I. Background
Defendant manufactures, designs, and services aircraft for military and commercial operators in the United States and internationally. (Def.'s Loc. R. 56(a) 1 Stmt. [Doc. # 48-2] and Pl.'s Loc. R. 56(a)2 Stmt. [Doc. # 56] ¶ 1 (together referred to as "LR 56").) Plaintiff is a deaf individual who has been a Sikorsky employee for over thirty years, working as an Electrical Installer for most of that time (including currently). (LR 56 ¶¶ 6-7, 14.) His work record, including his spotless review and disciplinary record, is generally not in dispute. (Id. ¶¶ 10-17, 19, 21, 23, 57, 58.)
Plaintiff's primary and preferred language is American Sign Language. (Ex. 1 (Pl.'s Depo.) to Pl.'s Opp'n [Doc. # 56-1] at 31:12-13; Ex. 2 (Shepard-Kegl Report) to
Plaintiff's job includes participation in company-wide "All Hands" meetings, departmental meetings, daily "muster" meetings, meetings with supervisors, and various job and safety trainings. (LR 56 ¶¶ 59-61, 65, 100.) His job duties also include
Because of his communication limitations in English, Plaintiff has repeatedly requested sign language interpreters from his supervisors and managers at Sikorsky, as well as from human resources. (Id. at 252:15-273:21.) While Defendant has recently occasionally provided interpreters for company-wide "All Hands" meetings, and at least one training, Defendant has refused and/or failed to provide interpreters for most departmental meetings, and has never provided interpreters for daily "muster" meetings. (Id. at 209:7-21, 211:5-14:21; see also Ex. 7 (Brant Depo.) to Pl.'s Opp'n. at 28:13-19 (Sikorsky's way of accommodating Plaintiff was through a "standing policy" of providing interpreters for meetings of 50 to 200 people, such as All Hands meetings);
According to Defendant, for "anything that's beyond the job" Plaintiff "has the ability to meet one on-one to give him a good work environment" (id. at 75:18-76:8), and that all meetings can be "done one-on-one" after the fact (id. at 79:12-13). Defendant came up with a list of "suggestions and actions" to address Plaintiff's concerns, none of which involved providing an interpreter. (Ex. 8 (Lawrence Depo.) to Pl.'s Opp'n at 43:25-44:24.) Defendant instead provided other "modifications" (such as text-to-speech software, written materials, or meeting with Mr. Cadoret one-on-one after group meetings had occurred). (See LR 56 ¶¶ 67-73.)
Plaintiff is embarrassed by not being able to communicate in the workplace, and frustrated by Defendant's long delays and general failure to respond to his requests for accommodation. (See Brant Depo. at 31:13-32:23; Warren Depo. at 42:18-20, 53:22-54:8.) Plaintiff testified that he "got angry" and "got very depressed the last few years." (Pl.'s Depo. at 330:8-11.) Defendant's failure to accommodate Mr. Cadoret has caused him to feel limited in the workplace and has deterred him from
II. Discussion
The ADA and the Rehabilitation Act require employers to make "reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual." McBride v. BIC Consumer Mfg. Co. Inc. ,
Defendant argues summary judgment is appropriate on Plaintiff's failure to accommodate claim because: 1) Plaintiff does not need an interpreter to perform the essential functions of his job, 2) Plaintiff failed to properly exhaust his claim that he was denied equal access to benefits and privileges of employment, 3) Plaintiff's request for a full-time ASL interpreter is unreasonable as a matter of law, and 4) in 2017 Defendant made available a Video Remote Interpreting ("VRI") package giving Plaintiff access to on-demand video remote interpreters throughout his shift so there is no basis for hiring an interpreter.
A. Plaintiff Admits he can Perform the Essential Functions of his Job but Seeks Equal Access to Meetings and Trainings
Plaintiff is not arguing that he is unable to perform the essential functions of his job, and concedes he can perform them without accommodation. (Pl.'s LR ¶ 82.) Instead, and as discussed in more detail below, Plaintiff seeks access to equal benefits and privileges of his employment with Defendant, and specifically, an interpreter, so that he can participate in workplace functions including meetings and trainings, and to enable him to converse with supervisors and management. (Pl.'s Opp'n at 8.)
Additionally, the Ninth Circuit in U.S. EEOC v. UPS Supply Chain Solutions addressed a similar fact pattern in which a deaf individual alleged he was denied the benefits and privileges of employment, including participation in meetings and job trainings.
