ORAL ARGUMENT REQUESTED No. 11-1306 _________________________________________________________ UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT _________________________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. THE PICTURE PEOPLE, INC., Defendant-Appellee. _________________________________________________________ On appeal from the United States District Court for the District of Colorado Hon. Philip A. Brimmer, U.S.D.J., presiding Civil Action No. 1:09-cv-02315 _________________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT _________________________________________________________ P. DAVID LOPEZ SUSAN R. OXFORD General Counsel Attorney Equal Employment Opportunity CAROLYN L. WHEELER Commission Acting Associate General Counsel 131 M Street, N.E. Washington, D.C. 20507 LORRAINE C. DAVIS (202) 663-4791; Fax: (202) 663-7090 Assistant General Counsel susan.oxford@eeoc.gov TABLE OF CONTENTS page TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii STATEMENT OF RELATED APPEALS. . . . . . . . . . . . . . . . . . . . . . . . vi STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUES. . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 A. Nature of the Case and Course of Proceedings. . . . . . . . . . . . . .2 B. Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . .3 C. District Court Opinion. . . . . . . . . . . . . . . . . . . . . . . . 15 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 I. The Record Contains Disputed Material Facts Concerning the EEOC's Claim that Picture People Failed to Accommodate Chrysler's Hearing Impairment and Terminated Her Employment because of Her Disability. . . . . . . . . . . . 21 A. A Reasonable Jury Could Find Jessica Chrysler was Qualified for the Position of "Performer.". . . . . . . . . . . . . . . . . . . . 21 B. A reasonable jury could find Picture People failed to provide reasonable accommodation for Chrysler's hearing impairment in violation of the ADA. . . . . . . . . . . . . . . . . . . . . . . . .32 C. A reasonable jury could find that Picture People discriminated against Chrysler and terminated her employment because of her disability. .42 II. A Reasonable Jury Could Find Picture People Retaliated Against Chrysler in Violation of the ADA. . . . . . . . . . . . . . . .44 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . 58 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . .59 APPENDIX Order Granting Summary Judgment in EEOC v. The Picture People, Inc., Civ. No. 1:09-cv-2315 (D. Colo. May 9, 2011) (R.51) CERTIFICATE OF SERVICE TABLE OF AUTHORITIES Cases Pages Bates v. United Parcel Serv., Inc., 511 F.3d 974 (9th Cir. 2007) (en banc). . . . . . . . . . . . . . . . . .30 Berry v. Stevinson Chevrolet, 74 F.3d 980 (10th Cir. 1996). . . . . . . . . 47 Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). . . . . . . . . 44 Conneen v. MBNA Amer. Bank, 334 F.3d 318 (3d Cir. 2003). . . . . . . . . . . . 22 D'Angelo v. Conagra Foods, Inc., 422 F.3d 1220 (11th Cir. 2005). . . . . . . . 31 Davidson v. America Online, Inc., 337 F.3d 1179 (10th Cir. 2003). .20, 21, 22, 23 EEOC v. BCI Coca-Cola Bottling Co., 450 F.3d 476 (10th Cir. 2006). . . . . 20, 56 EEOC v. Federal Express Corp., 513 F.3d 360 (4th Cir.), cer. denied, 555 U.S. 814 (2008). . . . . . . . .34 EEOC v. UPS Supply Chain Solutions, 620 F.3d 1103 (9th Cir. 2010). . . 34, 38, 39 EEOC v. Wal-Mart Stores, Inc., 187 F.3d 1241 (10th Cir. 1999). . . . . . . . . 35 Gossett v. Oklahoma ex rel. Bd. of Regents, 245 F.3d 1172 (10th Cir. 2001). . . . . . . . . . . . . . . . . . . . . 55 Hennagir v. Utah Dept. of Corrections, 587 F.3d 1255 (10th Cir. 2009). . . . . 44 Mason v. Avaya Communications, Inc., 357 F.3d 1114 (10th Cir. 2004). . . . . . . . . . . . . . . . . . . . . 33 McGowan v, City of Eufala, 472 F.3d 736 (10th Cir. 2006) . . . . . . . . . . . 46 Pastran v. K-Mart Corp., 210 F.3d 1201 (10th Cir. 2000) . . . . . . . . . . . .45 Proctor v. United Parcel Serv., 502 F.3d 1200 (10th Cir. 2007). . . . . . . . .46 Rivera v. City & County of Denver, 365 F.3d 912 (10th Cir. 2004). . . . . . 20 Rizzo v. Children's World Learning Ctrs, Inc., 173 F.3d 254 (5th Cir. 1999). . . . . . . . . . . . . . . . . . . . . . . 31 Roberts v. Roadway Express, Inc., 149 F.3d 1098 (10th Cir. 1998). . . . . .45, 46 Skerski v. Time Warner Cable Co., 257 F.3d 273 (3d Cir. 2001). . . 23, 24, 29, 34 Staub v. Proctor Hosp., 131 S.Ct. 1186 (2011). . . . . . . . . . . . . . . . . 57 Strother v. So. Cal. Permanente Med. Group, 79 F.3d 859 (9th Cir. 1996). . . . . . . . . . . . . . . . . . . . . . . .50 Woodman v. Runyon, 132 F.3d 1330 (10th Cir. 1997). . . . . . . . . . . . . . . 42 Statutes 28 U.S.C. § 451. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 28 U.S.C. § 1291. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1331. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1337. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1343. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1345. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 42 U.S.C. § 2000e-3(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . .46 42 U.S.C. §§ 12101 et seq.. . . . . . . . . . . . . . . . . . . . . . . . . . . 2 42 U.S.C. § 12111(8). . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 22 42 U.S.C. § 12111(9)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . 34 42 U.S.C. § 12112(a). . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 33 42 U.S.C. § 12112(b)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . 43 42 U.S.C. § 12112(b)(5)(A). . . . . . . . . . . . . . . . . . . . . 21, 34, 40 42 U.S.C. § 12112(b)(6). . . . . . . . . . . . . . . . . . . . . . . . . . . 29 42 U.S.C. § 12113(a). . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 30 42 U.S.C. § 12203(a). . . . . . . . . . . . . . . . . . . . . . . . . . . 44, 46 42 U.S.C.§ 12203(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 Regulations 29 C.F.R. § 1630.2(n)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . 22 29 C.F.R. § 1630.2(n)(3)(vi) & (vii) . . . . . . . . . . . . . . . . . . . . . 22 29 C.F.R. § 1630.2(o)(1)(ii). . . . . . . . . . . . . . . . . . . . . 33, 39, 40 29 C.F.R. § 1630.2(o)(1)(iii). . . . . . . . . . . . . . . . . . . . . . . . 33 29 C.F.R. § 1630.10. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 29 C.F.R. § 1630.15(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . .29 29 C.F.R. Pt. 1630 app. § 1630.9. . . . . . . . . . . . . . . . . . . . . . . .39 Court Rules Federal Rules of Evidence R. 602. . . . . . . . . . . . . . . . . . . . . . . .55 Miscellaneous Webster's Ninth New Collegiate Dictionary. . . . . . . . . . . . . . . . . . 15 EEOC ADA Technical Assistance Manual. . . . . . . . . . . . . . . . . . . . . 21 136 Cong.Rec. 11,451 (1990). . . . . . . . . . . . . . . . . . . . . . . . . . 24 "Questions and Answers about Deafness and Hearing Impairments in the Workplace and the ADA," (July 26, 2006) (found at htt://eeoc.gov/facts/deafness.html). . . . . . . . . . . . . . . . . . . . . 35 STATEMENT OF RELATED APPEALS There are no prior or related appeals. STATEMENT OF JURISDICTION The district court had jurisdiction over this matter pursuant to 28 U.S.C. §§ 451, 1331, 1337, 1343, and 1345. The district court's final judgment entered on May 9, 2011, R.51, constitutes a final decision that this Court has jurisdiction to review pursuant to 28 U.S.C. § 1291. Plaintiff-Appellant Equal Employment Opportunity Commission (EEOC or Commission) filed a timely notice of appeal on July 6, 2011. Apx.870a-871a (R.57).<1> STATEMENT OF THE ISSUES 1. Whether a reasonable jury could find Jessica Chrysler was qualified for the position of "performer" and Picture People failed to reasonably accommodate her hearing impairment in violation of the Americans with Disabilities Act (ADA). The EEOC raised this issue below in its opposition to summary judgment. See Apx.368a-377a (R.43, at 13-22). 2. Whether a reasonable jury could find Picture People discriminated against Jessica Chrysler during her employment and discriminatorily terminated her employment based on her hearing impairment in violation of the ADA. In seeking summary judgment below on the EEOC's discriminatory discharge claim, Picture People argued only that Chrysler was not qualified for the position. See Apx.40a (R.31, at 12). The EEOC's summary judgment opposition argued that Chrysler was qualified for the position. See Apx.368a-373a (R.43, at 13-18). 3. Whether a reasonable jury could find that Picture People, in violation of the ADA, disciplined and discharged Jessica Chrysler in retaliation for having engaged in conduct the ADA protects. The EEOC raised this issue below in its opposition to summary judgment. See Apx.377a-379a (R.43, at 22-24). STATEMENT OF THE CASE A. Nature of the Case and Course of Proceedings The Plaintiff Equal Employment Opportunity Commission (EEOC or Commission) filed this lawsuit in September 2009 alleging that defendant The Picture People violated Title I of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101 et seq., when the company discriminated and retaliated against employee Jessica Chrysler and ultimately discharged her because she is deaf. R.1 (Apx.7a). After discovery, Picture People moved for summary judgment on all of the EEOC's claims, R.31-34 (Apx.29a-355a), and the EEOC moved for partial summary judgment on four of Picture People's affirmative defenses, R.29. On May 9, 2011, the district court granted Picture People's motion to withdraw the affirmative defenses in question and ruled the EEOC's motion moot. R.51 (Order Granting Summary Judgment, at 1) ("Order")(Apx.852a). In the same decision, the district court granted Picture People's motion for summary judgment on all of the EEOC's claims. Id. This appeal followed. R.57 (Apx.870a-871a). B. Statement of Facts On October 23, 2007, The Picture People hired Jessica Chrysler, who is deaf, to work in "Store 370," Picture People's Park Meadows store in Littleton, Colorado. Picture People offers family and individual portraits to the general public in portrait studios located around the country, one of which is the Littleton studio. Studio manager Arnold Aguilar hired Chrysler as a photographer, into an entry-level, permanent position known as "performer." Apx.388a (personnel record); Apx.386a (Aguilar Interview); Apx.817a (Aguilar Dep. 184:20-185:25). Performers had four general areas of responsibility: customer intake, sales, portrait photography, and laboratory duties. Apx.721a-722a (Kiattinat Dep. 78:18- 79:16); Apx.610a (Aguilar Dep. 131:8-17). Aguilar intended Chrysler to work primarily in the camera room doing photography. Apx.86a, 601a, 610a (Aguilar Dep. 96:21-25, 112:5-22, 130:24-131:3). Aguilar had worked with a deaf employee, Wendy Duke, at another Picture People studio and believed Chrysler could also perform the job. Apx.810a (Aguilar Dep. 19:16-21:22). Each Picture People studio manager provided orientation and training for new staff. This training is very important to the company because Picture People emphasizes the quality of not only the portraits its employees produce, but the customer's experience during the sitting, as well. See, e.g., Apx.613a (Aguilar Dep. 164:4-6). The day after Aguilar offered Chrysler a position as a photographer, Chrysler requested an American Sign Language (ASL) interpreter for her orientation/training. Apx.591a. Aguilar agreed an interpreter was necessary for Chrysler's training. Apx.604a-605a (Aguilar Dep. 108:1-109:3) (training involves a lot of detail, "so you need to make sure the person is understanding what you are saying"). Chrysler communicates with hearing individuals in a number of different ways. She writes notes, gestures, points, and mimes. She can also type and text messages; use body language and facial expressions; demonstrate enthusiasm; show and move items on a computer; and nod, shake, and move her head. She also uses basic ASL signs that most people can understand and speaks some words. Apx.593a (Chrysler Decl. 13).