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 ____________________________________________ RELPY BRIEF OF APPELLANT EQUAL EMPLOYMENT OPPORTUNITY COMMISSION ____________________________________________ JAMES L. LEE JENNIFER S. GOLDSTEIN Deputy General Counsel Attorney CAROLYN L. WHEELER U.S. EQUAL EMPLOYMENT Acting Associate General Counsel OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E. Washington, D.C. 20507 (202) 663-4733 Jennifer.goldstein@eeoc.gov TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . ii ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1. Centeno did not find note writing effective for participating in meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 2. Centeno needed an interpreter to understand certain written materials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 3. Centeno needed an interpreter to understand certain training materials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 4. There is sufficient evidence to permit a jury to decide whether punitive damages are appropriate in this case . . . . . . . . . . . . 13 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES Beck v. Univ. of Wisc. Bd. of Regents, 75 F.3d 1130 (7th Cir.1996) . . . . 12 Buckingham v. U.S., 998 F.2d 735 (9th Cir. 1993) . . . . . . . . . . . . 3, 8 Hemmings v. Tidyman's Inc., 285 F.3d 1174 (9th Cir. 2002) . . .13, 14, 15, 16 Humphrey v. Mem'l Hosps. Ass'n, 239 F.3d 1128 (9th Cir. 2001) . . . 11, 12 Kolstad v. American Dental Ass'n, 527 U.S. 526 (1999) . . . . .13, 14, 15, 16 Larez v. Holcom, 16 F.3d 1513 (9th Cir. 1994) . . . . . . . . . . . . . . .13 Mateo v. M/S KISO, 805 F.Supp. 761 (N.D.Cal. 1992) . . . . . . . . . . . . 16 Passantino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493 (9th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 16 Peacock v. Duval, 694 F.2d 644 (9th Cir. 1982) . . . . . . . . . . . . . . 14 Provenz v. Miller, 102 F.3d 1478 (9th Cir. 1996) . . . . . . . . . . . . 16 Taylor v. Phoenixville Sch. Dist., 184 F.3d 296 (3d Cir.1999) . . . . . . 12 Wisc. Dep't of Revenue v. Wrigley Co., 505 U.S. 214 (1992) . . . . . . . . .6 Zivkovic v. S. Calif. Edison Co., 302 F.3d 1080 (9th Cir. 2002) . . . . . 11 STATUTES The Americans with Disabilities Act of 1990 42 U.S.C. § 12112(a) . . . . . . . . . . . . . . . . . . . . . . . . 3, 6, 8 42 U.S.C. § 12112(b)(5)(A) . . . . . . . . . . . . . . . . . . . . . 3, 8, 11 REGULATIONS 29 C.F.R. § 1601.20 . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 29 C.F.R. §1614.108(a) . . . . . . . . . . . . . . . . . . . . . . . . . . .7 29 C.F.R. §1614.108(b) . . . . . . . . . . . . . . . . . . . . . . . . . . .7 29 C.F.R. § 1630.2(o)(1)(iii) . . . . . . . . . . . . . . . . . . . . . 3, 8 MISCELLANEOUS http://www.eeoc.gov/federal/md110.html . . . . . . . . . . . . . . . . . . 7 Argument The Commission argued in its opening brief that Mauricio Centeno, who is deaf, needed an accommodation that would allow him to participate actively in weekly meetings and to comprehend written materials containing words he could not understand. The Commission argued that there was considerable evidence that the steps his managers chose to take - giving him hastily-written notes during the weekly meetings and frequently declining to do more than suggest he use an English-language dictionary to clarify written materials - were, for Centeno, wholly ineffective. This evidence should have precluded resolving the case on summary judgment. UPS SCS responds to the evidence that Centeno needed an interpreter for weekly meetings with two contradictory arguments. First, UPS SCS argues that using written notes rather than an interpreter to help him participate in orally conducted weekly meetings was "indisputedly effective" for Centeno. SCS Br. at 37. At the same time, UPS SCS takes pains to emphasize that it arranged for an ASL interpreter for those meetings where UPS SCS officials considered Centeno's comprehension important. SCS Br. at 11, 27. If note writing were an adequate way for Centeno to communicate, there would have been no need for an ASL interpreter at all, even for meetings UPS SCS characterized as "significant." SCS Br. at 11. Of course, UPS SCS's actions prove the opposite: Centeno needed an ASL interpreter to comprehend and participate fully in oral meetings. UPS SCS makes no argument that it was not feasible to procure the services of an interpreter for the weekly meetings and to interpret the written materials, such as policy documents and certain training materials, that Centeno could not understand. UPS SCS also makes no argument that procuring an interpreter would have posed an undue hardship for the company. In fact, UPS SCS never explains why Gertraud Schulz disregarded the "strong recommendation" of an official in the Human Resources department to provide an interpreter for meetings. 