by Michael Fox
Lawyers who defend employment discrimination cases are concerned that the recent Supreme Court Costa decision may make summary judgment more difficult because it does away with the requirement of direct evidence to invoke the mixed motive analysis. The effect, at least it is thought, will make summary judgment more difficult. On the other hand, summary judgment can be elusive even when a court gets that point wrong, as pointed out by today's decision in Kenney v. Swift Transportation, Inc. (8th Cir. 10/17/03) [pdf].
Perhaps because the case was briefed and argued before Costa the Court used this framework: "Kenney has no direct evidence race was a reason for Swift’s failure to hire him, so his claims are evaluated under the burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800-06 (1973)."
While catching a break on that point, the defendant still didn't prevail. Its articulated reason for not hiring the plaintiff, that he had failed to follow the written requirement on the application that it must contain ten years worth of information, was rebutted by plaintiff's sworn statement that he had been told by the employee's representative that he need only provide his most recent employers. Although denied under oath by the employer representative, the Court found that only made for a credibility decision, one that could not be made by the Court on summary judgment. This case clearly shows that even before Costa, when a court strictly applies Reeves Plumbing's rejection of pretext plus, that summary judgment is only a "swearing match" away from being gone.
Once that becomes clear, talk about opening the proverbial 'floodgates of litigation'.