United States District Court, D. Colorado
KATHLEEN M TAFOYA UNITED STATES MAGISTRATE JUDGE
matter is before the court on “Defendant's Motion
for Summary Judgment.” (Doc. No. 32
[“Mot.”].) Plaintiff filed a Response (Doc. No.
34 [“Resp.”]), to which Defendant replied (Doc.
No. 35 [“Reply”].)
began suffering from macular degeneration in approximately
1994 and this has resulted in the loss of her vision except
for “some peripheral vision.” (Doc. No. 33 at
4-5.) Plaintiff applied for a job with Defendant in its 3-1-1
call center as a Customer Service Agent. (Doc. No. 34-5; Doc.
No. 34-6.) Plaintiff passed the initial requirements and
Defendant invited her to participate in the next stage of the
hiring process consisting of computer testing related to the
ability to use Internet Explorer and Microsoft Outlook. (Doc.
No. 33 at 11; Doc. No. 34-5 at 2.)
email invitation sent to Plaintiff, Defendant stated that if
she required an accommodation for the computer skills
testing, she should contact Defendant. (Doc. No. 33 at 11.)
Additionally, Defendant's Rule 3 - Recruitment, Section
1. The [Career Services Authority] will provide reasonable
accommodations in the assessment process, upon request, for
candidates who are qualified individuals with a disability
under the Americans with Disabilities Act.
2. In instances where established assessment procedures are
not appropriate for such candidates, their eligibility shall
be determined by alternate assessment procedures which
accurately measures their ability to perform the essential
functions of the position with or without reasonable
(Doc. No. 34-17.)
computer skills tests for the 3-1-1 position included a test
for use of Microsoft Outlook and a test for Internet Explorer
version 5 (“IE-5”). (Doc. No. 32-1 at 5; Doc. No.
33 at 15-16.) The Microsoft Outlook test was
“informational only, ” meaning that a specific
score on the test is not required to pass to the next stage
of the hiring process, but the hiring manager may ultimately
consider the score in making a hiring decision. (Doc. No.
32-1 at 24-25.) On the IE-5 test, Defendant required a
minimum score in order for the applicant to pass to the next
stage of the hiring process. (Doc. No. 32-1 at 17.) The IE-5
test included basic, intermediate, and advanced questions and
in order to advance in the hiring process, an applicant had
to answer at least five of the eight basic questions
correctly. (Id. at 18.)
2012, Susan Maxfield was a Human Resources (“HR”)
specialist for Defendant and her job duties included
identifying reasonable accommodations for people with
disabilities during the pre-employment testing process. (Doc.
No. 34-14 at 4.) Although recognizing that a blind computer
user in the 3-1-1 position would accomplish tasks on a
computer differently than a sighted user, Ms. Maxfield did
not make any assessment as to the validity of the Outlook and
IE-5 tests as applied to the applicant who is blind.
(Id. at 5.) Nor did Ms. Maxfield perform any
analysis regarding whether the Outlook and IE-5 tests tended
to screen out persons who were blind on the basis of their
blindness rather than their capability to perform the job for
which they were applying. (Id. at 7.) Plaintiff was
the first and only blind applicant to take the two tests
during Ms. Maxfield's tenure as HR Specialist for
receiving the request to participate in the computer testing
portion of the 3-1-1 agent hiring process, Plaintiff
contacted Ms. Maxfield and requested an accommodation. (Doc.
No. 32-2 at 2, 7.) Specifically, Plaintiff requested Job
Access With Speech (“JAWS”), a type of speaking
software used by blind and visually impaired individuals that
reads audibly the text displayed on the computer monitor and
reads the label or tags of computer icons. (Doc. No. 32-2 at
7; Doc. No. 34-1 at 11-12; Doc. No. 34-2 at 3-4.) Ms.
Maxfield testified she initially told Plaintiff that she
would look into whether Defendant could obtain JAWS. (Doc.
No. 32-2 at 7.) Plaintiff does not recall what Ms. Maxfield
stated with regard to whether Defendant had JAWS but
Plaintiff thought using it during the test was not going to
be a problem. (Doc. No. 33 at 12.)
January 6, 2012, Ms. Maxfield emailed Plaintiff stating,
“Lance [Dorris] will be calling you next week, if he
hasn't already to talk about a test time the week
following. We know we can accommodate the typing test by
reading to you but are awaiting information on securing
speaking software for the Internet Explorer and MS Outlook
test. Have a great weekend.” (Doc. No. 33 at 12; Doc.
No. 34-8.) Though Plaintiff does not recall attempting to
contact anyone following receipt of this email, Mr. Dorris
received an email on January 17, 2012 from an HR technician
indicating Plaintiff had attempted to reach either Ms.
Maxfield or him in order to request a test accommodation.
