In Nigro v. Sears, Roebuck and Co., (No. 12-57262, filed 2/25/15, amended 4/10/15) (Nigro), the United States Court of Appeals for the Ninth Circuit held a self-serving declaration can be sufficient to create a genuine issue of material fact for summary judgment if it contains facts that could constitute admissible evidence.
In Nigro, plaintiff employee filed an employment discrimination lawsuit against his former employer, Sears, Roebuck and Co. (“Sears”). Plaintiff suffered from Ulcerative Colitis and alleged Sears violated the California Fair Employment and Housing Act (“FEHA”) by (1) discriminating against him on the basis of his disability, (2) declining to accommodate his disability, and (3) failing to engage in an interactive process to determine possible accommodations. In opposition to Sears’s motion for summary judgment, plaintiff submitted a declaration and his own deposition testimony regarding conversations with multiple Sears managers. Plaintiff claimed he was told he was not going to be accommodated if he kept “being sick” and his request to begin his work day at a later time was not approved. The district court disregarded this evidence on the basis the source was Plaintiff’s own self-serving testimony and granted Sears’s motion.
On appeal, the Nigro court reversed. The Court reasoned that although the self-serving nature of plaintiff’s testimony may have some bearing on its credibility, the district court “may not disregard a piece of evidence at the summary judgment stage solely based on its self-serving nature.” The Court noted that declarations are, by their nature, often self-serving because the party submitting them does so in support of his or her position. The Court also acknowledged a district court may disregard a self-serving declaration that states only conclusions and not facts based on personal knowledge, detailed facts, or otherwise admissible evidence.
However, the Nigro court distinguished plaintiff’s declaration and deposition testimony as based on personal knowledge, legally relevant, and internally consistent. Plaintiff’s evidence, albeit uncorroborated and self-serving, was sufficient to establish a genuine dispute of material fact on Sears’s discriminatory animus. The evidence was also sufficient for a reasonable jury to infer Sears’s unwillingness to accommodate certain requests chilled the exercise of plaintiff’s right to request other accommodations. The Nigro court recognized the self-serving testimony may have limited weight, absent corroboration. Nonetheless, the weight of evidence is to be assessed by the trier of fact at trial. It should not be the basis for disregarding such evidence for purposes of summary judgment.
The Nigro case is a reminder for employers that engaging in the interactive process is an integral part of determining whether reasonable accommodations can be made in the workplace.
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