Civil jury trials, summary judgment, employment cases and the Northern District of Georgia study–preliminary observations

Yesterday, I highlighted a study and asked readers to examine it. The study authored by Amanda Farahany and Tanya McAdams, both of Barrett & Farahany, LLP, entitled “Analysis of Employment Discrimination Claims for Cases in Which an Order was Issued on Defendant’s Motion for Summary Judgment in 2011 and 2012 in the U.S. District Court for the Northern District of Georgia” makes an important contribution to the empirical literature on the subject of resolving employment cases in the federal courts by summary judgment rather than trial. In this post, I will provide a brief summary of the study, and then add several observations.

A Caveat and Then a Brief Summary of the Study

First the caveat and then the brief summary. The following is not intended as an extended analysis of the statistics generated by the study. I have omitted a lot of information in the interest of brevity and for that reason only. Indeed, that is why I requested that readers of this blog examine the study themselves. That said, here is my brief overview:

*In 2011 and 2012, of the 181 employment discrimination cases in which plaintiffs were represented by counsel and summary judgment motions were in play, 147 (81.21% rounded to 82%) cases were dismissed entirely, 170 (94%) cases were dismissed in whole or in part and 11 (6%) cases survived entirely intact.

*In 2011 and 2012, in race discrimination cases where the claimant was represented by counsel, out of 71 cases, 10 cases (14%) survived summary judgment.

*In 2011 and 2012, in race discrimination cases where the claimant was represented by counsel, black claimants survived summary judgment in 4 (7%) of the 56 cases filed by blacks. During that same time period, in race discrimination cases where the claimant was represented by counsel, white claimants survived summary judgment in 3 (30%) of the 10 cases filed by whites. The remaining 5 cases were comprised of other races or ethnic groups or were not identified by race or ethnicity. Regarding gender, and for that same time period and regarding race discrimination cases, black female claimants survived summary judgment in 1 out of 29 cases or 3% of such cases whereas black male claimants survived summary judgment in 3 out of 25 cases or 12% of such cases. White male claimants survived summary judgment in 3 out 5 cases or 60% of such cases, whereas white female claimants survived summary judgment in none (0%) of the 4 cases they brought.

*In 2011 and 2012 and for sex discrimination cases involving hostile work environment, sexual harassment and disparate treatment claims (lumped together by me) where the claimant was represented by counsel, out of 55 cases, 6 (11%) survived summary judgment.

*In 2011 and 2012, in sex discrimination cases where the claimant was represented by counsel, I could not find a break down by the race of the claimant. Regarding gender, and for that same time period regarding sex discrimination cases, female claimants survived summary judgment in 6 out of 48 cases or 12.5% of such cases whereas male claimants survived summary judgment in none (0%) of the 4 cases they brought. In “multi-female” class cases, none (0%) survived summary judgment in the 3 cases they brought.

*In 2011 and 2012, the great majority of judges in the Northern District of Georgia granted dismissals in 75% percent or more of all race and sex discrimination cases.

Kopf’s Preliminary Observations

*In a comment to this blog, there is a veiled suggestion from one of the authors of the study that an observer might read into the statistics a discriminatory animus on the part of the Georgia federal judges based on the race or sex of the claimant. See Amanda A. Farahany, October 21, 2013 at 11:53 am, here. I categorically reject that suggestion, if indeed that is what the author intended to imply. The numbers are just too small to make such a claim. For example, only 10 cases of race discrimination involved whites, and only 3 of those survived summary judgment. To use those tiny numbers to suggest judges favored whites because the white dismissal rate was only 70% whereas the black dismissal rate was 93% is weak support indeed for a claim of racial animus. To illustrate further, if you want to use tiny numbers, black females had a 100% greater chance of prevailing than white female claimants of race discrimination, but the absolute difference is 1 case as no white female claimants survived summary judgment while 1 out of 29 black female claimants survived summary judgment. Moreover, given that the great majority of judges dismissed these cases at rate equal to 75% or more of the time, it is impossible to believe that most of the judges in the Northern District of Georgia act because of a racial or gender animus.

*According to the Atlanta Journal Constitution, “The U.S. District Court headquartered in Atlanta currently has eight active judges, five of whom were appointed by Democratic presidents and three of whom were appointed by Republican presidents. Title VII cases are also heard by the court’s eight senior judges; six of these judges were appointed by Democratic presidents, two by Republicans. The magistrates are appointed by district court judges.” As a result, it is impossible to believe that the results of the study represent the actions of judges with the same ideological bent.

