Ninth Circuit Court Says It Should Not Take Much For Plaintiffs In Employment Discrimination Cases To Defeat Employers' Motions For Summary Judgment

Volume 14, Issue 5
March 9, 2015

If employers within the jurisdiction of the Ninth Circuit Court, which includes Nevada, needed a reminder that they do business in one of the most "employer-unfriendly" circuits, a three-member panel of the Ninth Circuit Court provided one last month in Nigro v. Sears, Roebuck & Co., No.: 12-57262 (9th Cir. Feb. 25, 2015).

The case involves Anthony Nigro, a former employee of Sears Roebuck & Company suffering from ulcerative colitis, who alleges Sears subjected him to disability discrimination, failed to accommodate his disability, did not engage in the informal interactive process to determine possible reasonable accommodations for his disability, and wrongfully terminated his employment in violation of state public policy.

Arguing that the pleadings and other evidence in the case demonstrated there was no genuine issue of any material fact, Sears filed a motion for summary judgment, which was granted by the federal district court in California, negating the need for a trial. In opposing Sears' motion, Nigro submitted a declaration concerning a telephone conversation with a manager who told Nigro that if he was "going to stick with being sick, it's not helping your situation" and that, "You're not getting paid, and you're not going to be accommodated." Additionally, Nigro offered his own deposition testimony about a conversation with another manager who allegedly told him a Sears district general manager indicated Nigro "was not going to be here anymore." The district court disregarded the declaration and deposition testimony, finding that it was uncorroborated and self-serving.

In reversing the district court, the three-judge panel of the Ninth Circuit Court found Nigro's declaration and deposition testimony, albeit uncorroborated and self-serving, sufficient to establish a genuine dispute of material fact as to Sears' discriminatory animus, explaining that the source of evidence may have some bearing on its credibility and may be the basis for giving it less weight at trial, but was not the basis for a court to disregard the evidence at the summary judgment stage.

Of particular interest and concern are the panel's general comments about summary judgment in employment discrimination cases, including the assertion that "it should not take much for plaintiff in a discrimination case to overcome a summary judgment motion" given that "the ultimate question is one that can only be resolved through a searching inquiry - one that is most appropriately conducted by a factfinder, upon a full record" and the contention that "[i]t should not take a whole lot of evidence to establish a genuine issue of material fact in a disability discrimination case, at least where the fact issue on discrimination is genuine and the disability would not preclude gainful employment of a person working with accommodation." Some legal commentators believe comments like those made in the Nigro case reflect the Ninth Circuit Court's growing hostility toward the use of summary judgment in employment discrimination cases, which will result in district court judges becoming more reluctant to grant summary judgment for fear of being reversed on appeal.

If true, this would not be the first time a court's view of summary judgment has shifted. Previously, both the U.S. Supreme Court and the Nevada Supreme Court have been forced to address overly restrictive legal standards used by the lower courts to deny summary judgment. In the mid-1980s, the United States Supreme Court issued three landmark decisions reaffirming that summary judgment is not a disfavored procedural shortcut, but instead an integral part of the courts' rules for securing a just, speedy and inexpensive determination of civil cases. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). Subsequently, after state district court judges began to take the view that summary judgment is precluded whenever there is the "slightest doubt" as to the operative facts, the Nevada Supreme Court adopted the U.S. Supreme Court's view of summary judgment as being an integral part of the courts' resolution process and soundly rejected the use of the "slightest doubt" standard. See Wood v. Safeway, 121 Nev. 724, 121 P.3d 1026 (2005).

It is important to keep in mind that the Nigro decision was decided by a three judge panel, which, without more, makes it difficult to attribute their views to the majority of the twenty-nine (29) active judges on the Ninth Circuit Court's bench. Indeed, some law school academics challenge the accuracy of labeling the Ninth Circuit Court as "liberal," arguing that the court is actually ideologically diverse with there being a strongly conservative judge for every "liberal lion" serving on its bench. However, the Ninth Circuit Court, with federal jurisdiction over cases from Nevada, California, Arizona, Idaho, Montana, Oregon, Washington, Alaska and Hawaii, does have the unenviable reputation of being one of the federal circuit courts most frequently reversed by the U.S. Supreme Court.

Employers and their counsel will need to monitor this issue to see if a trend is indeed developing in the Ninth Circuit and, if so, decide how to best address any such shift away from granting summary judgment in discrimination cases.

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.