Iowa Employment Law Blog : Iowa Employment Lawyer & Attorney : Patrick Smith : Bradshaw Fowler Proctor & Fairgrave Law Firm : Des Moines, Central IA Discrimination & Labor Law

"Is Summary Judgment in Employment Cases a Myth"?  So ask attorneys Teresa Ride Bult and Kate Summers in an excellent article published last month in Law 360. 

The authors contend it is becoming more difficult for employers to win on summary judgment, particularly in state court.   Nonetheless, they believe the benefits of filing a summary judgment still outweigh the cost.  The work that goes into a summary judgment will have to be done anyway as part of trial preparation.  Even if all claims are not dismissed, summary judgment can weed out some of the weaker claims, making the case simpler to try.  Finally, a motion for summary judgment forces plaintiffs to tip their hand about their theory of the case and the evidence they rely upon. 

I agree that the summary judgment is an important weapon in the defense lawyer's arsenal in an employment case.   We recently wrote about the chances of an employer winning at trial--and the statistics were not heartening.   On the other hand, a study of the federal courts published last year shows that summary judgment is granted to defendants in discrimination cases more than in any other type of civil case in the federal system.  Locally, anecdotal evidence suggests that summary judgments are granted in a very high percentage of cases in federal court s in Iowa.   The Eighth Circuit also has a reputation for being very "defendant friendly" in employment cases.   Almost all of the employment cases the Eighth Circuit decides are appeals of summary judgments, and most of the time the trial court's ruling is affirmed.  

Of course, it is a different story altogether in State Court in Iowa.   An employer's motion for summary judgment in State Court is denied more often than not.  So much so that many plaintiff's lawyers assert claims only under the Iowa Civil Rights Act so as to avoid having the case removed to federal court.  I attribute the difference in outcome to a couple of factors.  First, state court judges, particularly those in more rural areas, are not as familiar  with employment discrimination law.   Second, state court judges have less access to law clerks compared to their federal counterparts, and it is thus much more difficult to digest factually complex motions for summary judgment and conduct the intense legal research that is often required.   My cynical side says that summary judgments are sometimes denied because judges know the case is likely to be settled anyway, and it is not likely to ever reach the desk of an appellate court.

So, should employers file a motion for summary judgment in employment cases?  The following statement of attorneys Bult and Summers is a fairly good summary of my opinion on the subject:

Employment litigation can sometimes feel like pure, unadulterated blackmail, and the bleak news presented in this article about the state of summary judgment dismissals provides only adds to the arsenal in the war against employers.

But the reality is in employment litigation, a good offense is the best defense.

An employer who has proper policies and procedures in place, makes reasoned and fair decisions, and who makes significant efforts to follow the law will be a much better position to defend against employment litigation and will have a much better shot at being “that case” that even a state court judge will dismiss on summary judgment.

While it is true that even frivolous lawsuits will make it to court, an employer must then analyze how to contain its costs and minimize its risks.

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This is the time of year for reflection--when we look back on what happened during the past year, and look ahead to the coming year.  There are many commentaries and opinions on what was good and bad about 2009, but there is no doubt it was an eventful year for those of us in the labor and employment law world.    In this post we give a month-by-month account of the significant employment law events of 2009:

January:   To usher in the new year, on January 1, the ADA Amendments Act became effective.  On January 26, the U.S. Supreme Court issued a ruling in Crawford v. Metro Metro Government of Nashville, which held that an employee who answered questions as part of an internal harassmenti nvestigation was protected from retaliation under Title VII's "opposition" clause.  On January 29,  President Obama signed into law the Lilly Ledbetter Fair Pay Act.  The Ledbetter Act was the first law the President signed after his inaugeration.  

February:  The president signed into law the American Recovery and Reinvestment Act of 2009 (a/k/a the "Stimulus").    Important to employers and employees, the law provided a 65% premium subsidy for nine months to employees involuntarily terminated from their jobs since September 1, 2008.  

