil Action No. DKC 11-0951

————

YASMIN REYAZUDDIN

MONTGOMERY COUNTY, MARYLAND

————

August 21, 2017, Filed

————

Counsel:

For Yasmin Reyazuddin, Plaintiff: Albert

Elia, Daniel Frank Goldstein, Joseph B

Espo, Brown Goldstein and Levy, LLP,

Baltimore, MD; Timothy R Elder, TRE

Legal Practice, Fremont, CA.

For Montgomery County, Maryland,

Defendant: Patricia Victoria Haggerty,

Office of the County Attorney for

Montgomery County, Marylan, Rockville,

MD; Patricia Lisehora Kane, Office of the

Montgomery County Attorney, Rockville,

MD.

For Array Information Technology, Inc.,

Movant: Russell James Gaspar, Cohen

Mohr LLP, Washington, DC.

Judges:

DEBORAH K. CHASANOW,

United States District Judge.

Opinion by: DEBORAH K. CHASANOW

33a

MEMORANDUM OPINION

After more than six years of litigation in this

employment discrimination case, the remaining

issues of declaratory and injunctive relief are ready

for resolution.

I. Background

In April 2011, Plaintiff Yasmin Reyazuddin (“Plaintiff”), a Montgomery County employee since 2002,

brought the instant suit in which she has brought

claims under Section 504 of the Rehabilitation Act of

1973, 29 U.S.C. § 794 and the Americans with

Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq.

(ECF No. 1). In early 2008, Defendant Montgomery

County, Maryland (“Defendant” or “the County”)

began a reorganization of the County’s customer

service employees from various executive departments

to a single county-wide call center, referred to as “MC

311.” At that time, Plaintiff worked as an Information

and Referral Specialist in the County’s Health and

Human Services Department (“HHS”). Although her

colleagues in the same or similar positions were

transferred to MC 311 as Customer Service Representatives (“CSRs”) when the call center finally

opened in the fall of 2009, Plaintiff, who is blind, was

not transferred to the call center because the County

thought it would be too burdensome to make the

tools and software used by CSRs accessible to her.

Instead, Plaintiff was transferred to two positions

within the Aging and Disabilities Services (“ADS”)

section of HHS. Her discrimination claims faulted

the County for failing to provide a reasonable accommodation for her disability that would allow her to

transfer to MC 311 as a CSR with her non-disabled

peers.

34a

During a February 2016 jury trial, Plaintiff presented evidence that her ADS positions failed to

provide her with consistent, meaningful work and

that she could have performed the job duties of a

CSR with a reasonable accommodation. The court

instructed the jury to consider, inter alia, whether

Plaintiff could perform “[t]he essential job functions . . .

routinely performed by individuals in the MC 311

call center.” (ECF No. 212, at 11). The jury found

that Plaintiff could perform the essential functions of

a CSR with a reasonable accommodation and that

Defendant had failed to provide a reasonable accommodation for her disability. (ECF No. 221). The jury

also reviewed and rejected Defendant’s affirmative

defense that it would have been an undue hardship “to

implement the software accommodations Plaintiff

had requested.” (Id.; ECF No. 212, at 13-14). It determined, however, that Plaintiff had sustained zero

dollars in damages. (ECF No. 221).

Plaintiff’s complaint also sought injunctive and

declaratory relief. (ECF Nos. 1, at 8-9; 58, at 10).

After the jury trial, Plaintiff moved for an order

requiring Defendant to make MC 311 accessible and

to give Plaintiff a job as a CSR, consistent with the

position she would have been in had the discrimination not occurred. (ECF No. 228, at 7). Defendant

argued, first, that injunctive relief was inappropriate

and, second, that Plaintiff’s entitlement to a reasonable accommodation had been satisfied when the

County offered Plaintiff a position at the Columbia

Lighthouse for the Blind (“CLB”) in October 2015.

(ECF No. 229). This offer, which Plaintiff rejected,

was made during the litigation. Rather than incorporate that offer into the then-upcoming jury trial,

Plaintiff limited her claims at that trial to the County’s

conduct and her damages up until the October 2015

35a

offer of a position at CLB. (See id. at 7-8). Whether

the CLB position was a reasonable accommodation

was therefore not considered by the jury. Thus, notwithstanding the jury’s verdict that the ADS positions

were not a reasonable accommodation, Plaintiff’s

initial motion for injunctive relief was denied because

she had not demonstrated that the CLB offer had

not extinguished any entitlement she might have had

to injunctive relief. (ECF Nos. 235, at 1; 246, at 61-63).

The parties proceeded to discovery to litigate Plaintiff’s equitable claims in May 2016. (ECF Nos. 236;

238; 241).

While discovery related to the CLB offer was

ongoing, Defendant notified Plaintiff that she would

be transferred to MC 311. (ECF No. 258-1, at 1). This

transfer occurred on October 26, 2016, and Plaintiff is

now employed as a CSR II at MC 311. Defendant

then moved to stay discovery to brief whether

Plaintiff’s claims had been mooted by her transfer.

(ECF No. 258). The court granted the stay temporarily

and ultimately determined that an evidentiary hearing was necessary to resolve Plaintiff’s request for

injunctive relief in light of her new position. (ECF

Nos. 262; 266). In advance of that hearing, Plaintiff

filed a new motion for injunctive relief and a motion

for partial summary judgment as to the CLB job offer.

(ECF Nos. 295; 296). Defendant filed a motion to

dismiss or for summary judgment. (ECF No. 300).

Each of these motions was briefed in full by the

parties, and the court deferred consideration of the

motions. (ECF Nos. 304; 310; 311; 315; 316; 319; 322).

In light of Plaintiff’s current placement, she has

modified her request for injunctive relief. Although

she is working at MC 311, Plaintiff argues that

Defendant continues to discriminate against her.

36a

Specifically, Plaintiff contends that differences

between her job duties as a CSR and the duties of

other CSRs constitute an ongoing failure to provide a

reasonable accommodation. Plaintiff currently seeks:

(1) a declaration that Defendant discriminated against

her because of her blindness and (2) a permanent

injunction ordering the County to make certain

technology systems accessible to her and prohibiting it

from allowing the accessibility of currently accessible

systems to lapse. (See ECF Nos. 295; 351). The issues

were briefed in dispositive motions on injunctive relief

and mootness, and an evidentiary hearing was held

from April 19 to April 28, 2017. (See ECF Nos. 295;

300; 310; 311; 316; 319; 328; 329; 330; 331; 332; 346;

348). Upon consideration of the evidence adduced at

the jury trial and the evidentiary hearing, as well as

the parties’ arguments with respect thereto, the court

now issues findings of fact and conclusions of law

pursuant to Federal Rule of Civil Procedure 52(a).1

II. Mootness

Defendant contends that the Plaintiff’s claim is now

moot because she has been placed at MC 311 as a CSR

as she originally requested. The mootness doctrine

applies “when the issues presented are no longer ‘live’

or the parties lack a legally cognizable interest in the

outcome.” Simmons v. United Mortg. & Loan Inv.,

LLC, 634 F.3d 754, 763 (4th Cir. 2011) (citing United

States v. Hardy, 545 F.3d 280, 283 (4th Cir. 2008)).

Mootness deprives a court of jurisdiction over a case.

Rule 52(a) provides, in relevant part, that “[i]n an action

tried on the facts without a jury . . . , the court must find the facts

specially and state its conclusions of law separately. The findings

and conclusions . . . may appear in an opinion or a memorandum

of decision filed by the court.”

