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 ____________________________________________ REPLY BRIEF OF APPELLANT EQUAL EMPLOYMENT OPPORTUNITY COMMISSION ____________________________________________ 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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 I. A Reasonable Jury Could Find that Oral Communication is not an Essential Function of the Performer Position and Chrysler Could Perform the Essential Functions with Reasonable Accommodation. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 II. A Reasonable Jury Could Find that Chrysler Engaged in the Interactive Process in Good Faith and Picture People Failed to Provide a Reasonable Accommodation. . . . . . . . . . . . .21 III. A Reasonable Jury Could Find that Picture People's Discipline of Chrysler and Subsequent Refusal to Schedule Her to Work Were Materially Adverse Actions Taken for Retaliatory Reasons . . . . . . . . . . . . . . . . . . . . . . . . 27 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . 32 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES Cases Pages Anderson v. Coors Brewing Co., 181 F.3d 1171 (10th Cir. 1999). . . . . . 19 Davidson v. America Online, Inc., 337 F.3d 1179 (10th Cir. 2003). . . 3, 4, 20 Hennagir v. Utah Dept. of Corrections, 587 F.3d 1255 (10th Cir. 2009). . . 19 Mason v. Avaya Communications, Inc., 357 F.3d 1114 (10th Cir. 2004). . . . . . . . . . . . . . . . . . . . . 19 Mathews v. Denver Post, 263 F.3d 1164 (10th Cir. 2001). . . . . . . . . . . .19 Roberts v. Roadway Express, Inc., 149 F.3d 1098 (10th Cir. 1998). . . . . . 30 Statutes 42 U.S.C. §§ 12101 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . 1 42 U.S.C. § 12112(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . .25 42 U.S.C. § 12112(b)(5)(A). . . . . . . . . . . . . . . . . . . . . . . . . .25 42 U.S.C. § 12112(b)(5)(B). . . . . . . . . . . . . . . . . . . . . . . . . .25 42 U.S.C. § 12112(b)(6). . . . . . . . . . . . . . . . . . . . . . . . . . . 5 42 U.S.C. § 12113(a). . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 20 Regulations 29 C.F.R. § 1630.10 5 29 C.F.R. § 1630.15(c) 5, 20 INTRODUCTION In its opening brief, the Equal Employment Opportunity Commission (EEOC or Commission) argued that, on this summary judgment record, a reasonable jury could find that Jessica Chrysler, who is deaf, was qualified for the position of "performer" because with reasonable accommodations she could perform the essential functions of the job and fulfill Picture People's goal of providing customers with a high quality photography experience. EEOC's Opening Brief (EEOC-Brf.) at 21-32. The Commission further argued that a jury could find Picture People failed to reasonably accommodate Chrysler's deafness and otherwise discriminated against her in violation of Title I of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101 et seq. EEOC-Brf. at 32-43. Specifically, the Commission argued that a reasonable jury could find Picture People denied Chrysler opportunities to work in the Camera Room, relegated her primarily to developing pictures in the lab, and eventually ceased to assign her any hours at all based not on legitimate business interests, but on misconceptions concerning Chrysler's ability to communicate effectively with customers notwithstanding her deafness. EEOC-Brf. at 39-43. The Commission further argued that a jury could find Picture People unreasonably refused to provide Chrysler with American Sign Language (ASL) interpreters for mandatory staff meetings and a disciplinary meeting. Id. at 32-39. Finally, the Commission argued that a reasonable jury could find Picture People violated the ADA by disciplining Chrysler, refusing to schedule her for work, and then discharging her in retaliation for having engaged in conduct the ADA protects. Id. at 44-57. Picture People argues, in its Answer Brief, that the EEOC's claims of disability-based discrimination and denial of reasonable accommodation fail as a matter of law because Chrysler is not "otherwise qualified" under the ADA. Picture People asserts that Chrysler is not qualified for the job of "performer" because oral communication is an essential function of the job and Chrysler cannot communicate orally. Picture People's Answer Brief (PP-Brf.) at 25-32. Picture People further argues that permitting Chrysler to use written notes and other non- oral methods of communicating with customers would "fundamentally alter" the essential functions of the performer position and, therefore, is unreasonable as a matter of law. Id. Picture People argues, in addition, that the EEOC's failure-to- accommodate claim "backfires" because Chrysler "sabotaged the 'interactive process'" by allegedly withholding information about interpreter resources. Id. at 34-38. Regarding mandatory staff meetings, Picture People argues that it afforded Chrysler all the accommodations to which she was entitled by providing a written agenda and notes of the meetings. Id. at 36-38. Finally, Picture People argues that completely eliminating Chrysler's work hours after the holiday season, disciplining her for various "infractions" after she questioned the elimination of her work hours, and denying her any work hours for the next ten months were not "materially adverse" employment actions. Id. at 38-41. Picture People's arguments all hinge either on facts the EEOC disputed below with contrary evidence, or on inferences and interpretations of those facts that a reasonable jury would not be compelled to accept. Indeed, the EEOC has demonstrated-on each of the issues raised in this appeal-material facts in dispute that fall well within the "wide berth" this Court gives a non-moving party "to prove a factual controversy exists." See Davidson v. America Online, Inc., 337 F.3d 1179, 1182 (10th Cir. 2003). Picture People's brief presents one possible view of the record, but not the only permissible view, and a jury could reasonably disagree with Picture People's version of the disputed facts or the inferences Picture People attempts to draw from the undisputed