No. 08-56874 ____________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ____________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. UPS SUPPLY CHAIN SOLUTIONS, Defendant-Appellee. ____________________________________________ On Appeal from the United States District Court for the Central District of California No. CV06-6210 ABC The Honorable Audrey B. Collins ____________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT ____________________________________________ JAMES L. LEE JENNIFER S. GOLDSTEIN Deputy General Counsel Attorney LORRAINE C. DAVIS U.S. EQUAL EMPLOYMENT Acting Associate General Counsel OPPORTUNITY COMMISSION Office of General Counsel CAROLYN L. WHEELER 131 M Street, N.E. Assistant General Counsel Washington, D.C. 20507 (202) 663-4733 Jennifer.goldstein@eeoc.gov TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 District Court Decision. . . . . . . . . . . . . . . . . . . . . . . . . . .15 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 REVIEWABILITY AND STANDARD OF REVIEW. . . . . . . . . . . . . . . . . . . . . 20 ARGUMENT Because UPS SCS did not provide Centeno with an effective accommodation that would have enabled him to be an active participant in the workplace, its actions were not sufficient as a matter of law. . . . . . 20 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .37 STATEMENT OF RELATED CASES CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES Bower v. Fed. Express Corp., 287 F. Supp. 2d 840 (W.D. Tenn. 2003). . . . . . . .30 Bryant v. Better Bus. Bureau of Greater Md., Inc., 923 F. Supp. 720 (D. Md. 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30 Buckingham v. U.S., 998 F.2d 735 (9th Cir. 1993). . . . . . . . . . . . . . .15, 29 Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998). . . . . . . . . . . . 35 Cassidy v. Detroit Edison Co., 138 F.3d 629 (6th Cir. 1998). . . . . . . . . . . 32 Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). . 29 Collins v. Longview Fibre Co., 63 F.3d 828 (9th Cir. 1995). . . . . . . . . . . .30 Dominguez-Curry v. Nev. Transp. Dep't, 424 F.3d 1027 (9th Cir. 2005). . . . . . 20 Duffy v. Riveland, 98 F.3d 447 (9th Cir. 1996). . . . . . . . . . . . . . . 26, 30 EEOC v. Convergys Customer Mgmt. Group, Inc., 491 F.3d 790 (8th Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 EEOC v. Fed. Express Corp., 513 F.3d 360 (4th Cir. 2008). . . . . . . . . 25, 33 EEOC v. MCI Telecomm. Corp., 993 F. Supp. 726 (D. Ariz. 1998). . . . . . 29, 33 EEOC v. V & J Foods, Inc., 507 F.3d 575 (7th Cir. 2007). . . . . . . . . . . . 35 Faragher v. City of Boca Raton, 524 U.S. 775 (1998). . . . . . . . . . . . . . . 35 Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993). . . . . . . . . . . . . . . 35 Humphrey v. Mem'l Hosps. Ass'n, 239 F.3d 1128 (9th Cir. 2001). . . . . . 21, 23, 33 Kiel v. Select Artificials, Inc., 169 F.3d 1131 (8th Cir. 1999). . . . . . . . . 31 Lujan v. Pac. Mar. Ass'n, 165 F.3d 738 (9th Cir. 1999). . . . . . . . . . . .19, 31 McAlindin v. County of San Diego, 192 F.3d 1232 (9th Cir. 2000). . . . . . . . . 23 McWright v. Alexander, 982 F.2d 222 (7th Cir. 1992). . . . . . . . . . . . . . . 32 Meritor Savs. Bank FSB v. Vinson, 477 U.S. 57 (1986). . . . . . . . . . . . . . .35 Meyer v. Iowa Mold Tooling Co., 141 F. Supp. 2d 973 (N.D. Iowa 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . 31, 33, 34 Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999). . . . . . . . . . . . . . 29 Turner v. Hershey Chocolate USA, 440 F.3d 604 (3d Cir. 2006). . . . . . . . . . .32 U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002). . . . . . . . . 17, 21, 24, 25 Zivkovic v. S. Calif. Edison Co., 302 F.3d 1080 (9th Cir. 2002). . . . . . 21, 26 STATUTES 28 U.S.C. § 1291. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1331. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 29 U.S.C. § 791(g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 42 U.S.C. § 2000e-5(f)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . 1 42 U.S.C. § 2000e-5(f)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . 1 The Americans with Disabilities Act of 1990 42 U.S.C. § 12102(1)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 25 42 U.S.C. § 12111(8). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 42 U.S.C. § 12111(9). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 42 U.S.C. § 12111(9)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 42 U.S.C. § 12112(a). . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 36 42 U.S.C. § 12112(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 42 U.S.C. § 12112(b)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 42 U.S.C. § 12112(b)(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 42 U.S.C. § 12112(b)(5)(A). . . . . . . . . . . . . . . . . . . . . . . . 2, 20, 28 42 U.S.C. § 12116. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 42 U.S.C. § 12117(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 RULES, REGULATIONS, and GUIDANCES 29 C.F.R. § 1630.2(o)(1)(iii). . . . . . . . . . . . . . . . . . . . . . . . 15, 29 Fed.R.App.P. 4(a)(1)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . 1 EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002 (Oct. 17, 2002) (available at http://www.eeoc.gov/policy/docs/accommodation.html). . . . . . 21, 23, 34, 36 EEOC Guidance: Questions and Answers about Deafness and Hearing Impairments in the Workplace and the Americans with Disabilities Act (July 26, 2006) (available at http://www.eeoc.gov/facts/deafness.html). . 26, 33 MISCELLANEOUS http://www.pressroom.ups.com/pressreleases/printer/0,1052,3873,00.html? ct=press_releases&at=domain_mainpressroom&tn=pressreleases_archives_ archive&id=3873&srch_pos=138&srch_phr=forwarding (last visited April 27, 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 http://www.nidcd.nih.gov/health/hearing/asl.htm#d (last visited April 22, 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 http://en.wikipedia.org/wiki/American_sign_language (last visited April 22, 2009) 2 STATEMENT OF JURISDICTION The district court had jurisdiction in this matter arising under federal law pursuant to 28 U.S.C. § 1331 and the jurisdictional provision of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12117(a), which incorporates by reference the jurisdictional provisions of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(f)(1) & (3). The district court issued a final judgment in this case on September 18, 2008, resolving all parties' claims. 1ER22.<1> The Equal Employment Opportunity Commission filed its timely notice of appeal on November 14, 2008, in accordance with Fed.R.App.P. 4(a)(1)(B). 2ER24. This Court has jurisdiction over the district court's final judgment pursuant to 28 U.S.C. § 1291. STATEMENT OF THE ISSUE Whether the district court erred in holding that UPS SCS reasonably accommodated Centeno as a matter of law where there was considerable evidence that Centeno found the attempted accommodations wholly ineffective. STATEMENT OF THE CASE The Equal Employment Opportunity Commission ("EEOC" or "Commission") filed suit against UPS Supply Chain Solutions ("UPS SCS") on September 28, 2006. 2ER150. The complaint alleged that UPS SCS failed to make reasonable accommodations for Mauricio Centeno's deafness in violation of Title I of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12112(b) & (b)(5)(A), by failing to provide him with a sign language interpreter for certain staff meetings, disciplinary sessions, and training. 