37a

“If intervening factual or legal events effectively dispel

the case or controversy during the pendency of the

suit, the federal courts are powerless to decide the

questions presented.” Ross v. Reed, 719 F.2d 689, 69394 (4th Cir. 1983).

In its motion papers, the County argues that there

is no “ongoing case or controversy [] involving her

requested injunctive relief — to be instated as a CSR

II at MC 311.” (ECF No. 300-2, at 24). The County

claims that it has remedied the injury that Plaintiff

had previously suffered. (Id. at 26-27). It contends that

the County provided the relief Plaintiff sought when it

“voluntarily transferred Plaintiff to MC 311 and []

invested hundreds of hours of employee and contractor

time to facilitate Plaintiff’s transition into working as

a CSR II at MC 311.” (Id. at 26).

It is undisputed that Plaintiff is working at MC

311 and her job title is CSR II, but these facts alone

are insufficient to moot Plaintiff’s claims for injunctive relief without review of the merits. Defendant’s

argument relies on the factual and legal determinations presently before the court, specifically, whether

her current role provides her with a meaningful equal

employment opportunity as required by the ADA.

Here, if Plaintiff could prove her claim that, in spite

of her change in location and job title, Defendant’s

refusal to make certain technological tools fully

accessible to her constituted a failure to provide her

with a reasonable accommodation, she would have a

“live” claim for injunctive relief. Only if Defendant is

correct that it is now complying with its legal

requirements under the ADA would the controversy

cease to exist. Mootness occurs when the resolution

of the issues presented in the case would not effectuate

a remedy, even if the claims were resolved in the

38a

plaintiff’s favor. Because Defendant’s mootness argument hinges on the merits of whether Plaintiff’s

current placement satisfies the requirements of the

ADA, the case clearly is not moot.

III. Facts from Evidence Presented at the Jury Trial

and the Evidentiary Hearing2

At the evidentiary hearing, Plaintiff presented fact

testimony from Dieter Klinger, Katherine Johnson,

Chris Daniel, Stephen Heissner, and Jay Kenney.

These witnesses and others at the evidentiary hearing

testified primarily as to the workings of MC 311 and

differences between Plaintiff’s CSR II role and that of

other CSR IIs. Defendant presented fact testimony

from Plaintiff, Mr. Klinger, Mr. Daniel, Mr. Heissner,

Mr. Kenney, Chris Turner, Robert Sinkler, William

Potter, Kim Alfonso, Vivian Green, and Leslie Hamm.

Most of Defendant’s fact witnesses are either employees of MC 311 who supervised or trained Plaintiff or

other County employees, primarily in the Department

of Technology Services (“DTS”), who helped provide

technology accommodations for Plaintiff. They testified as to the variety of ways that Defendant has

already accommodated Plaintiff in her new position.

The parties’ experts testified as to whether it was

These findings are based on the evidence presented at the

jury trial and the evidentiary hearing. At the latter, the parties

presented limited live testimony and submitted deposition testimony from numerous witnesses. Most evidentiary objections

were raised during the hearing and resolved. A few objections

were noted for later resolution and remained at the conclusion of

the hearing. None of those remaining objections pertain to evidence that is germane to the rulings announced in this opinion,

and, accordingly, to the extent any pending objections remain,

they are denied as moot.

39a

possible and at what costs, in terms of time and

money, to make certain systems accessible to Plaintiff.

a. The MC 311 Call Center

MC 311 uses a software system produced by Oracle

Corporation called Seibel to track and respond to

incoming calls. The County currently uses version

8.2.2.4 of Siebel, a newer version than the one considered in the jury trial. Version 8.2.2.4 is not the

newest version of Seibel, however. At least two

updated versions, referred to as Innovation Pack 15

and Innovation Pack 16 (“IP 16”), exist and would

increase the accessibility of the system to blind users.

The County has a contract in place to upgrade to IP 16

and expects to implement it by the end of 2017.

Seibel has two interfaces: a public portal, through

which County residents can submit requests online,

and an internal portal, through which CSRs submit

service requests on behalf of the people who call MC

311. The internal portal is more comprehensive than

the public portal. While using the internal portal, for

example, CSRs read through Knowledge-Based

Articles (“KBAs”), pre-written instructions, based on

a caller’s request type, for how appropriately to answer

the caller’s question and submit the service request.

The internal portal is also integrated with the

County’s phone system, which provides CSRs with

a series of tools, referred to as the CTI Toolbar, that

help manage calls, transfer caller information, and

monitor CSR status. After a request is submitted, it

goes to the appropriate County department to be

resolved. Seibel assigns each service request a reference number that can be tracked by the resident or

other CSRs to check progress on the request.

40a

The call center divides calls into two “Tiers” based

on the types of knowledge and software necessary to

respond to them. Tier 1 calls are calls related to any

department that can be answered easily by most

CSRs. These calls include many of the most common

requests and are generally resolved using only the

Seibel system, KBAs, and a series of interactive maps.

Certain other calls require the CSR to use supplementary software and databases related to several

departments including HHS (CARES), the Permitting

Services Department (Hansen), the Finance Department (Munis), as well as Human Resources for

County employees. Some of those systems are created

and maintained by other entities, separate from

Montgomery County. In addition to creating service

requests in Seibel, CSRs answering these calls must

provide specialized information as to the types of

services available and must know how to use these

department-specific databases. MC 311 refers to these

more complicated calls as Tier 2 calls. All calls enter

the system as Tier 1 calls because the call center

does not know why a resident is calling before

answering the call; calls are then reassigned as Tier 2

if necessary.

MC 311 employs two corresponding types of CSRs.

A CSR I can assist with Tier 1 requests but not Tier 2

requests. They answer all calls as they come in and

directly respond to any Tier 1 inquiries. If answering

a caller’s question requires the specialized training

and database access for one of the Tier 2 departments,

the CSR I will place the call into the Tier 2 queue

specific to the appropriate Tier 2 department. The

caller will then be transferred to a line that will be

answered by someone trained to assist with that type

of Tier 2 call.

41a

Those CSRs who can answer Tier 2 calls are called

CSR IIs. Most CSR IIs are trained in more than one,

but not usually all four, of the departments. Thus, a

single CSR II might answer calls from, for example,

both the HHS and Permitting Departments. CSR IIs

generally are also able to answer Tier 1 calls. The call

center’s phone system will first route any Tier 2 calls

to a CSR II trained in that queue. If there are no

callers waiting in a CSR II’s Tier 2 queues, the system

will instead send Tier 1 calls to that CSR II.

b. Plaintiff’s Current Position

Plaintiff now works at MC 311 as a CSR II. She is

assigned only one of the Tier 2 queues, HHS calls.

Unlike other CSR IIs, Plaintiff does not receive Tier 1

calls because she cannot currently access the internal

portal of the Seibel system or the interactive maps.

Because she can only answer Tier 2 HHS calls,

Defendant has set the phone system to make Plaintiff

the primary recipient in the queue of these calls; no

other CSR II will receive a Tier 2 HHS call unless

Plaintiff is occupied. In addition to the Tier 2 HHS

calls she is currently receiving, Plaintiff has the

capability to receive Tier 1 calls for the HHS department. Plaintiff has not been trained to take other

types of calls.

Plaintiff looks up information and submits service

requests using a screen reader called JAWS, an

acronym for Job Access With Speech, which reads

aloud to a blind user the information that is displayed

on a screen for sighted users. JAWS also allows a

blind user to set shortcuts for navigating a page using

specific key combinations, which helps users bypass

the default navigation of the page that sometimes

leads through cumbersome paths or to dead-ends. The

process of setting up JAWS to read and navigate a

42a

page effectively is called “scripting.” Plaintiff uses a

customized JAWS-scripted public portal on a nonpublic County application designed for her. The

parties refer to this system as the Internal Web

Accommodation Application (“IWAA”).

