13‐4096‐cv Noll v. International Business Machines Corp.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2014
(Argued: October 8, 2014 Decided: May 21, 2015)
Docket No. 13‐4096‐cv
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ALFRED J. NOLL,
Plaintiff‐Appellant,
‐ v.‐
INTERNATIONAL BUSINESS MACHINES CORPORATION,
Defendant‐Appellee.
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Before: JACOBS, SACK, and DRONEY, Circuit Judges.
Alfred J. Noll appeals from the judgment of the United States District
Court for the Southern District of New York (Baer, J.), granting summary
judgment in favor of International Business Machines Corp. (“IBM”). Noll contends that IBM refused to reasonably accommodate his deafness when it
declined to caption all the videos and provide transcripts of all the audio files
that are hosted on its corporate intranet, in violation of the Americans with
Disabilities Act and the New York State Human Rights Law. We conclude that
(I) IBM reasonably accommodated Noll by providing American Sign Language
interpreters capable of translating intranet files, and (II) in light of this
accommodation, Noll has no claim that IBM failed to engage him in an
interactive process. Affirmed.
Judge Sack dissents in a separate opinion.
EUGENE FELDMAN (Michael A. Schwartz, Disability Rights Clinic, Syracuse University College of Law, Syracuse, New York, on the brief), Law Office of Eugene Feldman, Hermosa Beach, California, for Plaintiff‐Appellant.
WILLIS J. GOLDSMITH (Karen Rosenfield, on the brief), Jones Day, New York, New York, for Defendant‐Appellee.
DENNIS JACOBS, Circuit Judge:
Alfred J. Noll, a software engineer, sued his employer for disability
discrimination, alleging that International Business Machines Corp. (“IBM”) did
2 not accommodate his deafness by arranging that all video files stored on its
corporate intranet be captioned when posted and that all audio files likewise be
posted with transcripts. Noll asserts claims under the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12112, and the New York State Human
Rights Law (“NYSHRL”), N.Y. Exec. Law § 296, and appeals from the judgment
of the United States District Court for the Southern District of New York (Baer,
J.), dismissing those claims on summary judgment. The district court held that
IBM reasonably accommodated Noll by providing American Sign Language
(“ASL”) interpreters capable of translating files at Noll’s request and that, in light
of this accommodation, Noll has no claim that IBM failed to engage him in an
interactive process.
On appeal, Noll argues (I) that the district court overlooked portions of the
record creating a factual dispute about the effectiveness of ASL interpreters (and
hence, whether they were a reasonable accommodation), and (II) that IBM is
liable for failure to engage in an interactive process regardless of whether it
provided reasonable accommodation. We affirm.
3 BACKGROUND
Noll, who is deaf, has worked as a software engineer at IBM since 1984,
enjoying consistently positive performance reviews. In performing his work,
Noll uses several accommodations provided by IBM, including on‐site and
remote ASL interpreters, as well as measures described as “communication
access real‐time translation (‘CART’), internet based real‐time transcription, and
video relay services.” Noll is active on behalf of IBM employees who are deaf
and hearing‐impaired, and helped develop many of the company’s
accommodations for that group.
IBM maintains a corporate intranet for its approximately 440,000
employees worldwide. Content ranges from official management messages to
educational and training resources to such personal material as employees’
vacation photos. The intranet hosts a huge volume of video and audio files in a
number of locations, and thousands of files are continuously being uploaded.
IBM’s Media Library alone stores over 46,000 video files (and over 35,000 audio
files), of which only about 100 videos are captioned.
From 2003 to 2008, Noll frequently asked the Persons with Disabilities
program manager at IBM for captioning of particular intranet videos or
4 transcripts of audio files. On these occasions, IBM typically provided Noll with
transcripts (of both video and audio files) rather than on‐screen captioning.
However, the process of obtaining transcripts was imperfect: although transcripts
were generally made available within five days of Noll’s request, they
occasionally took longer, and links to transcripts were sometimes broken.
During the relevant period, Noll also had access to ASL interpreters who
provided real‐time translation services, either on‐site or remotely, for intranet
content as well as for live meetings. The process by which IBM employees at the
Poughkeepsie office (where Noll worked) could request and get ASL interpreters
was coordinated by Noll.