Defendant does not identify any facts establishing that Plaintiff does not require an ASL interpreter to participate in meetings and trainings. On the other hand, Plaintiff points to facts in the record which support the proposition that he does need an interpreter to participate. For instance, he quotes his expert in neurolinguistics and sign language, Dr. Shepard-Kegl, who summarized that Plaintiff is
a reasonably good lipreader one-on-one in well-lit and quiet settings, but cannot rely upon lipreading in the noisy environment he encounters in his workplace when interacting with peers and the people he was supervising.... His speech is fluctuating in intelligibility and when intelligible has many deaf speech characteristics that may make comprehension [difficult] for individuals less familiar with deaf speech. It also come[s] across as somewhat juvenilized (rife with speech errors) that could not allow him to present himself as the mature adult he is when using ASL.
(Shepard-Kegl Report at 81.)
Plaintiff further contends that the departmental meetings and, crucially, the daily muster meetings, require extensive verbal communication between multiple interlocutors
Despite the fact that Plaintiff concedes he can perform the essential functions of his job, there is a triable issue of fact with respect to whether Plaintiff required an ASL interpreter to access meetings and trainings in the workplace in order to receive equal benefits and privileges of employment.
B. Plaintiff Sufficiently Exhausted his ADA Claim
Defendant asserts for the first time in its Reply Brief that Plaintiff failed to include his "new legal theory" of being denied access to equal benefits and privileges of employment in his EEOC charge and thus failed to exhaust his administrative remedies.
In Mr. Cadoret's EEOC charge he alleged that throughout his
employment [he] made repeated requests for an American Sign Language interpreter to facilitate effective communication and [was] denied this auxiliary aid and service. In July of 2013 as well as on other occasions, [he] made a request for a Sign Language interpreter because [he] need[s] one to effectively communicate to Jim Brant, Manufacturing Manager who again refused this accommodation.
(Ex. H (EEOC Charge) to Def.'s Mot. for Summary Judgment.)
Defendant reasons that because the EEOC decision "makes no mention of ... Plaintiff's right to enjoy equal benefits and privileges of employment," the issue was not before it. According to Defendant, one would expect that where the EEOC promulgated these very regulations and regularly pursues claims based on denials of equal benefits and privileges, it would have discussed this issue if it believed the charge presented it. (Def.'s Reply at 7.) The EEOC decision reflects its determination that Defendant had provided other effective accommodations in lieu of a full-time interpreter and therefore did not discriminate against Plaintiff. The decision also specifically stated that "[n]o finding is made as to any other issue that might be construed as having been raised by this charge," recognizing the possibility that Plaintiff's charge might be read to include other issues not addressed by the EEOC in its decision. (Ex. M (EEOC Decision) to Def.'s Mot. for Summary Judgment.)
In addition, Defendant cites Howard v. UPS , which it contends "closely resembles" the fact pattern in this case.
In contrast with the administrative charge in Howard , which covered specifically and exclusively a single instance of a denial of an interpreter for a training session, Mr. Cadoret has broadly alleged he made "repeated requests ... to facilitate effective communication" which were denied. (EEOC Charge.)
C. Defendant Fails to Establish That Plaintiff's Request is Unreasonable as a Matter of Law
Defendant claims that Plaintiff's request necessarily requires hiring another full-time employee, and that this request is therefore unreasonable as a matter of law. However, the cases Defendant cites for this proposition do not support its position. Even if Plaintiff were requesting a full-time interpreter,
Defendant points to cases rejecting employees' requests for accommodation in the form of hiring another employees in order to help the plaintiff employee perform his or her job. (See Def.'s Mot. to Dismiss at 22-23 (citing cases).) For instance, in Fiorillo v. United Technologies Corporation the plaintiff employee complained that she was overworked and requested as accommodation that Sikorsky hire or assign additional employees to reduce her workload. No. 3:13-CV-1287 (VLB),
In both of these cases, as well as the others Defendant cites, the courts found that hiring an additional employee did not constitute a reasonable accommodation. However, none of these cases involved an employee's request for an interpreter. Instead, they are all based on "the principle that under no circumstances can a reasonable accommodation involve the elimination of an essential job function." Hunt-Watts ,
On the other hand, Plaintiff calls the Court's attention to Searls v. Johns Hopkins Hospital , in which the plaintiff, a deaf nurse, requested a full time interpreter.
Indeed, the language of the ADA itself identifies interpreters as a potentially reasonable accommodation. See
Circumstances can be conceived in which the provision of interpreters would be less obviously reasonable, or even plainly unreasonable , as when technical material cannot be fully and accurately communicated by ASL.... And not every person who is deaf or hard of hearing is able to understand ASL. Logistical constraints arising out of the job itself might also make ASL
interpretation infeasible or unwieldy. But a record would be required to document such extraordinary circumstances.
