Employment Litigation: Summary Judgment Motion...
Transcript of Employment Litigation: Summary Judgment Motion...
Employment Litigation: Summary Judgment Motion Strategies Leveraging Discovery Tools, Statement of Facts, and Timing in Discrimination, Harassment, and Retaliation Claims
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WEDNESDAY, JANUARY 21, 2015
Presenting a live 90-minute webinar with interactive Q&A
Jeff Sand, Esq., The Weiner Law Firm, Atlanta
Johanna T. Wise, Senior Associate, Seyfarth Shaw, Atlanta
Jill Barbarino, Member, Epstein Becker and Green, New York
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EMPLOYMENT LITIGATION:
SUMMARY JUDGMENT
MOTION STRATEGIES
Jill Barbarino Epstein Becker and Green
Jeffrey Sand, Esq. The Weiner Law Firm LLC
Johanna T. Wise Seyfarth Shaw LLP
Summary Judgment Motion Strategies
ROADMAP:
1. Procedural Framework
2. Substantive Framework
3. Practice Techniques
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PROCEDURAL
FRAMEWORK
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Federal Rule Of Civil Procedure 56
• Rule 56(a) – A party may move for summary judgment,
identifying each claim or defense—or the part of each
claim or defense—on which summary judgment is sought.
The court shall grant summary judgment if the movant
shows that there is no genuine dispute as to any material
fact and that the movant is entitled to judgment as a
matter of law.
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Federal Rule Of Civil Procedure 56
• What is a material fact?
A fact that establishes or refutes an element essential to
the complaint, charge, or defense
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Federal Rule Of Civil Procedure 56
• What is judgment as a matter of law?
A judgment entered by the court in favor of one party
because there is no legally sufficient evidentiary basis
on which a jury could find for the other party
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Federal Rule Of Civil Procedure 56
• When is summary judgment appropriate?
Summary judgment is particularly appropriate when the
questions to be decided are issues of law
Examples:
interpretation of constitutions and statutes
legal sufficiency of documents
interpretation of unambiguous contracts
particular law does not hold individuals liable
statute of limitations
no jurisdiction over claim
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Federal Rule Of Civil Procedure 56
• What are the typical components of a summary
judgment motion? 1. Motion
2. Statement of Material Undisputed Facts
3. Brief or Memorandum of Law
4. Supporting Proof (required by Rule 56(c)(1)(A))
Depositions
Documents
ESI
Affidavits or Declarations
Stipulations
Admissions
Interrogatory Answers
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Federal Rule Of Civil Procedure 56
• What are the typical components of an opposition
to summary judgment? 1. Response to Statement of Material Undisputed Facts
Every fact present by the movant must be addressed and/or
disputed or else it may be deemed an admission
2. Response Brief or Memorandum of Law
3. Supporting Proof (required by Rule 56(c)(1)(A))
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Weighing The Evidence
• Moving party must show that there is an absence
of evidence to support the non-moving party’s
case
• Non-moving party opposing summary judgment
must present admissible evidence showing a
genuine issue of material fact
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Weighing The Evidence
• Evidence is viewed in the light most favorable to
the non-moving party
• A scintilla of evidence is insufficient
• The court is only required to consider the cited
materials but can consider other materials in the
record
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Exception To The Rule
• Although the court must construe all facts in favor
of the non-moving party, a court is not required to
accept as true a statement that no reasonable
person would believe
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Plaintiff’s Burden When Moving For
Summary Judgment • When the party with the burden of proof at trial moves for
summary judgment:
Must show by admissible evidence that no reasonable jury could
find for the nonmoving party
Must establish all essential elements of the claim with evidence
Must identify the lack of a genuine issue of fact concerning any
affirmative defenses
• Burden then shifts to the non-movant to show there is a
genuine issue for trial
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SUBSTANTIVE
FRAMEWORK
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Moving For Summary Judgment Under
Title VII • Disparate Treatment
Direct Evidence
oEvidence that, if believed, proves the existence of a fact without
inference or presumption
oPlaintiffs typically rely on comments to establish a discriminatory
motive
oDefendant needs to show comments do not amount to direct
evidence
oGenerally, if a plaintiff asserts sufficient direct evidence of
discrimination, summary judgment is not available
oException No Tangible Employment Action
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Moving For Summary Judgment Under
Title VII • Disparate Treatment
Circumstantial Evidence
oMcDonnell Douglas Burden-shifting Framework
oPrima Facie Case
1. Belongs to a protected class
2. Subjected to an adverse employment action
3. Employer treated similarly situated employees more favorably