2ER100. UPS SCS's brief, which makes repeated reference to accommodations UPS SCS did make, such as visual fire alarms and the periodic provision of interpreters, suggests one answer: that UPS SCS believed what it did for Centeno was enough. Schulz herself expressed that sentiment when she explained why she finally approved an interpreter for monthly, but not weekly, meetings in 2006: "I felt once a month was sufficient." 2ER110. Schulz's sentiment - that making some accommodations for a disabled employee is sufficient - is not what the ADA requires. The ADA requires employers to make whatever reasonable accommodations are necessary to enable a disabled employee to enjoy equal benefits and privileges as are enjoyed by other employees. See 42 U.S.C. §§ 12112(a), 12112(b)(5)(A); 29 C.F.R. § 1630.2(o)(1)(iii); Buckingham v. United States, 998 F.2d 735, 741 (9th Cir. 1993). Centeno needed an interpreter to help him participate in the workplace and fully comprehend orally conducted meetings and written materials. UPS SCS's refusal to provide him with the needed assistance thus violated the ADA. 1. Centeno did not find note writing effective for participating in meetings. UPS SCS contends in its brief that Centeno found agendas and note writing an effective way to understand and participate in meetings, and that UPS SCS therefore had no obligation to provide an interpreter. SCS Br. at 10, 14, 29, 36. UPS SCS's assertion is belied by evidence in the record, and by its own acknowledgement in its brief that Centeno found supervisor Jenny Chan's notes "'slow.'" SCS Br. at 14. The fact that note writing was slow was, for Centeno, a significant problem: "During 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. . . . Not everything was written down." 2ER63-64. The notes not only were slow, but also extremely cursory in nature. As Centeno explained, they would write "just short little words and keep telling me to wait. I could not really understand what was going on." 2ER31-328; see also 2ER36. Centeno was so unable to understand what was going on that he found himself detached during meetings and so bored that he fell asleep. 2ER73. On those occasions UPS SCS chastised Centeno and warned him against falling asleep, 2ER73, and in its brief UPS SCS emphasizes that even though he was given written agendas and notes, "Centeno [frequently] did not pay attention during the meetings and, sometimes, fell asleep." SCS Br. at 13. Rather than chastise Centeno, UPS SCS should have recognized what Centeno had been saying repeatedly to his supervisors: that he needed an interpreter for meetings. 2ER129 (Centeno never fell asleep at meetings with interpreters). Finally, Centeno had difficulty understanding Chan's notes themselves: "I read through them, but still I don't always understand everything. Part of it I do, not all." 2ER54. UPS SCS contends that "Centeno never told Chan that he felt her notes were insufficient," SCS Br. at 14, but that contention is directly contradicted by evidence in the record. When asked whether he ever told Chan "that you did not understand her handwritten notes," Centeno responded "Yes." 2ER52. Chan also acknowledged occasions in which Centeno did not understand her notes. SER202. UPS SCS's assertion that Centeno found the note writing effective thus is at odds with this evidence, and with his plain statement in his deposition that "I had problems with the note writing." 2ER64. UPS SCS seeks to undermine the evidence that note-writing was a problem for Centeno by arguing that Centeno "uses note writing in English to communicate with his friends and family - including his stepfather . . . and used note writing to communicate with his therapist during sessions." SCS Br. at 10 n.2. This statement is misleading. The record indicates that Centeno's mother and all of his siblings use American Sign Language to communicate with Centeno. SER123-24. Centeno's stepfather does not know sign language, and so Centeno's mother interprets for him when he communicates with Centeno. SER123. Only when she is not present does he write notes to Centeno. SER124. As for the therapist, it is true that Centeno used note writing with her on one occasion. As the therapist explained, though, she used note writing only because of a "misunderstanding" about whether an interpreter would be present: "I was under the understanding that he had access to an interpreter every time he comes, so we didn't make any arrangement on our part to have that." SER233. When Centeno realized no interpreter would be present, "he wanted to just reschedule," which the therapist did after meeting with him only "briefly." SER233. Centeno's interaction with the therapist demonstrates not the effectiveness