MEMORANDUM
Lauren Searls brings this action against Johns Hopkins Hospital (“JHH”), claiming that the defendant discriminated against her on the basis of disability in violation of Title I of the Americans with Disabilities Act, 42 U.S.C. §§ 12112(a) (the “ADA” or “Title I”) and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (“Section 504”). She seeks declaratory and injunctive relief, compensatory damages, attorneys’ fees and costs, and other appropriate equitable and legal relief. The plaintiff has filed a motion to strike defendant’s expert designations and a motion for partial summary judgment on the issue of liability under the ADA and Section 504, leaving the issue of damages to be resolved at trial. The defendant has filed a cross-motion for summary judgment on all of the plaintiffs claims. For the reasons stated below, the court will grant the plaintiffs motion to strike, grant the plaintiffs motion for partial summary judgment, and deny the defendant’s cross-motion for summary judgment.
BACKGROUND
Searls is a deaf 2012 graduate of the Johns Hopkins School of Nursing. (Decl. of Lauren O. Searls ¶¶ 2-3, PL’s Mot. Summ. J. Ex. 2, ECF No. 39-4.) She can read lips but understands better through American Sign Language (“ASL”). (Id. at ¶ 2.) When communicating with hearing individuals, she voices for herself. (Id.; PL’s Dep. of Robert Q. Pollard, Jr. 47, PL’s Mot. Summ. J. Ex. 3, ECF No. 39-5.) As a nursing student, Searls completed two clinical rotations in the Hqlsted 8 unit at JHH. (Searls Decl. ¶ 5.) During her clinical placements at JHH, the School of Nursing provided a full-time ASL interpreter. (Id.) At the end of her final rotation, she received a faculty summary of her clinical performance. (Faculty Summary of Clinical Performance, PL’s Mot. Summ J. Ex. 2-A.) In the summary, the faculty member wrote that Searls “[wjorked well with others on the team and communicated appropriately and ■with empathy with the patients and their families.” (Id.) Under “overall performance,” the faculty member wrote:
Lauren provided quality nursing care in a... very professional, caring and skilled manner. She has shown a strong work ethic and very positive attitude that helped to create a very positive work environment. She has performed as an entry-level graduate nurse on Johns Hopkins Hospital Halstead [sic] 8 unit. Lauren Searls has met all of the course objectives at the expected and frequently at a higher level.
(Id.)
On July 13, 2012, a few days before Searls’ graduation from the School of Nursing, Nurse Manager Stacey Rotman sent Searls an email giving her advance notice that she would be posting two openings for Nurse Clinician I positions in Halsted 8 and encouraging Searls to apply. (Searls Decl. ¶ 8; Rotman July 13, 2012 Email, PL’s Mot. Summ J. Ex. 2-B.) Rot-man later sent her an e-mail with the two
JHH’s job description of the Nurse Clinician I position states that a nurse is responsible for coordinating care, providing evidence-based patient care, working collaboratively, supporting safety standards, and using resources in a cost-effective manner. (Job Description, Def.’s Mot. Summ. J. Ex. 2 at 5, ECF No. 42-3.) A requisite skill is “[hjighly effective verbal communication and interpersonal skills to establish working relationships.” (Id.) Communication is listed as an “essential job function,” and a nurse is required to “liste[n] actively to opinions, ideas and feelings expressed by others and respon[d] in a courteous and tactful manner.” (Id. at 10.) Another essential job function is “com-muncat[ing] unresolved issues to appropriate personnel.” (Id. at 9.) Nurses must also be competent in “[gjeneral physiologic monitoring and patient care equipment such as defibrillator and glucometer monitor.” (Id. at 5.)
