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!


For now, just read, we’ll talk later (hint, could Vince be right?)

First, please read this article from Sunday’s Atlanta Journal Constitution regarding employment litigation in the Northern District of Georgia and the fact that almost all such cases get pitched at the summary judgment stage. Now, read the empirical study that forms the predicate for the study. The study is on the Social Science Research Network. You can download it easily and for free. Don’t worry,the study consists mostly of tables. It is a quick read.

After you have read the article and the study, give me your thoughts. I will add mine tomorrow. I end with only this question: “Is Vince right?”


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