*In a comment to this blog, see Amanda A. Farahany, October 21, 2013 at 11:53 am, here, one of the authors of this study has written: “Having heard that the problem is the law of our circuit, we expanded the study to the Northern District of Alabama, a state with no state laws (like Georgia) and within our circuit. With essentially the same sample size, rather than dismissing 82%, 66% were dismissed in full. Rather than letting 6% past summary judgment unscathed, Alabama let 12%. Statistician Dr. Michael Freeman has already concluded that this a statistically significant difference.”  I have several reactions to this comment and address them to the authors. A. Please publish the complete statistical analysis for the Northern District of Alabama so that it can be reviewed and tested by others. (Please give due attention to the statistician’s definition of “statistical significance” and the statistical method employed to arrive at such significance.) B. In absolute numbers, the difference between 6% (11 cases) in Georgia and 12% (22 cases (rounded)) in Alabama is only 11 cases. As a result, I would not be willing to conclude that something is wrong with the judges in the Northern District of Georgia on the basis of 11 cases spread among 16 active and senior district judges over a 2-year period even if the results are “statistically significant.” C. Finally, is the number of “unscathed” cases in the Northern District of Alabama about right, too high or too low?  What is the statistic that federal trial judges should shoot for and how do you derive that number?

*My experience leads me to believe that most race and sex discrimination claims against most employers are legally baseless. By this, I do not mean to suggest that most employees or job-seekers are dishonest or that most employees or job-seekers may not have legitimate (but not legally cognizable) grievances. However, the federal law (whether you agree with it or not) does not make employers responsible for work place disputes unless the employer can reasonably be expected to have known and approved of conduct prohibited by the federal law. In short, these are hard cases to get to a jury because derivative liability (you pay me because somebody who worked for you hurt me) is manifestly not the standard in federal employment law.

*Despite my significant reservations about this study, it is a serious attempt to get at a serious subject. Civil jury trials in the federal courts are rare indeed and that is particularly true in the employment context. This study shows us how rare they are in one large metropolitan federal court and presumably throughout the country. I sincerely thank Vince Powers and Barrett & Farahany, LLP for giving me access to the study and for their commitment to the rule of law.

*The reader is reminded that these are my preliminary observations. I am willing to learn more. If I have erred, I am also willing to be corrected.

RGK

25 responses

  1. I disagree that most race and sex employment cases are legally baseless. Plaintiff’s lawyers invest considerable time and money in bringing these suits. The contingency fee works to prevent baseless claims from being filed.

    Discrimination in the workplace exists. Congress passed a law to give citizens a remedy. And the 7th Amendment provides for a jury trial. We have speed limits on streets and highways because we recognize the necessity of a deterrent, but what will the deterrent be in the workplace if lawyers stop bringing Title VII cases because there is little likelihood of success. Trial lawyers are in increasing demand because so many younger lawyers never pick a jury, so experienced trial lawyers will file other suits rather than discrimination cases.

    Most plaintiff’s lawyers have no problem with a summary judgment standard set out below, but thats not the law anymore:

    “In considering a summary judgment motion, the underlying facts and all reasonable inferences must be drawn in the light most favorable to the non-movant.” Matsushita Electrical Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356 (1986). “In Anderson, 477 U.S. at 249, Celotex, 477 U.S. at 323-23, and Matsushita, 475 U.S. at 586-87, the Supreme Court established that a summary judgment motion should be interpreted by the trial court to accomplish its purpose of disposing of factually unsupported claims, and the trial judge’s function is not to weight the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial.” Johnson v. Enron Corp., 906 F.2d 1234 (8th Cir. 1990).
    Because discrimination cases often depend on inferences rather than on direct evidence, summary judgment should not be granted unless the evidence could not support any reasonable inference for the movant. Lynn v. Deaconess Medical Center-West Campus, ____ F.3d ____, 1998 WL 792468, *2 (8th Cir., 1998) (citing Crawford v. Runyon, 37 F.2d 1338, 1340 (8th Cir. 1994). The Eighth Circuit Court of Appeals has cautioned that “summary judgment should seldom be used in employment discrimination cases.” Id. at 1341, citing Johnson v. Minnesota Historical Soc’y, 931 F.2d 1239, 1244 (8th Cir. 1987); cert denied, 488 U.S. 1004 (1989) see also; Hardin v. Hussmann Corp., 45 F.3d 262 (8th Cir. 1995) (“summary judgments should only be used sparingly in employment discrimination cases,” citing, Haglof v. Northwest Rehabilitation, Inc., 910 F.2d 492, 495 (8th Cir. 1990); Hillebard, 827 F.2d at 364.”