Searls applied for the Nurse Clinician I position, and JHH offered her an interview. (Searls Decl. ¶ 8; Cynthia Ranzolin July 27, 2012 Email, Pl.’s Mot. Summ. J. Ex. 2-D.) She interviewed with Rotman on August 15 and was offered the Nurse Clinician I position on Halsted 8 the next day. (Searls Decl. ¶ 8; Ranzolin July 30, 2012 Email, PL’s Mot. Summ. J. Ex. 2-E; Allie Murphy Aug. 16, 2012 Email, PL’s Mot. Summ. J. Ex. 2-F.) Searls accepted the offer that same day. (Searls Decl. ¶ 8; Searls Aug. 16, 2012 E-mail, PL’s Mot. Summ.- J. Ex. 2-F.) Her offer letter included the provision that “the offer of employment-and start date are contingent upon successful completion of... a health screening and clearance by the Office of Occupational Health Services.” (Def.’s Rot-man Dep. at Ex. 4, Def.’s Mot. Summ. J. Ex. 4, ECF No. 42-5.) The annual salary for the position was $59,508.80. (Id.)
After Searls received the offer, she asked Rotman whom to contact to request an ASL interpreter. (Searls Deck ¶ 9; Rot-man Aug. 16, 2012 Email, PL’s' Mot'. Summ. J. Ex. 2-G.) Rotman told her to notify the Department of Occupational Health during her pre-employment screening. (Searls Decl. ¶ 9; Rotman Aug. 21, 2012 Email, PL’s Mot. Summ. J. Ex. 2-G.) Searls told a staff member from the Department-of Occupational Health that she would require full-time ASL interpretation as ah accommodation. (Searls Decl. ¶ 9.) The staff member told Searls that Rhodo-ra Osborn, JHH’s ADA Compliance Specialist, would be in touch with her to discuss the request. ‘ (Id.) Mary Henderson from the Department of Occupational Health sent Osborn an email informing her that Searls “has a hearing deficit since age 2 and has bilateral hearing aids” and that she was “requesting a sign language interpreter.” (Dep. of Rhodora Osborn 37, PL’s Mot Summ J. Ex. 7, ECF No. 39-9; Henderson Aug. 27, 2012 Email, PL’s Mot. Summ. J. Ex. 10,. ECF No. 39-12.) Osborn then notified Kate Demers, the ADA/Accessibility Consultant at JHH at the time, and spoke with Henderson about Searls’ request for an interpreter. (Dep. of Kate Weeks 11, PL’s Mot. Summ. J. Ex. 9, ECF No. 39-11; Osborn Dep. 37; Osborn Aug. 28, 2012 Email, PL’s Mot. Summ. J. Ex. 10.) .
Demers-investigated the.cost of providing one or two interpreters and determined that the average annual salary of an ASL interpreter proficient in medical terminology would be between $40,000 and $60,000 and concluded that Searls would require a team of two interpreters with her at all times at an annual cost of $240,000. (Weeks Dep. 32; Demers Sept. 11,2012 Email, PL’s Mot. Summ. J. Ex. 12,
On September 12, Demers sent Rotman an email with the estimate of the cost of an interpreter. (Demers Sept. 12, 2012 Email, PL’s Mot Summ. J. Ex. 13 at Def. 0070-0071, EOF No. 39-15.) Rotman forwarded this email to Karen Davis, the director of Medical and Radiology Nursing, commenting, “I know that- we can’t afford this.” (Rotman Sept. 12, 2012 Email, PL’s Mot. Summ. J.- Ex. 1 at Def. 0005, ECF No. 39-3.) She also, wrote, “They are expecting the department to pay for this. Why isn’t the hospital responsible?” (Id.) Davis forwarded the emails to her supervisor, Vice President of Nursing Karen Haller, to ask 'for her thoughts. (Davis Sept. 12, 2012 Email, Pl.’s Mot. Summ. J. Ex. 1 at Def. 0005.) Davis wrote that Searls “is qualified,” but because of the cost of an interpreter, her “first response to this, given our financial issues, is to respond that I cannot accommodate this.” (Id.) Davis also speculated that having an interpreter could create scheduling issues and that the interpreter might tell Searls the wrong medicine to use during an emergency situation. (Id.) Davis concluded her email by writing that “Stacey [Rotman] tells me the nurse is bright and would be a good hire other than this hearing issue.” (Id.) In response, Hal-ler wrote, “I do not think we can accommodate this.” (Haller Sept. 12, 2012 Email, PL’s Mot. Summ. J. Ex. 1 at Def. 0005.) Following this exchange, Rotman responded to Demers’ email stating that she had talked to her director “and the department cannot accept the restrictions.” (Rotman Sept. 12, 2012 Email, PL’s Mot, Summ. J. Ex. 13 at Def. 0069-0070.) Demers then asked for Rotman’s reasoning, although she noted, “I assume it is cost.” (Demers Sept. 12, 2012 Email, PL’s Mot. Summ. J. Ex. 13 at Def. 0069.) She also wrote, “I want to be sure we have thoroughly investigated all avenues as [Searls] is a qualified applicant, and we are part of the larger JHH.” (Id.) Rotman responded, “Yes, the reason is cost.” (Rotman Sept. 12, 2012 Email, PL’s Mot., Summ. J. Ex. 13 at Def, 0069J
