Disability Discrimination, Evidence, and Getting to Trial

       Getting past summary judgment and to trial is what it’s all about. To do that takes evidence. Sometimes trial courts lose their way and by weighing the evidence submitted on summary judgment. That’s what happened in Nigrov. Sears, Roebuck and Co., No. 12-57262 (9th Cir., Apr. 10, 2015).  Fortunately for plaintiff the U.S. Ninth Circuit Court Appeals recognized the error and sent the case back to the district court for trial.

       Plaintiff suffers from ulcerative colitis. Following his termination he brought three disability discrimination claims: (1) termination because of disability; (2) failure to accommodate a disability; and (3) failure to engage in an interactive process to find a reasonable accommodation. Plaintiff’s evidence consisted of his testimony that Sears’ managers and supervisors 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,” and that he was told not to be concerned about his pay issue because he was “not going to be here anymore.” The district court viewed this evidence as “self-serving.” The Ninth Circuit correctly viewed it for what it was: evidence.

       Plaintiff also presented evidence that his direct supervisor had granted a late start on an as-needed basis but the store manager still required him to arrive at the regular start time. Summary judgment was improper because a reasonable jury could infer that the store manager’s unwillingness to accommodate compelled plaintiff to arrive on time every day despite his need to arrive later.

       Plaintiff’s third claim survived based on evidence that Sears’s failure to accommodate had a “chilling effect” on his right to discuss accommodations. More to the point, the store manager’s statement to plaintiff that “You’re not getting paid, and you’re not going to be accommodated,” was direct evidence that Sears unlawfully refused to discuss accommodations.

     As the Ninth Circuit said, “it should not take much for plaintiff in a discrimination case to overcome a summary judgment motion.” All it takes, of course, is evidence.