¶ These methods of communication work well in one-on-one and very small group settings. Apx.253a (Chrysler Dep. 153:6-21). For detailed instruction and for larger group settings, however, such as Picture People's new-staff orientation, advanced training sessions, and mandatory staff meetings, Chrysler relies on ASL interpreters. Apx.254a-256a, 258a, 260a (Chrysler Dep. 157:1-159:24, 161:7-9, 163:1-25). Aguilar did not know how to obtain an ASL interpreter or whether he was even authorized to hire an interpreter, so he contacted his District Manager Candi Bryan about Chrysler's request. Apx.605a (Aguilar Dep. 109:7-10). Bryan told Aguilar that Picture People did not offer those services. Apx.620a-621a (Aguilar Dep. 220:16-221:3); Apx.591a (Chrysler Decl.¶ 3). Aguilar and Chrysler each then separately contacted Picture People's Human Resources (HR) office. Apx.591a; Apx.677a-678a (Chrysler Dep. 154:19-155:4); Apx.768a-769a (Rawlings Dep. 29:12-30:18, 41:20-42:16). The parties dispute exactly what happened after that, but the record shows that HR official Jeff Rawlings suggested, among other things, that Aguilar check local churches for volunteer interpreters. Apx.315a. Rawlings and Bryan thereafter offered no assistance to Aguilar as he and Chrysler attempted, on their own, to secure an interpreter for Chrysler's orientation. Chrysler's start date was delayed by three weeks as Chrysler and Aguilar continued to press Picture People for assistance. Apx.315a-317a (e-mail exchanges between Aguilar and HR Official Jeff Rawlings); Apx.815a-816a, 617a- 621a (Aguilar Dep. 166:21-167:2, 172:14-23, 217:14-221:3). Chrysler obtained the telephone number of an interpreter service and, at the direction of the HR office, passed it along to Aguilar. Apx.592a. Chrysler then learned that the Colorado Division of Vocational Rehabilitation (DVR), which had been assisting Chrysler with her job search, could provide interpreters for a client's initial training, and Chrysler shared this information with Aguilar, as well. Id.; Apx.682a (Chrysler Dep. 71:11-17). On November 12, 2007, Chrysler was able to secure ASL interpreter services through DVR. Apx.682a (Chrysler Dep. 171:11- 17); Apx.422a-424a (invoices). Aguilar provided Chrysler new-employee orientation and trained her on the duties of a Picture People photographer using DVR interpreters on November 12, 15, and 16. Apx.790a, 358a (admitting EEOC- SJF #10). After Chrysler completed her training, Aguilar assigned her to work in the camera room. On November 17, Chrysler had a photography session with customers Matt and Melissa Krol and their infant. The Krols' experience was so positive that they ended up purchasing more baby pictures than they had originally intended. Apx.792a-732a; Apx.734a-741a. When they returned for more pictures in December, they asked for Chrysler specifically. Apx.742a-744a. Although Chrysler was working that day, the Krols were told she was unavailable, Apx.744a, because, by then, Aguilar's superiors had reassigned Chrysler to work in the lab and had instructed the studio managers not to assign her to work in the camera room as a photographer. Apx.717a-718a (Johnston Dep. 95:3-13, 99:6-19). On November 20, Photography Systems Manager Jim McGrail and Master Photographer Libby Johnston visited the Littleton studio to conduct advanced photography training for the staff. See Apx.746a-748a (McGrail Dep. 35:9-37:18). Chrysler was working that day and attended the advanced training with the other photographers. Apx.746a. She requested an ASL interpreter for the training, Apx.454a-456a, but none was provided, so Chrysler was unable to benefit from the instruction being provided by Johnston and McGrail. Both McGrail and Johnston noticed Chrysler during the training and observed she is deaf. Johnston contacted District Manager Bryan to express concerns about Chrysler. The next day, Bryan directed Aguilar to reassign Chrysler to the lab. Apx.57a-59a (Bryan Dep. 64:5- 65:25, 70:5-75:3). On November 21, Aguilar demoted himself from Studio Manager to "performer." Picture People designated Assistant Manager Kimberly Doyle (Kim) to serve as acting manager and Assistant Manager Deidre Sandoval to continue as her assistant, and instructed both managers to assign Chrysler exclusively to the photo lab. In the ensuing weeks, a coworker, Drake Scott, observed Chrysler "visibly upset and crying at work on at least two or three occasions about being picked on by" Doyle and Sandoval. Apx.457a, 459a. Scott stated that although Sandoval and Doyle seemed to treat all the employees poorly, they seemed to treat Chrysler worse "by ignoring [her] and not dealing with" her and not making "much of an effort to communicate with" her. Apx.459a. On one occasion, Aguilar informed Chrysler (through a written note, see Apx.472a) that Sandoval had just told a group of Picture People employees to "write down orders cause [Chrysler] can't fucking hear." Apx.685a-686a (Chrysler Dep. 192:18-193:20). Studio managers conducted mandatory staff meetings from time to time to discuss company policies and to review techniques for keeping the studio profitable. Apx.91a (Aguilar Dep. 145:25-146:18); Apx.624a-625a (Alexander Dep. 32:4-33:2) (staff meetings addressed "new programs" or "a specific issue . . . that everyone was dealing with" and were mandatory "[b]ecause it's information [staff] needed"); see also Apx.459a (staff meetings covered such work-related topics as "sales process, photography, and company policies"). The Littleton studio conducted such staff meetings during the six weeks Chrysler worked there. Id. (Aguilar Dep. 146:19-147:15). Picture People admits Chrysler requested an ASL interpreter for these staff meetings, but the company never provided one. Instead, the company provided Chrysler a written outline or meeting agenda. Apx.359a, 790a (admitting EEOC-SJF ##18, 19). Picture People further admits that, as a result, Chrysler "missed out on all the discussion at the meeting." Apx.359a, 790a (admitting EEOC-SJF #19). Without an interpreter, Chrysler explained, she would "read the agenda, but . . . I had no clue what anybody was saying in responding to somebody's interjection . . . . I had no idea what the manager was saying." Apx.254a-255a (Chrysler Dep. 157:1-158:14). In late December, Chrysler became upset when she noticed she was not listed on the post-holiday work schedule, and she complained to Acting Manager Doyle ("Kim"). Apx.336a. Doyle responded, "I would love to have you here full time, but we don't have enough business for anyone to be full time in Jan/Feb, not even Arnold." Apx.338a; see also Apx.693a-694a (Chrysler Dep. 210:14-211:23). In the written notes Doyle and Chrysler exchanged, Doyle said she would try to provide Chrysler some weekend hours in the coming weeks. Apx.339a. Doyle then e-mailed District Manager Bryan on December 29 stating that Chrysler was "demanding hours" and "threatening discrimination." Apx.340a. Doyle acknowledged that she had omitted Chrysler from the schedule, but explained that the studio "[did] not have the business to justify the labor" and stated: "This is not discrimination due to her [Chrysler] being hearing impaired." Id.; see also Apx.703a-706a (Doyle Dep. 87:13-19, 91:8-15, 92:9-93:9); Apx.637a-638a (Bryan Dep. 95:1-96:8). Doyle's e-mail prefaced the discussion about Chrysler's discrimination complaint with three other work-related complaints about Chrysler: she was "causing trouble arguing with the managers and trying to refuse to take a break;" she was coloring in the lab with colored pencils during work hours;<2> and she had declined "a few opportunities to shoot" when the studio was really busy. Apx.340a. As to the latter, Doyle's e-mail acknowledged that Bryan did not want Chrysler shooting portraits, stating she [Doyle] had offered Chrysler these opportunities "even though you did not want her to." Id. Doyle did not assert that she had spoken to Chrysler about any of this alleged misconduct or had advised Chrysler in any way that this behavior was unacceptable. See id. On January 4, 2008, Bryan forwarded Doyle's e-mail to Diane Kiattinat, a member of Picture People's HR staff. Id. Kiattinat, explaining her role in the decision to discipline Chrysler, said it was her understanding that the Littleton studio managers "had communicated to [Chrysler] that she needed to stop certain behaviors and the behaviors didn't stop," so they had forwarded the matter to her for disciplinary action. Apx.723a (Kiattinat Dep. 93:7-22). The same day that Bryan and Kiattinat conferred, Bryan drafted a disciplinary notice ("Performance Track"). Apx.639a-640a (Bryan Dep. 98:1-99:23); Apx.341a-342a. Although this was Chrysler's first disciplinary action, Bryan labeled the January 4 disciplinary document a "final warning." Apx.342a. The disciplinary notice reprimanded Chrysler for coloring with colored pencils when she was supposed to be developing pictures in the lab and for not taking breaks when assigned to take them. Apx.341a. Importantly, the notice reprimanded Chrysler for becoming "angry" and "threaten[ing] to bring a grievance against The Picture People" when she did not get her hours increased. Apx.341a. Doyle e-mailed Chrysler on Tuesday, January 8, to arrange for Chrysler to meet with Bryan, who was flying in the next day (Wednesday). Apx.470a-471a. When Chrysler responded that she was not available Wednesday at 1:00, Bryan e- mailed her directly offering to meet any time Wednesday between 2:00 and 9:00 (p.m.) or early Thursday morning. Apx.470a. Bryan ended the email exchange by stating, "I can meet with you between 2 and 10 tomorrow [Wednesday] or 8 [a.m.] on Thursday." Apx.471a. In the e-mail exchange between Bryan and Chrysler to set a time for the meeting, Chrysler asked what the meeting was about; Bryan said only that it was "very important" they meet; she "need[ed] to discuss some issues that were brought to my attention by Kim"; and it had to be in person "for documentation." Apx.470a-471a. Chrysler asked five separate times to have an interpreter for the meeting. Bryan rejected this request, stating she would "have everything they were discussing typed out," and, therefore, an interpreter was not necessary. See Apx.470a-471a. Chrysler arrived at the studio around 8:30 or 9:00 p.m. Wednesday evening. Apx.593a. Chrysler had asked Bryan beforehand if there would be anyone else at the meeting, and Bryan's silence led Chrysler to believe it would be just the two of them. See Apx.470a-471a. When Chrysler arrived for the meeting, she was surprised to see Assistant Manager Sandoval (Deidre) was also present. Apx.691a (Chrysler Dep. 208:19-22) ("Candi told me that it would be a one-on-one meeting"); Apx.346a ("I thought this was only me & you meeting?"). In the written notes Chrysler and Bryan exchanged during the meeting, Chrysler reiterated her earlier request for an interpreter. Apx.348a, 351a-353a. Bryan presented Chrsyler with the written disciplinary notice and then offered Chrysler an opportunity to address the charges, through an exchange of written notes. Apx.343a-354a. Chyrsler admitted she sometimes colored while she was waiting for pictures to process, but only when there was nothing else to do, and said she was not the only one who did this. Apx.343a, 350a. She explained that when the other photographers developed their own pictures, it was not because she refused to stop coloring, but because they were bored and wanted to do the work themselves. Apx.344a. Chrysler also explained that the managers told her to take breaks at times that made no sense, such as when she had just started working or was just about to finish her shift, and they would not