                               PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 14-1299


YASMIN REYAZUDDIN,

                Plaintiff – Appellant,

           v.

MONTGOMERY COUNTY, MARYLAND,

                Defendant – Appellee.

−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−-----

AMERICAN COUNCIL OF THE BLIND; AMERICAN CIVIL LIBERTIES
UNION; ASSOCIATION ON HIGHER EDUCATION AND DISABILITY;
CIVIL RIGHTS EDUCATION AND ENFORCEMENT CENTER; DISABILITY
RIGHTS ADVOCATES; LEGAL AID SOCIETY − EMPLOYMENT LAW
CENTER; MARYLAND EMPLOYMENT LAWYERS ASSOCIATION; NATIONAL
ASSOCIATION   OF  THE   DEAF;  NATIONAL DISABILITY RIGHTS
NETWORK; PUBLIC JUSTICE CENTER, INC.,

                Amici Supporting Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.    Deborah K. Chasanow, Chief District
Judge. (8:11-cv-00951-DKC)


Argued:   January 28, 2015                        Decided:   June 15, 2015


Before TRAXLER,   Chief   Judge,   and     DIAZ    and   THACKER,   Circuit
Judges.
Affirmed in part, reversed in part, and remanded by published
opinion.   Judge Diaz wrote the opinion, in which Chief Judge
Traxler and Judge Thacker joined.


ARGUED: Daniel Frank Goldstein, BROWN, GOLDSTEIN & LEVY, LLP,
Baltimore, Maryland, for Appellant.     Karen Louise Federman
Henry, COUNTY ATTORNEY’S OFFICE FOR THE COUNTY OF MONTGOMERY,
Rockville, Maryland, for Appellee.  ON BRIEF: Joseph B. Espo,
Matthias L. Niska, BROWN, GOLDSTEIN & LEVY, LLP, Baltimore,
Maryland, for Appellant.     Marc P. Hansen, County Attorney,
Patricia P. Via, Chief, Division of Litigation, Patricia
Lisehora Kane, Associate County Attorney, COUNTY ATTORNEY’S
OFFICE FOR THE COUNTY OF MONTGOMERY, Rockville, Maryland, for
Appellee.     Susan Mizner, Claudia Center, AMERICAN CIVIL
LIBERTIES UNION FOUNDATION, San Francisco, California; Amy
Robertson, CIVIL RIGHTS EDUCATION AND ENFORCEMENT CENTER,
Denver, Colorado, for Amici Curiae.




                              2
DIAZ, Circuit Judge:

       Montgomery       County,       Maryland,            opened    a    new,    consolidated

call    center     using       software         that       was    inaccessible         to    blind

employees.            The     County       did       not     transfer         employee       Yasmin

Reyazuddin, who is blind, to the call center along with her

sighted coworkers.              The County also did not hire her for a

vacant     position         there.         Reyazuddin            challenged      the       County’s

actions as violating Section 504 of the Rehabilitation Act of

1973,     29    U.S.C.A.       § 794       (West       2014),       or    Title       II    of   the

Americans with Disabilities Act of 1990 (the “ADA”), 42 U.S.C.

§ 12131 et seq. (2012).

       Section 504 forbids an employer from discriminating against

an employee because of her disability.                               It also requires an

employer to accommodate an employee with a disability who can

perform    the    essential          functions         of    a    job    with     a    reasonable

accommodation.         But an employer avoids liability if it can show

that    providing       an     accommodation           would        constitute        an    “undue

hardship.”

       We find that genuine issues of material fact remain as to

(1) whether Reyazuddin could perform the essential job functions

of a call center employee; (2) whether the County reasonably

accommodated her; and (3) if the County did not, whether its

failure    to    do    so     may    be    excused         because       of   undue    hardship.

Accordingly,      we        reverse       the    district         court’s      order       granting

                                                 3
summary    judgment     to   the    County     on   Reyazuddin’s        Section    504

claims.    However, we affirm the district court’s order granting

summary judgment to the County on Reyazuddin’s Title II claim

because public employees cannot use Title II to bring employment

discrimination claims against their employers.



                                          I.

                                          A.

     In    early   2008,     as    part   of    its     $80   million    Technology

Modernization Project, Montgomery County decided to consolidate

its 1,500 telephone numbers for 38 offices and departments into

one call center that residents could reach by dialing 311.                         The

County’s goals for its consolidated call center (dubbed MC311)

were to achieve accountability, responsiveness, and efficiency.

     In January 2009, the County decided to outfit MC311 with

software    called      Siebel     Public      Sector    8.1.1,   licensed        from

Oracle.     This software met the County’s goals, was compatible

with other Oracle software already used by the County, and was

cost-effective     as    a   “commercial-off-the-shelf,”          as     opposed    to

custom, product.

     The Siebel software can be operated in two modes: high-

interactivity      or    standard-interactivity.              High-interactivity




                                          4
mode       is    not    accessible 1      because      it   is    written     in    Microsoft

ActiveX,          a    technology      that       screen     reader     software      cannot

interpret.             Screen reader software enables users who are blind

to operate a computer through keyboard shortcuts, instead of

mouse      clicks,       and   by    hearing      synthesized       speech     or    using    a

refreshable Braille display, in place of reading the screen.

Standard-interactivity mode, however, is accessible because it

is written in standard HTML and Javascript, which are compatible

with screen reader software.

       The       County’s      license     allows      it    to   run   the    software      in

either mode.            Moreover, it is technologically feasible for some

employees         to    operate     the    software     in    high-interactivity         mode

while others work in standard-interactivity mode.                             Doing so does

not impact overall employee productivity.

