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Crafting Summary Judgment Motions

in Employment Litigation: The Fundamentals
WEDNESDAY, MARCH 28, 2012

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Today’s faculty features:

William C. Martucci, Partner, Shook Hardy & Bacon, Washington, D.C.
Veenita D. Raj, Michelman & Robinson, Los Angeles

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 Crafting Summary Judgment
Motions in Employment Litigation:
The Fundamentals
Part I

Presented by:
Veenita D. Raj
Senior Associate, Labor & Employment
Michelman & Robinson, LLP
818.783.5530
vraj@mrllp.com
 Rule 56 of the Federal Rules of Civil Procedure
and the Summary Judgment Standard
 Rule 56 of the Federal Rule of Civil Procedure provides for the
filing of a motion for summary judgment in advance of trial:
o Motion for Summary Judgment or Partial Summary Judgment.
 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:
 No genuine dispute as to any material fact, and

 Might affect under governing law.

 For a dispute to be “genuine,” the evidence must be such that a reasonable jury could find in favor of the
non-moving party.

 The movant is entitled to judgment as a matter of law.

o Time to File a Motion

 Anytime until 30 days after close of all discovery, unless different time is set by
local rules or the court.

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Summary Judgment Motions in Employment Law
March 28, 2012
Rule 56 of the Federal Rules of Civil Procedure
and the Summary Judgment Standard
o Procedures
 Supporting factual positions.
 Citing to particular parts of the material in the record.

 Depositions, documents, electronically stored information, affidavits or declarations,

stipulations, admissions, interrogatory answers or other materials; or
 Authenticity

 Showing that the materials cited do not establish the absence or presence of a genuine
dispute, or that an adverse party cannot produce admissible evidence to support the fact.

 Objection that a fact is not supported by admissible evidence.

 Materials not cited.
 Affidavits or Declarations.

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Summary Judgment Motions in Employment Law
March 28, 2012
 Rule 56 of the Federal Rules of Civil Procedure
and the Summary Judgment Standard
 When facts are unavailable to the nonmovant.
 Failing to properly support or address a fact.
 Judgment independent of the motion.
 Failing to grant all the requested relief.
 Affidavit or declarations submitted in bad faith.

 The standard for determining summary judgment pursuant to Rule 56

mirrors the standard for determining whether a directed verdict is
appropriate under Rule 50(a).
 Courts must review the record “taken as a whole.”
o The nonmoving party may not rest upon mere allegations or denials of the
adverse party’s pleading, but must set forth specific facts:
 By affidavit or other admissible evidence.
 That demonstrates that there is a genuine issue for trial.

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Summary Judgment Motions in Employment Law
March 28, 2012
 Rule 56 of the Federal Rules of Civil Procedure
and the Summary Judgment Standard
 U.S. Supreme Court on what should not be considered by the court in
granting or denying a rule 56 motion:
o Credibility determinations and the drawing of inferences from the facts are
jury functions, not those for a judge.
o The evidence on the nonmovant is to be believed and all justifiable
inferences to be drawn in his favor.
 Although courts have emphasized that credibility determinations are to
be made by a trier of facts, courts continue to examine affidavits -
pursuant to Rule 56(e) mandates, in reviewing the record as a whole -
[Matsushita Electric Indust. Co., Ltd. v. Zenith Radio Corp., 475 U.S.
574, 587 (1985)].
o Rule 56(e) affidavits must not be conclusory or based upon hearsay.

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Summary Judgment Motions in Employment Law
March 28, 2012
 Summary Judgment in Employment
Discrimination Cases

 Historic view of utilizing summary judgment in employment

discrimination cases:
o Should seldom be utilized in employment discrimination cases.
o Because employment-based lawsuits are inherently fact-based (i.e., facts
are presumptively in dispute).
o Courts intentionally applied a narrower standard in deciding summary
judgment motion.
o Results were favored by employees and former employees.
o Lawyers found themselves advising clients against incurring the significant
expenses (attorneys’ fees) involved in preparing such motions.