let her take a break when she really needed one. Apx.345a, 349a. She later explained in her deposition that she had seen other employees skip their breaks and just leave early. Apx.689a- 690a (Chrysler Dep. 201:21-202:18). Bryan and Sandoval talked with each other throughout the meeting and refused Chrysler's request to write down what they were saying to each other, and it was impossible for Chrysler to follow their exchange. Apx.347a; Apx.593a; Apx.692a-693a (Chrysler Dep. 209:3-210:5); Apx.593a (Chrysler Declaration ¶15). Chrysler attempted to take notes on her cell phone in an effort to record what was happening, but by the end of the meeting, Chrysler was confused and crying. Apx.593a (Chrysler Decl. ¶15); Apx.692a (Chrysler Dep. 209:10-12). The narrative in the disciplinary notice suggests Picture People still considered Chrysler an employee at that point and intended to schedule her for work during future busy seasons. See Apx.341a ("Due to the limited tasks that you are qualified to perform, we can only schedule you on very busy times with other groups of employees. There are not very many busy times in January. . . . If you want more hours, wait till the next peak period, perhaps Valentines Day."). Doyle had told Chrysler back in December that she would give her some hours as soon as she could, Apx.339a, but Doyle left Picture People's employment shortly after Chrysler's January 9 disciplinary meeting. Chrysler thereafter called the studio on a weekly basis to see if she was on the schedule. Apx.693a, 695a-697a (Chrysler Dep. 210:6-13, 219:22-221:21). Although the Littleton studio continued to list her as an employee along with the other Littleton staff, Picture People did not offer Chrysler any hours in January or February, although other employees continued to be scheduled to work a few days each week. See Apx. 475a-483a. On March 6, 2008, Chrysler filed a discrimination charge with the EEOC which the EEOC served on Picture People. Apx.499a. In its response, Picture People admitted the company "did not formally terminate" Chrysler's employment after the January disciplinary meeting. Apx.503a. The company further informed the EEOC that it planned "to advise [Chrysler] that it will contact her when business increases so that she may be able to continue her employment," and said it "anticipates this business increase might occur in the weeks leading up to Father's Day this summer." Apx.504a (emphasis added). In May, Chrysler visited the Littleton studio and spoke with the new studio manager, Harold Jobson, about working. Jobson contacted District Manager Bryan who, at the direction of Human Resources Manager Diane Kiattinat, sent Chrysler a letter on May 10, 2008, stating: "We do not have sufficient business at the studio to provide you with hours at this time. If that changes, we will let you know immediately. We also anticipate needing additional coverage during the period before Father's Day between roughly June 1 and June 15. If you do not hear from us sooner, we will contact you during this time to arrange to have you on the schedule." Apx.355a (emphasis added). Despite these representations, Picture People never offered Chrysler any hours after December 24. Picture People officially terminated Chrysler in October 2008. Apx.388a. C. District Court Opinion The EEOC filed this lawsuit in September 2009 alleging, in relevant part, that Picture People violated the ADA by failing to provide Chrysler with reasonable accommodations, wrongfully discharging her, and retaliating against her for engaging in protected activity.<3> Following discovery, the parties cross- moved for summary judgment. The EEOC moved for partial summary judgment on four of Picture People's affirmative defenses. The district court granted Picture People's motion to withdraw these defenses and then denied the EEOC's motion as moot. R.51 (Order Granting Summary Judgment), at 1. The district court granted summary judgment to Picture People on all of the Commission's claims. Id. at 17. As to the EEOC's reasonable accommodation claim, the district court concluded that Chrysler is not "qualified" for the job of performer. Order at 8-12. The court reasoned that "verbal speech" is an essential function of the Performer/Associate position and that no accommodation existed that would permit Chrysler to perform this essential function.<4> Id. at 7-11. The court rejected the EEOC's evidence that Chrysler could communicate with customers effectively through various means of non-verbal communication. Id. at 11 n.3. The court labeled this "irrelevant to the Court's analysis," stating that since the question was whether Chrysler can perform the essential job function of verbal speech, to find this function satisfied by non-verbal means of communication would "[e]ssentially . . . amount to a modification of the essential job function, substituting non-verbal communication for verbal communication." Order at 11 ("The reasonable accommodation requested by plaintiff would require alteration of one of [Picture People's] essential functions."). The court rejected the EEOC's argument that Picture People's employment of another individual-Wendy Duke, who is also profoundly deaf-demonstrates Picture People does not enforce the requirement of verbal communication skills uniformly. The court concluded that Chrysler and Duke cannot be compared because Duke, unlike Chrysler, can speak and read lips. Id. at 9-10. The court also rejected the EEOC's argument that Picture People's emphasis on oral communication is precisely the sort of stereotype the ADA is designed to combat. The court credited Picture People's assertion that it requires verbal communication skills because they are critical to completing tasks quickly, and not simply to avoid the discomfort a customer might feel when interacting with a deaf person who, like Chrysler, has limited ability to vocalize words and read lips. Id. at 10. Having found Chrysler not qualified for the position of Performer, the court also granted summary judgment on the EEOC's unlawful termination claim. Id. at 14. With respect to the EEOC's other allegations of discrimination, the court stated that Picture People's decisions to assign Chrysler exclusively to the lab, to cut her hours, and to discipline her for actions other employees took without repercussion might be evidence of a discrimination claim if Chrysler was qualified for the job, but she is not. Id. at 14. Finally, the court granted summary judgment on the EEOC's retaliation claim, concluding the EEOC could not show that Picture People's proffered nondiscriminatory reasons for disciplining Chrysler and eliminating her work hours were a pretext for retaliation. Id. at 15-16. The court stated that Picture People eliminated Chrysler from the schedule after the holidays because it shifted to a lower staffing format that requires every employee "to perform all of the essential functions of the performer position," and the EEOC failed to create a factual dispute concerning Picture People's assertion that Chrysler is unable to "perform the essential job function of verbal communication." Id. at 15-16. The court stated that Picture People justified its discipline of Chrysler on the ground that she committed the infractions in question (coloring and not taking breaks), and the EEOC failed to demonstrate this explanation was pretextual. Id. at 16. The court stated that, although the Commission asserted that other employees committed the same infractions without repercussion, the EEOC "provided no details about the other employees and their infractions that would allow a jury to conclude these employees were similarly situated to Chrysler." Id. SUMMARY OF ARGUMENT The record in this case contains sufficient facts for a reasonable jury to rule in the EEOC's favor on all three of the EEOC's ADA claims at issue in this appeal-failure to accommodate, discriminatory treatment/discharge, and retaliation. The district court failed to recognize these material factual disputes and, as a result, wrongly granted summary judgment in Picture People's favor. The case should be remanded for a jury trial. The district court erred in holding as a matter of law that Jessica Chrysler is not qualified for the position of performer on the ground that she cannot hear or speak. The evidence shows that Chrysler can and did perform the essential functions of the job notwithstanding her inability to communicate orally. The evidence also shows that the strong communication skills Picture People requires its employees to have so the company can provide its customers with a high quality experience can be satisfied through non-verbal means of communication. Thus, a reasonable jury could find that Chrysler was qualified for the position, as she satisfied all of Picture People's legitimate qualifications for the job. As a qualified individual with a disability (i.e., someone who can perform the job's essential functions with or without accommodation), Chrysler was entitled to reasonable accommodations that would enable her to enjoy "equal benefits and privileges of employment." Chrysler sought the accommodation of having ASL interpreters for her initial orientation, for any subsequent training, and for staff meetings and similar events (like her disciplinary hearing). A jury could find that Picture People failed to satisfy its ADA obligations when it declined to provide this reasonable accommodation. A reasonable jury could also find that since Chrysler was hired to be a photographer and could perform the essential functions of that job, Picture People's decision to relegate her primarily to the lab, not to schedule her for work ten months, and ultimately to terminate her constituted unlawful, disability-based discrimination. Finally, the EEOC adduced adequate evidence from which a jury could determine that Picture People retaliated against Chrysler for complaining about discriminatory treatment. A jury could easily find that the adverse actions Picture People undertook here (disciplining Chyrsler, failing to schedule her for work, and ultimately terminating her) were "materially adverse" actions and that the justifications Picture People proffered for taking these actions are a pretext for discrimination. For these reasons, the district court erred in granting summary judgment on the EEOC's retaliation claim. ARGUMENT Standard of Review This Court reviews the district court's grant of summary judgment de novo, applying the legal standards the district court should have applied. See EEOC v. BCI Coca-Cola Bottling Co., 450 F.3d 476, 483 (10th Cir. 2006) (citation omitted); Rivera v. City & County of Denver, 365 F.3d 912, 920 (10th Cir. 2004) (citation omitted). Summary judgment must be denied if, viewing the record evidence in the light most favorable to the nonmoving party and drawing all reasonable inferences in favor of the nonmoving party, there is a genuine issue as to any material fact. Davidson v. America Online, Inc., 337 F.3d 1179, 1182 (10th Cir. 2003). As this Court has explained, "[t[he nonmovant is given 'wide berth to prove a factual controversy exists.'" Id. (citation omitted). I. The Record Contains Disputed Material Facts Concerning the EEOC's Claim that Picture People Failed to Accommodate Chrysler's Hearing Impairment and Terminated Her Employment because of Her Disability A. A Reasonable Jury Could Find Jessica Chrysler was Qualified for the Position of "Performer." The ADA protects a "qualified individual with a disability" from workplace discrimination because of the individual's disability. 42 U.S.C. § 12112(a).<5> The Act defines the term "discriminate" to include "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability." 