Plaintiff’s Uncorroborated, “Self-Serving” Declaration Sufficient Evidence to Allow Discrimination Claims to Proceed

April 10, 2015 – The Ninth Circuit reversed a district court’s award of summery judgment to Sears, Roebuck and Co. in a disability discrimination lawsuit brought by Anthony Nigro, a former maintenance worker. In so doing, the court emphasized the low evidentiary threshold a plaintiff in a disability discrimination case must meet for his claims to reach a jury.

Nigro began working as a Quality Maintenance Assistant at a Sears store in Carlsbad, California in May 2007, performing such duties as replacing floor tiles, changing air conditioner filters on the store roof, and moving merchandise racks. Shortly thereafter, he became a Quality Maintenance Technician. In that role, Nigro traveled among five stores in the San Diego area to perform maintenance. He suffered from ulcerative colitis. When his condition worsened, making traveling difficult, he asked to return to his original position. In addition to granting this request, Sears accommodated Nigro’s condition by allowing him to start work at 9:00 a.m. instead of the regular start time of 6:00 a.m. At various times, Nigro took medical leave from work.

According to Nigro, after a change in management at the Carlsbad store, his requests for accommodation were no longer granted, and Sears took no steps to find other accommodations. For example, he alleged that between December 2008 and May 2009, he repeatedly asked to start his shift late or for time off to attend medical appointments, and Sears management denied the requests without discussion. Sears managers also denied Nigro’s request for a new position and did not respond at all to his request for a transfer to a different store.

While out of work on approved medical leave, Nigro received a letter from store manager Larry Foerster claiming that Nigro had failed to provide Sears with the information necessary to remain off work. The letter further stated that Nigro’s employment would be terminated in two days if he did not contact Sears. Nigro alleged that, even though he provided the requested paperwork the day after he received the letter from Foerster, Sears nonetheless terminated his employment.

In May 2011, Nigro brought disability discrimination claims under California law. He alleged that Sears discriminated against him because of his disability, failed to accommodate his disability, refused to “engage in an interactive process to determine possible accommodation for his disability,” and terminated his employment in violation of public policy. Sears moved for summary judgment on each claim, and the district court granted the motion in full.

The district court found that Nigro proved the first two elements of a claim for disability discrimination under California’s Fair Employment and Housing Act (“FEHA”) – i.e., that he suffered from a disability and was otherwise qualified to do his job – but that he did not present sufficient evidence that Sears terminated him because of his disability. According to the district court, Nigro’s evidence consisted only of “uncorroborated and self-serving declarations” that were insufficient to create a genuine factual dispute.

The appellate court disagreed, citing the following evidence presented by Nigro:

Nigro submitted a declaration stating that on June 29, 2009, he had a phone conversation with Larry Foerster, General Manager of the Sears Carlsbad store at which Nigro worked, and Foerster 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.” Nigro also testified in his deposition that Sears’s District Facilities Manager Alan Kamisugu told him not to be concerned about his pay issue because Chris Adams, Sears’s District General Manager, had indicated to Kamisugu that Nigro was “not going to be here anymore.”

The Ninth Circuit recognized that declarations are often self-serving – but that doesn’t necessarily mean they aren’t admissible evidence. In fact, the court said it was “entirely beside the point” that the evidence was self-serving. “Although the source of the evidence may have some bearing on its credibility and on the weight it may be given by a trier of fact, the district court may not disregard a piece of evidence at the summary judgment stage solely based on its self-serving nature.” Of course, a court can – and should – disregard a self-serving declaration that states only conclusions without supporting facts, purported facts that are not within the declarant’s personal knowledge, and/or inadmissible hearsay. Applying these standards, the Ninth Circuit held that Nigro’s declaration and deposition testimony “were sufficient to establish a genuine dispute of material fact on Sears’s discriminatory animus. … His testimony was based on personal knowledge, legally relevant, and internally consistent.”

The Ninth Circuit further chided the district court for disregarding testimony by Nigro’s supervisor that District General Manager Adams stated – referring to Nigro – “I’m done with that guy.” The district court refused to consider this evidence based in its view that the evidence was inadmissible hearsay. Not so. As the Ninth Circuit explained, Foss’s testimony about Adams’s statement was an admissible party admission.

“Adams’s statements and the evidence proffered by Nigro could allow a reasonable jury to infer that Sears terminated Nigro because of his disability.” As such, Nigro demonstrated a genuine dispute over this material fact, and summary judgment on Nigro’s discrimination and wrongful termination claims was improper.

The Ninth Circuit likewise reversed the district court’s grant of summary judgment on Nigro’s claims for failing to grant him reasonable accommodations and to engage in the interactive process. Although Nigro’s supervisor, Foss, had allowed Nigro to start his work shift at 9:00 a.m., Foss’s superior (Foerster) did not approve this requested accommodation and required Nigro to arrive at work at 6:00 a.m. “every day.” Nigro claimed that Foerster’s unwillingness to accommodate his later start time discouraged him from exercising his right to request a late start time or other reasonable accommodations. The Ninth Circuit agreed, holding that based on the evidence, a reasonable jury could conclude that Sears refused to engage in discussions about possible accommodations and “chilled” Nigro’s exercise of his rights under FEHA.

The Court of Appeals went on to emphasize that “it should not take much [evidence] for [a] plaintiff in a discrimination case to overcome a summary judgment motion. … This is because 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.” Defendants be warned – though, of course, a plaintiff with marginal evidence may survive summary judgment only to lose at trial.


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