9th Circuit: FEHA Claims – MSJ & Plaintiff’s Evidence

I like this case because the Ninth Circuit Court of Appeals reversed a summary judgment granted for Sears, the defendant employer, on a FEHA case of disability discrimination.

Plaintiff’s attorneys always contend with defense counsel’s ridiculous criticisms of declarations offered by plaintiff to support his or her opposition to defendant’s motion for summary judgment: “It’s self-serving and uncorroborated so the court should ignore plaintiff’s declaration!”

But that’s not the law, despite some trial court judges who believe it is. For example, in this case, plaintiff filed a declaration detailing conversations he had with his supervisors at Sears. The content of these conversations supported plaintiff’s claims, and so of course the Sears supervisors are going to deny that the conversations even took place or that plaintiff misrepresented to conversations. And so it is difficult to corroborate testimony like this.

And that’s why it should go to a jury to decide. The jury can assess plaintiff’s credibility vs. his supervisors’ credibility. The court should not do that, because the court isn’t the factfinder—the jury is.

As this court noted, “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.”


And I never see defense counsel submitting declarations in support of the MSJ’s that help my client. That means their declarations are self-serving, too. So why do defense attorneys always make these objections to plaintiff’s declarations? Even more puzzling, why do some trial court judges still fall for it?

As the court here notes, declarations must not state mere conclusions, but facts that are admissible evidence. A conclusory declaration should be disregarded, but not because it self-serving.

Does anyone ever submit evidence that is not self-serving? Maybe in a case of malpractice.

The other reason I like this case is because the court reiterates and confirms the standards plaintiffs need to meet in order to survive an MSJ:

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. 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. (Citations omitted.)

Makes sense to me, but not to all trial court judges, the judges who were not present during the depositions. Hopefully that tide will change.

Why not just eliminate motions for summary judgment anyway? There are strong arguments for that, here and here and here.

Nigro v. Sears, Roebuck & Co.
784 F.3d 495 (9th Cir. 2015)

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