Summary Judgment in Employment Discrimination Cases: A Judge's

NYLS Law Review NYLS Law Review

Volume 57

Issue 4

Trial by Jury or Trial by Motion?

Summary Judgment, Iqbal, and Employment

Discrimination

Article 2

January 2013

Summary Judgment in Employment Discrimination Cases: A Summary Judgment in Employment Discrimination Cases: A

Judge’s Perspective Judge’s Perspective

Hon. Denny Chin

U.S. District Judge for the Southern District of New York

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Hon. Denny Chin,

Summary Judgment in Employment Discrimination Cases: A Judge’s Perspective

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voLUMe 57 | 2012/13

HON. DENNY CHIN

Summary Judgment in Employment

Discrimination Cases: A Judge’s Perspective

57 N.Y.L. S. L. R. 671 (2012–2013)

ABOUT THE AUTHOR: U.S. Circuit Judge for the Second Circuit, from April 2010 to present, and U.S.

District Judge for the Southern District of New York, from September 1994 through April 2010. This essay

is drawn from remarks delivered at Trial by Jury or Trial by Motion? Summary Judgment, Iqbal, and Employment

Discrimination, a symposium held at New York Law School on April 23, 2012, available at http://www.

nylslawreview.com/trial-by-jury-or-trial-by-motion-summary-judgment-iqbal-and-employment-

discrimination/.

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Is summary judgment being unfairly granted in employment discrimination

cases? Scholars and practitioners have put forth this proposition, as they have written

about the apparent high failure rates of plaintiffs in opposing dispositive pretrial

motions in employment discrimination cases.

They have contended that: summary

judgment is being granted more often in employment cases than in other kinds of

cases;

summary judgment is being unfairly granted in employment discrimination

cases because federal judges are hostile to these cases;

federal judges are trying to

drive plaintiffs in employment cases to state court;

and, indeed, summary judgment

is unconstitutional.

In this essay, I will offer my thoughts on these issues, as I consider summary

judgment in employment cases from my perspective as both a trial judge (for almost

sixteen years) and now as an appellate judge (for more than two years).

As an initial matter, I do not quarrel with the statistics suggesting that summary

judgment is granted more often in employment cases.

A Federal Judicial Center

1. See, e.g., Raymond H. Brescia, The Iqbal Effect: The Impact of New Pleading Standards in Employment and

Housing Discrimination Litigation, 100 K. L.J. 235, 285–86 (2012); Elizabeth M. Schneider, The

Changing Shape of Federal Civil Pretrial Practice: The Disparate Impact on Civil Rights and Employment

Discrimination Cases, 158 U. P. L. R. 517, 525–26 (2010).

2. See Kerri Lynn Stone, Shortcuts in Employment Discrimination Law, 56 S. L U. L.J. 111, 112 (2011)

(“Research confirms everyday observations of how much more difficult it is for employment

discrimination plaintiffs than for other plaintiffs to survive pre-trial motions to dismiss their cases and

to win at trial or on appeal.”).

3. See id. at 112 (“[R]ecent studies confirm that judicial hostility toward Title VII cases is on the rise.”);

Suzette M. Malveaux, Front Loading and Heavy Lifting: How Pre-Dismissal Discovery Can Address the

Detrimental Effect of Iqbal on Civil Rights Cases, 14 L & C L. R. 65, 95 (2010) (“Recent

studies indicate that judicial hostility to Title VII claims in particular continues.”).

4. See Kevin M. Clermont & Stewart J. Schwab, Employment Discrimination Plaintiffs in Federal Court:

From Bad to Worse?, 3 H. L. & P’ R. 103, 104 (2009) (“[R]esults in the federal courts disfavor

employment discrimination plaintiffs, who are now foreswearing use of those courts.”); id. at 104–05

(“The fear of judicial bias at both the lower and the appellate court levels may be discouraging potential

employment discrimination plaintiffs from seeking relief in the federal courts.”); Schneider, supra note

1, at 564 (“[M]any federal judges appointed over the last several years appear to be deeply skeptical of

civil rights and employment cases.”).

5. See Suja A. Thomas, Why Summary Judgment is Unconstitutional, 93 V. L. R. 139 (2007); see also Suja

A. Thomas, Why the Motion to Dismiss is Now Unconstitutional, 92 M. L. R. 1851 (2008).

6. In addition, before taking the bench, I practiced in employment law, primarily on the plaintiffs’ side.

7. The fact is that very few civil cases are actually tried. For the twelve-month period ending September

30, 2011, only 1.1% of civil cases—all civil cases in the country—reached trial, both jury and nonjury.

A. O.   U.S. C., T C-4: C C T,  N  S & A

T (2011), available at http://www.uscourts.gov/uscourts/Statistics/JudicialBusiness/2011/

appendices/C04Sep11.pdf (last visited Dec. 28, 2012). There were only 2254 jury trials in 2011—in the

entire country. Id. There were 940 nonjury trials for a total of 3194 trials. Id. A disproportionate number

of those were employment cases—more than sixteen percent. Id. This Table breaks out “United States

Cases” from “Federal Question” (or private) cases. I have included here the statistics from the following

categories for United States Cases: “Civil Rights-ADA-Employment” (0), “Civil Rights-Employment”

(34), and “Fair Labor Standards Act” (1); and for Federal Question cases, under “ADA Employment”

(23), “Employment” (267), and “Fair Labor Standards Act” (43). Id. The total of 368 is sixteen percent

of the total number of jury trials. More employment cases reach trial than other kinds of civil cases,

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study showed that summary judgment was granted, in whole or in part, in

employment discrimination cases approximately seventy-seven percent of the time,

in tort cases approximately sixty-one percent of the time, and in contract cases

approximately fifty-nine percent of the time.