Plaintiff’s CSR II role differs from that of other

CSR IIs in a variety of ways. Most importantly,

Plaintiff does not have access to the Seibel system’s

internal portal, the CTI Toolbar, or the specialized

maps, and, therefore, Plaintiff is not assigned to

answer any general Tier 1 calls. Additionally, there

are several differences between the tools Plaintiff uses

to respond to her Tier 2 HHS inquiries and the tools

that other CSR IIs answering the same calls use.

CSR IIs using the CTI Toolbar receive the caller’s

name and zip code from the Tier 1 CSR who transferred the caller into the HHS Tier 2 queue, but

Plaintiff does not receive this information and must

ask the caller for it herself. While the internal portal

creates a service request number for other CSRs at

the beginning of the request creation process, the

IWAA does not produce a service request number until

the request has been submitted. As a result, Plaintiff

must fully submit the request before ending the call

in order to provide the caller with the service request

number for future reference. To review and correct

her requests after hanging up the call, a process

referred to as “quality review,” Plaintiff must ask her

supervisor to process any changes. Other CSRs also

have the capability to telework, but Plaintiff does

not. Finally, the CTI Toolbar interfaces with the

County’s phone system to notify sighted CSRs of their

status in the queue — that is, whether they are ready

to receive calls — using what the County calls

AUX codes. Plaintiff did not have a method of accurately checking her AUX code status until the County

43a

implemented a new system for her during the

evidentiary hearing.

Defendant’s fact witnesses testified as to the numerous ways that Defendant has already accommodated

Plaintiff in her role as a CSR II. First, to facilitate

Plaintiff’s new role, the County moved from HHS to

MC 311 her computer, JAWS screen reader software,

and other equipment, including a braille display and

printer. The County hired a contractor to script the

HHS Tier 2 software database, CARES, for a JAWS

user. It also hired Thomas Logan, Defendant’s accessibility expert witness, to educate several employees,

including Mr. Turner and Mr. Sinkler, about JAWS

usage so that they could train and manage Plaintiff.

Second, Defendant has customized a series of applications to enable Plaintiff to enter service requests.

When Plaintiff was initially transferred to MC 311,

she was given an Excel spreadsheet with the KBAs

and instructed to submit service requests on behalf of

callers through the public portal of Seibel. This

workflow design proved to be difficult for Plaintiff

because she had to answer a CAPTCHA with each

request. CAPTCHA, the robot-preventing software

that typically shows a picture of a number or word

and asks the user to type that number or word into a

blank field, has an accessible solution for blind users,

but, for reasons not discussed by the parties, Plaintiff

was unable to answer the CAPTCHA correctly on a

consistent basis. In order to resolve the CAPTCHA

issue, Defendant’s DTS employees developed and

implemented the IWAA, which allowed Plaintiff to

submit requests through a similar, but non-public,

portal without answering a CAPTCHA. Because the

IWAA was a custom solution tailored especially to

Plaintiff, it was designed to allow her to access the

44a

content necessary to respond to incoming HHS

requests using fewer keystrokes and JAWS shortcuts.

Third, the County has spent extensive time training

Plaintiff for her current role. During the customary

ten-week training period for a CSR, Plaintiff received

one-on-one training whereas other employees are

typically trained in groups of around eight. For reasons disputed by the parties, Plaintiff’s job performance at MC 311 has not met the call center’s

standards, and the County has continued to provide

her with further training after the initial classes. Mr.

Sinkler testified that Plaintiff has had difficulty with

identifying the caller’s issue, providing accurate information to the caller, documenting calls and requests

appropriately, exercising proper tone and demeanor,

and efficiently managing her calls and workload. (See

DTX 50).3 He and Mr. Daniel testified that Plaintiff

has generally refused to take notes during training

and has frequently relied on her own memory, as

opposed to the KBAs, leading to her providing information to callers that is incorrect or outdated. She

remains on a work improvement plan because of

these issues.

Mr. Sinkler also testified that, in addition to the

Tier 2 HHS calls she is currently receiving, Plaintiff

has been trained to use the IWAA to respond to Tier 1

calls for the HHS department. In order to limit the

Tier 1 calls routed to Plaintiff to calls for HHS

inquiries, the County set up the “press four option,”

allowing a caller to press the four button to be routed

directly into an HHS queue that was sent to Plaintiff

first. When the County implemented the press four

The designation “DTX” refers to exhibits offered by

Defendant.

45a

option, however, Plaintiff was overwhelmed by the

number of calls she received. The County therefore

withdrew the press four option, although the technical

capability still exists.

The parties’ experts testified as to whether, how,

and at what costs certain MC 311 systems could be

made accessible to Plaintiff. Defendant’s expert Mr.

Logan testified that he identified the thirteen accessibility issues with Seibel. He recommended implementing a native solution — a solution incorporated

into a newer version of the software made by the

manufacturer — such as IP 16, as opposed to JAWS

scripting, which he considered more “fragile.”

Plaintiff’s expert Daniel Buchness testified that he

tested the Seibel system currently in use at MC 311

for the thirteen accessibility errors identified by Mr.

Logan and for any unidentified errors. He estimated

that it would cost a total of $63,050.43 to use JAWS

scripting to remediate the errors he found, that the

scripting could be implemented in 3-5 weeks, and that

the scripting changes would “most likely” be compatible with upgrades from Oracle like IP 16. Mr.

Buchness acknowledged that one of the issues, the

application or browser “hanging” and “crashing” —

that is, lagging behind the user, freezing, or closing

unexpectedly — would likely be improved, but not

entirely resolved by his proposed repairs.

Plaintiff’s experts Shiri Azenkot and Charles

LaPierre testified that the data used in the maps

identified as necessary to answering Tier 1 calls

could likely be made accessible to a blind user. Based

on Mr. LaPierre’s estimates, it would cost somewhere

between $258,300 and $447,300 to makes these maps

accessible.

46a

Mr. Logan also demonstrated the difference between

using Seibel and using the IWAA to submit a hypothetical HHS request pertaining to an eviction notice.

He concluded that the IWAA was better sequenced,

required fewer steps, and took less time. Plaintiff

herself acknowledged that the IWAA makes it easier

for her to access KBAs and submit requests. Mr.

Klinger testified that adding more KBAs to the IWAA

would not cost the County any additional money.

IV. Findings of Fact and Conclusions of Law

a. Injunctive Relief

Plaintiff seeks a permanent injunction requiring the

County to make the Seibel system’s internal portal

and the data from the commonly used maps accessible

to her so that she can answer Tier 1 calls like all other

CSR IIs do. Specifically, she asks for an order

requiring the County to: (1) use JAWS scripting as

necessary to make the Seibel system fully accessible

to her within 60 days; (2) upgrade to IP 16, which

Oracle suggests should fix most or all of the accessibility issues Plaintiff complains of, by the end of the

2017 calendar year; (3) make accessible the maps she

would need most often within 18 months; and (4)

assign Plaintiff all of the duties of a CSR II, including

Tier 1 calls. She also seeks an order requiring the

County to replace Munis and Hansen, programs used

by CSR IIs in other Tier 2 queues, with accessible

versions when they become available. Finally, she

asks that the court order Defendant to maintain

the accessibility of all software that is currently

accessible.

