Most headlines about employment law cases, whether it is an employment discrimination or whistleblower retaliation claim, relate to a jury trial verdict. Big damage awards in age discrimination and gender discrimination lawsuits are certainly newsworthy. But the most consequential decision in almost every employment discrimination or whistleblower retaliation case is made by a judge—not the jury—at the summary judgment stage.

What Is Summary Judgment?

In civil cases, including employment discrimination and whistleblower retaliation cases, one party can file a motion for summary judgment with the judge. If the judge grants the motion for summary judgment, it means that the case is dismissed and a jury will not hear the case or render a verdict on it.

Typically, the employer (defendant) files a motion for summary judgment after the parties have completed the discovery process, and for purposes of this article it will be assumed that the employer filed the motion. In discovery, the employee and employer must exchange information that is responsive to written requests for information (such as interrogatories and requests for production of documents). Also, the parties take depositions of key witnesses during discovery and exchange expert reports on a variety of topics such as emotional distress damages and lost pay calculations.

At the close of the discovery stage, the employer often files a motion for summary judgment, which is governed by Federal Rule of Civil Procedure 56’s standard that “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Put more simply, the judge will dismiss the case unless the employee shows that a genuine dispute of a fact—which is material to the outcome of the case—exists. As to whether the dispute is genuine, the question is whether a reasonable jury could find in favor of the employee.

The judge can grant summary judgment as to all claims asserted by the employee or, in certain cases, may limit summary judgment to certain claims while allowing others to be decided by a jury.

The Nuts And Bolts Of Filing A Summary Judgment Motion

In our hypothetical, the employer files its motion for summary judgment after the parties have completed the discovery stage. The memorandum in support of summary judgment should include:

• A description of each claim on which the employer is moving for summary judgment

• A statement of facts section with numbered paragraphs that specifies each undisputed material fact, along with appropriate cites to the underlying evidence (for example, deposition testimony, interrogatory response, etc.)

• A separate legal argument section describing the applicable law

• The employer will usually include an appendix in which the evidence relied upon in the statement of facts section is easily accessible by the judge as they read the summary judgment motion

After the employer files its motion for summary judgment, the employee will have an opportunity to oppose the motion. In the response motion, the employee will need to specifically respond to each numbered paragraph of undisputed facts and show that a disputed fact of material fact exists.

When considering a motion for summary judgment, a judge will view all evidence in the light most favorable to the employee (that is the party opposing the motion for summary judgment). Tolan v. Cotton, 572 U.S. 650, 651 (2014). This also means that a judge is not supposed to make credibility determinations about witness statements and related evidence. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, 150 (2000).

Most federal courts and even individual judges within a particular federal district court have adopted local rules that provide more specific requirements about the deadlines for and contents of a summary judgment motion. It is crucial that the parties and their lawyers follow these court-specific rules related to filing and responding to motions for summary judgment.

The Impact Summary Judgment Decisions Have In Employment Law Cases

Statistics on precisely how often courts grant summary judgment in employment cases are hard to come by. However, a 2013 law review article by a federal judge noted that summary judgment motions were granted in federal court, in whole or in part, 77% of the time in employment discrimination cases. Granted, the data supporting this figure appears to be dated, but it highlights the frequency with which employment discrimination cases are dismissed prior to a jury trial.

The rate at which federal court judges grant summary judgment in employment law cases necessarily means that the number of jury trials in these cases is much lower. One article noted that “in 1962, 11.5% of federal civil cases went to trial; by 2002, the number had dwindled to a meager 1.8%.” Drilling down further, in civil rights cases (of which approximately half are employment discrimination) “the number of trials has declined dramatically: from 19.7% of civil rights dispositions in 1970 to 3.8% in 2000.”

Given how important credibility determinations are in employment discrimination and whistleblower retaliation cases, it is surprising that judges grant summary judgment so often given that judges are not supposed to assess credibility in making their decision. Further exploration of why judges dismiss these types of cases prior to a jury trial at such an alarming rate is needed. Ultimately, in most employment discrimination and whistleblower retaliation litigation, the judge’s summary judgment decision is the make-0r-break moment of the case.

Key Takeaways

• Summary judgment will be granted unless the employee shows that a genuine dispute of a fact—which is material to the outcome of the case—exists. As to whether the dispute is genuine, the question is whether a reasonable jury could find in favor of the employee.

• Summary judgment motions and responses have specific sections and formats that must be followed and most courts have local rules spelling out these requirements.

• At the summary judgment stage, a judge must view all evidence in the light most favorable to the employee (that is the party opposing the motion for summary judgment). Tolan v. Cotton, 572 U.S. 650, 651 (2014). Relatedly, a judge should not make credibility determinations about witness statements and related evidence. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, 150 (2000).