Noll, who is fluent in ASL, regularly used the interpreters when he
attended live meetings, and found them to be effective. Noll disliked using ASL
interpreters for videos because he found it “confusing and tiring” to look back
and forth between the video and the interpreter.
Noll filed this action on August 15, 2012, alleging that IBM discriminated
against him on the basis of his disability, in violation of the ADA and the
NYSHRL, by refusing to provide the accommodation he demanded: that, at the
time they are posted, all intranet videos be captioned and all audio files have
5 transcripts. Following discovery, IBM moved for summary judgment on June 18,
2013, arguing, among other things, that (1) the accommodations it provided‐‐
including ASL interpreters‐‐were plainly reasonable, and (2) Noll’s request that
all videos be captioned and all audio files be transcribed was prima facie
unreasonable. The district court granted IBM’s motion on the ground that IBM
reasonably accommodated Noll by providing ASL interpreters. The court also
rejected Noll’s claim that IBM failed to engage in an interactive process,
reasoning that such a claim cannot be maintained if the employer provided
reasonable accommodation.
On appeal, Noll argues that (I) the district court ignored evidence in the
record creating a genuine dispute about the effectiveness of IBM’s
accommodations, and (II) an employer’s failure to engage in an interactive
process suffices for a disability discrimination claim, even if reasonable
accommodation was made.
DISCUSSION
We review de novo a district court’s grant of summary judgment. Mario v.
P & C Food Markets, Inc., 313 F.3d 758, 763 (2d Cir. 2002). Summary judgment
6 must be granted if “there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “[I]n
assessing the record to determine whether there is a genuine issue as to any
material fact, the court is required to resolve all ambiguities and draw all factual
inferences in favor of the party against whom summary judgment is sought.”
Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 36 (2d Cir. 1994). A genuine
issue of material fact is one that “might affect the outcome of the suit under the
governing law” and as to which “a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
I
The ADA and the NYSHRL require an employer to afford reasonable
accommodation of an employee’s known disability unless the accommodation
would impose an undue hardship on the employer. 42 U.S.C. § 12112(b)(5)(A);
N.Y. Exec. L. 296(3)(a). To maintain a claim under either statute, an employee
must show that: “(1) [he] is a person with a disability under the meaning of the
ADA; (2) an employer covered by the statute had notice of his disability; (3) with
reasonable accommodation, [the employee] could perform the essential functions
7 of the job at issue; and (4) the employer has refused to make such
accommodations.” McBride v. BIC Consumer Prods. Mfg. Co., Inc., 583 F.3d 92,
97 (2d Cir. 2009) (internal quotation marks omitted); see also Graves v. Finch
Pruyn & Co., Inc., 457 F.3d 181, 184 n.3 (2d Cir. 2006) (“A claim of disability
discrimination under the New York State Human Rights Law . . . is governed by
the same legal standards as govern federal ADA claims.”). The only issue
disputed in this case is whether IBM has refused to provide reasonable
accommodations. Noll concedes that IBM provided him with transcripts and
ASL interpreters, but argues that those accommodations were unreasonable.
The reasonableness of an employer’s accommodation is a “fact‐specific”
question that often must be resolved by a factfinder. See Wernick v. Fed. Reserve
Bank of N.Y., 91 F.3d 379, 385 (2d Cir. 1996). But in a case such as this, in which
the employer has already taken (or offered) measures to accommodate the
disability, the employer is entitled to summary judgment if, on the undisputed
record, the existing accommodation is “plainly reasonable.” Id. In other words,
the plain reasonableness of the existing accommodation ends the analysis. There
is no need to engage in further burden‐shifting to consider whether the
employee’s requested accommodation would have been reasonable. See U.S.
8 Airways, Inc. v. Barnett, 535 U.S. 391, 400‐02 (2002); Borkowski v. Valley Cent.
School Dist., 63 F.3d 131, 137‐38 (2d Cir. 1995).
A reasonable accommodation is one that “enable[s] an individual with a
disability who is qualified to perform the essential functions of that position . . .
[or] to enjoy equal benefits and privileges of employment.” 29 C.F.R.
