Beating Summary Judgment

or

How Not to Have to Ask Yourself Why You Took This Dog of a Case

Harvey A. Schwartz

National Employment Lawyers Association

Northeast Regional Conference

May 10, 1976

Unlike our brethren who toil in the fact-based fields of red light-green light collisions, slips-and-falls on banana peels in grocery stores and doctors who amputate the wrong leg, those of us fighting the good fight for civil rights know to expect a defendant's motion for summary judgment in just about every case. Even when we walk into a courtroom girded for trial with our first day's witnesses and a jury venire waiting in the wings we may still have to worry about summary judgment. See, Stella v. Town of Tewksbury, Massachusetts, 4 F.3d 53 (1st Cir. 1993)(Defendants, at court's urging, made oral motion for summary judgment on day of trial, with potential jurors in the courtroom waiting for jury selection. The court allowed thirty minutes for preparation, then heard arguments and allowed the motion. The First Circuit opinion, reversing the summary judgment, begins "Over twenty-four centuries ago, a Greek philosopher warned that 'haste in every business brings failures.' VII Herodotus, Histories, ch. 10. This appeal illustrates that courts are no exception to the rule." This opinion contains helpful language on the importance of requiring the moving party to strictly follow summary judgment procedures designed to protect the nonmoving party. On the other hand, living through this sort of experience can make one doubt the orderly functioning of the Universe).

Knowing that a summary judgment tome will be delivered at some point -- probably at 5:00 on a sunny Friday afternoon -- means that we have to prepare to oppose this motion from our first contact with a potential client. Just as we know that with a likeable plaintiff and an evil employer we are likely to win a jury's heart, we dread that a sourpuss judge will kill our case without ever meeting our wonderful client face to face. This means you can't accept a case just because it has heartbreaking jury appeal and tremendous damages. You have to ask yourself on day one, and most days thereafter, whether this case will get over the summary judgment rail.

There are some sure killer summary judgment issues that come up time after time. You should learn to look for and recognize these issues when you are deciding whether to accept a case.

Filing with the state agency and the EEOC

Defense attorneys parse through the plaintiff's original agency filing as if it were the Dead Sea Scrolls, looking for inconsistencies between the claims made before the agency and the claims made in the law suit or a failure to name an individual defendant before the agency. Sometimes you get to draft the agency filing, sometimes the client walks in having already filed pro se. Sometimes it is too late to file and you have to decide whether any claims can be salvaged.

When was the agency complaint filed? What did it say?

The complaint must have been filed with the EEOC within 300 days of the discriminatory act in a deferral state, a state having a state discrimination agency, when the complainant has first filed with that state agency. 42 U.S.C. §2000e-5(e)(1), Kassaye v. Bryant College, 999 F.2d 603, 603 n. 3 (1st Cir. 1993); Mack v. Great Atlantic & Pacific Tea Co., 871 F.2d 179, 181 (1st Cir. 1989). The state agency may have a shorter filing deadline; the Massachusetts Commission Against Discrimination has a six month filing deadline. One escape hatch if the state deadline is missed but the federal deadline has not been missed is to file an untimely state complaint and then a timely federal complaint. Any state claims you bring will be knocked out on summary judgment because your state filing was late, but there is good authority supporting the timeliness of your federal filing even after a late state filing. See, Equal Employment Opportunity Commission v. Commercial Office Products Co., 486 U.S. 107 (1988).

Another timely filing issue that comes up on summary judgment is the continuing violation theory. Employers often suggest, and often with a straight face, that the continuing violations theory means that an employee must file a complaint with the state agency within the statutory period, which begins running on the first of a series of unlawful actions. There is some support for this position in Desrosiers v. Great Atlantic & Pacific Tea Company, 885 F. Supp. 308, 312 (D. Mass 1995)(Ponsor, J.), but only when that case is read with a prejudiced eye. First Circuit decisions on continuing violations pretty explicitly say that it is the last discriminatory act in a continuing series that triggers the limitations period, that "at least one act in the series must fall within the limitations period." Sabree v. United Brotherhood of Carpenters and Joiners, 921 F.2d 396, 400 (1st Cir. 1990). See also, Kassaye v. Bryant College, 999 F.2d at 606. ("If a Title VII violation is of a continuing nature, the charge of discrimination filed with the appropriate agency may be timely as to all discriminatory acts encompassed by the violation so long as the charge is filed during the life of the violation or within the statutory period (e.g., 300 days) which commences upon the violation's termination.")