On September 17, Demers asked Rot-man for a “further breakdown” on the reason for rejecting the accommodation request, explaining her desire to “demonstrate we have shown good effort.” (Dem-ers Sept. 17, 2012 Email, PL’s Mot. Summ. J. Ex. 13 at Def. 0068-0069.) She asked Rotman to “try to include as much information as possible to illustrate hardship on the organization.” (Id.) The next day, Demers asked Rotman to “determine what your department’s threshold would^ be for interpreting costs,” explaining that “[i]t would be helpful to know what your department would be able to spend so we can see if a compromise would be a solution.” (Demers Sept. 18, 2012 Email, PL’s Mot. Summ. J. Ex. 13 at Def. 0068.)
Davis, who was also on the email chain, responded to Demers that while she would like to accommodate Searls, “this will not be possible.” (Davis Sept. 18, 2012 Email, PL’s Mot. Summ. J. Ex, 13 at Def. 0068.) She wrote, “There are no other funds to pull from within our department. The interpreters would be an ongoing operating expense that is not budgeted or funded. Thus, our threshold is zero for interpreter costs.” (Id.) Davis further explained, that because the overall budget of the unit was $3.4 million and the overall budget of the department was $88 million, “we would have to lay off 4 nurses to fund this as we cannot incur any new expenses.” (Id.) She
On September 20, Seárls explained to Osborn that she was only seeking one full-time ASL interpreter. (Searls Dec. ¶ 12.) A few days later, Demers sent Rotman an email explaining that with one interpreter, instead of two, the cost of providing the accommodation would decrease to $120,000 per year, but “the undue hardship based on cost would still apply from my understanding.” (Demers Sept. 24, 2012 Email, Pl.’s Mot. Summ. J. Ex. 14 at Def. 0223, ECF No. 39-16.) Demers wrote that “a letter is being drafted for Lauren expláin-ing the undue hardship based on cost,” but asked Rotman to let her know “if there are other reasons we should add.” (Id.) Rot-man never provided Demers with any reason other than cost for not hiring Searls. (Pl.’s Rotman Dep. 78, PL’s Mot. Summ. J. Ex. 4, ECF No. 39-6.)
Osborn and Rotman rescinded Searls’ job offer in a letter dated September 28. (Sept. 28, 2012 Letter from Osborn and Rotman, PL’s Mot. Summ. J. Ex. 2-L.) They explained:
After several interactive consultations with you and other resources as appropriate, we regret 'to inform you that we are unable to provide the interpreter services. We are unable to provide the accommodation because of its effect on the resources and operation of the department. As a result of the decision, we must rescind the offer of employment.
(Id.)
In January 2013, after several months of searching for a new job, Searls .began working as'a nurse at the University of Rochester Medical Center’s Strong Memorial Hospital (“Strong”), where she continues to work today. (Searls Deck ¶¶ 16-17.) After Strong offered her the job, Searls requested a full-time ASL interpreter. (Id. ¶ 17.) Strong agreed, and since January 2013, Searls has worked with an ASL interpreter. (Id. ¶ 16-17; Dep. of Elizabeth Ballard 18-19, PL’s Mot. Summ J. Ex. 15, ECF' No. 39-17.) Searls’ supervisor at Strong testified that Searls’ deafness and use of an interpreter have never negatively affected patient care, her response to alarms, or her participation in codes. (Dep. of Elizabeth Condernian 36-37, PL’s Mot. Summ. J. Ex. 16, ECF No. 39-18.) At Strong, Searls has exceeded standards on her performance reviews and has received promotions. (Sept. 10, 2013 Performance Review, PL’s Mot. Summ. J. Ex. 19, ECF No. 39-21;' April 12, 2015 Performance Review, PL’s Mot. Summ.' J. Ex, 20, ECF No. 39-22; Conderman Dep. 32-34.)