    I understand the Circuit took away the “used sparingly” standard. No act of Congress nor any referendum changed the standard which weakened the 7th Amendment.

    I should not be grouped with Barret & Farahany,- their study was a product of their hard work and money, all I did is recognize that you are very willing to discuss this issue and send you the study. They deserve all the credit.

    Thank you for highlighting this discussion.We really appreciate the opportunity to discuss the issue.

    • Vince,

      Your view about the standards for summary judgment changing are correct and not debatable. Indeed, I have previously recited (here) the terrific critique by Professor Arthur R. Miller, entitled Simplified Pleading, Meaningful Days in Court, and Trials on the Merits: Reflections on the Deformation of Federal Procedure, 88 N.Y.U. Law Review 286 (April, 2013) (free download here). Professor Miller’s views ought to be read again by anyone seriously interested in this subject. To be clear, as a policy matter, I don’t necessarily agree with Miller that the results of the changes he describes are bad. But, nobody should care what I think on that subject. I am only a trial judge, not a policy maker. The trial judge’s job is not to challenge the precedents, but to apply them. As I intimated previously, my job is to be a carpenter and that requires cutting square corners.

      All the best.

      RGK

  2. Judge Kopf,
    In responses to your requests:
    A. Please publish the complete statistical analysis for the Northern District of Alabama so that it can be reviewed and tested by others. (Please give due attention to the statistician’s definition of “statistical significance” and the statistical method employed to arrive at such significance.)

    We intend to publish this next week, along with the results from Massachusetts. We are also studying an additional 4 district courts. In anticipate that the study will then expand to the use of Iqbal/Twombly in these same time periods to see how many more of these cases are dismissed prior to reaching summary judgment.

    B. In absolute numbers, the difference between 6% (11 cases) in Georgia and 12% (22 cases (rounded)) in Alabama is only 11 cases. As a result, I would not be willing to conclude that something is wrong with the judges in the Northern District of Georgia on the basis of 11 cases spread among 16 active and senior district judges over a 2-year period even if the results are “statistically significant.”

    The greater difference is in the number of cases that don’t make it past summary judgment at all. A plaintiff has a much greater chance of going to trial in Birmingham, and yet the law is same in both jurisdictions. I don’t have conclusions as to the underlying problems, as I was hoping to publish the study and have those smarter than me to figure it out. I do think, however, that it could be that the problem in our jurisdiction is the procedures that are applied to Title VII cases that are not applied to other types. Each case is referred to a Magistrate Judge, who issues a report and recommendation. Their job is to be the gatekeepers for the District Judge. The DJ will follow the report and recommendation, but only if the recommendation is that the case be dismissed.

    C. Finally, is the number of “unscathed” cases in the Northern District of Alabama about right, too high or too low? What is the statistic that federal trial judges should shoot for and how do you derive that number?

    When cases are decided by a judge when it should be in the province of the jury, the number is too high. I don’t have a statistic that federal trial judges should shoot for, although I’d be personally thrilled if I had the option to try every case. That said, there are cases that should not be brought, and lawyers who should not be bringing them. But that is so in every case type and every jurisdiction. But the summary judgment rate in employment civil rights cases are simply too high – across the nation, not just in our jurisdiction.

    We also handles FLSA cases, and in those cases, only 30% of the cases were dismissed at summary judgment between 2011 and 2012. Because of the rates of dismissal at summary judgment, we have over the past several years changed our practice to over 50% FLSA cases. We know which discrimination cases get past summary judgment in our district, and we choose our cases based on that (it was why we conducted the study). We will likely continue to diversify our practice into other practice areas.

    Given your impression that most employment claims are baseless, what percentage of cases do you dismiss?

    • Amanda,

      Thanks again for your work in this area. Keep it up! I look forward to reading more.

      While I don’t think it helpful to a do a point by point rebuttal to your specific comment, I have three reactions to your specific comment. In no particular order, they are:

      1. Can you and I agree that your study does not show that the federal judges in the Northern District of Georgia (including the magistrate judges) are motivated by racial or gender animus?

      2. I am glad you are looking at Iqbal/Twombly. Be sure to look at The Behavior of Federal Judges: A Theoretical and Empirical Study of Rational Choice, by Epstein, Landes and Posner on these subjects. They have a lot of data. See also Cass R. Sunstein, Moneyball for Judges, The Statistics of judicial behavior, New Republic (April 9, 2013). If you search throughout this blog you will also find that I have written a lot about what Epstein, et al, found in this ground breaking book regarding particularly how federal district judges really act. See, for example, here, here and here.