2ER150. On September 18, 2008, the district court granted defendant's motion for summary judgment, holding that UPS SCS had taken sufficient steps to accommodate Centeno as a matter of law. 2ER1. The Commission appealed. 2ER24. STATEMENT OF FACTS Charging Party Mauricio Centeno worked as a file clerk in the Accounts Payable Department of defendant UPS SCS, a UPS subsidiary that assists businesses with their supply chain operations. 2ER142. He began working for UPS SCS's predecessor company, Fritz Companies, in July 1995, and was in the accounting department of UPS SCS's Gardena, California facility from 2001<2> until April 2009, when UPS SCS terminated his employment.<3> 2ER144; 2ER47, 102. As a file clerk, Centeno worked with payment documents: he recorded checks received, sorted copies of the checks, filed surety bonds, distributed mail, and generally sorted and filed paperwork and letters. 2ER103, 142. His duties also grew to include copying and imaging responsibilities. 2ER104. Centeno is deaf. 2ER31¶2. His first and primary language is American Sign Language (ASL). Id. He is unable to communicate with co-workers and supervisors orally, but instead must use written English or, when available, an ASL interpreter. Centeno's written English is relatively poor, however. Although Centeno characterizes his ability as "between 4th to 5th grade of reading and writing," he frequently has difficulty understanding basic written English words. 2ER36; 2ER41. Centeno himself has acknowledged his limited English proficiency in written communications with his supervisors: "I am not good writing I know I am bad level of English." 2ER36.<4> Despite Centeno's hearing impairment, he was able to perform the basic duties of the clerk position without difficulty. 2ER104; 2ER131-143. However, Centeno experienced difficulty in comprehending various communications at work that related more indirectly to his job tasks. One particular source of frustration for Centeno was the weekly meetings of the accounting department, which consisted of both the accounts payable department and the accounts receivable department and were held from at least 2002 until December 2007. 2ER69; 2ER32¶11. The meetings were conducted verbally and Centeno was "expected to attend," as the manager of Centeno's department, Gertraud Schulz, put it. 2ER108; see also 2ER109 (failure to attend meeting was "insubordination"). UPS SCS generally provided a written agenda of the topics to be discussed at the meeting, but employees were also free to ask questions and raise issues of concern in the workplace. 2ER76-77; 2ER121, 123. Topics discussed at the meeting included benefits changes, quarterly earnings, vacation and holiday scheduling, 401k benefits, time reporting, employee opinion surveys, code of business conduct, computer virus scans, referral bonuses, and possible reorganizations and reductions in force. 2ER115-116; 2ER117-124; 2ER86, 89-92. In August 2002, Centeno wrote a letter to his immediate supervisor, Jenny Chan, and Gertraud Schulz, Chan's supervisor, requesting that an ASL interpreter be present for planned employee meetings because he did not want to seem "foolish." 2ER67; 2ER106-107. UPS SCS declined to provide an ASL interpreter. 2ER31¶5; 2ER32¶11; 2ER68. When Chan informed Centeno that UPS SCS would not supply an interpreter for weekly meetings, Centeno said he "was upset." 2ER49. It was not entirely clear who made the decision to reject Centeno's requests for an interpreter. According to Chan, UPS SCS's Human Resources (HR) department decided to deny the requests for an interpreter. Chan stated that Ebonye Kaufman, an HR official, told Chan and Schulz in August 2002 that they should take written notes for Centeno while the meetings were going on and then e-mail the notes to him afterwards. 2ER68. Chan testified that Kaufman instructed that only if the length of the meeting was expected to exceed two hours should they procure an ASL interpreter. 2ER70. The record indicated that meetings rarely, if ever, exceeded two hours. Id. (meetings could last an hour if there were a lot of questions). Centeno was expected to attend the meetings and try to follow them through Chan's notes.<5> 2ER108-109. For her part, Kaufman, who left the company in November 2004, denied telling Chan to use note writing, rather than an interpreter, to accommodate Centeno's disability. 2ER100. When asked whether she had told Chan that an interpreter was unnecessary and that note writing would be sufficient, Kaufman responded "Absolutely not." Id. According to Kaufman, she recommended to Chan and Schulz that they should provide an interpreter for Centeno. 2ER99-100. But, as Kaufman explained, Schulz was higher-ranking in the company, and so Kaufman could not instruct that an interpreter be provided, but she indicated that an interpreter was her "strong recommendation." 2ER100. In addition to Kaufman's statements, there was further evidence that Schulz was the decision-maker. Centeno stated that he understood that Schulz made the decision not to provide him with interpretive help. 2ER65. Schulz herself indicated that when, years later, UPS SCS did provide an interpreter for Centeno for certain specific trainings or meetings, it was she who approved it. 2ER110 (she approved interpreter for monthly meetings in 2006); 2ER105 (she approved interpreter for Excel training in 2007). In explaining why -- four years after Centeno started requesting an interpreter for meetings -- she approved an interpreter for monthly, but not weekly, meetings, Schulz stated: "I felt once a month was sufficient. It was my decision." 2ER110. Whoever was the primary decision-maker, it was undisputed that UPS SCS declined to provide an interpreter for the weekly meetings after Centeno started requesting one in 2002, but instead opted to have employees write notes of the issues discussed at meetings for Centeno. There was also considerable evidence that Centeno did not find the note writing effective. 2ER64 ("I had problems with the note writing"). Initially, Chan did not try to provide Centeno with notes during the meeting; she would simply give them to him afterwards. 2ER81. Centeno then requested contemporaneous notes so that he could participate in the meetings, 2ER82-83, but that posed problems for Centeno as well. As Centeno put it, "[d]uring the time when the boss was talking ... then [Chan] would be writing, and I'm sitting there feeling like hurry up, hurry up. She wasn't writing what was going on in the meeting. She wasn't continuing to write. So everything that was written was kind of limited. Not everything was written down...." 2ER63-64.<6> As Centeno later explained, the note-takers simply could not write down everything that was being said; they would write "just short little words and keep telling me to wait. I could not really understand what was going on." 2ER31-32¶8; see also 2ER36 ("when I sit during [the meeting] [J]enny [Chan] was good helping write it for me but not enough for me still ... ASL is better for me get more understand"). Even regarding the matters that were written down, Centeno struggled to understand everything that was written. He stated that he would read through Chan's notes, "but I still don't always understand everything. Part of it I do, not all." 2ER54; see also 2ER52. Some of Centeno's problems with the notes stemmed from his limited proficiency in English. On several occasions Centeno indicated to USC SCS officials such as Chan and Kaufman that he did not understand certain words in the notes he was given. 