 United States Court of Appeals
          FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued January 14, 2020              Decided March 17, 2020

                          No. 18-7167

                        KOLY CAMARA
                          APPELLEE

                              v.

                MASTRO’S RESTAURANTS LLC,
                       APPELLANT


         Appeal from the United States District Court
                 for the District of Columbia
                     (No. 1:18-cv-00724)


    Gerald L. Maatman, Jr. argued the cause for appellant.
With him on the briefs were Rebecca S. Bjork and Alexander J.
Passantino.

     R. Andrew Santillo argued the cause for appellee. With him
on the brief were Peter Winebrake, Mark J. Gottesfeld, Jason S.
Rathod, and Nicholas A. Migliaccio.

   Before: HENDERSON and RAO, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.

   Opinion for the Court filed by Senior Circuit Judge
RANDOLPH.
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    RANDOLPH, Senior Circuit Judge: This is an interlocutory
appeal from an order of the district court denying a motion to
compel arbitration. See 9 U.S.C. § 16(a)(1).

    Koly Camara, a former server at Mastro’s Steakhouse in
Washington, D.C., sued Mastro’s claiming that the company
deprived him and other servers of a minimum wage in violation
of the federal Fair Labor Standards Act and the District of
Columbia’s Minimum Wage Revision Act.

     Mastro’s moved to compel Camara to submit his claims to
arbitration. The company’s policy was to require its restaurant
employees to sign an agreement to arbitrate any work-related
legal disputes. But Mastro’s was unable to produce a copy of an
arbitration agreement bearing Camara’s signature, or any other
direct evidence of his assent to be bound by the policy. Camara
submitted a sworn declaration stating that he had neither seen
nor signed any arbitration agreement.

     The Federal Arbitration Act provides that an arbitration
clause in a contract “evidencing a transaction involving
commerce” “shall be valid, irrevocable, and enforceable, save
upon such grounds as exist at law or in equity for the revocation
of any contract.” 9 U.S.C. § 2. Before determining that the Act
applies, the court must decide that the employee has agreed to
arbitrate. Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth,
Inc., 473 U.S. 614, 626 (1985).

     The district judge, in a comprehensive opinion, correctly
treated Mastro’s motion as if it sought summary judgment under
Federal Rule of Civil Procedure 56(c) with respect to the
question whether Camara had agreed to arbitrate. See Aliron
Int’l, Inc. v. Cherokee Nation Indus., Inc., 531 F.3d 863, 865
(D.C. Cir. 2008). Under Rule 56(c), summary judgment is
appropriate only if “there is no genuine issue as to any material
                               3

fact and . . . the moving party is entitled to a judgment as a
matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247 (1986) (quoting Fed. R. Civ. P. 56(c)).

     As the party seeking to enforce an arbitration agreement,
Mastro’s had the burden of proving that Camara agreed to
arbitrate. See Bailey v. Fed. Nat’l Mortg. Ass’n, 209 F.3d 740,
746 (D.C. Cir. 2000). Though unable to produce a copy of the
agreement with Camara’s signature, Mastro’s believes that its
two affidavits and “electronic evidence” showed that there is no
genuine dispute about Camara’s assent to be bound.

     One affidavit was from Stephen Carcamo, the General
Manager of Mastro’s Steakhouse in D.C. Carcamo stated that
the restaurant requires all of its employees to execute an
arbitration agreement, that he “personally presented new hires
and current employees with individual arbitration agreements”
and “obtained their signatures, and that “virtually every
Washington, D.C. Mastro’s employee has signed an individual
Arbitration Agreement.” J.A. 27.

     These statements provide some support for Mastro’s claim.
If the restaurant requires its employees to sign the agreements,
and if “virtually every” employee has done so, then a jury could
reasonably conclude that Camara signed an agreement too. But
Carcamo’s affidavit is notable for what it does not say. He did
not state that he presented Camara a copy of the arbitration
agreement, or that he witnessed Camara agreeing to its terms.
Based on this, a reasonable jury could just as easily conclude
that, while most employees signed the arbitration policy,
Camara slipped through the cracks.

    The second affidavit was from Laura Jasso, a human
resources director who works for Mastro’s parent company,
Landry’s. Jasso explained that Landry’s operates a database that
                                4

tracks whether Mastro’s employees across the country have
signed arbitration agreements. She stated that on June 25, 2015,
“the field corresponding to [Camara’s] arbitration agreement
was changed” by Mastro’s personnel to affirm that Camara had
signed the agreement. J.A. 35. Attached to Jasso’s declaration
was a printout of a database page showing Camara’s employee
profile. The page shows an “Arbitration Agreement” field, next
to which a “Y” indicating “Yes” had been entered. J.A. 50.
Jasso’s affidavit and the database entry, like Carcamo’s
affidavit, bolster Mastro’s position.