       The County nonetheless chose to configure the software at

MC311 in high-interactivity mode for all employees. 2                                In this

mode,           employees      use        three       features--the         CTI      Toolbar,


       1
       By “accessible” here and in other variations throughout
the opinion, we mean “accessible to blind employees.”
       2
        The   County   expects  employees   operating  in   high-
interactivity mode to handle fifty-five to seventy calls per day
with an average call time of three minutes plus ninety seconds
to finish their after-call work.    Although we do not know how
(or if) operating a call center in standard-interactivity mode
affects productivity, the record shows that four other U.S. call
centers are accessible by operating in both modes, operating in
standard-interactivity mode only, or using a custom solution.


                                                  5
SmartScript,      and    Email    Response--that           are    not    available     in

standard-interactivity mode.

      The CTI Toolbar integrates MC311’s phone system and the

Siebel      software.      Employees      use       the     CTI   Toolbar       to    make

themselves available to take calls and to answer and transfer

calls.       SmartScript      generates       a    pop-up    window      containing     a

script for employees to read to callers, a field for typing

notes about the call, and a function to transfer emergency calls

to   911.      Employees      then   close        SmartScript      and    the    service

request template pops up with fields automatically filled in

with the information previously typed into SmartScript.

      The service request form has a keyword search function that

generates     a   list   of    articles       to    help    employees      answer     the

caller’s     question.        Once   employees       have    identified         the   best

article, they click on the “attach solution” button to add it to

the service request form.            This in turn causes several fields in

the form to populate automatically.                   These fields include the

appropriate department; the County’s “public answer,” which is a

“short, concise paragraph about how the [C]ounty handles” the

caller’s particular concern; and instructions for employees on

how to handle the call.          J.A. 487–88. 3



      3
       Email Response “is a program that allows [employees] to
send emails to customers in response to a telephone call.”
(Continued)
                                          6
       The County first asked Oracle about MC311’s accessibility

in November 2009, more than eleven months after purchasing the

license.         Oracle     told     the     County        that     the     CTI   Toolbar,

SmartScript, and Email Response features of the Siebel software

would not be accessible until mid-2010.                       Oracle also estimated

that     it    would     cost    $200,000        to    make    the    Siebel      software

accessible       through    standard-interactivity                mode,     without   those

three features.

       Over     the      next     sixteen        months,      the     County      received

increasing estimates about the cost of accessibility from Opus

Group,    a    subcontractor       hired    to        configure     and     implement   the

Siebel software at MC311.             The first estimate to make standard-

interactivity mode available at MC311 was $222,075.                               A second

option    to     give    “back     office”       employees         access    to   assigned

service       requests    would    cost     $65,625.          By    April     2011,   these

estimates rose to $399,270 and $240,867, respectively.                             All the

while, the CTI Toolbar, SmartScript, and Email Response features

remained inaccessible.




Reyazuddin v. Montgomery Cnty., Md., 7 F. Supp. 3d 526, 533 (D.
Md. 2014).




                                             7
                                           B.

        Since 2002, Yasmin Reyazuddin has worked in the County’s

Department of Health and Human Services, most recently as one of

five Information and Referral Aides.                   In that role, she answered

questions       from      County      residents          who    called    about        the

Department’s         services,     referrals      to   County      programs,    and    the

status of applications for benefits.                     Reyazuddin, who is blind,

performed her job using screen reader software.                       Reyazuddin also

used a Braille embosser, which allowed her to print in Braille.

     Reyazuddin first learned about the County’s plans to create

MC311    in    May    2008   from    her   then-supervisor.            Over    the    next

sixteen       months,     Reyazuddin       and     the     other     Information      and

Referral      Aides     received    updates       on   MC311’s     general     progress.

During    this       time,   the    County       was   determining     how     to    staff

MC311’s forty-nine positions.

     In October 2009, JoAnne Calderone, Manager for Planning,

Accountability, and Customer Service in the Department of Health

and Human Services, met with the five Information and Referral

Aides and formally told them that their unit was transferring to

MC311.     The County planned to transfer Reyazuddin and one other

aide on November 9, with the three remaining aides to follow two

weeks later.         The other four Information and Referral Aides are

not blind.



                                             8
      Reyazuddin expressed concern about MC311’s accessibility.

She   also     told   Calderone      that       she   had   scheduled   leave     from

October 28 to November 28, 2009, for a trip to India.                       Calderone

emailed this information to Leslie Hamm, then-Manager and now-

Director of MC311, who responded that the County’s Disability

Program    Manager,     Ricky   Wright,          suggested    that   “the    date   of

[Reyazuddin’s] detail to MC311 be delayed indefinitely or at

least until . . . she returns from pre-approved leave.”                           J.A.

1046.

      One aide transferred as scheduled on November 9.                         By the

time Reyazuddin returned from her trip, the other three aides

had     also   transferred      to    MC311.          But    Reyazuddin     was     not

transferred and instead was told to return to her pre-vacation

job site at the main administrative building for the Department

of Health and Human Services.                    She continued to perform her

duties    by    answering    the      Department        information     line      until

February 4, 2010, when the information line was switched off and

calls were transferred to MC311.                  For one day, Reyazuddin had

nothing to do.         Then the County decided that MC311 would not

handle Manna Food Center referrals, which allow eligible low-

income individuals to receive food from a private, non-profit

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

full-time work.



                                            9
        In    March    2010,    Reyazuddin        was    assigned     to    work    in    the

Department’s          Aging    and     Disability        Unit   for    Adult       Services

Intake. 4       For    the     next    six   months,      Reyazuddin’s        supervisors

struggled to find work for her.                   They thought her work situation

was temporary until she could be transferred to MC311.                             However,

on October 1, 2010, Wright informed Reyazuddin that she would

not be transferring to MC311 because it would be too expensive

for     the    County     to    make     the      software      accessible.          Wright

“recommend[ed] the reasonable accommodation of ‘reassignment to

a vacant position’ (priority consideration) in accordance with”

the   County     employees’       collective        bargaining      agreement.           J.A.