2ER72A. According to Chan, Kaufman indicated that if Centeno did not understand her written notes, Chan should tell him "that he should look at [an English language] dictionary," rather than get an interpreter. 2ER84-85; 2ER72A. For Centeno, whose primary language is not English, looking up words in an English-language dictionary was not an effective way to explain the meaning of words that he did not understand. The dictionary suggestion was the assistance that UPS SCS officials early on had decided was appropriate, however. In April 2001, for example, company officials handed Centeno the company's harassment policy and told him to sign it. 2ER145. Centeno did sign it but, as he put it, "I didn't understand it. Yes, somebody said look that up in the dictionary, but I didn't understand the words. I didn't understand after that." 2ER58. Despite his lack of understanding, UPS SCS disciplined Centeno in May 2005 for violating the policy after he had gotten into a dispute with some co-workers during lunch and reacted angrily when he perceived that they were bothering him. 2ER149; 2ER55-56. Only after UPS SCS disciplined Centeno for violating the policy did they provide an interpreter to explain why he was being disciplined. 2ER55-56, 2ER58. UPS SCS officials nonetheless persisted in telling Centeno to go use a dictionary when he did not understand English language words. 2ER84-85. At other times, UPS SCS officials decided simply not to bother trying to ensure that Centeno comprehended written materials. For example, employees in Centeno's department were supposed to review materials relating to "Yard and Dock Safety" and sign a document indicating they had reviewed the materials. 2ER111. Centeno approached Schulz to tell her he did not understand a number of the words in the materials. 2ER112. Schulz, who had worked with Centeno for a number of years by that point, nonetheless found Centeno's lack of comprehension of written English words startling: "Some of the words I was - I was at a loss how some words he couldn't understand." 2ER113. Schulz discussed the problem with HR and decided that UPS SCS would not provide an interpreter for Centeno to review the materials. Id. Schulz stated that since the materials "[didn't] really direct[ly] impact us . . . I decide not to pursue it." 2ER114. Centeno never signed the materials. Id. Likewise, Centeno was supposed to sign a document regarding trade secrets; UPS never provided him with an interpreter to help him understand it, and he never signed it. 2ER42-44; 2ER33¶16. Schulz not only was surprised at Centeno's inability to comprehend many words in written English, but she also believed the onus was on Centeno to work harder to overcome his limitations in English. In her August 2001 performance appraisal of Centeno, for example, Schulz wrote that she would like Centeno "to take an English writing class to help him improve his writing style from the sign language English translation he presently uses." 2ER146. For his part, Centeno consistently tried to explain to UPS SCS officials that what he needed in order to communicate effectively was an ASL interpreter, not a dictionary or additional English language courses, especially in regard to oral meetings, policy documents, and certain training materials. 2ER48, 50, 53; 2ER31¶4, 32¶9; 2ER144 (Stating he did not wish to "go to school or whatever for get best English or good commcatie"). As noted above at 4-8, the problem was particularly acute in the context of the weekly meetings, which Centeno was required to attend, and which generally lasted around 30 minutes, but not infrequently could last an hour. 2ER31¶4. Centeno told his supervisors "several times" in the years after his 2002 requests that he "needed an interpreter" for weekly meetings. 2ER50, 51, 53. UPS SCS's consistent rejection of his requests left him frustrated: "I wasn't happy with that. I didn't know what was going on." 2ER60. Because he was unable to understand most of what was occurring at the meetings, Centeno found the meetings not only frustrating, but also boring. In September 2003, for example, he was warned that he had fallen asleep during a meeting and that he should stay awake during meetings. A notation was made in his employment record. 2ER73. According to Centeno, he only fell asleep at meetings without interpreters, and never fell asleep when an interpreter was present to help him understand what was being said. 2ER129. Centeno continued to be frustrated not only about his inability to understand what was happening, but also about his resulting inability to participate in the meetings. "Every week," Centeno stated, he felt that he had questions that he did not have an opportunity to ask because he had no interpreter. 2ER62. Beginning in May 2004, UPS SCS began conducting monthly meetings of the accounts payable branch of the accounting department. Centeno was required to attend these meetings, as well as the weekly meetings of the entire accounting department. 2ER75. Chan conducted the accounts payable meetings, which meant she was talking much of the times. The notes Centeno received from her therefore were not contemporaneous; Chan instead would e-mail notes afterwards from what she remembered of the meeting. 2ER78-79. Chan acknowledged that she would not always write down questions when asked and the answers given, so that this part of the meetings would not be in her notes. 2ER80. Centeno asked Chan for contemporaneous notes, and Chan asked another employee to do the note-taking, but the employee eventually complained that it was too much to write down. 2ER88. Centeno filed a charge of discrimination in June 2004, alleging that UPS SCS was discriminating against him by failing to make reasonable accommodations for his disability. 2ER130. In early 2005, Centeno discussed the lack of an interpreter at meetings with the EEOC investigator, after which he decided to stop attending meetings where no interpreter was provided. 2ER56-57. Missing the meetings did not solve Centeno's problems. As he put it, "I didn't go to the meeting room, because I didn't have an interpreter. So I stayed at my work by myself, and I wasn't happy. I felt frustrated. Made me kind of emotional." 2ER61. Chan would e-mail him after the meeting, but "when I read the e-mail, I didn't understand it. And I asked questions, but I - - she asked me a question, but I wasn't able to respond back." Id. Though Chan asked him to respond to her e-mail, that proved difficult for him: "I didn't understand it all ... [so] I didn't respond back to her." 2ER62. Moreover, "[e]very week" Centeno felt that he had questions he wanted to raise at the meeting, "questions that I wanted to share with the team," but did not have an opportunity to ask without an interpreter. Id. He felt that they "were there without me." Id. Centeno continued to request that an ASL interpreter be provided for meetings - both weekly and monthly - and, in 2005, UPS SCS occasionally provided an interpreter for the monthly meetings. 