§ 1630.2(o)(1)(ii), (iii). Noll does not dispute that the accommodations provided
enabled him to perform the essential functions of his position. Noll’s claim is
that immediate access to all video and audio postings on IBM’s intranet was a
benefit or privilege of employment, like a parking space, health insurance, or a
locker. See 29 C.F.R. § 1630 app. (“The obligation to make reasonable
accommodation applies to all services and programs provided in connection
with employment, and to all non‐work facilities provided or maintained by an
employer for use by its employees[,] . . . [including] employer provided
cafeterias, lounges, gymnasiums, auditoriums, transportation and the like.”). We
will assume that is so for the purpose of this appeal.1
1 Noll seizes on a single sentence to argue that the district court deemed IBM’s accommodations sufficient because they enabled him to perform his job, and that the court thus failed to consider whether full access to the intranet was a benefit or privilege of employment. We disagree. The district court, which cited and quoted the relevant language of 29 C.F.R. 1630.2(o), clearly considered
9 Reasonable accommodation may take many forms, but it must be effective.
Barnett, 535 U.S. at 400 (“It is the word ‘accommodation,’ not the word
‘reasonable,’ that conveys the need for effectiveness. An ineffective ‘modification’
or ‘adjustment’ will not accommodate a disabled individual’s limitations.”); see
also Borkowski, 63 F.3d at 139. At the same time, employers are not required to
provide a perfect accommodation or the very accommodation most strongly
preferred by the employee. 29 C.F.R. § 1630 app. (“[Although] the preference of
the individual with a disability should be given primary consideration[,] . . . the
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.” (emphasis
added)); cf. Fink v. N.Y.C. Dep’t of Personnel, 53 F.3d 565, 567 (2d Cir. 1995)
(“[The Rehabilitation Act] does not require the employer to provide every
accommodation the disabled employee may request, so long as the
benefits and privileges. In any event, the decisive analysis does not turn on a distinction between work‐related intranet content, such as educational or training videos, and more informal or personal content.
10 accommodation provided is reasonable.”).2 All that is required is effectiveness.
The summary judgment record establishes that IBM provided Noll with
several accommodations. He had access to ASL interpreters, received transcripts
upon request, and could view certain videos (such as the CEO’s Annual
Broadcast) with captioning. Noll argues that the transcripts were inadequate
because they were occasionally subject to delays (though most were provided
within five days), and that captioning appeared on only a few of IBM’s videos.
While there may be disputes of fact as to the timeliness and adequacy of those
accommodations, there is no dispute that the ASL interpreters were available to
Noll whenever he wished to view a video or access an audio file,3 and that they
translated in real‐time. They were available both on‐site and remotely. And Noll
himself helped coordinate interpreter requests (including selection of individual
2 “[U]nless one of those subtle distinctions [between the ADA and the Rehabilitation Act] is pertinent to a particular case, we treat claims under the two statutes identically.” Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir. 2003).
3 Noll objects that although ASL interpreters were provided on demand, they were not provided until video or audio files had already been posted. That is an odd objection. The relevant question is whether there was appreciable delay between when Noll wanted to access a video or audio file and when he received such access through an interpreter. There is no evidence that such a delay ever occurred: qualified interpreters were available, either on‐site or remotely, on demand.
11 interpreters) at IBM’s Poughkeepsie office, where he worked. There is no
evidence that the interpreters were unqualified or failed to translate fully and
accurately. Noll concedes that he regularly used interpreters for work meetings
at IBM and found their services to be effective.
Noll nevertheless insists that there is a genuine question of material fact as
to the effectiveness of ASL interpreters for intranet videos. First, Noll cites his
own deposition testimony that he found ASL interpreters to be “not as effective”
as captioning. No genuine material question is raised by that testimony because
the law requires an effective accommodation, not the one that is most effective for
each employee. Moreover, a pure legal conclusion‐‐whether ASL interpreters
were effective‐‐is entitled to no weight at summary judgment. See Patterson v.
Cnty. of Oneida, N.Y., 375 F.3d 206, 219 (2d Cir. 2004).
