The Motion for Summary Judgment - The Battle That Is Often the War

Posted 5:13 PM by Michael Fox

As anyone who toils on either side of the docket in employment law knows, summary judgment is the engine that most often drives the process. It is the fear of summary judgment that frequently makes an employee and his or her counsel take a settlement offer that might be less than hoped for; it is the denial of a summary judgment and the certainty of trial, that often makes an employer lose heart and up the settlement offer. While an argument can certainly be made that this dynamic is overplayed, particularly on the employer side, it is hard to overstate how big a role it plays. Thus any, even subtle, shift in the way courts view summary judgment in a particular case can seem monumental, although time usually dispels the idea that the earth has actually moved.

A case in point may be last week's debate among three judges of the 3rd Circuit over the way courts should apply the now years' old Supreme Court precedents of St. Mary's Honor Center (1993) and Reeves v. Sanderson Plumbing Products which might well cause at least some discussion whether summary judgment will now be more difficult in discrimination cases in that venue. Fasold v. Justice (3rd Cir. 6/1/05) [pdf].

Fasold, a detective in the Montgomery County DA's office claimed he had been terminated because of his age and in retaliation for filing an EEOC charge of discrimination. The whole dispute centered on the pretext prong of the McDonnell Douglas analysis. The trial court found that Fasold had insufficient grounds to go forward and granted summary judgment; two members of the appellate panel disagreed and reversed. Taking the four reasons the employer gave for firing Fasold, the majority marshalled Fasold's arguments why, believably, each of the four reasons could be false.

Perhaps Judge Aldisert, the dissenter, overstated the consequences of the majority opinion (as dissenters not infrequently do), but the highlighted words will not warm those on the management side of the docket:

Under the Majority’s view, without any affirmative or direct evidence of discrimination whatsoever, a plaintiff may get to trial by offering alternative, less damaging, explanations for his or her actions without in any way disputing the historical or narrative facts offered by the employer. This approach will result in an unfortunate waste of judicial resources by diminishing the ability of district courts to use the tool of summary judgment in these types of cases. The Supreme Court shares my concern and also does not wish to “insulate an entire category of employment discrimination cases from review under Rule 50 [and, I would argue, the same concern applies to Rule 56]” or “treat discrimination differently from other ultimate questions of fact."

The majority rejoins:

That is not only the majority’s view; it is also the view of the Supreme Court of the United States. In Reeves, the Court rejected the view of those circuits that had granted summary judgment for the employer on the ground that the terminated employee had failed to prove more than employer pretext (the “pretext plus” cases).

That even judges of an appellate court have such diverse views on the application of facts to those tests, now more than a decade old, is evidence of just how unclear the line can be.

Almost lost in the dispute over the pretext argument, the court also overturned the summary judgment on Fasold's retaliation claim. He filed his EEOC charge after his initial grievance had been lost, but before a review of that decision had been completed. It was probably not wise for the reviewing officer to mention in his affirmation of the grievance that the EEOC charge was "preposterous." Although the district court viewed it as merely an affirmation of a decision made before the charge was filed, which thus precluded any retaliatory motive, the panel also disagreed on that.

Now, the case goes back to trial. Or, based on the dynamic outlined above, maybe not.

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