Discovery to Set up Summary Judgment
The summary judgment process seeks to eliminate groundless and burdensome litigation. To that end, the primary reason for filing a motion for summary judgment is to dismiss meritless claims prior to going to trial. In the employment context, the majority of summary judgment motions are filed by employers and seek the dismissal of some or all of the employee’s claims as a matter of law. The benefits of summary judgment (whether partial or in full) are numerous and include the following:
- Summary judgment motions are decided by judges. As such, claims dismissed at the summary judgment stage of review avoid adjudication at the hands of an unpredictable jury, who, more often than not, sympathize with an individual over a company.
- In the case of a partial motion for summary judgment, or where a motion for summary judgment is only granted in part, the case is narrowed and, therefore, is simplified for trial. In turn, eliminating or reducing claims prior to trial results in more focused and hence, more efficient, trial preparation.
- Summary judgment motions need not be confined to matters of liability; they can be filed to define and/or limit the categories of damages available to the plaintiff-employee.
- Filing a motion for summary judgment encourages settlement. The motion and supporting briefs, if effective, will expose the parties’ weaknesses and risks in the case. Moreover, the summary judgment process is time consuming and costly (thoroughly analyzing the evidence of record, drafting the motions and briefs, and preparing for and participating in oral argument), which often prompts the non-moving party to seriously consider settlement rather than spend time and attorneys’ fees responding to the motion.
Despite these numerous benefits, the summary judgment process has recently come under attack, at least in the context of claims for employment discrimination. Anecdotally, the authors of this article can vouch for the fact that summary judgment is becoming an increasingly disfavored method of resolving employment disputes, and getting cases dismissed on summary judgment is more difficult today than it was only a few years ago. One possible reason for this shift away from summary judgment is the recent implementation of court-ordered mediation. Denying summary judgment has the (un)intended effect of forcing employers into settling the case so as to avoid rolling the dice at trial (see the first point above), even though the employee’s claims may be wholly without merit.
The mainstream press is also jumping on the bandwagon. In a recent article from the Wall Street Journal decrying the poor track record of employment discrimination claims in federal court, the reporter noted:
A report last year by the Federal Judicial Center, the research arm of the federal courts, found that judges nationwide terminated 12.5% of employment-discrimination claims through summary judgments, before the suits reached trial. In 90% of those cases, it was the employers who requested summary judgment. In contrast, the study found [that] 3% of contract cases and 1.7% of personal-injury and property-damage suits were dismissed via summary judgments.
Nathan Koppel, Job-Discrimination Cases Tend to Fare Poorly in Federal Court, Wall St. J., Feb. 19, 2009, at A16. The fact that one out of every eight employment discrimination cases is thrown out on summary judgment should not, in reality, be cause for alarm (and, comparing discrimination claims to other civil actions, like contract and personal injury cases, in the context of summary judgment is simply unfair—disputed issues of fact dominate those types of cases). Nevertheless, even that relatively low figure is apparently too high for some. And, given the fact that “change” has come to Washington, employers can expect that summary judgment victories will become increasingly more difficult to obtain.
For these reasons, it has become more important than ever for employers and their counsel to properly position cases for summary judgment. Although (seemingly) disfavored, summary judgment remains a vital means by which meritless cases can be disposed in order to avoid the costs, expenses, and unpredictable outcomes associated with trial. To that end, the goal of this article is to provide the requisite framework and foundation to get the most out of the summary judgment process. Through the effective use of discovery, employers can still ensure that they will be given a “fair shake” at the summary judgment stage of litigation.
II. EFFECTIVELY POSITIONING A CASE FOR SUMMARY JUDGMENT
A. The Complaint Has Been Filed: Now What?
Once a complaint has been filed, make every effort to waive service under Fed. R. Civ. P. 4(d). Oftentimes, the plaintiff-employee’s attorney will request the waiver him or herself after the complaint has been filed. In other instances (particularly if you or your client tracks activity on the federal dockets, or if you were previously involved in this matter at the administrative level), it may be incumbent on you to reach out to plaintiff’s counsel to notify him or her that you are willing to waive service on your client’s behalf. In any event, the extra time to respond that is granted to the party waiving service can, and should, be put to use to develop an effective defense. (Translation: do not waive service and then simply allow the complaint to collect dust on your desk for fifty-nine days.)