ANALYSIS
Federal Rule of Civil Procedure 56(a) provides that summary judgment should be granted “if the movant shows that 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) (emphases added). “A disputé is genuine if ‘a reasonable jury could return a verdict for the nonmoving party.’” Libertarian Party of Va. v. Judd,
“When faced with cross-motions for summary judgment, the court must review each motion separately on its own merits to determine whether either of the parties deserves judgment as a matter -of law.” Rossignol v. Voorhaar,
Searls claims that JHH violated the ADA and Section 504 of the Rehabilitation Act by rescinding her job offer even though she was a qualified individual who, with the accommodation of an ASL interpreter, was fully able to perform the essential job functions of a nurse. The ADA makes it illegal for an employer to “discriminate against a qualified individual on the basis of disability....” 42 U.S.C. § 12112(a), To establish a prima facie case on her failure-to-accommodate claim, Searls must show that (1) she is an individual with a disability within the meaning of the ADA; (2) JHH had notice of her disability; (3) she could perform the essential functions of her job with a reasonable accommodation; and (4) JHH refused to make such reasonable accommodation. Wilson v. Dollar Gen. Corp.,
Even if Searls establishes her prima fa-cie failure-to-accommodate case, JHH may avoid liability “if it can show as a matter of law that the proposed accommodation will cause undue hardship in the particular circumstances,” Reyazuddin v. Montgomery Cty., Maryland,
The parties do not dispute that Searls is deaf and therefore has a disability within the meaning of the ADA and Section 504. JHH had notice of Searls’ disability be
I. Reasonable Accommodation
The parties dispute whether Searls’ request for a full-time accommodation was reasonable. To defeat an employer’s motion for summary judgment, a plaintiff must “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. A reasonable accommodation is one that is feasible or plausible.” Reyazuddin,
In defining “reasonable accommodation,” Congress expressly included “the provision of qualified readers or interpreters” as an illustration. 42 U.S.C. § 12111(9)(B). The Second Circuit recently explained that although an ASL interpreter may not always be a reasonable accommodation, interpreters are a well-recognized accommodation:
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.”).
Noll v. Int’l Bus. Machines Corp.,
An employer or other covered entity is not required to reallocate essential functions, The essential functions are by definition those that the individual who holds the job would have to perform, with or without reasonable accommodation, in order to be considered qualified for the position. For example, suppose a security guard position requires the individual who holds the job to inspect identification cards. An employer would not have to provide an individual who is legally blind with an assistant to look at the identification cards for the legally blind employee. In this situation the assistant would be performing the job for the individual with a disability rather than assisting the individual to perform the job. See Coleman v. Darden,595 F.2d 533 (10th Cir.1979).
29 C.F.R. § 1630 app.
In determining which job functions are essential, “consideration shall 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. . .for the job, this description shall be considered evidence of the essential functions of the job.” 42 U.S.C. § 12111(8). The two essential job functions included in the JHH Nurse Clinician I job description that are relevant to this case are (1) communicating with patients, family members, and other hospital personnel, and (2) monitoring and responding to alarms.