of note writing, but rather just how important it was for him to have an interpreter for effective communication. UPS SCS seeks to divert attention from Centeno's problems participating in meetings without an interpreter present by repeatedly downplaying the significance of the weekly meetings. According to UPS SCS, attending the meetings was not an "essential" part of Centeno's job; he simply was "invited" to attend the meetings "in order to foster a collegial environment" within the accounting department. SCS Br. at 12; see also SCS Br. at 14-15 (accounting department employees were to attend weekly meetings only "if they were available"); SCS Br. at 37 (discussing the "informal weekly meetings") (emphasis added); SCS Br. at 40 (Centeno not disciplined for missing meetings).<1> Schulz, who actually ran the weekly meetings, described the meetings very differently. For her, there was no wavering about the mandatory nature of the weekly meeting; "[t]he employees are expected to attend the meetings." 2ER108; see also id. ("As an employee he's expected to attend."); 2ER109 (when an employee "says he's not coming, I called it insubordination"). Indeed, the form that Schulz filled out and marked with the handwritten word "insubordination" made very clear Schulz's emphatic view that the meetings were not insignificant, for she stated that Centeno was "expected to attend [the] meetings as a condition of employment." SER295.<2> Week after week then, Centeno had to attend meetings but was unable to comprehend fully what was being said, and was unable to participate. As he put it, "I could not really understand what was going on." 2ER31-328. What Centeno needed, but was never given for weekly meetings, was an ASL interpreter. See 2ER36 ("ASL is better for me get more understand"). UPS SCS argues repeatedly that Centeno was able to perform the essential functions of his job, and that note-writing and other steps UPS SCS took therefore must have been effective. SCS Br. at 27-30.<3> Indeed, UPS SCS cites to a decision from outside this Circuit to argue that "there can be no triable issue of failure to accommodate because . . . the accommodations SCS did provide enabled Centeno to perform . . . the essential functions of his . . . job." SCS Br. at 28. As the Commission explained in its opening brief at 28-31, the ADA's accommodation requirement is not limited to essential job functions, but extends to ensuring that a disabled employee enjoy equal benefits and privileges of employment. This understanding of the ADA is based on the language of the statute, applicable regulations, and past precedent of this Court. See 42 U.S.C. §§ 12112(a), 12112(b)(5)(A); 29 C.F.R. § 1630.2(o)(1)(iii); Buckingham v. United States, 998 F.2d 735, 741 (9th Cir. 1993). UPS SCS's argument, that this Court should adopt a narrow understanding of the ADA, therefore must be rejected. 2. Centeno needed an interpreter to understand certain written materials. UPS SCS argues that Centeno did not request an interpreter to help him understand written materials, and that the ADA does not require UPS SCS to have the "clairvoyance" to understand that he needed an interpreter. SCS Br. at 42. UPS SCS's argument is without merit. Centeno told UPS SCS officials in clear fashion that he did not understand certain written materials. For example, Centeno wrote in a letter to UPS SCS officials that he had difficulty understanding the harassment policy and stated specifically that "ASL is better for me get more understand." 2ER36; see also id. ("I have to hard commutative [sic] with you about harassment because I have able to read it"). The letter describes how UPS SCS officials tried to talk to him about the harassment policy without an interpreter present, and even made an attempt to explain certain words to him. Id. The letter emphasizes, though, that "I am not good writing I know I am bad level of English." Id. Centeno thus informed UPS SCS officials of his need for an interpreter to understand written materials. There is considerable evidence in the record that Centeno informed UPS SCS officials of other occasions when he did not understand written materials. See, e.g., 2ER52, 54, SER202 (Centeno indicated he did not understand Chan's notes); 2ER112 (Centeno told Schulz he did not understand a safety document); 2ER42-44 (Centeno did not understand trade secrets document); 2ER38-40 (Centeno informed officials he did not understand harassment policy). UPS SCS itself documented Centeno's problems with written communications on a form filled out by HR Manager Ayonna Hammond: "does not understand/comprehend some written communication." SER268. Clairvoyance was not necessary for UPS SCS to know that Centeno needed assistance. UPS SCS argues that it did not need to provide an