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Summary Judgment Motions in Employment Law
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 Summary Judgment in Employment
Discrimination Cases
 1986 trilogy of cases by the Supreme Court [Matsushita Electric
Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 1986); Anderson
v. Liberty Lobby, 477 U.S. 242 (1986); Celotex v. Catrett, 477 U.S.
317 (1986)].
o Completely changed the landscape.
o Made it easier for defendants to obtain summary judgment in cases of at
least arguable discrimination.
o Courts are no longer reluctant to grant summary judgment in cases where
there exists questions of fact concerning the employer’s motive.
o Have made obtaining summary judgment much easier.
o Courts have applied these decisions in employment discrimination cases
with greater frequency.

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Summary Judgment Motions in Employment Law
March 28, 2012
 Summary Judgment in Employment
Discrimination Cases

 Anderson v. Liberty Lobby

o Trial courts are obligated to determine not only whether there is a factual
dispute, but whether the evidence identified in the summary judgment
opposition would satisfy the plaintiff’s burden of proof at trial.
 McDonnell Douglas framework to make summary judgment determinations
[McDonnell Douglas v. Green, 411 U.S. 792 (1973)].

o Courts must now evaluate a party’s evidence and determine its probative
value at summary judgment.
o A non-moving party cannot point to some supporting evidence to satisfy his
burden of production if it will not sustain the burden of proof on the merits.

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Summary Judgment Motions in Employment Law
March 28, 2012
 Summary Judgment in Employment
Discrimination Cases

 Celotex v. Catrett
o A defendant may successfully move for summary judgment merely by
pointing out that there is an absence of evidence to support the nonmoving
party’s case.
o Essentially, defendant only has to point out that the plaintiff has insufficient
evidence to raise a “genuine issue” as to any material fact.
o Loosened the burden of the defendant to prove an absence of any genuine
issue of material fact and requires the plaintiff to affirmatively show that such
an issue exists.
o Result
 Plaintiff is required to meet the ultimate burden of proof at summary judgment
stage instead of trial.

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Summary Judgment Motions in Employment Law
March 28, 2012
 Summary Judgment in Employment
Discrimination Cases

 Matsushita Electric Industrial Co. v. Zenith Radio Corp.

o Issues such as intent and motive may be appropriate for determination by a
motion for summary judgment.
o Instructs trial judges to “weigh the evidence and to decide which inference
was more reasonable in light of the evidence.”
o Like Anderson v. Liberty Lobby, urged trial judges to evaluate the
probative value of evidence at the summary judgment stage.
 AND if there is a question of plausibility of the theory of liability, more evidence is
necessary to avert summary judgment.

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Summary Judgment Motions in Employment Law
March 28, 2012
 Summary Judgment in Employment
Discrimination Cases
 Despite this, courts were still reluctant to use summary judgment in
employment cases.
 Recent change in the historic view
o Torgerson v. City of Rochester, 643 F.3d 1031 (8th Ct. App., 2011)
 The 8th Circuit revisited summary judgment standard in employment discrimination
context and discounted earlier opinions that found that summary judgment should
“seldom” or “sparingly” be granted in discrimination cases.
 Held that the U.S. Supreme Court has unequivocally found that district courts should not
“treat discrimination differently from other ultimate questions of fact.”

 Summary Judgment – not a disfavored procedural shortcut.

 Integral part of the Federal Rules as a whole.

 Designed to secure the just, speedy, and inexpensive determination in every action.

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Summary Judgment Motions in Employment Law
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 Summary Judgment in Employment
Discrimination Cases

 NO UNIFORM STANDARD
o Courts of Appeals disagree of the proper standard for summary judgment in
employment discrimination cases.
 Use both the McDonnell Douglas burden shifting test and the motivating factor test
of Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), in making determinations of
summary judgment mixed-motive employment discrimination cases.

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Summary Judgment Motions in Employment Law
March 28, 2012
 Summary Judgment in Employment
Discrimination Cases

 McDonnell Douglass Standard (8th & 11th Circuit)

o Raised the bar that plaintiff’s must meet to survive a motion for summary
judgment.
 Shifts the burden in summary judgment from the defendant, the typical moving
party, to the plaintiff.
 Requires plaintiff to prove an assertion - not a fact that will necessarily be proven at trial (that
is the employer’s mere articulation).

o Once the defendant articulates a legitimate, non-discriminatory reason, the

plaintiff has to show pretext.
 In proving pre-text, plaintiff must produce evidence of such weakness,
implausibility's, inconsistencies, incoherencies, or contradictions, in the employer’s
proffered legitimate reasons for its action that a reasonable fact finder could
rationally find them unworthy of credence and hence infer that the employer did not
act for the asserted non-discriminatory reasons.

