Thoughts on employment cases and summary judgment from someone who has seen how the sausage is made

Regarding the study of employment cases pitched at the summary judgment stage in the Northern District of Georgia and the Atlanta Journal Constitution’s article reporting about it, I heard from a career law clerk via e-mail. The e-mail was insightful. This person has graciously allowed me to reprint his or her thoughts, with certain minor edits.

Here are the guts of the e-mail:

In response to the AJC article about N.D. Ga. Title VII cases, I have a few responses, gleaned from my experience as a law clerk for two different federal trial judges over the past five years.

1. [V]irtually all Title VII cases that get tossed before discovery are DOA because of failure to exhaust administrative remedies. The AJC article briefly touches on that, yet the entire article is premised upon the idea that the cases don’t get a fair shake in federal trial courts. It’s not the trial judges’ fault that Congress wrote in an administrative remedy requirement, and it’s not the trial judges’ fault that the appellate courts have strictly construed it. [A]t least half of Title VII cases get tossed before discovery, and it’s because the plaintiffs either sit on their claims and don’t retain counsel, or they retain incompetent counsel. That was not the case in . . . where I [previously] worked because there was a plaintiffs’ firm that had built a large practice almost solely focused on employment litigation; they knew what they were doing and did it well.

2. Once these cases make it to the summary judgment phase, the burden-shifting analytical framework cuts against the plaintiff’s interests most of the time. Again, this is something wholly outside the trial judge’s control, and the article doesn’t even address it.

3. In those cases where the plaintiff actually does present sufficient evidence to make out a prima facie case, the evaluation of their evidence in the pretext portion of the analysis is often outside the trial court’s discretion. Likewise, in a hostile environment analysis, the severe or pervasive question is often out of the Court’s discretion. In other words, there is often Circuit Court precedent that is either directly on-point or close enough that it is determinative. The article makes much of the fact that a case where a plaintiff alleged – and presumably offered evidence – that someone groped his/her crotch was tossed. [T]here are precedents providing that such behavior, or even more shocking behavior, is not sufficiently severe or pervasive to violate Title VII.

So, my experience is that the federal trial courts have significantly less discretion than journalists and the plaintiffs’ bar like to think they do. If the administrative requirements are too onerous, that’s on Congress. If Circuit precedents set the bar too high to get past summary judgment, that’s on the appellate courts. Everyone likes to beat up on trial judges. Sure, some deserve it. But, for the most part, the trial judges are the most honest, hardworking judges in the judiciary (among Article III judges, at least). They’re also the closest thing in the judiciary to Justice Roberts’ “balls and strikes” metaphor (poor as it may be, insofar as umps have a lot of discretion over balls and strikes). They don’t make the rules. They just apply them.

I thank my correspondent for the contribution. And, by the way, Jan and Jim, my career law clerks, didn’t write one damn word!


14 responses

  1. If I were to give a rebuttal closing to the comments of the career clerk, I would just say to the jury

    “Me thinks (s)he protests too much”

    Judge Gertner and Professor Thomas’ comments to the earlier post go to the heart of the issue, raised by the exhaustive study, rather than the newspaper article.

    The standard for summary judgment has been changed making it easier to grant SJ in employment cases, This was not done by an Act of Congress but by judges who changed the strike zone to make it easy to call plaintiffs out.

    The underlying premise to support the concept that the cases being filed are usually baseless must be that discrimination in the workplace has dramatically declined. If there is little work place discrimination, then it would follow that there are few valid suits.

    However it is not an accident that women are paid less on average than men and its not because of equal opportunity that the boardrooms are dominated by white males.

    Title VII was designed to end affirmative action for white males by requiring that they had to compete with women and people of color. I do not think discrimination has ended, and going forward without an effective deterrent to discrimination means work place discrimination will increase. Babe Ruth had many records but thats because he only had to compete with other white players, not pitchers like Satchel Page.

    No one in this discussion has suggested that any judge is not hard working or acting in bad faith. Rather it is to focus on the unfortunate reality that the 21 Century has seen a dramatic gutting of the 7th Amendment. Who benefits? Who is harmed?

    And as I have said, it is not the plaintiffs bar because lawyers who try jury cases are in demand. (The law schools seem determined to turn out mediation lawyers, not trial lawyers, but thats a subject for another day)

    Thank you Judge for engaging in this discussion.

  2. I was gobsmacked by former Judge Gertner’s (D.Mass) public admission–to her eternal credit, it apparently offended her, and it should have–that she was TRAINED to commit federal felonies: “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.'”

    The Supreme Court has said that access to the federal courts must be “adequate, effective, and meaningful,” Bounds v. Smith, 430 U.S. 817, 822 (1977), And if there is any other right more central to the enjoyment of ordered liberty than access to the courts, Chambers v. Baltimore & O. R. Co., 207 U.S. 142, 148 (1907); see Marbury v. Madison, 5 U.S. at 163; cf., Scott v. Sandford, 60 U.S. 393 (1857), it is difficult to conceive of it.