facts. Since Picture People has not established that a jury could rule only in its favor, the district court erred in granting summary judgment, and this Court should reverse. ARGUMENT I. A Reasonable Jury Could Find that Oral Communication is not an Essential Function of the Performer Position and Chrysler Could Perform the Essential Functions with Reasonable Accommodation. "Determining whether a particular function is essential is a factual inquiry." See EEOC-Brf. 22 (citing, among other sources, Davidson, 337 F.3d at 1191). On this record, a jury could conclude that neither "speaking" nor "hearing" is an essential function of the performer position. Picture People's job description for the position of "performer" does not identify "speaking" or "oral communication" as a job duty or function-essential or otherwise. See Apx.100a-101a; EEOC-Brf. at 24. Identified job duties include "makes customers feel welcome and comfortable . . . by acknowledging them with a friendly and enthusiastic greeting"; "fosters a professional, fun, entertaining studio experience for customers"; "assists customers by scheduling appointments, providing price, product and service information, and answering questions"; and "ensures integrity of customer data by accurately collecting and entering customer information." Apx.100a. Picture People's witnesses described the performer's job duties in similar terms. See EEOC-Brf. 3, 25; PP-Brf. 4-5. Granted, most Picture People employees are not hearing impaired and perform these job duties using oral communication. Understandably, then, Picture People listed "strong verbal communication skills" as a job qualification on its job description for "performer," Apx.101a; PP-Brf. at 5-6, and monitors how performers use this skill to communicate with customers in the studio. See id. at 6- 7. As the EEOC noted in its opening brief, however, listing a job skill as a requirement in a job description does not transform that skill into an essential job function. See EEOC-Brf. 23-24. Furthermore, the ADA prohibits an employer from using job qualification standards or selection criteria that tend to screen out individuals with a disability unless the employer demonstrates that those standards or criteria are "job-related and consistent with business necessity" and "performance cannot be accomplished by reasonable accommodation." See EEOC-Brf. at 28-30 (citing 42 U.S.C. §§ 12112(b)(6), 12113(a); 29 C.F.R. §§ 1630.10, 1630.15(c)). Here, a reasonable jury could find that Picture People's job requirement of strong verbal communication skills does not satisfy the ADA's "business necessity" requirement, because-as discussed in the EEOC's opening brief and as further explained infra-the jury could find that Chrysler could and did perform the essential job duties of a performer satisfactorily using non-oral means of communication. For instance, Chrysler attested that she communicates with hearing people using written notes and gestures, body language, facial expressions, and basic ASL signs that most people can understand. See EEOC-Brf. 4, 27-28; Apx.593a (Chrysler Decl. ¶ 13). Chrysler could use these techniques to greet Picture People customers and make them feel welcome and comfortable in the studio. Chrysler also attested that she communicates with hearing people by writing notes and by showing and moving items on a computer. Apx.593a. Chrysler could use these methods of communication to schedule appointments with customers, provide them with price, product and service information, answer customer questions, and verify the accuracy of customer data.<1> Chrysler further attested that she communicates with hearing people by nodding, shaking and moving her head, and speaking some words, id., methods she could use to communicate information and demonstrate enthusiasm in the function of "upselling" portraits (i.e., encouraging customers to buy more pictures). Finally, Chrysler explained how she would use a combination of these techniques to communicate with customers in the Camera Room and pose a family during a portrait sitting. See Apx.237a-246a; see generally Apx.232a-234a, 247a-253a. As the EEOC further noted in its opening brief, the record also includes the testimony of Barbara Bryant, Chrysler's rehabilitation counselor from the Colorado Division of Vocational Rehabilitation (DVR), who testified 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." EEOC-Brf. at 26. A reasonable jury could accept Bryant's informed, professional view, based on her personal knowledge of Chrysler and her experience working with other deaf clients, that Chrysler could have successfully performed the type of quality customer communication Picture People desires. See, e.g., Apx.665a, 667a-669a (Bryant Dep. 116:19-25, 119:19-120:5, 134:2-19).<2> Vocational expert Michael Newman also testified that, in his opinion, Chrysler could perform the essential functions of the performer position with the reasonable accommodation of writing notes. See EEOC-Brf.26; Apx.760a-761a, 831a (Newman Dep. 104:21-105:10, 112:12-22). As Newman explained, allowing Chrysler to communicate by writing notes back and forth would be a reasonable accommodation because "it is a form of communication that people can understand." Apx.831a (Newman Dep. 112:12-22); see also Apx.305a-307a (Newman Vocational Evaluation Report); Apx.827a (Newman Dep. 69:17-23) (because Chrysler cannot "communicate in the traditional pure verbal sense . . . doesn't mean that she can't communicate"). Newman reviewed the responsibilities of a performer and explained how Chrysler could perform these responsibilities using non-oral means of communication. See Apx.139a-142a. For instance, Newman identified a variety of techniques Chrysler could use with children who are verbal but do not yet read, including gestures, mime, facial expressions, and entertaining the children with stuffed animals. Apx.138a-139a (Newman Dep. 129:14-130:19). Newman stated that Chrysler could perform the task of "upselling" pictures by "showing enthusiasm for the different pictures." Apx.141a (Newman Dep. 134:5-7). Newman noted that even for people who have normal hearing, nonverbal means of communication are important in encouraging customers to purchase the product "because it's not just what you say. It's the other features of your body language and your facial expressions and all of that that come into play." Id. (Newman Dep. 134:9-15). Newman's comments are consistent with Picture People training materials that state 55% of a message is communicated by a speaker's body language and expressions. See Apx.154, 156. In response to counsel's questions, Newman described his own experience having his children photographed at a studio similar to Picture People. He explained that the photographers' spoken communication "was pretty limited to [something like] . . . 