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Summary Judgment Motions in Employment Law
March 28, 2012
 Summary Judgment in Employment
Discrimination Cases

o Cases
 Griffith v. City of Des Moines 387 F.3d 733 (8th Cir. 2004). If no direct evidence,
use McDonnell Douglass. If direct evidence is present, then Plaintiff may be able
to prove his prima facie case. No need to proceed to 3 prong McDonnell Douglass
analysis.
 Cooper v. S. Co., 390 F.3d 695 (11th Cir. 2004) [(overruled on other grounds, see
Ash V. Tyson Foods, Inc. 546 U.S. 454, 457 (2006).]

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Summary Judgment Motions in Employment Law
March 28, 2012
 Summary Judgment in Employment
Discrimination Cases
 Price Waterhouse v. Hopkins 490 U.S. 228 (1989) (Birth of Mixed-
Motive case)
o Legitimate and illegitimate considerations were actual basis for the adverse
action.
o Plaintiff must show by “direct evidence” that an illegitimate criterion was a
substantial factor in the decision.
o Shifts the burden of persuasion to defendant once plaintiff shows that an
impermissible factor was a motivating factor in the adverse decision.
 Plaintiff would prefer this because only required to show impermissible factor
motivated instead of proving that all legitimate, non-discriminatory reasons proffered
by a defendant are pretextual.
 On the other hand, employers were able to avoid liability in mixed-motive cases by
showing that they would have taken the same action despite being motivated by an
impermissible reason.

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Summary Judgment Motions in Employment Law
March 28, 2012
 Summary Judgment in Employment
Discrimination Cases
 1991 Title VII Amendment – Response to Price Waterhouse
o An unlawful employment act is established when the complaining party
demonstrates that race, color, religion, sex, or national origin was a
motivating factor for any employment practice, even though other factors also
motivated the practice.
o Under Price Waterhouse employers were able to completely avoid liability.
 Now the employer can only reduce the scope of remedies available to a successful
plaintiff and not avoid liability.

o This amendment was silent on what type of evidence is required for plaintiff
to successfully demonstrate the illegal motivation.

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Summary Judgment Motions in Employment Law
March 28, 2012
 Summary Judgment in Employment
Discrimination Cases

 The Courts of Appeal were divided on the type of evidence required.

o Vast majority maintained some form of “direct evidence” standard in mixed-
motive cases despite the amendment.
o “Direct evidence” is not the same for every judge. [See Tyler v. Bethlehem
Steel Corp., 958 F.2d 1176 (2d Cir. 1992)].
 i.e., Fourth Circuit retained the direct evidence standard, requiring the plaintiff to
proffer almost “smoking gun” evidence of conduct or statement that both reflected
discrimination animus and bore directly on the contested employment decision.
 Other courts - evidence that is sufficient by itself to show discriminatory animus.

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Summary Judgment Motions in Employment Law
March 28, 2012
 Summary Judgment in Employment
Discrimination Cases
 Desert Palace, Inc. v. Costa 539 U.S. 90 (2003)
o Eliminated “direct evidence” standard from mixed-motive cases.
o Circumstantial evidence is all that is needed.
o Desert Palace does not provide any guidance as to what constitutes
sufficient evidence to demonstrate discrimination and merit the mixed-motive
instruction.
o Title VII requires plaintiff to demonstrate not merely infer the employer’s use
of an illegitimate criterion.
o This is different quality of evidence than the inferential McDonnell Douglas
framework.
o Consistent with the amendment.
 Not all courts follows this, i.e. 8th circuit.