47a

i. The Effect of the Jury Verdict

Plaintiff first argues that the County must make

the changes she has requested because the jury made

its determination based on the proposed duties of a

CSR that she posited in the jury trial. She contends

that, after the jury verdict, it is “indisputable that had

Defendant met its obligations under Section 504, the

software at MC311 would be accessible and Plaintiff

would be working at MC311 as a CSR II also answering [Tier 1] calls.” (ECF No. 295-1, at 8). Plaintiff

acknowledges that she is not automatically entitled

to equitable relief based on the jury’s findings, but

contends nevertheless that, “because she proved that

she is the victim of discrimination[,] she is entitled to

an injunction to prevent the ongoing harm she is

suffering.” (ECF No. 316, at 5).

Here, the jury verdict was based on whether

Plaintiff’s role at ADS was an equal employment

opportunity to that of her peers who had been

transferred to CSR positions at MC 311. Making the

accessibility changes Plaintiff now seeks would be

one way for Defendant to comply with the ADA

requirements, but the law is clear that the employer

has the ultimate discretion to choose between effective accommodations. Reyazuddin v. Montgomery Cty.

Md., 789 F.3d 407, 415-16 (4th Cir. 2015) (citing

Hankins v. The Gap, Inc., 84 F.3d 797, 800 (6th Cir.

1996); EEOC Interpretive Guidance on Title I of the

ADA, 29 C.F.R. § 1630 app. (2014)). If Defendant had

failed to offer Plaintiff any accommodations since

those considered by the jury, Plaintiff’s request for

injunctive relief based on the verdict would have force.

In light of the CLB job offer and, more importantly,

Plaintiff’s current position as a CSR at MC 311,

neither of which were considered by the jury, the

48a

verdict no longer provides any insight as to the

“ongoing harm she is suffering.” Thus, that verdict is

insufficient to dictate the outcome of Plaintiff’s

pending claim for injunctive relief.

ii. Applicable Legal Standard

The statutory provisions governing injunctive relief

under the ADA come from Title VII of the Civil Rights

Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”). See

42 U.S.C. § 12133 (referring to 29 U.S.C. § 794a, which

in turn refers to 42 U.S.C. § 2000e-5, the enforcement

and remedies provisions of Title VII). The Supreme

Court has held that the primary objective of Title VII

was the prophylactic aim “to achieve equality of

employment opportunities and remove barriers that

have operated in the past.” Albemarle Paper Co. v.

Moody, 422 U.S. 405, 417, 95 S. Ct. 2362, 45 L. Ed. 2d

280 (1975) (quoting Griggs v. Duke Power Co., 401 U.S.

424, 429-30, 91 S. Ct. 849, 28 L. Ed. 2d 158 (1971)).

Another purpose of the statute is “to make persons

whole for injuries suffered on account of unlawful

employment discrimination.” Id. at 418. Therefore,

after finding that an employer discriminated against

an employee, a court generally has a duty to “render a

decree which will so far as possible eliminate the

discriminatory effects of the past as well as bar like

discrimination in the future.” Id. (quoting Louisiana v.

United States, 380 U.S. 145, 154, 85 S. Ct. 817, 13 L.

Ed. 2d 709 (1965)).4 Injunctive relief thus serves two

In Albemarle Paper Co., the Court was considering whether

backpay money damages were an appropriate remedy in addition

to injunctive relief. Because employers “would have little incentive to shun practices of dubious legality” without the prospect of

money damages, the Court found that those damages were necessary to effectuate Title VII’s prophylactic goal. 422 U.S. at 418,

421-22. Although this case conversely considers whether injunc-

49a

distinct purposes: to stop ongoing discrimination and

to prevent future discrimination.

The United States Courts of Appeals are divided as

to the correct approach — which party has the burden

of proving what — that governs a claim for injunctive

relief after a plaintiff has proven discrimination. The

Fifth and Ninth Circuits have held that, “absent

clear and convincing proof of no reasonable probability

of further noncompliance with the law[,] a grant of

injunctive relief is mandatory.” James v. Stockham

Valves & Fittings Co., 559 F.2d 310, 354 (5th Cir.

1977); accord EEOC v. Goodyear Aerospace Corp., 813

F.2d 1539, 1544 (9th Cir. 1987) (“Generally, a person

subjected to employment discrimination is entitled to

an injunction against future discrimination unless

the employer proves it is unlikely to repeat the practice.” (citations omitted)). The Second, Eighth, and

Tenth Circuits have held that “[t]here is no presumption that broad injunctive relief . . . should issue upon

a finding of intentional discrimination.” EEOC v.

Siouxland Oral Maxillofacial Surgery Assocs., LLP,

578 F.3d 921, 928 (8th Cir. 2009); accord Bridgeport

Guardians Inc. v. City of Bridgeport, 933 F.2d 1140,

1149 (2d Cir. 1991) (holding that a court has broad

power “to fashion the relief it believes appropriate”

after establishing a Title VII violation); EEOC v. Gen.

Lines, Inc., 865 F.2d 1555, 1565 (10th Cir. 1989).

The case of Spencer v. General Electric Co., 894 F.2d

651 (4th Cir. 1990), abrogated on other grounds by

Farrar v. Hobby, 506 U.S. 103, 113 S. Ct. 566, 121 L.

tive relief is necessary after a damages determination, the Court’s

focus on “the central statutory purposes of eradicating discrimination throughout the economy and making persons whole for

injuries suffered through past discrimination” still guides the

instant case. Id. at 421.

50a

Ed. 2d 494 (1992), guides the analysis of cases like

these in the Fourth Circuit. In Spencer, the plaintiff

in a sexual harassment case proved her hostile work

environment claim and was awarded nominal damages. Spencer v. Gen. Elec. Co., 703 F.Supp. 466, 469

(E.D.Va. 1989). On the plaintiff’s motion for injunctive

relief, the district court found that an injunction was

not mandatory and articulated the following governing principles:

Injunctive relief is uniquely designed to prevent illegal conduct. Such relief, however, is

not mandatory in all Title VII cases. Only

where there are lingering effects or a not

insubstantial risk of recurring violations is

such relief necessary. At the same time,

injunctive relief is not automatically precluded simply because the offending party

has ceased the illegal conduct, demonstrated

its good faith intent to comply with the law,

or even implemented an affirmative plan to

remedy past discrimination. Rather, the court

must carefully examine the circumstances of

each case, taking into account “the bona fides

of [defendant’s] expressed intent to comply,

the effectiveness of the discontinuance and,

in some cases, the character of the past

violations.” United States v. W.T. Grant, 345

U.S. 629, 633, 73 S. Ct. 894, 97 L. Ed. 1303

(1953). Before granting injunctive relief, the

court must then conclude that a “cognizable

danger of recurrent violation” exists. United

States v. Hunter, 459 F.2d 205, 210 (4th Cir.

1972) [citing W.T. Grant Co., 345 U.S. at 633].

703 F.Supp. at 469-70 (alterations in original). The

district court also emphasized the difference between

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cases where there was “abundant evidence of past

discrimination,” “widespread misconduct or lingering

effects,” or “a systematic pattern of harassment” and

cases like Spencer’s sexual harassment claim where

the “illegal conduct was precipitated by a single

individual within a relatively small and isolated

working group.” 703 F.Supp. at 469 nn.4, 9.

In evaluating these claims, the court also noted:

Plaintiff relies on W.T. Grant Co. for the

proposition that defendant bears a heavy

burden to defeat injunctive relief by demonstrating “there is no reasonable expectation

that the wrong will be repeated.” United

States v. W.T. Grant Co., 345 U.S. at 633.