1045.

      From 2010 to 2012, Reyazuddin had the same salary, grade,

and benefits as she did before MC311’s launch.                        But although her

supervisors pieced together tasks for her to perform, she did

not have full-time work.

      In      2012,     Reyazuddin       and      eight     other     applicants         were

interviewed for one of two vacancies at MC311.                             Reyazuddin was

not one of the two top-scoring applicants who the interviewers

recommended to fill the vacancies.                      Although not required to do




      4
       This assignment came after the County had given her a
choice between working with the Children’s Resource Center or
the Aging and Disability Resource Unit.


                                             10
so under County policy, Hamm ultimately hired the recommended

applicants.

                                              C.

      Reyazuddin        alleges       that,    in     2009,      the    County      violated

Section      504   of    the     Rehabilitation            Act   by    (1)      failing   to

accommodate her disability by making MC311’s software accessible

and (2) discriminating against her when it did not transfer her

to   MC311    along     with    her    coworkers.           Reyazuddin       also    alleges

that, in 2012, the County violated Title II of the ADA by not

hiring her to fill an MC311 vacancy. 5

      Reyazuddin        retained       an     expert,       Temeko      Richardson,       to

evaluate the cost of making MC311 accessible by developing a

custom “widget” as a workaround for the CTI Toolbar.                            The custom

solution      would     be     compatible          with    screen      reader     software.

Richardson had previously seen this alternative at work in other

call centers.      Her lowest cost estimate was $129,600.

      The County had an expert, Brad Ulrich, review Richardson’s

report.      Ulrich noted flaws in the report and estimated that the

actual    cost     to   implement       the        least    expensive        accessibility

option suggested by Richardson would be $648,000.


      5
       The district court granted Reyazuddin’s motion for leave
to file a supplemental complaint in July 2012 to add allegations
about the County’s 2012 conduct, but the court previously denied
her motion for leave to amend her complaint to add a claim that
the County’s 2009 conduct violated Title II.


                                              11
       To give these cost estimates some context, the County’s

total budget for fiscal year 2010 was $3.73 billion.                                   MC311’s

budget for fiscal year 2011 was about $4 million.                                  By late

January 2011, the County had spent about $11.4 million on MC311.

But the County estimates that MC311 has saved it $10.3 million

in fiscal years 2010 and 2011.

       Following a period of discovery, both parties moved for

summary     judgment.        The   district      court        granted       the    County’s

motion      and    denied    Reyazuddin’s.         Regarding          the     failure-to-

accommodate claim, the court found that a genuine issue existed

“as to whether [Reyazuddin’s] proposed accommodation permits her

to     perform      the   essential     functions        of     the     [MC311]         job.”

Reyazuddin, 7 F. Supp. 3d at 548.                But the court determined that

the County reasonably accommodated Reyazuddin by providing her

with    comparable        employment.      Id.    at     551.         The     court         also

concluded that no genuine issue existed on the County’s undue

hardship defense and that the County prevailed on that defense

as a matter of law.          Id. at 549.

       On    Reyazuddin’s      disparate-treatment            claim     based          on   the

County      not    transferring    her     to    MC311,        the    district          court

determined that the claim rose and fell with the failure-to-

accommodate claim; because the County had shown as a matter of

law     that      accommodating    Reyazuddin       at     MC311        was       an    undue

hardship, its decision to not transfer her lacked discriminatory

                                         12
intent.    Id. at 554-55.          Finally, as to Reyazuddin’s Title II

claim, the court concluded that Reyazuddin failed to present

sufficient evidence that the County’s decision not to hire her

for a vacant MC311 position was pretext for discrimination.                     Id.

at 557-58.

     Reyazuddin appealed.



                                          II.

     We    review      de   novo   a    district   court’s     summary     judgment

order.    D.L. ex rel. K.L. v. Balt. Bd. of Sch. Comm’rs, 706 F.3d

256, 258 (4th Cir. 2013).              “Summary judgment is appropriate only

where there is no genuine issue of material fact and the movant

is entitled to judgment as a matter of law.”                  Id.   The pertinent

inquiry is whether “there are any genuine factual issues that

properly can be resolved only by a finder of fact because they

may reasonably be resolved in favor of either party.”                      Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).                   The evidence

must be viewed in the light most favorable to the non-moving

party,    with   all    reasonable       inferences   drawn    in   that    party’s

favor.     D.L., 706 F.3d at 258.               “The court therefore cannot

weigh the evidence or make credibility determinations.”                      Jacobs

v. N.C. Admin. Office of the Courts, 780 F.3d 562, 569 (4th Cir.

2015).



                                          13
       Section 504 of the Rehabilitation Act mandates that “[n]o

otherwise      qualified     individual       with    a   disability . . .       shall,

solely by reason of her or his disability, be excluded from the

participation in, be denied the benefits of, or be subjected to

discrimination under any program or activity receiving Federal

financial assistance.”             29 U.S.C.A. § 794(a).          Relevant to this

appeal, Section 504 defines “program or activity” as “all of the

operations of . . . a department . . . of a State or of a local

government.” 6        Id. § 794(b)(1)(A).

       Employment discrimination claims brought under Section 504

are evaluated using the same standards as those “applied under

[T]itle I of the Americans with Disabilities Act of 1990.”                           Id.

§ 794(d).        Of significance here, Title I prohibits employers

from       “discriminat[ing]       against    a    qualified    individual      on   the

basis of disability” by “not making reasonable accommodations to

the    known     physical     or     mental       limitations     of   an     otherwise

qualified individual with a disability who is an applicant or

employee, unless [a] covered entity can demonstrate that the

accommodation would impose an undue hardship on the operation of

the        business     of    such      covered        entity.”          42     U.S.C.