Other research shows that on appeal

plaintiffs’ victories (both before trial and at trial) are much more likely to be reversed

than defense victories.

Why is summary judgment apparently being granted more often in employment

discrimination cases? Why do plaintiffs in employment cases seem to fare so poorly?

Perhaps, as others have suggested, some federal judges operate on the baseline

assumption that unlawful discrimination is rare.

In an era of diversity programs,

affinity groups, sensitivity training, codes of conduct, and antidiscrimination and

antiharassment policies, perhaps the notion that an employer would intentionally

discriminate against someone because of his or her race or gender has become, in the

minds of some judges, less plausible. We have been instructed in Ashcroft v. Iqbal to

use our judicial common sense in considering motions to dismiss,

and, for some on

the bench, perhaps judicial common sense generates skepticism in this respect.

On the other hand, would it be naive to think that in this day and age, there is in

fact less discrimination in the workplace? After all, we have an African American

President in the White House, a Latina American Justice on the Supreme Court,

and now an Asian American—and former member of the National Employment

Lawyers Association

—on the Second Circuit. We have all heard speeches where

someone has said that someday we will no longer need the civil rights laws, as we

except perhaps personal injury cases. Id. If both federal question and diversity cases are included,

significantly more “Tort Actions” were tried than employment cases.

8. See Memorandum from Joe Cecil & George Cort, Fed. Judicial Ctr., to Judge Baylson, (Aug. 13, 2008),

available at http://www.fjc.gov/public/pdf.nsf/lookup/sujulrs2.pdf/$file/sujulrs2.pdf (last visited Dec.

28, 2012). The study examined the impact of local rules requiring statements of undisputed and disputed

facts. The statistics given are for districts where such statements were required for both moving and

responding parties. The statistics for districts where only the moving party was required to submit such

a statement or where no such requirement existed were substantially the same. Id.; see also Schneider,

supra note 1, at 524–25 (citing Clermont & Schwab, supra note 4), 550 (citing FJC Study).

9. Clermont & Schwab, supra note 4, at 109. Plaintiffs’ wins pretrial and at trial were reversed approximately

thirty percent and forty-one percent of the time, respectively, while defendants’ wins pretrial and at trial

were reversed approximately eleven percent and nine percent of the time, respectively. Id.

10. See Schneider, supra note 1, at 564 (“Many judges apparently tend to view these cases as petty, involving

whining plaintiffs complaining about legitimate employment or institutional matters, rather than

important civil rights issues.”).

11. 556 U.S. 662, 679 (2009) (“Determining whether a complaint states a plausible claim for relief will ...be

a context-specific task that requires the reviewing court to draw on its judicial experience and common

sense.”).

12. See Brescia, supra note 1, at 286 (“To the extent that [Iqbal] impacts important federal rights by giving

judges the freedom to dismiss cases that may seem inconsistent with what judges feel ‘in their gut,’ there

is grave cause for concern.”).

13. I was a member of the National Employment Lawyers Association of New York and a partner at a

highly respected plaintiffs’ side employment firm, Vladeck, Waldman, Elias & Engelhard, P.C., before

I took the bench in 1994.

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will have achieved racial peace and harmony.

Is it possible that because of all the

good work of many—lawyers, plaintiffs, and fair-minded employers alike—

discrimination in the workplace has been eradicated?

In my view, neither scenario is correct. First, although much progress has been

made, discrimination in the workplace still exists, and vigorous enforcement of the

civil rights laws is still very much a necessity.

Even at the most vigilant of companies,

there may be instances of discrimination or individual supervisors who let their

personal biases affect their decisionmaking.

Second, I simply do not accept the proposition that there is widespread judicial

hostility toward employment cases, and I reject the notion that federal judges are trying

to drive plaintiffs to state court.

I do not believe that federal judges are less fair in

employment cases because of “judicial hostility” or skepticism toward claims of

discrimination. Employment cases have been—and still are—an important part of the

federal docket,

and the federal courts have a long tradition of dealing with civil rights

and employment cases.

These cases are part of what we do. Moreover, as a general

14. See Denny Chin, Why Race Matters, N.Y.L.J., Dec. 17, 2007, at 2 (“If justice is blind, why does the race

of the judge matter? Well, race does matter. In a perfect world, race would be irrelevant in the

administration of justice, and someday we may get there. But we will never get there if the bench is

dominated by individuals of one background or persuasion.”).

15. See Joseph A. Seiner, After Iqbal, 45 W F L. R. 179, 196 (2010) (“[E]mployment

discrimination continues to thrive in our society . . . .”). Professor Seiner points to the following to

support his conclusion: (1) summary judgment is denied in whole or in part in 37.4% of employment

discrimination cases (referring also to the Federal Judicial Center study); (2) jury verdict research shows

plaintiffs winning in more than 60% of employment discrimination cases going to trial; and (3) recent

studies showing, for example, discrimination against African Americans and older employees in hiring.

