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Crafting Summary Judgment Motions in Employment Litigation: The Fundamentals WEDNESDAY, MARCH 28, 2012

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Today’s faculty features: William C. Martucci, Partner, Shook Hardy & Bacon, Washington, D.C. Veenita D. Raj, Michelman & Robinson, Los Angeles

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Crafting Summary Judgment Motions in Employment Litigation: The Fundamentals Part I

Presented by:

Veenita D. Raj Senior Associate, Labor & Employment Michelman & Robinson, LLP 818.783.5530 [email protected]

Rule 56 of the Federal Rules of Civil Procedure and the Summary Judgment Standard  Rule 56 of the Federal Rule of Civil Procedure provides for the filing of a motion for summary judgment in advance of trial: o Motion for Summary Judgment or Partial Summary Judgment.  A party may move for summary judgment, identifying each claim or defense (or the part of each claim or defense) on which summary judgment is sought.  The court shall grant summary judgment if:  No genuine dispute as to any material fact, and  Might affect under governing law.  For a dispute to be “genuine,” the evidence must be such that a reasonable jury could find in favor of the non-moving party.

 The movant is entitled to judgment as a matter of law.

o Time to File a Motion  Anytime until 30 days after close of all discovery, unless different time is set by local rules or the court.

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Rule 56 of the Federal Rules of Civil Procedure and the Summary Judgment Standard o Procedures  Supporting factual positions.  Citing to particular parts of the material in the record.  Depositions, documents, electronically stored information, affidavits or declarations, stipulations, admissions, interrogatory answers or other materials; or  Authenticity

 Showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

 Objection that a fact is not supported by admissible evidence.  Materials not cited.  Affidavits or Declarations.

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Rule 56 of the Federal Rules of Civil Procedure and the Summary Judgment Standard  When facts are unavailable to the nonmovant.  Failing to properly support or address a fact.  Judgment independent of the motion.  Failing to grant all the requested relief.  Affidavit or declarations submitted in bad faith.

 The standard for determining summary judgment pursuant to Rule 56 mirrors the standard for determining whether a directed verdict is appropriate under Rule 50(a).  Courts must review the record “taken as a whole.” o The nonmoving party may not rest upon mere allegations or denials of the adverse party’s pleading, but must set forth specific facts:  By affidavit or other admissible evidence.  That demonstrates that there is a genuine issue for trial. Page 4 Summary Judgment Motions in Employment Law March 28, 2012

Rule 56 of the Federal Rules of Civil Procedure and the Summary Judgment Standard  U.S. Supreme Court on what should not be considered by the court in granting or denying a rule 56 motion: o Credibility determinations and the drawing of inferences from the facts are jury functions, not those for a judge. o The evidence on the nonmovant is to be believed and all justifiable inferences to be drawn in his favor.

 Although courts have emphasized that credibility determinations are to be made by a trier of facts, courts continue to examine affidavits pursuant to Rule 56(e) mandates, in reviewing the record as a whole [Matsushita Electric Indust. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1985)]. o Rule 56(e) affidavits must not be conclusory or based upon hearsay.

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Summary Judgment in Employment Discrimination Cases  Historic view of utilizing summary judgment in employment discrimination cases: o Should seldom be utilized in employment discrimination cases. o Because employment-based lawsuits are inherently fact-based (i.e., facts are presumptively in dispute). o Courts intentionally applied a narrower standard in deciding summary judgment motion. o Results were favored by employees and former employees. o Lawyers found themselves advising clients against incurring the significant expenses (attorneys’ fees) involved in preparing such motions.

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Summary Judgment in Employment Discrimination Cases  1986 trilogy of cases by the Supreme Court [Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 1986); Anderson v. Liberty Lobby, 477 U.S. 242 (1986); Celotex v. Catrett, 477 U.S. 317 (1986)]. o Completely changed the landscape. o Made it easier for defendants to obtain summary judgment in cases of at least arguable discrimination. o Courts are no longer reluctant to grant summary judgment in cases where there exists questions of fact concerning the employer’s motive. o Have made obtaining summary judgment much easier. o Courts have applied these decisions in employment discrimination cases with greater frequency.