2ER94-95. In July 2006, Centeno complained that he was not sent written notes from a meeting until after he had left work for the day. As a consequence, he was unaware auditors were coming through the facility the following day and so had not cleaned up his work space and dressed accordingly. 2ER93; 2ER27¶88. Thereafter, Chan told Centeno that "we will get an interpreter once a month, but we can't do it weekly." 2ER49. Centeno responded that he needed an interpreter for the weekly meetings, and felt upset when she responded simply, "well, I'm sorry we can't." Id. Finally, as to written policy or training materials, UPS SCS officials continued to decline or defer providing Centeno with an interpreter on a consistent basis, even when the UPS SCS officials considered the relevant documents important. A few months after Centeno was disciplined for harassment, UPS SCS sent employees a questionnaire testing their knowledge of harassment and a revised anti-harassment policy. 2ER37. Of the twenty, one-sentence true/false statements about harassment, Centeno indicated he could not understand eleven. 2ER38-40 (circling statements such as "An employer is required to have a policy clearly stating that sexual harassment is prohibited in the workplace" and "A supervisor is held responsible only when she/he was told about the harassment and did nothing"). Centeno underlined the words in the policy he did not understand; he underlined 77 words (some of which were repeated words). 2ER41. According to Centeno, UPS SCS did not provide an interpreter to explain this policy. 2ER32¶12. There were also difficulties getting help with training UPS SCS identified as important. Beginning in 2002, UPS SCS officials indicated on Centeno's performance reviews that he needed to improve his Microsoft Excel skills. 2ER135-142. Centeno attempted to use the on-line training program, but could not read it. 2ER28¶102. In 2005, Centeno informed Chan of his difficulties. Id. It was not until September 2007, while in the midst of litigation in this case,<7> that UPS SCS provided an ASL interpreter to assist Centeno with Excel training. 2ER29¶103. UPS SCS discontinued its weekly meetings in December 2007. There is no evidence in the record explaining why UPS SCS took that action, except that it was "a management decision." 2ER96. District Court Decision The district court granted UPS SCS's motion for summary judgment. The district court noted that federal regulations "define the term 'reasonable accommodation' to include '[m]odifications or adjustments that enable a covered entity's employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities.'" 1ER15 (quoting 29 C.F.R. § 1630.2(o)(1)(iii)). The employer thus must make accommodations that enable a disabled employee "to enjoy equal benefits and privileges of employment, including those benefits and privileges of employment which are not related to the facilitation of employment tasks." 1ER15 (citing Buckingham v. U.S., 998 F.2d 735, 740 n.3 (9th Cir. 1993) (Rehabilitation Act case)). The district court held that UPS SCS nonetheless had not violated the ADA by failing to provide Centeno with an ASL interpreter for weekly meetings and certain trainings. As to the weekly meetings, the court held that UPS SCS's "provision of note writing, agendas, and summaries in connection with the weekly meetings discharged Defendant's duty under the ADA as a matter of law." 1ER17. The court acknowledged that Centeno sometimes did not understand the words in the written materials, but the court downplayed the importance of Centeno's lack of understanding; the court deemed it sufficient that "his supervisors provided a dictionary that he could consult to look up words he did not know." 1ER18.<8> The district court next held that even though it took several years for Centeno to receive an ASL interpreter to help him with training on Microsoft Excel, that delay does not mean that UPS SCS violated the ADA because "there is no evidence that Centeno suffered an adverse employment decision in the interim." 1ER19. The court rejected the Commission's argument that UPS SCS should have provided an ASL interpreter to help Centeno understand documents related to the company's anti-harassment policy. According to the court, there was no evidence "that these materials were 'training,' or that they related to Centeno's job functions or to the privileges or benefits of his employment." 1ER19. The court again considered it significant that Centeno's supervisor provided him with a dictionary "to look up words he did not understand." 1ER20. The court rejected the argument that suggesting that Centeno use a dictionary was ineffective given that Chan "herself consulted the dictionary to help her understand words because, like Centeno, English was not her first language." 1ER20. In sum, the district court held that what UPS SCS offered Centeno was a reasonable and sufficient accommodation as a matter of law. 1ER20. SUMMARY OF ARGUMENT The Supreme Court held, in U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002), that the heart of the ADA's reasonable accommodation requirement is that any accommodation put forward by the employer be effective in meeting the needs of a disabled employee. In this case, what Centeno needed was an accommodation that allowed him to participate actively in weekly meetings and to comprehend written materials containing words he could not understand. What Centeno received from UPS SCS managers were hastily-written notes, agendas, and a suggestion to use an English-language dictionary to elucidate words he did not understand. However effective UPS SCS managers might have thought the written notes and dictionary would be at the outset of their interactions with Centeno, the evidence reveals that Centeno found them wholly ineffective. Note writing proved incapable of capturing most of what was being said at meetings, and Centeno struggled to understand many words conveyed in written English. The suggestion that Centeno look up words in an English language dictionary, while perhaps helpful for individuals who are more fluent in other written languages, was patently unhelpful for Centeno, whose primary language was a visual language. Under this Court's precedents, once one attempted accommodation proves ineffective, an employer must explore the possibility of other, more effective accommodations - in this case, an ASL interpreter. There was evidence providing an ASL was a feasible option for UPS SCS and, moreover, that it is an accommodation Congress specifically envisioned for hearing-impaired individuals when it enacted the ADA. See 42 U.S.C. § 12102(1)(A) ("The term 'auxiliary aids and services' includes . . . qualified interpreters or other effective means of making aurally delivered materials available to individuals with hearing impairments."). In light of this evidence, it was improper for the district court to rule - as a matter of law - that UPS SCS adequately accommodated Centeno's disability, especially where that question is generally supposed to be a "question of fact." Lujan v. Pac. Mar. Ass'n, 165 F.3d 738, 743 (9th Cir. 1999). As the district court acknowledged, the ADA requires an employer to provide reasonable accommodations that ensure a disabled employee is able