NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUL 10 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

LAURIE PETERSON, an individual, No. 16-35967

Plaintiff-Appellant, D.C. No. 2:15-cv-00074-SMJ v.

KELLY SERVICES, INC., a Delaware MEMORANDUM* corporation,

Defendant-Appellee.

Appeal from the United States District Court for the Eastern District of Washington Salvador Mendoza, Jr., District Judge, Presiding

Argued and Submitted May 9, 2018 Seattle, Washington

Before: GOULD and IKUTA, Circuit Judges, and TUNHEIM,** Chief District Judge.

Laurie Peterson appeals the district court’s grant of partial summary

judgment to Kelly Services, Inc., on Peterson’s claims that the company failed to

accommodate her celiac disease and terminated her in retaliation for protected

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable John R. Tunheim, Chief United States District Judge for the District of Minnesota, sitting by designation. activities. Peterson also seeks retrial of a claim that survived summary judgment

and went to trial. We have jurisdiction under 28 U.S.C. § 1291. Reviewing de

novo, Reed v. Lieurance, 863 F.3d 1196, 1204 (9th Cir. 2017), we reverse and

remand for a trial on the claims decided on summary judgment.

I.

The district court erred by improperly weighing the credibility of an affidavit

from Peterson’s district supervisor, Teresa Bruce. Bruce testified that her regional

supervisor told her that Peterson’s requested accommodation “was not going to

happen,” that Kelly Services “needed to get rid of” Peterson, and that management

“needed to cover [its] tracks.” The district court was “not persuaded” that Bruce’s

testimony was direct evidence because “the record rebut[ted]” it.

First, the district court failed to construe the facts in the light most favorable

to Peterson as the non-moving party as required on summary judgment. Id. The

district court appears to have determined that Bruce’s affidavit was not credible

based in part on the court’s finding that the first protected activity was Peterson’s

accommodation request on January 14, 2014.1 But the record shows that Peterson

met with Bruce “to go over an accommodation plan” on January 8, 2014.

Construing the facts in the light most favorable to Peterson, a jury could

1 The district court conducted this analysis when considering Peterson’s summary judgment motion and simply incorporated its previous conclusions by reference when considering Kelly Services’ cross-motion.

2 reasonably conclude that the first protected activity therefore occurred no later than

January 8, 2014 – resolving the key apparent contradiction between Bruce’s

testimony and the remainder of the record.

More fundamentally, a court “must not grant summary judgment based on

[its] determination that one set of facts is more believable than another.” Nelson v.

City of Davis, 571 F.3d 924, 929 (9th Cir. 2009) (rejecting defendant’s request to

extend the sham affidavit doctrine). Bruce’s testimony is direct evidence of

retaliatory intent. See Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1221 (9th Cir.

1998). Very little direct evidence creates a triable issue as to an employer’s actual

motivation. Id. Bruce’s declaration also raises a genuine issue of material fact as

to whether Kelly Services engaged in the interactive process in good faith. See

Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1089 (9th Cir. 2002). As such, we

reverse the district court’s grant of partial summary judgment and remand those

claims for trial.

II.

Peterson also asks that we vacate a jury verdict on her claim that Bruce’s

pre-termination actions were retaliatory so that it may be tried together with her

claim that her subsequent termination was retaliatory, arguing that these claims are

not distinct and separable. See Gasoline Prods. Co. v. Champlin Ref. Co., 283 U.S.

494, 500 (1931). But Peterson could have presented evidence of her termination at

3 her first trial, and she will be able to present evidence of Bruce’s pre-termination

actions at her second. As such, trial of the remanded claims alone will cause no

injustice. See id.; Galdamez v. Potter, 415 F.3d 1015, 1025 n.8 (9th Cir. 2005).

REVERSED and REMANDED.

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