1, 2, 3, smile." Apx.829a (Newman Dep. 88:24-89:25) ("the photographers . . . would make a lot of funny noises and faces and just do things to get my young children . . . to smile and cooperate"). Asked whether he thought communicating with the photographer in writing would have changed his experience as a customer, Newman noted it would definitely be different and he assumed it would take longer, but he could think of no other way it would change the customer's experience. Apx.130a-131a (Newman Dep. 91:6-21, 102:17-21). Picture People contends that Newman "testified unequivocally that substituting written notes and gestures for the 'strong verbal skills' requirement fundamentally alters the essential functions of the Performer position and changes the customer's Picture People experience." PP-Brf. at 29 (emphasis in original). But Newman never testified that allowing Chrysler to communicate with customers in writing would alter essential functions of the job, only how those functions are performed. Apx.131a. And although Newman opined that communicating in writing would change the customer's experience, id., the only specific difference he could identify was his assumption that communicating in writing would take longer. Apx.130a. The record contains evidence from which a jury could conclude that whatever the difference, Chrysler successfully used non- oral means of communication to perform the job of performer, including the photography function, without any unfavorable customer reaction. Specifically, Chrysler testified she performed Camera Room duties 15 or 20 times during her brief tenure and no one ever told her that any of those customers was dissatisfied. See EEOC-Brf. at 27-28. Picture People offered no evidence that anyone ever complained or expressed any negative reactions to being photographed by Chrysler or that any of these sessions took too long as a result. The only actual customer reaction in the record is the testimony of satisfied customers Melissa and Matthew Krol. See EEOC-Brf. at 6, 31-32. The Krols testified that their Picture People experience was so pleasant when Chrysler took their baby's portrait, and Chrysler's posing suggestions so creative, they ended up purchasing more pictures than they had intended to buy. Apx.737a-739a. They specifically asked for Chrysler when they returned a month later and were disappointed she was not available, assuming-incorrectly-that Chrysler must have been busy with other customers.<3> Apx.742a-744a. Melissa Krol testified that their session with Chrysler was "a really great experience" that did not take any longer than other portrait sittings. Apx.735a, 741a. See also Apx.606a-608a (Aguilar "vividly remember[s]" Krols saying how great their sit with Chrysler was); Apx.246a (Chrysler Dep. 145:12-23) (describing another infant portrait session Chrysler conducted alone). The Krol's positive experience underscores the testimony of vocational rehabilitation counselor Bryant, who stated that, for a deaf employee like Chrysler, engaging in a written dialogue with customers can be "an effective substitute for oral communications." See supra at 6-7. Based on all of this evidence, a jury could conclude that oral communication is not an essential function of the Performer position. A jury could further find that, to the extent Picture People imposes oral communication skills as a job qualification or requirement, Picture People cannot lawfully use that requirement to screen out Chrysler because Chrysler can perform the essential functions of the performer job with reasonable accommodation, i.e., by using a variety of non-oral techniques to communicate with Picture People customers. Therefore, a jury could find that Chrysler was qualified for the performer position. Picture People also asserts that "answering telephones" is an essential function of the performer position that Chrysler cannot perform without adaptive devices. See, e.g., PP-Brf. at 4 (essential job function of customer intake/front desk duties includes "answering telephones"); 33 (to answer telephone, Chrysler needs "adaptive devices to alert her to a ringing phone or to enable her to communicate with customers"). Picture People argues, on this basis, that Chrysler was not qualified to work during non-peak periods because the studio schedules only two staff and both must be able to answer the telephone. Id. at 32-33; see also id. at 39 (arguing Chrysler's reduced hours during non-peak periods resulted from her inability to perform all four essential job functions including telephone work). A jury would not be obliged to accept this contention, however, because it conflicts with Picture People's explicit admission below that "answering telephones" is not an essential function of the performer position. See EEOC-Brf. at 25 n.6; see also Apx.304a (Newman Report) (referring to "answering the telephone" as a "non-essential function"). Since the inability to perform a particular job function impacts ADA coverage only when the function is essential, a jury could find that Chrysler's inability to answer the telephone in the absence of an adaptive device has no bearing on whether Chrysler is "qualified" for the position of performer. Moreover, even if answering the telephone were an essential function, a jury could find-as Picture