F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

A N T H O N Y V. N I G R

O , Plaintiff-Appellant
,

v

.

S E A R S , R O E B U C K A

N D C O ., Defendant-Appellee

. N o. 12-57262

D.C. No. 3:11-cv-01541- MMA-J MA

OPI NI ON

A ppeal from the United States District Court for the Southern District of California Michael M. Anello, District J udg e, Presiding

Arg ued and Submitted F ebruary 5
, 2015—Pasadena California

F iled F ebruary

25, 2015

B efore: Stephen Reinhardt, Ronald M. Gould, Circuit J udg es, and Robert W . Gettleman, Senior District J udg e. *

O pinion by

J udg e Gould

* T h e Ho n o rab le Ro b ert W

. Gettlem an , S en i o r District J u d g e fo r th e U.S. District Co u rt fo r th e No rth ern D istrict o f Illin ois, sittin g b y d esig n atio n

.N I G R O V

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SUMMARY * *

Disability Discrim ination

The panel reversed the district court’s summary judg ment in favor of Sears, Roebuck and Co

. i n a former e mploy ee’s diversity action alleg ing disability discrimination c laims under California’s F a ir Employ ment and Housing Act.

The panel held that the employ ee presented triable c laims under F EHA: (1) that Sears discriminated ag ainst the employ e e because of his d isability ; (2) that Sears declined to accommodate the employ ee’s disability ; a n d ( 3) that Sears did not e ng ag e in an interactive process to determine possible accommodation for the employ ee’s disability

. The panel noted that it was beside the point that some of the e mploy ee’s evidenc e w as self-serving because such testimony was admissible, thoug h absent c orroboration, it may have limited weig ht by the trier of f

act at trial. The panel reman d ed for further proceeding s.

COUNSEL

Kirk D. Hanson (arg

u ed), L a w Offices o f K irk D. Hanson, San Dieg o, California, for Plaintiff-Appellant.

Anne-Marie W ag g oner (argu e d), L ittler Mendelson, P.C., W a lnut Creek, California; J ody A. L andry
, Cary n M.

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.N I G R O V

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Anderson, L ittler Mendelson, P.C., San Dieg o, California, for Defendant-Appellee.

OP INION

GOUL D, Circuit J udg e :

An t h o ny Nig ro appeals the district court’s entry o f summary judg ment in favor of his former employ er Sears, Roebuck a

nd Co. (“Sears”) in Nig ro’s d iversity action ag ainst Sears, alleg ing three disability discrimination claims under the California F air Employ ment and H ousing Act (“F EHA”). W e have jurisdic tion under 28 U.S.C. § 1 2 91. W e must decide whether there are any g enuine issues of material fact

on Nig ro’s f

our discrimination claims. W e conclude that the

answ e r i s y e s, so we reverse and remand for f urther proceeding s.

I n May 2011, Nig ro filed suit ag ainst Sears in California state court, claiming under F E HA ( 1) that Sears discriminated ag ainst him because of his disability
, (2) that Sears declined to accommodate his disability
, and (3) that Sears d i d not eng ag e in an interactive process to d etermine possible accommodation for his disability

. Nig ro also alleg ed that Sears wrong fully terminated his employ m e n t in violation o f California public policy

. Sears removed the action to federal court. Sears the n moved for summary judg ment o n each o f Nig ro’s claims, and the district court g ranted Sears’s motion on November 28, 2012. Nig ro appealed.

W e review the district court’s g rant of summary judg ment de novo

. Del. Valley Surgical S u p p l y , I nc. v. Johnson & Johnson
, 523 F. 3 d 1 1 1 6, 1119 (9th Cir. 2008). “ W e mustN I G R O V

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determine, viewing the evidence in th e lig ht most favorable to [ Nig ro]
, t he non-moving p arty , w hether there are any g enuine issues of material fact and whether the district court correctly applied the substantive law.” Olsen v. Idaho St. Bd. of Med.
, 363 F .3d 916, 922 (9th Cir. 2004). A factual is sue i s g enuine “if the evidence is such that a reasonabl e j u r y could return a v erdict for the nonmoving party .” Anderson v

. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986).

I

To esta b lish a prima facie c ase of d isability discr imination under F EHA, Cal. G ov’t Code § 12940(a), Nig ro must show that “(1) h e suffers from a disability ; (2) he is otherwise q

u alified to do his job; and, (3) he was subjected to adverse employ

ment action b e c ause of his disability

. ” Faust v. California Portland Cement C o. , 58 Cal. Rptr. 3d 729, 745 (Cal. Ct. App. 2007). T he district court found that Nig ro did not establish element (3), i.e., Nig ro did not show

a c ausal r elationship between his termination by Sears and his disability

. 1

To establish that he was terminated by Sears because o f his disability
, Nigr o submitted a declaration stating that on J u n e 29, 2009, he had a phone conversation with L arry F oer s t er, General Manag er of the Sears Carlsbad store at which N ig ro worked
, a nd F o erster told him that “[ i] f y ou’re

