FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION, No. 08-56874
Plaintiff-Appellant, D.C. No.
2:06-cv-06210-
v. ABC-E
UPS SUPPLY CHAIN SOLUTIONS, OPINION
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Audrey B. Collins, Chief District Judge, Presiding
Argued and Submitted
March 4, 2010—Pasadena, California
Filed August 27, 2010
Before: Alex Kozinski, Chief Judge, William A. Fletcher,
Circuit Judge, and John R. Tunheim, District Judge.*
Opinion by Judge Tunheim
*The Honorable John R. Tunheim, United States District Judge for the
District of Minnesota, sitting by designation.
12891
12894 EEOC v. UPS SUPPLY CHAIN
COUNSEL
Jennifer S. Goldstein (argued), EEOC, Washington, D.C.,
Anna Y. Park, EEOC, Los Angeles, California, for the appel-
lant.
George W. Abele (argued), PAUL HASTINGS JANOVSKY
& WALKER, LLP, Los Angeles, California, for the appellee.
OPINION
TUNHEIM, District Judge:
The Equal Employment Opportunity Commission
(“EEOC”) filed suit under the Americans with Disabilities
EEOC v. UPS SUPPLY CHAIN 12895
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 discrimi-
nated against Centeno by failing to make reasonable accom-
modations. We therefore reverse and remand.
I. BACKGROUND
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. Pot-
ter, 271 F.3d 1184, 1199 (9th Cir. 2001) (W. Fletcher, J., dis-
senting); 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 dis-
pute 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 accommoda-
tions for certain benefits and privileges of employment that
12896 EEOC v. UPS SUPPLY CHAIN
did not affect his ability to complete his job duties. Those
benefits include weekly meetings, job training, and under-
standing the company’s sexual harassment policy.
A. Meetings
From 2002 until December 2007, the accounting depart-
ment, 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 lan-
guage. When Chan presented at a meeting, she provided Cen-
EEOC v. UPS SUPPLY CHAIN 12897
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 hand-
written notes she took during the meeting. During her presen-
tations, 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 informa-
tion 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 inter-
preter 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 meet-
ing 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
12898 EEOC v. UPS SUPPLY CHAIN
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 doc-
ument 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 informa-
tion 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 meet-
ings. 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 opportu-
nity to understand that he’s expected to attend, in this case, a
meeting.”
EEOC v. UPS SUPPLY CHAIN 12899
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.1 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 testified that she was frustrated by
repeatedly getting these kinds of messages from Centeno.
In March 2007, Centeno had a meeting with human
resources to discuss his need for an ASL interpreter at the
weekly meetings. UPS provided an ASL interpreter for the
human resources meeting. Centeno stated that he does not
understand some written communications, and he requested
that UPS provide an interpreter for all team meetings that last
more than fifteen minutes. Centeno’s supervisors would regu-
larly tell him to use an English-language dictionary to look up
words he did not understand. Centeno requested another
meeting with Chan and human resources where an interpreter
would be present. During that meeting, Centeno stated that
“he does not understand or comprehend some written commu-
nication.”
1
UPS filed a motion to strike several of EEOC’s citations to the excerpts
of record, arguing that “[t]he EEOC improperly relies on facts that were
ruled inadmissible by the trial court.” But facts cannot be ruled inadmissi-
ble; only evidence can. And UPS conceded the undisputed nature of the
facts the EEOC cites in its briefs. Contrary to UPS’s disingenuous motion,
the EEOC does not cite to any exhibits the district court excluded, but to
UPS’s own statement of undisputed facts. The EEOC properly relied on
UPS’s factual admissions.
12900 EEOC v. UPS SUPPLY CHAIN
B. Job Training
In Centeno’s 2001, 2002, and 2003 performance reviews,
Centeno’s supervisors identified a goal of improving Cen-
teno’s skills in using the Excel spreadsheet program. Schulz
testified that supervisors “repeatedly” recommended that Cen-
teno take Excel training. In April 2005, Chan reminded Cen-
teno of this goal. Centeno replied that he had tried to use the
on-line training program for Excel, but could not read it. In
a performance review for the period from September 1, 2006,
through August 31, 2007, UPS included the following nota-
tion in Centeno’s development plan: “Excel knowledge—take
a course (reminder again).” UPS set December 31, 2007, as
the deadline for Centeno to complete the Excel course. In
September 2007, UPS for the first time provided an ASL
interpreter to assist Centeno with Excel training.
