Appeal from the United States District Court for the Central District of California. Audrey B. Collins, Chief District Judge, Presiding. D.C. No. 2:06-cv-06210-ABC-E UPS.
The opinion of the court was delivered by: Tunheim, District Judge
Argued and Submitted March 4, 2010 -- Pasadena, California.
Before: Alex Kozinski, Chief Judge, William A. Fletcher, Circuit Judge, and John R. Tunheim, District Judge.*fn1
The Equal Employment Opportunity Commission ("EEOC") filed suit under the Americans with Disabilities Act ("ADA") alleging that UPS Supply Chain Solutions ("UPS") failed to provide reasonable accommodations for Mauricio Centeno's deafness because UPS did not provide him with a sign language interpreter for certain staff meetings, disciplinary sessions, and training. The district court granted summary judgment to UPS on all claims. The EEOC appeals the district court's decision. We find that there are genuine issues of material fact as to whether UPS unlawfully discriminated against Centeno by failing to make reasonable accommodations. We therefore reverse and remand.
Mauricio Centeno has been deaf since birth and his first and primary language is American Sign Language ("ASL"). ASL is a visual, three-dimensional, non-linear language, and its grammar and syntax differ from the grammar and syntax of English and other spoken languages. See Swenson v. Potter, 271 F.3d 1184, 1199 (9th Cir. 2001) (W. Fletcher, J., dissenting); Calloway v. Boro of Glassboro Dep't of Police, 89 F. Supp. 2d 543, 547 n.9 (D.N.J. 2000). In many cases, there is no one-to-one correspondence between signs in ASL and words in the English language. See King v. Bd. of Educ. of Allegany County, 999 F. Supp. 750, 755 (D. Md. 1998) ("[E]very English word does not have a corresponding sign [in ASL], and every sign does not have a corresponding English word."). Centeno reads and writes in English at the fourth or fifth grade level. Centeno's supervisors were aware that Centeno was not able to read written English very well no later than 2002.
From 2001 until 2009, Centeno worked as a junior clerk in the accounts payable division of the accounting department at a UPS facility in Gardena, California. The parties do not dispute that Centeno was able to complete his job duties without the assistance of an ASL interpreter. The dispute centers on whether UPS provided Centeno with reasonable accommodations for certain benefits and privileges of employment that did not affect his ability to complete his job duties. Those benefits include weekly meetings, job training, and understanding the company's sexual harassment policy.
From 2002 until December 2007, the accounting department, which includes the accounts payable division and the accounts receivable division also, held weekly meetings. Beginning in May 2004, the accounts payable division held separate monthly meetings. Centeno's supervisors expected him to attend the weekly and monthly meetings.
Jenny Chan was Centeno's direct supervisor, and Gertraud Schulz was Chan's manager and supervisor. Schulz usually hosted the weekly departmental meetings, and Chan hosted them when Schulz was not available. The weekly meetings typically took more than thirty minutes, and some meetings took more than an hour. In advance of the meetings, Schulz sent out a written agenda, typically consisting of "three, four, five one line descriptions of topics" to be covered. Topics included changes to employee benefits, quarterly earnings, vacation and holiday scheduling, new human resources rules, safety regulations, time-reporting, a charitable fundraising drive, an employee opinion survey, the company's code of business conduct, computer virus scans, referral bonuses, and possible reorganizations and reductions in force. At these meetings, employees had the opportunity to make general announcements. Some meetings included group discussions.
Chan hosted the monthly meetings of the accounts payable division. Chan distributed an agenda at the beginning of each monthly meeting, and she presented information at these meetings.
The primary accommodation that UPS provided to Centeno at these meetings took the form of notes in the English language. When Chan presented at a meeting, she provided Cen- teno with information by email and with typewritten notes that she created after the meeting. She based these notes on her memory of what was said in the meeting and on any handwritten notes she took during the meeting. During her presentations, however, Chan wrote down only the main point of what she was saying, and she did not always write down the questions and answers from the meeting.
Centeno testified that he "felt frustrated" with the system of Chan emailing him her notes after the meetings. When Chan emailed Centeno her meeting notes, sometimes Centeno went to her and wrote notes telling her that he did not understand what Chan had written. Centeno also "did not like getting the notes after the meeting because [he] did not get the information at the same time as everyone else in the accounting department. [He] did not get a chance to ask questions or give [his] ideas with everyone else."
Centeno "asked many times to have an ASL interpreter to sign for [him] at meetings." On August 5, 2002, Centeno wrote a letter to Chan and Schulz requesting an ASL interpreter for future meetings. He requested ASL interpreters for the meetings several more times in 2003, 2004, and 2005.
During Centeno's September 2004 performance evaluation, after UPS had denied Centeno's initial requests for an ASL interpreter, Centeno requested that UPS provide him with a contemporaneous record of the meetings. UPS implemented this accommodation in October 2004 by arranging for an employee to sit next to Centeno and write out notes of what was happening during the meeting so that Centeno could read them. One employee who was enlisted to take notes in Chan's place complained to Chan that it was "so much to write." Once this contemporaneous note-taking system was in place, Chan stopped regularly providing Centeno with written meeting summaries after the meetings. According to Centeno, this note-taking system "did not work very well. They could not write out everything. They would write just short little words and keep telling me to wait. I could not really understand what was going on." Centeno sometimes fell asleep at monthly meetings when there was no interpreter. A 2003 document includes Chan's "notation to remind Mr. Centeno to stay awake at work." In March 2005, Centeno sent an email to an investigator from the EEOC saying, "I want interpreter with me for commcaite [sic] with them for discuss more than writing the note is so slow and waste time for them have wait listen from me." According to Chan, UPS's legal department told Ebonye Kaufman in human resources that UPS did not need to provide an interpreter for regular meetings that were less than two hours long, and Kaufman shared this information with Chan. According to Chan, Kaufman directed Chan to take notes at meetings and to email those notes to Centeno.
In 2005, UPS occasionally provided Centeno with an ASL interpreter for the monthly meetings, and starting in July 2006, UPS provided an interpreter for each monthly meeting. Kaufman testified that she strongly recommended to Schulz that UPS provide an ASL interpreter for departmental meetings. Schulz testified that "[i]t was [her] decision" to approve an interpreter for the monthly meetings but not for the weekly meetings.
An EEOC investigator instructed Centeno not to attend meetings where there would be no ASL interpreter. On April 25, 2005, Centeno emailed Chan and Schulz to inform them that he would not attend that week's meetings because there would be no interpreter. Someone from UPS's human resources department filled out a "Pittsburgh form" to create a formal record of Centeno's refusal to attend the meetings. In handwriting underneath this typewritten text is the word "insubordination." Chan, Schulz, and Centeno initialed the form. The form was included in Centeno's personnel file, and, according to Schulz, it was designed "to give him an opportunity to understand that he's expected to attend, in this case, a meeting."
Because Schulz told Centeno that he was required to attend the meetings that week, Centeno attended them. Centeno then reiterated that he was not going to attend any more meetings where there would not be an interpreter, and he stopped attending weekly meetings after April 2005. Schulz testified that even though she regarded the meetings as mandatory, she was told that if Centeno "doesn't come it's okay."
In July 2006, Centeno complained to Chan by email that she had not sent him the meeting summary until after he had left work.*fn2 As a result, Centeno had not been aware that two visitors would be coming through the facility the following day, and he had not had an opportunity to clean his work area or dress accordingly. Chan ...