Second, Noll cites his affidavit, which says he could not “simultaneously
watch the interpreter and the video” because it was “too confusing and tiring [to
switch] back and forth between the interpreter and the screen.” Although we
credit Noll’s assertion that it was “tiring and confusing” to divide his visual
attention between interpreters and his screen, this disadvantage does not render
interpretive services ineffective. A person who is deaf necessarily receives
12 auditory information from the other senses (principally, sight); so it can be
expected that many accommodations of deafness‐‐ASL interpretive services as
well as captioning‐‐will tax visual attention to some degree.4 An accommodation
for deafness therefore cannot be rendered ineffective by the need to divide visual
attention, without more. Cf. Fink, 53 F.3d at 567 (“[The reasonable
accommodation requirement] does not require the perfect elimination of all
disadvantage that may flow from the disability.”). We do not doubt that the
need to split visual focus was a disadvantage that likely tired or annoyed Noll.
We hold nevertheless that, in this case, the disadvantage did not render IBM’s
accommodations ineffective.5
4 According to Noll’s own expert, Dr. Jeff B. Pelz, persons with deafness who watch captioned videos use their peripheral vision to rapidly “sample” information from the video and the captions. Dr. Pelz opines that this technique is very difficult with transcripts (which, unlike captions, do not provide information in real time), but does not address ASL interpretation (which, like captions, does provide real‐time information). Likewise, the affidavit from Dr. Paul K. Miller addresses the limitations of transcripts, but does not address the effectiveness of real‐time ASL interpretation.
5 The dissent acknowledges that a reasonable accommodation need not eliminate all disadvantage stemming from disability, but then says that a trial is needed to decide whether ASL interpreters constitute any mitigation at all. Dissenting Op. at 5. The record confirms the obvious conclusion that Noll’s only objection is that ASL interpretation is not optimal and does not obviate all disadvantage of deafness.
13 Our holding is reinforced by two considerations. First, the term
“reasonable accommodation” is defined by regulation to include “the provision
of qualified readers or interpreters.” 29 C.F.R. § 1630.2(o)(2)(ii). Per se rules are
unreliable in the disability context, so ASL interpretive services may not always
constitute a reasonable accommodation. But according to the regulations,
interpreters are a common form of reasonable accommodation. See 29 C.F.R.
§ 1630 app. (“Part 1630 lists the examples, specified in title I of the ADA, of the
most common types of accommodation that an employer or other covered entity
may be required to provide.”).
Second, Noll concedes that ASL interpreters were effective for live business
meetings. There is no evidence that live meetings were somehow less visually
demanding or that Noll had to shift his eyes a shorter distance. At meetings, just
as with videos, Noll would need to watch the interpreter while simultaneously
looking elsewhere to observe the facial expressions and gestures of the speaker,
identify who was speaking, and follow any visual aids. Noll does not explain
why an accommodation that was effective in the one context was ineffective in
the other. At the summary judgment stage, Noll was required to adduce
14 evidence of a decisive difference.6 He has not done so.
Circumstances can be conceived in which the provision of interpreters
would be less obviously reasonable, or even plainly unreasonable, as when
technical material cannot be fully and accurately communicated by ASL. See U.S.
E.E.O.C. v. UPS Supply Chain Solutions, 620 F.3d 1103, 1105 (9th Cir. 2010)
(noting the lack of a “one‐to‐one correspondence” between ASL and English).
And not every person who is deaf or hard of hearing is able to understand ASL.
Logistical constraints arising out of the job itself might also make ASL
interpretation infeasible or unwieldy. But a record would be required to
document such extraordinary circumstances.
6 The dissent speculates that attending a meeting does not engage “the same visual and cognitive processes as watching a video,” Dissenting Op. at 6, and assumes (oddly) that the visual and cognitive challenges are less (rather than greater) in the meeting context. There is, however, no evidence of such a difference anywhere in the record. Although the nonmoving party is entitled to have inferences drawn in his favor at summary judgment, such inferences must be supported by record evidence. Anderson, 477 U.S. at 249 (“[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” (emphasis added)). Of course, the moving party bears the burden of showing an absence of material fact in the first place. Vt. Teddy Bear Co. v. 1‐800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004). IBM satisfied that burden by showing that the same ASL interpreters Noll considered effective for meetings were provided for videos.
