It will come as no surprise to employers that summary judgment (essentially, throwing out a case before trial) in employment cases in state court is hard to get.  State judges are typically reluctant to grant such a motion, which means cases get scheduled for trial — an expensive and uncertain proposition at best for employers. 

When employers do get summary judgment, their victories may be shortlived. Just ask the employer in the case of Li v. Canberra Industires (download here), which will be officially released on March 27, 2012.

In that case, the employer had criticized the plaintiff for many months on her performance and the employer had the documentation to support it.  In fact, she was told that if her performance didn’t improve, she could be fired.  She was transfered to a new supervisor.

A few weeks after that, the employee then played what turned out to be her trump card. She said her new supervisor had directed her to call competitors while pretending to be someone else.  She complained about that practice to her supervisor.  Her supervisor asked for advice on the issue from a lawyer in the company’s legal department; she advised the supervisor that it probably wasn’t a good idea.

The supervisor continued to be critical of the employee’s performance over the next 60 days and she was then fired. 

The employee brought several claims, and the employer won all of them on summary judgment.  The employee then appealed two of the claims on appeal to the Appellate Court: Common-law wrongful discharge and a free speech claim under Conn. Gen. Stat. 31-51q. 

The Appellate Court said that the trial court erred in granting summary judgment because there are enough facts to establish a temporal proximity between her complaint and her discharge. 

“Although there surely was evidence of perfectly permissible reasons for the plaitniff’s discharge as well, a genuine issue of fact nonetheless existed.” Case reversed and it will be set for trial.

Even with documented performance issues before the employee complained, it still wasn’t enough for the court.  It shows, yet again, that retaliation-type cases are very difficult to defend against.   

The case raises several other questions as well. I’ll address these and the free speech claim in an upcoming post….