People's own argument implies-that Chrysler could perform this function with the accommodation of an adaptive device. See, e.g., PP-Brf. at 33; Apx.305a (Newman Report) (discussing assistive technology enabling deaf persons to conduct telephone calls); Apx.292a (Bryant Dep. 58:13- 21) (noting "assistive devices that could accommodate telephone use"). Picture People makes no argument that providing such an adaptive device as an accommodation would be unreasonable as a matter of law, and record evidence indicates otherwise. See, e.g., Apx.305a (noting one such device would cost $340 to purchase and install). Thus, a reasonable jury could reject Picture People's contention that Chrysler is not "otherwise qualified" to be a performer because performers sometimes communicate with customers by telephone. Picture People's employment of another deaf individual, Wendy Duke, as a performer at another Picture People studio also undermines its contention that answering telephones is an essential function, as it is undisputed that Duke was never required to answer the telephone. Duke's manager explained she simply reassigned this function to other staff, even when Duke was working during non- peak times in reduced "2-2" staffing. See EEOC-Brf. at 25 n.6, 27. Picture People argues that its employment of Duke demonstrates it does not require "'perfect' receptive and expressive communication abilities" and does not apply its "strong verbal skills" standard "to exclude the hearing impaired." PP-Brf. at 31. Picture People undermines its self-congratulatory argument, however, when it contrasts Chrysler's abilities with Duke's allegedly "stronger communication skills" and "self-sufficienc[cy]" and asserts that Aguilar-the studio manager who hired Chrysler-told his district manager he thought Chrysler had "better" communication skills when he hired her. Id. at 10-11. An employer does not satisfy the ADA by hiring only persons with a disability who most closely mirror non-disabled individuals; merely foregoing "perfection" is not the standard required by the ADA which, after all, has as its purpose the protection of individuals with physical and mental impairments. Rather, the ADA mandates that employers assess and employ individuals based on their ability to do the job notwithstanding their impairment. The Commission claims-and a reasonable jury could find, on this record-that Picture People failed to treat Chrysler in accordance with this statutory mandate. That Picture People employed a different hearing-impaired person does not mean it did not impermissibly discriminate against Chrysler. Significantly, in arguing that Chrysler possessed weaker communication skills than Duke, Picture People relies on the testimony of District Manager Candi Bryan, who never observed Chrysler taking customers' pictures, and attributes statements to Aguilar, the studio manager who hired Chrysler, that Aguilar expressly denies having made. Compare PP-Brf. at 10-11 with EEOC-Brf. at 40, 50-51. Although Picture People cites its employment of Duke presumably to suggest it applies reasonable employee standards and harbors no discriminatory intent against persons who are deaf, the evidence also supports the conclusion that Chrysler, like Duke, could successfully work as a performer but, unlike Duke, was not given the opportunity to demonstrate she could do the job. A jury should decide which version of these disputed facts to believe. Picture People further argues that Chrysler is not qualified for the performer position because, to the extent she can perform the essential functions of the job with accommodations, those accommodations are unreasonable as a matter of law. Picture People argues that writing is never as effective as speaking because it is slower and Picture People allots only 20 minutes for each Camera Room sitting. See PP-Brf. at 7, 29-30. Picture People further argues that Chrysler's writing skills are poor. Id. at 9-10. On these bases, Picture People argues that allowing Chrysler to communicate with customers using non-oral means of communication would require the company to lower its standards or fundamentally alter essential job functions of the performer position. See PP-Brf. at 9-10, 27-32. Since a jury could conclude otherwise, however, Picture People is incorrect in contending that allowing Chrysler to use non-oral forms of customer communication is unreasonable as a matter of law. Picture People relies on Newman's statement that "writing is never as effective as verbal . . . because it's slower." See PP-Brf. at 29 (citing Apx.134a). But Picture People offers no specific evidence of how much longer it would take a performer to accomplish the requisite Camera Room customer dialogue-or any other customer-contact duties-through written notes. A jury would be entitled to infer the difference would be insignificant in light of evidence that there was actually very little verbal exchange in the Camera Room. See, e.g., Apx.599 (Aguilar Dep. 88:10-15) ("[n]ot much English is used" in camera room). A jury would also be entitled to consider Newman's response when Picture People's counsel asked him to describe his personal experiences having his children's pictures taken at a similar portrait studio: the photographers' spoken communication "was pretty limited to [something like] . . . 