That reliance, however, is misplaced and the

quotation taken out of context. In W.T. Grant

Co., the Supreme Court did place a heavy

burden on defendant, but only to prove that

[the] case was mooted by the cessation of the

alleged illegal activity, thereby depriving

the court of jurisdiction. Here, the issue is

not subject matter jurisdiction, but rather the

appropriate remedy after a finding of liability. Id. Once Title VII liability has been

established, it is reasonable to shift to defendant the burden to come forward with evidence

of remedial measures, as well as evidence to

show that the violations will not recur. After

all, defendant is in the best position to provide

such evidence. The ultimate burden of persuasion may equally reasonably remain with

plaintiff.

703 F.Supp. at 469 n.10. Because the defendant in

Spencer had shown “a genuine, not transitory, commitment to banning sexual harassment in the workplace”

52a

by instituting a new sexual harassment policy, the

court found that an injunction was unnecessary. 703

F.Supp. at 471, 473.

On appeal, the Fourth Circuit affirmed as to the

plaintiff’s motion for injunctive relief. Spencer, 894

F.2d at 661. It agreed that, “[a]lthough injunctions are

by no means mandatory in a Title VII case, a district

court must, of course, exercise its discretion in light

of the prophylactic purposes of the Act to ensure

that discrimination does not recur.” 894 F.2d at 660.

Like the district court, the Fourth Circuit underscored

the difference between “systematic company-wide

discrimination” and “isolated incident[s].” 894 F.2d at

661. It affirmed the district court’s determination that

“once Title VII liability was established, the onus to

produce evidence that [discrimination] will not recur

lies with the defendant[.] However, the ultimate

burden of proof that an injunction is necessary always

remains with the plaintiff.” 894 F.2d at 660 n.13.

Accordingly, the two questions from Albemarle

Paper Co. must be answered in this case: first,

whether, by placing Plaintiff in her current position at

MC 311, Defendant has provided her a reasonable

accommodation for her disability, ceased its discrimination, and “eliminate[d] the discriminatory effects

of the past;” and second, whether an injunction is

necessary to prevent further discrimination in the

future. Defendant has the burden of providing evidence both that the County has ceased discriminating against Plaintiff and that further discrimination

against Plaintiff is unlikely to recur. Plaintiff, however, bears the ultimate burden of showing entitlement to injunctive relief in light of Defendant’s

evidence.

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iii. Injunctive Relief for Ongoing Discrimination

In her proposed injunctive order, Plaintiff seeks

further changes to accommodate her in her current

position. Essentially, Plaintiff’s request for injunctive

relief is a claim that the County still has not provided

her with a reasonable accommodation despite her

current placement. Plaintiff suggests that the County

has provided only a “partial accommodation” and that

she continues to suffer from discrimination because

Defendant has assigned her limited duties and

provided her insufficient technological tools compared

to her CSR II peers at MC 311. (See ECF No. 316, at

6-7). To accommodate her completely, she argues, the

County must enable her to answer Tier 1 calls.

Defendant argues that [*474] no further action is

needed to accommodate Plaintiff, although the County

notes that it has contracted to implement IP 16

for Seibel, which it expects will make the system

accessible to Plaintiff, and that it intends to make

maps accessible on a yet-to-be-determined schedule.

Unlike typical ADA cases, in which plaintiffs seek

to limit the scope of their work to avoid tasks made

difficult or impossible due to their disabilities, Plaintiff is seeking to expand her job duties. Defendant,

on the other hand, is arguing that the County has

reasonably accommodated Plaintiff by putting her at

MC 311 as a CSR II answering HHS Tier 2 calls even

if her job responsibilities are limited compared to

her peers. In some instances, the parties have even

changed course from their positions during the jury

trial earlier in this case. For example, where Defendant sought at trial to show that reading maps was

an essential CSR function of which Plaintiff was

incapable, it now argues that it has accommodated her

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without the need for her to read maps, and therefore

it should not be ordered to make its maps accessible.

Although the parties’ roles may be unusual, the

guideposts for accommodation remain the same. To

prevent discrimination by employers, the ADA

requires that employers provide a reasonable accommodation when the disabled employee is capable of

performing the essential functions of the job with

such an accommodation. 42 U.S.C. § 12111(8); EEOC

v. Stowe-Pharr Mills, Inc., 216 F.3d 373, 377 (4th Cir.

2000). As the House Report on the matter states:

[T]he reasonable accommodation requirement is best understood as a process in which

barriers to a particular individual’s equal

employment opportunity are removed. The

accommodation process focuses on the needs

of a particular individual in relation to

problems in performance of a particular job

because of a physical or mental impairment.

...

Having identified one or more possible accommodations, the [next] step is to assess the

reasonableness of each in terms of effectiveness and equal opportunity. A reasonable

accommodation should be effective for the

employee. Factors to be considered include

the reliability of the accommodation and

whether it can be provided in a timely

manner.

. . . [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

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to nondisabled employees having similar

skills and abilities.

H.R. Rep. 101-485(II), as quoted in Bryant v. Better

Business Bureau of Greater Md., Inc., 923 F.Supp. 720,

736-37 (D.Md. 1996). Accordingly, “[i]n order to be

reasonable, the accommodation must be effective (i.e.,

it must address the job-related difficulties presented

by the employee’s disability), and it must allow the

employee to attain an ‘equal’ level of achievement,

opportunity, and participation that a non-disabled

individual in the same position would be able to

achieve.” Merrill v. McCarthy, 184 F.Supp.3d 221, 236

(E.D.N.C. 2016) (quoting Fleetwood v. Harford Sys.

Inc., 380 F.Supp.2d 688, 699 (D.Md. 2005)); see

also Bryant, 923 F.Supp. at 736; 29 C.F.R. pt. 1630,

app. (2014) (“The reasonable accommodation that is

required by this part should provide the individual

with a disability with an equal employment opportunity. Equal employment opportunity means an

opportunity to attain the same level of performance,

or to enjoy the same level of benefits and privileges

of employment as are available to the average similarly situated employee without a disability.”).

On the other hand, an employer “may reasonably

accommodate an employee without providing the

exact accommodation that the employee requested.”

Reyazuddin, 789 F.3d at 415. Under the ADA, reasonable accommodations may include “job restructuring,

part-time or modified work schedules, reassignment

to a vacant position, acquisition or modification of

equipment or devices, [or] appropriate adjustment or

modifications of examinations, training materials

or policies.” 42 U.S.C. § 12111. As noted above, the

employer has discretion to choose between effective

accommodations, Reyazuddin, 789 F.3d at 415-16, and

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a court goes too far when the effect of an injunction

“would be to give preferential treatment to people

with disabilities, rather than put them on equal

footing as intended by Congress,” Pathways Psychosocial Support Ctr., Inc. v. Town of Leonardtown, 223 F.

Supp. 2d 699, 717 (D.Md. 2002).

When this case began, Defendant had assigned

Plaintiff, in the words of the Fourth Circuit, a “cobbled

together [] assortment of ‘make-work’ tasks” that

were of questionable value to the County and failed to

fill up her day. Reyazuddin, 789 F.3d at 416. It was

these job duties that failed to constitute a reasonable

accommodation for Plaintiff because they did not provide her a meaningful equal employment opportunity.

The jury’s verdict was based on those limited duties.

Since then, Plaintiff has been transferred to MC 311

and classified as a CSR II. She is answering Tier II

HHS calls full time. None of the work she is presently

doing is “make-work.” In her current position, she

assists callers with an array of HHS requests that

would otherwise be resolved by other CSR IIs at MC

311. Her work is related to a subject matter with

which she has familiarity and the potential to

capitalize on her years of HHS experience. Although

Plaintiff and Defendant appear to be in an ongoing

effort to find the right workload for her as a CSR —

and the parties dispute her skills, training, and

progress — she no longer complains that she has

an insufficient workload. If her Tier II HHS calls were

to become insufficient, the County has in place another

accommodation, the “press four option,” to increase

her total number of calls to ensure that she can fill

her days with meaningful work that would otherwise

be done by her peers at MC 311. The issues Plaintiff

now presents are considerably different from those

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that were previously in front of the jury. This evidence

shows that Plaintiff is now doing meaningful work.