15 In this case, Noll was fluent in ASL, and there is no evidence that the
interpreters IBM provided were unqualified or that the use of interpreters was
somehow inconsistent with Noll’s position as a software engineer. Noll’s sole
objection‐‐that he had to look back and forth between an interpreter and his
screen‐‐did not, without more, make that accommodation unreasonable.7
Because we affirm on this basis, we do not consider IBM’s alternative
argument that Noll’s proposed accommodation was prima facie unreasonable.
II
“To determine the appropriate reasonable accommodation it may be
necessary for the covered entity to initiate an informal, interactive process with
the individual with a disability in need of the accommodation.” 29 C.F.R.
§ 1630.2(o)(3). Noll contends that IBM failed to engage in such a process, and
advances an argument that this failure gave rise to an independent cause of
7 The dissent argues that “what works for some or even most individuals with similar disabilities may not work for all.” Dissenting Op. at 6. However, Noll’s sole objection to ASL interpreters is that he has to look back and forth, and that is a disadvantage that is inherent in the nature of that (sufficient) accommodation.
16 action.8 We disagree.
“The ADA envisions an ‘interactive process’ by which employers and
employees work together to assess whether an employee’s disability can be
reasonably accommodated.” Jackan v. N.Y.S. Dep’t of Labor, 205 F.3d 562, 566
(2d Cir. 2000) (citing 29 C.F.R. § 1630.2(o)(3)); see also Lovejoy‐Wilson v. NOCO
Motor Fuel, Inc., 263 F.3d 208, 218‐19 (2d Cir. 2001). At the same time, we have
held that “failure to engage in an interactive process does not form the basis of an
ADA claim in the absence of evidence that accommodation was possible.”
McBride, 583 F.3d at 100‐01. That is because “the ADA imposes liability for . . .
discriminatory refusal to undertake a feasible accommodation, not mere refusal
to explore possible accommodations where, in the end, no accommodation was
possible.” Id. at 100.
We conclude that the corollary is also sound: the ADA imposes no liability
for an employer’s failure to explore alternative accommodations when the
8 Noll argues variously that (1) IBM’s failure to engage in an interactive process was unlawful given its failure to reasonably accommodate him, and (2) IBM was required to engage in an interactive process regardless of whether it provided reasonable accommodation. Because we conclude, for reasons already discussed, that IBM reasonably accommodated Noll, we need only address the second argument.
17 accommodations provided to the employee were plainly reasonable. The point
of engaging in an interactive process is to “discover[] a means by which an
employee’s disability could have been accommodated.” McBride, 583 F.3d at
101. As our sister circuits have concluded, the interactive process is not required
when the end it is designed to serve‐‐reasonable accommodation‐‐has already
been achieved. See Rehling v. City of Chicago, 207 F.3d 1009, 1016 (7th Cir. 2000)
(“To hold employers liable for the failure of an interactive process regardless of
whether a reasonable accommodation was made would not serve the underlying
purposes of the ADA, and would, contrary to our own precedent, elevate the
ADA’s interactive process requirement to an end in itself.”); Hohider v. United
Parcel Serv., Inc., 574 F.3d 169, 193‐94 (3d Cir. 2009); Walter v. United Airlines,
Inc., 232 F.3d 892, 2000 WL 1587489, at *5 (4th Cir. 2000) (unpublished table
opinion). Because IBM provided reasonable accommodation to Noll, any failure
to engage in an interactive process‐‐even if supported by the record‐‐did not give
rise to a discrimination claim.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the district court.
18 1 13‐4096 2 Noll v. International Business Machines Corp. 3 4 SACK, Circuit Judge, dissenting:
5 In my view, the record before the district court with respect to the
6 attempted accommodation of Alfred J. Nollʹs disability by his employer,
7 International Business Machines Corp. (ʺIBMʺ), did not permit the court to
8 conclude as a matter of law, at the summary judgment stage, that IBM offered
9 Noll a reasonable accommodation for his disability as required by the Americans
10 with Disabilities Act (ʺADAʺ), 42 U.S.C. § 12101 et seq., and the New York State