42 U.S.C. § 12112(b)(5)(A) (emphasis added). Thus, the ADA's nondiscrimination and accommodation protections are limited to "qualified" individuals. The ADA defines a "qualified individual with a disability" to mean "an individual with a disability 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); Davidson, 337 F.3d at 1190. To determine whether someone meets this definition it is necessary, first, to identify the essential functions of the job. See EEOC ADA Technical Assistance Manual at 11-18 ("individual with a disability's qualifications for a job are evaluated in relation to [the job's] essential functions"). As the phrase "essential functions" implies, there are two components to this determination: the function must be essential, as opposed to marginal, and it must be a job function. Once the essential functions have been identified, the focus shifts to whether the individual can perform those essential functions and, if not, whether any reasonable accommodation by the employer would enable the employee to perform the essential functions. Davidson, 337 F.3d at 1190 (citation omitted). "Essential functions" are the "fundamental job duties of the employment position the individual with a disability holds or desires," not the "marginal functions of the position." Id. at 1191 (quoting 29 C.F.R. § 1630.2(n)(1)). Determining whether a particular job duty is "essential" is a factual inquiry based on a number of considerations, including, but not limited to, "the employer's judgment as to what functions of a job are essential" and any written description the employer prepared before advertising or interviewing applicants for the job. 42 U.S.C. § 12111(8); Davidson, 337 F.3d at 1191; Conneen v. MBNA Amer. Bank, 334 F.3d 318, 326 (3d Cir. 2003). Additional evidence of whether a particular function is essential includes, among other things, "[t]he work experience of past incumbents in the job" and "[t]he current work experience of incumbents in similar jobs." See 29 C.F.R. § 1630.2(n)(3)(vi) & (vii). In this regard, this Court considers, initially, "whether an employer actually requires all employees in the particular position to satisfy the alleged job-related requirement." Davidson, 337 F.3d at 1191. If so, "the inquiry will then center around whether removing the function would fundamentally alter the position." Id. As this Court further explained, "[t]his inquiry is not intended to second guess the employer or to require him to lower company standards." Id. Rather, provided "any necessary job specification is job-related, uniformly enforced, and consistent with business necessity, the employer has a right to establish what a job is and what is required to perform it." Id. (citations omitted). An employer's judgment, including the fact that the employer has included a particular requirement in a job description, is not conclusive evidence that something is an essential job function, however. Id. As this Court cautioned in Davidson, "'an employer may not turn every condition of employment which it elects to adopt into a job function, let alone an essential job function, merely by including it in a job description.'" Id. (citation omitted). A job description, beyond describing the duties of the position or tasks to be performed (the "functions" of the job), may also identify job skills the employer prefers or requires, but an employer's preference for or requirement of such skills does not turn them into essential job functions. See Skerski v. Time Warner Cable Co., 257 F.3d 273, 280 (3d Cir. 2001) (employer's description of a particular skill or ability as a job requirement not the same as finding it an essential function; employer may view something as "a useful skill or method to perform the essential functions of the job" but that does not make the skill "itself an essential function" of the position). As one legislator commented during the enactment of the original ADA in addressing the definition of "qualified individual" and the statute's reasonable accommodation requirement, "[T]he essential function requirement focuses on the desired result rather than the means of accomplishing it." See id. (quoting comments of Rep. Fish) (136 Cong.Rec. 11,451 (1990)). The district court, in finding Chrysler is not qualified for the job of "performer" as a matter of law, misapplied this standard and confused the concept of "essential job functions" with the usual means of accomplishing the essential job functions. Verbal communication is not an "essential function" of the performer position, as the court wrongly concluded. Rather, it is simply the usual method Picture People's non-deaf employees use to accomplish the essential job functions of communicating with customers and selling customers pictures. Picture People offered two job descriptions in support of summary judgment: one for the position of "performer" and one for the position of "seasonal associate." Apx.98a-101a. Both identify requisite job duties and responsibilities as including "mak[ing] customers feel welcome and comfortable" and "provid[ing] customers with a variety of distinct portraits." Apx.98a, 101a. Neither job description suggests any reason why these particular job duties could only be accomplished through oral communication. See Apx.98a-101a. Picture People's witnesses similarly described the essential tasks that make up the job of "performer" as: (1) greet customers as they arrived at the studio and check them in at the front desk ("intake/administrative"); (2) ascertain the kind of pictures the customer wants and take pictures that satisfy the customer, which includes communicating with the customer on how to pose the subject(s) of the pictures to achieve the desired results ("photography"); (3) develop pictures in the lab; and (4) sell the customer a package of pictures ("sales").<6> Clearly, accomplishing these tasks requires an employee to communicate with customers. But although "verbal communication" is by far the most common means by which Picture People's employees accomplish these tasks, the Commission presented evidence from which a jury could find that Chrysler could accomplish these same underlying tasks effectively through a wide range of communication methods other than hearing and speaking, including gestures, pantomime, and facial expressions; using computer images; references to printed materials prepared by Picture People; spoken words; and exchanging written remarks. The record contains sufficient evidence from which a reasonable jury could conclude that the job of performer could be accomplished through these alternate, largely non-oral means. For instance, the EEOC presented the testimony of Barbara Bryant, a rehabilitation counselor who works for the Colorado Division of Vocational Rehabilitation. She testified, based on her knowledge and experience, that a deaf employee like Chrysler could perform a job calling for "strong customer service skills" and "excellent oral communication skills" "exclusively through gesturing and writing things down with the customer" and that engaging in a written dialogue with customers can be "an effective substitute for oral communications." Apx.649a, 664a-665a (Bryant Dep. at 8, 115-116). Bryant also attested that, assuming communicating with customers to ensure they have a pleasant experience is one of the essential functions of the performer job, based on her personal knowledge of Chrysler, she believed Chrysler could have performed that function with or without accommodation. Apx.669a (Bryant Dep. at 134:2-19). The EEOC's vocational expert, Michael Newman, also testified that, in his opinion, Chrysler could perform the essential functions of the performer position with reasonable accommodation and achieve effective communication through the use of reasonable accommodation, assistive technology, and staff acceptance. See Apx.760a-761a (Newman Dep. 104:21-105:10); Apx.305a-307a (Newman Vocational Evaluation Report). The EEOC presented additional evidence that Wendy Duke Ray, who is also deaf, worked successfully for several years in a different Picture People studio performing all the tasks of a "performer" except answering the telephone (which Picture People simply reassigned to other employees when Duke was working and, in discovery, characterized as a "non-essential function," see p.25 n.6 supra). See Davidson, 337 F.3d at 1191-92 (finding jury question on whether employer's imposition of a hiring requirement that deaf individuals could not meet was justified as job-related or was a business necessity where employer had previously hired deaf individuals, without problem, into the position plaintiff desired). Picture People argued that Wendy Duke has greater lip-reading and "deaf speech" skills than Chrysler. Based on record evidence, however, a jury could find the differences not as significant as Picture People urged. See, e.g., Apx.815a (Aguilar Dep. 167:15-24). Finally, the EEOC presented the testimony of Chrysler, herself, who described the various ways she communicated with customers to determine what kinds of pictures they wanted and to direct them and their children into poses that would achieve the customers' desires. Apx.237a-251a (Chrysler Dep. 134:12- 137:19, 140:12-141:2, 141:25-143:7, 144:1-146:3, 147:11-150:15). Chrysler explained that she had taken pictures of customers 15 or 20 times while working for Picture People, sometimes with other employees present, and no one had expressed any concerns to her about how those sessions went. Apx.246a-248a (Chrysler Dep. 145:24-147:7). She also explained how, after a photo shoot, she would make the customer aware of the different packages they could purchase. Apx.248a-251a (Chrysler Dep. 147:11-150:15). Chrysler further described how she communicated with children when she worked as a pool guard at the community pool, Apx.222a-224a (Chrysler Dep.33:16-35:24), and testified that she has also worked as a nanny. Apx.229a (Chrysler Dep. 40:20-25). Despite this evidence of Chrysler's ability to perform the essential functions of the job with alternative means of communication, Picture People insists that non-oral forms of communication simply do not satisfy its business needs. Specifically, the company stated that it specializes in portraiture of children ages five and younger who generally do not read and have short attention spans. Picture People asserted that, for this reason, employees need the ability to communicate with customers orally ("strong verbal communication skills") to achieve the company's business goals of delivering the kind of pictures the customers want (effective communication) in the shortest amount of time possible (efficient communication). Nevertheless, as indicated on Picture People's job descriptions for the Performer and Seasonal Associate positions, Apx.98a-101a, "strong verbal communication skills" is not a job function but, at most, a job qualification, because it describes a means of accomplishing the desired end result rather than the end result, itself. See Skerski, 257 F.3d at 280. Assuming that Picture People and the district court view verbal communication as a qualification standard for the position of performer, a reasonable jury could find that Picture People violated the ADA when it applied this job qualification to exclude Chrysler. It is unlawful for an employer to use "qualification standards . . . or other selection criteria that screen out or tend to screen out an individual with a disability . . . unless the standard . . . or other selection criteria . . . is shown to be job-related for the position in question and is consistent with business necessity." 42 U.S.C. § 12112(b)(6); 29 C.F.R. § 1630.10. For an employer to defend its use of a qualification standard that screens out individuals with a disability, however, the employer must demonstrate not only that the qualification standard is "job-related and consistent with business necessity," but also that "performance cannot be accomplished by reasonable accommodation, as required under [Title I of the ADA]." 