    At the risk of offending Judge Miller again–what is insulting when I say it is “refreshing candor” if it is said by a (Wo)Man In Black–a trial judge literally cannot dismiss a meritorious lawsuit through summary judgment without taking indecent liberties with the law and/or the facts. Judge Gertner laments that “Fact is that federal judges in my view are effecting a virtual repeal of Title VII, in a thousand decisions like Todd v. Freese.” I go further, alleging that as a class, YOUR LEARNED COLLEAGUES HAVE DEFENESTRATED THE ENTIRE BILL OF RIGHTS!!! As Vince Powers has rightly observed, the Seventh Amendment has been reduced to a shibboleth, and I defy anyone to show me any right contained in the BoR that survives the scourge of judicial caprice.

    I would go further than Vince, and will openly assert that a lot of judges are “not hard working or acting in bad faith.” Ironically, the guiltiest judge in the country is Antonin Scalia, who stunned us all by sitting in a case involving Dick Cheney, despite receiving a gratuity with a value of roughly $10,000. Specifically, Scalia admitted that he had accepted a free trip aboard a private jet for himself and a family member, Cheney v. United States Ct. of App. for the District of Columbia, 541 U.S. 913, 914 (2004) (Scalia, J., memo), and the value of a bribe is its value to the recipient. E.g., United States v. Gorman, 807 F.2d 1299, 1305 (6th Cir. 1986); United States v. Williams, 705 F.2d 603 (2d Cir. 1983) (re: business loan to Senator). Cf., 28 U.S.C. § 455(a) (requiring a “justice” to “disqualify himself in any proceeding in which his impartiality might reasonably be questioned”). And despite setting this standard–a quorum of sitting Justices have signed on to the proposition that they have to hear official capacity actions, even in case of obvious conflict like that one–Scalia later recused himself from consideration of an official capacity action. (The rule of law is supposed to be “a law of rules,” remember, Nino?)

    When judges Rooker-Feldman a case where a purported final state court decision is void as a matter of state and federal law, it cannot be said to be done in good faith. (While I know that a practicing attorney like Vince has to tread softly, it has been twenty years since I ventured into Nebraska, and I can afford a little candor.)

  3. Another career law clerk here. I agree with much of what your correspondent says, particularly how much bad conduct the appellate courts are willing to accept as not being “severe or pervasive” enough to violate Title VII, especially in sexual harassment cases. That being said, despite binding Circuit precedent, I don’t believe the district judge’s hands are tied. The reality is that the facts of each case are different, and the denial of summary judgment is not reviewable on appeal. A district judge can always choose to exercise his/her discretion to deny summary judgment in a case where the plaintiff arguably has enough evidence of discrimination that the issue could go to a jury, even if there is precedent that would permit the entry of summary judgment. The facts of a particular case as developed at trial may be sufficiently different from precedent that a plaintiff’s verdict, if appealed, would survive appellate review. (Also, I believe appeals judges tend to afford some deference to a jury’s view of a case, unless it is clear there wasn’t sufficient evidence to support the verdict.) Over the years, I’ve read many Circuit opinions affirming summary judgment for the employer in cases where, if the case had been before my judge, he/she would have denied summary judgment and the case would have either proceeded to trial or settled. Yes, this means the employer has to pay the costs of defense, but the Seventh Amendment and the purposes behind Title VII are preserved.

  4. I should add here that unlike Scalia–who, as Professor Barnett has shown, is about as faithful to his originalism as Tiger Woods was to his ex-wife Elin, see Randy Barnett, Scalia’s Infidelity: A Critique of Faint-Hearted Originalism, 75 U. Cin. L. Rev. 7, 13 (2006) (keeping score)–I am an unabashed originalist, and have been roundly disappointed by his willful failure to remain true to his judicial philosophy.

  5. When judges start calling a pick-off move to first a strike–and they do this far more often than they will admit–our court system degenerates into an arena of vacuity and farce. At least on the diamond, we get a chance to get into the umpire’s face and give him a piece of our mind. This is about as close as I’ve ever gotten to it with respect to our legal system, which is why I am reveling in it.

    Our legal system is the most decrepit and dysfunctional in the Western world. That is not my jaundiced assessment, but that of a fly-by-night organization that Justices Breyer, Ginsburg, O’Connor, and Kennedy and Secretaries Albright, Christopher, Baker, and Powell have lent their imprimatur to. Agrast, M., et al., 2010 WJP Rule of Law Index (Washington, D.C.: The World Justice Project). See

  6. Dear Dazed and Confused,

    You write that a “district judge can always choose to exercise his/her discretion to deny summary judgment in a case where the plaintiff arguably has enough evidence of discrimination that the issue could go to a jury, even if there is precedent that would permit the entry of summary judgment.” I strongly disagree.

    If there is precedent that would support summary judgment, the motion should be granted. Indeed, precedent is at its zenith when you don’t like the outcome. Our job is to apply the precedents in good faith. For more on this subject, I commend to your reading my view of vertical precedent set out in AN ESSAY ON PRECEDENT, STANDING BEAR, PARTIAL-BIRTH ABORTION AND WORD GAMES-A RESPONSE TO STEVE GRASZ AND OTHER CONSERVATIVES, 35 Creighton L. Rev. 11 (2002). In case you hadn’t figured it out, this is a very sore and personal subject for yours truly!