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Summary Judgment in Employment Discrimination Cases  Anderson v. Liberty Lobby o Trial courts are obligated to determine not only whether there is a factual dispute, but whether the evidence identified in the summary judgment opposition would satisfy the plaintiff’s burden of proof at trial.  McDonnell Douglas framework to make summary judgment determinations [McDonnell Douglas v. Green, 411 U.S. 792 (1973)].

o Courts must now evaluate a party’s evidence and determine its probative value at summary judgment. o A non-moving party cannot point to some supporting evidence to satisfy his burden of production if it will not sustain the burden of proof on the merits.

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Summary Judgment in Employment Discrimination Cases  Celotex v. Catrett o A defendant may successfully move for summary judgment merely by pointing out that there is an absence of evidence to support the nonmoving party’s case. o Essentially, defendant only has to point out that the plaintiff has insufficient evidence to raise a “genuine issue” as to any material fact. o Loosened the burden of the defendant to prove an absence of any genuine issue of material fact and requires the plaintiff to affirmatively show that such an issue exists. o Result  Plaintiff is required to meet the ultimate burden of proof at summary judgment stage instead of trial.

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Summary Judgment in Employment Discrimination Cases  Matsushita Electric Industrial Co. v. Zenith Radio Corp. o Issues such as intent and motive may be appropriate for determination by a motion for summary judgment. o Instructs trial judges to “weigh the evidence and to decide which inference was more reasonable in light of the evidence.” o Like Anderson v. Liberty Lobby, urged trial judges to evaluate the probative value of evidence at the summary judgment stage.  AND if there is a question of plausibility of the theory of liability, more evidence is necessary to avert summary judgment.

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Summary Judgment in Employment Discrimination Cases  Despite this, courts were still reluctant to use summary judgment in employment cases.  Recent change in the historic view o Torgerson v. City of Rochester, 643 F.3d 1031 (8th Ct. App., 2011)  The 8th Circuit revisited summary judgment standard in employment discrimination context and discounted earlier opinions that found that summary judgment should “seldom” or “sparingly” be granted in discrimination cases.  Held that the U.S. Supreme Court has unequivocally found that district courts should not “treat discrimination differently from other ultimate questions of fact.”  Summary Judgment – not a disfavored procedural shortcut.  Integral part of the Federal Rules as a whole.  Designed to secure the just, speedy, and inexpensive determination in every action.

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Summary Judgment in Employment Discrimination Cases  NO UNIFORM STANDARD o Courts of Appeals disagree of the proper standard for summary judgment in employment discrimination cases.  Use both the McDonnell Douglas burden shifting test and the motivating factor test of Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), in making determinations of summary judgment mixed-motive employment discrimination cases.

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Summary Judgment in Employment Discrimination Cases  McDonnell Douglass Standard (8th & 11th Circuit) o Raised the bar that plaintiff’s must meet to survive a motion for summary judgment.  Shifts the burden in summary judgment from the defendant, the typical moving party, to the plaintiff.  Requires plaintiff to prove an assertion - not a fact that will necessarily be proven at trial (that is the employer’s mere articulation).

o Once the defendant articulates a legitimate, non-discriminatory reason, the plaintiff has to show pretext.  In proving pre-text, plaintiff must produce evidence of such weakness, implausibility's, inconsistencies, incoherencies, or contradictions, in the employer’s proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted non-discriminatory reasons.

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Summary Judgment in Employment Discrimination Cases o Cases  Griffith v. City of Des Moines 387 F.3d 733 (8th Cir. 2004). If no direct evidence, use McDonnell Douglass. If direct evidence is present, then Plaintiff may be able to prove his prima facie case. No need to proceed to 3 prong McDonnell Douglass analysis.  Cooper v. S. Co., 390 F.3d 695 (11th Cir. 2004) [(overruled on other grounds, see Ash V. Tyson Foods, Inc. 546 U.S. 454, 457 (2006).]

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Summary Judgment in Employment Discrimination Cases  Price Waterhouse v. Hopkins 490 U.S. 228 (1989) (Birth of MixedMotive case) o Legitimate and illegitimate considerations were actual basis for the adverse action. o Plaintiff must show by “direct evidence” that an illegitimate criterion was a substantial factor in the decision. o Shifts the burden of persuasion to defendant once plaintiff shows that an impermissible factor was a motivating factor in the adverse decision.  Plaintiff would prefer this because only required to show impermissible factor motivated instead of proving that all legitimate, non-discriminatory reasons proffered by a defendant are pretextual.  On the other hand, employers were able to avoid liability in mixed-motive cases by showing that they would have taken the same action despite being motivated by an impermissible reason.