42 U.S.C. § 12113(a); 29 C.F.R. § 1630.15(c). Thus, unless an employer demonstrates that the qualification standard meets the requisite "job-related/business necessity" test and that performance cannot be accomplished by reasonable accommodation, the employer cannot disqualify an individual on the basis of his or her disability. See 42 U.S.C. § 12113(a); Bates v. United Parcel Serv., Inc., 511 F.3d 974, 990 (9th Cir. 2007) (en banc).<7> As noted above, Picture People asserted a business necessity for its requirement that performers and seasonal associates have strong verbal communication skills. The company argued that using written communication is unreasonable and impractical in the camera room because writing takes longer than speech, young children have a short attention span, and writing would interrupt the flow of the photo shoot and impede a photographer's ability to establish rapport with a parent and child. Apx.37a (PP-SJF #53). Picture People presented no evidence, however, that Chrysler could not work effectively with young children and their parents and communicate the necessary information. Picture People's argument ignores the various means of non-written communication Chrysler could and did employ in the camera room, including, as discussed above, pantomime, gestures, and references to computer images and sample pictures. Furthermore, evidence that an employee with a disability has performed a particular job in the past constitutes evidence on which a jury could reasonably find the employee "qualified" for that job. See Rizzo v. Children's World Learning Ctrs, Inc., 173 F.3d 254, 260 (5th Cir. 1999) (rejecting employer's contention that hearing-impaired employee not qualified to drive school van where employee drove in past with no record of any problems); D'Angelo v. Conagra Foods, Inc., 422 F.3d 1220, 1234 n.6 (11th Cir. 2005) (employee's prior job performance working around moving equipment created question of fact as to whether she could perform the essential function of working around moving equipment). After Chrysler completed her training, she worked in the camera room for at least one day before Picture People's managers ordered her re-assigned to the lab. Chrysler testified that over the remainder of her tenure, she worked in the camera room 15 to 20 more times, and no one told her there were any problems with those sittings. Apx.246a-247a (Chrysler Dep. 145:24-146:5). The EEOC presented evidence that the pictures Chrysler took of the Krols' infant, her first day in the camera room, resulted in a very satisfactory customer experience. See Apx.737a, 739a-741a (Melissa Krol Dep. 26:2-20, 30:2-25, 33:8-34:21); Apx.606a-608a (Aguilar Dep. 116:9-118:3) ("vividly remember[s] [the Krols] telling me how great their sit was"; customers were "amazingly happy"). Indeed, the Krols purchased more pictures than they had intended from Chrysler's photos, and when they returned for more pictures the following month, they specifically requested Chrysler to take their next set of baby pictures. Apx.737a, 742a-744a. A jury could conclude, particularly in the absence of any evidence to the contrary, that Chrysler was able to perform the essential job functions notwithstanding her inability to hear or speak. B. A reasonable jury could find Picture People failed to provide reasonable accommodation for Chrysler's hearing impairment in violation of the ADA. The district court did not address the Commission's claim that Picture People failed to provide an effective accommodation. Having concluded that Chrysler was not a "qualified individual with a disability" because she cannot communicate with customers orally, the district court held, on that basis, that she is not entitled to any ADA accommodations. Picture People argued, alternatively, that although it did not provide ASL interpreters for Chrysler, it fully satisfied the statute with alternate accommodations that were equally effective. On this record, a reasonable jury could find both that Chrysler was a "qualified" individual and that Picture People, by providing Chrysler with only written notes rather than an ASL interpreter, failed to provide equally effective accommodations for staff meetings and Chrysler's disciplinary meeting. Therefore, the district court erred in granting summary judgment. Chrysler sought two accommodations: (1) ASL interpreters for training, staff meetings, and her disciplinary meeting; and (2) modification of the manner in which she worked as a "performer" to allow her to communicate with customers using non-verbal means of communication. The ADA's reasonable accommodation provisions contemplate just these types of workplace adjustments to enable individuals, like Chrysler, to have an equal opportunity to work and to obtain equal benefits of employment. The ADA prohibits discrimination against a qualified individual because of his or her disability "in regard to . . . job training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a). The statute defines "discriminate" to include: not making reasonable accommodations to the known physical . . . limitations of an otherwise qualified individual with a disability who is an . . . employee, unless such 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). The EEOC's regulations define "reasonable accommodation" as "modifications or adjustments to . . . the manner . . . under which the position . . . is customarily performed," or "modifications or adjustments that enable [an employee with a disability] to enjoy equal benefits and privileges of employment" as non-disabled employees. 29 C.F.R. § 1630.2(o)(1)(ii), (iii). If an employee "demonstrate[s] that an accommodation appears reasonable on its face," "[t]he burden of production then shifts to the employer to present evidence of its inability to accommodate." Mason v. Avaya Communications, Inc., 357 F.3d 1114, 1122 (10th Cir. 2004) (citations omitted). An employer is not obligated to provide the specific accommodation an employee requests or prefers, but if the employer provides an accommodation that the employee indicates is not working, the employer has a continuing obligation to engage in the interactive process to identify an alternate accommodation that will enable the employee to perform her job or to "enjoy equal benefits and privileges" of the job. EEOC v. UPS Supply Chain Solutions, 620 F.3d 1103, 1110-11 (9th Cir. 2010). If an employer declines to provide a proposed accommodation on the ground of "undue hardship," the employer bears the burden of demonstrating that any cost or inconvenience is unduly burdensome. 42 U.S.C. § 12112(b)(5)(A); Skerski, 257 F.3d at 284. The ADA specifies that "[t]he term 'reasonable accommodation' may include . . . the provision of qualified . . . interpreters." 42 U.S.C. § 12111(9)(B). In a variety of contexts, courts have held that employers violated the ADA by failing to provide ASL interpreters where necessary to enable deaf employees to "enjoy equal benefits and privileges" of training and staff meetings. See, e.g., UPS Supply Chain Solutions, 620 F.3d at 1110-14 (reversing grant of summary judgment to employer because jury could find that employer was required to provide ASL interpreter for staff meetings and training); EEOC v. Federal Express Corp., 513 F.3d 360, 376-77 (4th Cir.), cer. denied, 555 U.S. 814 (2008) (company managers' continued failure to provide ASL interpreter for deaf employee for staff meetings and training supported jury's punitive damage award); EEOC v. Wal- Mart Stores, Inc., 187 F.3d 1241, 1246-49 (10th Cir. 1999) (upholding award of punitive damages where defendant declined to provide ASL interpreters for deaf employee for mandatory staff meetings and training sessions and then disciplined and terminated employee when he refused to attend without interpreter).<8> The EEOC's evidence demonstrates that, on several occasions, Picture People made no attempt to secure, and failed to provide Chrysler with, an interpreter when she needed one. Picture People failed to provide Chrysler with interpreters for her initial, three-day orientation, even though interpreters were essential for her to understand this critical instruction. See discussion supra at pp4-6. Although Chrysler was eventually able to provide her own interpreters through the Colorado DVR, the fact that a state agency happened to offer this service in no way relieves Picture People of its responsibility to provide its employees reasonable accommodations. The response of Picture People's district manager and HR officials at every stage demonstrate the company's disregard for its obligations under the ADA. When Aguilar asked his supervisor, District Manager Bryan, how he should go about securing a translator for Chrysler's training, Bryan said Picture People does not provide that kind of service to its employees. When Aguilar approached HR Official Rawlings with the same question, Rawlings pushed the task back onto Aguilar (after Aguilar had just informed him he did not know what to do), and suggested, among other things, that Aguilar check local churches for volunteer translators. See discussion supra at pp5-6. A jury could find, on this record, that the company's steps were inadequate, as no manager ever did anything to actually assist Aguilar or to secure ASL interpreters for Chrysler's orientation. During the three weeks that Aguilar and Chrysler continued to make inquiries on their own and to press the company for action, Chrysler learned that the Colorado DVR was able to offer interpreter services for her initial period of training, something she did not previously know. Thus, Chrysler was able, belatedly, to obtain her own interpreters. Nevertheless, a jury could find that absent this fortuitous circumstance-that a state agency happened to supply this service and Chrysler happened to learn about it, having not previously known it was available-Picture People might never have provided Chrysler with an interpreter. Based on this evidence, a reasonable jury could conclude that Picture People's failure to take any actual steps to provide Chrysler with an interpreter fell short of meeting its obligations under the ADA. The company also failed to provide Chrysler with an interpreter for the advanced photography training the company conducted in late November 2007. Because Chrysler had no prior notice of this training, she had no opportunity to attempt, on her own, to make prior arrangements with DVR for interpreter services. Picture People certainly knew Chrysler had obtained interpreters for her initial orientation without cost to Picture People, but made no attempt to arrange interpreter services for this training. It is unclear whether the Picture People managers outside the Littleton studio knew the interpreters for Chrysler's orientation had been supplied by DVR, but the company certainly knew interpreters had come from somewhere. Picture People could, and should, have anticipated that the need for interpreters would likely arise again during Chrysler's tenure, and should have asked Chrysler for the source of her interpreters or, at the very least, should have informed Chrysler of the upcoming training so she could have attempted to obtain an interpreter on her own. Picture People neither approached Chrysler to find out where she had obtained the initial interpreters nor took any steps to secure an interpreter for Chrysler for any other training. As a result, although Chrysler was present for the advanced photography training, she was unable to benefit from the instruction in any way. Picture People also refused Chrysler's requests for an interpreter for the staff meetings held in November and December and for her disciplinary meeting in January 2008. Picture People claims it