§ 12112(b)(5)(A)         (2012).        A     “qualified     individual”       is    “an


       6
       The County on appeal has abandoned its defense to Section
504 liability based on MC311 not receiving federal funding.



                                             14
individual who, with or without reasonable accommodation, can

perform the essential functions of the employment position that

such individual holds or desires.”                    Id. § 12111(8).

        We consider in turn Reyazuddin’s Section 504 failure-to-

accommodate and disparate-treatment claims.

                                               A.

        To     establish       a     prima     facie        case    on     her     failure-to-

accommodate claim, Reyazuddin must show that (1) she qualifies

as an “individual with a disability” as defined in 29 U.S.C.A.

§ 705(20); (2) the County had notice of her disability; (3) she

could        perform    the     essential          functions       of     her    job    with     a

reasonable accommodation; and (4) the County refused to make any

reasonable       accommodation.               29    U.S.C.A.       § 794(a);          Wilson    v.

Dollar Gen. Corp., 717 F.3d 337, 345 (4th Cir. 2013).

        Even if Reyazuddin establishes her prima facie case, the

County avoids liability if it can show as a matter of law that

the proposed accommodation “will cause ‘undue hardship in the

particular circumstances.’”                  Halpern v. Wake Forest Univ. Health

Scis., 669 F.3d 454, 464 (4th Cir. 2012) (quoting U.S. Airways

v.   Barnett,          535    U.S.     391,        401-02     (2002)).           Courts       have

reconciled and kept distinct the “reasonable accommodation” and

“undue hardship” requirements by holding that, at the summary

judgment        stage,        the     employee        “need        only     show       that     an

‘accommodation’          seems      reasonable        on    its    face,”       and    then    the

                                               15
employer     “must     show      special       (typically          case-specific)

circumstances that demonstrate undue hardship.”                     Barnett, 535

U.S. at 401-02.

     That    Reyazuddin      satisfied       the    first    two    elements    is

undisputed, but the parties disagree on the third and fourth

elements and the County’s undue hardship defense.

                                        1.

     On     the    third     element,    the       parties    dispute     whether

Reyazuddin’s      proposed   accommodations        are   reasonable     and    what

constitutes the essential job functions of an MC311 employee.

Title I provides that a “reasonable accommodation” includes

     (A) making existing facilities used by employees
     readily accessible to and usable by individuals with
     disabilities; and

     (B) job restructuring, part-time or modified work
     schedules,    reassignment to   a  vacant   position,
     acquisition or modification of equipment or devices,
     appropriate     adjustment   or   modifications    of
     examinations, training materials or policies, the
     provision of qualified readers or interpreters, and
     other similar accommodations for individuals with
     disabilities.

42 U.S.C. § 12111(9).

     To overcome a motion for summary judgment, Reyazuddin was

required to “present evidence from which a jury may infer that

the [proposed] accommodation is ‘reasonable on its face, i.e.,

ordinarily or in the run of cases.’”                Halpern, 669 F.3d at 464




                                        16
(quoting Barnett, 535 U.S. at 401).                A reasonable accommodation

is one that is feasible or plausible.               Barnett, 535 U.S. at 402.

       To determine essential job functions, Title I requires that

consideration “be given to the employer’s judgment as to what

functions     of    a   job     are   essential,    and    if   an   employer    has

prepared       a    written       description        before       advertising     or

interviewing applicants for the job, this description shall be

considered evidence of the essential functions of the job.”                       42

U.S.C. § 12111(8).

       We agree with the district court that a genuine issue of

material fact exists on this element.                Reyazuddin has suggested

two accommodations that she says will allow her to perform the

essential job functions of an MC311 employee: the County could

(1) configure its Siebel software to run concurrently in the

accessible standard-interactivity mode or (2) create a custom

workaround “widget” for the CTI Toolbar.

       Reyazuddin supported the reasonableness of these proposals

through evidence from her expert, Temeko Richardson.                     Richardson

worked with two call centers in California and Pennsylvania that

were       accessible      by     operating        simultaneously        in     high-

interactivity and standard-interactivity modes.                   She also worked

with   a    third   call      center   in    Illinois     where    all   employees,

including one blind employee, operated in standard-interactivity



                                            17
mode.        And    a     fourth     call        center       client       in   Pennsylvania            was

accessible through a custom solution.

       The    County         counters          that     its      decision       to    configure         the

Siebel       software        in    the        inaccessible          high-interactivity               mode,

with    the    CTI      Toolbar          in    particular,          “maximize[s            call      center

employees’] efficiency and productivity . . . while keeping the

cost    of    delivering           government          services          as   low     as       possible.”

Appellee’s Br. at 17.                    The record, however, is silent about the

productivity         of      employees          operating          in    standard-interactivity

mode, and so the County is left to speculate that employees

operating          without         the        bells        and     whistles          of        the   high-

interactivity mode configuration must be less productive.                                              Even

if   we   were      willing         to        credit       that    assumption,            it    does   not

necessarily         follow        that        using    the       high-interactivity              software

configuration           is    an    essential           job       function,       particularly           in

light of Reyazuddin’s evidence of other call centers functioning

without it.

       The      County            also        argues        that         Reyazuddin’s            proposed

accommodations would not allow her to perform the essential job

function of reading maps and PDF documents, which are used to

respond       to    MC311’s         most        frequent          call    about       the       estimated

arrival time for the next public bus.                               However, this contention

is     contrary         to    the        deposition           testimony         of    the        County’s

Disability         Program          Manager,           Ricky       Wright,       that          Reyazuddin

                                                      18
“certainly has the knowledge, skills and abilities” to perform

the essential functions of the MC311 job.                    J.A. 317.         Moreover,

when Reyazuddin applied for a vacancy at MC311 in 2012, she was

interviewed after the Office of Human Resources determined that

she met the minimum qualifications.                 In light of this evidence,

we think that a genuine issue remains as to whether Reyazuddin

could    perform    the    essential     job   functions        with    a     reasonable

accommodation.