D. Defendant's VRI Accommodation
Defendant began providing VRI services for Plaintiff's benefit in 2017, which it contends was a reasonable accommodation and thus that it is not required to provide Plaintiff with an interpreter. This argument can be summarily disposed of because this accommodation was not made available to Plaintiff until at least April or May of 2017, while Plaintiff's Complaint, filed in September, 2015, relates to conduct which occurred long before the provision of the VRI services. (See LR 56 ¶¶ 79-80.) Thus, while relevant to Plaintiff's request for injunctive relief, the VRI accommodation has no impact on whether Plaintiff might recover damages for the period prior to its availability covered in his EEOC charge. See Buckhannon Bd. & Care Home v. W. Va. Dep't of Health & Human Res. ,
III. Conclusion
For the foregoing reasons, Defendant's Motion for Summary Judgment is DENIED.
IT IS SO ORDERED.
Notes
Plaintiff's Complaint also alleges a claim of retaliation for asserting his ADA rights, and Defendant's Motion for Summary Judgment seeks dismissal of this claim. Plaintiff has since withdrawn that claim and it is dismissed with prejudice. Therefore, the sole remaining claim is the failure to accommodate claim alleged under both the ADA and Section 504 of Rehab Act.
Plaintiff asserts these modifications were inconsistent and ineffective. For instance, with respect to the follow-up one-on-one meetings, he testified that "they had to come to me at the end, you know. They didn't have enough time to talk to me. And it was very confusing for me because I was not there, I didn't get the feedback." (Pl.'s Depo. at 145-47.) The written materials, he stated, were provided only for a short time and then "faded away." (Id. at 285-86.) Additionally, Defendant never inquired as to Plaintiff's reading level, and instead simply assumed he could read all of the materials. (Lawrence Depo. at 57:23-58:9.) And, the early attempts at text-to-speech programs were unsuccessful. (LR 56 ¶¶ 70-71.)
Summary judgment is appropriate where, "resolv[ing] all ambiguities and draw[ing] all permissible factual inferences in favor of the party against whom summary judgment is sought," Holcomb v. Iona Coll. ,
Defendant does not contend it would suffer an undue hardship if required to provide the interpreter. It also conceded at oral argument that it receives "federal financial assistance," as required under Section 504 of the Rehab Act, see
In fact, Defendant's own Motion cites Noll , which as articulated above, specifically states that "a reasonable accommodation is one that 'enable[s] an individual with a disability who is qualified to perform the essential functions of that position ... [or] to enjoy equal benefits and privileges of employment.' " (Def.'s Mot. for Summary Judgment at 20 (citing Noll ,
The Court there was aided by the fact that the parties agreed "[t]he dispute center[ed] 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." Id. at 1106.
Defendant claims it only raised the argument in its Reply in order to respond to Plaintiff's clarification in his Opposition that his claim focused on access to equal benefits and privileges of employment, and not the traditional failure to provide accommodations to enable an individual to perform the essential functions of his or her job. However, Plaintiff's Complaint alleges "Defendant discriminated against Plaintiff on the basis of his disability by discriminating against him in regard to the terms, conditions, and privileges of employment in violation of
This is relevant only for Plaintiff's ADA claim, as exhaustion is not required under Section 504 of the Rehab Act. See Worthington v. City of New Haven , No. 3:94-CV-00609(EBB),
Defendant also claims that Plaintiff's initial charge was specific to a request for a full-time interpreter. Thus, Defendant suggests Plaintiff cannot now make what Defendant views as a different claim for something less than a full-time interpreter. Even if Plaintiff did request a full-time interpreter in his EEOC Charge (despite there being no language to that effect), this would be a difference in degree, not kind, and the Charge would still have put Defendant and the EEOC on notice of Plaintiff's claim.
In a footnote, the district court observed that the record was devoid of specific dates and circumstances supporting the plaintiff's "vague generalized assertion [in his civil complaint] that he was 'denied privileged and benefits of employment.' " Howard ,
The district court also emphasized the factual context of the case, noting that the "modifications were reasonable in light of the requirement of the full-time driver position, in which plaintiff would be expected to be able to communicate effectively with customers, the public, and law enforcement without the aid of an ASL interpreter." Id. at 356.
Plaintiff's EEOC Charge alleged he was discriminated on the basis of his disability because he was denied repeated requests for an interpreter. The operative provision of the ADA specifically prohibits discrimination on the basis of disability in regard to "job, training, and other terms, conditions, and privileges of employment."
The parties dispute whether in fact Plaintiff is requesting a full-time interpreter. Defendant maintains that in order to accommodate Plaintiff's desire to have interpreters at "group meetings, important meetings with supervisors or management, and trainings," it would be required to hire someone full-time. (Pl.'s Sur-Reply at 15.) Whether Plaintiff's request, in effect, requires a full-time interpreter is not dispositive because even a full-time interpreter may not be an unreasonable request as a matter of law, as shown in the discussion above.
In Noll , the employer had provided the deaf employee with access to ASL interpreters as an accommodation, which the Court found was an effective, and thus reasonable, accommodation, despite not being what the plaintiff had requested.