interpreter because Centeno did not specifically request one for help with written materials. UPS SCS argues in particular that Centeno never indicated to Chan that "he needed a sign language interpreter to explain her written summaries" of the weekly meetings. SCS Br. at 15. This argument misses the point, for Centeno did not want an interpreter to help him understand Chan's notes from the weekly meetings; he wanted an interpreter at the meetings themselves. As for other written materials, Centeno expressed that he did not understand them, and he likewise expressed that he understands ASL far better than he does written English. Whether or not Centeno specifically requested an interpreter each time he told UPS SCS officials he did not understand a document is immaterial because the law requires that an employer make reasonable accommodations to "the known physical or mental limitations" of a disabled employee. 42 U.S.C. § 12112(b)(5)(A). There can be no dispute that Centeno's limitations were known to UPS SCS, and this knowledge triggered UPS SCS's obligation to provide an accommodation or, at a minimum, to discuss with Centeno what accommodation he needed. See Humphrey v. Mem'l Hosps. Ass'n, 239 F.3d 1128, 1137 (9th Cir. 2001) ("Once an employer becomes aware of the need for an accommodation, that employer has a mandatory obligation under the ADA to engaged in an interactive process with the employee to identify and implement appropriate reasonable accommodations."); see also Zivkovic v. S. Calif. Edison Co., 302 F.3d 1080, 1089 (9th Cir. 2002) (employer must pursue accommodation once "an employer recognizes the employee needs an accommodation"). Once UPS SCS became aware that providing information to Centeno in written English was not working, it had the obligation to pursue alternatives. As this Court emphasized in Humphrey, "the employer's obligation to engage in the interactive process extends beyond the first attempt at accommodation and continues . . . where the employer is aware that the initial accommodation is failing and further accommodation is needed." Humphrey, 239 F.3d at 1138. Summary judgment on this ground therefore was improper as a matter of law. 3. Centeno needed an interpreter to understand certain training materials. The Commission's complaint alleged that UPS SCS failed to provide Centeno with an interpreter for training. After the complaint was filed, in September 2007, UPS SCS provided an interpreter to help Centeno understand Microsoft Excel training materials, which was years after UPS SCS first identified proficiency in Excel as a skill Centeno needed and years after Centeno informed Chan he could not comprehend the on-line training program. UPS SCS responds that it is "aware of no case law . . . that imposes an "'on demand' requirement for reasonable accommodations." SCS Br. at 44. In fact, this Court and several other courts of appeals have held that a delay in providing an accommodation may violate the ADA, especially in a case such as this one, where the delay lasted years. See, e.g., Humphrey, 239 F.3d at 1137 ("The interactive process requires communication and good-faith exploration of possible accommodations between employers and individual employees, and neither side can delay or obstruct the process."); Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 312 (3d Cir.1999) (noting that a party that delays the "interactive process" of finding a mutually acceptable accommodation is not acting in good faith and may violate the ADA); Beck v. Univ. of Wisc. Bd. of Regents, 75 F.3d 1130, 1135 (7th Cir.1996) ("A party that obstructs or delays the interactive process is not acting in good faith.") (quoted in Humphrey, 239 F.3d at 1137). Therefore, where there was a considerable delay in providing an interpreter to assist with the Excel training, summary judgment was inappropriate as a matter of law. 4. There is sufficient evidence to permit a jury to decide whether punitive damages are appropriate in this case. UPS SCS argues that if this Court were to reverse the district court decision, it should also rule on the propriety of punitive damages. The district court made no ruling on the punitive damages issue. This Court likewise need not address the issue at this stage of the case, but may instead leave to the district court's discretion whether to instruct the jury on punitive damages. See generally Larez v. Holcom, 16 F.3d 1513, 1516, 1520-21 (9th Cir. 1994) (jury instructions, including punitive damages instructions, within the discretion of the district court). In any event, there is ample evidence that the punitive damages issue could properly be placed before the jury in this case. This Court has observed that "after Kolstad [v. American Dental Ass'n, 527 U.S. 526 (1999)], 'in general, intentional