Id. at 196–202.

16. On the other hand, there has been a drop in the number of employment discrimination cases in the

federal courts.

By 2001, employment discrimination cases constituted nearly ten percent of federal

civil terminations. But this category has seen a startling drop as a percentage of

terminations every year since then, so that in 2006 it accounted for fewer than six

percent of federal civil terminations. While the overall caseload is at least holding its

own currently, the employment discrimination category has dropped in absolute

number of terminations after 1998.

Clermont & Schwab, supra note 4, at 117.

17. Nationwide, for the twelve months ending September 30, 2011, employment cases accounted for more

than eight percent of all civil cases filed. A. O.   U.S. C., T C-2A: C C

C, B N  S 2011, available at http://www.uscourts.gov/uscourts/Statistics/

JudicialBusiness/2011/appendices/C02ASep11.pdf (last visited Dec. 28, 2012). I include as employment

cases here the statistics for the categories Employment (15,141 cases), ADA-Employment (1788), and Fair

Labor Standards Act (6335), for a total of 23,244 cases out of the total civil cases of 289,252 commenced

during the twelve-month period ending September 30, 2011. I have not included Employee Retirement

Income Security Act (ERISA) cases.

18. See Judith Resnik, Building the Federal Judiciary (Literally and Legally): The Monuments of Chief Justices

Taft, Warren, and Rehnquist, 87 I. L.J. 823, 870 (2012) (“In the 1940s, the Civil Rights movement

turned to the federal courts and, under the leadership of Earl Warren in the 1960s, judicial interpretations

of the Constitution, statutes, and federal rules looked favorably upon court-based processes to enable

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matter we like to keep our cases.

We value our jurisdiction, and from time to time,

when Congress passes statutes seeking to narrow our jurisdiction, we tend to resist.

Are there judges who do not like employment cases? I have no doubt there are.

Employment cases can be difficult. They often require a great deal of attention.

There are many discovery disputes. Many of these cases are pro se, and pro se cases

are difficult to manage. Moreover, the lawyering can sometimes be uneven. There

was a period of time, for example, when the personal injury bar was trying to bring

these cases, not realizing how complicated, time-consuming, and challenging the

cases can be. And finally, of course, employment cases often generate complicated,

burdensome, time-consuming summary judgment motions with extensive records.

Of course, a judge may not be enthusiastic about every case she hears.

A lack of

enthusiasm about a particular case, however, does not mean that she will treat the

case with less care. Sometimes, a judge will say something in the context of settlement

negotiations, pointing to a weakness in a case to encourage a resolution. This does

not mean the judge is hostile to employment cases or that she will render an unfair

decision if the merits are reached. The judge is simply trying to help the plaintiff

racial equality and to enhance human dignity.”); see also Schneider, supra note 1, at 522 (“[F]ederal

courts were viewed as the bulwark of civil rights protection.”).

19. For example, when the New York State Supreme Court opened its commercial division, there was some

concern among my colleagues about losing commercial cases to the state court system. See Jed Rakoff, Are

Federal Judges Competent? Dilettantes in an Age of Economic Expertise, 17 F J. C. & F. L. 4

(2012) (noting that states have been creating specialized courts with expertise in business law, including

New York, which has created a Commercial Part in its Supreme Court); Robert L. Haig, Can New York’s

New Commercial Division Resolve Business Disputes as Well as Anyone?, 13 T L. R. 191 (1996).

20. See, e.g., Boumediene v. Bush, 553 U.S. 723, 736 (2008) (overturning § 7 of the Military Commissions Act

of 2006, 28 U.S.C. § 2241(e), which purported to deny federal courts jurisdiction to hear habeas petitions

filed by aliens detained by United States as enemy combatants); Hamdan v. Rumsfeld, 548 U.S. 557 (2006)

(rejecting, on statutory grounds, the government’s argument that the Detainee Treatment Act of 2005

stripped federal courts of jurisdiction to hear habeas petitions filed by detainees at Guantanamo Bay);

Felkin v. Turpin, 518 U.S. 651, 660–62 (1996) (holding that the Antiterrorism and Effective Death

Penalty Act did not strip Supreme Court of jurisdiction to entertain original habeas petitions).

21. For example, I once tried a patent case that involved trigonometry. Not only did I have to learn patent

law, I had to understand complex trigonometric formulas. See Scanner Techs. Corp. v. ICOS Vision Sys.

Corp., N.V., 486 F. Supp. 2d 330 (S.D.N.Y. 2007), aff ’d in part, rev’d in part, and vacated in part, 528

F.3d 1365 (Fed. Cir. 2008). My post-trial opinion included the following discussion:

The Patents teach a three-dimensional inspection apparatus for BGAs [ball grid arrays],

where a BGA is positioned in a fixed optical system, using (a) one or more illumination

devices positioned to illuminate the BGA, (b) a first camera in a fixed focus position

relative to the BGA for taking a first image to obtain a characteristic circular doughnut

shape image from at least one ball, (c) a second camera in a fixed focus position relative to

the BGA taking a second image to obtain a side view (not a 90-degree angle, nor a top

view angle, nor an angle identical to the one created by the first camera, and not limited

to a low angle) of the ball, (d) a processor that receives both points of perspective, using

trigonometric principles) on related measurement of the first and second images to

calculate a three-dimensional position of at least one ball (the X, Y, and Z values for the

top of at least one ball in the BGA) with reference to a pre-calculated calibration plane

(the X and Y world-coordinates and the Z=0 world plane).