After the complaint has been filed, and after you have (hopefully) been able to waive service, the next logical step, of course, is to speak with the employer and obtain all of the facts and details surrounding the adverse employment action at issue (e.g., termination, demotion, transfer, harassment, failure to hire). Your main point of contact will likely be an HR representative (“HR rep”). Have the HR rep identify the relevant decisonmaker or decisionmakers, and be sure to speak with all of them in order to get their version of events (as you will see shortly, this is one of the most crucial steps in the process). Have the HR rep identify any and all employees that the plaintiff has identified or may identify as “comparators” (i.e., those employees inside or outside the plaintiff’s protected class who received either the same or more favorable treatment for similar conduct). Lastly, have the HR rep send you copies of: (1) the employer’s policies regarding discrimination, harassment, retaliation, etc.; (2) the plaintiff’s complete personnel records (do not simply request a “personnel file” as critical evidence may not technically be collected and stored in a “personnel file”); (3) the complete personnel records for all the decisionmakers and identified comparators; and (4) any and all internal notes or documents regarding the plaintiff’s claims. Also, pursuant to the recently enacted e-discovery rules, make sure you have an understanding of the employer’s record retention policy and its IT system; and be sure that the employer halts all document destruction practices that may affect documents related to the plaintiff’s lawsuit by sending your client a Preservation or Hold Letter.
Above all else, make sure that the employer’s reason for the adverse employment action remains consistent. If the plaintiff was fired for failing to meet certain performance objectives (for example, not fulfilling a particular sales quota), the employer cannot later change its story midstream and state that the employee was also fired because he looked at pornography on the company computer. Oftentimes, when managers are asked to reflect on a fired employee, they have a tendency to focus on the negative—even though many of those negative attributes did not form the basis of the adverse employment action. Not only is it important to isolate the relevant decisionmaker(s), it is equally important to isolate the actual, and truthful, nondiscriminatory reason(s) behind the employer’s decision. When an employer changes its story, that change, most courts declare, is proof positive that the “official” story is simply a pretext, and the employer’s true motivation must have been discrimination or other illicit reasons. Thus, if you run into a “changed story” situation, and cannot isolate the actual reason(s) for the adverse employment action, it may be wise to start thinking about settlement, because that case is undoubtedly going to trial.
One final point: Be sure to send a Freedom of Information Act (“FOIA”) request to the (Equal Employment Opportunity Commission (“EEOC”) immediately upon receiving the complaint. In all likelihood, the plaintiff’s claims have journeyed through the administrative process before finding their way into federal court (if not, as discuss infra, you may have grounds to file a motion to dismiss). Primarily, the information submitted to the EEOC will help you isolate the employer’s stated reason(s) behind the adverse employment action (like it or not, you are stuck with the version of events that was told to the EEOC—lest you wish to run head first into a “changed story” situation). This is crucial, as your answer to the complaint must not contradict the information previously provided by the employer to the EEOC. Moreover, even if you were involved at the administrative level, sending a FOIA request to the EEOC will provide you with all correspondence from the plaintiff, as well as any statements submitted by other witnesses on the plaintiff’s behalf. This information, if nothing else, will help you get a sense of the plaintiff’s theory of the case. If there are Pennsylvania employment discrimination claims in the complaint, you should also subpoena the Pennsylvania Human Relations Commission (“PHRC”)’s investigative file for the same reasons set forth above.
B. Motion to Dismiss: Should You Go for It?
Short answer: No. Moving to dismiss a plaintiff’s discrimination complaint on Fed. R. Civ. P. 12(b)(6) grounds will, ninety-nine times out of a hundred, be an exercise in futility. Before automatically firing up the computer to draft an answer, however, there are a few recurring causes of action or theories of liability that plaintiffs (either through sloppiness or shrewdness) love to include in their complaints. Moving to dismiss such claims in the early stages of litigation provides the obvious benefit of narrowing the scope of discovery. (Perhaps less obviously—but just as important—dismissing these claims at the 12(b) stage can help free up a few extra pages on a brief in support of summary judgment, which, as most can attest, can certainly come in handy when faced with stringent page-limit requirements that are strictly enforced by some courts.)