1 Sears ch allen g es th e d istrict co u rt’ s d eterm in atio n th at Nig ro
e s tab lish ed elem en t (2 ) of h i s claim

. On th is i ssu e, w e ag re e w i t h t h e d istrict co u rt. N i g r o estab lish ed th at w ith reaso n ab le acco m m o datio n s,
su ch as a later start tim e an d —d u ri n g sev ere f

lare- u p s—f in ite m ed i cal leav es, h e w as ab le to p erf o rm th e essen tial f

u n ctio n s o f h is p o sitio n

. H e

w as, th eref

ore, “ o t h erw ise q u alif

ied ” t o d o h is j o b

. S

ee Hu mp hrey v. Mem’l Ho sp i ta ls Ass’n , 2 3 9 F.3 d 1 1 28 , 1 1 3 5

– 3 6 (9 th Cir. 2 0 0 1).N I G R O V

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g oing to stick with being sick, it’s not h elping y our situation. I t is what it is. You’re not g etting paid, a nd y ou’re not g oing to be accommodated.” Nig ro also testified in his deposition that Sears’s District F acili ties Manag er Alan Kamisug u told him n ot to be concerned a b out his pay issue because Chris Adams, Sears’s District G e n e ra l Manag er, had indicated to Kamisug u that Nig ro was “not g oing to be here any more.” The di s t r i ct court disreg arded the evidence proffered b y Nig ro, on the basis that “the source of this evidence is Nig ro’s own self-serving

testimony .”

W e have previously a c knowledg ed that declara t ions a re often self-serving
, and this is pro p erly so because the party submitting it would use the d e claration to support his or her positio n

. S .E.C. v. Phan
, 500 F .3d 895, 909 (9th Cir. 2 007) (holding that district court erred in disreg arding d eclarations

as “uncorroborated and self-serving ”). The source of the evidence may have some bearing on its credibi l i t y , and thus

on the weig ht it may be g iven by a trier o f f a ct. B ut that evidence is to a deg ree self-serving is n o t a basis for the d i s trict court to disreg ard the evidence at the summ a r y judg ment stag e

. See 10A Charles Alan W rig ht & A r t h u r R. Miller, Federal Practice & P rocedure § 272 7 ( 3 d ed. 2 011) (“[ F ] acts a sserted by the party opposing the [ s u m m a ry ju dg ment] motion, if supported b y affidavits or other evide n t i ar y material, a

re reg arded as true.”). Here, Nig ro’s declaration and de p o sition testimony
, a lbeit uncorroborated and self-s e r v i ng , w ere sufficient to establish a g enuine dispute of material fact on S e ar s’s discriminatory animus. W e conclude that the district court erred in disr e g a r d i ng Nig ro’s testimony in g ranting Sears’s motion for summary judg ment.N I G R O V

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Nig ro’s direct supervisor J ason F oss also t e s tified that Chris Adams said to h i m—referring to N ig ro—that “I ’m done with that g uy .” The d istrict court found F o ss’s testimony to be i n a d m issible hearsay

. B ut F oss’s statement attributed to Adams should be admissible as a party admission. See F ed. R. Evid. 801(d)(2)(D). B ecause Adams’s statements and the evidence proffered by Nig ro could allow a reasonable jury to infer that Sears terminated Nig ro because o f h is disability
, there is a g enuine issue of material f act. W e re v e rse the district court’s entry of s u m mary judg ment on Nig ro’s discrimination claim. 2

II

The d istrict court a lso g r anted su mmary judg ment in favor of Sears on Nig ro’s claim that Sears faile d t o a ccommodate his disability

. The elements of a f a i l u r e to accommodate claim are: “ (1) the plaintiff has a disability under the F EHA, (2) the plaintiff is qualified to perform the essential functions of the position, and (3) the employ er fa i l e d to reasonably accommodate the plaintiff’s d isability .” Scotch v. Art Inst. of California-Orange Cnty., I nc. , 93 Cal. Rptr. 3d 338, 358 (Cal. Ct. A pp. 2009). B e cause u lcerative colitis caused Nig r o loss of sleep at nig ht, h is direct supervisor F oss had allowed Nig r o to start his shifts at 9:00 A.M. instead of 6:00 A.M. a s need ed

. The district court concluded that there were no g enuine issues of material fact because Nig ro continued to be

2 B ecau se w e h old th at th e d istrict co u rt’ s g r a n t o f su m m ary j u dg m en t to Sears o n Nig ro ’ s disab ility d iscrim in atio n claim u n der FEHA w as im p ro p er, w e r e v e rse th e d istrict co u rt’ s g ran t o f su m m ary j u d g m en t to Sears o n Nig ro ’ s d isab i lity d iscrim in atio n c l a i m u n d er Calif o rn ia p u b l ic p o licy as w ell. S

ee City o f Mo o rp a r

k v. S u p erio r Co u rt , 9 59 P

. 2 d 7 5 2
, 7 6 3 (Cal. 1 9 98 ) (“ [ D ]isab ility d iscrim in atio n can f o rm th e b asis o f a
co m m o n law w ro n g f u l d isch arg e claim .”).N I G R O V

