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

jbarbarino@ebglaw.com

Jeffrey Sand, Esq. The Weiner Law Firm LLC

js@atlantaemployeelawyer.com

Johanna T. Wise Seyfarth Shaw LLP

jwise@seyfarth.com

Summary Judgment Motion Strategies

ROADMAP:

1. Procedural Framework

2. Substantive Framework

3. Practice Techniques

©2015 Seyfarth Shaw LLP 6

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.

©2015 Seyfarth Shaw LLP 8

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

©2015 Seyfarth Shaw LLP 11

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))

©2015 Seyfarth Shaw LLP 13

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

©2015 Seyfarth Shaw LLP 21

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

©2015 Seyfarth Shaw LLP 22

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

©2015 Seyfarth Shaw LLP 41

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

©2015 Seyfarth Shaw LLP 42

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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