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Summary Judgment Motions in Employment Law
March 28, 2012
 Summary Judgment in Employment
Discrimination Cases
 Modified McDonnell Douglas Standard (Fifth Circuit) merging of
McDonnell Douglas and Price Waterhouse approach.
o Plaintiff must establish a prima facie case of discrimination and create an
inference of illegal discrimination.
o Burden shifts to defendant to articulate a legitimate non-discriminatory reason
for making an adverse employment decisions.
o Burden shifts back to the plaintiff to produce evidence either
 Defendant’s reason is not true but is instead pretext for discrimination (the pretext
alternative) OR;
 That the Defendant’s reason while true is only one of the reasons for its conduct
and another motivating factor is the plaintiff’s protected characteristics (mixed-
motive alternative).

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Summary Judgment Motions in Employment Law
March 28, 2012
 Summary Judgment in Employment
Discrimination Cases
o If a plaintiff is able to show that his protected characteristic was a motivating factor in the
employer’s adverse employment decision, the employer must prove that it would have made
the same decision regardless of the discriminatory factor.

o Cases
 Rachid v. Jack in the Box, Inc., 376 F.3d 305 (5th Cir. 2004); same standard for
ADEA cases.

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Summary Judgment Motions in Employment Law
March 28, 2012
 Summary Judgment in Employment
Discrimination Cases
 McDonnell Douglass or Motivating Factor (4th, 9th and D.C. Circuit)
o Middle of the road approach
 Plaintiff may survive summary judgment by using the traditional McDonnell
Douglas burden shifting analysis.
 ALTERNATIVELY, the plaintiff can present direct or circumstantial evidence that
raise a genuine issue of material fact as to whether an impermissible factor such as
race motivated the employer’s adverse employment decision.
 The impermissible factor does not have to be the sole factor, but it must have been a
motivating factor.
 If so, plaintiff has a claim for unlawful employment practice.

o Cases
 Diamond v. Colonial Life & Accident Insurance Co., 416 F.3d 310, 318 (4th Cir.
2005).
 Fogg v. Gonzalez 492 F.3d 451 & n* (D.C. Cir. 2007).
 McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1122 (9th Cir. 2004).

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Summary Judgment Motions in Employment Law
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 Summary Judgment in Employment
Discrimination Cases
 Baxter Framework (Sixth Circuit)
o Effectively removes summary judgment from the equation of mixed-motive
disparate treatment cases [White v. Baxter Corp., 533 F.3d 381 (6th Cir.
2008)].
 Sixth Circuit declined to extend the McDonnell Douglas burden shifting framework
to summary judgment in mixed-motive cases.
 Is the minority view and has not gained much traction.

o To survive a summary judgment motion, a plaintiff in asserting a mixed-

motive claim need only produce evidence sufficient to convince a jury:
 The defendant took an adverse employment action against the plaintiff, and
 Race, color, religion, sex, or national origin was a motivating factor for the
defendant’s adverse employment action.

o Burden on the plaintiff is not onerous, and

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Summary Judgment Motions in Employment Law
March 28, 2012
 Summary Judgment in Employment
Discrimination Cases
o Precludes sending the case to the jury only:
 Where the record is devoid of evidence that could reasonably be construed to
support the plaintiff’s claim.
 Plaintiff in mixed motive case need only show:
 that defendant impermissibly relied on a protected characteristic and

 that the protected characteristic was a motivating factor for any employment practice even
though other factors also motivated the practice.

o Thus to survive summary judgment plaintiff need only establish:

 That a discriminatory animus played a part in the employment decision, and
 Not rebut all legitimate reasons offered by the defendant.

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Summary Judgment Motions in Employment Law
March 28, 2012
 Summary Judgment in Employment
Discrimination Cases
o The question for the court is whether the plaintiff is able to provide sufficient
evidence that his protected status played a motivating role in a defendant’s
employment decision.
 A court making summary judgment decision must not ask whether the plaintiff has
produced sufficient evidence to survive the McDonnell Douglas shifting burdens,
but rather whether there are any genuine issues of material fact concerning the
defendant’s motivation for its adverse employment decision, and, if none are
present, whether the law supports a judgment in favor of the moving party on the
basis of undisputed facts.