      3. I don’t know the percentage of employment cases that I pitch at the summary judgment stage, but it would not surprise me if my dismissal rate was as a high or higher than the Northern District of Georgia. Without getting too high on my horse, I have never thought to collect such numbers because I truly believe that I don’t pitch cases unless the precedents require such a result. Now, perhaps I am kidding myself. So, I sincerely invite your review of my employment cases and my dismissal rates. Let me know if you want to do so, and I will do everything in my power to help you do the analysis.

      All the best.

      RGK

      • RGK: “Epstein, Landes and Posner have found that most of the time most federal district judges apply rules and precedents that do not necessarily coincide with their personal views. This group of judges act more like carpenters than politicians. This data driven conclusion is enormously comforting for those who worry about the proper role of the federal judiciary in a democratic society.”

        For me, it is the “most of the time” that is so troubling. When your life or livelihood depends on your judge following hidebound precedent in the United States Reports, the fact that the judge gets it right 98% of the time is of no comfort to you IF HE DOESN’T GET IT RIGHT IN _YOUR_ CASE. A .974 fielding percentage might be good enough in baseball, but it is not good enough in federal district court.

        Liberty can find “no refuge in a jurisprudence of doubt,” Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833, 844 (1992), as it is hard to imagine any provision of the Bill of Rights surviving a regime where
        our law is not substantially certain, capable of ready determination, and amenable to reasonable reliance by the average citizen. Moragne v. States Marine Lines, 398 U.S. 375, 403 (1970). supra. By way of example, it renders the First Amendment nugatory, for when “one must guess what conduct or utterances may lose him his position, one necessarily will steer far wider of the unlawful zone,” Speiser v. Randall, 357 U.S. 513, 526 (1958) (internal quotations omitted), as “the value of a sword of Damocles is that it hangs — not that it drops.” Arnett v. Kennedy, 416 U.S. 134, 231 (1974) (Marshall, J., dissenting).

        That Posner is right — and he usually is — should freeze the blood of any rational citizen. Judges should be held personally accountable for any willful departure from their duty to apply the law of the land to the facts of the case before them. For as Thomas Jefferson observed, “In truth, man is not made to be trusted for life if secured against all liability to account.”

  3. This study shows that motivating factor is still a high hurdle for plaintiffs to clear in discrimination cases. Despite Judge Alito’s opinion in the Nasser case to the contrary, it appears as if trial court judges aren’t being bamboozled into letting weak employment cases past summary judgment. Retaliation and whistleblower cases that are under OSHA’s jurisdiction such as the STAA hold that a plaintiff must only show that retaliation was a “contributing” factor to the adverse employment action and that the employer must prove by “clear and convincing evidence” that they had a legitimate non-discriminatory reason for the adverse employment action.

    I had the good fortune to be on a “trolley ride” with Amanda Farahany this summer at AAJ Convention in San Francisco. She told me that their office is very selective in the cases they decide to take.

    • Jon,

      Thanks for taking the time to write. For what it is worth, I agree with you that almost all the weak employment cases get thrown out at the SJ stage in federal court if they survive even that far. Of course, the problem that Amanda seeks to address is whether the baby is going out with the bathwater. I have no doubt that her office is selective. The study itself demonstrates a remarkable attention to the empirical aspects of evaluating what cases are strong and what are weak, although Amanda believes, I think, that her study shows that the weakness or strength of the case matters little.

      Again, thanks for your comment.

      RGK

  4. Jon,

    A pleasure to ‘see’ you again. You are correct that our firm is very selective in the cases we decide to take, and we typically talk to 100 potential clients before we take 1 case. Luckily, we have built a successful practice that can support 13 lawyers taking plaintiffs’ civil rights cases on a contingency basis. And the contingency fee is a huge motivator in case selection for all lawyers to be very selective, yet many of the most successful of lawyers in our jurisdiction are regularly dismissed at summary judgment. For example, the ‘best’ employment lawyer in town was one example I looked at specifically to see whether it was “because of the lawyers”. For the 13 cases from his firm, only one survived ‘unscathed’, and 7 were dismissed in full. I simply don’t believe that all cases are ‘bunk’.

    Judge Kopf,

    1. Can you and I agree that your study does not show that the federal judges in the Northern District of Georgia (including the magistrate judges) are motivated by racial or gender animus?