One of the biggest offenders is the inclusion of a peripheral cause of action for negligent supervision. Such a claim is typically brought in addition to a claim under the Pennsylvania Human Relations Act (“PHRA”), which, itself (in classic Matryoshka doll-style pleading), is typically brought in addition to a claim under a federal discrimination statute. Because the PHRA preempts other state-law causes of action arising out of the same set of facts, however, any relatedcommon law claimshould be thrown out at the 12(b) stage of litigation. See 43 P.S. § 962(b) (providing that the statutory remedies of the PHRA “shall, when invoked, be exclusive in the final determination therein and shall exclude any other action, civil or criminal, based on the same grievance of the complaint concerned”); see also Watkins v. Rite Aid Corp., No. 06-299, 2006 U.S. Dist. LEXIS 50784, *13 (M.D. Pa. July 25, 2006) (granting the employer’s motion to dismiss the plaintiff’s claim for negligent supervision based on PHRA preemption).
Another deficiency found in some plaintiffs’ complaints is the assertion of violations of the three major federal discrimination statutes (Title VII of the Civil Rights Act of 1964 (“Title VII”), the Americans With Disabilities Act (“ADA”), and the Age Discrimination in Employment Act (“ADEA”)) against one or more individual defendants, rather than simply against the employer itself. See Kachmar v. Sungard Data Sys., 109 F.3d 173, 184 (3d Cir. 1997) (“[I]ndividuals may not be held liable under Title VII.”); McInerney v. Moyer Lumber & Hardware, Inc., 244 F. Supp. 2d 393, 398 (E.D. Pa. 2002) (noting that, in the absence of a direct answer from the Court of Appeals, the “consensus view” among the district courts within the Third Circuit is that “there is no individual liability under the ADA”); Hill v. Borough of Kutztown, 455 F.3d 225, 246 n.29 (3d Cir. 2006) (“[T]he ADEA does not provide for individual liability.”).
One final procedural defect that can be remedied at the 12(b) stage of review is a motion to dismiss for failure to exhaust administrative remedies. The purpose of the exhaustion requirement is to give the EEOC or other administrative agency an opportunity to resolve disputes through a settlement or compromise between the parties and to avoid unnecessary action in court. To properly exhaust administrative remedies with respect to a particular defendant, that defendant must ordinarily be named in the plaintiff’s administrative charge of discrimination (filed with the EEOC or state-level analogue such as a Complaint filed with the PHRC). If the plaintiff fails to do this, and asserts a claim of discrimination against his or her employer for the first time in federal or state court, the complaint should be dismissed. See Robinson v. Dalton, 107 F.3d 1018, 1022 (3d Cir. 1997) (holding that the defense of failure to exhaust may properly be raised in a motion to dismiss).
C. Taking Charge of Discovery: Shaping the Case
As early as possible (preferably alongside the filing of your answer), send out your Rule 26 initial disclosures and your initial discovery requests, which should include interrogatories and requests for production of documents. (Be mindful, however, of local rules and judicial preferences relating to the commencement of discovery. Some courts discourage parties from conducting formal discovery prior to the Rule 26(f) conference.) The initial round of interrogatories do not have to focus on the specifics of the plaintiff’s claims; rather, they should be geared towards potential damages (mitigation issues, any alleged compensatories, medical issues, etc.) and generalized information that is subject to a duty to supplement (e.g., identification of fact and expert witnesses). Document requests should focus primarily on W-2s or 1099s and tax returns, job search documents, medical records, expert reports, and any exhibits the plaintiff intends to introduce at trial).)
Also, when sending out your written discovery requests, be sure to send along a notice of deposition directed to the plaintiff for a deposition more than thirty days out (to ensure that the plaintiff responds to the first round of discovery requests before the deposition). There are no hard-and-fast rules that govern which party gets to depose whom in what order. Nevertheless, the “first in time, first in line” argument is generally accepted by judges.
