Anthony V. Nigro v. Sears, Roebuck and Co.

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANTHONY V. NIGRO,
Plaintiff-Appellant,
v.
SEARS, ROEBUCK AND CO.,
Defendant-Appellee.
No. 12-57262
D.C. No.
3:11-cv-01541-
MMA-JMA
ORDER AND
AMENDED
OPINION
Appeal from the United States District Court
for the Southern District of California
Michael M. Anello, District Judge, Presiding
Argued and Submitted
February 5, 2015—Pasadena California
Filed February 25, 2015
Amended April 10, 2015
Before: Stephen Reinhardt, Ronald M. Gould, Circuit
Judges, and Robert W. Gettleman, Senior District Judge.*
Order;
Opinion by Judge Gould
* The Honorable Robert W. Gettleman, Senior District Judge for the
U.S. District Court for the Northern District of Illinois, sitting by
designation.

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NIGRO V. SEARS, ROEBUCK AND CO. 2
SUMMARY**
Disability Discrimination
The panel withdrew the opinion filed on February 25,
2015, and replaced it with an amended opinion, and reversed
the district court’s summary judgment in favor of Sears,
Roebuck and Co. in a former employee’s diversity action
alleging disability discrimination claims under California’s
Fair Employment and Housing Act.
The panel held that the employee presented triable claims
under FEHA: (1) that Sears discriminated against the
employee because of his disability; (2) that Sears declined to
accommodate the employee’s disability; and (3) that Sears
did not engage in an interactive process to determine possible
accommodation for the employee’s disability. The panel
noted that it was beside the point that some of the employee’s
evidence was self-serving because such testimony was
admissible, though absent corroboration, it may have limited
weight by the trier of fact at trial. The panel further noted that
a district court could disregard a self-serving declaration that
stated only conclusions and not facts that would be
admissible evidence. The panel remanded for further
proceedings.
** This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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NIGRO V. SEARS, ROEBUCK AND CO. 3
COUNSEL
Kirk D. Hanson (argued), Law Offices of Kirk D. Hanson,
San Diego, California, for Plaintiff-Appellant.
Anne-Marie Waggoner (argued), Littler Mendelson, P.C.,
Walnut Creek, California; Jody A. Landry, Caryn M.
Anderson, Littler Mendelson, P.C., San Diego, California, for
Defendant-Appellee.
ORDER
The opinion in the above-captioned matter filed on
February 25, 2015, and published at 778 F.3d 1096, is
amended and replaced by the amended opinion filed
concurrently with this order. With this amendment, no
petitions for rehearing or requests for amendment will be
accepted.
OPINION
GOULD, Circuit Judge:
Anthony Nigro appeals the district court’s entry of
summary judgment in favor of his former employer Sears,
Roebuck and Co. (“Sears”) in Nigro’s diversity action against
Sears, alleging three disability discrimination claims under
the California Fair Employment and Housing Act (“FEHA”).
We have jurisdiction under 28 U.S.C. § 1291. We must
decide whether there are any genuine issues of material fact
on Nigro’s four discrimination claims. We conclude that the

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NIGRO V. SEARS, ROEBUCK AND CO. 4
answer is yes, so we reverse and remand for further
proceedings.
In May 2011, Nigro filed suit against Sears in California
state court, claiming under FEHA (1) that Sears discriminated
against him because of his disability, (2) that Sears declined
to accommodate his disability, and (3) that Sears did not
engage in an interactive process to determine possible
accommodation for his disability. Nigro also alleged that
Sears wrongfully terminated his employment in violation of
California public policy. Sears removed the action to federal
court. Sears then moved for summary judgment on each of
Nigro’s claims, and the district court granted Sears’s motion
on November 28, 2012. Nigro appealed.
We review the district court’s grant of summary judgment
de novo. Del. Valley Surgical Supply, Inc. v. Johnson &
Johnson, 523 F.3d 1116, 1119 (9th Cir. 2008). “We must
determine, viewing the evidence in the light most favorable
to [Nigro], the non-moving party, whether there are any
genuine issues of material fact and whether the district court
correctly applied the substantive law.” Olsen v. Idaho St. Bd.
of Med., 363 F.3d 916, 922 (9th Cir. 2004). A factual issue
is genuine “if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
I
To establish a prima facie case of disability
discrimination under FEHA, Cal. Gov’t Code § 12940(a),
Nigro must show that “(1) he suffers from a disability; (2) he
is otherwise qualified to do his job; and, (3) he was subjected
to adverse employment action because of his disability.”