 Thus under Baxter, if a plaintiff can put forth any evidence that could
reasonably be construed to support his claim, he has created a genuine
issue of material fact.
 7th Circuit appears to have not considered the issue, but earlier this year,
(albeit in a concurring opinion), asked whether the McDonnell Douglas
test still has any utility. See Coleman v. Donahoe 677 F.3d 835 (7th Cir.
2012)

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Summary Judgment Motions in Employment Law
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 Summary Judgment in Employment
Discrimination Cases

 Age Discrimination in Employment Act (ADEA)

o McDonnell Douglass Framework
 Almost all circuits that have considered the issue (See Shelley v. Geren 666 F.3d
599 (9th Cir. 2012); Rahlf v. Mo-Tech Corp., 642 F.3d 633 (8th Cir. 2011).
 Gross v. FB Financial Services, Inc., 129 S. Ct. 2343 (2009), did not abrogate the
use of McDonnell Douglass and impose a higher standard.
 At trial employee must prove that age was the “but-for” cause of the employer’s adverse
action.

 Mixed-motive standard improper at trial.

 Unlike Title VII, the ADEA’s text does not provide that a plaintiff may establish discrimination by showing
that age was simply a motivating factor.

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Summary Judgment Motions in Employment Law
March 28, 2012
 Summary Judgment in Employment
Discrimination Cases
o Pretext may be proven by direct or indirect (unbelievable or unworthy
credence) evidence,. i.e. in Shelley – inquiry regarding plaintiff’s retirement
date; plaintiff’s superior qualifications.
o Modified McDonnell Douglass Approach – 5th Circuit. (Use of “motivating
factor” altough inconsistent with ADEA’s text.)
 Americans With Disability Act (ADA)
o Retaliation claims McDonnell Douglass burden shifting (see Brown v. City
of Tucson 336 F.3d 1181 (9th Cir. 2003).

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Summary Judgment Motions in Employment Law
March 28, 2012
 Summary Judgment in Employment
Discrimination Cases
 Equal Pay Act
o King v. Acosta Sale and Marketing, Inc., No. 11-3617 (7th Cir. March 15,
2012)
 McDonnell Douglass was inapposite to the facts.
 An employee’s only burden under the Equal Pay Act is to show a difference in pay
for “equal work on jobs the performance of which requires equal skill, effort, and
responsibility, and which are performed under similar working conditions”
(§206(d)(1)).
 An employer asserting that the difference is the result of a “factor other than sex”
must present this contention as an affirmative defense – and the proponent of an
affirmative defense has the burdens of both production and persuasion.

Page 27
Summary Judgment Motions in Employment Law
March 28, 2012
Thank You for Attending

Veenita D. Raj
Senior Associate, Labor & Employment
Michelman & Robinson, LLP
818.783.5530
vraj@mrllp.com
Legal Developments Affecting Motions to
Dismiss/Summary Judgment and
Strategies for Employers*

GENEVA | HOUSTON | KANSAS CITY | LONDON | MIAMI | ORANGE COUNTY | SAN FRANCISCO | TAMPA | WASHINGTON, D.C.

William C. Martucci
National Employment Litigator &
Policy Strategist
202-783-8400
wmartucci@shb.com
Special thanks to Michele L. Maryott of Gibson, Dunn & Crutcher for much of the materials
pertinent to the following slides concerning motions to dismiss.
 The Dynamic Duo: Twombly and Iqbal

Bell Atlantic Corporation v. Twombly set the standard:

• Supreme Court held in context of antitrust claim

that Rule 8 requires sufficient facts to “state a
claim to relief that is plausible on its face”

• “Formulaic recitation of elements” is not enough

• Supreme Court: this standard “does not require

heightened fact pleading”

Bell Atlantic Corporation v. Twombly, 550 U.S. 544 (2007)

34
 The Dynamic Duo: Twombly and Iqbal

Ashcroft v. Iqbal clarifies the Twombly standard:

• Facial plausibility exists “when the plaintiff pleads

factual content that allows the court to draw the
reasonable inference that the defendant is liable for
the misconduct alleged.” Iqbal at 1949.

• Probability > Plausibility > Conceivability

• Guidance? “Judicial experience and common

sense”

Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009)

35
 The Dynamic Duo: Twombly and Iqbal

Two-pronged approach for ruling on 12(b)(6) motions:

1. Separate factual allegations from mere conclusions

2. Assume truth of factual allegations and “determine

whether they plausibly give rise to an entitlement
to relief”

36
 What About Swierkiewicz?
Is Swierkiewicz v. Sorema, N.A., 534 U.S. 506 (2002), Still
Good Law?

• Plaintiff’s complaint need not include specific

facts establishing a prima facie case of
discrimination and “instead must contain only ‘a
short and plain statement of claim showing that
the pleader is entitled to relief.’” Swierkiewicz at
508.