1, 2, 3, smile." Apx.829a (Newman Dep. 89:21-25). Finally, and most significantly, the jury could consider the testimony of Melissa Krol, who stated that when Chrysler took her daughter's portrait, there was no noticeable difference in the duration of the session. Apx.741. Based on this evidence and the absence of any specific evidence establishing how much longer it might take a performer to accomplish customer-interaction duties through written notes and gestures, a jury could find that any difference would not be significant. Picture People also relies on Newman's opinion that Chrysler's writing abilities are "below average" to argue that "Chrysler's brand of note-writing and gesturing" would be ineffective or would result in a lowering of Picture People's customer service standards. PP-Brf. at 9-10, 29. Newman explained that the writing mechanics assessment he administered to Chrysler addresses such things as "punctuation," "putting commas in correct places," and the proper use of colons and semicolons, the kinds of writing skills one would need "to write a paper for a school." Apx.109a-110a (Newman Dep. 47:15-48:3). He explained that the writing composition assessment he administered to Chrysler, on the other hand, focuses on a person's ability to develop a story and communicate what was going on, and he stated that in that assessment, Chrysler "wrote the story that my non- hearing impaired people write." Apx.110a-112a (Newman Dep. 48:4-50:9) (noting Chrysler "can communicate in writing on a basic level"). When asked how these assessments would factor into an appropriate job placement for Chrysler, Newman said he would discourage Chrysler from pursuing pre-law. See, e.g., Apx.111a, 824a (Newman Dep. 49:8-20, 50:20-51:21). A jury considering Newman's testimony as a whole (see discussion at pages 7-9, supra), along with testimony that very little verbal exchange actually occurs in the Camera Room (Apx.599a), examples of Chrysler's writing (e.g., Apx.311a-314a, 321a, 336a-339a, 454a-456a), and the satisfactory experience of the Krols (see discussion at page 10, supra), could reasonably conclude that Chrysler had the necessary writing skills to provide a satisfactory "Picture People experience" to customers seeking portraits of their children. Importantly, although Newman opined in his deposition that communicating with notes and gestures would change the customer's "Picture People experience," the only difference he could identify was his assumption it would take longer. See Apx.130a. Record evidence contradicts this assumption, however; Melissa Krol testified that when Chrysler took her family's pictures, the sitting took no longer than any other sitting she had at Picture People with any other photographer. Apx.741a. Despite Picture People's heavy reliance on Newman's testimony throughout its brief, Newman actually testified that he believes Chrysler could perform the duties of the performer position satisfactorily using note-writing, gestures, and other non-oral forms of communication. See discussion at pages 7-9, supra. A jury, considering Newman's entire testimony, would be entitled to accept his opinion that Chrysler could perform the job. Picture People also relies on three company officials-James McGrail, Candi Bryan, and Libby Johnston-for the proposition that substituting Chrysler's brand of note-writing and gesturing would be ineffective or would undermine the company's performance standards for customer service. See PP-Brf. at 29. The opinions of all three witnesses are based on conjecture: Bryan and Johnston each observed Chrysler only once, in a photography class; none of the three ever observed Chrysler in an actual customer session. See EEOC-Brf. at 40; see also Apx.247a-248a (Chrysler Dep. 146:20-147:3). Thus, the testimony of these three witnesses is based on their speculation that customers would find Chrysler's methods of communication ineffective. A jury would be entitled to reject their speculations in favor of the actual experience of Melissa and Matthew Krol and the well-grounded opinions of DVR rehabilitation counselor Bryant and vocational expert Newman. The cases Picture People cites for the proposition that accommodating Chrysler would entail more than the ADA requires of employers (PP-Brf. at 28-32) are readily distinguishable. For instance, the present case does not implicate any of the safety considerations in Hennagir v. Utah Dep't of Corr., 587 F.3d 1255 (10th Cir. 2009), where a plaintiff sought waiver of a safety certification the State required for all staff working in a correctional setting. Noting the potential repercussions that could flow from allowing staff to work directly with inmates without acquiring this safety certification, this Court held that the Department of Corrections was not required to modify job requirements in such a drastic and risky fashion. Id. at 1262-65. Other cases cited by Picture People-Mason v. Avaya Communications, Inc., 357 F.3d 1114 (10th Cir. 2004), Mathews v. Denver Post, 263 F.3d 1164 (10th Cir. 2001), and Anderson v. Coors Brewing Co., 181 F.3d 1171 (10th Cir. 1999)-involved plaintiffs who sought to be relieved of virtually all of the job duties for which they had been hired. This Court held in all three cases that the ADA did not require such elimination of essential job functions. Here, in contrast, Chrysler does not seek to be relieved of any job duty (other than the non-essential function of answering the telephone, if no assistive device is provided), but seeks only to be allowed to perform the job duties in an alternate fashion that customers Melissa and Matthew Krol testified produced very satisfactory results. In sum, the EEOC's lawsuit does not, as Picture People argues, upset the ADA's "careful balance" between the rights of persons with disabilities and the rights of employers. See PP-Brf. at 22-23. As explained in the EEOC's opening brief and above, Chrysler did not seek the elimination or fundamental alteration of any "essential function" of the performer position, but only to alter the manner in which she would perform those functions. Granted, this required Picture People to waive its job requirement of "strong verbal communication skills" with respect to Chrysler. But this is exactly what the ADA provides: where an employee, like Chrysler, is unable to meet a particular job requirement because of a disability but can otherwise perform the essential functions of the position with reasonable accommodation, the ADA requires the employer to provide the accommodation and waive the job requirement. See 42 U.S.C. § 12113(a); 29 C.F.R. § 1630.15(c); EEOC-Brf. at 29-32; cf. Davidson, 337 F.3d at 1191-92 (whether a job requirement that deaf applicant could not meet was justified was a question for jury to answer). Given the disputed evidence in this summary