o Legitimate Non-Discriminatory Reason
oPretext
• Disparate Impact
Statistical Evidence
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Moving For Summary Judgment Under
Title VII • Harassment Plaintiff must show that:
1. S/he belongs to a protected group
2. S/he has been subjected to unwelcome harassment
3. The harassment was based on a protected characteristic
4. The harassment was sufficiently severe or pervasive to alter the
terms and conditions of employment
5. The employer is responsible for such environment under either a
theory of vicarious or direct liability
Vance v. Ball State Univ. - Title VII “supervisor” defined as
employee empowered with the ability to "take tangible employment
actions against the victim" such as hiring and firing
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Moving For Summary Judgment Under
Title VII • Retaliation
Prima Facie Case
1. Engaged in statutorily protected activity
2. Subjected to a materially adverse employment action
3. Adverse action was causally connected to the protected activity
Legitimate Non-Discriminatory Reason
Pretext
Univ. of Texas Southwestern Medical Center v. Nassar -
Retaliation provision of Title VII requires that a plaintiff prove
“but for” causation
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Affirmative Defenses
• Defendant’s Burden to Establish Affirmative
Defenses
• Typical Defenses:
Statute of Limitations
Failure to Exhaust Administrative Remedies
Faragher-Ellerth Defense
Judicial Estoppel
Failure to list claim in bankruptcy
Collateral estoppel
Res judicata
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PRACTICE TECHNIQUES
Jill Barbarino
• Planning the motion from the beginning
• Analysis of Complaint
• Key issues
• Possible affirmative defenses
Discovery
25
• Personnel File
• Policies
• Handbook
• Charge file/position statement
Collection of Documents
26
• Plaintiff’s laptop, phone, blackberry
• Key custodians
• Collection and analysis
Electronic Discovery
27
• Document Requests
• What documents do you need from the plaintiff that you will
want to attach to your motion?
• Interrogatories
• Don’t ask questions that will create fact issues.
• Third-Party Subpoenas/Authorizations
Discovery Demands
28
• Must be well-prepared
• Initial drafting of brief
• Obtaining testimony for the motion – KNOW WHAT
YOU NEED
• Be ready to move on after the answer you like
• The multiple-day deposition
Plaintiff’s Deposition
29
• Use the draft brief as a preparation document
• Where are the potential problems?
• Prepare your witness for any “bad” facts
• Walk through question and answer
• Your witnesses should know your story
• Do your best to ensure your witnesses do not create
fact issues
Your Witnesses’ Depositions
30
• All those e-mails
• Other document authentication issues
The Use of Requests for Admissions
31
TIMING
32
• Depends on the issue • Enforceability of release agreement
• Statute of limitations
• Jurisdictional issue
• Typically at the end of discovery
• Usually one opportunity
When to file?
33
FORM OF MOTION
34
• Don’t overreach
• Partial summary judgment – WHAT CAN BE
REALISTICALLY OBTAINED
What to ask for?
35
• Does our case look like another one where summary
judgment was granted?
• How has our judge ruled on similar summary judgment
motions?
• How can you make your motion, look like the motion in
other successful cases?
Keys to Success
36
• Keep it simple
• It’s not a “Paragraph of Facts”
• Draft each sentence so that it cannot be disputed
• Cite to the plaintiff’s deposition and the plaintiff’s
document production whenever possible
Statement of Facts
37
• What is the compelling theme?
• It’s called a brief for a reason
• A picture is worth a thousand words
Briefing
38
• It’s a reply, not a condensed version of your moving
brief.
• Don’t rehash your same arguments
• Respond to opposing counsel’s arguments while
explaining why plaintiff is wrong as a matter of law
• Continue the theme from the moving brief.
• Make it no longer than necessary.
The Reply Brief
39
OPPOSING DEFENDANT’S
MOTION FOR SUMMARY
JUDGMENT
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Opposing Defendant’s Motion for
Summary Judgment • Develop Evidence Early
• Meet with witnesses / obtain sworn statements
• Understand employer’s position • Unemployment hearing testimony
• EEOC position statements
• EEOC Charge – Roadmap
• Complaint • Obtain admissions on key elements
• Avoid throwing in the kitchen sink
• Discovery • Answering defendant’s interrogatories
• Requests for admission
• Third-party discovery
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Opposing Defendant’s Motion for
Summary Judgment • Discovery
• Answering defendant’s interrogatories
• Requests for admission
• Third-party discovery
• Depositions • Meticulously prepare plaintiff
• Explore all of plaintiff’s allegations with defendant’s witnesses, and get
denials.
• Develop inconsistencies / disputed material facts
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Opposing Defendant’s Motion for
Summary Judgment • Opposing The Motion
• Don’t simply respond to defendant’s motion
• Lead with your best argument
• Deal with bad facts / arguments
• File statement of additional facts
• Tell your client’s story
• Highlight disputed material facts
• Explain why disputes are material
• Explain inferences that can be drawn from favorable facts and disputed
facts
• Use clear structure
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