(Id.; Doc. No. 34-9.) Mr. Dorris sent Plaintiff an
email on the same date, stating, “Sorry for the late
response. I have not had many chances to be near a phone all
week with that ASA Series testing. Chressa, please plan to
come in this Thursday, the 19th at 8:15 a.m. for your
testing. You and I will work together in order to get this
done for you. You have taken the written portion of the exam
and we will just have to do the computer part. If you have
any other issues or questions please contact me by email as I
am constantly in the test room and unavailable to answer the
phone.” (Id.; Doc. No. 34-9.) Plaintiff did
not respond to this email. (Doc. No. 33 at 13.)
had previously applied for another position with Defendant,
specifically, a customer service position, and Ms. Maxfield
recalled having provided a reader as a reasonable
accommodation for the required testing, though it did not
include computer testing. (Doc. No. 32-2 at 7.) Plaintiff
thought she used JAWS during the requisite testing for the
customer service position. (Doc. No. 33 at 14.) At no point
did anyone tell Plaintiff that JAWS would be available for
the Outlook and IE-5 tests required for the 3-1-1 position.
(Id. at 15.)
arriving on January 19, 2012, Plaintiff asked Mr. Dorris
about JAWS being available and he told her that it was not
available. (Doc. No. 33 at 15.) Instead, Mr. Dorris acted as
a reader for Plaintiff and administered the Outlook and IE-5
tests to her by reading the multiple choice questions and the
possible answers, and/or by describing the screen to
Plaintiff when necessary, in order for her to answer a
question. (Doc. No. 32-1 at 20; Doc. No 33 at 15.) Plaintiff
was also provided extra time to complete her testing. (Doc.
No. 32-2 at 8; Doc. No. 33 at 20.)
took the Outlook test first and she has described in detail
the manner in which having a reader, rather than speaking
software, as an accommodation for the Outlook test did not
work well. (Doc. No 33 at 15-16.) Additionally, due to the
difficulties posed by only having a reader as an
accommodation during the Outlook test, she was very tired by
the end of it. (Id. at 28.) Plaintiff never
indicated to Mr. Dorris that she was struggling with the
Outlook test due to her blindness, that she was tired by the
end of the it due to the difficulties encountered by not
having speaking software, and/or that his assistance as a
reader was an insufficient accommodation. (Id. at
then took the IE-5 test and answered only three of the eight
basic questions correctly. (Doc. No. 34-12 at 1.) If she had
answered two more basic questions correctly, Plaintiff would
have advanced in the hiring process. (Doc. No. 32-1 at 18,
24.) Of the five questions missed, four of them, specifically
numbers 12, 13, 22 and 23, were related to the use of the
“Favorites” function. (Doc. No. 32-4 at 4, 5, and
7.) Plaintiff testified that as to each of the four Favorites
questions she answered incorrectly, the reader was a
sufficient accommodation relative to speaking software
because she could answer them with a specific keystroke on
the keyboard and did not need to be able to see anything.
(Doc. No. 33 at 28-29.)
Explorer version 8 (“IE-8”) was released in 2009,
three years prior to the test taken by Plaintiff. (Doc. No.
34-14.) The Internet Explorer test that Plaintiff took in
2012 utilized IE-5, rather than IE-8. (Doc. No. 32-1 at 8.)
Plaintiff used IE-8 at home. (Id. at 9.) The letter
Defendant sent to Plaintiff inviting her to take the computer
tests for the 3-1-1 position stated only, “The testing
will be comprised of a written exam for Customer Service
Agent 150-10 and computer based assessments for Microsoft
Internet Explorer, Outlook and typing.” (Id.
at 10.) On the day of testing, Plaintiff never asked what
version of Internet Explorer the computer test utilized.
(Id. at 9-10.) On questions 13, 22, and 23, related
to the Favorites function, Plaintiff answered with the
keyboard combination Alt. (Doc. No. 32-4 at 5, 7, 8.) The
correct answer to each of those questions was the keyboard
combination Ctrl. (Id.) In IE-8, both Ctrl and
Alt open the Favorites menu. (Doc. No. 32-1 at 11; Doc. No.
34-15; Doc. No. 34-16.)
completing the test on January 19, 2012, Plaintiff emailed an
individual about the computer testing, stating, “I
believe the test was set up for sighted people to take it
only. I don't see how a blind person could manage. Is
there some way to see if they can get the test format
changed?” (Id. at 20.) Plaintiff did not
contact anyone associated with Defendant regarding the
difficulties posed to blind applicants, nor did she inquire
as whether Defendant could or would change the test format.
(Id.) On January 25, 2012, Plaintiff contacted the
Equal Employment Opportunity Commission (“EEOC”)
regarding filing a complaint against Defendant based on the
computer tests. (Id. at 22.) The EEOC was reluctant
to process Plaintiff's complaint because she had not
received her test results. (Id.) On February 9,
2012, Plaintiff received notice from Defendant that she had
not passed the IE-5 test. (Id. at 19.) Plaintiff did
pass the Microsoft Outlook portion of the testing.
(Id. at 15.) Plaintiff never informed anyone
associated with Defendant about her concerns regarding the
testing process, how her disability affected her performance
on the IE-5 test, a need for additional or different
accommodations, or that a reader was not a reasonable
accommodation. (Id. at 20, 22-23.)