Sometimes, less really is more … and more is just too darn much!

Workplace Prof blog posted an interesting commentary on a recent California case, Nazir v. United Airlines, Inc., No. A121651 (Cal. App. Ct. October 8, 2009), in which the appellate court overturned the trial court’s decision granting summary judgment to the employer in a routine employment discrimination case.

Summary judgment is a means for the courts to dispose of cases truly lacking in merit, where there is no genuine issue of material fact that could justify a verdict for the party opposing the summary judgment motion.  According to the Nazir court, “many employment cases fit that description, with some counsel too often willing to file suit whenever an employee in a protected class suffers some adverse employment decision.”  Critics disagree, however, claiming that many employment cases present issues of intent, and motive, and other issues not determinable on paper.  Addressing that point of view, the Nazir court stated that: “Here we confront the poster child for such criticism, in a case involving what may well be the most oppressive motion ever presented to a superior court.” (emphasis added).

After the plaintiff was fired from his job with United Airlines, and after having allegedly endured years abuse based on his Pakistani heritage, he filed a routine employment discrimination lawsuit against his employer and his supervisor. In due course, Defendants filed a motion for summary judgment.  There was nothing routine about the motion, or about what happened next.

Defendants’ motion sought summary adjudication of 44 issues.  The moving papers were comprised of 1056 pages, including a 196-page statement of facts and a 174-page request for judicial notice.  Plaintiff’s opposition was nearly three times as long, and included a 1894-page separate statement of facts.  Defendants’ reply, which included a 297-page separate statement and 325 pages of evidentiary objections, totaled 1150 pages.

In all, the trial court had before it 5415 pages of paper upon which to make its decision.  It did so, after oral argument, finding in favor of Defendants.  The plaintiff appealed. 

Finding that the case presented a myriad of material facts that should be decided by a jury, the appellate court overturned the trial court’s decision.  Opining that the trial court would not have found in Defendants’ favor had it read the underlying papers, the court stated:

While not reading the papers cannot be condoned, it can perhaps be understood, as we hesitate to speculate how long it would take a trial court to meaningfully digest over 2200 pages of separate statements, analyze and rule on 764 objections set out in 325 pages, review it all in light of the applicable law, and then write a proper order.

The incredible volume of material here simply has no place in a system where overburdened trial courts labor long and hard. …

I have been practicing law for 20 years, nearly 14 of which were spent in-house for a large public company.  During that time, I never, ever would have allowed my outside counsel to submit a motion for summary judgment or a reply, each of which totaled more than 1000 pages, for at least two reasons.  First, I never would have authorized the extraordinary costs that must have been billed.  Second, and perhaps more importantly, the best way to show that there is no material issue of fact to be decided is to lay out the evidence concisely, make your argument, and stop.  Just stop.  If it takes thousands of pages to show that summary judgment is appropriate, somewhere in all these reams of paper there has to be at least one material issue of disputed fact.

Written by Martha Zackin

ADEA Plaintiffs Must Show that Age was a Determinative “But For” Reason for Adverse Employment Action, But For How Long?

A recent decision by the U.S. Court of Appeals for the Third Circuit illustrates how the Supreme Court’s opinion in Gross v. FBL Financial Services, Inc. serves to prevent previously-viable claims under the Age Discrimination in Employment Act (the “ADEA”) from reaching trial. In Kelly v. Moser, Patterson & Sheridan, LLP, No. 08-3318, the Third Circuit affirmed the District Court’s entry of summary judgment in favor of the employer because the employee failed to show that age was a “determinative ‘but for’ factor” in its decision to terminate his employment. Plaintiff John Kelly, a former fifty-two year-old “of counsel” attorney with the defendant law firm, Moser, Patterson & Sheridan, LLP (“Moser”), claimed the firm terminated his employment because of his age in violation of the ADEA. He relied on a handwritten note by the firm’s human resources director, written after his termination meeting, which referred to “older & better paid/younger & cheaper” lawyers. Moser said those words had been spoken by Kelly, but Kelly denied that and claimed that the note was direct evidence of discrimination.