to enjoy equal benefits and privileges of employment. Participating in employee meetings is one such benefit and privilege of employment, and the district court erred in holding that Centeno was adequately accommodated where there was evidence of his inability to participate fully in the meetings. The district court also held that understanding an employer's harassment policy and certain computer training did not even amount to a benefit or privilege of employment, and thus accommodating Centeno by ensuring he understood them was unnecessary. The court erred, for Centeno was subject to discipline for violating the harassment policy when he became angry at some co-workers he felt were bothering him. Furthermore, as is true for any employee, Centeno himself possessed a right to a workplace free of harassment, which is well-recognized as a term, condition, or privilege of employment. As for training, there was evidence that UPS SCS considered the training important, and Congress expressly prohibited discrimination in job training when it enacted the ADA. Summary judgment therefore was improper. REVIEWABILITY AND STANDARD OF REVIEW This Court reviews "de novo the district court's grant of summary judgment." Dominguez-Curry v. Nev. Transp. Dep't, 424 F.3d 1027, 1033 (9th Cir. 2005). "Viewing the evidence in the light most favorable to the nonmoving party," here, the EEOC, the Court "must determine whether there are any genuine issues of material fact and whether the district court correctly applied the substantive law." Id. The Commission argued that UPS SCS violated the ADA by failing to make reasonable accommodations for Centeno's disability at pages 15-21 of its memorandum in opposition to summary judgment. R.75 at 15-21. ARGUMENT Because UPS SCS did not provide Centeno with an effective accommodation that would have enabled him to be an active participant in the workplace, its actions were not sufficient as a matter of law. Under the Americans with Disabilities Act, an employer must "mak[e] reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an . . . employee, unless [the employer] can demonstrate that the accommodation would impose an undue hardship on the operation of the business of [the employer]." 42 U.S.C. § 12112(b)(5)(A). The essence of a reasonable accommodation is that it be effective in meeting the needs of the individual employee. As the Supreme Court stated, "the word 'accommodation' . . . conveys the need for effectiveness. An ineffective 'modification' or 'adjustment' will not accommodate a disabled individual's limitations." U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 400 (2002) (emphasis in original); see also Zivkovic v. S. Calif. Edison Co., 302 F.3d 1080, 1089 (9th Cir. 2002) (employer must offer accommodation that is "reasonable and effective"); Humphrey v. Mem'l Hosps. Ass'n, 239 F.3d 1128, 1137 (9th Cir. 2001) (appropriate reasonable accommodation must be "effective"); see generally EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act ("Reasonable Accommodation Guidance"), No. 915.002 (Oct. 17, 2002), General Principles ("An accommodation . . . must be effective in meeting the needs of the individual.") (available at http://www.eeoc.gov/policy/docs/accommodation.html). There was considerable evidence that the steps Centeno's managers were willing to take in response to his hearing impairment were patently ineffective in enabling him to comprehend and participate in meetings, and to comprehend certain written materials. Centeno repeatedly told his managers that he "had problems with the note writing" approach Schulz decided to adopt for the weekly meetings. 2ER64. Centeno's problems with note writing were twofold. First, the note writing did not convey all the information that was being communicated orally. 2ER63-64 ("[d]uring the time when the boss was talking ... [Chan] would be writing, and I'm sitting there feeling like hurry up, hurry up. She wasn't writing what was going on in the meeting. She wasn't continuing to write. So everything that was written was kind of limited. Not everything was written down...."); 2ER31-32¶8 (note-takers would write "just short little words and keep telling me to wait. I could not really understand what was going on."). The second problem with note writing, and with other information conveyed in written English rather than through an ASL interpreter, was that Centeno had profound difficulties understanding written English. As Centeno explained, he would read through Chan's notes, "but I still don't always understand everything. Part of it I do, not all." 2ER54. Even if note writing and other efforts to convey information to Centeno through written English initially seemed to be a plausible solution, the evidence that Centeno found the notes ineffective in enabling him to understand and participate actively in meetings should have prompted UPS SCS to abandon note writing as the primary communication method and move to an ASL interpreter. UPS SCS did not discharge its duty simply by providing an accommodation where that accommodation subsequently proved ineffective. To the contrary, "the duty to accommodate 'is a "continuing" duty that is "not exhausted by one effort."'" Humphrey, 239 F.3d at 1138 (quoting McAlindin v. County of San Diego, 192 F.3d 1232, 1237 (9th Cir. 2000)); see also Reasonable Accommodation Guidance, Answer to Question 32 ("If a reasonable accommodation turns out to be ineffective . . . the employer must consider whether there would be an alternative reasonable accommodation that would not pose an undue hardship.")<9> (quoted in Humphrey, 239 F.3d at 1138). As this Court held in Humphrey, an employer's rejection of the employee's suggested accommodation "and its failure to explore with [the employee] the possibility of other accommodations, once it was aware that the initial arrangement was not effective, constitutes a violation of its duty." Humphrey, 239 F.3d at 1139. The fact that Centeno was open-minded and willing to try to understand what was happening through written materials does not preclude him from requesting an ASL interpreter when writing proved ineffective. There was evidence that Centeno's managers were very aware of his limited ability to understand written English, and of the ineffectiveness of note writing. First, Centeno explicitly informed his supervisors that what he needed was an ASL interpreter, not note writing. 2ER50, 53. There also was evidence that Centeno demonstrated to UPS SCS officials his inability to understand many written words by underlining words in documents. In any event, there was evidence that Centeno's limitations with written English were quite apparent to his supervisors. As far back as 2001, Schulz herself identified written English as a problem area for Centeno. 2ER146 (expressing her view that Centeno should "take an English writing class to help him improve his writing style from the sign language English translation he presently uses"). Moreover, UPS SCS's own actions in this case underscore the necessity of an interpreter for Centeno's comprehension. UPS SCS emphasized to the district court that for what it deemed important interactions such as performance evaluations, annual meetings regarding open enrollment for benefits, safety meetings, and disciplinary meetings, UPS SCS did not rely on written notes to communicate with Centeno but instead provided an ASL interpreter. 