News
Labor/Employment
Aug. 8, 2002
Opposing Summary Judgment Requires Careful Planning
Focus Column - By Jeffrey K. Winikow - Having to oppose summary judgment can ruin a weekend faster than an unannounced visit from one's in-laws. This article is intended to highlight some ways in which plaintiffs' employment lawyers can prepare for this unpleasant task and enhance their effectiveness in doing so.
Focus Column
By Jeffrey K. Winikow
Having to oppose summary judgment can ruin a weekend faster than an unannounced visit from one's in-laws. This article is intended to highlight some ways in which plaintiffs' employment lawyers can prepare for this unpleasant task and enhance their effectiveness in doing so.
• Obtain an electronic copy of the defendant's separate statement. Parties moving for summary judgment must file a separate statement that details in Column A the undisputed facts underlying the motion and in Column B the evidence supporting those facts.
California Rule of Court 342(i) provides that, upon request, "a party must within 3 days provide to any other party or the court an electronic version of its separate statement." Often, a defendant's separate statement will contain hundreds of facts. There is simply no reason to retype or scan this statement; practitioners should just request an electronic copy as soon as they receive the moving papers.
• Devote substantial time to your separate statement. Lawyers opposing summary judgment often spend so much time on their legal briefs that they overlook the importance of the separate statement. If a fact is not set forth in the separate statement, however, it is like the proverbial tree falling in the forest: A court can presume that the fact does not exist. North Coast Bus. Park v. Nielson Constr., 17 Cal.App.4th 22 (1993).
If a fact is important enough to appear in one's memorandum of points and authorities, that fact - together with supporting evidence - must also appear in the separate statement.
• Articulate the correct burden of proof. Many summary judgment motions recite a burden of proof that is simply incorrect. The McDonnell-Douglas burden-shifting model does not apply to all employment cases. See McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973) (plaintiff must show prima facie case of discrimination, which shifts burden to defendant to show nondiscriminatory reason for its actions; once shown, burden shifts back to plaintiff to show that defendant's reasons are a pretext for discrimination).
A party opposing summary judgment must educate the court as to the standard governing the particular case. For example, in cases where an employer fires an individual in the middle of a medical leave, the employer may bear the burden of proof at trial as to the propriety of discharge. See, e.g., 2 Cal. Code of Adm. Reg. Section 7297.2(c)(1) (California Family Rights Act). One simply should not assume that the employee would bear the burden of proof in all cases.
• Explain why a defendant's lies create triable issues of fact. Despite Reeves v. Sanderson Plumbing Prod. Inc., 530 U.S.133 (2000), plaintiffs' lawyers cannot expect to survive summary judgment just by exposing the lies of a defendant employer. While the Reeves court held that "a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated," the California courts have found that mere lies do not necessarily raise an inference of discrimination. See, e.g., Guz v. Bechtel Nat'l Inc., 24 Cal.4th 317 (2000) ("The pertinent statutes do not prohibit lying, they prohibit discrimination").
If a practitioner seeks to defeat summary judgment by relying upon a defendant's untruthfulness, the practitioner must reconcile Guz with Reeves and educate the trial court as to how and why a defendant's untruthfulness should defeat summary judgment. A lying employer still may be entitled to summary judgment if it proffers undisputed evidence as to why it lied and its real reasons for discharge.
For example, an employer may want to discharge an employee because it believes that the employee is embezzling money but cannot prove it. The employer may want to avoid stigmatizing allegations and fabricate other reasons for termination to fend off potential defamation claims. However, unless an employer makes such an admission and produces undisputed evidence on this point, Reeves should control, and one should be permitted to infer discriminatory animus from defendant dishonesty.
In addition to raising triable issues of intent, defendant dishonesty raises triable issues regarding "notice." Defendants often file "ostrich motions," which are predicated upon self-serving evidence that the decision maker buried his or her head in the sand and did not know about the plaintiff's whistle-blowing, medical condition or other factor giving rise to protected status.