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Summary Judgment in Employment Discrimination Cases  1991 Title VII Amendment – Response to Price Waterhouse o An unlawful employment act is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice. o Under Price Waterhouse employers were able to completely avoid liability.  Now the employer can only reduce the scope of remedies available to a successful plaintiff and not avoid liability.

o This amendment was silent on what type of evidence is required for plaintiff to successfully demonstrate the illegal motivation.

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Summary Judgment in Employment Discrimination Cases  The Courts of Appeal were divided on the type of evidence required. o Vast majority maintained some form of “direct evidence” standard in mixedmotive cases despite the amendment. o “Direct evidence” is not the same for every judge. [See Tyler v. Bethlehem Steel Corp., 958 F.2d 1176 (2d Cir. 1992)].  i.e., Fourth Circuit retained the direct evidence standard, requiring the plaintiff to proffer almost “smoking gun” evidence of conduct or statement that both reflected discrimination animus and bore directly on the contested employment decision.  Other courts - evidence that is sufficient by itself to show discriminatory animus.

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Summary Judgment in Employment Discrimination Cases  Desert Palace, Inc. v. Costa 539 U.S. 90 (2003) o Eliminated “direct evidence” standard from mixed-motive cases. o Circumstantial evidence is all that is needed. o Desert Palace does not provide any guidance as to what constitutes sufficient evidence to demonstrate discrimination and merit the mixed-motive instruction. o Title VII requires plaintiff to demonstrate not merely infer the employer’s use of an illegitimate criterion. o This is different quality of evidence than the inferential McDonnell Douglas framework. o Consistent with the amendment.  Not all courts follows this, i.e. 8th circuit.

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Summary Judgment in Employment Discrimination Cases  Modified McDonnell Douglas Standard (Fifth Circuit) merging of McDonnell Douglas and Price Waterhouse approach. o Plaintiff must establish a prima facie case of discrimination and create an inference of illegal discrimination. o Burden shifts to defendant to articulate a legitimate non-discriminatory reason for making an adverse employment decisions. o Burden shifts back to the plaintiff to produce evidence either  Defendant’s reason is not true but is instead pretext for discrimination (the pretext alternative) OR;  That the Defendant’s reason while true is only one of the reasons for its conduct and another motivating factor is the plaintiff’s protected characteristics (mixedmotive alternative).

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Summary Judgment in Employment Discrimination Cases o If a plaintiff is able to show that his protected characteristic was a motivating factor in the employer’s adverse employment decision, the employer must prove that it would have made the same decision regardless of the discriminatory factor.

o Cases  Rachid v. Jack in the Box, Inc., 376 F.3d 305 (5th Cir. 2004); same standard for ADEA cases.

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Summary Judgment in Employment Discrimination Cases  McDonnell Douglass or Motivating Factor (4th, 9th and D.C. Circuit) o Middle of the road approach  Plaintiff may survive summary judgment by using the traditional McDonnell Douglas burden shifting analysis.

 ALTERNATIVELY, the plaintiff can present direct or circumstantial evidence that raise a genuine issue of material fact as to whether an impermissible factor such as race motivated the employer’s adverse employment decision.  The impermissible factor does not have to be the sole factor, but it must have been a motivating factor.  If so, plaintiff has a claim for unlawful employment practice.

o Cases  Diamond v. Colonial Life & Accident Insurance Co., 416 F.3d 310, 318 (4th Cir. 2005).

 Fogg v. Gonzalez 492 F.3d 451 & n* (D.C. Cir. 2007).  McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1122 (9th Cir. 2004).

