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.
2 NIGRO V. SEARS, ROEBUCK AND CO.

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.
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
4 NIGRO V. SEARS, ROEBUCK AND CO.

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.” 
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).
6 NIGRO V. SEARS, ROEBUCK AND CO.

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 properlydisregarded

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—referringto 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.
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 summaryjudgment 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.”).
8 NIGRO V. SEARS, ROEBUCK AND CO.

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
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
10 NIGRO V. SEARS, ROEBUCK AND CO.

fact. See Metoyer, 504 F.3d at 939 (holding that an

employer’s evidence of a non-discriminatorymotive 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.