    The foregoing said, there are frequently appellate cases where you honestly can’t tell whether the facts are sufficiently similar such that the appellate case should be treated as precedent. In those circumstances, I agree that the district judge has more freedom.

    As always, I appreciate your thoughtful comments. All the best.


  7. That was a fascinating read. It leaves me a question: what about situations where there is a factual distinction that could be dispositive to the case? Should a federal trial judge shrug his shoulders and decline to exercise discretion, or should he take a risk with the litigation and rule in a way he feels appropriate? It seems that he could be reversed either way. See, e.g., EP Medsystems, Inc. v. Echocath, Inc., 235 F.3d 865 (3d Cir. 2000) (holding that a district court erred in dismissing a 10b-5 case under the “bespeaks caution” doctrine, where defendant made fraudulent claims, stating it was “closing deals imminently” with major medical manufacturers, which induced plaintiff to purchase stock in defendant.)

    I’m guessing the district judge in that case I cited made a very reasonable decision given the precedent. Securities law, from my limited understanding, is immensely complicated, and small errors have large consequences. Do you think a district court should have simply used the precedent in the simplest manner possible, or should it have noted the difference and noted the policy that would lead to a different outcome?

  8. The solution is simple, elevate Judge Bennett to the US Supreme Court

    Click to access Bennett.pdf

    Essay: From the “No Spittin’, No Cussin’ and No Summary Judgment” Days of Employment Discrimination Litigation to the “Defendant’s Summary Judgment Affirmed Without Comment” Days: One Judge’s Four-Decade Perspective, Honorable Mark W. Bennett

  9. Vince,

    You have a great idea. Mark would be wonderful. I would pay real money to read Bennett gut and clean Scalia on a more or less regular basis. But, then, again, it would suck if any of my cases ended up with Bennett writing for the majority–I dislike being publicly humiliated especially ’cause I do a good job doing that to myself.

    All the best.


  10. Dear Southern Law Student,

    You ask: What about situations where there is a factual distinction that could be dispositive to the case?

    My answer: It is a question of good faith. If the factual differences are material, then the case is probably not considered precedent. That is, so long as the fact in the appellate opinion you are examining is critical to the superior court’s reasoning the absence of such a fact renders the appellate opinion different from the case before you. At that point, and in the absence of precedent, the judge must do her best. My rule of thumb is that if I don’t have precedent I am likely to preserve the status quo.

    That’s my story and I am sticking to it.

    Seriously, your question is more profound that you might imagine. But, truly, the answer boils down to the good faith of the judge who is trying to ascertain whether the decision of his or her superiors is precedent.

    All the best.


  11. The discussion about summary judgments and employment cases has been instructive. If the number of civil cases is dropping in federal court, are those seeking a remedy looking elsewhere, such as state court, or are they just resigned to not getting any remedy?

    I found another interesting point about summary judgments. It appears that some district courts may grant summary judgment even though certain issues remain unresolved. See McMiller v. Metro, No. 10-2642 (8th Cir. 2012). In that case, the district court had recognized a quid-pro-quo claim, but the final judgment did not dispose of all the claims and issues. The 8th Circuit dismissed the appeal for lack of jurisdiction. The district court then proceeded with the case.

    In Snider-Carpenter v. City of Dixon, No. 12-1811 (8th Cir. 2013), the 8th Circuit explained that the district court’s order did not end the litigation, because the FHA claim against certain defendants remained. Also, the district court’s amended judgment purporting to dismiss all claims against those defendants was inconsistent with its order. The 8th Circuit dismissed the appeal for lack of jurisdiction. The case was remanded to the district court so it could consider the FHA claim against certain defendants or otherwise hold further proceedings consistent with the opinion.

    I wonder how many cases appear to be final, when in fact certain claims remain unresolved. In these cases, it apparently was necessary to have an appeal to point out that there were remaining claims. At a minimum, these cases indicate an inefficient use of legal resources. Elaine Mittleman

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

  13. Excellent discussion. The challenge, it seems to me, is that there is so little quantifiable data. We have to rely on anecdotal evidence, even now. My concern in reading the law clerk’s explanation is that I did not see anything affirming the need to draw all available inferences in favor of the non-movant. Sure, failure to exhaust administrative remedies is a non-starter. But, many more summary judgments are granted simply because one particular judge or magistrate judge does not find a particular fact scenario credible. See Judge Posner’s decision in Nicholson v. Pulte Homes, 690 F.3d 819 (7th Cir. 2012). If even an eminent judge like Judge Posner can slip into relying on his view of reality, who is immune? One of the problems, it seems to me, is that everyone considers themselves an expert or near expert on what “truly” does happen in the workplace.

  14. Tom,

    It is a truism (according to me) that the life of the law is experience. When it comes to SJ motions, the “experience” that matters is the experience of the trial judge. It is the unusual judge (not me) who can disregard his or her own experiences as a worker when evaluating SJ motion evidence. I don’t see a good way around the problem you describe, particularly if you are a legal realist.

    All the best.


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