• Courts are split on whether Swierkiewicz

standard still applies after Iqbal

37
 Twombly/Iqbal in Action: Retaliation
Pre-Twombly/Iqbal Complaint:
McMahom v. New York City Board of Ed.
(E.D.N.Y. Dec. 12, 2006)
Retaliation complaint failed to:
• provide dates of protected speech
• to whom the speech was directed
• show that protected speech was the
cause of defendant’s actions
Held:
1. Complaint “insufficiently detailed” but,
“possible to understand nature of
allegations with sufficient clarity to
overcome low bar” of Rule 8
2. “On a motion to dismiss, it is too soon
to tell whether the facts will show a
causal connection between [protected
speech] and the charges.”
Motion to Dismiss = Denied
Post-Twombly/Iqbal Complaint:
Coleman v. Tulsa City Bd. Of City
Commissioners (N.D. Okla. Aug. 11, 2009)
Retaliation complained failed to:
• provide dates
• describe “unreasonable disciplinary actions”
Held:
1. Allegations closely resemble legal
conclusions
2. “While it is conceivable that plaintiff can
state a claim against defendant, she has
not pled sufficient facts…to nudge her
claims from conceivable to plausible.”
3. Plaintiff’s complaint “may have survived
under Conley, but the Court no longer
applies the ‘no set of facts’ standard that
formerly governed motions to dismiss.
Motion to Dismiss = Granted
38
 Twombly/Iqbal in Action:
Retaliation
Motion denied:

• Rollins v. Verizon Maryland, Inc., 2010 WL 4449361

(D.Md., Nov. 5, 2010): plaintiff alleged that she was
denied opportunity to work overtime and was denied
access to her personnel file after making complaint of
discrimination, but she did not specify causal
connection; court held it was reasonable to infer plaintiff
wanted access to her personnel file to pursue her
discrimination claims and found allegations sufficient to
state plausible claim for retaliation

39
 Twombly/Iqbal in Action:
Hostile Work Environment
Motion granted:

• Dorsey v. Georgia Dept. of State Road & Tollway

Auth., 2009 WL 247756 (N.D. Ga. Aug. 10, 2009):
plaintiff alleged “numerous” racially disparaging
remarks, without specifying any

• Coleman v. Tulsa County Board, 2009 WL 2513520

(N.D. Okla. Aug. 11, 2009): plaintiff alleged she was
subjected to offensive and insulting comments, without
specifying any

40
 Twombly/Iqbal in Action:
Hostile Work Environment
Motion denied:

• Gillman v. Inner City Broadcasting Corp., 2009 U.S.

Dist. LEXIS 85479 (S.D.N.Y. Sept. 18, 2009): plaintiff
alleged specifics regarding company director’s unwanted
advances and unsolicited gifts, his complaint to
management and prompt termination afterwards

41
 Twombly/Iqbal in Action:
Disability Discrimination
Motion denied:
• Fowler v. UPMC Shadyside, 578 F.3d 203 (3d. Cir. 2009):
plaintiff’s allegations that she “believed” she was terminated
because of her disability deemed sufficient to avoid motion to
dismiss; court found that identification of impairment and
alleged limitation to sedentary work plausibly suggested she
might be substantially limited in major life activity; plaintiff
had not pleaded elements of prima facie case
Motion granted:
• Williams v. Temple Univ. Hosp., 2010 WL 4540328 (3d Cir.
2010): plaintiff’s allegation that she was injured at work but
later sent back to work on full duty status held not sufficient
to give rise to plausible claim for relief under ADA; court
noted that the Iqbal “standard is not an extraordinarily high
one”

42
 Twombly/Iqbal in Action:
Age Discrimination
Motion granted:
• Adams v. Lafayette College, 2009 WL 2777312 (E.D.
Penn. Aug. 31, 2009): allegations that younger
employees were treated differently on several occasions
and that plaintiff received harsher treatment because of
his age were insufficient legal conclusions

