In the context of employment discrimination litigation, one of the most challenging tasks for both the aggrieved employee and his or her attorneys is to find evidence beyond the employee’s own statements. For example, when you informed your supervisor of your disabled status over the phone, and your supervisor verbally declined your accommodation requests, how can you prove this conversation happened? Your supervisor may deny the conversation took place.
The Ninth Circuit Court of Appeals recently announced good news for workers who must rely upon their own testimony to survive an employer’s motion for summary judgment. In Nigro v. Sears, Roebuck and Co., 778 F.3d 1096 (9th Cir. 2015), the Ninth Circuit reversed the district court’s summary judgement in favor of Sears on the plaintiff’s claims under California’s Fair Employment and Housing Act (FEHA). The Court held that the District Court erred in disregarding the plaintiff’s declaration and deposition testimony because it was “self-serving.” As the Ninth Circuit explained, “declarations are often self-serving, and this is properly so because the party submitting it would use the declaration to support his or her position.” Id. at 1098. Ultimately, the fact “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.” Id. In Nigro, the plaintiff’s testimony – plus a statement of a witness that the supervisor had admitted “I’m done with that guy” about the plaintiff – were sufficient to overcome summary judgment on Nigro’s disability-based wrongful termination claim.
The Ninth Circuit reiterated in Nigro the important holding that it should not take much for employees in a discrimination case to overcome a summary judgment motion.
The Ninth Circuit also reversed summary judgment on Nigro’s FEHA claims based upon denied disability accommodation and failure to engage in the interactive process. The District Court concluded that there were no genuine issues of material fact because Nigro “continued to be accommodated…despite ‘any actual or perceived irritation’” by the boss. Id. at 1099. But the Ninth Circuit found, based upon the plaintiff’s testimony, that the supervisor’s boss “chilled” Nigro’s right to use an accommodation and stifled the interactive dialogue, and as such, that summary judgment should have been denied on both counts. Id. Nigro’s testimony that he spoke to the supervisor’s boss about accommodations in a single phone conversation was enough to obligate Sears to participate in the interactive process.