judgment record, it is proper for a jury to decide whether allowing Chrysler to communicate with customers using written notes and gestures "fundamentally alters the essential functions of the Performer position and changes the customer's Picture People experience," as Picture People contends (PP-Brf. at 29), or whether Chrysler can perform the job's essential functions with reasonable accommodations, as the EEOC asserts. II. A Reasonable Jury Could Find that Chrysler Engaged in the Interactive Process in Good Faith and Picture People Failed to Provide a Reasonable Accommodation. Picture People asserts that, during the first few weeks of her employment, Chrysler failed to tell Picture People that the Colorado DVR had "repeatedly" offered to provide ASL interpreters, free of charge, for Chrysler's training and staff meetings at Picture People. PP-Brf. 12-13, 19. Picture People argues that Chrysler's failure to pass this information along "sabotaged" the interactive process and relieves Picture People of any liability for having failed to provide Chrysler with ASL interpreters during her initial training, subsequent training, staff meetings, and her disciplinary meeting. Id. at 34-37. On this record, however, a reasonable jury could readily conclude that Chrysler did not fail to cooperate in the interactive process. Specifically, as the EEOC explained in its opening brief (at 5-6), Chrysler stated in her declaration that several weeks after she asked Aguilar for an interpreter for her training, she learned for the first time that the Colorado DVR could provide interpreters for a client's initial training. Apx.591a-593a (Chrysler Declaration ¶¶ 1-12). Chrysler promptly shared this information with Aguilar- her studio manager and the person responsible for scheduling her training-and Chrysler was able to secure ASL interpreter services for her initial training from DVR at no expense to Picture People. Apx.682a (Chrysler Dep. 171:11-17); Apx.422a-424a (invoices); Apx.790a (admitting EEOC Summary Judgment Fact (EEOC-SJF) #10, see 358a). A jury could readily conclude that Chrysler, having informed her immediate manager that DVR would pay for interpreter services for her initial training, had provided all the information Picture People needed to obtain interpreters for her training and had no reason to repeat that information to any other Picture People manager. Indeed, if any other manager or HR official wanted to know how Aguilar had resolved Chrysler's need for interpreters for her initial training, they could have asked Aguilar (but apparently never did). A jury could further conclude that Chrysler never withheld information from Picture People concerning DVR-provided interpreters for mandatory staff meetings (see PP-Brf. at 19, 35), as there is no evidence DVR provides such services or ever told Chrysler that might be an option. The record citations Picture People provides at pages 19 and 35 of its brief address only initial training, not subsequent staff meetings. It is true that Picture People's counsel asked Chrysler in her deposition whether she ever told anyone at Picture People that DVR would provide sign language interpreters for meetings and Chrysler answered "no," Apx.682a, but nowhere in Chrysler's or Bryant's depositions does either witness state that DVR would have paid for interpreters for staff meetings or disciplinary meetings. To the contrary, Bryant explained that DVR can provide ASL interpreters for an employee's initial training, but thereafter the employer would generally be responsible for providing interpreters. See, e.g., Apx.659a-660a, 664a-665a (Bryant Dep. 85:8-86:8, 115:23-116:11). Given the absence of any evidence that DVR provides interpreters for staff meetings or disciplinary meetings, a jury would be obliged to reject Picture People's unfounded factual contention that Chrysler purposefully withheld information from Picture People that DVR could provide interpreters for staff meetings at no cost to Picture People. In any event, there is no evidence that the reason Picture People failed to provide interpreters for staff meetings was because the company could not identify any ASL providers near the Littleton studio, and Picture People-a multi-state employer-could not credibly assert it had difficulty locating a type of service so readily available and so easy to find nationwide. Nor has Picture People taken the position that the cost of providing interpreters for a two-hour staff meeting or a one-hour disciplinary meeting would have imposed an undue burden on the company; indeed, Picture People put no evidence into the record concerning such costs. See EEOC-Brf. at 39 n.9. Rather, Picture People has taken the position throughout this litigation that providing Chrysler with written notes and meeting agendas for staff meetings, and providing Chrysler with a written disciplinary notice, satisfied any ADA requirement of reasonable accommodation. See PP-Brf. at 34-37. Thus, even if Chrysler had withheld information about DVR services, which she did not, a jury could readily find that was not the reason Picture People failed to provide ASL interpreters for staff meetings and for her disciplinary meeting. Moreover, a jury could reject Picture People's assertion that the written meeting agendas and notes it provided Chrysler instead of ASL interpreters were an "equally effective accommodation" for Chrysler's inability to hear the exchange of comments between managers and employees and to participate in staff meeting discussions. See PP-Brf. at 36-37. Picture People relies on the testimony of Doyle and Newman that staff meetings were primarily for staff to relax together, not for serious business, and on Newman's testimony that distributing information in a written format at staff meetings "would be the most effective and the most cost effective as far as disseminating information." See id. at 19-20, 36-37. A jury could reasonably reject this testimony, however, because it is contradicted by other evidence in the record. For example, Aguilar and studio manager Wynn Alexander both