486 F. Supp. 2d at 343.

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understand the risks of going forward. In the settlement context, the judge is likely

to make similar comments to the employer as well.

There are some likely explanations for the apparent lower success rates in

employment cases. First, the meritorious cases are often settled, and thus the statistics

may be skewed. Second, employment cases can be particularly personal, and as a

consequence employment cases are usually litigated hard. When employers are

accused of racism, bias, and sexism, they will defend themselves vigorously, and often

they will spend more to defend a case than it would cost to settle it.

On the

employee side, there may be bruised egos, shattered self-esteem, and a need for

vindication. Third, as discussed further below, it has always been the case that

intentional discrimination is difficult to prove.

Summary judgment is an important, useful tool.

It is not unconstitutional. We

need a mechanism for screening out meritless cases.

While summary judgment

motions are time-consuming, they are still a more efficient way of addressing a

meritless claim than a full trial. We could not administer justice if every case that did

not settle went to trial.

Trial judges, of course, must not let these motions become a means for wearing

down a plaintiff. Too often litigation has become more about resources and expense

than about reaching the merits and doing justice.

22. While some judges have expressed the view that addressing the merits is not effective in trying to settle a

case, at times, I found it helpful to point out strengths and weaknesses. I would try to persuade one side

that there was a risk of losing by highlighting its weaknesses and the other side’s strengths. Of course,

other important considerations were the uncertainty, expense, delay, and distraction of continued litigation.

23. See Adorno v. Port Auth. of N.Y. & N.J., 685 F. Supp. 2d 507, 515 (S.D.N.Y. 2010) (“The Port Authority

defended the case tenaciously.”); Alvarez v. City of New York, 31 F. Supp. 2d 334, 344 (S.D.N.Y. 1998)

(“All too often . . . employers react negatively to the assertion of a claim and consequently turn a weak

discrimination case into a strong retaliation case.”); Malarkey v. Texaco, Inc., 794 F. Supp. 1237, 1245

(S.D.N.Y. 1992) (referring to “defense counsel’s scorched earth litigation technique”).

24. The “factual question of intentional discrimination” is “elusive.” Tex. Dep’t Cmty. Affairs v. Burdine,

450 U.S. 248, 255 n.8 (1981). Because an employer’s “intent and state of mind are implicated[,]” Meiri

v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985), rarely is there “direct, smoking gun, evidence of

discrimination.” Richards v. New York City Bd. of Educ., 668 F. Supp. 259, 265 (S.D.N.Y. 1987), aff ’d,

842 F.2d 1288 (2d Cir. 1988).

25. Meiri, 759 F.2d at 998 (“[T]he salutary purpose of summary judgment—avoiding protracted, expensive

and harassing trials—apply no less to discrimination cases than to . . . other areas of litigation.”).

26. Of course, I have granted many summary judgment and dismissal motions over the years. See, e.g., Jones

v. City Sch. Dist. of New Rochelle, 695 F. Supp. 2d 136 (S.D.N.Y. 2010); Sharpe v. MCI Commc’ns

Servs., Inc., 684 F. Supp. 2d 394 (S.D.N.Y. 2010); Forde v. Beth Israel Med. Ctr., 546 F. Supp. 2d 142

(S.D.N.Y. 2008). Cf., e.g., employment cases where I denied summary judgment at least in part: Borrero

v. Am. Express Bank, 533 F. Supp. 2d 429 (S.D.N.Y. 2008); Silver v. N. Shore Univ. Hosp., 490 F.

Supp. 2d 354, 363 (S.D.N.Y. 2007); Wright v. Stern, 450 F. Supp. 335 (S.D.N.Y. 2006); Miles v. N.

Gen. Hosp., 998 F. Supp. 377 (S.D.N.Y. 1998). I have also been on panels of the Second Circuit that

affirmed summary dismissals as well. See, e.g., Jowers v. Family Dollar Stores, Inc., 455 F. App’x 100 (2d

Cir. 2012) (summary order); Tepperwein v. Entergy Nuclear Ops., Inc., 663 F.3d 556 (2d Cir. 2011);

Vargas v. Morgan Stanley, 438 F. App’x 7 (2d Cir. 2011) (summary order).

27. See, e.g., Arthur R. Miller, The Pretrial Rush to Judgment: Are the “Litigation Explosion,” “Liability Crisis,”

and Efficiency Clichés Eroding Our Day in Court and Jury Trial Commitments?, 78 N.Y.U. L. R. 982,

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In many courts, trial judges require a pre-motion conference. I did. Most judges

in the Southern District of New York do. This was a way to make litigation more

efficient.

I could try to talk a defendant out of making a motion, or I could try to

persuade a plaintiff to drop a claim. I always thought partial motions to dismiss or

for summary judgment were particularly inefficient, and they would just delay a case.

Unless a partial motion could substantially narrow discovery, I usually tried hard to

talk a defendant out of making such a motion. I would not prohibit a party from

making a motion—that might be unconstitutional.

