Self-serving testimony

May an employee avoid pre-trial dismissal of her case with her own uncorroborated testimony?

On February 25, 2015, the Ninth Circuit revived a disability discrimination case after concluding that the employee provided sufficient facts to warrant the case going to a trier of fact. In Nigro v. Sears, Roebuck & Co. (9th Cir. Cal. Feb. 25, 2015) 2015 U.S. App. LEXIS 2810, the federal appeals court disagreed with the trial court’s determination that the employee’s written and oral statements were “self-serving” and not enough to get past the pre-trial proceeding of summary judgment.

In this case, Anthony Nigro sued his employer after being terminated. Mr. Nigro claims that Sears discriminated against him based on his disability, declined to provide an accommodation for his disability, and failed to engage in the required interactive process to determine a possible accommodation.

For the disability discrimination claim, Mr. Nigro stated in his written declaration that the General Manager of the store at which he worked told him “[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.” Mr. Nigro also offered his oral deposition testimony that a District Facilities Manager told him not to be concerned about his pay issue because the District General Manager had indicated that Mr. Nigro was “not going to be here anymore.” The district court disregarded the evidence as Mr. Nigro’s “own self-serving testimony.” After noting prior decisions acknowledging that employee declarations are often self-serving, the Ninth Circuit determined that Mr. Nigro’s evidence—uncorroborated and self-serving—was sufficient to support a finding that Sears was motivated by his disability when it terminated him.

With respect to the accommodation claim, Mr. Nigro admitted that his supervisor “continued to accommodate him,” with respect to a condition that caused loss of sleep. But there was also evidence that the supervisor did not approve of the accommodation to start work later in the morning, required Mr. Nigro to arrive on time every day, and that Mr. Nigro came to work at 6:00 a.m. every day after he returned to work. The federal appeals court concluded that a reasonable jury could infer that the supervisor’s unwillingness to accommodate compelled Mr. Nigro to arrive at 6:00 a.m. instead of at a later time.

As to the interactive process claim, the Ninth Circuit decided that the evidence supported a finding that the supervisor “chilled” Mr. Nigro’s exercise of his right to request an accommodation. The federal appeals court also determined that the General Manager’s alleged statement that he would not accommodate Mr. Nigro created a factual dispute regarding Sears’s compliance with its duty to engage with Mr. Nigro to identify an accommodation.

The Ninth Circuit acknowledged that Sears put forward substantial evidence showing that it had a non-discriminatory reason for terminating Mr. Nigro’s employment: Mr. Nigro did not comply with Sears’s attendance and leave policies resulting in job abandonment. Nevertheless, the federal appeals court reiterated the principle that it should not take much for an employee in a discrimination case to overcome summary judgment because the ultimate question—the employer’s motivation for the decisions at issue—is one that is most appropriately resolved by a factfinder at trial.

Posted by deanroyerlaw