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Summary Judgment in Employment Discrimination Cases  Baxter Framework (Sixth Circuit) o Effectively removes summary judgment from the equation of mixed-motive disparate treatment cases [White v. Baxter Corp., 533 F.3d 381 (6th Cir. 2008)].  Sixth Circuit declined to extend the McDonnell Douglas burden shifting framework to summary judgment in mixed-motive cases.  Is the minority view and has not gained much traction.

o To survive a summary judgment motion, a plaintiff in asserting a mixedmotive claim need only produce evidence sufficient to convince a jury:  The defendant took an adverse employment action against the plaintiff, and  Race, color, religion, sex, or national origin was a motivating factor for the defendant’s adverse employment action.

o Burden on the plaintiff is not onerous, and

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Summary Judgment in Employment Discrimination Cases o Precludes sending the case to the jury only:  Where the record is devoid of evidence that could reasonably be construed to support the plaintiff’s claim.  Plaintiff in mixed motive case need only show:  that defendant impermissibly relied on a protected characteristic and  that the protected characteristic was a motivating factor for any employment practice even though other factors also motivated the practice.

o Thus to survive summary judgment plaintiff need only establish:  That a discriminatory animus played a part in the employment decision, and  Not rebut all legitimate reasons offered by the defendant.

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Summary Judgment in Employment Discrimination Cases o The question for the court is whether the plaintiff is able to provide sufficient evidence that his protected status played a motivating role in a defendant’s employment decision.  A court making summary judgment decision must not ask whether the plaintiff has produced sufficient evidence to survive the McDonnell Douglas shifting burdens, but rather whether there are any genuine issues of material fact concerning the defendant’s motivation for its adverse employment decision, and, if none are present, whether the law supports a judgment in favor of the moving party on the basis of undisputed facts.

 Thus under Baxter, if a plaintiff can put forth any evidence that could reasonably be construed to support his claim, he has created a genuine issue of material fact.  7th Circuit appears to have not considered the issue, but earlier this year, (albeit in a concurring opinion), asked whether the McDonnell Douglas test still has any utility. See Coleman v. Donahoe 677 F.3d 835 (7th Cir. 2012) Page 24 Summary Judgment Motions in Employment Law March 28, 2012

Summary Judgment in Employment Discrimination Cases  Age Discrimination in Employment Act (ADEA) o McDonnell Douglass Framework  Almost all circuits that have considered the issue (See Shelley v. Geren 666 F.3d 599 (9th Cir. 2012); Rahlf v. Mo-Tech Corp., 642 F.3d 633 (8th Cir. 2011).  Gross v. FB Financial Services, Inc., 129 S. Ct. 2343 (2009), did not abrogate the use of McDonnell Douglass and impose a higher standard.  At trial employee must prove that age was the “but-for” cause of the employer’s adverse action.  Mixed-motive standard improper at trial.  Unlike Title VII, the ADEA’s text does not provide that a plaintiff may establish discrimination by showing that age was simply a motivating factor.

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Summary Judgment in Employment Discrimination Cases o Pretext may be proven by direct or indirect (unbelievable or unworthy credence) evidence,. i.e. in Shelley – inquiry regarding plaintiff’s retirement date; plaintiff’s superior qualifications. o Modified McDonnell Douglass Approach – 5th Circuit. (Use of “motivating factor” altough inconsistent with ADEA’s text.)

 Americans With Disability Act (ADA) o Retaliation claims McDonnell Douglass burden shifting (see Brown v. City of Tucson 336 F.3d 1181 (9th Cir. 2003).

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Summary Judgment in Employment Discrimination Cases  Equal Pay Act o King v. Acosta Sale and Marketing, Inc., No. 11-3617 (7th Cir. March 15, 2012)  McDonnell Douglass was inapposite to the facts.  An employee’s only burden under the Equal Pay Act is to show a difference in pay for “equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions” (§206(d)(1)).  An employer asserting that the difference is the result of a “factor other than sex” must present this contention as an affirmative defense – and the proponent of an affirmative defense has the burdens of both production and persuasion.

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Thank You for Attending Veenita D. Raj Senior Associate, Labor & Employment Michelman & Robinson, LLP 818.783.5530

[email protected]

Legal Developments Affecting Motions to Dismiss/Summary Judgment and Strategies for Employers*

GENEVA | HOUSTON | KANSAS CITY | LONDON | MIAMI | ORANGE COUNTY | SAN FRANCISCO | TAMPA | WASHINGTON, D.C.

William C. Martucci National Employment Litigator & Policy Strategist 202-783-8400 [email protected] Special thanks to Michele L. Maryott of Gibson, Dunn & Crutcher for much of the materials pertinent to the following slides concerning motions to dismiss.