Plaintiff argues, however, that the work assigned to

her does not provide her with an equal employment

opportunity because the tools she is using and tasks

she is assigned differentiate her from her peers and

limit her performance. She contends that using the

IWAA sets her up to fail because she cannot easily do

“quality review” to check her work. Plaintiff also

emphasizes that the IWAA requires her to ask the

caller for name and zip code information that would

normally be transferred to the CSR II by the Tier 1

call-taker. She argues that this redundant request

requires her to take more time on each call than her

peers. Finally, Plaintiff points out that the unavailability of the Seibel system prevents her telecommuting, which at least some of her peers can do for a

variety of reasons. Defendant argues that none of

these differences prevent Plaintiff’s current role from

being a reasonable accommodation.

Although Plaintiff may not be doing the exact same

work in the exact same way as her non-disabled peers,

her current position at MC 311 does provide her with

a meaningful equal employment opportunity. The

current circumstances of this case are somewhat

similar to those in Bunn v. Khoury Enters., 753 F.3d

676, 682-83 (7th Cir. 2014), where a legally blind

employee at a Dairy Queen restaurant was assigned

exclusively to one department instead of rotating

through various departments as non-disabled employees in the same position were required to do. Although

the plaintiff sought a different accommodation, the

court found that permitting and assigning him to work

exclusively in one department where he was best able

to perform all the necessary duties was “exactly the

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kind of accommodation envisioned by the regulations

applicable to the ADA” when they reference “job

restructuring” or a “modified work schedule,” even if it

meant that his job was structured differently from his

peers. Id. Similarly, here, the County has restructured

Plaintiff’s CSR job to handle exclusively the calls that

she is most capable of handling with the tools that are

currently accessible.

Plaintiff largely argues that answering Tier 1 calls

is an essential function of the CSR II position and

that the County must provide an accommodation

sufficient for her to perform all essential functions of

the CSR II position in the same manner as her peers.

Neither the statute nor case law imposes such a

requirement. In Basith v. Cook County, 241 F.3d 919,

924-25 (7th Cir. 2001), for example, the plaintiff’s

employer restructured his job as a Pharmacy Technician II to eliminate delivery, stocking, and cleaning

duties when an injury left him unable to do much

walking or lifting. Although the court had found that

delivery and stocking of medications were essential

functions of his job, id. at 927, it held that the

employer had provided a reasonable accommodation

when it “went above and beyond the requirements of

the ADA” by reallocating these essential functions to

other employees, id. at 932; cf. Feist v. Louisiana, 730

F.3d 450, 453-54 (5th Cir. 2013) (emphasizing that “a

modification that enables an individual to perform

the essential functions of a position is only one of three

categories of reasonable accommodation,” along with

modifications that enable an applicant to be considered for a desired position or modifications that

enable a disabled employee “to enjoy equal benefits

and privileges of employment” (citing 29 C.F.R.

§ 1630.2(o)(1))); EEOC v. Life Techs. Corp., No. WMN09-2569, 2010 U.S. Dist. LEXIS 117563, 2010 WL

59a

4449365, at *5 (D.Md. Nov. 4, 2010) (noting in a different context that, although “the regulation certainly

indicates that some reasonable accommodations are

for the purpose of enabling an individual to perform

the essential functions of a job, nothing in its language

indicates that all reasonable accommodations must

be for that purpose”); Interpretive Guidance, 29 C.F.R.

§ 1630 app. (2016) (explaining that restructuring

essential functions to enable an individual to perform a job is one type of modification that might be

required in a “supported employment” position and

noting that “it would not be a violation of [the reasonable accommodation requirement] for an employer

to provide any [such] personal modifications or adjustments”). This view is also supported by the ADA’s

inclusion of reassignment to a vacant position, which

would inherently change the essential functions of

the job held, as a reasonable accommodation, so long

as the employee is able to perform the essential

functions of the new position and the position is equivalent to the employee’s previous one. Interpretive

Guidance, 29 C.F.R. § 1630 app. (2016).

The evidence here does not show that using the

IWAA and answering only Tier 2 HHS calls prevents

Plaintiff from attaining the same level of performance

as her peers. The queue of calls Plaintiff receives

has no bearing on her salary, job benefits, union

status, or any other privileges of her employment, with

the possible exception of the opportunity to telework.

Telecommuting, however, is permitted only in limited

circumstances and at the discretion of a supervisor,

not as of right. Plaintiff is also capable of doing quality

review of her service requests and figuring out her

AUX code status, just under different circumstances

than her peers. As described in the job classification,

the role of a CSR II focuses almost entirely on general

60a

skills related to helping callers: identifying problems,

researching written materials, providing information

to the customer, and submitting service requests.

(DTX 7). It makes no reference to the specific types of

calls a CSR II will answer. (Id.). Although all other

CSRs are able to answer Tier 1 calls, all CSR IIs are

limited to taking only the Tier II calls for the systems

on which they are trained; thus, not all CSR IIs need

to answer the same types of calls in order to attain the

same level of performance.

The same analysis applies to Plaintiff’s promotional

opportunities. Plaintiff has not presented any evidence that her lack of familiarity with Seibel’s internal

portal will detract from her future opportunities if

she shows a strong ability to assist callers and the

interpersonal skills necessary to train new CSRs,

manage employees, and handle difficult calls. To the

contrary, the testimony of Robert Sinkler and other

managers indicated that it is common for MC 311

supervisors to be unfamiliar with the Tier 2 calls from

queues in which they did not work, yet these employees are still eligible to be promoted to supervise CSR

IIs who take such calls.

In sum, the differences between Plaintiff working as

a CSR II using the IWAA to answer only Tier 2 HHS

calls and her Seibel-using peers are within the range

of modifications “to the manner or circumstances

under which the position . . . is customarily performed”

that regulations permit as part of a reasonable

accommodation. 29 C.F.R. § 1630.2(o)(1)(ii). Plaintiff’s

current role allows her to attain an equal level of

achievement, opportunity, and participation as her

CSR II peers. The County has provided her a reasonable accommodation, and, accordingly, its discrimina-

61a

tory conduct has ceased. Therefore, an injunction is

not warranted as to Plaintiff’s current position.5

iv. Prohibitory Injunction

Even where an employer has stopped discriminating against an employee, “the court’s power to grant

injunctive relief survives discontinuance of the illegal

conduct.” W.T. Grant Co., 345 U.S. at 633; accord

Reiter v. MTA N.Y. City Transit Auth., 457 F.3d 224,

230 (2d Cir. 2006). As discussed above, “the court must

carefully examine . . . ‘the bona fides of [defendant’s]

expressed intent to comply, the effectiveness of the

discontinuance and . . . the character of the past

violations.’“ Spencer, 703 F.Supp. at 469-70 (quoting

W.T. Grant, 345 U.S. at 633) (alterations in original).