An allegation of a continuing violation can often preserve the right to make claims for bad acts that took place beyond the limitations period. You should think about this when you are considering accepting a case, however. If time has run out for some acts, particularly the grossest, most damaging actions, can you retrieve these acts by alleging a continuing violation? Will this survive summary judgment?

Another filing issue that comes up in summary judgment motions concerns disparities between the claims presented to the agency and the claims in the law suit. Are individuals named in the law suit who were not named in the agency complaint? Expect a summary judgment motion. Does the law suit complain of sex, age, race and national origin discrimination while the agency complaint only complained of sex discrimination? Expect a summary judgment motion. These disparities come up frequently because we, as experienced civil rights attorneys, are able to see more varieties of discrimination than normal human beings, at least more than the intake personnel at the state agency who stop and rest after deciding that one form of discrimination has taken place. How do you get around that summary judgment problem? You should do so before you ever file in court by amending the agency complaint. State agency regulations may be generous in allowing amendments of pleadings and in giving these amendments effect nunc pro tunc (Latin for "covering someone's behind").

For example, the Massachusetts Commission Against Discrimination has almost unlimited powers to amend complaints and accept untimely filings. "An amendment alleging additional acts constituting unlawful discriminatory practices related to or arising out of the subject matter of the original complaint may be permitted by leave of the Commissioner. Amendments shall relate back to the original filing date." 804 C.M.R. 1.03(5)(a). "Amendments may be made pursuant to 804 C.M.R. 1.03(5) by the Investigating Commissioner or the Complainant at any time prior to the issuance of a notice of public hearing ..." 804 C.M.R. 1.03(5)(b). The Commission has discretionary power under 804 C.M.R. 1.04(2) to enlarge the time for filing a claim, as follows:

(2) Enlargement. When by 804 C.M.R. 1.00 or by a notice given thereunder or by order or rules of the Commission and it is required or allowed to be done at or within a specified time, the Commission for cause shown may at any time in its discretion: ...

(b) Upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect.

All of these housekeeping problems with the initial agency filing should be addressed before the complaint is ever filed in court. Doing this then may avoid a messy and embarrassing summary judgment argument years down the road. Doing this initially at a minimum will let you take the white hat position of arguing that the Court should give due deference to the agency's decision. See, Boston Police Superior Officers Federation v. City of Boston, 414 Mass. 458, 462 (1993).

The important point is to look for, spot and act on summary judgment problems like these even before you file your complaint with the court.

Management never knew about the coworker harassment

or

The manager who fired plaintiff never knew she complained about him

Who knew what and when did he forget it is often a critical summary judgment fact. In coworker harassment cases management is not liable until it knew of the misconduct and failed to stop it. In retaliation cases plaintiff has to prove that the manager who retaliated against him for exercising his rights knew about that exercise. The employer's summary judgment motion will be festooned with affidavits from managers swearing they knew nothing about anything ever.

This is another example of a critical summary judgment fact -- proof of knowledge -- you should have spotted and anticipated from the inception of the case. The easiest way around this problem is to have the plaintiff able to testify that she told the boss what was going on. Even if the boss denies that this conversation took place, that is a trial problem, not a summary judgment issue. Lacking a client who can testify to direct notification, how do you deal with proving what the other side knew?

One simple office practice is to make a habit of serving your agency complaint directly on the employer by certified mail. This gets over the amazingly frequent problem of the state agency or the EEOC failing to mail a copy of the complaint to the employer for weeks and weeks, while in the mean time the work place situation reaches the boiling point and the plaintiff is fired, only to have the employer claim in his summary judgment motion that the letter from the EEOC arrived after the plaintiff had packed her geraniums and been escorted out.

Another approach is to speak with other employees and depose other managers who might have spoken with the decision-maker to see if he said anything to them indicating when he learned of the misconduct or the protected activities. Defense counsel may not have prepared other deposition witnesses about this issue and you may be able to get an admission in by the back door.