     As against this evidence, Camara submitted an affidavit of
his own. Under penalty of perjury, he stated that he “did not see
that agreement when [he] worked at Mastro’s, did not sign it,
and . . . never agreed to its terms.” J.A. 52. He added that he
“never thought, or had reason to believe, that [he] gave up legal
rights, including to a trial by jury, by working for Mastro’s.” Id.

     Mastro’s asks us to disregard, or at least discount, Camara’s
affidavit on the ground that Camara’s sworn statements could
not, without more, create a genuine factual dispute because they
were “self-serving.” In support, Mastro’s invokes Carter v.
George Washington University, 180 F. Supp. 2d 97, 111 (D.D.C.
2001). The district court’s opinion in that case contains this
sentence: “However, self-serving affidavits alone will not
protect the non-moving party from summary judgment.” Id.
We reject that proposition as a rule of evidence or of law.

     Of course Camara’s affidavit was “self-serving” in the
respect that it supported his position. “Deposition testimony,
affidavits, responses to interrogatories, and other written
statements by their nature are self-serving.” Hill v. Tangherlini,
724 F.3d 965, 967 (7th Cir. 2013). The Seventh Circuit held,
and we agree, that “the term ‘self serving’ must not be used to
denigrate perfectly admissible evidence through which a party
                               5

tries to present its side of the story at summary judgment.” Id.
at 967.

     Thus, an “affidavit or declaration used to support or oppose
a [summary judgment] motion must be made on personal
knowledge” and “set out facts that would be admissible in
evidence.” Fed. R. Civ. P. 56(c)(4). Camara’s affidavit satisfies
these requirements. It may be that an affidavit lacking specific
facts or support from the record is, by itself, insufficient to
create a genuine factual issue. But it is the “conclusory
allegations of [such] an affidavit,” not its self-serving nature,
that render it inadequate. Lujan v. Nat’l Wildlife Fed’n, 497
U.S. 871, 888 (1990).

     Camara’s declaration is specific enough. He stated that he
“reviewed the form arbitration agreement” Mastro’s attached to
Carcamo’s declaration but did not recognize it and did not sign
it during the course of his employment. J.A. 52. There is not
much more that Camara could reasonably be expected to assert
in opposing Mastro’s motion. The summary judgment standard
does not require him to prove a negative. Rather, he needed
only to offer evidence sufficient to create a genuine dispute
about whether he agreed to be bound by the company’s
arbitration policy. He did so.

     Mastro’s also suggests that the only thing supporting
Camara’s position is his declaration. Not so. The company’s
failure to produce an arbitration agreement containing Camara’s
signature after the company searched for such a document
makes it more likely that no such document exists, which in turn
makes it less likely that Camara agreed to arbitrate disputes. In
other words, the absence of a signed agreement in these
circumstances is relevant evidence under Rule 401 of the
Federal Rules of Evidence.
                                6

     According to Mastro’s, even if Camara did not sign the
arbitration agreement, his conduct is sufficient to bind him to its
terms. The company thus urges us to determine that an implied-
in-fact arbitration contract existed between Mastro’s and
Camara. Both parties agree that District of Columbia law
governs. Under D.C. law, an implied-in-fact contract contains
“all necessary elements of a binding agreement,” differing from
other contracts “only in that it has not been committed to
writing” and is instead “inferred from the conduct of the
parties.” Boyd v. Kilpatrick Townsend & Stockton, 164 A.3d 72,
81 (D.C. 2017) (citation and quotation marks omitted).

     Unless Camara was aware that he was signaling an intent to
be bound, Mastro’s argument fails. See Restatement (Second)
of Contracts § 19(2) (1981) (a party’s conduct is not a
manifestation of his assent unless “he intends to engage in the
conduct and knows or has reason to know that the other party
may infer from his conduct that he assents”). Nothing in the
record negates Camara’s sworn declaration that he was unaware
of the agreement’s existence and had no reason to believe he had
relinquished his right to a trial. There is no evidence, for
instance, that a manager or a co-worker discussed the arbitration
agreement with him. In the absence of this or similar evidence,
a reasonable factfinder could conclude that Camara was unaware
of the agreement during the course of his work at Mastro’s, and
that he therefore had no reason to believe his continued
employment could be seen as an intent to be bound by the
agreement. At the least, there is a genuine issue of material fact
about any implied contract.

   For these reasons, we affirm the district court’s denial of
Mastro’s motion to compel arbitration.
                                                  So ordered.