March:   On March 10 the Employee Free Choice Act (EFCA) was introduced in both houses of Congress.   The proposed EFCA contained the most signicant changes to labor law since the NLRA was enacted in the 1930s.  While the law was and is a top priority for labor unions to get enacted, so far its most controversial provisions, inlcuding elimination of secret ballot elections,  mandatory arbitration, and increased penalties for unfair labor practices make the proposed law unpopular with business interests.

April: The U.S. Supreme Court issues its second labor and employment decision this year: Penn Plaza, LLC v. Pyett.   The Court held that “a collective-bargaining agreement that clearly and unmistakably requires a union member to arbitrate ADEA claims is enforceable as a matter of federal law.”  On April 24, the EEOC issued a "Best Practices" document relating to employees with caregiving responsibilities.    The Iowa Supreme Court issued its decision in the case of Varnum v. Brien, which held that Iowa's law that permitted marrigage licenses to be issued only to a man and a woman violated the Iowa Constitution.

May:  On May 1 Governor Culver signed the Iowa version of the Ledbetter Fair Pay Act.  This law amended to the Iowa Civil Rights Act to incorporate provisions of both the Ledbetter Act and the Equal Pay Act.    The H1N1 pandemic was in the news, and the EEOC issued guidelines to help employers comply with the anti-discrimination laws while helping stop the spread of the disease.   Sonia Sotamayor was nominated to replace the retiring Justice Souter on the U.S. Supreme Court.

June:  The U.S. Supreme Court issued two important employment law decisions this month: Gross v. FBL Financial Services, Inc. and Ricci v. DeStefano.    While there is some disagreement, our view is that both decisions were favorable for employers.

July:   The phenomenon of social networking and its impact on the workplace is becoming the issue de jour.    Al Franken is confirmed as the winner of the Senate election in Minnesota, which gives the Democrats a 60th seat and filibuster proof majority.  However, the proposed EFCA law still goes nowhere.  With the economy still in the doldrums, the Department of Labor issues a document addressing frequently asked questions relating to furloughs.

August:  It's the dog days of summer, which means the Iowa State Fair, and controversy over allegations of religious discrimination.

September:  The Iowa Supreme Court issues a ruling in DeBoom v. Raining Rose, Inc. one of the court's most important employment discrimination decisions.   The EEOC released proposed regulations on the ADA Amendments.  In wage and hour news, convenience store chain Casey's General Stores paid $11 million to settle FLSA claims of thousands of current and former employees.

October: President Obama signs into law modifications to FMLA relating to military caregiver leave and qualifying exigency leave relating to military service.

November: The Genetic Non-Discrimination Act becomes effective November 21.  Data from both the Iowa Civil Rights Commission and EEOC show officially what many of us observed in our practices: an uptick in discrimination claims this year.  On November 30, the Eighth Circuit issues an opinion in the remand of Gross v. FBL Financial.   Despite Gross' arguments that his jury verdict under the Iowa Civil Rights Act should stand, the court sent the case back to the Southern District of Iowa for a new trial.

December:  The U.S. Department of Labor issued an "Employment Law Guide" which covers topics such as wage and hour, occupational safety, and employee benefits, among others.   The EEOC and Department of Labor release their regulatory agendas for 2010.   Finally, President Obama signs a law that will extend the COBRA subsidy another two months, until February 28, 2010.

Best wishes for the rest of 2009 and a happy and prosperous 2010!

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On November 30, 2009, the U.S. Court of Appeals for the Eighth Circuit issued an opinion on the remand of  Gross v. FBL Financial Group, Inc.   We have discussed the Gross case in several previous posts (here, here, and here).  The case has particular local interest because it was tried in the Southern District of Iowa, appealed to the U.S. Court of Appeals for the Eighth Circuit, and ultimately to the U.S. Supreme Court. 

In a decision that surprised many in the employment law community, the Supreme Court  held that an age discrimination plaintiff always has the burden of proving that age was the "but for" cause of the adverse employment action, regardless whether the employer had a "mixed motive", and regardless whether there is "direct evidence" of discrimination.  Under Gross,  the burden of persuasion never shifts to the defendant.  The trial judge's instructions were in error, the Court concluded, because FBL was required to prove it would have made the same decision regardless of Gross' age.  The case was remanded for a new trial.