Make no mistake, in an employment discrimination lawsuit, the plaintiff’s deposition is the single most important aspect of the case. Flashing forward to your anticipated summary judgment motion, be mindful that the recitation of facts supporting summary judgment must come almost exclusively from the plaintiff’s own mouth (so as to avoid any disputed issues of fact—the plaintiff will have a difficult time trying to argue against his or her own sworn testimony). Generally speaking, with respect to issues of liability (and disregarding, at least for purposes of this article, issues relating to damages) there are four main goals to achieve when taking the plaintiff’s deposition. First, be sure to have the plaintiff admit to the conduct that provided the basis for his or her termination or adverse employment action (e.g., insubordination, poor performance, etc.). This can be accomplished by introducing documentation relating to the plaintiff’s employment (e.g., performance reviews, written warnings, sales results, etc.). While the plaintiff will (obviously) not agree with the employer’s decision, it is important to have the plaintiff admit to the underlying factual basis that supported the decision. Merely disagreeing with the employer’s ultimate decision on undisputed facts does not warrant a finding of discrimination. See Brewer v. Quaker State Oil Ref. Corp., 72 F.3d 326, 332 (3d Cir. 1995) (“[Courts] do not sit as a super-personnel department that reexamines an entity’s business decisions, [but] rather [the court’s] inquiry is limited to whether the employer gave an honest explanation of its behavior.”) (quoting McCoy v. WGN Continental Broadcasting Co., 957 F.2d 368, 373 (7th Cir. 1992)). Moreover, if the plaintiff is very contentious, and takes the tenuous position that company documents were “forged,” “altered,” or otherwise modified to make him or her “look bad,” be sure to follow up and have the plaintiff identify the factual basis for such suspicions. Chances are, the plaintiff is basing his or her beliefs on nothing more than idle speculation, which is simply not enough to prevent the entry of summary judgment.
Second, have the plaintiff identify the relevant decisionmaker(s). Once identified and isolated, ask the plaintiff to explain his or her understanding or belief as to why this individual or group of individuals targeted the plaintiff on the basis of the protected class at issue (e.g., gender, age, race, disability) . Third, have the plaintiff identify each and every reason why he or she feels as though the decisionmaker(s) discriminated against the plaintiff on the basis of the protected class at issue. For example, have the plaintiff identify all similarly situated comparators (i.e. employees who shared the same job-related responsibilities and who reported to the same supervisor) and how those comparators were given preferential treatment. In addition, have the plaintiff identify and describe all discriminatory comments that were made as well as the individual making such comments. Finally, to bolster any available Ellerth/Faragher affirmative defense, have the plaintiff describe the steps he or she took to bring this alleged discrimination to the attention of the employer, and what the employer did after becoming informed of plaintiff’s complaint (i.e. did the employer have a complaint mechanism in place, was the plaintiff aware of this mechanism, and did the plaintiff make use of such a mechanism?).
When it comes time for the employer’s representatives’ depositions, just remember the golden rule: don’t change the story. Be sure each representative’s deposition is consistent with the others, both in terms of the reason for the adverse employment action, as well as the identity of the individual or group of individuals who made the decision. Listen closely to the questions that are being asked by plaintiff’s counsel, and be sure to object to questions that assume facts that are not in evidence or that ask the deponent to answer hypothetical questions. If you need to clear up a few issues at the end of the deposition, or simply wish to get a few “yes/no” questions on the record to further bolster your summary judgment motion, do not hesitate to chime in with a few follow-up questions. (Be sure to take a five minute break with the deponent and let him or her know what questions you would like to ask. If they cannot give you the answer that you are seeking, do not ask that question when you go back on the record as you do not want to create issues of fact that will come back to haunt you during the summary judgment process.)
After depositions, review the transcripts for any additional follow-up requests that you would like to make prior to the close of discovery. Often times, a few pointed requests for admission will help shorten or abbreviate a large amount of factual issues.
D. Off the Beaten Path: Possible Third-Party Discover
Though time and money constraints may hinder a full-scale third-party discovery assault, do not automatically disregard the benefits of looking elsewhere for information relating to the plaintiff. Indeed, information obtained from various outside sources may reveal additional helpful facts when preparing a case for summary judgment (especially if you can obtain some damaging information prior the plaintiff’s deposition). A compilation of third-party sources is attached to this article as Appendix B.
III. KEY ISSUES TO CONSIDER
A. Avoiding Pretext
According to the United States Court of Appeals for the Third Circuit, most discrimination cases turn on the third and final stage of the McDonnell Douglas burden-shifting paradigm, i.e. whether the plaintiff can establish that the employer’s proffered legitimate, nondiscriminatory reason for the employment decision was merely a pretext for its true discriminatory motives. Williams v. Philadelphia Hous. Auth. Police Dep’t, 380 F.3d 751, 760 (3d Cir. 2004). In the Third Circuit, to establish pretext with respect to the employer’s proffered reason(s), the plaintiff must “demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions [that] a reasonable factfinder could rationally find [the proffered reason(s)] unworthy of credence.” Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994) (emphasis added). To be sure, however, simply not believing an employer’s reason is insufficient to establish pretext. In order to avoid summary judgment, the plaintiff must identify evidence which would “allow a factfinder reasonably to infer that each of the employer’s proffered reasons … was either a post hoc fabrication or otherwise did not actually motivate the employment action.” Id. at 764.