Once again, the key to this issue is to spot it early, do what you can as early as you can to prevent the problem from arising and then, once you properly anticipate it, to focus your discovery on eliminating it as an issue.

Get witnesses to make prima facie case admissions during discovery.

As smart lawyers we all know the buzz words and phrases that will float to the surface of the employers' summary judgment memoranda: "the plaintiff was not a qualified handicapped individual," "the plaintiff was not retaliated against because the decision maker who fired her didn't know she had made a discrimination complaint," "similarly situated persons were not treated differently from the plaintiff," "the male/female/old/black plaintiff was replaced by a male/female/old/black person." We expect these because we see them time after time.

Think like a defense attorney (then wash your mind out with soap) and try to decide what the summary judgment motion will say before you begin discovery. Then during discovery look specifically for evidence that will defeat this motion. You won't get anything helpful from interrogatories because they are answered by the opposing attorneys, who know better than to make any admissions. On hour seven of day three of some manager's deposition, however, you can try to get him to agree that the plaintiff was "qualified" to do her job. That one admission excerpted from hundreds of pages of deposition transcripts may lift you over the top on summary judgment. Focus your discovery on the anticipated summary judgment facts. It doesn't take a whole lot of factoids to get over the summary judgment rail. Too many big firm defense lawyers have their heads focussed on the law. Summary judge rides on facts.

Get defense witnesses to admit as much of your prima facie case as you can. Think in advance of the deposition what you need to defeat summary judgment and focus your deposition questions on getting those facts.

Summary judgment should be on your mind throughout depositions, the ones you take and the ones where your witnesses are questioned. Most of the facts that will help you defeat summary judgment will come from your client and your witnesses, not from the other side. At summary judgment you don't have to prove anything, you just have to present a version of the facts that supports your case. That version will most likely come from your own witnesses, not from the other side. Knowing this, make sure your witnesses, and especially your client, do not slip up and give away a crucial factual issue. You can't create a factual dispute by having the same witness testify to two versions of a fact. Prepare your client to refuse to make admissions that will sink her case on summary judgment. Instead of saying she could not return to work after her injury, have her say she was ready to try to return to work but wasn't given the chance. Your client must be as educated as you are about the issues that will come up on summary judgment and the facts that will be fatal to her case.

You don't have to win on summary judgment,

you just have to avoid losing.

Summary judgment is not a trial. You don't have to convince a fact finder of the justice of your cause, you only have to squeak by, just get your nose over the rail. The jury will never know how close your case came to evaporating. In order to clear the summary judgment hurdle you have to know how high that hurdle is, keeping in mind that you only have to clear it by a hair.

One recent case that seems to set the standard for the least an employer can do and not be found liable, a case that although unpublished gets attached to more employers' summary judgment memoranda than just about any other case, is Saad v. Stanley Street Treatment and Resources, Inc., 1994 U.S. Dist. LEXIS 2072 (Docket No. 92-11434-DPW) (D. Mass, 1994). Judge Woodlock granted summary judgment for the employer in this sexual harassment and retaliation case. The employee presented evidence that a supervisor had hugged and kissed her repeatedly and asked her to leave her husband for him. When she complained to management about this conduct the employer's investigation into the plaintiff's claims was minimal, at best. The employer's managers told the plaintiff and her alleged harasser to hug and make up. A few weeks after the plaintiff complained of the harassment she was fired because "we can't trust you any more." Despite this evidence Judge Woodlock found the manager's conduct constituted sexual harassment but since he wasn't the plaintiff's direct manager there was no strict liability, the employer's investigation was minimal but good enough, and the employer's reason for termination was valid enough.

While it could be argued that this decision was an aberration ( See, Johnson v. Plastic Packaging, Inc., 892 F. Supp. 25 (D. Mass. 1995)), since it is so frequently cited by defense counsel it should be taken as a lesson. What plaintiff needed in this case was just one more fact, one more straw to break the back of this summary judgment motion. The decision should be taken as a lesson to keep on looking for that golden factoid and not to rest easy until after you've cleared the summary judgment hurdle.