Summary judgment

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Cited authorities 244

Cited in

Author	Cathy Ventrell-Monsees
Pages	351-460

SUMMARY JUDGMENT

7-1

CHAPTER 7

SUMMARY JUDGMENT

I. INTRODUCTION

§7:10 The Battleground

II. PROCEDURAL RULES

§7:20 Use Requirements and Standards of FRCP 56 and Local Rules to Your Advantage

§7:30 Governing Rules

§7:40 Timing of Motion for Summary Judgment and Notice for Plaintiff’s Response

§7:40.10 Minimum Time and Notice for Plaintif f’s Response

§7:50 Insist on Discovery Critical to Opposing Motion for Summary Judgment

§7:50.10 File Rule 56(d) Motion and Aff‌idavit Stating Why Discovery Is Needed

§7:50.20 Failure to Pursue Discovery Can Nullify Right to Seek Discovery Under Rule 56(d)

§7:50.30 Discovery Motions Are Not Responsive Pleadings to Rule 56 Motion for Summary Judgment

§7:60 Materials Supporting Opposition to Summary Judgment

§7:60.10 Materials Must Be in Record

§7:60.20 Oppose Defendant’s Statement of Uncontested Facts

§7:60.30 Evidence Challenging Veracity of Defendant’s Reasons

§7:60.40 Using or Challenging Summary Judgment Aff‌idavits

§7:60.40.10 Base Aff‌idavits on Personal Knowledge

§7:60.40.20 Provide Specif‌ic Facts and Context

§7:60.40.30 Do Not Use Plaintiff’s Aff‌idavit to Patch Up His Deposition

§7:70 [Reserved]

III. SURVIVING SUMMARY JUDGMENT

§7:80 Plaintiffs’ Strategies in Opposing Summary Judgment

A. DEMONSTRATING DISPARATE TREATMENT TO AVOID SUMMARY JUDGMENT

§7:90 The But-For Causation Standard is a Sweeping One That Permits Multiple Causes

§7:100 Prima Facie Case Issues at Summary Judgment

§7:100.10 A Weak Prima Facie Case Can Justify Summary Judgment

§7:100.20 Challenges to Establishing Qualif‌ications or Satisfactory Performance

Should Not Be Resolved As Failures of Prima Facie Case

§7:100.30 Disputes About Whether Adverse Employment Action

Occurred Should Preclude Summary Judgment

§7:100.40 Insist on Proper Drawing of Inferences Regarding Fourth Element of Prima Facie Case

SUMMARY JUDGMENT

AGE DISCRIMINATION LITIGATION 72

§7:100.50 Reversible Error to Consider Employer’s Reasons at Prima Facie Stage

§7:100.60 Prima Facie Analysis in RIF Cases

§7:100.70 Factual Disputes Negate Rigid Application of McDonnell Douglas Model

B. PRESENTING SUFFICIENT EVIDENCE OF PRETEXT OR DISCRIMINATION

§7:110 Plaintiff’s Objectives in Proving Pretext

§7:120 Pretext Standard—Reeves v. Sanderson Plumbing Products, Inc.

§7:130 “But-For Causation” Standard Does Not Heighten the Standard for Pretext

§7:140 Challenging the Employer’s Reasons

§7:140.10 Cast Doubt Based on Employer Changing Reasons

§7:140.20 Cast Doubt When Employer Gives Inconsistent or Irreconcilable Reasons

§7:140.30 Cast Doubt Based on a “Bagful” of Reasons

§7:140.40 Cast Doubt Based on Inconsistent Application of Policies or Procedures

§7:150 Challenging Subjective and Objective Reasons

§7:160 Rebutting Defendant’s Cost Argument

§7:170 Do Not Allow Employer’s “Business Judgment” to Be a Shield for Discrimination

§7:180 Employer’s Honest Belief Is Not Pretext

§7:190 Challenge Judge-Made Rules and Inferences that Favor Employers

§7:190.10 Challenge Same Bad Actor Inference

§7:190.10.10 Challenge Same Actor Inference as Contrary to Social Science

§7:190.10.20 Challenge Same Actor Inference as Contrary to Rule 56

§7:190.10.30 Conf‌licting Circuit Court Standards for Same-Actor Inference

§7:190.10.30.10 Cour ts Rejecting Same Actor Inference – It’s Just

Evidence to be Considered

§7:190.10.30.20 Courts Applying Permissive or “Modest”

Standard for Same Actor Inference

§7:190.10.30.30 Circuits Applying a Mandatory Exculpatory

Inference from Same-Actor Evidence

§7:190.10.40 Challenge Expansive Application of Same-Actor Inference

§7:190.20 Challenge “Same Age Group” Inference

C. TYPES OF EVIDENCE

§7:200 Using Evidence of Discriminator y Comments to Withstand Summary Judgment

§7:200.10 Ageist Comments Constituting Direct Evidence

§7:200.20 Ageist Comments Constituting Circumstantial Evidence

§7:200.20.10 Statements by Decision-Makers

§7:200.20.20 Statements by Non-Decision-Makers

§7:200.30 Statements Evidencing an Ageist Corporate Culture

§7:200.40 Ageist Statements Made to Others

§7:200.50 Timing of the Statement

§7:210 Disputed Qualif‌ications as Evidence of Pretext

§7:210.10 Superior Qualif‌ications as Evidence of Pretext

§7:210.20 Comparable Qualif‌ications Generally Insuff‌icient to Demonstrate Pretext

§7:220 Dif ferential Treatment of Similarly Situated Employees

IV. FORMS

Form 310 Plaintiff’s Opposition to Motion for Summary Judgment

Form 311 Plaintiff’s Opposition to Motion for Summary Judgment

Form 312 Plaintiff’s Opposition to Motion for Summary Judgment

Form 315 Plaintiff’s Statement of Material Facts in Dispute (in response to Defendant’s MSJ)

Form 316 Plaintiff’s Statement of Material Facts in Dispute (in response to Defendant’s MSJ)

Form 317 Plaintiff’s Reply to Defendant’s Statement of Undisputed Facts in Support of MSJ

SUMMARY JUDGMENT

73 SUMMARY JUDGMENT §7:10

I. INTRODUCTION

§7:10 The Battleground



  



Blair v. Henry Filters, Inc.

  See, e.g.,  The Age Dis-

crimination in Employment Act at Thirty: Where It’s Been, Where It is Today, Where It’s Going, 





    







Steele v. Mattis, 



Steele











     

    

   





Rivera-Rivera v. Medina & Medina, Inc



Davis-Garett

 













Id.







See,

e.g., Stumm v. Wilkie,

 Franchino v. Terence Cardinal Cook Health Care Center, Inc.

 Bulifant v. Delaware River Authority 

Haskett

v. T.S. Dudley Land Co., Inc.   

Kilgore v. Trussville Development, LLC

 

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