Nigro v. Sears, Roebuck & Co.: Plaintiff’s Uncorroborated Testimony is Sufficient to Raise Genuine Issues of Material Fact Precluding Summary Judgment

Under the California Fair Employment and Housing Act (FEHA), a plaintiff establishes a prima facie case of disability discrimination by showing that (1) he suffers from a disability, (2) he is otherwise qualified to do his job, and (3) he was subjected to adverse employment action (e.g. terminated) because of his disability or the employer failed to reasonably accommodate the plaintiff’s disability. Moreover, FEHA requires employers to engage “in a timely, good faith, and interactive process to determine effective accommodations.”

In Nigro v. Sears, Roebuck, & Co., the Ninth Circuit decided whether the evidence proffered by Plaintiff in support of his opposition to Defendant’s summary judgment motion, his deposition testimony and declaration, was sufficient to raise genuine issues of material fact on Plaintiff’s claims of discrimination under FEHA. The Court held that Plaintiff’s evidence was sufficient to raise a genuine dispute of material fact on the issue of Defendant’s discriminatory animus, it’s failure to accommodate Plaintiff, and unwillingness to engage in the interactive process.

Plaintiff suffered from ulcerative colitis, which caused him to lose sleep at night. As an accommodation, he requested to report for his shifts three hours later than scheduled. In turn, Defendant terminated him for failing to comply with its attendance and leave policies. As a result, Plaintiff filed suit in state court alleging under FEHA that Defendant discriminated against him because he was disabled, Defendant failed to accommodate his disability, and it failed to engage with Plaintiff in an interactive process to determine a possible accommodation for Plaintiff’s disability. Defendant had the matter removed to federal court pursuant to diversity of citizenship jurisdiction and moved for summary judgment. In support of his opposition, Plaintiff submitted his own deposition testimony, along with a declaration describing a conversation between Plaintiff and one of his supervisors, the latter stating, “If you’re going to stick with being sick, it’s not helping your situation. It is what is. You’re not getting paid and you’re not going to be accommodated.”

In granting Defendant’s summary judgment motion, the District Court found that Plaintiff failed to show (1) a causal relationship between his termination and his disability, (2) that Defendant failed to accommodate his disability, and (3) that Defendant failed to engage in the interactive process. Moreover, the District Court disregarded Plaintiff’s evidence on the basis that “the source of this evidence is [his] own self-serving testimony.”

The Ninth Circuit reversed the District Court’s decision, reasoning that, although the source of the evidence may have some bearing on its credibility and on the weight it may be given by a trier of fact, the lower court may not disregard a piece of evidence at the summary judgment stage solely based on its “self-serving” nature. Moreover, “because the ultimate question is one that can only be resolved through a searching inquiry—one that is most appropriately conducted by a factfinder upon a full record,” it should not take much for a plaintiff in a discrimination case to overcome a summary judgment motion. As concerns this case, Plaintiff’ testimony, though uncorroborated, was based on personal knowledge, legally relevant, and internally consistent.