Nigro v. Sears, Roebuck & Co., 784 F.3d 495

Anthony Nigro, a Sears employee with ulcerative colitis, alleged Sears discriminated, failed to accommodate, and failed to engage in the interactive process under FEHA after attendance disputes and termination.
Nigro testified he had told supervisors about his need to start at 9:00 a.m. (instead of 6:00 a.m.) due to his condition; his direct supervisor (Foss) accommodated it, but the store GM (Foerster) disapproved and insisted on 6:00 a.m. starts.
Nigro recounted a June 29, 2009 phone call with Foerster where Foerster said Sears would not accommodate him; Nigro also reported being told by another manager that a district GM said Nigro "was not going to be here anymore."
Sears disciplined/terminated Nigro based on attendance/leave policy and job-abandonment theories. Sears moved for summary judgment; the district court granted it.
The Ninth Circuit reviewed de novo and found Nigro's testimony and related supervisor statements sufficient to create genuine disputes of material fact on discrimination, failure to accommodate, and failure to engage in the interactive process.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Nigro showed causation for disability discrimination under FEHA	Nigro: supervisors made statements indicating refusal to accommodate and intent to remove him, showing discrimination	Sears: termination resulted from neutral attendance/abandonment policy, not disability	Reversed: Nigro's testimony and admissions create a genuine dispute of material fact on discriminatory motive
Whether Nigro was "otherwise qualified" with reasonable accommodation	Nigro: with later start times and limited medical leave he could perform essential functions	Sears: challenges that Nigro could perform essential functions	Held for Nigro: record shows reasonable accommodations would have permitted performance
Whether Sears failed to reasonably accommodate Nigro	Nigro: Foerster's disapproval chilled requests and effectively denied the later start accommodation	Sears: Foss continued the accommodation; no failure to accommodate	Reversed: a reasonable jury could find Foerster's refusal forced Nigro to forgo accommodation
Whether Sears engaged in the required interactive process under FEHA	Nigro: his May requests and June 29 call put Sears on notice; supervisors' statements show refusal to engage	Sears: either never put on notice or was already accommodating him	Reversed: factual disputes about notice and supervisors' refusal preclude summary judgment

Anderson v. Liberty Lobby, 477 U.S. 242 (1986) (summary judgment standard; genuine dispute definition)
S.E.C. v. Phan, 500 F.3d 895 (9th Cir. 2007) (self-serving declarations cannot be disregarded solely as such at summary judgment)
Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054 (9th Cir. 2002) (limits on admissible self-serving declaration evidence)
F.T.C. v. Publ’g Clearing House, Inc., 104 F.3d 1168 (9th Cir. 1997) (conclusory self-serving affidavits insufficient to create genuine issue)
Metoyer v. Chassman, 504 F.3d 919 (9th Cir. 2007) (summary judgment in discrimination cases often inappropriate where contrary evidence exists)
Humphrey v. Mem’l Hospitals Ass’n, 239 F.3d 1128 (9th Cir. 2001) (definition of "otherwise qualified" with reasonable accommodation)