Under these circumstances, a defendant's "false exculpatory statements" may be treated as evidence of "consciousness of liability" and cast doubt on the defendant's "denial of knowledge affecting ... liability." Donchin v. Guerrero, 34 Cal.App.3d 1832 (1995); see also Azzaro v. County of Allegheny, 110 F.3d 968 (3d Cir. 1995) (trier of fact may infer that decision makers knew of protected activity in spite of denials).
• Weave facts and discovery into your legal authorities. Employment cases are not like fender benders. Lawyers must keep abreast of the law and cannot expect to survive summary judgment as a matter of course. Cases are often won through careful screening and are often lost through inattentive legal research. Lawyers handling these cases not only must know the legal standards governing summary judgment but also must integrate those standards into their overall discovery plan.
There are several different ways in which plaintiffs may raise triable issues of fact in an employment case predicated on circumstantial evidence. A plaintiff may defeat summary judgment by showing that:
• The defendant has switched its rationales for the job action taken against plaintiff. Washington v. Garrett, 10 F.3d 1421 (9th Cir. 1994).
• The defendant failed to follow its own personnel policies regarding discharge. Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252 (1977) ("Departures from the normal procedural sequence also might afford evidence that improper purposes are playing a role.").
• The timing of discharge closely followed the plaintiff's exercise of protected rights. Fisher v. San Pedro Peninsula Hosp., 214 Cal.App.3d 590 (1989) (one may infer retaliation by the "proximity in time between protected action and the allegedly retaliatory ... decision").
• The defendant destroyed evidence that could have supported the plaintiff. Bihun v. AT&T, 13 Cal.App.4th 176 (1993) (mysterious disappearance of evidence justifies evidentiary inference of discrimination without any direct evidence of willful suppression).
• The defendant knew about and tolerated the plaintiff's performance deficiencies. Hossiani v. Western Missouri Med. Ctr., 97 F.3d 1085 (8th Cir. 1996).
• The defendant maintained a "corporate culture" that condoned discriminatory decision making. Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344 (3d Cir. 1998).
• An employer prohibited discrimination against other protected classifications, but not the specific classification at issue in the case. Ware v. Howard University, 816 F. Supp. 737 (D. D.C. 1991) (employer proscribed discrimination based on race and sex, but not on age).
This list shows the need to tie facts into the law, and why one needs to conduct discovery with an eye toward defeating summary judgment.
If one is to expose lies or to showcase evolving rationales for discharge, then one must take a good number of depositions. Deposing the decision maker will likely reveal a "party line" justification for discharge. However, if two or more human-resources representatives were involved in the matter, one might be able to reveal chinks in the armor through inconsistent testimony.
Quite often, the third person to testify about the discharge will articulate rationales that no one has ever stated before, which, by itself, should preclude summary judgment. See Garrett ("To accept Defendant's eleventh hour shift in reasons ... would allow an employer to develop its reasons, over time, to combat the specific evidence proffered by a plaintiff.").
Even nonsubstantive issues relating to the preservation of evidence can play a critical role in mounting an effective summary judgment opposition. Given that parties can no longer sue for spoliation of evidence (Cedars-Sinai Med. Ctr. v. Superior Court, 19 Cal.4th 1 (1998)), a triable issue of spoliation should be sufficient, by itself, to support a verdict and defeat summary judgment.
• File and pursue evidentiary objections. Practitioners cannot shy away from filing evidentiary objections to employer summary judgment motions. These objections should be in writing and in conformance with California Rules of Court 343 and 345.
Merely filing these objections may not be enough: Practitioners should obtain actual rulings on their objections in order to preserve appellate issues. Ann M. v. Pacific Plaza Shopping Ctr., 6 Cal.4th 660 (1993). But see Little v. Kay, 2002 WL 1065543 (Cal. App. May 29, 2002) (unpublished decision holding that actual ruling is not needed where court stated it was only considering admissible evidence, per Biljac Assocs. v. First Interstate Bank, 218 Cal.App.3d. 1410 (1990)); see also Sambrano v. City of San Diego, 94 Cal.App.4th 225 (2001) (criticizing the trial courts' reliance on Biljac as a substitute for evidentiary rulings).