Searls’ case is distinguishable from other cases where providing the requested accommodation amounted to reallocating essential job functions. In those cases, the accommodation request was found unreasonable because the employee requested that another employee perform the entirety of an essential job function, leaving the employee with no portion of the essential job function to perform. See, e.g., E.E.O.C. v. Womble Carlyle Sandridge & Rice, LLP,
Therefore, because it is clear that Searis would retain responsibility for a substantial portion of the duties of communicating and responding to alarms if she were provided an ASL interpreter, the question becomes whether her inability to hear affected her ability to communicate and respond to alarms such that she would be “unable to ‘perform’ [these] essential function^] within the meaning of the ADA. When the question is thus a matter of degree... a plaintiff fails to perform the essential function only if her failure detrimentally affects the purpose of the employment.” Rohan v. Networks Presentations LLC,
II. Undue Hardship Defense
JHH argues that providing Searls with an interpreter would have caused an undue hardship on the hospital’s operations. An employer is not liable if it “can demonstrate that the ' accommodation would impose an undue hardship on the operation ' of [its] business.” 42 U.S.C. § 12112(b)(5)(A). Title I of the ADA defines “undue hardship” as “an action requiring significant difficulty or expense,
(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). To demonstrate undue hardship, the employer “must show special (typically case-specific) circumstances.” Reyazuddin,
JHH’s overall budget, the Department of Medicine’s operational budget, and Halsted 8’s operational budget are all relevant factors. See 42 U.S.C. § 12111(10)(B)(ii)-(iii); see also Reyazuddin,
JHH essentially argues that it had no money in its budget for reasonable accommodations. The employer’s budget for reasonable accommodations is “an irrelevant factor in assessing undue hardship” because “[allowing [an employer] 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.” Reyazuddin,
Additionally, even if it is correct that the salary of a full-time ASL interpreter would be twice the salary of a nurse, that in itself does not establish that an ASL interpreter would be an undue hardship. The EEOC’s interpretive guidance on its Title I ADA regulations explains that “[s]imply comparing the cost of the accommodation to the salary of the individual with a disability in need of the accommodation will not suffice.” 29 C.F.R. § 1630 app. Furthermore, it is “particularly relevant” that Strong has been able to accommodate deaf nurses. See Reyazuddin,
III. Direct Threat Defense
JHH also argues that employing Searls as a nurse would have imposed a direct threat. The ADA defines a “direct threat” as “a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.” 42 U.S.C. § 12111(3). An “employer must determine whether.a reasonable accommodation would either eliminate the risk or reduce it to an acceptable level.” Champ,
JHH’s direct threat defense is based on post-hoc rationalizations and is therefore suggestive of pretext. See Dennis v. Columbia Colleton Med. Ctr., Inc.,
JHH’s direct threat defense also fails because the record shows that JHH failed to base its determination “on an individualized assessment of [Searls’] present ability' to safely perform the essential functions of [her] job.” 29 C.F.R. § 1630.2(r); see also Champ,
IV. Motion to Strike Defense Experts
Searls has filed a motion to strike defense experts Maria Cvach, Clyde C. Richard, and Garry Brock. (Mot. Strike, ECF
Federal Rule of Evidence 702 governs the admissibility of expert testimony and provides:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify, in the form of an opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.
Fed.R.Evid. 702. Under Daubert v. Merrell Dow Pharm., Inc.,
Because all three experts lack experience with deaf healthcare professionals or deafness in general, they cannot reliably testify about how Searls would have worked with an interpreter to monitor and respond to alarms, and whether she could safely monitor and respond to alarms on Halsted 8 with an interpreter, Additionally, because the .court finds that JHH’s direct threat defense relies on post-hoc rationalizations without any individualized assessment, the proposed expert testimony about whether a deaf nurse can safely monitor and respond to alarms with the assistance of an interpreter is not relevant. Therefore, the court will grant the plaintiffs motion to strike.
CONCLUSION
For the reasons stated above, the plaintiffs motion for partial summary judgment and the plaintiffs motion to strike will be granted, and the defendant’s cross-motion for summary judgment will be denied.
A separate order follows.
Notes
. The plaintiffs experts also testified that essential functions of a registered nurse in an acute care hospital are the ability to communicate and the ability to respond to alarms. (Dep. of Michael McKee 24-25, Def.’s Mot. Summ. J. Ex. 3, ECF No. 42-4; Def.'s Pollard Dep, 25-26, Def.’s Mot. Summ. J. Ex 2, ECF No.42-3.)
. Unpublished cases are cited not as precedent but for the relevance and persuasiveness of their reasoning.
. It is not clear that a full-time interpreter would cos}; $120,000. JHH previously estimated that the average salary for a full-time medical interpreter was between $40,000 and $60,000. At the motions hearing held on December 15, 2015, JHH could not explain why, given the salary estimates previously provided, one full-time ASL interpreter would cost $120,000.