    We can agree that the study does not prove the motivations of the judges. In fact, I respect our judges and have heard from some of them that they feel compelled by the 11th Circuit law to rule in the way that they do. I do not know what the motivation is behind the dismissal rate, and hoped by providing the statistics to the public that there would be changes to bring the law back to the original intent of the law. My goal was to expose the issue, and let those smarter than me determine the problem. I do, however, think there is a problem.

    Our original goal in conducting the study was to determine what the cases were that our firm should take, including claim types and any particular demographics of the potential clients. We want to take only cases that are guaranteed survival at summary judgment, and we want to try cases, not just settle them all.

    2. I am glad you are looking at Iqbal/Twombly. Be sure to look at The Behavior of Federal Judges: A Theoretical and Empirical Study of Rational Choice, by Epstein, Landes and Posner on these subjects. They have a lot of data. See also Cass R. Sunstein, Moneyball for Judges, The Statistics of judicial behavior, New Republic (April 9, 2013). If you search throughout this blog you will also find that I have written a lot about what Epstein, et al, found in this ground breaking book regarding particularly how federal district judges really act. See, for example, here, here and here.

    I look forward to reading those.

    3. I don’t know the percentage of employment cases that I pitch at the summary judgment stage, but it would not surprise me if my dismissal rate was as a high or higher than the Northern District of Georgia. Without getting too high on my horse, I have never thought to collect such numbers because I truly believe that I don’t pitch cases unless the precedents require such a result. Now, perhaps I am kidding myself. So, I sincerely invite your review of my employment cases and my dismissal rates. Let me know if you want to do so, and I will do everything in my power to help you do the analysis.

    I would anticipate that most of the judges would say that as well. I would be happy to do so. Do you have a way to compile a list of the 2011 and 2012 employment cases (442 and 445 cases) that were before you?

    • Amanda,

      As for the list of my cases, do you want only 442 and 445 cases where a memorandum and order was issued granting or denying (in whole or in part) SJ in the year 2011 and 2012 (regardless of the date the case was filed) or do you want something else? Let me know and I will try to get it. To assure that I don’t put my finger on the scale, I will request our excellent Clerk’s office to run the numbers once I know specifically what you want.

      All the best.

      RGK

  5. An idle thought…

    Many cases settle before a dispositive motion is decided. Presumably, the stronger a plaintiff’s case, the more incentive for a defendant to reach a settlement. And that motivation is arguably stronger in discrimination cases, where a defendant may be anxious to avoid the publicity and precedent of being found liable for (or even accused of) invidious discrimination. This heightens the risk, for the defendant, of allowing the litigation to progress.

    This creates the possibility of some selection bias being involved, in which the discrimination cases that actually reach a dispositive motion are less likely to be meritorious, because settlement disposes of cases in which the plaintiff has a credible claim. I would be curious to see the numbers for dispositive motions compared to the numbers for discrimination cases initially filed and then settled (or voluntarily dismissed under circumstances that suggest settlement).

  6. Judge Kopf,

    If you can procure just the 442 and 445 cases where a memorandum and order was issued granting or denying (in whole or in part) SJ in the year 2011 and 2012 (regardless of the date the case was filed), that would be ideal. For us to be able to get that same information, we have to download all the dockets that had any activity in those time periods, then review each of those dockets to see if there is an order and then download the orders to code. Having the orders to start with would make our part of it very simple.

    • Amanda,

      Got it. We have done the runs and are assembling the data in a readable form now. I will put up a separate post hopefully yet today. I will use a separate post rather than a reply to a comment because the blog platform I use makes it easier for me to write a response if it is in the form of a post.

      All the best.

      RGK

    • What I love about this is that a judge is willing to consider the possibility that the process his court is following might deserve objective scrutiny. if this were the rule rather than the exception, I might have a better opinion of the bench.

  7. Judge Kopf,

    In light of my experience that far too many people fail to grasp the meaning of basic statistics, I wanted to share with you a particular webcomic that rather humorously makes an important point when it comes to discussing 95% confidence intervals. Perhaps you will find it valuable enough to share to those less mathematically inclined.

    http://xkcd.com/882/

    • Stephen,

      Great!

      By the way, I decided not to get a PhD when I realized that I would spend the rest of my life arguing about whether a CR of 0.8999 was sufficient to show a correlation between one insignificant thing and another insignificant thing.
      By the way, it is probably true that the value of academic research is tested by the Dull Hypothesis. See here.

      Thanks again. All the best.