As mentioned previously, the most important thing for the employer to remember when avoiding the pretext trap is to keep its story straight and not deviate from the original reason for the adverse employment action. Failure to do so will result in a one-way ticket to trial. See, e.g., Donlin v. Philips Elecs. N. Am. Corp., No. 05-585, 2006 U.S. Dist. LEXIS 48221, *37 (M.D. Pa. July 17, 2006) (“[B]ecause Defendant has offered different reasons for not hiring Plaintiff at different times, we conclude that a reasonable factfinder may conclude that Defendant’s credibility is undermined to a degree that casts doubt on Defendant's true motivation. Because evidentiary facts are in dispute and the credibility of witnesses may be at issue, summary judgment is not proper on Plaintiff's sex discrimination claim.”).
B. Isolate the Relevant Decisionmaker(s)
An important step during the discovery process is to identify and isolate the relevant decisionmaker(s). By doing so, and by demonstrating the lack of any discriminatory animus harbored by such decisionmaker(s), the employer can further strengthen the success of prevailing on summary judgment. See, e.g., Money v. Provident Mut. Life Ins. Co., 189 Fed. Appx. 114, 117 (3d Cir. 2006) (upholding the district court’s grant of summary judgment where the plaintiff “present[ed] no evidence to suggest that any decisionmaker … harbored racial animus and the termination decision itself is not so unreasonable as to assist [the plaintiff] in proving pretext under McDonnell-Douglas”). Be mindful, however, that simply “hiding” the decisionmaker may prove insufficient to prevail on summary judgment where other employees who did, in fact, harbor an impermissible discriminatory bias are shown to have participated in the decision making process. See Abramson v. William Patterson College of New Jersey, 260 F.3d 265, 286 (3d Cir. 2001) (reversing the district court’s grant of summary judgment where two subordinates displaying discriminatory animus played a role in the decision, and noting “it is sufficient if those exhibiting discriminatory animus influenced or participated in the decision to terminate”).
C. Isolate the “Similarly Situated” Comparators
One component of a plaintiff’s prima facie case of discrimination may turn on a showing that non-members of the relevant protected class were treated more favorably. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). As a consequence, the plaintiff can bolster his or her prima facie case by proving that “similarly situated” comparators (i.e., those outside the relevant protected class) were provided preferential treatment. It is here where the identification of such “similarly situated” comparators during discovery becomes important to formulating an effective summary judgment argument. Most often, in identifying comparators, courts will look to peers of the plaintiff who: (1) performed essentially the same duties; (2) reported to the same supervisor; and (3) engaged in the same type of conduct giving rise to the adverse employment action at issue.
As explained by one district court:
Title VII requires Plaintiff to demonstrate that similarly situated individuals outside of the protected class were treated more favorably than she. Under Title VII, to be deemed similarly situated, the individuals with whom a plaintiff seeks to be compared must have engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer’s treatment of them for it. Similarly situated employees are ones who have dealt with the same supervisor, have been subject to the same standards and have engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer’s treatment of them for it. Further, the proposed analogues must be similarly situated in all material respects. Thus, in a case alleging sexual discrimination, a female sexual discrimination plaintiff must show that male employees did not suffer similar adverse employment actions, despite displaying the same problem which provoked and supported the adverse action suffered by the plaintiff.
Economos v. Scotts Co., No. 05-271, 2006 U.S. Dist. LEXIS 84646, *15-16 (E.D. Pa. Nov. 20, 2006) (citations, quotations, and alterations omitted).
It is important to note, however, that a plaintiff is not always required to introduce such evidence to establish a prima facie case of discrimination. See, e.g., Sarullo v. United States Postal Serv., 352 F.3d 789, 797-98 n.7 (3d Cir. 2003) (holding that “the prima facie test remains flexible and must be tailored to fit the specific context in which it is applied,” and noting that the plaintiff was not required to show that other similarly situated employees outside of his protected class were treated more favorably under similar circumstances to prove his prima facie case of discrimination). Nevertheless, a failure do to so can only strengthen an employer’s chances of prevailing on a motion for summary judgment—especially where the employer can demonstrate that all similarly situated employees, regardless of their membership in a protected class, were treated equally.