                                         2.

      Turning to the fourth element of the failure-to-accommodate

claim,      Reyazuddin     argues     that    the     district     court      erred   by

finding as a matter of law that the County provided a reasonable

accommodation       by    reassigning    her     to      “comparable        employment.”

Reyazuddin, 7 F. Supp. 3d at 551.                   We agree that the district

court improperly engaged in fact finding instead of viewing the

evidence in the light most favorable to Reyazuddin.

      An employer may reasonably accommodate an employee without

providing the exact accommodation that the employee requested.

Rather,     the    employer    may     provide      an    alternative         reasonable

accommodation.       See Hankins v. The Gap, Inc., 84 F.3d 797, 800

(6th Cir. 1996) (“[T]he employer providing the accommodation has

the      ultimate        discretion      to      choose         between        effective

accommodations, and may choose the less expensive accommodation

or    the    accommodation     that     is    easier      for    it    to    provide.”)

                                         19
(quoting EEOC Interpretive Guidance on Title I of the Americans

with Disabilities Act, 29 C.F.R. pt. 1630 app. at 406 (2014)).

Title    I    provides         “job    restructuring”             and   “reassignment          to    a

vacant position” as examples of reasonable accommodations.                                          42

U.S.C.       § 12111(9).          Nonetheless,              “a   reasonable         accommodation

should       provide       a    meaningful          equal         employment            opportunity.

Meaningful equal employment opportunity means an opportunity to

attain       the    same       level    of     performance            as     is     available       to

nondisabled         employees         having       similar        skills      and        abilities.”

H.R. Rep. No. 101-485, pt. 2, at 66 (1990), reprinted in 1990

U.S.C.C.A.N. 303, 349.

      Here, although Reyazuddin maintained her salary, pay grade,

and   benefits,        the      County       cobbled         together      an      assortment       of

“make-work” tasks that did not amount to full-time employment.

For   example,        an   email       from    a    County        employee        shortly    before

Reyazuddin was assigned to work in the Aging and Disability Unit

expressed concern that her job responsibilities would be “make

work” as opposed to “real, meaningful work.”                                 J.A. 1041.        In a

later        email,        JoAnne       Calderone,               Manager          for     Planning,

Accountability, and Customer Service in the Department of Health

and   Human        Services,      suggested             a   meeting     to    discuss        how    to

provide Reyazuddin “with a full day of meaningful work.”                                        J.A.

1024.    And a separate series of emails demonstrates a tug-of-war

between Calderone and MC311 over Manna referrals, Reyazuddin’s

                                                   20
primary     responsibility,      with    the   work    being    transferred      from

MC311 to Reyazuddin, back to MC311, and then back to Reyazuddin

despite a County employee’s opinion that residents “would be

served better” by having these referrals handled within MC311.

J.A.        294-95;      Plaintiff’s    Cross-Motion     for     Partial      Summary

Judgment at Exhibit 65, Reyazuddin, No. 8:11-cv-951.

       Moreover, in her supplemental affidavit, Reyazuddin stated

that Manna referrals--her only “regular task[]”--had decreased

and “could be done in about one hour per day.”                   J.A. 1015.       She

also estimated that it “takes a maximum of four to five hours

per day . . . to complete all of [her] work.”                  Id.

       We hold that the record evidence creates a genuine issue of

material fact as to whether the accommodation provided by the

County was reasonable.           See Pandazides v. Va. Bd. of Educ., 13

F.3d    823,       833    (4th   Cir.   1994)     (noting      that     “reasonable

accommodation” is a question of fact).

                                         3.

       As    an    alternative    to    finding   that    Reyazuddin       did    not

establish a prima facie case, the district court held that the

County prevailed on its undue hardship defense as a matter of

law.    We cannot agree.

       An employer is not liable under Section 504 if it “can

demonstrate        that    the   accommodation        would    impose    an    undue

hardship      on    the    operation    of    [its]   business.”         42    U.S.C.

                                         21
§ 12112(b)(5)(A).            Title    I    defines      “undue     hardship”       as   “an

action    requiring        significant        difficulty          or    expense,        when

considered in light of the factors set forth in subparagraph

(B).”    Id. § 12111(10)(A).              Subparagraph (B), in turn, provides

a non-exhaustive list of relevant factors:

       (i) the nature and cost of the accommodation needed
       under this chapter;

       (ii) the overall financial resources of the facility
       or facilities involved in the provision of the
       reasonable   accommodation;   the  number   of    persons
       employed at such facility; the effect on expenses and
       resources,    or   the   impact   otherwise    of    such
       accommodation upon the operation of the facility;

       (iii) the overall financial resources of the covered
       entity; the overall size of the business of a covered
       entity with respect to the number of its employees;
       the number, type, and location of its facilities; and

       (iv) the type of operation or operations of the
       covered entity, including the composition, structure,
       and functions of the workforce of such entity; the
       geographic separateness, administrative, or fiscal
       relationship of the facility or facilities in question
       to the covered entity.

Id. § 12111(10)(B).

       The district court gave two reasons for its conclusion that

the    County    was   entitled       to    summary       judgment      on   its    undue

hardship defense.            First, the court criticized the estimated

cost     of     $129,000      proffered          by     Reyazuddin’s         expert      as

“unsupported” because “it [did] not take into account increased

costs for maintenance and upkeep.”                    Reyazuddin, 7 F. Supp. 3d at

549.      Second,      the    court       explained       that,    as    a   result      of

                                            22
Reyazuddin’s proposed accommodation, the employee-facing portion

of   MC311    “would    be     altered    and     would     result      in    increased

maintenance and more downtime, which could spill over into the

customer service realm.”            Id.        We believe that the district

court’s    analysis    improperly        weighed      conflicting      evidence,       did

not view the evidence in the light most favorable to Reyazuddin,

and overemphasized one factor while overlooking the others.