C. Discipline and the Anti-Harassment Policy
On April 4, 2001, Centeno signed UPS’s Professional Con-
duct and Anti-Harassment Policy. He testified that he did not
understand the policy, but that “somebody said look that up
in the dictionary, but [he] didn’t understand the words. [He]
didn’t understand after that.”
In late April 2005, Centeno had an incident with co-
workers in the lunchroom. Some of his co-workers were
banging on the table, and Centeno told them to stop. He
became angry, “said an inappropriate word and made an inap-
propriate gesture,” and left.
On May 9, 2005, Centeno had a meeting with Cheryl Nishi-
mura, a supervisor in the human resources department, to dis-
cuss the incident. Nishimura provided an ASL interpreter “to
be sure that Mr. Centeno understood [Nishimura] and [Nishi-
mura] understood Mr. Centeno.” Centeno apologized and
acknowledged that he had used inappropriate language and an
obscene gesture.
EEOC v. UPS SUPPLY CHAIN 12901
On May 11, 2005, in a meeting without an ASL interpreter,
Chan and Nishimura gave Centeno a written warning about
his behavior in the lunchroom. Nishimura’s manager “said
that it was appropriate to type out the explanation and that an
interpreter didn’t need to be present” for the meeting with
Chan. The written warning stated that Centeno’s “behavior
and actions have been interpreted as inappropriate.” It stated
that “[i]mmediate, marked and sustained improvement of
[Centeno’s] conduct/behavior is required. Any repetition or
continuation of the behavior noted above, or any other serious
deficiency in your performance will result in further disciplin-
ary action, which may include termination of your employ-
ment.”
During the meeting on May 11, Centeno wrote a note indi-
cating that he did not understand the written warning. Nishi-
mura and Chan instructed Centeno to underline the words he
did not understand. Among the words he underlined were “in-
appropriate,” “forbidden,” “conduct,” and “termination.”
According to Nishimura, “[t]hen we wrote notes and brought
a dictionary to explain the meaning of words [Centeno] did
not understand.”
Centeno signed a clean copy of the warning, “acknowledg-
[ing] receipt of a copy of this Written Warning,” but he testi-
fied that he did not understand the warning. He recalled that
Chan or Nishimura told him to use a dictionary to look up the
words that he did not understand, but he “didn’t understand
the words. [He] didn’t understand after that.” On May 16,
2005, Centeno indicated that he wanted to meet with human
resources about the written warning because he did not under-
stand it. Nishimura understood that Centeno “was trying to
tell [her] that he didn’t understand the written warning.”
Nishimura “was surprised because [she] felt that at the May
11th meeting [Centeno] had understood.”
On May 19, 2005, Centeno met with Nishimura and Chan,
with an ASL interpreter present, “to clarify any issues about
12902 EEOC v. UPS SUPPLY CHAIN
the discipline—specific to [Centeno’s] understanding about
the discipline.” Centeno confirmed, through the interpreter,
that he understood.
On September 6, 2005, Schulz emailed Centeno to let him
know about a Harassment Awareness Quotient Questionnaire
and UPS’s Professional Conduct and Anti-Harassment Policy.
Schulz instructed Centeno to complete the Questionnaire, and
then to “sign off and date the ‘Professional Conduct and Anti-
Harassment Policy.’ ” Centeno underlined many words in the
Anti-Harassment Policy that he could not understand, and he
informed Chan that he did not understand them. He then gave
Schulz the Policy with the underlined words, and Schulz
understood that Centeno did not understand the underlined
words. Centeno also circled eleven of the twenty true/false
statements on the Questionnaire, indicating that he did not
understand those prompts and could not determine whether
they were true or false. Chan directed Centeno to use a dictio-
nary to look up the words he did not understand in the Policy
and on the Questionnaire. UPS did not provide Centeno with
an interpreter to translate those documents.