D. Identifying Inadmissible Evidence
An issue that is often overlooked on summary judgment is the admissibility of evidence. Evidence not admissible at trial—most notably, inadmissible hearsay evidence—cannot be considered by the court on a motion for summary judgment. See Blackburn v. United Parcel Service, Inc., 179 F.3d 81, 95 (3d Cir. 1999) (holding that inadmissible hearsay cannot be relied upon at summary judgment stage); Philbin v. Trans Union Corp., 101 F.3d 957, 961 n.1 (3d Cir. 1996) (same).
This type of inadmissible hearsay evidence frequently arises through the plaintiff’s allegations of what he or she “heard” from other co-workers. E.g., Reganick v. Southwestern Veterans’ Ctr., No. 06-1267, 2008 U.S. Dist. LEXIS 26726, *18-19 n.8 (E.D. Pa. March 19, 2008) (“Plaintiff also complains of comments from other co-workers regarding defendant Cobbs’ threats, intentions and/or remarks about plaintiff. None of these alleged statements by defendant Cobbs have been corroborated by any other witness. In fact, with regard to defendant Cobbs’ alleged threat to “kill” plaintiff, Ms. Knuckles flatly denies that she ever told plaintiff that she had heard that defendant Cobbs made such a threat. Moreover, evidence relating to these incidents is hearsay and cannot be relied upon for purposes of summary judgment.”). Therefore, when preparing for summary judgment, it is important to “weed out” the inadmissible portions of the plaintiff’s deposition transcript. Once identified, this inadmissible evidence can be handled on a preemptive basis by pointing it out to the court in the employer’s brief in support, or, perhaps a sounder strategy, waiting to address such evidence in the reply brief if and when the plaintiff attempts to rely on the hearsay statements in opposing summary judgment.
E. Dealing with Direct Evidence
Direct evidence of discrimination (i.e. discriminatory statements by decisionmakers related to the adverse employment action), in addition to eschewing the need for the traditional burden-shifting framework, almost always spells certain doom for an employer’s chances at getting a case dismissed on summary judgment. When faced with statements or comments that could potentially be construed as direct evidence of discrimination, there are two main methods by which to avoid the increased evidentiary burden associated with a direct evidence case.
First, make absolutely sure that the comments or statements constitute direct evidence, and are not merely “stray remarks.” Stray remarks are statements made by non-decisionmakers (recall the importance of identifying and isolating the actual decisionmaker(s)) and statements by decision-makers unrelated to the contested employment decision. Fakete v. Aetna, Inc., 308 F.3d 335, 338 n.2 (3d Cir. 2002). Consequently, and if at all possible, take every opportunity to argue that the statements at issue were made by a non-decisionmaker, or, if made by a decisionmaker, were not in any way related to the adverse employment action.
If, however, this is not possible, and you are stuck with allegations that a decisionmaker made discriminatory comments at or around the time of the adverse employment action, there is still another avenue towards summary judgment. To that end, if the only proof of direct evidence comes from the plaintiff’s own, self-serving allegations, a string of cases has held that such “evidence” is insufficient to create an issue of fact that would prevent the imposition of summary judgment. Indeed, while summary judgment requires that all inferences be construed in a light most favorable to the non-moving party (the plaintiff), it would surely be a perversion of justice (not to mention a drain on the courts’ limited time and resources) to allow an individual to withstand a motion for summary judgment solely by alleging—without any additional evidentiary support—that a supervisor made a discriminatory statement around the time of the adverse employment action. Furthermore, from a policy standpoint, it would be nearly impossible for employers to prevail on summary judgment if plaintiffs were permitted to rely solely on their own self-serving, uncorroborated testimony. Numerous courts agree, and have held that a plaintiff’s uncorroborated and self-serving testimony, without more, is simply not enough to establish a question of fact as to the existence of direct evidence of discrimination. See, e.g., Lemmons v. Georgetown Univ. Hosp., 431 F. Supp. 2d 76, 90 (D.D.C. 2006) (self-serving statements are not credible to overcome summary judgment on a case for direct evidence of discrimination); Alfaro v. Dana Container, Inc., No. 04-72664, 2005 U.S. Dist. LEXIS 8336 (W.D. Mich. May 9, 2005) (plaintiff’s own self-serving and uncorroborated testimony as to discriminatory statements was insufficiently credible to serve as direct evidence capable of overcoming a motion for summary judgment); Carter v. George Washington Univ., 180 F. Supp. 2d 97, 111 (D.C.C. 2001), aff’d, 387 F.3d 872 (D.C. Cir. 2004) (“Self-serving affidavits alone will not protect the non-moving party from summary judgment.”); see also Gooden v. Ryan’s Restaurant Group, Inc., No. 04-179, 2007 U.S. Dist. LEXIS 19336, *21-26 (W.D. Ky. March 14, 2007) (finding merit in this reasoning, but expressing reluctance to follow the same; granting summary judgment nonetheless due to the employer’s ability to show “same result” affirmative defense).