attested that studio managers conducted mandatory staff meetings from time to time to discuss company policies, techniques for keeping the studio profitable, and other information staff needed to know. See EEOC-Brf. at 8. Based on this testimony, a jury could find that staff meetings were mandatory because management used the meetings to convey important information to staff. A jury could also find that when Picture People refused to provide ASL interpreters for staff meetings and gave Chrysler only a written outline or agenda, Picture People denied Chrysler equal access to a material job benefit in violation of the ADA. See 42 U.S.C. § 12112(a), (b)(5)(A) & (B); EEOC-Brf. at 38-39 and cases cited therein. Picture People admitted below that Chrysler "missed out on all the discussion at the meeting" when Picture People provided her with only a written outline or meeting agenda instead of an ASL interpreter. Apx.359a, 790a (admitting EEOC-SJF ##18 & 19). A jury could reasonably conclude that Picture People must have believed that staff meeting discussions benefitted its staff, because if Picture People thought the information was unimportant or could be communicated effectively by disseminating a written agenda, the company would have had no need to incur the expense of scheduling all staff for an extra two hours to attend these mandatory meetings. See Apx.197a (Doyle Dep. 126:3-15) (commenting on the expense of holding a mandatory, two-hour staff meeting: "[t]hat's a lot of money"). As noted in the EEOC's opening brief, a jury would also be entitled to consider the testimony of Chrysler, who explained that, without an interpreter, 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." EEOC-Brf. at 8, 38 (citing Apx.254a-255a, 691a-693a). Based on all of this testimony, a reasonable jury could reject Picture People's contention that providing Chrysler with a written agenda was an "effective" alternative to an ASL interpreter and the "most cost effective" accommodation. See EEOC-Brf. at 34-35 and cases cited therein. Picture People asserts a logical inconsistency between the EEOC's position that Chrysler can communicate with customers effectively using written notes, gestures, and other non-oral means but needs an ASL interpreter to participate in a large group discussion like a staff meeting or to understand the nuances of an important event like a disciplinary meeting. See PP-Brf. at 37-38. The EEOC's position is consistent and a jury could easily so find. Whether a particular mode of communication is effective depends on the specific context. Communication methods that may be effective in the small group setting of a portrait sitting, where Chrysler would be the main communicator, may not be adequate in the large group context of a staff meeting where ten or more employees and managers are talking around her. In the Camera Room-even when a photo shoot involves a family with several members-the photographer directs the event. In that context, Chrysler would be able to communicate directly with each of the individual family members. See EEOC-Brf. at 27-28. In staff meetings, on the other hand, Chrysler could not know which of the ten or more employees might speak next, and even a deaf person with excellent lip-reading skills would have great difficulty following the group discussion. See id. at 34-35 & n.8. Having a written meeting agenda beforehand still left Chrysler in the dark about follow-up questions and any new topics an employee might raise for the group's consideration. Id. at 8. Without an ASL interpreter, Chrysler could not understand the substance of the ongoing dialogue a staff meeting is intended to foster. See id. at 4, 38. Likewise, Chrysler explained how confused she was at her disciplinary meeting when, after Bryan handed Chrysler the written disciplinary notice, Bryan began conversing with another manager, leaving Chrysler unable to follow what the two individuals were saying to each other about her disciplinary charges. EEOC-Brf. at 13, 38. Based on the differences between a photo shoot, a staff meeting, and a disciplinary meeting, a jury could reasonably find that Chrysler could communicate effectively with customers using written notes and gestures but would need an ASL interpreter to participate in a large group staff meeting or to understand the important nuances of a disciplinary meeting. III. A Reasonable Jury Could Find that Picture People's Discipline of Chrysler and Subsequent Refusal to Schedule Her to Work Were Materially Adverse Actions Taken for Retaliatory Reasons. Picture People presents a one-sided account of the disciplinary process it initiated after Chrysler complained when she learned she was omitted from the schedule after December 24. See PP-Brf. at 20-21. Although Picture People repeatedly characterizes the triggering event as a reduction of hours in January that affected all staff, see id. at 39, and although it is true that other staff experienced a reduction in their weekly hours, Chrysler complained to her manager because, unlike the other staff, she was given no work hours after December 24, 2007. EEOC-Brf. at 9, 45-49. When Chrysler complained that she had been left off the schedule and asked if it was because she is deaf, she was promptly disciplined for coloring with colored pencils when she was waiting for work in the lab, refusing to take breaks when directed to by her supervisors, and complaining about her loss of hours. Picture People attempts to justify this discipline on the ground that Chrysler "admitted" to the alleged infractions. PP-Brf. at 21. As the EEOC explained in its opening brief, however, a jury could find this discipline was retaliatory based on Chrysler's testimony that others engaged in the same conduct without repercussion and, most importantly, based on the fact that Doyle mentioned these infractions to Bryan only in the context of describing Chrysler's so-called "threat" to assert a claim of discrimination based on disability. See EEOC-Brf. at 54-57. Picture People argues that Chrysler was not unfairly singled out for discipline