Motion denied:
• Martinez v. RZB Finance LLC, 2010 WL 4449031
(S.D.N.Y. Nov. 5, 2010): allegation that younger, higher-
paid white male replaced her as Chief Accountant after
her unexplained demotion sufficient to survive motion to
dismiss attacking ADEA and Title VII discrimination
claims
43
 Effective Use of the Twombly/Iqbal
Standard
Key Considerations:

• Removal

• Know your judge’s post-Iqbal rulings

• Think ahead regarding leave to amend

• Credibility is essential – don’t file 12(b)(6) motion

merely for sake of filing

• If you do file, consider moving to stay discovery

44
 Challenges to Twombly/Iqbal

• Notice Pleading Restoration Act of 2009

−Senate Bill 1504 introduced in July 2009
−Would prohibit dismissal under 12(b)(6) or (e) “except
under the standards set forth … [in] Conley v. Gibson”
•Open Access to Courts Act of 2009
−House Bill 4115 introduced in November 2009
−Affirmatively adopts “no set of facts” rule
•Both sitting in respective chambers’ judiciary committees
•Overreaction/Appropriate
•Current Status
45
 Difference Between Summary Judgment
Motions & Motions to Dismiss*

• Summary judgment is decision made by court without

trial that may resolve all or part of legal issues in a case.
• Must establish there are no genuine issues of “material
fact,” or that key facts in the case are not in dispute.
• Must show that applying the law to these facts, there
can be no other outcome but one in their favor.
• Understanding Rule 56 and its underpinnings.

*Special thanks to Teresa Rider Bult of Constangy Brooks & Smith for much of the materials pertinent
to the following slides concerning defense strategies.
46
 State and Federal Court
•Federal courts may be inclined to reading the standard
as favoring disposition of cases on summary judgment.
•Judicial approach to SJ changed meaningfully in 1980s
with Supreme Court’s decision in 3 key cases, so-called
“summary judgment trilogy”:
−Celotex Corp. v. Catrett, 477 U.S. 317 (1986)
−Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986),
&
−Matsushita Electric Industrial Co. v. Zenith Radio
Crop., 475 U.S. 574 (1986).
•Decisions made it much easier for defendants in federal
cases to win on summary judgment and placed more
significant burdens on plaintiffs who opposed summary
judgment.
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 State and Federal Court
•State courts can and have established their own
benchmarks describing when a moving party is entitled
to summary judgment.
−some states follow the federal standard,
−other states have specifically declined to follow the
federal model and have adopted a different, and
usually more rigorous, standard.

•Thus, venue can drastically impact the likelihood of

success on summary judgment.
−This informs the business decision faced by many
employers as to whether or not filing summary
judgment is worthwhile.

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 Summary Judgment – Often “the Trial”
in Employment Cases
• In the employment context, summary judgment is
particularly important, as most employers rely on this
procedure to quickly dispense of their cases.
• Juries are unpredictable in the best of circumstances,
but in employment cases, where every juror has been
an employee at some point in their lives and therefore
believes they have an industrial expertise, juries can be
more problematic.
• Combined with the problem that every employee has
likely had or knows of someone who has had a bad boss
or bad employment experience, the prospect of bringing
an employment case to a jury can be daunting.

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So How do Defendants Win in the Summary
Judgment Context?

50
 Key Documents to Obtain
Summary Judgment

• Documentation/warnings leading up to performance-

based discipline
• Records showing consistency with other employees
• Policies which lay out basis for disciplinary/termination
decision
• Performance Reviews that reflect a history of the
performance problem
• Accurate and timely documentation

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 Depositions and Written Discovery
•Have summary judgment motion outlined & research done
before deposition – know what admissions you need.
•Tie witness down on allegation – recap, “So these are the 5
things you are saying XYZ company did to discriminate
against you?”
•Touch every document in the case before the deposition – do
not be surprised.
•Credibility issues arising at depositions don’t help as much
with summary judgment (but have to prepare for trial)
•Written discovery – helps plaintiff more than defendant, BUT
before deposition, try to get:
−Medical Records
−Past Employment Records
−Email addresses
−Do a Background Check
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 Drafting the Brief and Statement of
Undisputed Facts
•Focus on the law
•Sure way to lose: disputed facts
− Don’t dispute facts that the other side has
contradicted in depositions (even if minor)
− Minimize those facts that the other side says are
disputed
− Keep your own facts to a minimum – most
important
− Statement of Undisputed Facts should be like
Requests for Admission
•Write, rewrite, and rewrite again – clarity and easily
readable
•Analyze venue re: whether will have hearing
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 Strategic Considerations