2ER47A-47B (interpreter for performance reviews); 2ER70 (HR instructed that interpreter should be provided for meetings regarding benefits); 2ER55 (interpreter present when officials interviewed him about harassment policy violation). The fact that UPS SCS officials provided an ASL interpreter at certain, limited times is evidence that company officials were aware that Centeno needed an interpreter to understand and participate actively in oral communications. It is also evidence that providing an ASL interpreter was a feasible accommodation for Centeno's disability. See U.S. Airways, 535 U.S. at 402 (plaintiff fulfills burden by showing he or she sought an accommodation that "seems reasonable on its face, i.e., ordinarily or in the run of cases"); id. (reasonable accommodation is one that is "feasible for the employer") (citation omitted); id. (plaintiff "need only show he seeks a 'method of accommodation that is reasonable in the run of cases") (citation omitted). The feasibility of an ASL interpreter for a hearing-impaired employee is apparent for reasons even beyond the record in this case, for Centeno's difficulty with note writing is not a problem unique to Centeno but extends to other hearing- impaired individuals. See, e.g., EEOC v. Fed. Express Corp., 513 F.3d 360, 364-65 (4th Cir. 2008) (profoundly deaf plaintiff, whose primary language is ASL, "studied English formally, but has never mastered the language" and so plaintiff was unable to understand what was going on in meetings and trainings sessions without an ASL interpreter). Indeed, the language of the ADA contains Congress' implicit recognition that an ASL interpreter, and not written communication, might be necessary for a hearing-impaired individual. See 42 U.S.C. § 12102(1)(A) ("The term 'auxiliary aids and services' includes . . . qualified interpreters or other effective means of making aurally delivered materials available to individuals with hearing impairments.") (emphasis added); 42 U.S.C. § 12111(9)(B) ("the term 'reasonable accommodation' may include . . . the provision of qualified . . . interpreters"). Furthermore, this Court has recognized on several occasions that an employer may be required to provide an ASL interpreter as a reasonable accommodation for a hearing-impaired individual. See Zivkovic, 302 F.3d at 1090 (job applicant may have needed interpreter to understand interview questions); cf. Duffy v. Riveland, 98 F.3d 447, 455 (9th Cir. 1996) (deaf inmate, who can communicate by writing, raised fact issue that prison officials violated ADA where the interpreter they provided was not certified and thus meant plaintiff "would be unable to communicate effectively"). Finally, the EEOC, in Guidance issued prior to this action, addressed a situation very similar to the one present here, and indicated that an ASL interpreter generally is necessary for a hearing-impaired employee to participate fully. See EEOC Guidance: Questions and Answers about Deafness and Hearing Impairments in the Workplace and the Americans with Disabilities Act (July 26, 2006) ("Questions and Answers about Deafness Guidance"), at Example 22 ("A deaf employee requests a sign language interpreter for regular staff meetings. The employer suggests that a co-worker could take notes and share them with the deaf employee or that a summary of the meeting could be prepared. These alternatives are not effective, because they would not allow the deaf employee to ask questions and participate in discussions during the meetings as other employees do. Absent undue hardship, the employer must provide a sign language interpreter for the meetings.") (available at http://www.eeoc.gov/facts/deafness.html). UPS SCS did not provide an ASL interpreter for the vast majority of meetings Centeno was required to attend, nor did it provide an interpreter to assist him to understand other written materials such as company policy documents and training materials. The district court nonetheless held that UPS SCS's response to Centeno's requests for an interpreter - providing Centeno with hurriedly-written notes, agendas, and summaries that did not allow Centeno to be an active participant - "discharged Defendant's duty under the ADA as a matter of law." 1ER17. In so holding, the court erred. The district court misapprehended several critical components of ADA law. First, the district court initially suggested that an employer need only make those accommodations that enable an employee to perform essential job functions, 1ER15, though the court then acknowledged binding authority adopting a more comprehensive understanding of "reasonable accommodation." Centeno was able to perform the essential functions of his job, but he was not able to participate actively in meetings, trainings, and other workplace matters.<10> In such a circumstance, failing to make reasonable accommodations would violate the ADA, for UPS SCS's duty under the ADA is to provide reasonable accommodations that enable a disabled employee to enjoy equal benefits and privileges of employment. Nothing in the plain language of the ADA limits the accommodation requirement to essential job functions. The ADA prohibits discrimination in "advancement . . . , job training, and other terms, conditions, and privileges of employment," 42 U.S.C. § 12112(a), and the ADA defines discrimination to include the failure to make reasonable accommodations. 42 U.S.C. § 12112(b)(5)(A). The statutory definition of reasonable accommodation includes a range of examples, including providing interpreters, but nowhere states reasonable accommodations are necessary only for the performance of essential job functions. 42 U.S.C. § 12111(9). To be sure, an employer may have to make accommodations to enable an employee to perform essential job functions, 42 U.S.C. § 12111(8), but the ADA's concerns extend more broadly to ensure that disabled individuals have full access to the benefits and privileges of employment. See 42 U.S.C. § 12112(a); see also 42 U.S.C. § 12112(b)(1) (prohibiting limiting or segregating individuals because of disability). The EEOC's ADA regulations, drawing from the statutory language, interpret the term "reasonable accommodation" to extend beyond adjustments that enable an individual to perform essential job functions. The regulations state that reasonable accommodation can mean "[m]odifications or adjustments that enable a covered entity's employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities." 29 C.F.R. § 1630.2(o)(1)(iii). The Commission's regulation is authorized by 42 U.S.C. § 12116, and as such is entitled to deference. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844 (1984); cf. Sutton v. United Air Lines, Inc., 527 U.S. 471, 478 (1999). As the district court acknowledged, 1ER18, the precedent of this Court also requires that employers make accommodations to allow employees to enjoy equal benefits and privileges of employment. In Buckingham v. United States, 998 F.2d 735, 741 (9th Cir. 1993), this Court held that, under the Rehabilitation Act, "employers are not relieved of their duty to accommodate when employees are already able to perform the essential functions of the job." Instead, qualified individuals "may require reasonable accommodation to allow them to . . . enjoy the privileges and benefits of employment equal to those enjoyed by non-[disabled] employees." Id. (holding employee able to perform essential job functions nonetheless may be entitled to reasonable accommodation of a transfer so he can receive better medical treatment); see also EEOC v. MCI Telecomm. Corp., 993 F. Supp. 726, 729-30 (D. Ariz. 1998) (employer must make reasonable accommodation to enable disabled employee to enjoy equal benefits and privileges of employment, including right not be embarrassed or humiliated by employer); cf. Bower v. Fed. Express Corp., 287 F. Supp. 2d 840, 845-46 (W.D. Tenn. 2003) (employer that offers employees privilege of "riding jumpseat" on cargo airplanes must make reasonable accommodation to employee with spina bifida so he can enjoy "equal benefits and privileges"); Bryant v. Better Bus. Bureau of Greater Md., Inc., 923 F. Supp. 720, 736 (D. Md. 1996) (employer must provide "effective" accommodation that would allow hearing-impaired employee "to attain an 'equal' level of achievement, opportunity and participation . . . that a non- disabled individual . . . would be able to achieve") (citing EEOC regulation). Although Buckingham was a Rehabilitation Act case, this Court follows decisions under the Rehabilitation Act in deciding cases under the ADA. See Collins v. Longview Fibre Co., 63 F.3d 828, 832 n.3 (9th Cir. 1995) (ADA case holding that "cases involving claims under the Rehabilitation Act are instructive" because of similar language and because "[t]he legislative history of the ADA indicates that Congress intended judicial interpretation of the Rehabilitation Act be incorporated by reference when interpreting the ADA"); cf. Duffy, 98 F.3d at 455 ("the close relationship between the [Rehabilitation Act] and the ADA offers guidance for analyzing the ADA claim"); see also 29 U.S.C. § 791(g) ("The standards used to determine whether [the employment provisions of the Rehabilitation Act have] been violated . . . shall be the standards applied under title I of the Americans with Disabilities Act").<11> The district court's ruling that providing materials in written English was sufficient as a matter of law, given the evidence of Centeno's expressed difficulties with his comprehension of written English and of the limitations inherent in contemporaneous note-taking, cannot be reconciled with the holding of this Court and the courts of appeals that the question of a reasonable accommodation generally is a question of fact. See, e.g., Lujan v. Pac. Mar. Ass'n, 165 F.3d 738, 743 (9th Cir. 1999) (reasonableness of accommodation "is ordinarily a question of fact"); Turner v. Hershey Chocolate USA, 440 F.3d 604, 614 (3d Cir. 2006) ("the issue of 'reasonable accommodation' presents a fact question"); Cassidy v. Detroit Edison Co., 138 F.3d 629, 634 (6th Cir. 1998) ("The reasonableness of an accommodation is a fact question."); McWright v. Alexander, 982 F.2d 222, 227 (7th Cir. 1992) (reasonable accommodation and undue hardship are questions of fact); EEOC v. Convergys Customer Mgmt. Group, Inc., 491 F.3d 790, 796 (8th Cir. 2007) ("reasonable accommodation" is a fact question). Where there was so much conflicting evidence on the effectiveness of UPS SCS's attempted accommodation, the district court should not have ruled for the employer as a matter of law. The district court also erred in holding, again as a matter of law, that UPS SCS officials' suggestion that Centeno use a dictionary somehow made submitting materials to him in written English an effective accommodation. Whether or not it was "callous," 1ER20, there was no evidence that Centeno found using an English-language dictionary helpful. The fact that his supervisor Jenny Chan found it helpful for her comprehension of English words she did not know, as the district court emphasized, does not mean that Centeno found it helpful. The evidence indicates he did not: "I didn't understand it. Yes, somebody said look that up in the dictionary, but I didn't understand the words. I didn't understand after that." 2ER58; cf. Humphrey, 239 F.3d at 1138 (employers must "find accommodations that really work" for the individual employee). The district court did recognize that understanding and participating in employee meetings was a privilege and benefit of employment, but it held that understanding harassment documents and training on Microsoft Excel were not. 1ER19 (two-year delay in Excel training not an ADA violation where Centeno did not suffer "an adverse employment action in the interim"); id. (harassment materials did not relate to job functions or to privileges or benefits of employment). In so holding, the district court erred. It is well-established, as the district court implicitly held, that participating in employee meetings is a privilege and benefit of employment. See, e.g., Fed. Express, 513 F.3d 360 (employer violated ADA where it failed to provide accommodations that would enable hearing-impaired employee to understand what was happening at employee meetings); Meyer v. Iowa Mold Tooling Co., 141 F. Supp. 2d 973, 986 (N.D. Iowa 2001) (reasonable accommodation may include interpreter for meetings where meetings were mandatory or involved legal mandates for workplace conduct); MCI Telecomm. Corp., 993 F. Supp. at 729-30 (employer violated ADA by failing to provide wheelchair-accessible bus to transport employee to off-site company meeting); see also Questions and Answers about Deafness Guidance, at Question 16 ("Reasonable accommodations related to the 'benefits and privileges' of employment include those accommodations that are necessary to provide an employee with a hearing disability equal access to information communicated in the workplace [and] the opportunity to participate in employer sponsored events (e.g. training, meetings . . .)"; Reasonable Accommodation Guidance at Question 14 ("Employers must ensure that employees with disabilities have access to information that is provided to other similarly-situated employees without disabilities, regardless of whether they need it to perform their jobs."). As to the harassment materials, the district court erred in ruling that UPS SCS did not need to accommodate Centeno to ensure he understood them. The fact that Centeno was subject to discipline for violating the policy, and was in fact disciplined on one occasion after an incident in the lunchroom when he became angry at some co-workers who he felt were bothering him, is evidence that his comprehension was an important condition of his employment. See Meyer, 141 F. Supp. 2d at 986 (where meetings involved legal mandate regarding harassment and where failure to comply with harassment policies can include discipline, employer would have to provide interpreter to ensure employee's understanding). Apart from Centeno's discipline for violating the harassment policy, Centeno himself also possessed a right to a workplace free of harassment. The Supreme Court has held that the right to be free from harassment in the workplace is one of the "'"terms, conditions, or privileges of employment."'" Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (quoting Meritor Savs. Bank FSB v. Vinson, 477 U.S. 57, 64 (1986). If Centeno could not understand the harassment policy, he may well not have been able to understand his rights, and how to take advantage of any preventive or corrective opportunities provided by the employer. See generally Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998); see also EEOC v. V & J Foods, Inc., 507 F.3d 575, 578 (7th Cir. 2007) (reasonableness of harassment complaint mechanism "depends on . . . the capabilities of the class of employees in question. If they cannot speak English, explaining the complaint procedure to them only in English would not be reasonable."). The district court therefore erred in holding harassment materials were exempt from any accommodation requirement. Finally, the district court erred in holding as a matter of law that UPS SCS had not violated the ADA by delaying training on Microsoft Excel until 2007, several years after Centeno had conveyed his inability to comprehend training materials in English, because Centeno did not suffer "an adverse employment action in the interim." 1ER19. The evidence in the record is at odds with the court's holding, for Centeno's performance reviews in 2002 and 2003 indicated that he needed to improve his Microsoft Excel skills. In 2005, UPS SCS officials told Centeno he needed to do some training in Excel. The evidence thus indicates that UPS SCS considered training an important aspect of Centeno's job. Under the plain language of the ADA, the failure to provide a reasonable accommodation that would enable Centeno to participate in job training is a violation of the Act. 42 U.S.C. § 12112(a) (discrimination in job training prohibited); 42 U.S.C. § 12112(b)(5) (discrimination includes failure to make reasonable accommodations to physical limitations of individual); see also Reasonable Accommodation Guidance at Question 15 ("Employers must provide reasonable accommodation (e.g. sign language interpreters . . .) that will provide employees with disabilities with an equal opportunity to participate in employer-sponsored training."). Nothing in the language of the statute requires that an additional "adverse employment action" ensue from the failure to provide an accommodation, as the district court erroneously held. Where, as here, there was record evidence that UPS SCS did not provide Centeno with an effective accommodation that would have enabled him to be an active participant in the workplace, the district court should not have held UPS SCS's actions sufficient as a matter of law. CONCLUSION We urge this Court to reverse the judgment of the district court and remand the case for further proceedings. Respectfully submitted, JAMES L. LEE Deputy General Counsel LORRAINE C. DAVIS Acting Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel s/ Jennifer S. Goldstein JENNIFER S. GOLDSTEIN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street N.E. Washington, DC 20507 (202) 663-4733 CERTIFICATE OF COMPLIANCE I hereby certify that the attached opening brief is proportionally spaced, has a typeface of 14 points, and contains 8,133 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). s/ Jennifer S. Goldstein STATEMENT OF RELATED CASES The Commission is not aware of any pending cases related to this case. CERTIFICATE OF SERVICE I hereby certify that on May 26, 2009, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system. s/ Jennifer S. Goldstein CERTIFICATION I hereby certify that this printed brief is identical to the version submitted electronically. s/ Jennifer S. Goldstein *********************************************************************** <> <1> Volume 1 of the Excerpts of Record is cited as "1ER," and Volume 2 as "2ER." The page number within the record excerpts follows the "ER." <2> Public documents indicate that UPS SCS's acquisition of Fritz Companies was finalized on May 24, 2001. See http://www.pressroom.ups.com/pressreleases/printer/0,1052,3873,00.html?ct=press _releases&at=domain_mainpressroom&tn=pressreleases_archives_archive&id=38 73&srch_pos=138&srch_phr=forwarding (last visited April 27, 2009). <3> Centeno's firing, which occurred after the district court decision in this case, is not at issue in this appeal. <4> It is generally recognized that American Sign Language is quite different from the English language. As NIH's National Institute on Deafness and Other Communication Disorders explains on its web site, "[e]ven though ASL is used in America, it is a language completely separate from English." http://www.nidcd.nih.gov/health/hearing/asl.htm#d (last visited April 22, 2009); see also http://en.wikipedia.org/wiki/American_sign_language (last visited April 22, 2009) (ASL's "grammar and syntax are distinct from any spoken language . . . ASL is a visual language, not a written language. There is no one-to-one correspondence between words in ASL and English. . . . While spoken languages are produced by the vocal cords only, and can thus be easily written in linear patterns, ASL uses the hands, head and body, with constantly changing movements and orientations. Like other natural sign languages, it is 'three dimensional' in this sense."). <5> For a time, a co-worker who happened to know some ASL signs did a bit of interpreting for Centeno at the meetings. When the co-worker's employment ended in 2003, Centeno was without any ASL interpretion at meetings. 2ER127-128. <6> Centeno's deposition was conducted with an ASL interpreter who interpreted the questions asked and the answers Centeno gave. <7> On September 28, 2006, the Commission filed a complaint alleging that UPS SCS failed to make reasonable accommodations for Centeno's deafness by providing him with a sign language interpreter for certain staff meeting, counseling/disciplinary sessions, and training. 2ER150. <8> UPS SCS argued that it provided Centeno with effective accommodations. It never argued that providing an ASL interpreter for weekly meetings would present an undue hardship. See 1ER14n.2. <9> UPS SCS did not raise an undue hardship defense. <10> The Commission is not arguing that Centeno needed an ASL interpreter to perform the essential functions of his job. <11> A divided Eighth Circuit, sitting en banc, held that an employer need only make accommodations that will enable a disabled individual to perform essential job functions. See Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1136-37 (8th Cir. 1999) (affirming summary judgment on accommodation claim where interpreter not necessary for deaf employee to perform essential functions of his position); but see id. at 1139 (court erred in holding plaintiff was reasonably accommodated as a matter of law where "record reveals that, as to employee meetings, [plaintiff] was not provided with an interpreter and, arguably therefore, a way to function meaningfully as an employee") (Morris Sheppard Arnold, J., dissenting). The majority opinion is devoid of analysis of the accommodation issue. Because it conflicts with the language of the statute, the EEOC regulations, and this Court's precedent, it should not be followed. In any event, even within the courts of the Eighth Circuit, Kiel has been limited. See, e.g., Meyer v. Iowa Mold Tooling Co., 141 F. Supp. 2d 973, 986 (N.D. Iowa 2001) (employer may have to provide interpreter for meetings that did not involve plaintiff's performance of his job tasks where the meetings were mandatory, related more generally to his position, or involved legal mandates for workplace conduct, such as harassment).