discrimination is enough to establish punitive damages liability.'" Hemmings v. Tidyman's Inc., 285 F.3d 1174, 1198 (9th Cir. 2002) (quoting Passantino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493, 515 (9th Cir. 2000)); see also Passantino, 212 F.3d at 515 (common element to situations not giving rise to punitive damage liability is that employer "reasonably believes that [its] conduct is lawful"). Specifically, there are three steps in evaluating the propriety of a punitive damage award. First, punitive damages should apply in intentional discrimination cases "where the plaintiff can show that the employer knowingly or recklessly acted in violation of federal law." Hemmings, 285 F.3d at 1197 (citing Kolstad, 527 U.S. at 535). Kolstad determined that "questions of malice and reckless indifference are subjective questions concerning the employer's motive or intent, rather than an objective inquiry into whether the employer's behavior is 'egregious.'" Hemmings, 285 F.3d at 1197 (citing Kolstad, 527 U.S. at 535-38). There is evidence in this case that Schulz had been advised that she should provide Centeno with an interpreter for meetings, but nonetheless decided not to do so. 2ER99-100 (Human Resources official Kaufman advised Schulz to provide interpreter but Schulz, who was higher ranking, rejected recommendation). A jury could reasonably conclude that Schulz acted with the requisite state of mind when she refused to provide an interpreter for Centeno. Cf. Peacock v. Duval, 694 F.2d 644, 646 (9th Cir. 1982) ("'the decision as to an employer's true motivation plainly is one reserved to the trier of fact' . . . [and so] summary judgment is inappropriate when 'questions of motive predominate'") (citations omitted). The second step in a punitive damage inquiry is whether the plaintiff can show that the discrimination is attributable to the employer, "using traditional agency principles, e.g., that a managerial employee acted within the scope of his or her employment." Hemmings, 285 F.3d at 1197 (citing Kolstad, 527 U.S. at 540- 41). Under Kolstad, 527 U.S. at 543, an employee need not be the employer's top management to be acting in a managerial capacity. Moreover, a manager acts within the scope of employment as long as the manager's action is the kind the manager is employed to perform, even if the manager takes actions specifically forbidden by the employer. Id. at 543-44. In this case, the evidence indicates that Schulz had the authority to approve or disapprove interpreters, and that she exercised that authority. 2ER105, 110. UPS SCS argues that Schulz and other UPS SCS managers were insufficiently senior for punitive damage liability to attach to their actions, suggesting that only the corporation's top officers could make UPS SCS liable for punitive damages. SCS Br. at 48-49. UPS SCS is confused about the punitive damages standard. The seniority of the decision-maker pertains not to the managerial capacity question, but rather to the third step of the punitive damages inquiry. That third step is the inquiry into whether an affirmative defense may be available to the employer. The defense is available if the employer has made "good faith" efforts to comply with Title VII, even if its efforts "were contrary to the actions of its managerial agents." Hemmings, 285 F.3d at 1197-98 (citing Kolstad, 527 U.S. at 545-46). This defense is "unavailable to the employer for the actions of agents sufficiently senior to be considered proxies." Hemmings, 285 F.3d at 1198 (citing Passantino, 212 F.3d at 516-17). The Commission acknowledges that the decision-makers in this case do not appear to be so high up in the company as to make them "proxies" for UPS SCS. In other words, the "good faith" defense is available to UPS SCS, if it can meet its burden of establishing, on summary judgment, that it satisfied the requirements of the affirmative defense. UPS SCS has not met that burden. Its brief asserts generally that it trained its human resource personnel on the ADA. SCS Br. at 50. UPS SCS does not explain how its policies were designed to ensure that officials such as Schulz, who outranked the human resources official, comply with the ADA. Because UPS SCS bears the burden of proof on this issue, summary judgment is inappropriate. See generally Provenz v. Miller, 102 F.3d 1478, 1492 (9th Cir. 1996) (where defendant seeks summary judgment on defense for which it bears the burden of proof, establishing the defense at the summary judgment stage is a "'heavy' burden"); Mateo v. M/S KISO, 805 F.Supp. 761, 775 (N.D.Cal. 1992) (explaining rationale for requiring the moving party to meet "a relatively heavier burden . . . [w]here the party moving for summary judgment will also bear the burden of proof at trial"). CONCLUSION