Why it matters

Reversing summary judgment in favor of the employer, a panel of the Ninth Circuit Court of Appeals allowed a former employee’s discrimination suit against Sears to move forward. The suit involved an employee’s allegations that the national retailer refused to accommodate his ulcerative colitis and fired him because of his disability. According to the plaintiff’s complaint, his supervisor told him: “If you’re going to stick with being sick, it’s not helping your situation. It is what it is. You’re not getting paid, and you’re not going to be accommodated.” The federal appellate panel refuted the lower court’s concern that the employee’s evidence was “self-serving,” writing that it is “entirely besides the point that some of [the plaintiff’s] evidence was self-serving, as will often be the case in a discrimination case that an employee has something to say about what company representatives said to him or her.” Such evidence is admissible, the court said, but the weight afforded to such testimony must be assessed by a trier of fact and not determined at the summary judgment stage. The opinion serves as a reminder to employers that an employee’s allegations of discrimination—particularly at the early stages of a case—are afforded a great deal of deference by the court. Or as the Ninth Circuit wrote, “[i]t should not take a whole lot of evidence to establish a genuine issue of material fact in a disability discrimination case, at least where the fact issue on discrimination is genuine and the disability would not preclude gainful employment of a person working with accommodation.”

Detailed discussion

Anthony Nigro filed suit against Sears, Roebuck and Co. in May 2011. He alleged that the national retailer violated California’s Fair Employment and Housing Act (FEHA) in three ways: by discriminating against him on the basis of his ulcerative colitis, by declining to accommodate his disability, and by failing to engage in an interactive process to determine possible accommodations for his disability.

To support his claim, Nigro submitted a declaration stating that on June 29, 2009, he had a phone conversation with the general manager of the Carlsbad store where he worked. According to Nigro, the GM told him that “[i]f you’re going to stick with being sick, it’s not helping your situation. It is what it is. You’re not getting paid, and you’re not going to be accommodated.”

At his deposition, Nigro testified that the district facilities manager told him not to be concerned about his pay issue because a district general manager had indicated that Nigro was “not going to be here anymore.” Nigro’s direct supervisor testified that the district GM said to him, referring to Nigro, “I’m done with that guy.”

After Sears successfully moved the case to federal court, a judge granted summary judgment in the employer’s favor, writing that “the source of this evidence is Nigro’s own self-serving testimony.”

But on appeal to the Ninth Circuit Court of Appeals, the federal appellate panel rejected this analysis. Declarations are often self-serving because the party submitting it is trying to support his or her position, the court said. Instead of tossing the evidence outright, courts must consider the weight afforded to declarations and similar testimony.

“The source of the evidence may have some bearing on its credibility, and thus on the weight it may be given as a trier of fact,” the three-judge panel wrote. “But that evidence is to a degree self-serving is not a basis for the district court to disregard the evidence at the summary judgment stage.”

Similarly, the testimony from Nigro’s direct supervisor should have been allowed in as a party admission, the court added.

“Nigro’s declaration and deposition testimony, albeit uncorroborated and self-serving, were sufficient to establish a genuine dispute of material fact on Sears’s discriminatory animus,” the court said. “Because [the direct supervisor’s] statements and the evidence proffered by Nigro could allow a reasonable jury to infer that Sears terminated Nigro because of his disability, there is a genuine issue of material fact.”

The plaintiff’s claims relating to accommodation should also have survived, the panel determined. Nigro claimed that his ulcerative colitis caused him loss of sleep at night and that his direct supervisor allowed him to start his shifts at 9 a.m. instead of 6 a.m. The district court judge found that because the supervisor allowed the delayed start, Nigro had no basis for his claim that Sears failed to accommodate him.

Not so fast, the Ninth Circuit wrote. Nigro also told the court that the store’s general manager did not approve the 9 a.m. accommodation and required him to arrive at 6 a.m. “every day.” Nigro’s testimony that this unwillingness to accommodate a later start time “chilled” the “exercise of his right to request this accommodation,” and that he continued to report to work at 6 a.m. was sufficient to allow his claim to survive. “A reasonable jury could infer that [the general manager’s] unwillingness to accommodate compelled Nigro to arrive at 6 a.m. every day despite his need to arrive later, so summary judgment is improper here,” the panel wrote.

As for Nigro’s claim based on the interactive process—or alleged lack thereof—the court held that the purported statement by the general manager that he would not accommodate Nigro in the future, supported by the testimony from Nigro’s direct supervisor, “created a genuine issue of material fact that renders summary judgment improper.”

The panel took the opportunity to emphasize that “it should not take much for a plaintiff in a discrimination case to overcome a summary judgment motion. … Here, Nigro presented several state law claims that deserved trial. It should not take a whole lot of evidence to establish a genuine issue of material fact in a disability discrimination case, at least where the fact issue on discrimination is genuine and the disability would not preclude gainful employment of a person working with accommodation.”

Acknowledging that Sears put forward “substantial evidence” showing a nondiscriminatory reason for terminating Nigro’s employment, the court added that the employer could prevail at trial. “[B]ut the statements attributed to Sears’s supervisors by Nigro are, if not dispositive, sufficient to raise a genuine issue for the trier of fact,” the panel said.

“It is, moreover, entirely besides the point that some of Nigro’s evidence was self-serving, as it will often be the case in a discrimination case that an employee has something to say about what company representatives said to him or her,” the court emphasized. “Such testimony is admissible, though absent corroboration, it may have limited weight. But again, the weight is to be assessed by the trier of fact at trial, not to be a basis to disregard the evidence at the summary judgment stage.”

To read the opinion in Nigro v. Sears, Roebuck and Co., click here.