The firm contended that it terminated Kelly’s employment because (i) he failed to meet the minimum annual billable hour requirement; (ii) he sued the firm; (iii) he had a disruptive relationship with his secretary; and (iv) one of the firm’s major clients complained about the plaintiff’s work and refused to let him perform further work on its behalf, causing the firm to write-off approximately $73,000 of his prior work. Relying on Gross, the Third Circuit held that the handwritten noted showed, at most, “that age was one of multiple motivations,” which was insufficient to prevail on an ADEA claim.

This opinion is a good example of how the Gross case favors employers. Before Gross, the handwritten note at issue in Kelly likely would have warranted the denial of summary judgment as some evidence of an unlawful age-based motive for terminating Kelly’s employment. Of course, as we discussed in an earlier post, legislation before Congress may spell the death knell for Gross, returning to the earlier and more employee friendly “mixed motive” standard of proof under which an employee need only show that age was a factor in the employer’s decision.

Written by Greg

Massachusetts SJC, Applying NY Law, Requires CEO to Return $7 Million in Salary and Bonuses Paid to him while Harrassing Female Employees

This alert talks about a recent decision by the Supreme Judicial Court of Massachusetts, which awarded Astra Zeneca about $7 million in salary and bonuses paid to its former CEO. The CEO had engaged in a long standing pattern of harassing female employees. The Court applied New York law. The full decision can be found here. Mintz Levin handled the case for Astra, led by partners Jeff Robbins, Henry Sullivan, Chip Phinney, and Joe Lipshitz.

Personnel Polices and Social Networking Sites

See this recent Mintz Levin client Alert urging employers to consider the adoption of a policy addressing employees' use of social networking sites such as Facebook.

Is Congress About to Reverse Another Supreme Court Decision?

Both before and after the November 2008 Presidential and Congressional elections, legal pundits issued dire warnings that an Obama Presidency and a filibuster-proof Democratic Congress would result in a flurry of new, employee-friendly legislation.  As if to prove the pundits right, the first bill passed by Congress and signed into law by President Obama was the Lilly Ledbetter Fair Pay Act of 2009 (the “Ledbetter Act”), which overturned the 2007 Supreme Court decision of Ledbetter v. Goodyear Tire & Rubber Co., Inc.,  to provide that the statute of limitations applicable to claims of compensation discrimination is reset each and every time a paycheck issues.

The move to overturn the Supreme Court’s Ledbetter decision began with Lilly Ledbetter’s testimony before the Senate Committee on the Judiciary at a hearing titled “Barriers to Justice: Examining Equal Pay for Equal Work.”  Now, the Senate Judiciary Committee has scheduled a hearing on "Workplace Fairness: Has the Supreme Court Been Misinterpreting Laws Designed to Protect American Workers from Discrimination?"  for Wednesday, October 7, 2009.  One of the witnesses testifying at that hearing is Jack Gross, the plaintiff in Gross v. FLB Financial Services, Inc., decided by the Supreme Court in June 2009. Almost certainly, Mr, Gross’s appearance before the Committee, foretells an effort to legislatively reverse the legal principles established by the Supreme Court in his case, just as Lily Ledbetter’s appearance before the Committee presaged the enactment of the Ledbetter Act.

The Gross case arose from Mr. Gross’s claim under the Age Discrimination in Employment Act that his employer had taken adverse employment action against him because of his age, among other reasons.  In similar “mixed motive” cases under Title VII, a plaintiff need only show that discrimination was a “motivating factor” in the adverse employment action.  At that point, the employer can only prevail if it can prove it would have taken the same action regardless of the impermissible discriminatory motive. However, in Gross, the Supreme Court declined to apply the same standard to Mr. Gross’s ADEA claims, holding that under the ADEA a plaintiff in a “mixed motive” case cannot win unless he shows that the employer would not have taken the adverse employment action “but for” the age discrimination, even if he can show that age was a “motivating factor” in taking the action.  That is a much tougher standard for plaintiff’s to meet, of course. But will it survive?  If history is a guide, probably not.  


Written by Martha and David