California Maintenance Worker with Bowel Disease Allowed to Sue for Disability Discrimination After Managed ‘Chilled’ Accommodation

051114-N-5832A-001When it comes to providing reasonable accommodations that comply with the Fair Employment and Housing Act, a recent federal case from Southern California illustrates that informal accommodations may not be enough. The 9th Circuit Court of Appeals revived a maintenance worker’s disability discrimination case, concluding that the receipt of permission to arrive late to work as needed from his immediate supervisor may not have constituted a valid accommodation, given that higher managers took actions that “chilled” the employee’s freedom to avail himself of the accommodation.

The 9th Circuit’s ruling was good news for Anthony Nigro, who worked for Sears Roebuck & Co. as a maintenance technician in Carlsbad. The employee had ulcerative colitis, an inflammatory bowel disease that caused him to lose sleep at night. Because of this condition, Nigro’s immediate supervisor, Jason Foss, allowed him to arrive at work at 9:00 a.m. as needed, instead of the usual 6:00 a.m. The general manager of the Carlsbad store, Larry Foerster, disapproved of the accommodation for Nigro and demanded that the employee arrive at work at 6:00 a.m. every day.

Nigro was ultimately terminated in 2009 and later launched a disability discrimination case in federal court. The employee argued that that Sears failed to make a reasonable accommodation for his disability and did not engage in the interactive process as required by FEHA. Sears contended that Foss’ allowance for a later starting time constituted a reasonable accommodation, but the employee argued that Foerster’s conduct essentially “chilled” the employee’s exercise of the accommodation.

Sears asked the trial court for summary judgment, which the court awarded, ruling that Nigro’s only evidence of the employer’s failure to accommodate was the employee’s own self-serving, uncorroborated testimony regarding statements allegedly made by Foerster and other management-level Sears employees.

The appeals court reversed this decision. The appeals court concluded that even though the employee’s evidence may have been self-serving and uncorroborated, that only meant that Nigro’s proof was less credible and did not mean that the trial court should discount his evidence completely. As long as the employee presents evidence that supports a viable claim of disability discrimination, the flawed credibility of that evidence is immaterial. Credibility determinations are issues for the fact-finder to sort out at trial, the appeals court explained. Nigro’s testimony, even while self-serving, was enough to create a potential factual dispute regarding what motivated Sears to fire him, and whether disability discrimination was that motivation.

The appeals court also reversed the trial court’s ruling in favor of the employer on Nigro’s interactive process claim. The employee’s request for a later start time, followed by his conversation a month later with the store manager, was enough evidence to raise the possibility that Sears was placed on notice of Nigro’s disability but still failed to engage in the interactive process required by FEHA.

If you have a condition that requires accommodation and have questions regarding how your employer is treating you, contact the Oakland employment law attorneys at the Law Offices of Stephen M. Fuerch. Our employment law attorneys can help you determine if your employer has broken the law and, if so, what you should do next. Contact us through our website or call our office at (925) 463-1073 to schedule your confidential initial consultation today.

More Blog Posts:

California Employers Not Required to Eliminate Essential Job Duties to Accommodate Employees With Disabilities, Oakland Personal Injury Blog, March 13, 2015

FEHA Protections Apply to Worker Regardless of His Immigration Status, Oakland Personal Injury Blog, July 31, 2014