The Dynamic Duo: Twombly and Iqbal Bell Atlantic Corporation v. Twombly set the standard: •

Supreme Court held in context of antitrust claim that Rule 8 requires sufficient facts to “state a claim to relief that is plausible on its face”

•

“Formulaic recitation of elements” is not enough

•

Supreme Court: this standard “does not require heightened fact pleading”

Bell Atlantic Corporation v. Twombly, 550 U.S. 544 (2007) 34

The Dynamic Duo: Twombly and Iqbal Ashcroft v. Iqbal clarifies the Twombly standard: •

Facial plausibility exists “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal at 1949.

•

Probability > Plausibility > Conceivability

•

Guidance? “Judicial experience and common sense”

Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) 35

The Dynamic Duo: Twombly and Iqbal

Two-pronged approach for ruling on 12(b)(6) motions: 1.

Separate factual allegations from mere conclusions

2.

Assume truth of factual allegations and “determine whether they plausibly give rise to an entitlement to relief”

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What About Swierkiewicz? Is Swierkiewicz v. Sorema, N.A., 534 U.S. 506 (2002), Still Good Law? • Plaintiff’s complaint need not include specific facts establishing a prima facie case of discrimination and “instead must contain only ‘a short and plain statement of claim showing that the pleader is entitled to relief.’” Swierkiewicz at 508. • Courts are split on whether Swierkiewicz standard still applies after Iqbal

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Twombly/Iqbal in Action: Retaliation Pre-Twombly/Iqbal Complaint:

Post-Twombly/Iqbal Complaint:

McMahom v. New York City Board of Ed.

Coleman v. Tulsa City Bd. Of City Commissioners (N.D. Okla. Aug. 11, 2009)

Retaliation complaint failed to: • provide dates of protected speech • to whom the speech was directed • show that protected speech was the cause of defendant’s actions

Retaliation complained failed to: • provide dates • describe “unreasonable disciplinary actions”

(E.D.N.Y. Dec. 12, 2006)

Held: 1. Complaint “insufficiently detailed” but, “possible to understand nature of allegations with sufficient clarity to overcome low bar” of Rule 8 2. “On a motion to dismiss, it is too soon to tell whether the facts will show a causal connection between [protected speech] and the charges.”

Held: 1. Allegations closely resemble legal conclusions 2. “While it is conceivable that plaintiff can state a claim against defendant, she has not pled sufficient facts…to nudge her claims from conceivable to plausible.” 3. Plaintiff’s complaint “may have survived under Conley, but the Court no longer applies the ‘no set of facts’ standard that formerly governed motions to dismiss.

Motion to Dismiss = Denied

Motion to Dismiss = Granted 38

Twombly/Iqbal in Action: Retaliation Motion denied: • Rollins v. Verizon Maryland, Inc., 2010 WL 4449361 (D.Md., Nov. 5, 2010): plaintiff alleged that she was denied opportunity to work overtime and was denied access to her personnel file after making complaint of discrimination, but she did not specify causal connection; court held it was reasonable to infer plaintiff wanted access to her personnel file to pursue her discrimination claims and found allegations sufficient to state plausible claim for retaliation

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Twombly/Iqbal in Action: Hostile Work Environment Motion granted: • Dorsey v. Georgia Dept. of State Road & Tollway Auth., 2009 WL 247756 (N.D. Ga. Aug. 10, 2009): plaintiff alleged “numerous” racially disparaging remarks, without specifying any • Coleman v. Tulsa County Board, 2009 WL 2513520 (N.D. Okla. Aug. 11, 2009): plaintiff alleged she was subjected to offensive and insulting comments, without specifying any

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Twombly/Iqbal in Action: Hostile Work Environment Motion denied:

• Gillman v. Inner City Broadcasting Corp., 2009 U.S. Dist. LEXIS 85479 (S.D.N.Y. Sept. 18, 2009): plaintiff alleged specifics regarding company director’s unwanted advances and unsolicited gifts, his complaint to management and prompt termination afterwards