      RGK

  8. I thank Amanda Farahany and Tanya McAdams for their study. It’s important to keep investigating the use of summary judgment by the courts. As Amanda points out in one of her posts, summary judgment is used often in employment discrimination cases throughout the country. The Federal Judicial Center has studies that show this effect. I think the factual intensity of employment discrimination cases makes summary judgment problematic in these cases. Related to this the credibility of witnesses cannot be assessed on summary judgment but credibility is very important to deciding whether discrimination has occurred. I have also researched the legal history of the jury, and summary judgment does not comport with the substance of the civil jury right in the late eighteenth century.
    Judge Kopf, Thanks for your blog. It’s great to hear your perspective.

    • Not only is summary judgment inappropriate, but people tend to forget that in 1791, the jury was ultimate master of BOTH LAW AND FACT. Speaking for the Court, Chief Justice Jay gave the following charge to a jury sitting in a case of original jurisdiction before that august body:

      “It may not be amiss, here, Gentlemen, to remind you of the good old rule that on questions of fact, it is the province of the jury; on questions of law it is the province of the court to decide. But it must be observed that by the same law which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to
      determine the law as well as the fact in controversy. On this and on every other occasion, however, we have no doubt you will pay that respect which is due to the opinion of the court: for, as on the one hand, it is presumed, that juries are the best judges of facts, it is, on the other hand, presumable that the court is the best judge of law. But still both objects are lawfully, within your
      power of decision.”

      Georgia v. Brailsford, 3 U.S. 1, 4 (1794).

      To the Framers’ generation, the right to a jury trial, with one’s peers deciding both the facts and law, was a sacrosanct privilege of citizenship: they fought a revolution to secure it; several Framers refused to sign the Constitution because it did not adequately preserve it. Justice Rehnquist drives this point home: “The founders of our Nation considered the right of trial by jury in civil cases an important bulwark against tyranny and corruption, a safeguard too precious to be left to the whim of the sovereign, or, it might be added, to that of the judiciary.” Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 343 (1979) (Rehnquist, J., dissenting).

      I have read and cited your excellent law review article, Professor Thomas, and can find no constitutional or legal basis for the lusty use of summary judgment to round-file facially valid claims, as Judge Gertner has complained here.

    • Dear Professor Thomas,

      Thank you very much for your engagement. As a very distinguished academic, particularly regarding the Seventh Amendment, your thoughts are very important to an informed discussion.

      All the best.

      RGK

      To other readers:

      Here is the professor’s background taken from the University of Illinois’ College of Law web site:

      Professor Suja A. Thomas’s research interests include the Seventh Amendment right to a jury trial, civil procedure, employment law, and theories of constitutional interpretation. She is currently working on a book entitled “The Other Branch: Restoring the Jury’s Role in the American Constitution,” which Cambridge University Press will publish. Her article “Why Summary Judgment is Unconstitutional,” published by the Virginia Law Review, has been the basis of arguments in the federal courts and was featured in a piece in The New York Times where her argument was referred to as “perfectly plausible.” A panel of the 6th Circuit referred to her historical analysis in that article as “interesting,” and her article was the impetus for a symposium of the Iowa Law Review. Professor Thomas’s other work has also been influential. Her article on remittitur was the basis of a petition for certiorari to the Supreme Court, and a federal judge has commented that “her caution [regarding the effective elimination of the jury trial right through remittitur] merits evaluation by the federal courts.”

      Professor Thomas earned her bachelor of arts from Northwestern University in mathematics and received her law degree from New York University School of Law. At N.Y.U., she served as an articles editor on the N.Y.U. Law Review, and she received several awards including the Leonard M. Henkin Prize for her note on equal rights under the 14th Amendment, the Mendes Hershman Prize for excellence in writing in the field of property law and the William Miller Memorial Award for outstanding scholarship in the field of municipal law. After graduating from law school and a federal clerkship in Chicago, Professor Thomas practiced law in New York City with Cravath, Swaine & Moore, Vladeck, Waldman, Elias & Engelhard, P.C. and Weil, Gotshal & Manges, LLP.

      Professor Thomas began her academic career as a professor at the University of Cincinnati College of Law in 2000 and was a visiting professor at Vanderbilt University Law School in the spring of 2008. She joined the University of Illinois College of Law faculty in the fall of 2008.