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NIGRO V. SEARS, ROEBUCK AND CO. 5
Faust v. California Portland Cement Co., 58 Cal. Rptr. 3d
729, 745 (Cal. Ct. App. 2007). The district court found that
Nigro did not establish element (3), i.e., Nigro did not show
a causal relationship between his termination by Sears and his
disability.1
To establish that he was terminated by Sears because of
his disability, 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 district court disregarded the evidence proffered by
Nigro, on the basis that “the source of this evidence is Nigro’s
own self-serving testimony.”
We have previously acknowledged that declarations are
often self-serving, and this is properly so because the party
submitting it would use the declaration to support his or her
position. S.E.C. v. Phan, 500 F.3d 895, 909 (9th Cir. 2007)
(holding that the district court erred in disregarding
1 Sears challenges the district court’s determination that Nigro
established element (2) of his claim. On this issue, we agree with the
district court. Nigro established that with reasonable accommodations,
such as a later start time and—during severe flare-ups—finite medical
leaves, he was able to perform the essential functions of his position. He
was, therefore, “otherwise qualified” to do his job. See Humphrey v.
Mem’l Hospitals Ass’n, 239 F.3d 1128, 1135–36 (9th Cir. 2001).

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NIGRO V. SEARS, ROEBUCK AND CO. 6
declarations as “uncorroborated and 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. See id. However, a self-serving declaration does not
always create a genuine issue of material fact for summary
judgment: The district court can disregard a self-serving
declaration that states only conclusions and not facts that
would be admissible evidence. See id.; see also Villiarimo v.
Aloha Island Air, Inc., 281 F.3d 1054, 1059 n.5, 1061 (9th
Cir. 2002) (holding that the district court properly disregarded
the declaration that included facts beyond the declarant’s
personal knowledge and did not indicate how she knew the
facts to be true); F.T.C. v. Publ’g Clearing House, Inc.,
104 F.3d 1168, 1171 (9th Cir. 1997) (“A conclusory,
self-serving affidavit, lacking detailed facts and any
supporting evidence, is insufficient to create a genuine issue
of material fact.”).
Here, Nigro’s declaration and deposition testimony, albeit
uncorroborated and self-serving, were sufficient to establish
a genuine dispute of material fact on Sears’s discriminatory
animus. He related statements made to him both in person
and over the telephone. His testimony was based on personal
knowledge, legally relevant, and internally consistent. We
conclude that the district court erred in disregarding Nigro’s
testimony in granting Sears’s motion for summary judgment.
Nigro’s direct supervisor Jason Foss also testified that
Chris Adams said to him—referring to Nigro—that “I’m done
with that guy.” The district court found Foss’s testimony to
be inadmissible hearsay. But Foss’s statement attributed to
Adams should be admissible as a party admission. See Fed.

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NIGRO V. SEARS, ROEBUCK AND CO. 7
R. Evid. 801(d)(2)(D). Because Adams’s statements and the
evidence proffered by Nigro could allow a reasonable jury to
infer that Sears terminated Nigro because of his disability,
there is a genuine issue of material fact. We reverse the
district court’s entry of summary judgment on Nigro’s
discrimination claim.2
II
The district court also granted summary judgment in favor
of Sears on Nigro’s claim that Sears failed to accommodate
his disability. The elements of a failure to accommodate
claim are: “(1) the plaintiff has a disability under the FEHA,
(2) the plaintiff is qualified to perform the essential functions
of the position, and (3) the employer failed to reasonably
accommodate the plaintiff’s disability.” Scotch v. Art Inst. of
California-Orange Cnty., Inc., 93 Cal. Rptr. 3d 338, 358 (Cal.
Ct. App. 2009). Because ulcerative colitis caused Nigro loss
of sleep at night, his direct supervisor Foss had allowed Nigro
to start his shifts at 9:00 A.M. instead of 6:00 A.M. as
needed. The district court concluded that there were no
genuine issues of material fact because Nigro continued to be
accommodated by Foss, despite “any actual or perceived
irritation” by Foss’s supervisor Foerster. We disagree.
Although Nigro testified that Foss “continued to
accommodate him,” the record also reveals that Foerster did
2 Because we hold that the district court’s grant of summary judgment
to Sears on Nigro’s disability discrimination claim under FEHA was
improper, we reverse the district court’s grant of summary judgment to
Sears on Nigro’s disability discrimination claim under California public
policy as well. See City of Moorpark v. Superior Court, 959 P.2d 752,
763 (Cal. 1998) (“[D]isability discrimination can form the basis of a
common law wrongful discharge claim.”).