If a party insisted on making a

motion permitted by the Federal Rules, I would not prohibit the party from doing

so, but there were occasions when I would tell a plaintiff she did not need to respond

in the first instance. I would look at the motion papers first, and only if I thought

there was a chance I might grant the motion would I then ask for opposition papers.

In opposing summary judgment motions and in seeking to prove employment claims

generally, plaintiffs’ lawyers often do not, in my view, focus sufficiently on the issue of

discrimination—on intent. In part, this is because of the McDonnell Douglas test.

advocated some years ago for eliminating McDonnell Douglas in favor of a more simplified,

more focused approach to assessing these cases, particularly on summary judgment.

The McDonnell Douglas rule has been criticized as a “yo-yo rule”

or a “ping pong-like

match”

with its back-and-forth approach. It purports to be a three-prong test: the

plaintiff must make out a prima facie case;

the employer must then articulate a business

justification;

and the burden then shifts back to the plaintiff to show pretext.

985–87 (2003); D. Theodore Rave, Questioning the Efficiency of Summary Judgment, 81 N.Y.U. L. R.

875, 875 (2006) (“The primary justification for summary judgment has always been efficiency.”).

28. Richardson Greenshields Sec., Inc. v. Lau, 825 F.2d 647, 653 (2d Cir. 1987) (“This practice [of requiring

a conference prior to the filing of motions] may serve the useful purpose of narrowing and resolving

conflicts between the parties and preventing the filing of unnecessary papers. Litigants and the courts

profit when this occurs.”).

29. Id. at 652 (“Absent extraordinary circumstances, such as a demonstrated history of frivolous and

vexatious litigation, or a failure to comply with sanctions imposed for such conduct, a court has no

power to prevent a party from filing pleadings, motions, or appeals authorized by the Federal Rules of

Civil Procedure.”) (citations omitted).

30. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801 (1972).

31. Denny Chin & Jodi Golinsky, Moving Beyond McDonnell Douglas: A Simplified Method for Assessing

Evidence in Discrimination Cases, 64 B. L. R. 659 (1998).

32. Bickerstaff v. Vassar Coll., 992 F. Supp. 372, 373 (S.D.N.Y. 1998).

33. Greenway v. Buffalo Hilton Hotel, 143 F.3d 47, 53 (2d Cir. 1998).

34. McDonnell Douglas, 411 U.S. at 802. As articulated in McDonnell Douglas, the plaintiff ’s prima facie

case consisted of showing: (1) he belonged to a “racial minority”; (2) he applied for a job for which he

was qualified and the employer was seeking applicants; (3) he was rejected; and (4) the position remained

open and the employer continued to look for applicants with plaintiff’s qualifications. Id.

35. Id. at 802–03. The employer’s burden is not onerous, as it “need only articulate—but need not prove” a

discriminatory reason for its action. Fisher v. Vassar Coll., 70 F.3d 1420, 1433 (2d Cir. 1995), aff ’d en

banc, 114 F.3d 1332 (2d Cir. 1997), cert. denied, 118 S. Ct. 851 (1998).

36. McDonnell Douglas, 411 U.S. at 804.

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In fact, as the law has evolved, it is now an eight-part test: the four prongs of the

prima facie case; the employer’s articulation of a business justification; whether there

is pretext; whether the pretext is a cover-up for discrimination;

and, finally, whether

the plaintiff has carried her overall burden of proving intentional discrimination.

The fourth step of the prima facie case has evolved so that now the plaintiff must

show circumstances giving rise to an inference of discrimination.

But that showing

is similar to the ones the plaintiff must make later in the analysis: the pretext is to

cover-up discrimination and she has carried her overall burden of proving intentional

discrimination. The result is that the parties and the court review the evidence

several times.

In a case where a plaintiff asserts multiple claims—for example, a promotion

claim, a salary claim, and a termination claim—the parties and the court would have

to go through the eight steps for each claim.

This is an extremely inefficient way of

addressing the issues. Moreover, the Second Circuit has held that trial judges should

not instruct juries on McDonnell Douglas.

Why should the law for the judge be

different from the law for the jury?

When I considered summary judgment motions in employment cases as a district

judge, I usually took a simplified approach:

I assumed the plaintiff made out a

37. A finding of pretext does “not necessarily mean that the true motive was the illegal one argued by the

plaintiff.” Fisher, 114 F.3d at 1338 (citation omitted). The plaintiff must show not only that the

“proffered reasons by the employer were false,” but that “more likely than not discrimination was the real

reason for the discharge.” Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir. 1996). See

also St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 510–11 (1993) (proof of pretext alone does not

compel a finding in favor of plaintiff).

38. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000) (“Although intermediate evidentiary

burdens shift back and forth under this framework, ‘[t]he ultimate burden of persuading the trier of fact

that the defendant intentionally discriminated against the plaintiff remains at all times with the

plaintiff.’”) (quoting Tex. Dep’t Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)).

39. See, e.g., Brown v. City of Syracuse, 673 F.3d 141, 150 (2d Cir. 2012); Feingold v. New York, 366 F.3d 138,

152 (2d Cir. 2004); Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 63 (2d Cir. 1997). See Abdu-

Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 467 (2d Cir. 2001) (“[W]e concede that the case law on this

particular point—whether a discrimination plaintiff may or must show disparate treatment—is confusing.