D. Procedural Background
On September 28, 2006, the EEOC filed a complaint alleg-
ing that UPS engaged in unlawful employment practices on
the basis of disability by failing to reasonably accommodate
Centeno’s deafness. On April 14, 2008, UPS filed a motion
for summary judgment as to all claims.
The district court granted UPS’s motion for summary judg-
ment, concluding that UPS “undertook the interactive process
with Centeno, and provided a variety of accommodations that
effectively enabled Centeno to perform the functions of his
job and that gave him access to the privileges and benefits of
his employment.” The court found that providing “note-
writing, agendas, and summaries in connection with the
weekly meetings discharged [UPS]’s duty under the ADA as
EEOC v. UPS SUPPLY CHAIN 12903
a matter of law.” The court further found that “[t]here is no
evidence that Centeno missed out on any significant privi-
leges or benefits-related information due to [UPS]’s failure to
provide him with an ASL interpreter for any meetings.” With
respect to the Anti-Harassment Policy, the court found that
“[t]here is no evidence that these materials were ‘training,’ or
that they related to Centeno’s job functions or to the privi-
leges or benefits of his employment.” The Court found that
there was no evidence that Centeno “tried to use the dictio-
nary but it was ineffective.”
The district court issued its final judgment on September
18, 2008, and the EEOC filed a timely notice of appeal on
November 14, 2008.
II. Discussion
A. Standard of Review
“We review de novo the district court’s grant of summary
judgment. We view the evidence in a light most favorable to
the non-moving party and decide whether there are any genu-
ine issues of material fact and whether the district court cor-
rectly applied the substantive law.” Fed. Trade Comm’n v.
Stefanchik, 559 F.3d 924, 927 (9th Cir. 2009) (citation and
footnote omitted).
B. Analysis
The ADA prohibits discrimination “against a qualified indi-
vidual on the basis of disability in regard to . . . job training[ ]
and other terms, conditions, and privileges of employment.”
42 U.S.C. § 12112(a). The parties agree that Centeno is a
qualified individual and that the focus of his claim is on the
“privileges of [his] employment.”
[1] “[T]he ADA says that ‘discrimination’ includes an
employer’s ‘not making reasonable accommodations to the
12904 EEOC v. UPS SUPPLY CHAIN
known physical or mental limitations of an otherwise quali-
fied . . . employee, unless [the employer] can demonstrate that
the accommodation would impose an undue hardship on the
operation of [its] business.’ ” U.S. Airways, Inc. v. Barnett,
535 U.S. 391, 396 (2002) (quoting 42 U.S.C.
§ 12112(b)(5)(A) (alterations and emphases in original)). UPS
does not argue here, and did not argue before the district
court, that Centeno’s proposed accommodations would
impose an undue hardship. The court’s analysis therefore
focuses on whether, in regard to the privileges of Centeno’s
employment, UPS provided reasonable accommodations to
Centeno’s known physical limitations. UPS’s argument on
appeal is that it reasonably accommodated Centeno because
its modifications were effective.
[2] EEOC regulations define the term reasonable accom-
modation 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.”
29 C.F.R. § 1630.2(o)(1)(iii). “An ineffective ‘modification’
or ‘adjustment’ will not accommodate a disabled individual’s
limitations.” Barnett, 535 U.S. at 400. Ineffective modifica-
tions therefore are not accommodations. Cf. Humphrey v.
Mem’l Hosps. Ass’n, 239 F.3d 1128, 1137 (9th Cir. 2001)
(“An appropriate reasonable accommodation must be effec-
tive, in enabling the employee to perform the duties of the
position.” (internal quotation marks omitted)). “The reason-
ableness of an accommodation is ordinarily a question of
fact.” Lujan v. Pac. Mar. Ass’n, 165 F.3d 738, 743 (9th Cir.
1999).
