It's not your father's summary judgment: recent developments in the use of summary judgment to resolve employment discrimination cases.

• Author: Kraftchick, Lee A.

Lawyers who have practiced employment law for more than a few years have witnessed a dramatic change in the use of summary judgment to resolve employment discrimination disputes. As recently as five years ago, it was not unusual to find courts stating that summary judgment was disfavored and to be used rarely, sparingly, or with special caution in such cases. In the last few years, however, summary judgment has become one of the most common ways to resolve discrimination cases.

Being able to determine as quickly as possible which cases are likely to survive summary judgment and which are not is one of the most valuable skills an employment lawyer can develop in today's legal environment. While summary judgment is traditionally viewed as a tool to be used by the employer, in many ways it is even more important for a plaintiff's lawyer to have a firm understanding of the summary judgment standard. Many employment discrimination cases are taken on contingency; the ability to quickly assess the likelihood of surviving summary judgment helps to avoid accepting or pursuing cases with little chance of recovery. Moreover, losing plaintiffs are presumptively responsible for the prevailing defendant's costs, which may amount to several thousands of dollars. (1) If the plaintiff's attorney's assessment of the case is seriously flawed, the plaintiff may also be liable for the defendant's attorney's fees. (2) Time spent in advance learning what cases are likely to survive summary judgment will save considerable time, not to mention expense, later.

The Federal Summary Judgment Standard

The federal summary judgment standard is well established. (3) Under Fed. R. Civ. P. 56, the party moving for summary judgment bears the initial burden of informing the court of the basis for its motion and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact. (4) This burden is a minimal one, and it does not necessarily require the moving party to support its motion with affidavits or other materials negating the non-moving party's claim. (5) Rather, "the burden on the moving party may be discharged by 'showing--that is, pointing out to the district court--that there is an absence of evidence to support the nonmoving party's case." (6)

Once the moving party meets its initial burden, the burden shifts to the nonmoving party to go beyond the pleadings and come forward with depositions or other evidentiary materials which show there is a genuine issue of material fact. (7) Specifically, it is the nonmoving party's burden to come forward with evidence on each essential element of his claim sufficient to sustain a jury verdict. (8) To overcome a motion for summary judgment, a plaintiff must do more than simply show there is "some metaphysical doubt as to the material facts." (9) "A mere scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." (10)

Employment Discrimination Cases

At first blush, one would expect the standard for granting or denying summary judgment in employment discrimination cases to be the same as for any other case. Until a few years ago, however, judicial opinions regularly included language suggesting that summary judgment is somehow especially inappropriate in such matters. More recently, the courts have tried to dispel any lingering notion that summary judgment should be applied differently in employment cases than in other matters.

Virtually every circuit has at one time or another expressed the view that summary judgment is disfavored in employment discrimination cases. The District of Columbia Circuit, for example, has said that "in discrimination cases summary judgment must be approached with special caution." (11) The First Circuit has stated that "we must exercise particular caution before sustaining summary judgments for employers on such issues as pretext, motive, and intent." (12) Similarly, the Second Circuit has stated that "an extra measure of caution is merited in affirming summary judgment in a discrimination action." (13) The Fourth Circuit has stated that summary judgment is "seldom appropriate" in discrimination cases. (14) The Fifth Circuit has repeatedly stated that summary judgments "are particularly questionable in cases of employment discrimination." (15) The Seventh Circuit has frequently stated that the summary judgment standard is to be applied with "added rigor" in discrimination cases. (16) The Eighth Circuit has stated that "summary judgment should be used sparingly in employment discrimination cases," (17) and the Tenth Circuit has said "summary judgment should seldom be used in employment discrimination cases." (18) Opinions from the 11th Circuit include such remarks as, "[a]s a general rule summary judgment is not a proper vehicle for resolving claims of employment discrimination which often turn on an employer's motivation and intent," (19) and "summary judgment in employment discrimination cases ... is especially questionable." (20)

Despite these cautionary statements, in practice the courts have seldom refrained from granting summary judgment in any employment case in which the facts warranted it. As a result, it is not unusual to find cases in which the court voices extreme concern about using summary judgment to resolve an employment discrimination dispute at the same time that it affirms summary judgment. (21)

In more recent cases, the courts have begun to acknowledge expressly what had previously been recognized only as a matter of practice--that summary judgment can and does play an important role in employment discrimination cases. Thus, for example, the Second Circuit recently stated that despite the cautionary language it may have used in earlier decisions, there is no longer any question that "summary judgment remains available for the dismissal of discrimination claims in cases lacking genuine issues of material fact." (22) Similarly, the Fourth Circuit has stated that despite previous admonitions that summary judgment is "seldom appropriate" in employment discrimination cases, in fact "[t]he standards for awarding summary judgment apply equally in discrimination cases, even where the motive or intent of the defendant is at issue." (23) The Seventh Circuit has also disavowed much of its earlier summary judgment rhetoric, stating that "regardless of our inclusion of the phrase 'added rigor' in prior cases, we review a district court's decision to grant a motion for summary judgment on a claim involving issues of employment discrimination as we review any case brought before this court involving the review of a grant of summary judgment." (24)

The 11th Circuit en banc directly confronted the cautionary language contained in some of the court's previous opinions in Chapman v. AI Transport, 229 F.3d 1012 (11th Cir. 2000). The court acknowledged that some of its "opinions from past years purport to announce '[a]s a general rule [that] summary judgment is not a proper vehicle for resolving claims of employment discrimination which often turn on an employer's motivation and intent,'" (25) but added that the rule was not consistently followed in the past and that there is "no question that it has not been followed in recent years." (26) The court pointed out that "[s]ummary judgment is hardly unknown, or for that matter rare, in employment discrimination cases, more than 90 percent of which are resolved before trial.... many of them on the basis of summary judgment for the defendant." (27) The court concluded that whatever it might have said in the past, "[t]he long and short of it is that the summary judgment rule applies in job discrimination cases just as in other cases. No thumb is to be placed on either side of the scale." (28)

While the court's opinion does disavow language contained in several earlier opinions, it is hardly a radical change in the law. In fact, the conclusion that summary judgment applies with equal force to employment discrimination cases is compelled by Supreme Court precedent. As the 11th Circuit noted, while the Supreme Court has said that questions of fact in job discrimination cases are "both sensitive and difficult" and "[t]here will seldom be 'eyewitness' testimony as to the employer's mental processes," it has also stated that "none of this means that trial courts or reviewing courts should treat discrimination differently from other ultimate questions of fact." (29) The Supreme Court has made clear that it would be inappropriate to insulate employment discrimination cases from judicial review under the same standards as other civil cases. (30)

Previous 11th Circuit cases foreshadowed the court's opinion in Chapman. As early as 1990, the court noted that despite the cautionary language in earlier cases, "summary judgments for defendants are not rare in employment discrimination cases." (31) In Raney v. Vinson Guard Service, Inc., 120 F.3d 1192, 1197 (11th Cir. 1997), the court added that under the then-current state of the law, in order to avoid summary judgment in an employment discrimination case, the plaintiff is "effectively required to put forth her entire case ... to persuade the court that a reasonable factfinder could rule in the plaintiff's favor."

Discrimination Issues

Knowing generally that summary judgment is an appropriate tool to use in employment cases does practitioners little good if they do not know when to use it. Under the right circumstances, summary judgment can, of course, be used to resolve almost any issue that may arise in an employment discrimination case, but some issues common to many cases are especially appropriate for summary resolution.

For example, summary judgment is frequently used to dispose of cases where the plaintiff fails to show that he was treated less favorably than persons outside his protected classification. (32) If the plaintiff...