Courts, including ours, have struggled with this fourth element of the prima facie case, as the language of

the element itself has ‘gone through various iterations in the years since McDonnell Douglas was decided.’”)

(quoting Chin & Golinsky, supra note 31, at 663–64 & n.26).

40. See, e.g., Lapsley v. Columbia Univ., 999 F. Supp. 506, 514 (S.D.N.Y. 1998).

41. Greenway v. Buffalo Hilton Hotel, 143 F.3d 47, 53 (2d Cir. 1998) (holding that only courts, not juries,

“should determine whether the initial McDonnell Douglas burdens of production have been met,” as

“requiring the jury to play the ping-pong-like match of shifting burdens is confusing and entirely

unnecessary”); accord Loeb v. Textron, Inc., 600 F.2d 1003, 1016 (1st Cir. 1979) (“[T]o read [the

McDonnell Douglas test’s] technical aspects to a jury . . . will add little to the juror’s understanding of the

case and, even worse, may lead jurors to abandon their own judgment and to seize upon poorly

understood legalisms to decide the ultimate question of discrimination.”).

42. See, e.g., Jones v. City Sch. Dist. of New Rochelle, 695 F. Supp. 2d 136, 143–44 (S.D.N.Y. 2010);

Peterson v. City Coll., 32 F. Supp. 2d 675, 683–84 (S.D.N.Y. 1999); Lapsley, 999 F. Supp. at 513–16.

Other district courts have also taken a more focused approach. See Chin & Golinsky, supra note 31, at

668 & n.53, 671–72 & nn.68, 69 (citing cases).

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prima facie case; employers always articulated a business reason for its decision—I

never had a case where the employer failed to articulate a business reason for its

decision; and I would go right to the “ultimate issue”:

whether the plaintiff presented

evidence from which a reasonable jury could find that, more likely than not, the

employer’s decision was motivated at least in part by discrimination.

I would first examine the plaintiff ’s proof. Was it admissible? Relevant? Material?

Was it sufficient to support a verdict in her favor? What is the proof of discrimination?

There may be comments,

statistics, disproportionate treatment,

irrational

treatment,

and unfairness.

I would then examine defendant’s proof that it did not

discriminate. Finally, I would consider the record as a whole.

43. Fields v. N.Y. St. Off. of Mental Retardation & Dev. Disabilities, 115 F.3d 116, 119 (2d Cir. 1997); see also

Reeves, 530 U.S. at 146 (“The ultimate question is whether the employer intentionally discriminated . . . .”).

44. See, e.g., Borrero v. Am. Express Bank, 533 F. Supp. 2d 429, 436 (S.D.N.Y. 2008) (“The ‘ultimate issue’

in any employment discrimination case is whether the plaintiff has met her burden of proving that the

adverse action was motivated at least in part by an ‘impermissible reason,’ i.e., that there was

discriminatory intent.”) (citing Reeves, 530 U.S. at 146).

45. Silver v. No. Shore Univ. Hosp., 490 F. Supp. 2d 354, 363 (S.D.N.Y. 2007) (discussing factors to

consider in determining whether a comment is “a probative statement that evidences an intent to

discriminate or whether it is a non-probative ‘stray remark’”); Goldschmidt v. N.Y. St. Affordable Hous.

Corp., 380 F. Supp. 2d 303, 316 (S.D.N.Y. 2005) (jury could reasonably find that defendants’ statements

about plaintiff reflected religious bias).

46. See, e.g., Borrero, 533 F. Supp. 2d at 438 (denying summary judgment in part because supervisor refused

to allow female employee to attend meeting, commenting “this is not a social club,” while permitting

male co-worker to attend a baseball game the same day).

47. See, e.g., Stratton v. Dep’t for the Aging, 132 F.3d 869, 879–80 (2d Cir. 1997) (in upholding jury’s verdict

for plaintiff in employment discrimination case, noting that plaintiff with a strong record was “inexplicably

treated in a negative fashion” as soon as new and substantially younger supervisor took over); Fischbach v.

D.C. Dep’t of Corr., 86 F.3d 1180, 1183 (D.C. Cir. 1996) (where an employer has “made an error too

obvious to be unintentional, perhaps it had an unlawful motive for doing so”); Lewis v. Sears, Roebuck &

Co., 845 F.2d 624, 633 (6th Cir. 1988) (employer’s decision to fire plaintiff “may have been so unusual or

idiosyncratic as to shed light upon [its] motivation in firing her”).

48. See, e.g., Miles v. N. Gen. Hosp., 998 F. Supp. 377 (S.D.N.Y. 1998) (“A reasonable jury could also

conclude that termination of a 25-year career was unreasonably and inexplicably harsh.”); Shafrir v.

Assoc. of Reform Zionists of Am., 998 F. Supp. 355, 362 (S.D.N.Y. 1998) (“A reasonable jury could find

that defendants’ decision to fire plaintiff was irrational, because she had otherwise been an excellent

employee and was seeking only a few weeks of additional leave. A reasonable jury could construe

defendants’ illogical or unduly harsh actions as evidence of discrimination.”); Nembhard v. Mem’l

Sloan-Kettering Cancer Ctr., 918 F. Supp. 784 (S.D.N.Y. 1996).

