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Nigro v. Sears, Roebuck & Co.

United States Court of Appeals, Ninth Circuit

February 25, 2015

ANTHONY V. NIGRO, Plaintiff-Appellant,
v.
SEARS, ROEBUCK AND CO., Defendant-Appellee

Argued and Submitted, Pasadena California: February 5, 2015.

Appeal from the United States District Court for the Southern District of California. D.C. No. 3:11-cv-01541-MMA-JMA. Michael M. Anello, District Judge, Presiding.

SUMMARY[**]

Disability Discrimination

The panel reversed the district court's summary judgment in favor of Sears, Roebuck and Co. in a former employee's diversity action alleging disability discrimination claims under California's Fair Employment and Housing Act.

The panel held that the employee presented triable claims under FEHA: (1) that Sears discriminated against the employee because of his disability; (2) that Sears declined to accommodate the employee's disability; and (3) that Sears did not engage in an interactive process to determine possible accommodation for the employee's disability. The panel noted that it was beside the point that some of the employee's evidence was self-serving because such testimony was admissible, though absent corroboration, it may have limited weight by the trier of fact at trial. The panel remanded for further proceedings.

Kirk D. Hanson (argued), Law Offices of Kirk D. Hanson, San Diego, California, for Plaintiff-Appellant.

Anne-Marie Waggoner (argued), Littler Mendelson, P.C., Walnut Creek, California; Jody A. Landry, Caryn M. Anderson, Littler Mendelson, P.C., San Diego, California, for Defendant-Appellee.

Before: Stephen Reinhardt, Ronald M. Gould, Circuit Judges, and Robert W. Gettleman, Senior District Judge.[*]

OPINION

Page 1097

Ronald M. Gould, Circuit Judge:

Anthony Nigro appeals the district court's entry of summary judgment in favor of his former employer Sears, Roebuck and Co. (" Sears" ) in Nigro's diversity action against Sears, alleging three disability discrimination claims under the California Fair Employment and Housing Act (" FEHA" ). We have jurisdiction under 28 U.S.C. § 1291. We must decide whether there are any genuine issues of material fact on Nigro's four discrimination claims. We conclude that the answer is yes, so we reverse and remand for further proceedings.

In May 2011, Nigro filed suit against Sears in California state court, claiming under FEHA (1) that Sears discriminated against him because of his disability, (2) that Sears declined to accommodate his disability, and (3) that Sears did not engage in an interactive process to determine possible accommodation for his disability. Nigro also alleged that Sears wrongfully terminated his employment in violation of California public policy. Sears removed the action to federal court. Sears then moved for summary judgment on each of Nigro's claims, and the district court granted Sears's motion on November 28, 2012. Nigro appealed.

We review the district court's grant of summary judgment de novo. Del. Valley Surgical Supply, Inc. v. Johnson & Johnson, 523 F.3d 1116, 1119 (9th Cir. 2008). " We must determine, viewing the evidence in the light most favorable to [Nigro], the non-moving party, whether there are any genuine 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 issue is genuine " if the evidence is such that a reasonable jury could return a ...


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