Despite the Supreme Court's ruling, Gross argued to the Eighth Circuit on remand that his original jury verdict should stand because the jury was correctly instructed under the Iowa Civil Rights Act (ICRA).  Notably, this was the first time the ICRA issue had come up in the case.  The reason: between the date of the U.S. Supreme Court's decision in Gross and the Eighth Circuit's remand opinion, the Iowa Supreme Court issued an opinion in the case of DeBoom v. Raining Rose, Inc.   One of the significant issues decided in DeBoom was that an employer is liable under the ICRA if the jury finds unlawful discrimination was "a motivating factor" in the employment decision.   Gross argued that it did not matter under the ICRA whether the burden shifted to FBL to prove the "same decision" defense, because liability attaches once the jury concludes discrimination was "a motivating factor."

We predicted back in September that DeBoom would have a significant impact on the litigation of age discrimination cases in Iowa, because the standard under the ICRA was different than under the ADEA.   We did not realize at the time, however, that the issue would come up in the Gross case itself.  

Interestingly, Judge Colloton, writing for the Court, did not agree with Gross' contention that the jury was instructed consistent with the Iowa Civil Rights Act, and thus remanded for a trial on both the ICRA and ADEA claims.  Why? The primary reason was that DeBoom was a "pretext" case, and not a "mixed motive" case.   In mixed motive cases, the Eighth Circuit concluded that Iowa precedent requires the same approach as the Eighth Circuit did pre-Gross.  That is, the defendant has the burden of proving the same decision defense only if there is direct evidence of discrimination.  Thus, the jury instruction was still in error, despite DeBoom. 

This matter is far from settled,and will likely result in further litigation in the Iowa Courts for years to come.   It is not clear the Iowa Supreme Court intended the DeBoom case to be as limiting as the Eighth Circuit purported to make it.

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Understandably, this is the most important question a client will ask his lawyer when deciding whether to settle a lawsuit or defend the case at trial.   It is also one of the most difficult things for lawyers to predict.   That's why jury verdict research is so valuable, and why this post at Manpower Employment Blawg is a must read for employers and HR professionals.    It turns out that 2009 was not a very good year at the courthouse for employers defending employment related lawsuits.  Here is a summary of the some of the jury verdict data:

• The median jury award in discrimination cases rose 16%, from $208,000 to $241,119.
• Employers won 39% of the time (or lost 61% of the time, depending upon your perspective).   In age cases, employers were successful only 33% of the time, and in disability cases, 52% of the time.
• Age discrimination claims resulted in the largest verdicts, followed by disability, sex, and race.
• Employers are generally better off in federal court: they won 43% of the time there, versus 37% of cases in state court. The median award was also lower in federal court ($164,925 vs. $270,000). Federal Court is also more favorable for employers because of the relatively high percentage of cases for which summary judgment is granted.
• The median settlement amount for all cases: $90,000, 20% higher than last year.  

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One of the biggest worries of lawyers defending against employee lawsuits is the stray statement in an e-mail that can be blown up or taken out of context.    We are constantly warning clients that, before they click "send",  they should think about how an e-mail will look to a jury. 

However, the recent acquittal of two former Bear Stearns executives accused of securities fraud provides an important lesson on the limitations of e-mail as evidence.   The government's case against the Wall Street executives relied heavily on statements they made in e-mails.   It seems the strategy backfired, and the e-mail turned out not to be the holy grail the prosecutors thought it would be.  According to one lawyer,  the "texting, twittering, Blackberry toting jurors of today understand that an e-mail capturing a concern, doubt or momentary distress does not reflect thought over time, much less a vetted public statement,  "Skilled lawyers can help pull some of the sting out of the most seemingly damning emails, it seems, by working hard to place them into a broader context."  

While it is still a good idea to think twice before clicking "send", it it good to know that common sense and context is capable of overcoming a damaging e-mail statement. 

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