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Twombly/Iqbal in Action: Disability Discrimination Motion denied: • Fowler v. UPMC Shadyside, 578 F.3d 203 (3d. Cir. 2009): plaintiff’s allegations that she “believed” she was terminated because of her disability deemed sufficient to avoid motion to dismiss; court found that identification of impairment and alleged limitation to sedentary work plausibly suggested she might be substantially limited in major life activity; plaintiff had not pleaded elements of prima facie case Motion granted: • Williams v. Temple Univ. Hosp., 2010 WL 4540328 (3d Cir. 2010): plaintiff’s allegation that she was injured at work but later sent back to work on full duty status held not sufficient to give rise to plausible claim for relief under ADA; court noted that the Iqbal “standard is not an extraordinarily high one” 42

Twombly/Iqbal in Action: Age Discrimination Motion granted: • Adams v. Lafayette College, 2009 WL 2777312 (E.D. Penn. Aug. 31, 2009): allegations that younger employees were treated differently on several occasions and that plaintiff received harsher treatment because of his age were insufficient legal conclusions Motion denied: • Martinez v. RZB Finance LLC, 2010 WL 4449031 (S.D.N.Y. Nov. 5, 2010): allegation that younger, higherpaid white male replaced her as Chief Accountant after her unexplained demotion sufficient to survive motion to dismiss attacking ADEA and Title VII discrimination claims 43

Effective Use of the Twombly/Iqbal Standard Key Considerations: • Removal • Know your judge’s post-Iqbal rulings • Think ahead regarding leave to amend • Credibility is essential – don’t file 12(b)(6) motion merely for sake of filing • If you do file, consider moving to stay discovery 44

Challenges to Twombly/Iqbal • Notice Pleading Restoration Act of 2009 −Senate Bill 1504 introduced in July 2009 −Would prohibit dismissal under 12(b)(6) or (e) “except under the standards set forth … [in] Conley v. Gibson” •Open Access to Courts Act of 2009 −House Bill 4115 introduced in November 2009 −Affirmatively adopts “no set of facts” rule •Both sitting in respective chambers’ judiciary committees •Overreaction/Appropriate •Current Status 45

Difference Between Summary Judgment Motions & Motions to Dismiss* • Summary judgment is decision made by court without trial that may resolve all or part of legal issues in a case. • Must establish there are no genuine issues of “material fact,” or that key facts in the case are not in dispute. • Must show that applying the law to these facts, there can be no other outcome but one in their favor. • Understanding Rule 56 and its underpinnings.

*Special thanks to Teresa Rider Bult of Constangy Brooks & Smith for much of the materials pertinent to the following slides concerning defense strategies. 46

State and Federal Court •Federal courts may be inclined to reading the standard as favoring disposition of cases on summary judgment. •Judicial approach to SJ changed meaningfully in 1980s with Supreme Court’s decision in 3 key cases, so-called “summary judgment trilogy”: −Celotex Corp. v. Catrett, 477 U.S. 317 (1986) −Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), &

−Matsushita Electric Industrial Crop., 475 U.S. 574 (1986).

Co. v. Zenith Radio

•Decisions made it much easier for defendants in federal cases to win on summary judgment and placed more significant burdens on plaintiffs who opposed summary judgment. 47

State and Federal Court •State courts can and have established their own benchmarks describing when a moving party is entitled to summary judgment. −some states follow the federal standard, −other states have specifically declined to follow the federal model and have adopted a different, and usually more rigorous, standard. •Thus, venue can drastically impact the likelihood of success on summary judgment. −This informs the business decision faced by many employers as to whether or not filing summary judgment is worthwhile. 48

Summary Judgment – Often “the Trial” in Employment Cases • In the employment context, summary judgment is particularly important, as most employers rely on this procedure to quickly dispense of their cases. • Juries are unpredictable in the best of circumstances, but in employment cases, where every juror has been an employee at some point in their lives and therefore believes they have an industrial expertise, juries can be more problematic. • Combined with the problem that every employee has likely had or knows of someone who has had a bad boss or bad employment experience, the prospect of bringing an employment case to a jury can be daunting.

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So How do Defendants Win in the Summary Judgment Context?

