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Workers disability bias cases reinstated


Two appellate courts have separately ruled against employers — Sears Roebuck & Co. and an Ohio hospital — in disability discrimination cases holding that they failed to accommodate disabled workers.

In the Sears case, Anthony W. Nigro, who worked as a maintenance technician, suffered from ulcerative colitis, which led him to request a start time of 6 a.m. rather than 9 a.m. because his condition caused him to lose sleep at night, according to Wednesday’s ruling by the 9th U.S. Circuit Court of Appeals in San Francisco in Anthony W. Nigro vs. Sears Roebuck & Co.

The request was refused by a supervisor, and Mr. Nigro was terminated in July 2009, according to court papers. Mr. Nigro filed suit under California’s Fair Employment and Housing Act, claiming Sears discriminated against him because of his disability, that it had declined to accommodate his disability, and that it did not engage in an interactive process.

The U.S. District Court in San Diego granted Sears, a unit of Hoffman Estates, Illinois-based Sears Holding Corp., summary judgment dismissing the case, ruling that the source of evidence in the case was Mr. Nigro’s “own self-serving testimony.”

A three-judge appeals court panel unanimously overturned the ruling. It is “besides the point that some of Nigro’s evidence was self-serving as it will often be the case in a discrimination case that an employee has something to say about what company representatives said to him or her,” said the appeals panel.

The ruling said also that “a reasonable jury could find that Sears had an obligation to engage in the interactive processes required by (the California law) and failed to do so.”

In the Ohio case, Bryan Mobley, who had worked as a housekeeper at Miami Valley Hospital in Dayton, Ohio, cleaning operating rooms, had gone through two brain surgeries and had limited abilities to read, write, do basic arithmetic or use technology, according to Wednesday’s ruling by the 6th U.S. Circuit Court of Appeals in Cincinnati in Bryan A. Mobley v. Miami Valley Hospital.

In February 2012, he was transferred to a job cleaning out trash bags for patient rooms and other areas on two floors of the hospital, but struggled in this new role, according to the ruling. The hospital would not transfer him back to his old job, and he was terminated for poor performance in March 2012.

Mr. Mobley filed suit alleging violations of the Americans with Disabilities Act. The U.S. District Court in Columbus granted the hospital summary judgment dismissing the case, holding that Mr. Mobley had not explained how returning to cleaning surgery suites would accommodate his disabilities.

Summary judgment on Mr. Mobley’s failure to accommodate claim was improper because he had demonstrated a “genuine dispute of fact on each part of his prima facie case,” and the hospital “does not attempt to show conclusive hardship to its business,” says a unanimous three-judge panel.

In addition, “A reasonable jury could conclude that (the hospital) did not in good faith consider Mobley’s proposed transfer and further dialogue would have been necessary to reach an agreeable outcome,” said the appeals court, in reinstating the case.

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