Plaintiff argues that a prohibitory injunction is

necessary to prevent Defendant from letting its current accessibility lapse and returning to its former

discriminatory practices. She argues that despite

Defendant’s ongoing efforts to accomplish Seibel

accessibility through IP 16, the County has made

such strides for accessibility reluctantly and only as a

result of this litigation. It should not be trusted,

Plaintiff maintains, to continue its accessibility efforts

or to make such efforts a timely priority in the absence

At the hearing, the parties also presented testimony and

exhibits related to the CLB job offer. The evidence showed that

the CLB position would have been isolated from other County

employees and was created and offered in a manner that deviated

significantly from normal County or CLB practices. It therefore

seems doubtful that such a position would have provided Plaintiff

with a reasonable accommodation. Because Plaintiff’s current

position satisfies the ADA requirements, however, there is no

need for injunctive or declaratory relief based on a failure to

accommodate related to the CLB offer.

62a

of a court order. In her motion papers, Plaintiff suggests that, rather than “acknowledging its failings,

Montgomery County is still conducting a battle to

hold onto what it regards as its management rights

to do anything it wants.” (ECF No. 316, at 12).

In Spencer, the Fourth Circuit refused to adopt

the rule “that remedial measures undertaken by a

defendant after the instigation of litigation will never

be adequate to obviate injunctive relief” because

doing so would “undercut the remedial goals of Title

VII . . . by removing any incentive for an employer,

once sued, to clean its own house.” 894 F.2d at 660-61.

Moreover, the County has never contended that it

need not accommodate Plaintiff. Defendant and Plaintiff have disputed what constitutes a reasonable

accommodation, and Defendant has continued to

maintain, as the law makes clear, that an employer

In her motion papers, Plaintiff does not distinguish between

the analysis of mootness in this case and her entitlement to a

prohibitory injunction. Put another way, Plaintiff contends that

because her transfer did not moot the case, Defendant should be

enjoined from transferring Plaintiff back out of MC 311 or taking

actions that negate the accessibility measures it has undertaken

to allow her to work as a CSR II. Without citing to any cases

equating these two analyses, Plaintiff states that “[w]hat is

appropriate for a mootness analysis is equally applicable to the

question of whether injunctive relief is appropriate.” (ECF No.

295-1, at 10). She is incorrect. The mootness analysis determines

whether a court has jurisdiction to hear a case. The existence of

a live controversy is not enough to entitle Plaintiff to relief. Thus,

where voluntary cessation might prevent a court from mooting a

case when a defendant is capable of reverting back to past practices, to warrant injunctive relief, Plaintiff must show, not that

Defendant is capable of reverting back to past discriminatory

practices, but some likelihood of recurrence. See Spencer, 703

F.Supp. at 469 (“Only where there are lingering effects or a not

insubstantial risk of recurring violations is such relief necessary.”).

63a

has discretion to choose among effective accommodations. These arguments are a far cry, however, from

the notion that the County may “do anything it

wants.” Defendant has offered Plaintiff two positions

different from what it originally “wanted” to provide.

Nor has the County been slow to provide the accommodations it believed were necessary. Rather, in both

instances, Defendant offered Plaintiff a new position

before it was necessary and while it was still litigating the sufficiency of its earlier accommodation efforts:

before the jury found that Plaintiff’s ADS positions

were inadequate, the County helped create a new

position that it thought would appeal to Plaintiff at

the CLB, and while the parties were litigating the

adequacy of the CLB position, Defendant transferred

Plaintiff to MC 311. Defendant has also made continued efforts to improve the effectiveness of Plaintiff’s

placement at MC 311. The County has dedicated

extensive time and personnel to training Plaintiff on

the skills she needs for her position. After encountering issues with the CAPTCHA robot-prevention software, it created the IWAA, a specialized portal for

Plaintiff.

All of these steps indicate a bona fide intent to abide

by the law. Defendant’s past actions do not suggest

an unwillingness to provide a reasonable accommodation, but rather a repeated failure to identify one

that works for both Plaintiff and the County. Defendant did not fail to recognize that an accommodation

was required. Rather, it failed to provide an accommodation that met the requirements of the ADA.

There are no other reasons to conclude that a

prohibitory injunction is necessary. The “character of

the past violation” is delimited; the violation was

isolated in the sense that it was caused by the one-time

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reorganization of the call center functions. Other

evidence Defendant put forth at the evidentiary

hearing indicates that it has now invested significant

training toward helping Plaintiff succeed in her new

role, despite numerous issues. Defendant also has a

contract in place to implement IP 16 and has indicated

that it expects this upgrade to fix the accessibility

issues that have prevented Plaintiff from using

Seibel’s internal portal. Thus, the County appears

inclined to continue to implement further accessibility

features.

Plaintiff’s contention that Defendant might fail to

maintain the accessibility of the systems she is presently using seems improbable. Some of the accessibility features result from software advances that serve

multiple purposes. The costs and resources necessary

to maintain accessibility of the systems currently in

place would likely be minimal compared to the staff

time and resources that the County has already

invested in making the CSR II position accessible to

Plaintiff. Additionally, if Defendant failed to maintain

the accessibility of the CARES system or the IWAA,

Plaintiff would not be able to help any customers at

all. The County has never suggested that paying

Plaintiff to do nothing at all would be appropriate.

The County has discontinued its discrimination,

which was only the failure to identify and implement

a reasonable accommodation. Considering all of

these circumstances, a prohibitory injunction is not

warranted.

b. Declaratory Judgment

Plaintiff also seeks a declaration, based on the jury

verdict, that Defendant violated her rights under the

ADA. The Fourth Circuit has explained that:

65a

While § 2000e—5(g)(2)(B)(i) places the power

to award declaratory relief in the district

courts’ discretion, “such discretionary choices

are not left to a court’s inclination, but to its

judgment; and its judgment is to be guided by

sound legal principles.” Albemarle Paper Co.,

422 U.S. at 416 (internal quotation marks

omitted).

Pitrolo v. Cty. of Buncombe, N.C., 589 F.App’x 619, 627

(4th Cir. 2014). The court further explained that:

“We have . . . enumerated several factors to

guide district courts in their exercise of this

discretion.” Aetna Cas. & Sur. Co. v. Ind-Com

Elec. Co., 139 F.3d 419, 421-22 (4th Cir.

1998) (per curiam) (internal quotation marks

omitted). In Aetna, we held that, when deciding whether to grant declaratory relief pursuant to the Declaratory Judgment Act, 28

U.S.C. § 2201, a district court should consider

several factors. See Aetna, 139 F.3d at 422-24.

Among those factors relevant to this case

are whether awarding declaratory relief (1)

will clarify important issues of law in which

the forum state has an interest; (2) will

“clarify the legal relations between the parties” or afford “relief from uncertainty, insecurity, and controversy giving rise to the proceeding”; and (3) “whether the declaratory

judgment action is being used merely as a

device for procedural fencing.” Id. (internal

quotation marks omitted); see also Am. Cas.

Co. of Reading, Pa. v. Howard, 173 F.2d 924,

927 (4th Cir. 1949) (“We think [judicial discretion whether to grant declaratory relief]

should be liberally exercised to effectuate the

66a

purposes of the [Declaratory Judgment Act]

and thereby afford relief from uncertainty

and insecurity with respect to rights, status

and other legal relations.”); [] Edwin Bouchard,

Declaratory Judgments 299 (2d ed. 1941) (“The

two principal criteria guiding the policy in

favor of rendering declaratory judgments are

(1) when the judgment will serve a useful

purpose in clarifying . . . the legal relations

at issue and (2) when it will . . . afford relief

from the uncertainty, insecurity, and controversy giving rise to the proceeding.”).

Pitrolo, 589 F.App’x at 627-28.

In her motion papers, Plaintiff contends that a

declaration from the court “will afford relief to both

parties about the uncertainty, insecurity, and controversy that gives rise to this case.” (ECF No. 316, at 14).