The bottom line is that one can control the burdens of opposing summary judgment through careful planning and pointed execution. An attorney must anticipate these motions and prepare accordingly. By doing so, he or she will mount a more effective opposition.
Jeffrey K. Winikow is an employment lawyer in Los Angeles.
By Jeffrey K. Winikow
Having to oppose summary judgment can ruin a weekend faster than an unannounced visit from one's in-laws. This article is intended to highlight some ways in which plaintiffs' employment lawyers can prepare for this unpleasant task and enhance their effectiveness in doing so.
• Obtain an electronic copy of the defendant's separate statement. Parties moving for summary judgment must file a separate statement that details in Column A the undisputed facts underlying the motion and in Column B the evidence supporting those facts.
California Rule of Court 342(i) provides that, upon request, "a party must within 3 days provide to any other party or the court an electronic version of its separate statement." Often, a defendant's separate statement will contain hundreds of facts. There is simply no reason to retype or scan this statement; practitioners should just request an electronic copy as soon as they receive the moving papers.
• Devote substantial time to your separate statement. Lawyers opposing summary judgment often spend so much time on their legal briefs that they overlook the importance of the separate statement. If a fact is not set forth in the separate statement, however, it is like the proverbial tree falling in the forest: A court can presume that the fact does not exist. North Coast Bus. Park v. Nielson Constr., 17 Cal.App.4th 22 (1993).
If a fact is important enough to appear in one's memorandum of points and authorities, that fact - together with supporting evidence - must also appear in the separate statement.
• Articulate the correct burden of proof. Many summary judgment motions recite a burden of proof that is simply incorrect. The McDonnell-Douglas burden-shifting model does not apply to all employment cases. See McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973) (plaintiff must show prima facie case of discrimination, which shifts burden to defendant to show nondiscriminatory reason for its actions; once shown, burden shifts back to plaintiff to show that defendant's reasons are a pretext for discrimination).
A party opposing summary judgment must educate the court as to the standard governing the particular case. For example, in cases where an employer fires an individual in the middle of a medical leave, the employer may bear the burden of proof at trial as to the propriety of discharge. See, e.g., 2 Cal. Code of Adm. Reg. Section 7297.2(c)(1) (California Family Rights Act). One simply should not assume that the employee would bear the burden of proof in all cases.
• Explain why a defendant's lies create triable issues of fact. Despite Reeves v. Sanderson Plumbing Prod. Inc., 530 U.S.133 (2000), plaintiffs' lawyers cannot expect to survive summary judgment just by exposing the lies of a defendant employer. While the Reeves court held that "a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated," the California courts have found that mere lies do not necessarily raise an inference of discrimination. See, e.g., Guz v. Bechtel Nat'l Inc., 24 Cal.4th 317 (2000) ("The pertinent statutes do not prohibit lying, they prohibit discrimination").
If a practitioner seeks to defeat summary judgment by relying upon a defendant's untruthfulness, the practitioner must reconcile Guz with Reeves and educate the trial court as to how and why a defendant's untruthfulness should defeat summary judgment. A lying employer still may be entitled to summary judgment if it proffers undisputed evidence as to why it lied and its real reasons for discharge.
For example, an employer may want to discharge an employee because it believes that the employee is embezzling money but cannot prove it. The employer may want to avoid stigmatizing allegations and fabricate other reasons for termination to fend off potential defamation claims. However, unless an employer makes such an admission and produces undisputed evidence on this point, Reeves should control, and one should be permitted to infer discriminatory animus from defendant dishonesty.
In addition to raising triable issues of intent, defendant dishonesty raises triable issues regarding "notice." Defendants often file "ostrich motions," which are predicated upon self-serving evidence that the decision maker buried his or her head in the sand and did not know about the plaintiff's whistle-blowing, medical condition or other factor giving rise to protected status.
Under these circumstances, a defendant's "false exculpatory statements" may be treated as evidence of "consciousness of liability" and cast doubt on the defendant's "denial of knowledge affecting ... liability." Donchin v. Guerrero, 34 Cal.App.3d 1832 (1995); see also Azzaro v. County of Allegheny, 110 F.3d 968 (3d Cir. 1995) (trier of fact may infer that decision makers knew of protected activity in spite of denials).