  9. I could not disagree with Judge Kopf more that the cases Amanda and Tanya studied are “legally baseless.” I was a United States District Court Judge for 17 years (and indeed, one of the few other judges who also blogged!) . I have several comments: a) In actually reading the cases that were dismissed on summary judgment in N.D.Ga. it is difficult to take the position that they were “legally baseless. ,” In Todd v. Freese (described in the article) there were repeated uses of the N word, not by a co-worker but by the employer himself (including references to Obama after the employer saw someone wearing a shirt with a monkey on it, or a comment whether “days like this [make]you wish you people had stayed in chains.”)The judge described all of this as part of the “ordinary tribulations of the workplace.” In fact, in looking at cases across the country I do not see cases “compelled by the law.” I see federal judges making subjective and entirely subjective judgments about when harassment is “severe and pervasive,” when explicitly biased statements are dismissed as “stray remarks,” when an employer whose reasons for discharging an employee has no basis in the record is relieved of responsibility because they are his “honest beliefs,” etc. The 1991 Amendments to Title VII made a jury the decisionmaker — not the judge. b) In arrogating to themselves decisions which are reserved for the jury, and worse legitimizing racist or sexist conduct as in Todd v.Freese, the judges are validating the very conduct that Title VII was designed to eliminate. c) What is the reason for this? I have suggested that one possibility — a non ideological reason– is what I have called Losers’ rules in article in Yale L. J.article in 2012. Because you only have to write a decision when you grant summary judgment and not when you deny it, a body of precedent evolves only in terms of the losing cases which then makes it easier to dismiss the next case, and worse, the judges begin to see the cases as trivial. A complex phenomenon is reduced to the most simplistic standards wholly at odds with the early precedents of Title VII. (My article contrasts the early cases in which judges were uncompromising in their view of the inappropriateness of the N word, for example.) . Perhaps the norms of the workplace have changed, perhaps incivility is more common, but that is precisely what a jury should decide. d) While a number of cases settle, they do so “in the shadow of the law,” that is in the light of this precedent. What I am trying to study is the extent to which those settlements are discounted because the precedent is so crabbed. e) Are the judges biased? I don’t doubt that these decisions are motivated by a view that we are somehow a post racial society, that we don’t need these laws anymore — a view that has percolated in recent Supreme Court precedent with which I strongly disagree. Nor do I doubt that federal judges are biased against civil rights cases. When I was trained as a judge the trainer began the session on civil rights, “Here’s how you get rid of these cases.” We worry about creeping bias in sentencing decisions, as we should. We should likewise worry about creeping bias in these decisions — whether it is structural (Losers’ Rules), or ideological (the post racial society view.) Fact is that federal judges in my view are effecting a virtual repeal of Title VII, in a thousand decisions like Todd v. Freese. (Seriously, one has only to do a westlaw search of cases in which the N_word was excused, “crotch grabbing” was held not “severe and pervasive,” demeaning comments were stray remarks. To be sure some of the cases are about who is responsible for the harassment as your initial comment suggested, but most are about whether sexist or racist conduct/comments amount to actionable discrimination at all.
    I plan to work with Amanda to study this further. I look forward to following your blog.

    • NG: “Nor do I doubt that federal judges are biased against civil rights cases. When I was trained as a judge the trainer began the session on civil rights, “Here’s how you get rid of these cases.”

      I’ll tell you how it’s done: “Rooker-Feldman.” In one case, Judge Anderson of the Tent Circus made the following admission:

      “[Plaintiff] filed a complaint in federal district court setting forth twenty claims for relief for alleged violations of federal law and of plaintiff’s constitutional rights. Plaintiff sought declarations that the Colorado bar admission process and certain admissions rules were unconstitutional…”

      From there, proper judicial analysis is reduced to a simple syllogism: If condition X (a state bar applicant challenges the facial constitutionality of a state bar admission rule) is true, then Y (a federal district court must hear his claim, District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482-83 (1983); Roe v. Ogden, 253 F.3d 1225 (10th Cir. 2001) (future applicants)).
      Condition X is true. Therefore, Y (a federal district court must hear that claim). In defiance of this simple and irrefutable logic, that Tenth Circuit panel wrote “designer law” — applicable to one litigant and one litigant only.

      Judge Miller took offense at my blunt observation–which you are effectively confirming here!–that judges take indecent liberties with the facts and the law to clear their dockets of disfavored cases. While the trial judge in this case never bothered to even write an opinion, the Tent Circus didn’t even bother to lie. They openly stated that they were defying SCOTUS precedent, and could care less if anyone noticed.

      I am getting to the point that I think we could fire the entire federal judiciary, and just empanel juries ad hoc. Precedent has no meaning in our courts, and I’ve gotten to the point where I don’t even bother Shepardizing any more. Why pay a judge to know the law if that judge isn’t going to bother following it in any event? And why have SCOTUS write tiresome tomes on the law if they aren’t even polite suggestions?

    • Nancy,

      Nice to hear from you again. And, thanks for taking the time to comment. I have several reactions, as you might expect.