The jury could have concluded that Memorial acted disproportionately by dismissing

an employee who had performed well for more than 17 years for returning late from

vacation for reasons beyond her control, who could not then immediately return to work

because of illness, who gave notice that she would be late in returning, and whose

lateness in returning did not cause Memorial any significant problems. . . . The jury

could have reasonably concluded that Memorial’s decision to discharge plaintiff in

these circumstances rather than simply dock her salary or charge her vacation time or

reprimand her was discriminatorily motivated.

Id. at 789.

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Certain concepts must be kept in mind. Any conflicts in the evidence, of course,

must be resolved in favor of the plaintiff. The evidence has to be construed in the

light most favorable to the plaintiff as the party opposing summary judgment. The

evidence has to be considered as a whole—seemingly innocuous or innocent pieces of

evidence may take on a different meaning when placed in context.

Yes, unfairness is not unlawful, in and of itself.

But the question is: Why is there

unfairness? Unfairness is unlawful if it is motivated by race or gender or some other

protected category. Inexplicable unfairness and irrationally severe treatment are

strong indications of a discriminatory motive. Plaintiffs’ lawyers should remember

the old nuggets: clever men discriminate in clever ways,

and where there is smoke

there is fire.

Why would the employer act in this unfair, irrationally harsh way? Based on all

the evidence, based on these five or six pieces of seemingly innocent evidence that

together paint a mosaic of discrimination, is it more likely than not that discrimination

was the motivating factor? A lawyer at trial or in opposing a summary judgment

motion should tick off the five or six facts that show that more likely than not the

employer was acting in an intentionally discriminating manner.

49. See Gallagher v. Delaney, 139 F.3d 338, 342 (2d Cir. 1998) (“Creating a mosaic with the bits and pieces

of available evidence, a reasonable juror might picture either a malign employer using his position to

pressure a subordinate for sexual favors or a benign boss trying—however ineptly—to express concern

for his secretary in a non-erotic manner that she mistakenly viewed as sexually aggressive.”); see also

Robin v. Espo Engineering Corp., 200 F.3d 1081, 1089 (7th Cir. 2000) (“[A] combination of direct and

circumstantial evidence, ‘none conclusive in itself but together composing a convincing mosaic of

discrimination against the plaintiff,’ may allow a plaintiff to surpass the summary judgment hurdle.”)

(quoting Troupe v. May Dep’t Stores Co., 20 F.3d 734, 737 (7th Cir. 1994)). But see Gorence v. Eagle

Food Ctrs., Inc., 242 F.3d 759, 763 (7th Cir. 2001) (“And it is simply not true, we want to emphasize,

that if a litigant presents an overload of irrelevant or nonprobative facts, somehow the irrelevance will

add up to relevant evidence of discriminatory intent. They do not; zero plus zero is zero.”).

50. Murphy v. Am. Home Prods. Corp., 58 N.Y.2d 293, 300 (1983) (“[W]here an employment is for an

indefinite term it is presumed to be a hiring at will which may be freely terminated by either party at any

time for any reason or even for no reason.”).

51. See Robinson v. 12 Lofts Realty, Inc., 610 F.2d 1032, 1043 (2d Cir. 1979) (“‘[C]lever men may easily

conceal their motivations . . . .’”) (quoting United States v. City of Black Jack, 508 F.2d 1179, 1185 (8th

Cir. 1974)); accord Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 464–65 (2d Cir. 1989) (“In

assessing the inferences to be drawn from the circumstances of the termination, the court must be alert

to the fact that ‘[e]mployers are rarely so cooperative as to include a notation in the personnel file’ that

the firing is for a reason expressly prohibited by law.”) (quoting Thornbrough v. Columbia & Greenville

R.R. Co., 760 F.2d 633, 638 (5th Cir. 1985)).

52. See Price Waterhouse v. Hopkins, 490 U.S. 228, 266 (1989) (O’Connor, J., concurring) (Where a plaintiff

has shown that an illegitimate consideration was a “substantial factor” in an employment decision, “the

employer may be required to convince the factfinder that, despite the smoke, there is no fire.”); Tyler v.

Bethlehem Steel Corp., 958 F.2d 1176, 1187 (2d Cir. 1992) (Even without a “‘smoking gun,’” where “there

is at the very least a thick cloud of smoke,” the employer must “‘convince the factfinder that, despite the

smoke, there is no fire.’”) (quoting Price Waterhouse, 490 U.S. at 266 (O’Connor, J., concurring)).

53. See e.g., Stratton v. Dep’t for the Aging, 132 F.3d 869, 879–80 (2d Cir. 1997) (listing facts supporting

verdict in favor of plaintiff in age discrimination case).

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In many cases I heard, lawyers simply did not focus on the proof, the circumstantial

proof, of discrimination. They did not tackle the issue of intent head on, but instead

relied on the more defensive, more diffuse approach of McDonnell Douglas.

Now, I appreciate that McDonnell Douglas was crafted to help plaintiffs in

situations where there was a lack of direct evidence of discrimination.

But given

how employment law has evolved, I do not think it is helpful to anyone anymore.

A more simplified, more focused approach would, I believe, help plaintiffs who

have been aggrieved by discrimination to build a stronger case. It would also help

defendants who have been wrongly accused obtain vindication. And it would help

the courts adjudicate these difficult cases in a more efficient manner.

