When it comes to employment cases, judges are killing the Civil Rights Act of 1964

Some may recall the recent effort by an Atlanta law firm to examine statistically the number of times employment cases got tossed on summary judgment in the Northern District of Georgia. Because the study was a serious one and the results stunning, I posted several times about it. See here, here and here.

In fact, I helped the authors do a similar study of my cases. See here and here. As it turned out my summary judgment dismissal rate was higher than the aggregate rate for the Northern District of Georgia. That is, my dismissal rate was four points higher than the rate in the Northern District of Georgia (86% v. 82%).  That caused me to write this: “The fact is that the law on summary judgment motions in employment cases favors the granting of summary judgment motions in a high percentage of the cases and, not surprisingly, that is what you see happening in the Northern District of Georgia and with ‘yours truly’ too.”

So, that’s the background. Yesterday, Vince Powers, my friendly nemesis, advised me about a powerful article that Nancy Gertner has written on this subject. Gertner now teaches law at Harvard, and was for many years one of the most distinguished federal trial judges in the nation. She is also a really great person with a warm and funny sense of humor. Here is Nancy’s article. I urge you to read what she has written. It will make you think hard.

RGK

Kopf’s additional response to Ms. Farahany

Amanda A. Farahany has written in response to my earlier post providing her with my data regarding the issue of how employment cases are treated in the federal courts, and particularly the Northern District of Georgia as shown by a study conducted by Ms. Farahany.  In her most recent comment, she stated:

As you can see, your ‘statistics’ are actually lower than the Northern District of Georgia. (71% dismissal/14% ‘unscathed’ v. 82% dismissal/6% unscathed). Many of our judges who had seven cases dismissed 100%. Additionally, some of the judges that had twice your case load dismissed 100%.

What do you think about those differences?

Amanda, I have several responses. Here they are:

  • Initially, you write “as you can see . . . .”  If you intended to provide me with an analysis of my data beyond the words of your comment, I did not receive it.
  • With the foregoing in mind, my “dismissal” percentage should be higher. In the only case where I granted a SJ motion in part and denied it in part–Nugara v. Nebraska Association of Public Employees, et al., 4:09CV3212 (filing no.69 at CM/ECF pp. 24-26)–I pitched all the federal claims with prejudice, and, pursuant to the request of a defendant, declined to exercise jurisdiction over plaintiff’s remaining state law breach of contract claim, dismissing it without prejudice.  As a result, one can hardly argue that the plaintiff prevailed on any claim in that summary judgment proceeding. That being true, my dismissal rate becomes the converse of my unscathed rate. That is, 86% of the time I pitched everything and 14% of the time I left plaintiffs unscathed. If you buy that analysis, my true dismissal rate is four points higher than the rate in the Northern District of Georgia (86% v. 82%).
  • Additionally, you  state: “Many of our judges who had seven cases dismissed 100%. Additionally, some of the judges that had twice your case load dismissed 100%.” Please give me the table citations to your study from where you derive your facts so I can respond to the specifics of that comment. I tried to match up your comments with the tables and had trouble.
  • No matter how you look at it, my dismissal rate and the dismissal rate in the Northern District of George are both roughly equal. What that tells me is that the judges in the Northern District of Georgia and I approach SJ in employment cases about the same.
  • You might find it helpful to know more about how we deal with summary judgment motions in my chambers.  I have two career law clerks. Jan and Jim. Jim is 62 and Jan is 50 (or so). They have worked for me for a long time, they were top flight lawyers before coming to work for me, and they were honor graduates of our local law school. I honestly don’t know their political affiliations, but I suspect they are independents. They skew slightly left of center on politics whenever we chat about such things.
  • Jan and Jim take summary judgment motions according to an internal practice where Jan does the odd number cases and Jim the even number of cases. We try very hard to get SJ motions resolved in 60 days of the ripe date. I almost never discuss the case with Jan or Jim as they are working on the summary judgment motion. When they have completed their work, I receive one thing. That is, a fully completed draft opinion, with hyperlink cites to the record and the cases. I read the opinion and determine whether I agree or disagree with it. Almost always, I file the opinion without change and without discussion and that is because Jan and Jim are very good and very, very thorough. Jan and Jim’s only direction from me is to write these opinions in strict accordance with (1) the precedents in the Eighth Circuit and (2) with the our local rules of practice that place a high premium on a method for sorting out whether there are truly material facts in dispute. See Nebraska Civil Rules (NECivR), 56.1(a)&(b) at pp. 33-34. Having served as law clerk on the Court of Appeals myself (albeit long ago) and now having sat as a judge with the Circuit by designation several times, I like to think I have a better than average understanding of how to read the precedents from the Circuit.
  • So, what’s the point? Despite my high dismissal numbers, we do “it straight up.” I have no reason to suspect that your judges in the Northern District of Georgia do anything different. The fact is that the law on summary judgment motions in employment cases favors the granting of summary judgment motions in a high percentage of the cases and, not surprisingly, that is what you see happening in the Northern District of Georgia and with “yours truly” too.

RGK

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?”

RGK

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