      *You say: “I could not disagree with Judge Kopf more that the cases Amanda and Tanya studied are ‘legally baseless.’” That is not what I said. Indeed, I have no idea about the nature of any of the cases they studied. I did say: “My experience leads me to believe that most race and sex discrimination claims against most employers are legally baseless. By this, I do not mean to suggest that most employees or job-seekers are dishonest or that most employees or job-seekers may not have legitimate (but not legally cognizable) grievances.” Perhaps a small matter, but since I crawled out on a limb, I don’t want it any slimmer than need be.

      *You point out that the failure of judges to explain why they deny summary judgment motions is a problem because it fails to establish a body of case law rejecting summary judgments in the employment context that might counterbalance cases on the other side. In general, I agree with you. In Chamberlin v. Cable USA, 7:10CV5011, one of the cases on my docket that Amanda is now studying, I denied summary judgment in a pregnancy discrimination case. The opinion droned on for 21 pages. When judges have time to do so, full explanations of why summary judgment should be denied in the employment context (and every other context) is very desirable. Indeed, in the case just referenced, after I issued the opinion, the case promptly settled and I did not have to drive out to North Platte in the far west of our state to try the case. (I don’t like North Platte much as I had a heart attack out there after retrying a fraudulent conveyance case that the damn Circuit kept reversing me on.) Recognizing, however, that we are busy (and I don’t mean lazy), saying “no” to summary judgment motions without explanation is far more efficient. As you well know from your distinguished service, there is a constant tension in the trial judge’s chambers between completeness and timeliness. But, as you suggest, we could do better, and we should strive to do so.

      *You and I are both old enough to remember well the earthquake resulting from the 1986 opinion in Celotex (and the related cases that form the so-called Celotex trilogy) dealing with summary judgment motions. Once Justice Rehnquist wrote for the majority of the Court that summary judgment is not “a disfavored procedural shortcut, but rather . . . an integral part of the Federal Rules as a whole” and that the moving party could win on summary judgment by showing “an absence of evidence,” plaintiffs’ lawyers were in real trouble if they went to federal court without being loaded for bear. The treatment of employment cases that you decry is a product of the sea change that took place 25 plus years ago. To me, the plaintiffs’ employment bar is now fighting a battle long lost when it comes to SJ motions. I particularly disagree with you that “federal judges are biased against civil rights cases” because of some relatively new, latent and barely understood notion of “the post racial society.” In my opinion, the diversity of judges appointed by Presidents of opposing parties in the Northern District of Georgia is proof positive that you are mistaken on this point.

      That’s all for now. Again, I appreciate your detailed comment and your passionate and thoughtful engagement. You have my best personal regards.

      RGK

  10. In light of Judge Gertner’s confession regarding how disfavored cases — especially, pro se and civil rights cases — are “round-filed” by corrupt and lazy judges, it is appropriate to revisit Judge Arnold’s opinion in Anastasoff:

    “It is often said among judges that the volume of appeals is so high that it is simply unrealistic to ascribe precedential value to every decision. We do not have time to do a decent enough job, the argument runs, when put in plain language, to justify treating every opinion as a precedent. If this is true, the judicial system is indeed in serious trouble, but the remedy is not to create an underground body of law good for one place and time only. The remedy, instead, is to create enough judgeships to handle the volume, or, if that is not practical, for each judge to take enough time to do a competent job with each case. If this means that backlogs will grow, the price must still be paid. At bottom, rules like our Rule 28A(i) assert that courts have the following power: to choose for themselves, from among all the cases they decide, those that they will follow in the future, and those that they need not. Indeed, some forms of the non-publication rule even forbid citation. Those courts are saying to the bar: “We may have decided this question the opposite way yesterday, but this does not bind us today, and, what’s more, you cannot even tell us what we did yesterday.” As we have tried to explain in this opinion, such a statement exceeds the judicial power, which is based on reason, not fiat.”

    Anastasoff v. United States, 223 F.3d 898, 904 (8th Cir. 2000).

    It might be unimportant to you, but when we come to you to adjudicate a dispute, in a very real sense of the word, OUR LIVES _DEPEND_ ON YOUR DOING A COMPETENT JOB! Our $350 (or whatever it is now) spends every bit as well as Exxon-Mobil’s. I want to know why us children of a lesser god are treated like Franklin McCann at a 1950s Woolworth lunch counter in federal court.

  11. Pingback: When it comes to employment cases, judges are killing the Civil Rights Act of 1964 « Hercules and the umpire.

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