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accommodated by F oss, d espite “any actual or p erceived irritation” by F oss’s supervisor F oerster. W e disag ree.
Althoug h Nig ro testified t h at F oss “continued to accommodate him,” the record also r eveals that F oerster did not approve this accommodation and required Nig ro to arrive

on time, a t 6 :00 A

. M

. , “every d ay .” Nig ro claims that F oerster’s unwilling ness to accommodate his later start time “chilled” the “ex ercise of his rig ht to request this accommod a t i on.” T h is claim is supported by Nig ro’s testimony that he c a me to work at 6:00 A.M. every day after he returned to work in May 2009, d espite the f act that he felt

a s t h o u g h “he needed to come in later every d ay .” A reasonable j ury could infer that F oerster’s unwilling ness to accommodate compelled Nig ro to arrive at 6 A.M. every day despite his n eed to arrive lat e r , so summary judg ment is improper here.

III

F inally
, the district court g ranted summary judg ment on Nig ro’s claim that Sears did not eng ag e i n a n interactive process as required by F EHA. See Cal. Gov’t Code § 12940 (requiring that an emp loy er eng ag e in a “timely
, g ood faith, [ and] interactive process

. . . to determine effective reasonable accommodations”). The district court found that Nig ro never put Sears on n otice that he needed an accommodation, and that e v en if his J une 29, 2009 phone conversation with F oerster put Sears on notice, S e a r s was
ac c o mmodating him. B ut ag ain, by disapproving the accommodation, F oerster “ch i lled” Nig ro’s “ex ercise of his

r ig ht to request this accommodation.” Also, F o erste r’ s alleg ed statement o n J une 29 that he w ill not a ccomm o d ate N i gr o in the future and F oss’s testimony to the same eff e ctN I G R O V

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created a g enuine issue of material fact that renders summary judg ment improper. I n short, because Nig ro’s requests for

accommo d a tions in May 2009 and Nig ro’s telephone conversation with F oerster i n J une 2009 put Sears o n notice that N ig ro needed accomm o dations, a reasonable jury could find that Sears had an oblig ation to eng ag e in the interactive process required by

F EHA and failed to do so.

IV

W e have previously held in several cases that it should not tak e much for plaintiff in a discrimination case to

overcome a s u m mary judg ment motion. See, e.g. , Diaz v

. Eagle Produce Ltd. P’ship
, 521 F .3d 1201, 1207 (9th Cir. 2008); Davis v. Team Elec. Co.
, 520 F

. 3d 1080, 1089 (9th Cir. 2008); Metoyer v. Chassman
, 504 F .3d 919, 939 ( 9th Cir. 2007); Dominguez-Curry v. Nevada Transp. Dep’t
, 424 F .3d 1027, 1042 (9th Cir. 2005); Chuang v. Un i v

. o f C al. Davis, Bd. of Trustees , 225 F .3d 1115, 1124 (9th Cir. 2000). “This is because the ultimate question is one th at can only be resolved throug h a searching inquiry —one that is most appropriately conducted by a factfinder, upon a full record.” Id.

H er e , Nig ro presented several state law claims tha t d e s e r v ed trial. I t should not take a w hole lot of evidence to establish a g enuine issue of ma t e r i a l fact in a d isability discrimination case, at least w h e re the fact issue on discrimin at i o n is g enuine and the disability would not preclude g ainful employ ment o f a person working with accommodation. We a c knowledg e that this is not a wholly one-sided case on the side o f Nig r o, and Sears put forward substantial evidence showing that it h ad a non-discriminatory

reason for terminating Nig ro ’ s employ ment, i.e., Sears’sN I G R O V

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p osition that Nig ro did not comply with Sears’s attendanc e and leave po l i c i es resulting in job abandonment. I t is possible that Sears will prevail at trial, b ut the statements attributed to Sears’s supervisors by Nig ro are, if n o t dispositive, sufficient to raise a g enuine issue for the trier of fact. S ee M etoyer , 504 F. 3 d a t 939 (holding that an employ e r’s evidence of a non-discriminatory motive does not warrant entry of summary judg ment when the employ e e also proffered evidence to the contrary )

.

I t is, moreover, entirely besides the point that some o f Nig ro’s evidence was self-serving
, as it will often be the case in a d iscrimination c ase that an employ ee has s omething to say about what company representatives said t o him or her. Such testimony is admissible, thoug h a bsent corroboration, it may have limited weig ht. B u t a ga i n , the weig ht is to be

a s s essed by the trier of fact at trial, not to be a basis t o disreg ard the evidence at the summary judg ment stag e.

REVERSED AND REMANDED.