Recently, judges from the U.S. Seventh Circuit Court of Appeals, in Chicago, and a judge from the U.S. District Court of New Hampshire have expressed frustration with attorneys for corporate defendants who filed meritless summary judgment motions in employment discrimination cases. A summary judgment motion asks a judge to dismiss a case before trial. In employment discrimination cases, a judge may only grant a defendant-employer’s summary judgment motion if s/he finds that no reasonable jury could find in favor of the plaintiff-employee.
In Malin v. Hospira, Inc. et al., the Seventh Circuit reversed a trial court’s decision to grant Hospira’s summary judgment motion. The plaintiff, Deborah Malin, alleged that Hospira unlawfully demoted her because she (a) complained about sexual harassment, (b) took FMLA leave, or (c) for both reasons. Malin argued that Hospira retaliated against her when it demoted her in 2006 because of a sexual harassment complaint she made in 2003. Hospira argued that no reasonable jury could find that it demoted Malin in retaliation for her 2003 complaint because three years separated the complaint and the demotion. The Seventh Circuit rejected this argument, in part, because of evidence that Hospira had repeatedly retaliated against Malin before the 2006 demotion and, thus, the passage of time could not foreclose her claim. With respect to Malin’s FMLA leave, Hospira argued that it decided to demote Malin before she requested FMLA leave and, as such, could not have taken her FMLA leave into account when it decided to demote her. The Seventh Circuit determined that a jury could reasonably find that Hospira had not, in fact, made its final decision to demote Malin before she requested FMLA leave.
At the end of its decision, the Seventh Circuit expressed “disappointment with Hospira’s approach to summary judgment practice, which is such a common part of modern federal civil litigation and especially employment discrimination cases.” The court noted that “Hospira’s presentation of the evidence amounted to nothing more than selectively quoting deposition language it likes and ignoring deposition language it does not like.” The court cautioned defendants who engage in these types of “shenanigans” that they could face sanctions for unreasonably prolonging cases with these meritless motions.
In the U.S. District Court of New Hampshire, a judge denied the defendant-employer’s motion for summary judgment in Taylor v. eCoast Sales Solutions, Ltd. Taylor alleged that eCoast fired her because she needed leave and to work from home due to medical complications related to her pregnancy and childbirth. eCoast argued that there was no evidence that it fired her because she needed to work from home or take leave. eCoast made this argument even though Taylor testified that her immediate supervisor repeatedly told her that “she needed to be back in the office and she shouldn’t be out on leave and working from home due to her pregnancy.” eCoast dismissed Taylor’s testimony as “unsupported allegations.” The court thoroughly rejected eCoast’s argument because, as much as some employers would like to pretend is not the case, an employee can support her case with her own testimony. The court pointed this out to eCoast in the following way:
It is hardly an esoteric or difficult concept that summary judgment is appropriate only when the record–including the plaintiff’s own competent testimony–fails to demonstrate a genuine issue of material fact. This court is hopeful that, someday, competent counsel’s undoubted awareness of this principle will trump the insistence by certain segments of the bar (undoubtedly driven to some degree by client expectations) on moving for summary judgment in seemingly every case, regardless of the state of the record.
As the judge in the Taylor case noted, many attorneys who represent employers file summary judgment motions in seemingly every employment discrimination case, no matter how strong the evidence of discrimination is. The Maine Employee Rights Group has a lot of experience with summary judgment motions and has a good record of defeating them.