satisfied all legal requirements by providing Chrysler with a written agenda of staff meeting topics and a written statement of the bases for the discipline. But as Chrysler and the EEOC's other witnesses explained, a hearing-impaired individual who is deprived of interpreter services in group settings such as the staff meetings and Chrysler's disciplinary meeting misses out on all of the interchange between the participants. See Apx.254a-255a, Apx.691a-693a (Chrysler Dep. 157:15-158:14, 208:19-210:5). Thus, Picture People's refusal to provide interpreters for staff meetings deprived Chrysler of whatever benefits Picture People expected its employees to derive from meeting together in staff meetings (as opposed to simply handing each employee a written meeting agenda to read on his or her own). Apx.260a (Chrysler Dep. 163:1-25) (Chrysler explained that what she missed hearing at staff meetings "could have helped me improve my performance in my position"). And Picture People's refusal to provide Chrysler with an interpreter at her disciplinary meeting in January left her confused about why she was being disciplined and what the two managers were saying to each other concerning her supposed infractions. Apx.692a-693a (Chrysler Dep. 209:3-210:5). As the Commission contended below, see Apx.375a-377a (R.43, EEOC SJ Opp., at 20-22), by failing to provide interpreters in each of these contexts, Picture People violated the ADA's requirement of reasonable accommodation. See UPS Supply Chain Solutions, 620 F.3d at 1111-13 (employer cannot satisfy its ADA obligations by providing an ineffective accommodation; finding disputed issue of fact concerning whether written notes of group meetings was an effective accommodation). The court discussed ASL interpreters only in the context of rejecting the EEOC's hostile work environment claim and never ruled on whether giving Chrysler written notes of staff meetings and a detailed written disciplinary notice were "'equally effective'" as providing interpreters for these meetings, as Picture People claimed and the EEOC disputed. See R.31, at 17 (citing 29 C.F.R. Pt. 1630 app. § 1630.9); R.43, at 20-22. A jury could find, from the EEOC's evidence, that these types of written communications were not "equally effective" in apprising Chrysler of critical information exchanged during staff meetings and disciplinary meeting and, further, that an interpreter would certainly be needed for any periodic training provided to staff.<9> See, e.g., UPS Supply Chain, 620 F.3d at 1111-14. ADA "reasonable accommodations" also include "[m]odifications or adjustments . . . to the manner or circumstances under which the position . . . is customarily performed, that enable a qualified individual with a disability to perform the essential functions of that position." 29 C.F.R. § 1630.2(o)(1)(ii) (emphasis added). In this case, Picture People did not need to provide modifications, but needed only to observe how Chrysler was able to perform the essential functions of the job. When Aguilar, who was studio manager at the time, hired and trained Chrysler, he understood that Chrysler, as a deaf employee, would interact with customers differently than Picture People's hearing employees. He believed, nonetheless, that Chrysler could serve customers effectively using nonverbal forms of communication. Upper management overruled Aguilar's judgment and reassigned Chrysler from the camera room to the lab without ever observing Chrysler photographing customers and without ascertaining how she communicates with customers because they simply assumed she could not do the job due to her disability. See Apx.632a, 636a (Bryan Dep. 80:4-12, 90:1-10); Apx.713a-718a (Johnston Dep. 91:2-95:25, 99:5-17); Apx.801a (McGrail Dep. 106:1-109:15). Picture People refused to permit Chrysler to demonstrate that, although she did it differently, she could perform the essential functions of the job. In so doing, Picture People failed to engage in the interactive process and, instead, acted on the basis of stereotypical assumptions about what a hearing-impaired employee can and cannot do. A reasonable jury could find that, by acting based on stereotypical assumptions instead of exploring with Chrysler how she might modify the manner in which she performed the job, Picture People violated the ADA. See 42 U.S.C. § 12112(b)(5)(A); 29 C.F.R. § 1630.2(o)(1)(ii). The district court rejected the EEOC's argument that, when Picture People refused to allow Chrysler to photograph customers, it was acting based on stereotypes the ADA was designed to combat. The court reasoned that Picture People was motivated, instead, by legitimate business concerns because the company's witnesses "testified to the importance of speed in their business" and the EEOC's own expert witness stated that verbal communication is faster than written communication. R.51 (S.J. Order), at 10. The court further explained that the ADA does not require an employer "to lower company standards." Id. On this record, however, a jury would not have to conclude that allowing Chrysler to use nonverbal forms of communication would result in any lowering of Picture People's standards, either in terms of the quality of the portraits taken or the customer's experience during the session. Even if it generally takes longer to communicate in writing than orally, that does not necessarily mean there would be any appreciable difference in time here. In any event, as noted above, there is considerable evidence here that Chrysler could perform the job, and the only reason Picture People failed to learn this is because it precipitously reassigned Chrysler to the lab after only one day in the camera room, and without having observed her photographing any customers. To the extent this decision was based on Picture People's belief that Chrysler's use of gestures, pantomime, and written communications would slow the photography process significantly, this belief was based solely on pure speculation, and a jury could find it was simply incorrect. In fact, Melissa Krol testified in her deposition that her session with Chrysler-her second time using Picture People-was "a really great experience" that took around the same amount of time as her other photography sessions at the same studio. Apx.735a, 741a (Melissa Krol Dep. 24:2-4, 34:10-21). In granting summary judgment on the EEOC's reasonable accommodation claim, the district court's decision improperly endorsed employment decisions based on speculation and unfounded assumption. Cf. Woodman v. Runyon, 132 F.3d 1330, 1345 (10th Cir. 1997) (to meet its burden under Rehabilitation Act, employer may not merely speculate that suggested accommodation is not feasible) (citation omitted). C. A reasonable jury could find that Picture People discriminated against Chrysler and terminated her employment because of her disability. Picture People sought, and the district court granted, summary judgment on the EEOC's discriminatory discharge claim on the ground that Chrysler was not qualified for the position of "performer." R.31 at 12; See R.51 (S.J. Order), at 14. Picture People made no other arguments concerning the EEOC's unlawful termination claim. See R.31 at 12 (Apx.40a). Picture People did not actually terminate Chrysler's employment until October 20, 2008. Apx.388a. Between January and October 2008, Picture People simply did not schedule Chrysler for any work, ostensibly on the basis that Chrysler could not perform all of the tasks of the "performer" job and the company had no need for someone who could only work in the lab. As explained above, however, Picture People's determination that Chrysler could only work in the lab is based on unfounded assumptions about Chrysler's abilities to communicate using non-oral means of communication. See discussion supra at pp 24-30. For the same reasons explained above, a reasonable jury could find that Chrysler was able to perform the essential functions of the performer position, with or without accommodation, and that Picture People's actions constituted unlawful discrimination under the ADA. Likewise, a jury could find, on the same basis, that Picture People's decision to assign Chrysler primarily to the lab during November and December, rather than permitting her to gain the full range of experience performing other job duties within the studio, constituted discriminatory assignment in violation of the ADA. See 42 U.S.C. § 12112(b)(1) (defining "discriminate" to include "limiting, segregating, or classifying [an] . . . employee in a way that adversely affects the opportunities or status of such . . . employee because of . . . disability"). Because there is record evidence from which a jury could find both discriminatory termination and discriminatory assignment in violation of the ADA, the district court erred in granting summary judgment on this claim. II. A Reasonable Jury Could Find Picture People Retaliated Against Chrysler in Violation of the ADA. The district court granted summary judgment on the EEOC's retaliation claim, as well. The court reasoned that, assuming the January 2008 disciplinary action and the complete elimination of Chrysler's hours after December 24 were materially adverse, Picture People had proffered legitimate, nonretaliatory reasons for both actions. In the court's view, the EEOC's evidence was insufficient for a jury to find those reason pretextual. The court erred; a jury could find pretext based on a number of disputed facts in the summary judgment record. The ADA prohibits retaliation against any individual for opposing any act made unlawful by the ADA. 42 U.S.C. § 12203(a). The ADA also makes it unlawful "to . . . interfere with any individual in the exercise or enjoyment of . . . any right granted or protected by" the ADA. 42 U.S.C.§ 12203(b). To establish a prima facie case of retaliation under the ADA, a plaintiff must prove: (1) the employee engaged in protected activity, (2) a materially adverse action followed, and (3) a connection exists between the protected activity and the adverse action. Hennagir v. Utah Dept. of Corrections, 587 F.3d 1255, 1265 (10th Cir. 2009). An employment action is "materially adverse" if it would dissuade a reasonable worker from engaging in protected activity. Id. at 1266 (citing Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67-68 (2006)). If a plaintiff meets this initial burden, the employer must put forth a legitimate, nondiscriminatory reason for the adverse action, at which point the plaintiff must show this articulated justification is a mere pretext for discrimination. Id. at 1265. A plaintiff's evidence of pretext need not be conclusive, but need only raise an issue of material fact as to whether the defendant's proffered reasons are pretextual. See Pastran v. K-Mart Corp., 210 F.3d 1201, 1206-07 (10th Cir. 2000). Picture People did not contest that Chrysler engaged in several forms of protected activity during her employment with Picture People. Picture People conceded that after Chrysler completed her initial orientation, she requested an ASL interpreter for staff meetings, to no avail, and that she complained about being cut from the schedule after December 24 even though co-workers continued to be scheduled for work. See Apx.359a-360a, 790a (admitting EEOC-SJF ## 18, 19, 26-28); see also Apx.473a-498a (weekly schedules). Picture People argued only that eliminating Chrysler from the work schedule and disciplining her after she questioned not being scheduled to work were not materially adverse actions and that the company's asserted reasons for taking these actions were not a pretext for retaliation. See Apx.46a-47a. Based on the record, a jury could conclude otherwise. First, although the court did not rule on this issue, there can be no question that Picture People's termination of Chrysler in October 2008 was a materially adverse employment action. See Roberts v. Roadway Express, Inc., 149 F.3d 1098, 1104 (10th Cir. 1998) (cited in McGowan v, City of Eufala, 472 F.3d 736, 741 n.2 (10th Cir. 2006)).