Several years ago, it was standard practice for employers to file a motion for summary judgment at the conclusion of discovery in almost every discrimination case. Today, however, employers must take a more practical and pragmatic look at the costs and realistic chances of success in doing so. Other than trial, summary judgment is the most expensive and time consuming portion of an employment discrimination litigation case. And, by filing a motion for summary judgment, the employer must disclose its legal theories, supporting caselaw, and evidence—including identifying pertinent deposition testimony and supplying affidavit testimony from critical witnesses. As a result, filing a motion for summary judgment involves a calculated risk; there is no doubt that the process will provide the plaintiff’s counsel with a “roadmap” of the employer’s defense.
Although expensive and time consuming, summary judgment motions were historically worth preparing because employers generally faired quite well when filing these dispositive motions. However, for a variety of reasons, summary judgment motions are now granted more and more sparingly. Therefore, employers must weigh the realistic chances of winning their summary judgment motion against the risk that summary judgment will reveal the majority of their defenses to the plaintiff. However, if the case is properly positioned through the discovery process, the reward might just outweigh the risk.
Appendix A: Discovery/Summary Judgment Checklist
Complaint is Filed:
- Waiver of service?
- Identify and interview all relevant decisionmakers; make sure that the employer’s story is consistent
- Obtain all relevant documents from the employer (e.g., policies, personnel files, handbooks, etc.)
- FOIA request to the EEOC & other third-party discovery
- Determine whether there are appropriate grounds to file a motion to dismiss
- Send out written discovery requests along with a deposition notice, and schedule the plaintiff’s deposition
- Continue with third-party discovery?
- Receive/review the plaintiff’s discovery responses
- Prepare responses to the plaintiff’s discovery requests (keep the story straight!)
- Plaintiff’s deposition (four goals: have the plaintiff (1) admit to the conduct that provided the basis for the adverse employment action; (2) identify the relevant decisionmakers; (3) identify each and every reason why he feels as though he was discriminated against on the basis of his membership in a protected class; and (4) describe the steps he took to bring this alleged discrimination to the attention of his employer, and what the employer did after becoming informed of his complaint)
- Depositions of the employer’s representatives (keep the story straight!)
- Follow-up discovery requests (e.g., request for admissions to shore up undisputed factual issues)
Ramping up for Summary Judgment:
- Anticipate pretext arguments (once more for full effect: keep the story straight!)
- Identify and isolate the relevant decisionmakers & similarly situated comparators
- Identify and exclude all inadmissible evidence
- Avoid direct evidence (recast discriminatory statements as stray remarks or argue lack of credibility)
Appendix B: Third-Party Discovery
Equal Employment Opportunity Commission (EEOC): Requests must be in writing and submitted to the regional attorney for the pertinent district, field, area or local office at the district office address. The EEOC has no special form or particular wording that must be included in the request. The request may be mailed, faxed or e-mailed to the appropriate EEOC office.
Federal Bureau of Investigation (FBI): Complete the FOIPA Request Form (same as the FOIA Request Form) and submit either a notarized authorization from the individual or company or Privacy Waiver and Certification of Identity form. The request is to be sent to Record Information/Dissemination Section in Winchester, Virginia. (A request for a “rap sheet” is to be addressed to the FBI, CJIS Division in Clarksburg, West Virginia. You must include a set of fingerprints and a check with your request.)