      “At the summary judgment stage the judge’s function is not

[her]self to weigh the evidence and determine the truth of the

matter but to determine whether there is a genuine issue for

trial.”      Anderson, 477 U.S. at 249.                  By concluding that the

lowest estimate of cost was “unsupported,” the district court

credited     the    County’s     expert,       Brad    Ulrich,       and   discredited

Reyazuddin’s expert, Temeko Richardson.                   At this point, however,

it   is   undisputed    that    both     Ulrich    and     Richardson        qualify    as

experts.      The     evidence    therefore        sets    up    a    battle    of     the

experts, which should not be resolved at summary judgment.

      In addition, the district court focused almost exclusively

on the cost of the accommodations, without regard to the other

statutory factors.        For instance, the district court’s analysis

does not mention the number of employees at MC311 (forty-nine)

or the considerable savings the County realized from creating a

centralized call center ($10 million).



                                          23
      The district court also did not acknowledge the County’s

substantial        personnel       resources       at     MC311       during      the

configuration and implementation of the Siebel software.                       At the

project’s peak, four Opus Group consultants were working for the

County on MC311; one consultant who worked 40 hours per week for

the County and spent 80% of his time doing maintenance of the

call center application testified that he was “not too busy”;

the County paid Opus Group $5,000 per week; and the County had a

Senior IT Specialist on staff who was certified as a Siebel

consultant.       J.A. 583, 588-89, 594, 782.             Thus, the evidence is

in dispute about the additional resources the County would have

needed to configure, implement, and maintain the Siebel software

in   standard-interactivity         mode    or   adopt    another    accessibility

solution.

      Aside from cost, the district court credited the County’s

arguments       that    the    proposed    accommodations     could       negatively

affect    the     overall     operation    of    MC311,   result     in   increased

system maintenance and downtime, and potentially “spill over” to

impact the overall customer service experience.                      Reyazuddin, 7

F.   Supp.   3d    at    549.     This     analysis     misapplies    the   summary

judgment standard.            The evidence should be viewed in the light

most favorable to Reyazuddin as the non-moving party, not the

County.      Reyazuddin presented evidence of other call centers

operating       simultaneously     in     high-interactivity        and   standard-

                                           24
interactivity       mode      as   well    as    her    expert’s    opinion         that   the

proposed solutions for accessibility would “allow a blind user

to   work   at    MC311      without      altering      the   experience       of    sighted

users.”      J.A.        909.       Moreover,       speculation        about    spillover

effects cannot aid the County in establishing its undue hardship

defense as a matter of law.

      The district court also relied on an irrelevant factor in

assessing    undue       hardship--the          County’s      budget    for    reasonable

accommodations.              Specifically,        the   court     noted   the       County’s

“meager budget for reasonable accommodations: the first $500 is

paid for by the employee’s department.                          Whatever costs remain

can be paid from a $15,000 line-item in the County’s overall

budget.”    Reyazuddin, 7 F. Supp. 3d at 549.

      Allowing         the    County   to       prevail    on    its    undue       hardship

defense based on its own budgeting decisions would effectively

cede the legal determination on this issue to the employer that

allegedly failed to accommodate an employee with a disability.

Taken to its logical extreme, the employer could budget $0 for

reasonable       accommodations        and      thereby    always      avoid   liability.

The County’s overall budget ($3.73 billion in fiscal year 2010)

and MC311’s operating budget (about $4 million) are relevant

factors.         See    42    U.S.C.      § 12111(10)(B)(ii)-(iii).                 But    the

County’s line-item budget for reasonable accommodations is not.



                                             25
       In    effect,       the       district          court    reduced     a    multi-factor

analysis to a single factor--cost--that the court believed was

simply too much for the County to bear.                               But while cost is

important, it cannot be viewed in isolation.                             Rather, it is the

relative cost, along with other factors, that matters.                                In that

regard,      we    think       it    particularly          relevant       that    other     call

centers have been able to accommodate blind employees.                                See Am.

Council of the Blind v. Paulson, 525 F.3d 1256, 1272 (D.C. Cir.

2008) (affirming the entry of a declaratory judgment on Section

504 liability in part by finding that “because other currency

systems     accommodate          the      needs    of     the    visually       impaired,    the

Secretary[        of     the    Treasury]’s            burden    in   demonstrating         that

implementing        an     accommodation           [to     make    U.S.     paper    currency

accessible to blind individuals] would be unduly burdensome is

particularly heavy”).

       Because we find a genuine issue for trial on the third and

fourth      elements       of       Reyazuddin’s         prima     facie    case     and    the

County’s defense, we reverse the district court’s order granting

summary      judgment      to       the    County        on     Reyazuddin’s      failure-to-

accommodate claim.

                                                  B.

       Reyazuddin’s            disparate-treatment              claim,    related     to    the

County’s decision to not transfer her to MC311 in 2009 along

with   her    sighted          colleagues,        overlaps        considerably      with    her

                                                  26
failure-to-accommodate claim.                To establish a prima facie case

of disparate treatment, Reyazuddin must show that she (1) has a

disability; (2) is otherwise qualified for the employment; and

(3)   was   excluded        from   that     employment     due    to    discrimination

solely on the basis of her disability.                   Doe v. Univ. of Md. Med.

Sys. Corp., 50 F.3d 1261, 1264-65 (4th Cir. 1995).                          As with the

failure-to-accommodate             claim,       the     first     element     here    is

undisputed.