[3] “[O]nce an employee requests an accommodation . . . ,
the employer must engage in an interactive process with the
employee to determine the appropriate reasonable accommo-
dation.” Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1089
(9th Cir. 2002). This interactive process “requires: (1) direct
communication between the employer and employee to
EEOC v. UPS SUPPLY CHAIN 12905
explore in good faith the possible accommodations; (2) con-
sideration of the employee’s request; and (3) offering an
accommodation that is reasonable and effective.” Id. “An
employer is not obligated to provide an employee the accom-
modation he requests or prefers, the employer need only pro-
vide some reasonable accommodation.” Id. (internal quotation
marks omitted). EEOC interpretive guidance states that “the
employer providing the accommodation has the ultimate dis-
cretion to choose between effective accommodations, and
may choose the less expensive accommodation or the accom-
modation that is easier for it to provide.” Interpretive Guid-
ance on Title I of the Americans with Disabilities Act, 29
C.F.R. Part 1630, App., 56 Fed. Reg. 35,726-01, 35,749 (July
26, 1991).
[4] “[T]he duty to accommodate is a continuing duty that
is not exhausted by one effort.” Humphrey, 239 F.3d at 1138
(internal quotation marks omitted). “[T]he employer’s obliga-
tion to engage in the interactive process . . . continues when
the employee asks for a different accommodation or where
the employer is aware that the initial accommodation is fail-
ing and further accommodation is needed.” Id. The continuing
obligation to engage in the interactive process “fosters the
framework of cooperative problem-solving contemplated by
the ADA” because it “encourag[es] employers to seek to find
accommodations that really work,” and because it “avoid[s]
the creation of a perverse incentive for employees to request
the most drastic and burdensome accommodation possible out
of fear that a lesser accommodation might be ineffective.” Id.
1. Departmental Meetings
[5] UPS concedes that understanding and participating in
mandatory departmental meetings are “benefits and privileges
of employment,” even when those meetings have no bearing
on an employee’s job performance. See 29 C.F.R.
§ 1630.2(o)(1)(iii). UPS further concedes that its obligation to
make reasonable accommodations includes an obligation to
12906 EEOC v. UPS SUPPLY CHAIN
provide modifications that enable an employee “to enjoy
equal benefits and privileges of employment” as other
employees, including the benefits and privileges of under-
standing and participating in such meetings. See id.
§ 1630.2(o)(1)(ii)-(iii). UPS argues that there is no genuine
dispute regarding whether the modifications of providing
Centeno with agendas, contemporaneous notes, and written
summaries for the weekly departmental meetings were effec-
tive.
[6] First, we conclude that there is a genuine issue of fact
regarding whether the agendas, contemporaneous 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. These meetings, which lasted
up to one hour, had agendas that contained only cursory infor-
mation about the topics to be covered. The contemporaneous
notes also contained limited information. Centeno testified
that when Chan took contemporaneous notes, she “wasn’t
writing what was going on in the meeting” and that her writ-
ing “was kind of limited.” Centeno further explained in his
affidavit that, regardless of who took notes, “[t]hey would
write just short little words and keep telling me to wait. I
could not really understand what was going on.” Centeno also
testified that during meetings he did not have an opportunity
to express his questions because he did not have an ASL
interpreter. Centeno also noted that when he received meeting
summaries, he “did not get the information at the same time”
as other members of the department and he did not have the
opportunity to ask questions or share his ideas with the rest
of the department. Chan testified that her summary notes were
incomplete and did not always contain the questions and
answers from the meetings. In summary, there is a genuine
issue of material fact regarding whether these modifications,
viewed as a whole, would allow a deaf employee, even one
who was fluent in written English, to enjoy the benefits and
privileges of attending and participating in the departmental
EEOC v. UPS SUPPLY CHAIN 12907
meetings. This is especially true in light of Centeno’s limited
proficiency in written English.
[7] Second, we conclude that there is an issue of fact
regarding whether UPS was aware or should have been aware
that the modifications were ineffective as to Centeno. As UPS
notes, the ADA does not require an employer to be clairvoy-
ant regarding the effectiveness of a modification. See Conn-
een v. MBNA Am. Bank, N.A., 334 F.3d 318, 331 (3d Cir.
