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Is Summary Judgment Dead: Or Alive & Kicking?

A party is entitled to summary judgment (i.e., to have the case dismissed before trial) under Rule 56 of the Federal Rules of Civil Procedure if the court decides, after reviewing the evidence, that there is no "genuine issue of material fact" requiring a trial. In discrimination and sexual harassment cases, the question of whether to file a summary judgment motion or to proceed directly to trial typically arises after the completion of discovery, including depositions, document production, and interrogatories. At that point, employers often ask their lawyers to try to get the plaintiff's claims dismissed, but are mystified by the inability of lawyers to predict the outcome of a summary judgment motion in any given case.

One reason why it has become so difficult to decide whether to invest the time and money needed to make a motion for summary judgment is that the Second Circuit Court of Appeals, which hears appeals from New York's federal courts, sends conflicting signals to New York's federal trial judges about the scope of their authority to grant summary judgment in discrimination cases. The controversy began in 1994, when the Second Circuit reversed a decision by Judge Gerard Goettel, a respected Southern District trial judge, that had granted summary judgment in an age discrimination suit. The Second Circuit, stating that summary judgment is "a drastic... remedy," held that a jury must determine if the plaintiff's layoff was discriminatorily motivated: "[C]ourts must be cautious about granting summary judgment to an employer when, as here, its intent is in issue." Gallo v. Prudential Residential Services, 22 F.3d 1219 (2d Cir. 1994).

Heeding the Second Circuit's obvious signal, Judge Goettel denied summary judgment in a subsequent case, stating that he did not feel empowered to consider granting the employer's motion in light of Gallo. The employer appealed, and Judge Goettel, in a letter to the Second Circuit urging the court to clarify its rules, pointed out that:

To simply say that Gallo does not preclude the granting of summary judgment in all employment discrimination cases would be echoing the mother in the anonymous nursery rhyme: Mother, may I go out to swim? Yes, my darling daughter. Hang your clothes on a hickory limb, But don't go near the water.

Needless to say, the Second Circuit chastised Judge Goettel and held that summary judgment was available in appropriate circumstances (although what those circumstances were was left unclear). McLee v. Chrysler Corp., 38 F.3d 67, 68 (2d Cir. 1994).

A recent decision has once again ignited passions about whether employers can win summary judgment. In Gallagher v. Delaney, 139 F.3d 338 (2d Cir. 1998), Judge Jack B. Weinstein, sitting by designation in the Second Circuit, held that summary judgment is effectively unavailable in discrimination and sexual harassment cases. Relying on a politically correct (and indisputably condescending) analysis of federal judges, the Second Circuit noted that an "Article III judge is not a hierophant of social graces" because "whatever the early life of a federal judge," she or he generally lacks the "current real life experience" required to interpret the "subtle...dynamics of the workplace." Id. at 342, 347. The court concluded that federal judges are "not in the best position to define the current sexual tenor of American culture" and therefore "a jury made up of a cross-section of our heterogenous communities provides the appropriate institution for deciding whether borderline situations should be characterized as sexual harassment." Id. at 342.

In light of the controversy sparked by the Gallagher decision, some trial courts have simply accepted Judge Weinstein's instructions and denied summary judgment, Rose v. Port Authority, 1998 WL 400017 (S.D.N.Y. July 16, 1998) (Leisure, J.), while other courts have expressed dismay at the obvious impact of Gallagher. For example, in Rosario v. Copacabana Night Club, 1998 WL 273110 at * 8 (S.D.N.Y. May 28, 1998), Judge Kevin Duffy, noting that Gallagher took "great pains to comment on the capacity of an Article III judge to determine issues of fact in gender harassment cases," stated that such cases should be treated the same as any other cases because defendants should "not be forced to fear that upon receipt of a harassing complaint, they must either plead guilty (settle and concede liability) or, as Gallagher suggests, face a jury's resolution of the claim." See also "Summary Judgment in Sexual Harassment Cases," New York Law Journal at 1 (April 29, 1998) ("[I]f the spirit of Gallagher is followed, defendants will find it difficult to obtain summary judgment in this circuit.").

In Fierro v. Saks Fifth Avenue, 1998 WL 388971 (S.D.N.Y. July 7, 1998), Judge Charles Brieant, the same judge that the Second Circuit reversed in Gallagher, noted that Gallagher's suggestion that summary judgment is unavailable where the employer's intent is at issue was previously rejected by the Second Circuit in McLee. Consequently, noting that the "contention that summary judgment is unavailable in employment discrimination cases" is incorrect, Judge Brieant declined "to allow plaintiff's mere incantation of intent to operate as a talisman to defeat an otherwise valid motion." Id. at * 7. Indeed, even a different Second Circuit panel of judges, in a decision written by Judge Guido Calabresi, held that the principle that a jury, rather than a judge, should decide discrimination cases under Gallagher does not change the fact that "a jury cannot infer discrimination from thin air." Norton v. Sam's Club, 145 F.3d 114, 119 (2d Cir. 1998). See also Distasio v. Perkin Elmer Corp., 1998 WL 640280 (2d Cir. Aug. 27, 1998) (noting that summary judgment is "still fully appropriate" even after Gallagher, summary judgment is equally applicable to discrimination cases as to commercial cases, and the plaintiff "must still offer concrete evidence" from which a reasonable juror could return a verdict).

The Gallagher decision and its progeny intensify uncertainty that has existed since Gallo and McLee for defendants about whether they should risk the time and money of a summary judgment motion before either agreeing to settle or going to trial. The reality is that it is virtually impossible for attorneys to predict whether a particular judge will grant summary judgment in sexual harassment and discrimination cases. Clients and lawyers need to understand that when it comes to moving for summary judgment, they are rolling the dice.

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