11 Human Rights Law, N.Y. Exec. Law § 290 et seq. I therefore respectfully dissent.
12 A plaintiff suing under the ADA for disability discrimination bears 13 the burden of establishing a prima facie case. In so‐called 14 reasonable‐accommodation cases, such as this one, the plaintiffʹs 15 burden requires a showing that (1) plaintiff is a person with a 16 disability under the meaning of the ADA; (2) an employer covered 17 by the statute had notice of his disability; (3) with reasonable 18 accommodation, plaintiff could perform the essential functions of 19 the job at issue; and (4) the employer has refused to make such 20 accommodations. 21 Graves v. Finch Pruyn & Co., 457 F.3d 181, 183‐84 (2d Cir. 2006) (emphasis added)
22 (internal quotation marks omitted). It is undisputed that Noll has carried his
23 burden of showing the first three elements. The only remaining issue, then, is No. 13‐4096‐cv Noll v. International Business Machines Corp.
1 whether Nollʹs employer, IBM, has refused to make a reasonable
2 accommodation.
3 Noll asserts, inter alia, that he requires an accommodation for his deafness
4 that would enable him to understand the audio portion of videos made available
5 to IBM employees on the companyʹs intranet. To that end, he sought to have the
6 company supply the videos to him with the audio portion in writing contained
7 in on‐screen captions. The modification that IBM offered to provide to him,
8 however, was to make available to him American Sign Language (ʺASLʺ)1
9 interpreters who would, upon his request, interpret the intranet videos
10 simultaneously with his viewing of them.
1 American Sign Language . . . is a complete, complex language that employs signs made by moving the hands combined with facial expressions and postures of the body. It is the primary language of many North Americans who are deaf and is one of several communication options used by people who are deaf or hard‐of‐hearing. . . . . ASL is a language completely separate and distinct from English. It contains all the fundamental features of language—it has its own rules for pronunciation, word order, and complex grammar. While every language has ways of signaling different functions, such as asking a question rather than making a statement, languages differ in how this is done. For example, English speakers ask a question by raising the pitch of their voice; ASL users ask a question by raising their eyebrows, widening their eyes, and tilting their bodies forward. Natʹl Inst. on Deafness and Other Commcʹn Disorders [NIDCD], U.S. Depʹt of Health & Human Servs., NIDCD Fact Sheet: American Sign Language, available at http://www.nidcd.nih.gov/health/hearing/pages/asl.aspx (last visited May 14, 2015). 2
No. 13‐4096‐cv Noll v. International Business Machines Corp.
1 IBM was not necessarily legally required to supply Noll with the
2 accommodation he requested. The company, as his employer, was entitled to
3 choose among reasonable accommodations that were available. See Fink v. New
4 York City Depʹt of Pers., 53 F.3d 565, 567 (2d Cir. 1995); Interpretive Guidance on
5 Title I of the Americans with Disabilities Act, 29 C.F.R. § 1630 app. (2014). That
6 choice, however, is limited to modifications that are ʺeffective.ʺ See U.S. Airways,
7 Inc. v. Barnett, 535 U.S. 391, 400 (2002) (ʺAn ineffective ʹmodificationʹ or
8 ʹadjustmentʹ will not accommodate a disabled individualʹs limitations.ʺ (emphasis
9 in original)).
10 The question, then, is whether IBM established, in support of its motion for
11 summary judgment, that the ASL modification it stood ready to supply to Noll
12 would have been effective. It seems to me that, to the contrary, Noll has offered
13 evidence ʺfrom which a reasonable inference could be drawnʺ that it would have
14 been ineffective. Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2d Cir.
15 1994). He explained, by declaration in opposition to the motion for summary
16 judgment, that ʺhaving a sign language interpreter interpret an intranet video is
17 not effective for [him]. The same problem entailed [sic] in reading a transcript
18 while watching a video applies with a sign language interpreter. [He] cannot
1 simultaneously watch the interpreter and the video. It is too confusing and
2 tiring, switching back and forth between the interpreter and the screen.ʺ Decl. of
3 Alfred J. Noll in Oppʹn to Def.ʹs Mot. for Summ. J. ¶ 28 (J.A. 253) (citation
4 omitted). His proffered expert evidence also indicates that deaf viewers better
5 comprehend video content with on‐screen captions than with modifications that
6 disrupt viewersʹ peripheral vision.2
7 The majority opinion seems to conclude, although it is not altogether clear
8 to me why, that the ASL interpreters whose services were provided to Noll were
9 plainly reasonable accommodations in the circumstances of this case. We have
10 said, however, that the ʺnecessarily fact‐specificʺ question whether an employerʹs
11 proffered modification is effective ʺmust be made on a case‐by‐case basis.ʺ
12 Wernick v. Fed. Reserve Bank of New York, 91 F.3d 379, 385 (2d Cir. 1996). That
13 ʺfact‐specificʺ question here is whether under all the facts and circumstances of
14 this case, provision of ASL interpreters for the audio of intranet videos to this
15 plaintiff was a reasonable accommodation.