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NIGRO V. SEARS, ROEBUCK AND CO. 8
not approve this accommodation and required Nigro to arrive
on time, at 6:00 A.M., “every day.” Nigro claims that
Foerster’s unwillingness to accommodate his later start time
“chilled” the “exercise of his right to request this
accommodation.” This claim is supported by Nigro’s
testimony that he came to work at 6:00 A.M. every day after
he returned to work in May 2009, despite the fact that he felt
as though “he needed to come in later every day.” A
reasonable jury could infer that Foerster’s unwillingness to
accommodate compelled Nigro to arrive at 6 A.M. every day
despite his need to arrive later, so summary judgment is
improper here.
III
Finally, the district court granted summary judgment on
Nigro’s claim that Sears did not engage in an interactive
process as required by FEHA. See Cal. Gov’t Code § 12940
(requiring that an employer engage in a “timely, good faith,
[and] interactive process . . . to determine effective
reasonable accommodations”). The district court found that
Nigro never put Sears on notice that he needed an
accommodation, and that even if his June 29, 2009 phone
conversation with Foerster put Sears on notice, Sears was
accommodating him. But again, by disapproving the
accommodation, Foerster “chilled” Nigro’s “exercise of his
right to request this accommodation.” Also, Foerster’s
alleged statement on June 29 that he will not accommodate
Nigro in the future and Foss’s testimony to the same effect
created a genuine issue of material fact that renders summary
judgment improper. In short, because Nigro’s requests for
accommodations in May 2009 and Nigro’s telephone
conversation with Foerster in June 2009 put Sears on notice
that Nigro needed accommodations, a reasonable jury could

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NIGRO V. SEARS, ROEBUCK AND CO. 9
find that Sears had an obligation to engage in the interactive
process required by FEHA and failed to do so.
IV
We have previously held in several cases that it should
not take much for plaintiff in a discrimination case to
overcome a summary judgment motion. See, e.g., Diaz v.
Eagle Produce Ltd. P’ship, 521 F.3d 1201, 1207 (9th Cir.
2008); Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th
Cir. 2008); Metoyer v. Chassman, 504 F.3d 919, 939 (9th Cir.
2007); Dominguez-Curry v. Nevada Transp. Dep’t, 424 F.3d
1027, 1042 (9th Cir. 2005); Chuang v. Univ. of Cal. Davis,
Bd. of Trustees, 225 F.3d 1115, 1124 (9th Cir. 2000). “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.”
Id.
Here, Nigro presented several state law claims that
deserved trial. It 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. We acknowledge that this is not a wholly
one-sided case on the side of Nigro, and Sears put forward
substantial evidence showing that it had a non-discriminatory
reason for terminating Nigro’s employment, i.e., Sears’s
position that Nigro did not comply with Sears’s attendance
and leave policies resulting in job abandonment. It is
possible that Sears will prevail at trial, but the statements
attributed to Sears’s supervisors by Nigro are, if not
dispositive, sufficient to raise a genuine issue for the trier of

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NIGRO V. SEARS, ROEBUCK AND CO. 10
fact. See Metoyer, 504 F.3d at 939 (holding that an
employer’s evidence of a non-discriminatory motive does not
warrant entry of summary judgment when the employee also
proffered evidence to the contrary).
It is, moreover, entirely beside 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.
Such testimony is admissible, though absent corroboration, it
may have limited weight. But again, the weight is to be
assessed by the trier of fact at trial, not to be the basis to
disregard the evidence at the summary judgment stage.
REVERSED AND REMANDED.

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