• Weave facts and discovery into your legal authorities. Employment cases are not like fender benders. Lawyers must keep abreast of the law and cannot expect to survive summary judgment as a matter of course. Cases are often won through careful screening and are often lost through inattentive legal research. Lawyers handling these cases not only must know the legal standards governing summary judgment but also must integrate those standards into their overall discovery plan.
There are several different ways in which plaintiffs may raise triable issues of fact in an employment case predicated on circumstantial evidence. A plaintiff may defeat summary judgment by showing that:
• The defendant has switched its rationales for the job action taken against plaintiff. Washington v. Garrett, 10 F.3d 1421 (9th Cir. 1994).
• The defendant failed to follow its own personnel policies regarding discharge. Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252 (1977) ("Departures from the normal procedural sequence also might afford evidence that improper purposes are playing a role.").
• The timing of discharge closely followed the plaintiff's exercise of protected rights. Fisher v. San Pedro Peninsula Hosp., 214 Cal.App.3d 590 (1989) (one may infer retaliation by the "proximity in time between protected action and the allegedly retaliatory ... decision").
• The defendant destroyed evidence that could have supported the plaintiff. Bihun v. AT&T, 13 Cal.App.4th 176 (1993) (mysterious disappearance of evidence justifies evidentiary inference of discrimination without any direct evidence of willful suppression).
• The defendant knew about and tolerated the plaintiff's performance deficiencies. Hossiani v. Western Missouri Med. Ctr., 97 F.3d 1085 (8th Cir. 1996).
• The defendant maintained a "corporate culture" that condoned discriminatory decision making. Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344 (3d Cir. 1998).
• An employer prohibited discrimination against other protected classifications, but not the specific classification at issue in the case. Ware v. Howard University, 816 F. Supp. 737 (D. D.C. 1991) (employer proscribed discrimination based on race and sex, but not on age).
This list shows the need to tie facts into the law, and why one needs to conduct discovery with an eye toward defeating summary judgment.
If one is to expose lies or to showcase evolving rationales for discharge, then one must take a good number of depositions. Deposing the decision maker will likely reveal a "party line" justification for discharge. However, if two or more human-resources representatives were involved in the matter, one might be able to reveal chinks in the armor through inconsistent testimony.
Quite often, the third person to testify about the discharge will articulate rationales that no one has ever stated before, which, by itself, should preclude summary judgment. See Garrett ("To accept Defendant's eleventh hour shift in reasons ... would allow an employer to develop its reasons, over time, to combat the specific evidence proffered by a plaintiff.").
Even nonsubstantive issues relating to the preservation of evidence can play a critical role in mounting an effective summary judgment opposition. Given that parties can no longer sue for spoliation of evidence (Cedars-Sinai Med. Ctr. v. Superior Court, 19 Cal.4th 1 (1998)), a triable issue of spoliation should be sufficient, by itself, to support a verdict and defeat summary judgment.
• File and pursue evidentiary objections. Practitioners cannot shy away from filing evidentiary objections to employer summary judgment motions. These objections should be in writing and in conformance with California Rules of Court 343 and 345.
Merely filing these objections may not be enough: Practitioners should obtain actual rulings on their objections in order to preserve appellate issues. Ann M. v. Pacific Plaza Shopping Ctr., 6 Cal.4th 660 (1993). But see Little v. Kay, 2002 WL 1065543 (Cal. App. May 29, 2002) (unpublished decision holding that actual ruling is not needed where court stated it was only considering admissible evidence, per Biljac Assocs. v. First Interstate Bank, 218 Cal.App.3d. 1410 (1990)); see also Sambrano v. City of San Diego, 94 Cal.App.4th 225 (2001) (criticizing the trial courts' reliance on Biljac as a substitute for evidentiary rulings).
The bottom line is that one can control the burdens of opposing summary judgment through careful planning and pointed execution. An attorney must anticipate these motions and prepare accordingly. By doing so, he or she will mount a more effective opposition.
Jeffrey K. Winikow is an employment lawyer in Los Angeles.
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