Nigro v. Sears, Roebuck & Co.

• Decision Date: 25 February 2015
• Docket Number: No. 12–57262.,12–57262.
• Citation: 31 A.D. Cases 778,784 F.3d 495
• Parties: Anthony V. NIGRO, Plaintiff–Appellant, v. SEARS, ROEBUCK AND CO., Defendant–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

784 F.3d 495

31 A.D. Cases 778

Anthony V. NIGRO, Plaintiff–Appellant

v.SEARS, ROEBUCK AND CO., Defendant–Appellee.

No. 12–57262.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 5, 2015.

Filed Feb. 25, 2015.

Amended April 10, 2015.

Kirk D. Hanson (argued), Law Offices of Kirk D. Hanson, San Diego, CA, 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, CA, for Defendant–Appellee.

Appeal from the United States District Court for the Southern District of California, Michael M. Anello, District Judge, Presiding. D.C. No. 3:11–cv–01541–MMA–JMA.

Before: STEPHEN REINHARDT, RONALD M. GOULD, Circuit Judges, and ROBERT W. GETTLEMAN, Senior District Judge.^*

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 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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.” Faust v. California Portland Cement Co., 150 Cal.App.4th 864, 58 Cal.Rptr.3d 729, 745 (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 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.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., 173 Cal.App.4th 986, 93 Cal.Rptr.3d 338, 358 (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 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...