Internal Revenue Service (IRS): Requests are to be made to the IRS office that is most likely to have the records you are seeking. A FOIA request must be addressed to an IRS Disclosure Office that services FOIA requests. Requests for a taxpayer’s return must include Form 4506, Request for Copy of Tax Return or Form 4506-T, Request for Transcript of Tax Return. Each form must be signed by the taxpayer. State and local taxpayer returns are to be requested from the appropriate state and local agency.
Social Security (SS): Requests can be made online or by mail. No special form is needed for mail-in FOIA requests. In order to request information for a living person you must have that person’s written consent and the request is to be sent to your local Social Security office.
Pennsylvania Human Relations Commission (PHRC): Requests must be in writing and submitted by mail, facsimile, or in person. The request must sufficiently identify the records being requested and contain a statement that the requester is a Pennsylvania resident.
Pennsylvania State Police (PSP): The PSP has a web-based system called the Pennsylvania Access to Criminal History (PATCH) which allows you to request a criminal background check on an individual.
Unemployment Compensation Office: The Unemployment Compensation Office has internal procedures for the handling of requests for information. A subpoena must be submitted to the Disclosure Officer.
Bureau of Workers’ Compensation: Requests for records from the Bureau of Workers’ Compensation must be in the form of a subpoena when coming from an individual or company that is not involved in the particular workers’ compensation case. The subpoena is to be sent to the attention of Physical Records.
Department of Revenue: Requests must be in writing and sent to the Right-to-Know Law Official. Requests for a taxpayer’s return must include Form Rev 167, Authorization for Release of Tax Records.
Private Investigator/Investigative Web Sites: Information may be obtained from local private investigators or certain web sites where you can access information for a fee.
Personal E-mail and Social Networks:
AOL – headquartered in Loudoun County, Virginia; must serve with a valid subpoena; subject to jurisdiction of Loudoun County Circuit Court and U.S. District Court for Eastern District of Virginia
Facebook – must serve with a valid subpoena from California or New York.
MSN/Hotmail – must serve with a valid subpoena, court order, or search warrant from law enforcement or a civil attorney; may fax document.
MySpace – send subpoena to Corporation Service Company in Wilmington, Delaware.
Yahoo – must serve with a valid subpoena or court order; send to Sunnyvale, California.
Cell Phone Records: Contact each individual provider to determine procedures for obtaining phone records. Request address book, text messages, e-mails, contact lists, pictures, calling history and phone records.
Medical Records: Request list of all medical providers plaintiff has seen for past 10 years. This includes physicians, hospitals, psychologists, psychiatrists, counselors and any other type of medical provider. Send signed medical authorization or subpoena to all medical providers.
Academic Records: Request list of all colleges and/or trade schools plaintiff attended. Contact each to see what procedure must follow to request records.
Employers: Request list of previous employers and all employers since leaving employment of client. Contact HR department for each to see what procedure must follow to request records.
Litigation: Request search of records for local court and district court to see if plaintiff involved in any other litigation.
Internet: Search Internet for information on the plaintiff. Can use any search engine, especially Google.
For those employers with time and money to burn, however, it should be noted that the Supreme Court recently altered the standard that courts should apply when reviewing 12(b)(6) motions. In Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), the Court noted that a complaint must be dismissed for failure to state a claim unless it contains “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. This seemingly heightened standard of review has already made an impact in the area of employment discrimination. See Mangum v. Town of Holly Springs, 551 F. Supp. 2d 439, 443-444 (E.D.N.C. 2008) (the district court dismissed the plaintiff’s claim for hostile work environment sexual harassment because, according to the court, under any plausible reading of the facts, the conduct complained of was simply not sufficiently severe or pervasive to create a hostile or abusive work environment).
To be sure, the employer can be entirely mistaken when carrying out the adverse employment action, so long as the its mistake was not the product of a discriminatory motive. See Mosca v. Cole, 217 Fed. Appx. 158, 162 (3d Cir. 2007 (“[I]t is not enough for a plaintiff to show that the employer’s decision was wrong or mistaken, because the issue is whether the employer acted with discriminatory animus.”) (citing Abramson v. William Paterson College, 260 F.3d 265, 283 (3d Cir. 2001)).
Bear in mind that the same argument does not work in reverse. For example, if a supervisor renders a decision based on unfavorable comments that she heard from an employee about the plaintiff, those comments are admissible notwithstanding a hearsay objection. Such comments are being introduced, not for the truth of the matter asserted, but for their effect on the listener—a permissible non-hearsay use.