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This post recaps the second panel from The Institute's Symposium ("Trial By Jury Or Trial By Motion?: Summary Judgment, Iqbal And Employment Discrimination") at New York Law School on April 23, 2012. Check back for additional posts recapping the other panels and the keynote!  

The second panel of the day, “Problems With Litigating Summary Judgment In Employment Discrimination Cases,” provided attendees with a variety of lenses through which to view the current summary judgment landscape, as an academic (Prof. Ann McGinley (UNLV)), a litigator (David Lee (Law Offices of David L. Lee – Chicago, IL)), and litigators-turned-academics (Prof. Deborah Eisenberg (Maryland) and Prof. Scott Moss (Colorado)) identified some of the practices that lead to higher rates of summary judgment in employment cases. Prof. Minna Kotkin (Brooklyn Law School) moderated this session. Video of Panel II may be viewed here.

Prof. McGinley used two recent Supreme Court cases—Scott v. Harris and Ricci v. DeStefano—to illustrate the ways in which our experiences and cultural identities influence the manner in which we evaluate facts. Using the opinions in Ricci as a guide, she identified numerous examples of the courts making credibility determinations and drawing inferences against the non-moving party in that case, indicating that instances of crediting the facts of one party was a particularly problematic aspect of one of the concurring opinions in the Supreme Court.  Prof. McGinley suggested that because one main purpose of the jury trial is to lend democratic legitimacy to court proceedings, courts should be wary of granting summary judgment in any case where “a significant minority may view the facts differently.”

In her presentation, Prof. Eisenberg focused on the Equal Pay Act (EPA), emphasizing that summary judgment rates in those cases were even more striking than those under Title VII. She pointed to the fact that the EPA provides four categories of defenses that employers may use to avoid liability for pay disparities. Prof. Eisenberg suggested that more empirical research is necessary on the effects of plaintiffs’ professional background on summary judgment—there is evidence that higher-paid professional women are more successful at fending off summary judgment in EPA cases, which could cause serious problems for more vulnerable sectors of the workforce. She also posited that economic downturns give employers greater opportunity to use “business judgment” and/or “cost-cutting” arguments at summary judgment.

Prof. Moss’s presentation examined the briefing practices of plaintiffs’ lawyers in employment cases in the Second and Seventh Circuits. Professor Moss studied one particular defense argument well-known to employment lawyers—the argument that the “same actor” who hired the plaintiff cannot be guilty of discrimination when later firing the plaintiff—and tried to discern whether plaintiffs’ lawyers were generally briefing the best available law in these cases. Professor Moss’ findings were troubling in many respects, as he saw evidence that in those cases where the plaintiff’s attorney failed to direct the court to helpful precedent in response to “same actor” arguments, the plaintiff was much more likely to lose at summary judgment. Referencing Judge Gertner’s earlier comments about “Loser’s Rules,” Professor Moss pointed out that failing to brief these issues carefully leads to what amounts to “Loser’s Rules” string cites that are easily reproduced in any subsequent opinion granting summary judgment. Professor Moss suggested that part of this problem can be explained by the fact that Title VII cases can be a “siren’s call” to unprepared lawyers, and that one bad case can do far more damage than even a number of victories for plaintiffs.

David Lee summed up the sentiment of many attendees when he stated quite straight-forwardly that “many summary judgment decisions flunk Civil Procedure,” and do so quite brazenly, often stating the well-settled summary judgment rules at the opinion’s outset, only to disregard them mere pages later. Understanding that federal judges are extremely intelligent people, the only explanation that he could conceive is that they are unaware of the inferences they are drawing.

Mr. Lee provided a series of often humorous examples from his home circuit to highlight the extent of the problem. He suggested that plaintiff’s lawyers need to do a better job of describing precisely the inferences that can be drawn from the evidence, and being willing to alert judges when they are drawing inferences against the plaintiff. Mr. Lee also suggested that lawyers use examples from other areas of the law to help judges understand the nature of the inferences being drawn. For example, in a hate-crime homicide, no judge would disregard evidence that the defendant made a series of racist statements about the victim after the killing; however, judges have disregarded biased statements made after an employee was fired, because they were “unrelated” to the employment decision at issue.

As one can see, further investigation of the causes of plaintiffs’ lack of success at summary judgment has revealed a variety of suspects. While judges’ willingness to go to great lengths to draw a variety of inferences against plaintiffs is a serious issue, there is also evidence that too many plaintiffs’ lawyers are inviting trouble by failing to brief adequately key issues for the court.

Next up we turn to the effect of recent Supreme Court decisions on pleading standards in employment cases!