because Bryan had not received any reports that other employees were committing similar infractions. PP-Brf. at 21. A jury could reject this reasoning, however, because any reports concerning other staff would have had to come from acting studio manager Doyle, whom a jury could believe harbored retaliatory intent toward Chrysler. See EEOC-Brf. at 54-57. Specifically, a jury could find that Doyle reported Chrysler right after Chrysler complained to her about possible disability discrimination, and that Doyle mentioned Chrysler's complaint of disability-based discrimination in the same email reporting Chrysler's other alleged infractions to Bryan. Accordingly, if a jury were to believe Chrysler that other employees had engaged with impunity in the same conduct for which Chrysler was disciplined, the jury could infer that Doyle was motivated by retaliation. Id. As the EEOC argued in its opening brief, a jury could find from these disputed facts that Doyle and Bryan were motivated by retaliation when they each instituted the steps that quickly resulted in Chrysler's discipline. Furthermore, a jury could find that Doyle's and her successors' failure to assign Chrysler any work hours for the next ten months was both a materially adverse employment action and that it resulted from a continuation of this retaliatory animus. In the months after Chrysler was disciplined, the Littleton studio experienced expected ebbs and flows of business, with busy times occurring around Valentine's Day and Father's Day, among other times. EEOC-Brf. at 48. During this time, Picture People continued to list Chrysler's name along with the other Littleton staff but-unlike the other staff-failed to schedule Chrysler for any hours, not even during the busiest of times when there were as many as five or six employees working the same shift. Id. This pattern of refusing to schedule Chrysler continued, despite Picture People's representations to Chrysler that she would be offered work during the next busy time. See id. at 48-50. There can be no dispute that depriving Chrysler of any opportunity to work for a period of ten months and officially terminating her in October 2008 constitute materially adverse actions under both Supreme Court and this Court's rulings because such actions would dissuade a reasonable employee from engaging in protected activity. See EEOC-Brf. at 44-46 (citing, among other cases, Roberts v. Roadway Express, Inc., 149 F.3d 1098, 1104 (10th Cir. 1998) (suspensions and terminations "are by their nature adverse")). Picture People argues that Chrysler's loss of hours was not a materially adverse action because the company's refusal to schedule her for work during non-peak periods was justified by Chrysler's inability to perform such tasks as telephone work, and that Chrysler did not receive the promised hours later because she failed to "put forth some effort" or "fight[] for hours." See PP-Brf. at 22, 39-40. In making this argument, Picture People confuses what constitutes a materially adverse action with the reasons it asserts to support its defense that these adverse actions were neither discriminatory nor retaliatory. In any case, a jury could reject these arguments and find that Picture People's response to Chrysler's discrimination complaint would dissuade a reasonable employee from complaining about discrimination. See EEOC-Brf. at 44-57. CONCLUSION For all of the foregoing reasons, the EEOC respectfully urges this Court to reverse the district court's grant of summary judgment on the EEOC's claims of failure to accommodate, discriminatory treatment/discharge, and retaliation, and to remand this matter for a jury trial on those issues. 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 6,960 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: December 19, 2011 CERTIFICATE OF SERVICE I, Susan R. Oxford, hereby certify that on December 19, 2011, I filed this Reply 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., and for Amicus Curiae The National Association of the Deaf, Marc Charmatz, Esq., using the Court's ECF system. I thereafter filed with this Court an original and six copies of the Appellant EEOC's Reply Brief by United Parcel Service, postage pre-paid, and provided two copies, by the same means on the same date, to counsel at the following addresses: Merrily S. Archer, Esq. Marc Charmatz, Esq. HALL & EVANS LLC National Association of the Deaf 1125 Seventeenth Street, Suite 600 8630 Fenton Street, Suite 820 Denver, Colorado 80202-2052 Silver Spring, MD 20910 (303) 628-3332 (301) 587-7732 /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> Picture People described "front desk" duty as including "verbally confirming appointments and customer information." PP-Brf. 4 (emphasis added). Assuming Picture People is using "verbally" to mean "orally," a jury could reject the contention that information must be confirmed orally; the portions of the record Picture People cited for this point do not say this, and Chrysler explained below how she would confirm customer information using non-oral means of communication. See Apx.232a-234a. <2> Picture People argues that Bryant's acknowledgment of Chrysler's communication deficits on various DVR forms shows Bryant attempted to "guide" Chrysler into jobs "that involved only limited customer contact." See PP-Brf. at 9. A jury could reject this characterization and conclude these forms simply establish Chrysler's eligibility for government services, not the limits of what Chrysler might be able to do with appropriate training and accommodations. Likewise, a jury would not be compelled to accept Picture People's assertion that Bryant's discussion of Chrysler's previous interest in the field of medical billing indicates Bryant was trying to guide Chrysler into medical billing because it had limited customer contact. Id. <3> As the EEOC noted in its opening brief, Chrysler was working when the Krols next came to Picture People but was not allowed to photograph them because by then Picture People had relegated Chrysler to the lab. EEOC-Brf. 6; Apx.241a.