2003); Hedberg v. Ind. Bell Tel. Co., 47 F.3d 928, 934 (7th
Cir. 1995). But the employer has a continuing obligation to
engage in the interactive process “when the employee asks for
a different accommodation or where the employer is aware
that the initial accommodation is failing.” Humphrey, 239
F.3d at 1138. Viewing the facts in the light most favorable to
Centeno, a reasonable trier of fact could conclude that Cen-
teno asked for a different modification and that UPS was
aware or should have been aware that the modifications it was
offering were ineffective. Cf. Daviton v. Columbia/HCA
Healthcare Corp., 241 F.3d 1131, 1134 (9th Cir. 2001) (en
banc) (“The Hospital staff knew or should have known that
. . . a sign language interpreter was needed for effective com-
munication between Hospital personnel and the Davitons.”).
As an initial matter, UPS was aware of Centeno’s limited
proficiency in written English. Schulz testified that she was
aware that Centeno had difficulty understanding written
English. In a performance review dated August 5, 2001,
Schulz recommended that Centeno “[t]ake an English writing
class to improve his writing style.” Centeno reminded his
supervisors in writing, “I am not good writing I know I am
bad level of English.” Subsequent to the disciplinary action
that UPS took in response to the May 2005 lunchroom inci-
dent, Chan and Nishimura should have been aware that Cen-
teno was unable to understand many of the critical
expressions contained in his written warning, even with the
assistance of an English-language dictionary. A March 16,
2007 human resources “accommodation checklist” states that
12908 EEOC v. UPS SUPPLY CHAIN
one of Centeno’s “current limitations” is that he “does not
understand/comprehend some written communication.”
Moreover, there is a genuine issue of fact regarding
whether UPS was aware or should have been aware that the
modifications for the weekly meetings, which relied on Cen-
teno’s capacity to understand written English, were ineffec-
tive. See Zivkovic, 302 F.3d at 1089; Humphrey, 239 F.3d at
1138. Centeno complained in writing that Chan’s contempo-
raneous notes were “not enough for me” and that “ASL is bet-
ter for me get more understand.” Centeno testified that he told
Chan that he did not understand her handwritten notes.2 Cen-
teno also testified that he told Chan that he did not understand
some of the summaries Chan emailed to him. Centeno per-
sisted in requesting an interpreter for the weekly meetings
until he stopped attending. In March 2007, after Centeno con-
tinued to complain about UPS’s failure to provide an inter-
preter for the weekly meetings, he met with Chan and a
human resources representative and informed them that “he
does not understand or comprehend some written communica-
tion.” A reasonable trier of fact could conclude from this evi-
dence that UPS knew or should have known that the agendas,
contemporaneous notes, and meeting summaries were not
effective modifications.
We further note that the trier of fact could conclude that
UPS failed to explore possible accommodations in good faith.
See Zivkovic, 302 F.3d at 1089. ADA regulatory guidance
states:
Although in some circumstances a notepad and writ-
ten materials may be sufficient to permit effective
communication, in other circumstances they may not
be sufficient. For example, a qualified interpreter
may be necessary when the information being com-
2
Chan disputes this testimony, but this is a factual dispute not suitable
for resolution on summary judgment.
EEOC v. UPS SUPPLY CHAIN 12909
municated is complex, or is exchanged for a lengthy
period of time. Generally, factors to be considered in
determining whether an interpreter is required
include the context in which the communication is
taking place, the number of people involved, and the
importance of the communication.
Duffy v. Riveland, 98 F.3d 447, 456 (9th Cir. 1996) (quoting
28 C.F.R. Part 35, App. A). Evidence in the record suggests
that in determining whether to provide an ASL interpreter for
weekly meetings, UPS did not consider the nature of the
information being communicated in a particular meeting or
the length of the meeting, but instead relied on relatively arbi-
trary considerations. Schulz testified that she decided to
approve an interpreter for the monthly meetings but not for
the weekly meetings because she “felt once a month was suf-
ficient.” A trier of fact could conclude that UPS refused to
provide an interpreter for regular meetings that were less than
two hours long because there was a two-hour minimum
charge for ASL interpreter services. If UPS failed to consider
whether the circumstances of a weekly meeting necessitated
the use of an ASL interpreter, then the trier of fact could find
that UPS failed to engage in the interactive process in good
faith.
