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.