<10> A reasonable jury could find that this termination actually occurred, for all intents and purposes, in January 2008, because although the company's records and the weekly schedule for the Littleton Store continued to list Chrysler as an employee, it is undisputed that Picture People never scheduled her for work again after December 24, 2007. E.g. Apx.473a-498a (weekly schedules listing Chrysler, but with no assigned hours). Not scheduling Chrysler to work for ten consecutive months-and thereby depriving her of any opportunity to earn a paycheck-is no different, in this instance, from a suspension or termination, two types of employment actions that this Court has noted "are by their nature adverse." See Roberts v. Roadway Express, Inc., 149 F.3d at 1104. A reasonable jury could also find that Chrysler's "final warning" was materially adverse because, by its express label, it purported to be a last step before imposition of additional discipline that could include termination of employment. The document Picture People handed Chrysler on January 9, 2008, expressly stated it was "a written/final warning" regarding "performance/behavior deficiency" and stated: "Failure to meet the documented expectations will result in additional disciplinary action up to and including termination of employment." Apx.342. A jury could find that a reasonable employee would be dissuaded from engaging in protected activity if it would result in a "final warning" constituting the last step before a possible "termination of employment"; on that basis, a reasonable jury could find this disciplinary action "materially adverse." See, e.g., Berry v. Stevinson Chevrolet, 74 F.3d 980, 986 (10th Cir. 1996) (employer actions that "can have an adverse impact on future employment opportunities" are legitimately regarded as "adverse employment actions"). Second, the record contains ample evidence from which a reasonable jury could find that Picture People's explanations for its actions were a pretext for retaliation. For instance, the district court accepted Picture People's assertion that it eliminated Chrysler from the schedule after December 24 because by that point-during the post-holiday downturn in business-the company was operating under its reduced 2-2 staffing schedule and had no need for someone like Chrysler, who had worked almost exclusively in the lab.<11> See Order at 15-16. Of course, restricting Chrysler to working in the lab is, itself, a result of Picture People's false assumption that Chrysler's hearing impairment prevented her from meeting Picture People's standards for effective customer communication. But even assuming, arguendo, that because of her disability Chrysler was not capable of working under a reduced, 2-2 staffing level, a jury could still find pretext based on the facts in this record. Specifically, the weekly schedules for the Littleton Store show there was, indeed, a pattern of reduced scheduling immediately after the holidays. Total weekly employee hours went from over 300 hours for the week ending December 22, 2007, to only 62 hours for the week ending January 5, 2008. Compare Apx.473a with Apx.475a. That pattern, however, turned around within a few months By mid-to late-February, total employee hours rose to almost 150 hours for one week, and by the third week in March, employee hours totaled over 250 hours for the week. See Apx.481a-486a. During the first two weeks of June-the weeks leading up to Father's Day, when Picture People had predicted it would be busy again-some days the store had as many as 5 or 6 employees working the same shift. See Apx.497a-498a. Although Chrysler's name appears on each weekly schedule along with the other employees, there are no assigned hours next to Chrysler's name. During this same period of time, Picture People told Chrysler a number of times it would schedule her for work. These offers include Doyle's initial conversation with Chrysler, when Chrysler first noticed she was not listed on the post-holiday schedule. See Apx.338a-339a (Doyle offered Chrysler hours on a future, unspecified schedule). Doyle's December 29 email to Bryan confirmed that Doyle had told Chrysler "she would have a few hours the next week." Apx.340a. The disciplinary notice, itself, tells Chrysler that "If you want more hours, wait for the next peak period, perhaps Valentines Day." See Apx.341a. The Valentine's Day hours never materialized, but Picture People told the EEOC in April that it would be offering hours to Chyrsler shortly and then sent Chrysler a letter in May saying the same thing, specifically mentioning the weeks leading up to Father's Day in June. See Apx.504a; Apx.355a. Despite these repeated promises by Picture People that it would offer Chrysler hours, Picture People never scheduled her for even one day of work in the ten months following December 24, 2007. On none of these occasions when Picture People was indicating its intent to offer future work to Chrysler did the company state it had excluded Chrysler from the work schedule because she could not perform the job. In fact, the work offers, themselves, suggest just the opposite. Thus, a reasonable jury could infer from Picture People's repeated representations that it intended to schedule Chrysler for work that Picture People in fact believed she could do the job. Based on the fact that staffing levels at the Littleton store increased beyond the 2-2 schedule at various points during the same period of time that Picture People was telling Chrysler or the EEOC it would be offering Chrysler work (but did not), a jury could find that Picture People's failure to actually offer any hours to Chrysler was not because of reduced staffing requirements, but to retaliate against Chrysler for having asserted her ADA rights. Thus, a jury could find that Picture People's vague offers of future work were merely empty gestures intended to mask a retaliatory intent, in effect, to terminate Chrysler's employment. Cf. Strother v. So. Cal. Permanente Med. Group, 79 F.3d 859, 870-71 (9th Cir. 1996) (letter in which defendant praised plaintiff's interpersonal skills sufficient, along with temporal proximity, to create factual dispute on "pretext" where employer claimed its decisions were made, in part, because of plaintiff's poor interpersonal skills). A jury could also find evidence of pretext in numerous inconsistencies between the testimony of Bryan and the EEOC's witnesses because, if a jury were to believe the EEOC's witnesses on these points, it could conclude that Bryan was either lying outright or stretching the truth in an effort to cast Chrysler in an unwarranted negative light. For example, Bryan testified that after she first learned Aguilar had hired a deaf employee, she "spoke with Arnold and tried to figure out what [Chrysler] could do in the studio. What her abilities would be." Apx.58a (Bryan Dep. 70:23- 71:3). According to Bryan, Aguilar agreed that Chrysler could not do photo sessions and the lab "would be the best place for her." Id. (Bryan Dep. 71:7-72:11). Bryan further attested that when she discussed with Aguilar whether Chrysler could do the job, Aguilar said "he felt sorry for [Chrysler]" and "thought she was able to do more when he hired her." Id. (Bryan Dep. 72:21-73:4). Aguilar testified to a very different recollection of his opinion of Chrysler's capabilities and his conversations with Bryan about her. Aguilar said he never told Bryan that he hired Chrysler because he felt sorry for her and never told Bryan he was disappointed that Chrysler could not do as much as Wendy Duke. Apx.815a (Aguilar Dep. 166:5-11, 167:3-24) ("I never made those comments about Jessica."). Aguilar said he hired and trained Chrysler to be a photographer, thought she could do the job, and told Bryan he disagreed with her decision to reassign Chrysler to the lab. Apx.386a (Aguilar interview); Apx.86a, 89a, 92a-93a (Aguilar Dep. 112:5-17, 130:24-131:3, 160:6-164:17). Aguilar had worked with Wendy Duke and, although he recognized that Chrysler communicated differently than Duke in some respects, he believed Chrysler was also able to communicate with customers effectively. Apx.815a (Aguilar Dep. 167:15-24). As Aguilar explained, Picture People placed a premium on customer experience, and he did not have any customer complaints about Chrysler. Apx.93a (Aguilar Dep. 164:7-17). Bryan made other statements that conflict with Chrysler's testimony or other record evidence, and a jury, if it believed the EEOC's evidence, could conclude Bryan was not being truthful. For example, Bryan claimed Chrysler was an hour and a half late for the January 9 disciplinary meeting. Apx.66a (Bryan Dep. 166:13-167:20). The record, however, shows that Bryan offered Chrysler the option of meeting any time between 2:00 and 10:00 p.m. on Wednesday. Apx.471a. Chrysler says she arrived around 8:30 or 9:00 p.m. Wednesday evening, well before the 10:00 p.m. cut-off. Apx.593a. Bryan states that Chrysler arrived "closer to 9:30," Apx.66a (Bryan Dep. 166:15-167:1), but even by that account, Chrysler was not late. Whether a jury believed Chrysler or Bryan's testimony as to Chrysler's arrival time, the jury could still conclude that Bryan intentionally misrepresented that Chrysler was late in an effort to make Chrysler appear unreliable or undeserving of continued employment at Picture People. Bryan also stated in her deposition that she believed Chrysler was told beforehand that the meeting was to discuss discipline and that Chrysler never requested an interpreter for the meeting until she arrived. See Apx.641a-642a. The record shows, however, that Bryan notified Chrysler of the meeting by e-mail the day before and, in that e-mail exchange (which is in the record), Chrysler asked what the meeting was about and Bryan said only that it was "very important." Apx.470a. Furthermore, in that same e-mail exchange, Chrysler asked Bryan no less than five times to provide an interpreter for the meeting, but Bryan refused. See Apx.470a-471a. Bryan also suggested that Picture People failed to offer Chrysler any hours after the January 9 disciplinary meeting because Chrysler failed to contact Picture People requesting work. See R.31, at 18 (Apx.46a); Apx.643a (Bryan Dep.117:20- 118:7); Apx.355a (Bryan letter to Chrysler). Record evidence shows, however, and Picture People conceded below that Chrysler continued to contact the studio after January 9 to see if she was on the schedule. Apx.790a (admitting EEOC-SJF #34); Apx.693a, 695a-697a (Chrysler Dep. 210:6-13, 219:22-221:21) (Chrysler continued to contact studio on a weekly basis). Indeed, Chrysler approached the studio often enough that Picture People told the EEOC in April 2008 that the company would be contacting Chrysler about future hours (Apx.504a), and Bryan sent Chrysler a letter in May acknowledging that Chrysler had contacted the studio recently and stating the company would contact her about work. Apx.355a. In the face of this evidence, a jury could find that Bryan's statement in her deposition-that the reason Picture People never offered Chrysler any work after Bryan sent Chrysler the May 10 letter was because Chrysler did not contact the studio again (even though Bryan's letter told Chrysler "we'll call you")-was yet another attempt to distort the facts to mask Picture People's retaliatory conduct. See Apx.808a (Bryan Dep. 174:2-175:23). Because Picture People relied below on Bryan to establish the basis for the disciplinary action, and because the record contains these disputed facts that cast doubt on Bryan's testimony, the district court erred in granting summary judgment on the EEOC's retaliation