      The “otherwise qualified” element is the same as the third

element of the failure-to-accommodate claim because a “qualified

individual”      is    someone       “who,       with     or     without     reasonable

accommodation,        can     perform     the     essential       functions     of    the

employment position that such individual holds or desires.”                           42

U.S.C. § 12111(8).           Thus, our earlier holding--that there is a

genuine issue of material fact as to whether Reyazuddin is able

to    perform   the      essential        job    functions       with   a    reasonable

accommodation--applies here as well.

      The third element contains two subparts: (1) an adverse

employment      action       and    (2)     discrimination        based      solely   on

disability.      The district court assumed without deciding that

Reyazuddin suffered an adverse employment action, but the County

argues on appeal that Reyazuddin did not because she continues

to be a Department of Health and Human Services employee with

the same salary, grade, and benefits as she had before MC311

                                            27
opened.    But, as discussed above, we think that a genuine issue

of material fact remains due to Reyazuddin’s evidence that her

new responsibilites involve make-work tasks that do not amount

to full-time work.

       Turning to the discrimination subpart, the district court

properly   applied     the   burden-shifting   framework    from     McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973).

       Under   the   McDonnell  Douglas  proof   scheme,  the
       plaintiff has the initial burden of proving a prima
       facie case of discrimination by a preponderance of the
       evidence.   If the plaintiff succeeds in proving the
       prima facie case, the burden shifts to the defendant
       to   articulate   some  legitimate,  nondiscriminatory
       explanation which, if believed by the trier of fact,
       would support a finding that unlawful discrimination
       was not the cause of the [adverse] employment action.
       If the defendant meets this burden of production, the
       presumption created by the prima facie case “drops out
       of the picture,” and the plaintiff bears the ultimate
       burden of proving that she has been the victim of
       intentional discrimination.

Ennis v. Nat’l Ass’n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 58

(4th    Cir.   1995)    (applying      this   framework    to   a    Title   I

discrimination    claim).        The   district   court    assumed    without

deciding that Reyazuddin met her initial burden.                Because the

County does not dispute this on appeal, we proceed on the same

assumption.

       Regarding the County’s burden, the district court concluded

that because the County had proved its undue hardship defense as

a matter of law, it had offered an irrefutably nondiscriminatory


                                       28
reason for not transferring Reyazuddin.              Reyazuddin, 7 F. Supp.

3d at 554-55.        Other than undue hardship, the County has not

offered any other nondiscriminatory reason for not transferring

Reyazuddin.        Because we hold that a genuine issue for trial

remains on the County’s undue hardship defense, that same issue

precludes summary judgment for the County under the McDonnell

Douglas framework.         We therefore reverse the district court’s

grant     of    summary    judgment   to     the   County     on   Reyazuddin’s

disparate-treatment claim.



                                      III.

      Reyazuddin’s final claim is that the County violated Title

II of the ADA by not hiring her to fill a vacancy at MC311.

Title      II      prohibits     discrimination        against        “qualified

individual[s] with a disability” in the delivery of “services,

programs, or activities of a public entity.”                42 U.S.C. § 12132.

The     district   court    assumed   without      deciding    that   Title   II

applies to public employment discrimination claims based on two

of our previous cases that similarly assumed without analysis

that Title II could be used in this context.                  Reyazuddin, 7 F.

Supp. 3d at 556 (citing Rogers v. Dep’t of Health & Envtl.

Control, 174 F.3d 431, 432-33 (4th Cir. 1999), and Doe, 50 F.3d

at 1264-65).



                                       29
       Our sister circuits have divided on this issue.                         See Bd. of

Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356, 360 n.1

(2001) (acknowledging but not resolving the split).                          The Second,

Seventh,      Ninth,      and   Tenth       Circuits    have     held   that    litigants

asserting public employment discrimination claims against their

state and local government employers cannot rely on Title II.

Brumfield v. City of Chicago, 735 F.3d 619, 626 (7th Cir. 2013);

Mary Jo C. v. N.Y. State & Local Ret. Sys., 707 F.3d 144, 171

(2d Cir. 2013); 7 Elwell v. Okla. ex rel. Bd. of Regents of the

Univ. of Okla., 693 F.3d 1303, 1313 (10th Cir. 2012); Zimmerman

v. Or. Dep’t of Justice, 170 F.3d 1169, 1178 (9th Cir. 1999).

In addition, the Third and Sixth Circuits “have expressed the

view       that   Title    I    is    the    exclusive    province      of     employment

discrimination         within        the    ADA.”      Elwell,    693   F.3d     at   1314

(citing Menkowitz v. Pottstown Mem’l Med. Ctr., 154 F.3d 113,

118-19 (3d Cir. 1998), and Parker v. Metro. Life Ins. Co., 121

F.3d 1006, 1014 (6th Cir. 1997)).                   Only the Eleventh Circuit has

reached a contrary conclusion.                 Bledsoe v. Palm Beach Cnty. Soil

& Water Conservation Dist., 133 F.3d 816, 820 (11th Cir. 1998).




       7
       The Second Circuit limited its holding to employers with
at least fifteen employees because Title I defines “employer” as
“a person . . . who has 15 or more employees.” Mary Jo C., 707
F.3d at 167 n.9, 171 & n.12 (quoting 42 U.S.C. § 12111(5)(A)).
The other three circuits did not.


                                              30
       We join the majority view.               The Second, Seventh, Ninth, and

Tenth        Circuits’     thorough     analysis     of     the    ADA’s       text   and

structure, both of which support the more limited reading of

Title II’s scope, is persuasive.                   See Brumfield, 735 F.3d at

624-29; Mary Jo C., 707 F.3d at 168-72; Elwell, 693 F.3d at

1306-14; Zimmerman, 170 F.3d at 1172-79.                    As these courts have

explained,       the     phrase   “services,      programs,       or   activities”     in

Title II most naturally refers to an entity’s outputs provided

to     the    public     rather    than    its    inputs,     such     as      employees.