The Commission and UPS SCS have told two very different stories in their briefs to this Court. UPS SCS describes an employee "happy" in his workplace and able to communicate adequately by using written notes, even during oral meetings. The Commission paints a very different picture, that of a deaf employee increasingly frustrated and unhappy with his inability to understand and participate in meetings, and with his inability to comprehend all the written materials given to him at work. There is considerable record evidence supporting the Commission's claim that UPS SCS failed to provide Centeno with reasonable accommodations. The Commission therefore urges 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 CAROLYN L. WHEELER Acting Associate 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 CERTIFICATE OF COMPLIANCE I hereby certify that the attached opening brief is proportionally spaced, has a typeface of 14 points, and contains 4,063 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). s/ Jennifer S. Goldstein CERTIFICATE OF SERVICE I hereby certify that on August 5, 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 From: JENNIFER GOLDSTEIN To: georgeabele@paulhastings.com CC: Goldman, Gayle; hollylake@paulhastings.com Date: 7/13/2009 1:31 PM Subject: EEOC v. UPS Supply Chain Solutions, No. 08-56874 (9th Cir.) Mr. Abele- We will be requesting a 14-day extension of time in which to file the EEOC's reply brief in the above-referenced case. The reply brief currently is due on July 23. Thank you. Jennifer Goldstein CERTIFICATION I hereby certify that this printed brief is identical to the version submitted electronically. s/ Jennifer S. Goldstein *********************************************************************** <> <1> Citing a district court decision from Kansas, UPS SCS argues that under the ADA a disabled employee may enjoy only those benefits and privileges of employment that are "significant." SCS Br. at 31. It is unclear what SCS means by "significant," and that word does not appear in the language of the ADA, in the ADA regulations, or in this Court's precedent. While it is true that the maxim de minimis non curat ("the law cares not for trifles") "is part of the established background of legal principles against which all enactments are adopted," Wisc. Dep't of Revenue v. Wrigley Co., 505 U.S. 214, 231 (1992), that does not indicate a Congressional intent to impose a heightened "significance" standard. Congress plainly intended that the ADA should extend broadly to ensure that disabled individuals have full access to the benefits and privileges of employment. 42 U.S.C. § 12112(a). Being able to understand and participate in weekly meetings where attendance was required plainly is a benefit and privilege of employment. <2> After seeking advice from the EEOC investigator, Centeno decided that he would opt not to attend meetings without an interpreter. 2ER57. SCS suggests some sort of malfeasance on the part of the EEOC investigator, citing to a regulation and Management Directive from which, according to UPS SCS, the investigator "strayed." SCS Br. at 14 n.6. UPS SCS appears not to understand the applicable federal laws, regulations, and rules. What UPS SCS cited were regulations and a directive that apply to a federal agency that is conducting the initial investigation when a federal EEO complaint has been lodged against the agency itself. The regulations instruct that the agency should investigate itself, but that it should be impartial in doing so. See 29 C.F.R. §1614.108(a) ("The investigation of complaints shall be conducted by the agency against which the complaint has been filed.") & (b) ("the agency shall develop a complete and impartial factual record upon which to make findings on the matters raised by the written complaint"); see also http://www.eeoc.gov/federal/md110.html. This private sector case proceeds under different regulations and methods of investigation, for the employer is not investigating itself. The EEOC, an independent entity, conducts the investigation. Furthermore, the investigator, while proceeding impartially, is accorded flexibility to resolve the matter even before the EEOC makes its finding. See 29 C.F.R. § 1601.20. <3> UPS SCS contends that in this appeal the Commission has "abandon[ed] its claim that SCS failed to provide Centeno with reasonable accommodations to enable him to perform the essential functions of his position." SCS Br. at 27. UPS SCS incorrectly characterizes the Commission's position in the district court. In the district court, the Commission plainly argued, as it does here, that Centeno was able to perform the essential functions of his job but that he needed an interpreter to enjoy equal benefits and privileges of employment. R.75 at 1-2, 16-20.