claim. Additionally, a jury could disbelieve Picture People's claim that it failed to schedule Chrysler during 2-2 staffing because Chrysler could not answer the telephone. There is evidence in the record indicating Picture People did not always require both employees to perform the telephone function on 2-2 staffing. See, e.g., Apx.158a, 160a (Alexander Dep. 75:1-23, 94:6-18) (when Wendy Duke worked, telephone duties were assigned to other employees); Apx.94a (Aguilar Dep. 194:6- 13) (even when he was one of only two staff working, Aguilar was assigned to work only in camera room and did not sell or greet). For several reasons, a jury could also disbelieve Picture People's asserted reason for the disciplinary action-that Chrysler admitted to the infractions for which she was disciplined (coloring with colored pencils and refusing to take breaks)-and conclude that reason was simply a pretext for discrimination. R.31 (SJ Motion), at 18-19 (Apx.46a). First, the disciplinary action, on its face, cites Chrysler for complaining that she was dropped from the schedule for discriminatory reasons. The January 2008 Performance Track states, among other things, "You became angry and threatened to bring a grievance against The Picture People when you didn't get your hours increased." Apx.341a. Picture People admits the reprimand was a result of Doyle's e-mail to Bryan stating that Chrysler was calling her "constantly" and "threatening discrimination," and that both Doyle and Bryan understood Chrysler to be complaining about disability discrimination. Apx.790a, 360a (admitting EEOC-SJF ##27-29). Thus, in seeking to justify the "final warning" on the ground that Chrysler admitted to "coloring" and "not taking breaks," Picture People ignores this fact that the disciplinary notice specifically chastises Chrysler for engaging in protected conduct-protesting her loss of hours as disability discrimination. In addition, the record contains no indication Doyle ever spoke to Chrysler about these alleged infractions previously or had any intention of referring Chrysler for disciplinary action prior to Chrysler's assertion of her ADA rights. Thus, on this record, a jury could find that Bryan's primary motivation for issuing the disciplinary action was to chastise Chrysler for opposing being denied work hours based on her disability. Furthermore, Chrysler attested that other employees also colored with colored pencils and took breaks when they wanted and were not disciplined. Apx.688a-690a (Chrysler Dep. 200:5-9, 201:23-202:18). The district court improperly rejected this evidence on the ground that the EEOC "provided no details about the other employees and their infractions that would allow a jury to conclude" they were "similarly situated to Chrysler." Order at 16 (citation omitted). A witness is permitted to testify on matters of which the witness has personal knowledge. See Evid. R. 602; Gossett v. Oklahoma ex rel. Bd. of Regents, 245 F.3d 1172, 1179-80 & n.3 (10th Cir. 2001) (discussing cases permitting testimony where based on witness's personal knowledge). The absence of detail in Chrysler's testimony goes only to the weight a jury might give Chrysler's statement concerning her first-hand knowledge of other employees' conduct. It does not constitute a proper basis to disallow this evidence entirely, and the district court erred in not considering it. Picture People also argued below that it was immaterial, in any event, if other employees regularly committed the same infractions, because there was no evidence Bryan knew about these other infractions. But Bryan did not know about Chrysler's alleged infractions, either-not until the acting manager (Doyle) called them to Bryan's attention-and, as noted above, Doyle called them to Bryan's attention in an e-mail focused primarily on Chrysler's discrimination complaint. Given that Picture People conceded that Doyle's email to Bryan precipitated the disciplinary action, the question is not whether Bryan knew, when she disciplined Chrysler, that other employees at the Littleton studio also colored during work or failed to take their breaks when they were supposed to. The question is whether Doyle knew about other employees and chose to call only Chrysler's conduct to Bryan's attention out of a retaliatory animus prompted by Chrysler's discrimination complaint. See EEOC v. BCI Coca-Cola Bottling Co., 450 F.3d 476, 485-488 (10th Cir. 2006) (manager's discriminatory bias properly imputed to employer where decisionmaker relied on biased manager's report in imposing discipline); cf. Staub v. Proctor Hosp., 131 S.Ct. 1186 (2011) (applying theory of imputed bias to Uniformed Services Employment and Reemployment Rights Act). In a workplace as compact and with as few employees as the Littleton studio, a jury could infer that Acting Studio Manager Doyle knew what other employees were doing. If a jury believed Chrysler's testimony that others colored during working hours and took breaks when they wanted to, the jury could reasonably infer that Doyle purposefully chose, for retaliatory reasons, to call Bryan's attention only to Chrysler's "infractions" and not to those of any other employee. Based on all of this evidence, a reasonable jury could find that Picture People's asserted reasons for dropping Chrysler from the schedule after December 24 and for disciplining her on January 9 were, in fact, a pretext masking a retaliatory motivation. CONCLUSION For all of the foregoing reasons, the EEOC respectfully urges this Court to reverse the district court's grant of summary judgment in favor of The Picture People, Inc., on the EEOC's claims of failure to accommodate, discriminatory treatment/discharge, and retaliation, and to remand this matter for a jury trial. STATEMENT IN SUPPORT OF REQUEST FOR ORAL ARGUMENT The Commission believes oral argument would materially assist this Court in resolving the issues presented in this very fact-intensive controversy. The district court made determinations as a matter of law that are based on disputed material facts that should properly go to a jury. The district court, in particular, confused the essential functions of the "performer" position with the manner in which Picture People's employees accomplish these essential functions. This error then infected most of the court's other rulings on the EEOC's claims. As a result, the district court deprived the jury of its proper role as factfinder in this case. The Commission believes that a discussion of these and related issues at oral argument would benefit this Court in its consideration of this appeal. Respectfully submitted, P. DAVID LOPEZ General Counsel CAROLYN L. WHEELER Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel /s/ Susan R. Oxford SUSAN R. OXFORD, Attorney U.S. Equal Employment Opportunity Comm. 131 M Street, N.E. Washington, D.C. 20507 (202) 663-4791; Fax: (202) 663-7090 susan.oxford@eeoc.gov CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 13,233 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2003 in Times New Roman 14 point. /s/ Susan R. Oxford Susan R. Oxford Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E. Washington, D.C. 20507 (202) 663-4791 susan.oxford@eeoc.gov Dated: October 6, 2011 CERTIFICATE OF SERVICE I, Susan R. Oxford, hereby certify that on October 6, 2011, I filed this Opening Brief electronically with this Court using the Court's electronic case filing (ECF) system, and served it on counsel for The Picture People, Merrily S. Archer, Esq., using the Court's ECF system. On the same date, I filed with this Court an original and six copies of the Appellant EEOC's Opening Brief by United Parcel Service, postage pre-paid, and provided two copies, by the same means on the same date, to counsel for The Picture People, Merrily S. Archer, Esq., FISHER & PHILLIPS LLP, 1999 Broadway, Suite 3300, Denver, Colorado 80202-3025. /s/ Susan R. Oxford Susan R. Oxford Attorney EEOC, Office of General Counsel 131 M Street, N.E. Washington, D.C. 20507 (202) 663-4791 susan.oxford@eeoc.gov ********************************************************************************** <> <1> "Apx.#" refers to the page number in the EEOC's Appendix and R.# refers to the district court's docket number. "EEOC-SJF" and "PP-SJF" refer to EEOC's and Picture People's respective alleged summary judgment facts. <2> Specifically, the e-mail stated: "[W]hen she is working in the lab, she will work very hard, then stop and color with colored pencils. Often the photographers end up uploading their own sittings because she is 'busy.'" Apx.340a. <3> The EEOC also asserted a claim of hostile work environment that is not at issue in this appeal. <4> The term "verbal" can encompass written communication as well as oral. See, e.g., Webster's Ninth New Collegiate Dictionary (defining "verbal" as "relating to or consisting of words"). It appears that Picture People and the district court, however, use the term "verbal" to mean "oral." Therefore, as we did below, Apx.370a n.4, we adopt that same usage here. <5> Because the incidents on which this appeal is based all occurred before the 2008 ADA Amendments Act went into effect, this brief cites to the pre-amended statute. <6> There is no dispute that Picture People considered Chrysler qualified for, and able to perform, the lab function, as that was where Picture People assigned her to work most of the time. Picture People considers answering the telephone to be part of the "customer intake" function. Picture People admitted in answers to interrogatories, however, that this is not an essential function of the job. See Apx.569a (Defendant's Response to EEOC Interrogatory #4(e)) (answering telephone is a "non-essential function"). See also Apx.33a-34a (PP-SJF #30) (characterizing reassignment of telephone tasks for deaf employee Wendy Duke as a "minor accommodation"). <7> The court in Bates stated that "[t]o show 'job-relatedness,' an employer must demonstrate that the qualification standard fairly and accurately measures the individual's actual ability to perform the essential functions of the job." 511 F.3d at 996 (citations omitted). To show "'consistent with business necessity,' the employer must show that [the qualification standard] 'substantially promote[s]' the business's needs." Id. As the court further observed: "'The "business necessity" standard is quite high, and is not to be confused with mere expediency.'" Id. <8> The EEOC's guidance on the workplace rights of deaf employees under the ADA explains that even a deaf employee who can lip-read may need an interpreter for group meetings where people who are not in his line of sight are speaking. The guidance further states that, in such a case, absent undue hardship, the "employer would have to provide the sign language interpreter as a reasonable accommodation." See "Questions and Answers about Deafness and Hearing Impairments in the Workplace and the ADA," Question 9, Example 10 (July 26, 2006) (found at htt://eeoc.gov/facts/deafness.html). <9> Notably, Picture People never argued that providing interpreters would have imposed an "undue hardship," and the record would not appear to support such a contention. <10> Because the ADA's anti-retaliation provision, 42 U.S.C. § 12203(a), contains essentially the same language as Title VII's provision, 42 U.S.C. § 2000e-3(a), this Court looks to Title VII retaliation cases in construing claims of retaliation under the ADA. See, e.g., Proctor v. United Parcel Serv., 502 F.3d 1200, 1208 n.4 (10th Cir. 2007). <11> Under "2-2 staffing," two employees work the a.m. shift and two employees work the p.m. shift. <12> Bryan informed Chrysler that if hours become available, "we will let you know immediately"; regarding an anticipated need in June, Bryan stated "we will contact you . . . to arrange to have you on the schedule." Apx.355a.