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McFarland v. The City and County of Denver

United States District Court, D. Colorado

September 5, 2017

CHRESSA MCFARLAND, Plaintiff,
v.
THE CITY AND COUNTY OF DENVER, Defendant.

          ORDER

          KATHLEEN M TAFOYA UNITED STATES MAGISTRATE JUDGE

         This 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”].)

         1. Facts [1]

         Plaintiff 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.)

         In the 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 3-34(B) provides,

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 accommodations.

(Doc. No. 34-17.)

         Defendant's 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.)

         In 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 Defendant. (Id.)

         After 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.)

         On 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.)

         Plaintiff 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.)

         Upon 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.)

         Plaintiff 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 15.)

         Plaintiff 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.)[2]

         Internet 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.)

         After 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.)

         2. ...


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