The majority dismisses this evidence on the ground that it ʺdoes not address ASL 2
interpretation.ʺ Maj. Op. at 13 n.4. The Pelz reportʹs conclusions focus on transcripts rather than ASL interpretation, but the report also explains in more general terms that visual comprehension decreases when an individual viewing a video cannot use ʺperipheral vision to monitor [] video content,ʺ as one can when viewing captions. J.A. 262. 4
1 The majority concludes that Nollʹs claimed discomfort does not create a
2 material factual dispute, because ʺit can be expected that many accommodations
3 of deafness . . . will tax visual attention to some degree.ʺ Maj. Op. at 13. But the
4 fact that all modifications are imperfect does not mean that any modification is
5 effective. An accommodation need not achieve ʺthe perfect elimination of all
6 disadvantage that may flow from the disability.ʺ Fink, 53 F.3d at 567 (emphasis
7 added). But it must achieve some elimination of that disadvantage; specifically,
8 enough so that an employee with a disability can ʺenjoy equal benefits and
9 privileges of employment as are enjoyed by [] other similarly situated employees
10 without disabilities.ʺ 29 C.F.R. § 1630.2(o)(1)(iii) (2012). That question is fact‐
11 intensive. See Wernick, 91 F.3d at 385.
12 Perhaps the majority is insisting that this case is the exception to the fact‐
13 bound rule because ASL interpretation is usually an effective accommodation for
14 deaf or hard‐of‐hearing employees, and because Noll agrees that ASL
15 interpretation is effective for him in some other settings. See Maj. Op. at 14‐15.
16 But the reason our decisions require ʺa fact‐specific, case‐by‐case inquiry that
17 considers, among other factors, the effectiveness of the modification in light of
18 the nature of the disability in question,ʺ Staron v. McDonaldʹs Corp., 51 F.3d 353,
1 356 (2d Cir. 1995), is that what works for some or even most individuals with
2 similar disabilities may not work for all, and what works in one context for one
3 person with a disability may not work for that same person in a different context.
4 Thus an employer attempting to identify an appropriate accommodation for a
5 particular employee should ʺidentify the precise limitations imposed by the
6 [employeeʹs] disability and explore potential accommodations that would
7 overcome those limitations.ʺ 29 C.F.R. § 1630 app.
8 ASL interpretation is effective for Noll at in‐person meetings. See Maj.
9 Op. at 14. But that fact is relevant only insofar as we can infer that attending a
10 meeting entails the same visual and cognitive processes as watching a video.
11 IBM has offered no evidence of which I am aware to this effect, and we are, of
12 course, prohibited from drawing inferences in IBMʹs favor at this stage. See
13 Chambers, 43 F.3d at 36. It seems to me that, in light of Nollʹs declaration,
14 whether the accommodation IBM offered is reasonable and effective is a question
15 of fact for a trier of fact at a trial – not for the district court on motion for
16 summary judgment, or for us on appeal.
17 It is, of course, possible that a trier of fact, after hearing all of the relevant
18 evidence in this case, would conclude that Nollʹs disabilities were indeed
1 reasonably accommodated by IBM, a company which, the record suggests, has
2 generally been impressively sensitive and responsive to the needs of its
3 employees with disabilities, including those who are deaf or hard‐of‐hearing. I
4 do not think, however, that the record before the district court contained
5 evidence sufficient to permit the court to short‐circuit that process by granting
6 the defendant judgment without the input of a trier of fact based upon evidence
7 presented to it at trial.