A declaration is warranted, she argues, because “the

parties have strong disagreements about the way in

which their future relations should be organized.”

(Id.). Plaintiff contends that Pathways Psychosocial

Support Ctr., Inc. v. Town of Leonardtown, 223 F.

Supp. 2d 699, 718 (D.Md. 2002), demonstrates that a

court may enter a declaratory judgment even after a

jury determination of the same issue on the merits.

In that zoning and land use case, the court issued a

declaratory judgment because it was “not in a position

to determine whether Pathways’ current use [was]

different from that use [upon which the jury determination relied].” Id. at 717. The court issued a

declaration stating that, if the plaintiff’s ongoing use

was the same, the jury’s verdict continued to control.

In the instant situation, there is no such confusion.

The jury made clear that Defendant’s earlier accommodation was insufficient. The County has now

67a

provided Plaintiff with an entirely new accommodation that is compliant with the ADA. Further expounding on the jury’s verdict would be superfluous and

have no bearing on the current legal issues. Moreover,

by addressing Plaintiff’s claims for injunctive relief,

the court has removed any uncertainty, insecurity,

and controversy over Defendant’s future obligations as

Plaintiff’s employer. Accordingly, declaratory relief is

not appropriate here.

V. Conclusion

For the foregoing reasons, judgment will be entered

in favor of Defendant Montgomery County, Maryland

on Plaintiff Yasmin Reyazuddin’s requests for injunctive and declaratory relief. A separate order will

follow.

/s/ DEBORAH K. CHASANOW

United States District Judge

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APPENDIX G

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

[Filed August 21, 2017]

————

Civil Action No. DKC 11-0951

————

YASMIN REYAZUDDIN

MONTGOMERY COUNTY, MARYLAND

————

ORDER OF JUDGMENT

In April 2011, Plaintiff Yasmin Reyazuddin filed a

single-count complaint against Defendant Montgomery

County, alleging disparate treatment and a failure

to provide a reasonable accommodation in violation of

the Rehabilitation Act of 1973, 29 U.S.C. § 794. (ECF

No. 1). She supplemented her complaint in October

2012 to include a claim under the Americans with

Disabilities Act, 42 U.S.C. § 12101, et seq. (ECF No.

58). The court granted judgment in Defendant’s favor

on both Plaintiff’s claims, but the United States Court

of Appeals for the Fourth Circuit reversed as to

Plaintiff’s claims under the Rehabilitation Act. (ECF

Nos. 108; 113). The parties proceeded to a jury trial on

Plaintiffs Rehabilitation Act claims in February 2016.

In the joint pretrial order, Plaintiff stipulated that

she was seeking: (1) compensatory damages for emotional distress; (2) injunctive relief; and (3) attorneys’

fees. (ECF No. 157, at 19). The jury returned verdicts

in favor of Plaintiff on both counts. (ECF No. 221). The

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jury found, however, that she had sustained zero

dollars in damages.

Plaintiff then proceeded to pursue equitable relief

on her claims, seeking a declaration that Defendant

had discriminated against her and an injunctive

order requiring Defendant to make the job she sought

accessible to her and to place Plaintiff in that job,

consistent with the position she would have been in

had the discrimination not occurred. (ECF No. 228, at

7). The court scheduled a hearing on these issues, and

Plaintiff filed a motion for a permanent injunction and

declaratory judgment. (ECF Nos. 266; 295). Additionally, Plaintiff and Defendant each filed dispositive

motions prior to the hearing. (ECF Nos. 296; 300). For

the reasons stated in the foregoing Memorandum

Opinion, Plaintiff is not entitled to injunctive relief or

declaratory judgment.

Accordingly, it is this 21st day of August, 2017, by

the United States District Court for the District of

Maryland, ORDERED that:

1. Plaintiff’s motion for partial summary judgment

(ECF No. 296) and Defendant’s motion to dismiss for

lack of jurisdiction or for summary judgment (ECF No.

300), BE and the same hereby ARE, DENIED;

2. Plaintiff’s motion for declaratory and injunctive

relief (ECF No. 295) BE, and the same hereby IS,

DENIED;

3. All other motions, to the extent not ruled on

earlier (ECF Nos. 275, 276, 277, 292, 293, 294, 301,

303, and 305), BE and the same hereby ARE, DENIED

as moot;

4. JUDGMENT BE, and the same hereby IS,

ENTERED in favor of Yasmin Reyazuddin and

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against Montgomery County for her claims under

Section 504 of the Rehabilitation Act of 1973, in the

amount of $0.00 in compensatory damages;

5. All prior rulings are incorporated herein and

this judgment is final within the meaning of

Fed.R.Civ.P. 58; and

6. The clerk is directed to transmit copies of this

Judgment Order to counsel for the parties.

/s/ DEBORAH K. CHASANOW

United States District Judge

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APPENDIX H

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

[Filed March 29, 2021]

————

No. 19-2144

(8:11-cv-00951-DKC)

————

YASMIN REYAZUDDIN

Plaintiff-Appellant

MONTGOMERY COUNTY, MARYLAND

Defendant-Appellee

THE DISABILITY LAW CENTER OF VIRGINIA;

DISABILITY RIGHTS MARYLAND; DISABILITY RIGHTS

OF WEST VIRGINIA; PROTECTION AND ADVOCACY FOR

PEOPLE WITH DISABILITIES, INC. OF SOUTH CAROLINA;

DISABILITY RIGHTS NORTH CAROLINA

Amici Supporting Appellant

INTERNATIONAL MUNICIPAL LAWYERS ASSOCIATION,

Amicus Supporting Appellee

————

ORDER

The petition for rehearing en banc was circulated to

the full court. No judge requested a poll under Fed. R.

App. P. 35. The court denies the petition for rehearing

en banc.

For the Court

/s/ Patricia S. Connor, Clerk

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APPENDIX I

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

[Filed: February 26, 2016]

————

Civil Action No. DKC 11-00951

————

YASMIN REYAZUDDIN

Plaintiff

MONTGOMERY COUNTY, MARYLAND

Defendant

————

VERDICT SHEET

Preliminary Issues

1. Do you find by a preponderance of the evidence that

Plaintiff is an individual with a disability?

Yes



2. Do you find by a preponderance of the evidence

that the Defendant had notice of her disability?

Yes



If your answer to Question No. 1 or 2 is “no,” stop

here and go no further.

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3. Do you find by a preponderance of the evidence

that Plaintiff could perform the essential functions

of a Customer Service Representative with a

reasonable accommodation?

Yes



If your answer to Question No. 3 is “no,” stop here

and go no further.

First Claim: Reasonable Accommodation

4. A. Do you find by a preponderance of the evidence

that Montgomery County failed to provide a reasonable accommodation to Plaintiff in the Customer Service Center?

Yes



B. Do you find by a preponderance of the evidence

that Montgomery County failed to provide a reasonable accommodation to Plaintiff outside the

Customer Service Center?

Yes



Second Claim: Disparate Treatment

5. Do you find by a preponderance of the evidence

that the failure to transfer Plaintiff to the Customer Service Center was an adverse employment

action?

Yes



If your answers to Question Nos. 4 A and B AND 5

are “no”, stop here and go no further.

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Affirmative Defense: Undue Hardship

6. Do you find by a preponderance of the evidence

that it would have been an undue hardship to

Montgomery County to make the Customer Service

Center accessible for Plaintiff?

Yes



Regardless of your answer to Question No. 6, go on

to Question no. 7.

Damages

7. What amount of non-economic damages, if any. did

Plaintiff prove she sustained? .

SIGNATURE REDACTED

DATE: Feb. 26, 2016

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.