Brumfield, 735 F.3d at 627; Mary Jo C., 707 F.3d at 167-68;

Elwell, 693 F.3d at 1306; Zimmerman, 170 F.3d at 1174.                                And

unlike Section 504 of the Rehabilitation Act, which extends to

employment discrimination claims by broadly defining “program or

activity” to mean “all of the operations” of a state or local

government, Title II does not provide a special definition for

“services,       programs,        or   activities.”         Compare       29     U.S.C.A.

§ 794(b)(1)(A) with 42 U.S.C. § 12131.

       Title II does, however, define “qualified individual” to

mean    “an     individual    with     a   disability     who,     with     or   without

reasonable modifications . . . meets the essential eligibility

requirements for the receipt of services or the participation in

programs or activities provided by a public entity.”                           42 U.S.C.

§ 12131(2).       In contrast, a “qualified individual” under Title I

is “an individual who, with or without reasonable accommodation,

                                           31
can perform the essential functions of the employment position.”

Id. § 12111(8).          Interpreting Title II not to cover employment

thus gives effect to Congress’s decision to define the term of

art “qualified individual” differently in Title I and Title II.

       In terms of structure, courts in the majority have noted

that Congress divided the ADA’s prohibitions on discrimination

against      individuals       with   disabilities           into     three    parts,      each

with   its     own     heading:    Title     I    for    employment,          Title   II    for

public services, and Title III for public accommodations.                                  Mary

Jo C., 707 F.3d at 169; Elwell, 693 F.3d at 1309; Zimmerman, 170

F.3d   at    1176.       To    read   Title       II    to    cover    employment       would

“diminish[],         duplicate[],     even       render[]      superfluous”       Title      I.

Elwell, 693 F.3d at 1309.                  That Title I and Title II should

encompass distinct spheres is further supported by Congress’s

decision to delegate authority to promulgate regulations to the

Equal Employment Opportunity Commission under Title I, but to

the Attorney General under Title II.                         Mary Jo C., 707 F.3d at

169-70 (comparing 42 U.S.C. § 12116 with § 12134(a)); Elwell,

693 F.3d at 1309 (same); Zimmerman, 170 F.3d at 1178 (same).

       Lastly,       Congress     expressly       cross-referenced            Title   I,    but

not    Title     II,    when    mandating         the    standards       that     apply      to

employment discrimination claims brought under Section 504 of

the Rehabilitation Act.               29 U.S.C.A. § 794(d).               This provides

strong evidence of Congress’s view that Title I, but not Title

                                             32
II, covers employment.             Elwell, 693 F.3d at 1312; Zimmerman, 170

F.3d at 1178.

       Based on the text and structure of Title II and the ADA, we

agree    with    the    majority     of    circuits     to    have    considered    the

question that Title II unambiguously does not provide a vehicle

for    public    employment        discrimination       claims.        The    Eleventh

Circuit in Bledsoe reached the opposite view after a cursory

recitation of part of Title II’s text, no analysis of the ADA’s

structure, and heavy reliance on legislative history and the

Attorney General’s regulations.                  133 F.3d at 820-23.          However,

our conclusion that Title II is unambiguous means that we do not

reach legislative history or regulations.                      Dep’t of Housing &

Urban Dev. v. Rucker, 535 U.S. 125, 132 (2002) (“[R]eference to

legislative      history      is    inappropriate       when    the    text    of   the

statute is unambiguous.”); Chevron, U.S.A., Inc. v. Natural Res.

Def. Council, Inc., 467 U.S. 837, 842-43 (1984) (“If the intent

of Congress is clear, that is the end of the matter; for the

court,     as    well    as   the     agency,      must      give    effect    to   the

unambiguously expressed intent of Congress.”).

       Our previous cases do not compel a different result.                          In

Rogers, we did not reach the appellee’s alternative argument

that     the    appellant     could       not    use   Title    II    to    bring   his

discrimination claim against his state employer.                           Instead, we

affirmed dismissal for failure to state a claim based on the

                                            33
appellee’s primary argument that “the ADA does not require [a

state] to provide the same level of benefits for mental and

physical disabilities in its long-term disability plan for state

employees.”    Rogers, 174 F.3d at 436.          For purposes of that

case, we implicitly assumed, but did not decide, that Title II

covered employee benefits.        And in Doe, the appellant advanced

his claim against his state employer under both Section 504 of

the Rehabilitation Act and Title II of the ADA.            50 F.3d at

1262.    Thus, we had no occasion to decide whether the appellant

could have used Title II alone.          Here, in contrast, Reyazuddin

alleges that the County’s 2012 conduct violated only Title II

and not the Rehabilitation Act.      J.A. 51-52.

     Because   we   hold   that    public   employment   discrimination

claims may not be brought under Title II, we affirm the district

court’s summary judgment order on Reyazuddin’s Title II claim. 8




     8
       Reyazuddin also contends that the County had an obligation
when first purchasing new software to ensure that it was
accessible to employees with disabilities “to the maximum extent
feasible.” Appellant’s Br. at 32 (quoting 28 C.F.R. § 35.151(b)
(2014) and citing 42 U.S.C. § 12183(a)(2)).     She borrows this
standard from regulations promulgated by the Attorney General to
implement Title II of the ADA.         See 28 C.F.R. § 35.101.
Reyazuddin does not argue that the County’s asserted obligation
arises under the Rehabilitation Act alone, but instead posits
that “Title II rules and regulations apply to Section 504.”
Appellee’s Br. at 30.      However, our holding that Reyazuddin
cannot use Title II to bring a claim against the County
forecloses this argument.


                                    34
                              IV.

     For the reasons given, the district court’s judgment is

affirmed in part and reversed in part, and the case is remanded

for further proceedings.

                                              AFFIRMED IN PART,
                                              REVERSED IN PART,
                                                   AND REMANDED




                              35