• Venue – Federal Court where possible

• Business considerations
• Is it worth it to draft a motion for summary judgment
even if you think you won’t win?
• Should you file a partial motion for summary judgment?
• Do you raise the legal argument you aren’t sure other
side will raise?

54
 Recent Caselaw as Illustrations
• Hannan v. Alltel Publishing Co., 270 S.W.3d 1 (Tenn. 2008)
• Gossett v. Tractor Supply Co., Inc., 320 S.W.3d 777 (Tenn.
September 20, 2010)
‒ Defendant must produce evidence that (1) affirmatively negates
an essential element of the nonmoving party’s claim; or (2) shows
that the nonmoving party cannot prove an essential element of
the claim at trial.
• “Evidence satisfying an employer’s burden of production pursuant to
the McDonnell Douglas framework does not necessarily demonstrate
that there is no genuine issue of material fact.”
‒ Then plaintiff’s burden to show genuine issues of materials fact as
to that element.
• ”Our holding does not exclude the possibility of summary
judgment when an employer presents undisputed evidence
that a legitimate reason was the exclusive motivation for
discharging the employee.”

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 Effective Summary Judgment Practice

•Recalibrating the Strategy

•Understanding the Mechanics
•Delighting the Client

56
 Fed. R. Civ. P. 56 and Applicable
State SJM Rules

•Reading and re-reading the rule

•Understanding the structure for the brief itself
•Implementing the mechanics

57
 Local District Court Rules
(Examples)
•Northern District of California
•District of Columbia
•Middle District of Florida
•Southern District of Florida
•District of Kansas
•Eastern District of Louisiana
•Western District of Missouri
•Southern District of Texas

58
Evidentiary Considerations:
The Role of Discovery

59
Effective Briefing Skills –
The Joy of the Focus

60
1. Persuade the Court with the Facts in the
Opening of Your Brief

61
2. Present the Undisputed Facts in
Crisp, Clear, Simple Language

62
3. Make Certain the Record Clearly Supports
Your Statement of the Facts

63
 4. Keep Your Organization
Clear, Simple, and Comprehensive

64
5. Simplify the Legal Analysis – Set Forth the
Legal Framework & Relevant Cases

65
6. Maintain Your Credibility Throughout
the Brief – Do Not Overreach in
Your Position, in Case Holdings or
in Other Areas
(Avoid Personal Attacks – Strive for
Professionalism and the High-Ground)

66
7. Proof Carefully – Avoid Basic Mistakes
in Grammar and Case Citations

67
8. Double Check All Exhibits and Attachments to
Ensure That Documents are Complete, There are
No Privilege/Confidentiality Issues and All
Citations to the Record are Accurate

68
9. Understand the Role of the Summary
Judgment Brief in Your Relationship
with the Client

69
10. Consider the Briefing Process
As One Component of Your
Overall Trial Development Strategy

70
 The Briefing Process

Enjoying the moment/making the brief come alive

“The Joy of Motion Practice,” 24 The Litigation Journal 15

(Winter 1998)

Additional resource: Civil Trial Practice Desk Book:

Chapter 43, Summary Judgment

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About William C. Martucci
National Employment Litigator &
Policy Strategist
Shook, Hardy & Bacon
Washington, DC

Mr. Martucci, who holds an LL.M. in Employment Law from

Georgetown University in Washington, D.C., practices
nationally in complex class action (employment
discrimination and wage & hour) and EEOC litigation.
Chambers notes “Bill Martucci is worth having on any
dream team for employment litigation and policy issues.”
His jury work has been featured in The National Law
Journal. He is listed in the Euromoney Guide to the World’s
Leading Labour and Employment Lawyers and The Best
Lawyers in America for Business and Employment
Litigation. He teaches multinational business policy at
Georgetown.

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