The Ninth Circuit Court of Appeals recently reversed summary judgment for an employer, finding that a former employee’s self-serving declaration and deposition testimony regarding alleged disability discrimination were sufficient to create a triable issue of fact. The Ninth Circuit also held the employer’s denial of the accommodation the employee requested “chilled” the exercise of the employee’s right to request an accommodation. The plaintiff suffered from ulcerative colitis, an inflammatory bowel disease that causes long-lasting inflammation and ulcers in the digestive tract. After being terminated, the plaintiff brought suit against his employer pursuant to the California Fair Employment and Housing Act, claiming that it: (1) discriminated against him because of his disability; (2) declined to accommodate his disability; and (3) did not engage in an interactive process to determine possible accommodation for his disability. The plaintiff also alleged that his employer terminated his employment in violation of California public policy. The employer successfully moved for summary judgment before the District Court, and the plaintiff appealed.

Discrimination Claim. On appeal, the plaintiff emphasized that he had provided a declaration stating that the General Manager of the store he worked at had told him that “[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.” The plaintiff also testified at deposition that the District Facilities Manager had told him not to be concerned about his pay issue because he had heard the plaintiff was “not going to be here anymore.” The District Court disregarded the plaintiff’s declaration and testimony on the basis of the evidence being “self-serving.” The Ninth Circuit agreed that the declaration and testimony were self-serving, but found the declaration and testimony sufficient to create a disputed issue of fact because the declaration included detailed allegations of what the plaintiff’s managers said to him, which, if true, a jury could rely on to find the employer liable for discrimination.

Reasonable Accommodation and Interactive Process Claims. The plaintiff also alleged that his ulcerative colitis caused him to lose sleep at night and, as a result, he needed his shifts to start at 9:00 a.m. rather than 6:00 a.m. It appears from the opinion that the employer initially accommodated this request, but eventually required the plaintiff to report to work at 6:00 a.m., which the plaintiff did. The plaintiff stated the employer’s refusal to accommodate him “chilled” the “exercise of his right to request this accommodation,” such that he did not repeat his request for an accommodation. The Ninth Circuit agreed with the plaintiff that there was enough evidence for a jury to possibly conclude that the employer had “chilled” the plaintiff’s right to ask for an accommodation, and, on that basis, the Ninth Circuit reversed summary judgment on the plaintiff’s accommodation and interactive process claims.

Take Away: Always be careful what you say to employees. The plaintiff was able to put statements allegedly made by his managers into a self-serving declaration to defeat summary judgment. Also, always remember the employer has a duty to engage in the interactive process to identify, if possible, a reasonable accommodation that will allow an employee with a disability to perform the essential functions of his job. As this case demonstrates, an employer cannot simply deny the employee’s requested accommodation and consider the matter over. There must be a back and forth process to discover what other accommodations might exist for the employee.