In employment litigation in federal court (let’s leave state court out of this discussion — it’s a whole different animal), filing a motion for summary judgment is seen by employers as their last, best chance to win a case before the matter is sent to a jury. After all, if the court grants the motion, a jury never sees the case and the case effectively ends (subject to an appeal).

Over the years, there have been various decisions that have suggested that summary judgments should be more of the exception rather than the rule.   Nevertheless, summary judgment still remains a tool that employers have in their toolbox  to defend against discrimination claims.

But besides the rules and the decisions that guide how courts should rule on such motions,  who judges the matter also plays a role in the ultimate outcome. As discussed below, this is important for employers and in-house counsel to understand when litigating discrimination claims.

Two recent decisions by two Connecticut federal judges illustrate that point.  In one case, Judge Vanessa Bryant granted an employer’s motion for summary judgment in a fairly short decision involving a Title VII claim . In another, Judge Christopher Droney denied an employer’s motion for summary judgment on the Title VII claims. 

(A few points of note: Yes, the facts of each case are different and I not suggesting that the cases are improperly decided.  Rather, it’s the judges’ approaches to the issues that is of note.   The cases involve fairly ordinary claims that you see in employment discrimination claims from time to time, and none appears to suggest any unique legal issues.)

When you compare and contrast the decisions, it’s easy to see a different approach to the issues that they face, not only in writing style but also in their reasoning.  For example, the judges each cite to different cases as precedent, for similar propositions.  And,  if you look back to prior decisions by Judge Bryant as well, you can see an approach that views such a claims with a bit more skepticism.  Indeed, Judge Bryant isn’t afraid to take a no-nonsense approach to the claims and draw reasonable inferences that she believes should be fairly drawn.

In a case posted earlier this week, she dismisses the plaintiff’s claims by finding that the alleged discriminatory transfers were not discriminatory at all.  She states: "the reassignments of the plaintiff [and others] suggest the inference that the defendants transferred them on the basis of seniority and the provisions of the union contract." 

By contrast, Judge Droney is more forgiving in his findings. In the case released on Tuesday, he finds that a supervisor’s comment that the plaintiff’s nursing work was "primitive", combined with support of plaintiffs’ competence and a co-worker’s statement, is just enough to send the case to a jury.    Is describing someone’s work as "primitive" really indicative of race? Indeed, the definition of "primitive" has no apparant racial connection, but rather to an non-industrial society.

Or framed another way, if the judge had found that a "primitive" comment was not evidence of discrimination, would anyone be that outraged with the court’s findings? Probably not.   But here, Judge Droney has drawn an inference that he believes a jury can reasonably draw from the use of the phrase.

Why is this important to understand for employers?

  • First, you need to frame your arguments to your audience. Understanding that federal judges may approach the same problem differently, gives you an opportunity to tailor your argument appropriately.
  • Second, you need to determine the risk that is involved with any case.  Some judges are just more likely to grant summary judgment than others.   And when you’re fixing budgets and determining how to best use limited resources to pay for defending claims, it may be best just to skip the summary judgment and proceed with a trial if you know that the court is likely to deny your motion anyways. 

When attorneys talk about the unpredictibility of litigation, reviewing two cases like this show what they are talking about.