The law has evolved. And yes, it may be more challenging now for plaintiffs to

bring employment cases. I do not think the answer is for plaintiffs’ lawyers to bash

the judges. On the other hand, judges must avoid the temptation to engage in fact-

finding when they are skeptical about a case. The task of the lawyers is to educate

the judges, and to do a better job of telling a compelling story. Lawyers must help

the judge care, for a judge who cares is more likely to get it right.

A lawyer helps the

judge care by telling a compelling story, using some passion, but relying primarily on

logic. Judges do not always get it right, but judges—at least the vast majority of

judges—try to get it right.

Plaintiffs’ lawyers must also choose wisely when taking on a case; they cannot

take a case just because the client believes in her heart that she has been subjected to

discrimination. There has to be something concrete—something plausible—to

suggest discrimination. Cases brought purely on bruised ego and speculation

trivialize our important civil rights laws.

Has my perspective about summary judgment in employment cases changed

since I became a circuit judge? In some respects it has changed, and in some respects

it has not. Employment cases are still difficult and challenging—but enjoyable—

cases. They are still an important part of the docket.

My perspective has changed, however, in the sense that now as a circuit judge I

review the decisions of other judges, rather than decide cases in the first instance.

And I do so in panels of three. Even after I make up my mind, the decisionmaking

process continues as the three members of the panel must confer to reach a final

decision. Most of the time there is unanimity and often the cases are relatively easy.

But I am surprised at how often there is disagreement. In an appeal from the grant

54. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800–01 (1972) (discussing Congress’s intent in

passing Title VII as “to assure equality of employment opportunities and to eliminate those discriminatory

practices and devices which have fostered racially stratified job environments to the disadvantage of

minority citizens”).

55. “[M]uch of the scholarship [on the role of emotion in the law] posits that it is not only impossible but

also undesirable to factor emotion out of the reasoning process: by this account, emotion leads to truer

perception and, ultimately, to better (more accurate, more moral, more just) decisions.” Susan Bandes,

Empathy, Narrative, and Victim Impact Statements, 63 U. C. L. R. 361, 368 (1996).

56. “Title VII . . . does not set forth ‘a general civility code for the American workplace.’” Burlington N. &

Sante Fe Ry. v. White, 548 U.S. 53, 68 (2006) (quoting Oncale v. Sundowner Offshore Servs., Inc., 523

U.S. 75, 80 (1998)).

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of summary judgment in an employment case, the fact of disagreement would

suggest, perhaps, that summary judgment should not have been granted. If three

judges cannot agree, then surely, one would think, there must be a genuine issue of

fact for trial. But sometimes, of course, there is disagreement about what a reasonable

jury could or could not find.

One study examined grant and deny rates for summary judgment motions in

employment cases based on the race of the judge.

The study found that “white

judges” granted summary judgment motions in employment cases sixty-one percent

of the time.

“Minority judges” granted these motions only thirty-eight percent of

the time.

Could it be that “minority judges” find it more plausible that an employer

would discriminate?

Justice cannot, of course, be dispensed differently based on the race, gender, or

background of the judge or that of the litigants. At the same time, we would all

benefit from greater diversity on the bench. This is particularly so in employment

cases where we must confront the thorny and personal issues generated by claims of

racism, sexism, bigotry, and intentional discrimination. With an exchange of views

drawn from a spectrum of backgrounds, experiences, and perspectives, we can be

more confident that we are reaching a just and true result.

57. See Tepperwein v. Entergy Nuclear Ops., Inc., 663 F.3d 556, 576–80 (2d Cir. 2011).

58. Jill D. Weinberg & Laura Beth Nielsen, Examining Empathy: Discrimination, Experience, and Judicial

Decisionmaking, 85 S. C. L. R. 313 (2012).

59. Id. at 338 & tbl.3. These were full grants dismissing the entire case.

60. Id. Similarly, these were full grants dismissing the entire case. The authors concluded: “Overall, white

judges are far more likely to grant a motion for summary judgment for the defendant (61% of cases),

than are their counterpart minority judges (38% of the time, or some 23% less than white judges).” Id. at

338–39.

61. The authors

contend that this variation [in summary judgment grant rates] is the result of the

different attitudes, opinions, and experiences that stem from being white or a person of

color. White judges are far more likely to dispose of any employment discrimination

case at the summary judgment phase than are minority judges.

Id. at 346; see also Edward M. Chen, The Judiciary, Diversity, and Justice for All, 91 C. L. R. 1109,

1117, 1119–20 (2003); Pat K. Chew & Robert E. Kelley, Myth of the Color-Blind Judge: An Empirical

Analysis of Racial Harassment Cases, 86 W. U. L. R. 1117, 1156 (2009); Harry T. Edwards, Race

and the Judiciary, 20 Y L. & P’ R. 325, 327-29 (2002).

62. See Denny Chin, supra note 14, at 2 (“A broader mix of judges, a bench that more fairly reflects the rich

diversity of our society, will improve the overall quality of justice.”); see also Theresa M. Beiner, The

Elusive (but Worthwhile) Quest for a Diverse Bench in the New Millennium, 36 U.C. D L. R. 597,

598, 601–17 (2003); Sherrilyn A. Ifill, Racial Diversity on the Bench: Beyond Role Models and Public

Confidence, 57 W. & L L. R. 405 (2000).