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Key Documents to Obtain Summary Judgment • Documentation/warnings leading up to performancebased discipline • Records showing consistency with other employees • Policies which lay out basis for disciplinary/termination decision • Performance Reviews that reflect a history of the performance problem • Accurate and timely documentation

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Depositions and Written Discovery •Have summary judgment motion outlined & research done

before deposition – know what admissions you need. •Tie witness down on allegation – recap, “So these are the 5 things you are saying XYZ company did to discriminate against you?” •Touch every document in the case before the deposition – do not be surprised. •Credibility issues arising at depositions don’t help as much with summary judgment (but have to prepare for trial) •Written discovery – helps plaintiff more than defendant, BUT before deposition, try to get: −Medical Records −Past Employment Records −Email addresses −Do a Background Check 52

Drafting the Brief and Statement of Undisputed Facts •Focus on the law •Sure way to lose: disputed facts − Don’t dispute facts that the other side has contradicted in depositions (even if minor) − Minimize those facts that the other side says are disputed − Keep your own facts to a minimum – most important − Statement of Undisputed Facts should be like Requests for Admission •Write, rewrite, and rewrite again – clarity and easily readable •Analyze venue re: whether will have hearing 53

Strategic Considerations • Venue – Federal Court where possible • Business considerations • Is it worth it to draft a motion for summary judgment even if you think you won’t win? • Should you file a partial motion for summary judgment? • Do you raise the legal argument you aren’t sure other side will raise?

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Recent Caselaw as Illustrations • Hannan v. Alltel Publishing Co., 270 S.W.3d 1 (Tenn. 2008) • Gossett v. Tractor Supply Co., Inc., 320 S.W.3d 777 (Tenn. September 20, 2010) ‒ Defendant must produce evidence that (1) affirmatively negates an essential element of the nonmoving party’s claim; or (2) shows that the nonmoving party cannot prove an essential element of the claim at trial.

• “Evidence

satisfying an employer’s burden of production pursuant to the McDonnell Douglas framework does not necessarily demonstrate that there is no genuine issue of material fact.”

‒ Then plaintiff’s burden to show genuine issues of materials fact as to that element.

• ”Our holding does not exclude the possibility of summary judgment when an employer presents undisputed evidence that a legitimate reason was the exclusive motivation for discharging the employee.” 55

Effective Summary Judgment Practice

•Recalibrating the Strategy •Understanding the Mechanics •Delighting the Client

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Fed. R. Civ. P. 56 and Applicable State SJM Rules •Reading and re-reading the rule •Understanding the structure for the brief itself •Implementing the mechanics

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Local District Court Rules (Examples) •Northern District of California •District of Columbia •Middle District of Florida •Southern District of Florida •District of Kansas •Eastern District of Louisiana •Western District of Missouri •Southern District of Texas

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Evidentiary Considerations: The Role of Discovery

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Effective Briefing Skills – The Joy of the Focus

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1. Persuade the Court with the Facts in the Opening of Your Brief

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2. Present the Undisputed Facts in Crisp, Clear, Simple Language

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3. Make Certain the Record Clearly Supports Your Statement of the Facts

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4. Keep Your Organization Clear, Simple, and Comprehensive

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5. Simplify the Legal Analysis – Set Forth the Legal Framework & Relevant Cases

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6. Maintain Your Credibility Throughout the Brief – Do Not Overreach in Your Position, in Case Holdings or in Other Areas (Avoid Personal Attacks – Strive for Professionalism and the High-Ground)

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7. Proof Carefully – Avoid Basic Mistakes in Grammar and Case Citations

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8. Double Check All Exhibits and Attachments to Ensure That Documents are Complete, There are No Privilege/Confidentiality Issues and All Citations to the Record are Accurate

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9. Understand the Role of the Summary Judgment Brief in Your Relationship with the Client

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10. Consider the Briefing Process As One Component of Your Overall Trial Development Strategy

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The Briefing Process Enjoying the moment/making the brief come alive “The Joy of Motion Practice,” 24 The Litigation Journal 15 (Winter 1998) Additional resource: Civil Trial Practice Desk Book: Chapter 43, Summary Judgment

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About William C. Martucci National Employment Litigator & Policy Strategist Shook, Hardy & Bacon Washington, DC

Mr. Martucci, who holds an LL.M. in Employment Law from Georgetown University in Washington, D.C., practices nationally in complex class action (employment discrimination and wage & hour) and EEOC litigation. Chambers notes “Bill Martucci is worth having on any dream team for employment litigation and policy issues.” His jury work has been featured in The National Law Journal. He is listed in the Euromoney Guide to the World’s Leading Labour and Employment Lawyers and The Best

Lawyers in America for Business and Employment Litigation. He teaches multinational business policy at Georgetown.

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