[8] In summary, an employer has discretion to choose
among effective modifications, and need not provide the
employee with the accommodation he or she requests or pre-
fers, but an employer cannot satisfy its obligations under the
ADA by providing an ineffective modification. Where, as
here, there is a disputed issue of fact regarding whether the
modifications the employer selected were effective, and
where the trier of fact could reasonably conclude that the
employer was aware or should have been aware that those
modifications were not effective, summary judgment is not
appropriate.
12910 EEOC v. UPS SUPPLY CHAIN
2. Job Training
[9] The ADA prohibits employers from discriminating
against individuals “in regard to . . . job training.” 42 U.S.C.
§ 12112(a). The record demonstrates that as early as April
2005, when Chan reminded Centeno of the goal of improving
his skills by taking Excel training, Centeno informed Chan
that he could not use the on-line training program because he
could not read it. Yet Centeno’s performance reviews contin-
ued to list “Excel knowledge” under Centeno’s development
plan. UPS waited for more than two years to provide Centeno
with an ASL interpreter for Excel training.
[10] “The interactive process requires communication and
good-faith exploration of possible accommodations between
employers and individual employees, and neither side can
delay . . . the process.” Humphrey, 239 F.3d at 1137 (empha-
sis added). With respect to the Excel training, there is a genu-
ine issue of material fact regarding 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.
3. Anti-Harassment Policy
There is a genuine issue of material fact regarding whether
UPS’s modifications were effective in ensuring that Centeno
understood the company’s Anti-Harassment Policy.
During the May 11, 2005 disciplinary meeting with Chan
and Nishimura, Centeno consulted an English-language dic-
tionary in an effort to understand his written warning about
the lunchroom incident. Soon after this meeting, Centeno
notified Chan, Schulz, and Nishimura in writing that he did
not understand the warning. When Nishimura received this
notification, she was surprised because she had mistakenly
concluded that the modifications she and Chan provided in
the May 11 meeting had been effective. In response to Cen-
EEOC v. UPS SUPPLY CHAIN 12911
teno’s notification, UPS set up a meeting with an ASL inter-
preter present to clarify Centeno’s “understanding about the
discipline.”
Four months later, when Centeno reviewed the Anti-
Harassment Policy and Questionnaire, he informed Schulz
and Chan that he did not understand many of the words in the
Policy and more than half of the questions in the Question-
naire. Schulz knew that Centeno did not understand the words
he had underlined. In response, Chan did not provide an inter-
preter, but instead directed Centeno to use an English-
language dictionary to look up the words he did not under-
stand. UPS argues that Centeno must have been aware of his
rights under the Policy because, in compliance with the Pol-
icy, he reported the lunchroom incident to human resources.
This fact is not sufficient to show that Centeno understood the
Policy.
[11] Viewing this evidence in the light most favorable to
Centeno, a reasonable trier of fact could conclude that as of
September 2005, UPS was aware or should have been aware
that Centeno needed an ASL interpreter to understand the
Anti-Harassment Policy. Even if Centeno did not expressly
request an interpreter to understand the Policy, a reasonable
trier of fact could conclude that UPS was aware or should
have been aware that the modification it offered—consulting
an English-language dictionary—was not effective. See Ziv-
kovic, 302 F.3d at 1089; Humphrey, 239 F.3d at 1138.
Therefore summary judgment is not appropriate.
Conclusion
[12] Because the EEOC has raised triable issues of fact as
to whether UPS provided Centeno with reasonable accommo-
dations and as to whether UPS knew or should have known
that its modifications were ineffective, we reverse the district
12912 EEOC v. UPS SUPPLY CHAIN
court’s summary judgment and remand for further proceed-
ings.
We deny UPS’s motion to strike, see Kirshner v. Uniden
Corp. of Am., 842 F.2d 1074, 1077 (9th Cir. 1988); Fed. R.
App. P. 10(a), and we decline to address the issue of punitive
damages, see Nagrampa v. MailCoups, Inc., 469 F.3d 1257,
1293 (9th Cir. 2006) (en banc).
REVERSED and REMANDED for further proceedings
consistent with this opinion. Costs to Appellant EEOC.