On July 28, 2014, NELA filed an amicus brief in support of a petition for certiorari in the U.S. Supreme Court in Graves v. Deutsche Bank Securities, Inc., No. 13-1546. The petition was filed by NELA members Richard T. Seymour and Eric Schnapper on behalf of petitioner Daniel B. Graves. The issue in this age discrimination case is whether courts should grant summary judgment by relying on inferences that excuse all but the most egregious evidence of discrimination. NELA scrutinizes requests for amicus briefs at the petition stage closely. One was warranted here because this issue falls squarely within NELA’s current amicus priorities of combatting summary judgment abuse and challenging judicially created doctrines that erect barriers to jury trial access to plaintiffs alleging employment discrimination.
Plaintiff Graves held the positions of both director and managing director at defendant Deutsche Bank with responsibility for maintaining relationships with major corporate clients. Graves complained that some of his accounts being were re-assigned to younger bankers with the effect of significantly decreasing his annual bonus. He was terminated days before the bonuses were scheduled to be paid. Graves testified that his supervisor said that the dismissal was not performance based, but motivated because Graves’ accounts were needed for younger bankers. When Graves was terminated, he was almost 42 years old while most of the bankers in his group were under 40. The district court and Second Circuit Court of Appeals relied on a number of judicial doctrines to grant and then affirm summary judgment and further hold that the admission that Graves was fired because his accounts were needed for younger bankers was a stray remark.
The doctrines relied upon to support a finding of no discrimination and the grant of summary judgment were: (1) "same actor" (the decision maker who hired the employee later fired the employee); (2) "same group" (the decision maker is in the same protected group as the fired employee); (3) "token employee" (at least one employee in the protected group is not subject to the same action); and (4) "age differential" (an eight-year age difference between fired and retained employees is too small). By applying these doctrines, the courts failed to decide whether there were triable issues of material fact regarding Graves’ performance, the reassignment of accounts, and the comparability of younger retained employees. Several circuit courts have held that only the most flagrant evidence of discrimination can survive such inferences in favor of the movant; others reject them. Additionally, circuit conflicts exist regarding the use of the same group and same actor doctrines.
NELA's amicus brief argued that these analytical shortcuts in effect operate as evidentiary presumptions that are used with increasing frequency by courts to decide motions for summary judgment in employment cases. The summary judgment standards that have been repeatedly affirmed by the Supreme Court hold that weighing of evidence, drawing inferences from facts, and making credibility determinations are tasks better suited to juries. Because application of these shortcuts involves weighing the evidence and drawing inferences against the plaintiff, their use distorts the standards governing summary judgment and leads to the dismissal of employment claims that should be resolved by juries. Proving intentional discrimination is an inherently difficult task. Because there is rarely "smoking gun" evidence of discrimination, employment cases often are decided based on inferences that may be drawn from circumstantial evidence and assessments of the credibility of witnesses. NELA requested that certiorari be granted to clarify when, if ever, it is appropriate for courts to apply the judicial doctrines identified in the petition to evaluate summary judgment motions in employment cases.
NELA's excellent amicus brief was drafted by Matthew C. Koski, former Paul H. Tobias Attorney Fellow at The Employee Rights Advocacy Institute For Law & Policy, NELA's public interest think tank.