In EEOC v. UPS Supply Chain Solutions, (— F.3d —-, C.A.9 (Cal.), August 27, 2010), the United States Court of Appeals for the Ninth Circuit considered whether a deaf employee stated a cause of action for discrimination under the Americans with Disabilities Act (“ADA”) against his employer for failing to make reasonable accommodations or for providing modifications that the employer knew or should have known were ineffective. The court of appeals held the trial court erred in granting summary judgment in favor of the employer and that the employee can proceed on his discrimination claim.
Facts
Mauricio Centeno (“Centeno”) has been deaf since birth and American Sign Language (“ASL”) is his primary language. In many instances, there is no one-to-one correspondence between the English language and ASL. Centeno was employed by UPS as a junior clerk in the accounts payable division from 2001 to 2009. No later than 2002, Centeno’s supervisors were aware of his inability to read written English very well. Centeno’s supervisors expected him to attend the accounting department’s weekly and monthly meetings, the topics of which included particular employment benefits and privileges. The primary accommodation provided to Centeno were notes of the meetings written in English. Centeno testified he “felt frustrated” he did not receive the notes until after the meetings and sometimes did not understand them. From 2002-2005, he testified he requested on many occasions to have an ASL interpreter present at these meetings. In 2005, UPS occasionally provided an interpreter during the monthly meetings and in 2006 provided one for every monthly meeting. No interpreter, however, was provided for the weekly meetings. In 2007, Centeno met with human resources to discuss the necessity of an interpreter at the weekly meetings and to discuss his lack of understanding of some written communications.
In Centeno’s 2001-2003 performance evaluations, his supervisors expressed a goal of improving his skills in the Excel spreadsheet program. However, he explained he could not read the on-line training program. In 2007, UPS finally provided him with an interpreter to help him with the Excel training.
In 2005, Centeno had an incident with colleagues in the lunchroom. During a meeting with human resources to discuss the incident, an interpreter was provided to ensure he understood. In a subsequent meeting without an interpreter, he was given a written warning about his behavior. Centeno stated he did not understand the written warning and requested an interpreter. In a follow-up meeting, an interpreter was provided to clarify any issues and at that time Centeno confirmed he understood. Also in 2005, Centeno was instructed to complete a questionnaire on harassment awareness and then “sign off and date the ‘Professional Conduct and Anti-Harassment Policy.'” After Centeno underlined and circled what he did not understand, he was instructed to consult a dictionary. UPS did not provide Centeno with an interpreter to translate the documents.
In 2006, the Equal Employment Opportunity Commission (“EEOC”) filed a complaint alleging UPS engaged in unlawful employment practices under the ADA by failing to reasonably accommodate Centeno’s deafness. The trial court granted summary judgment in favor of UPS.
Decision
The issue before the court was whether UPS provided Centeno with reasonable accommodations under the ADA for particular employment benefits and privileges including meetings, job training, and comprehending UPS’s anti-harassment policy. Pursuant to the ADA, discrimination “includes an employer’s ‘not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified . . . employee, unless [the employer] can demonstrate that the accommodation would impose an undue hardship on the operation of [its] business.’” Although UPS does not argue that Centeno’s requested accommodations created an undue hardship, it does argue it reasonably accommodated him because “its modifications were effective.”
Reasonable modifications are defined in the EEOC regulations as “[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.” A modification or adjustment that is ineffective “will not accommodate a disabled individual’s limitations.” Further, when an employee requests an accommodation, the employer is required to engage in an “interactive process” with the employee to decide the appropriate reasonable accommodation. This “interactive process” requires “(1) direct communication between the employer and employee to explore in good faith the possible accommodations; (2) consideration of the employee’s request; and (3) offering an accommodation that is reasonable and effective.”
The court of appeals held there is a genuine issue of material fact regarding whether the written communications that included agendas, notes, and written summaries “contained information sufficient to enable a person reading those documents to enjoy the same benefits and privileges of attending and participating in the weekly meetings as other employees.” Stated differently, a genuine issue of material facts existed as to whether the modifications provided by employer “would allow a deaf employee . . . to enjoy the benefits and privileges of attending and participating in the departmental meetings.” The appellate court also found a genuine issue of material fact regarding whether UPS knew or should have known that the modifications were not effective for Centeno. A reasonable trier of fact could conclude that when Centeno requested a different modification, UPS knew or should have known the modification being offered was ineffective. The court further found a genuine issue of fact regarding whether UPS knew or should have known that “the modifications for the weekly meetings, which relied on Centeno’s capacity to understand written English, were ineffective.” Finally, the appellate court found a trier of fact could reasonably find UPS failed to engage in the “interactive process in good faith.”
The ADA prohibits employers from discriminating against employees as it relates to job training. The evidence shows UPS waited more than two years to provide Centeno with an interpreter for the Excel spreadsheet program training. Consequently, the court found a genuine issue of material fact existed as to whether UPS “acted in good faith in the interactive process and whether UPS delayed providing Centeno with the accommodation he needed in order to receive the training.”
As to the anti-harassment policy, the court found a genuine issue of material facts existed as to whether the modifications provided by UPS were effective in making sure Centeno comprehended the policy. Taking the evidence in the light most favorable to Centeno, a reasonable trier of fact could conclude that the modification UPS offered of consulting an English-language dictionary was ineffective.
For the above reasons, the court reversed the district court’s granting of the summary judgment and remanded for further proceedings.
Questions
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