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Costs of Summary Judgment

A recent California Court of Appeal case, Reeves v. MV Transportation, provides an illustration of the extent that current summary judgment doctrine operates to supplant the trial process.  The plaintiff in Reeves was a 56 year old attorney (I can identify with this guy already), who was not granted an interview for a staff attorney position with MV Transportation.  Instead MV hired a 40 year old whom Reeves contended was less qualified.  No question that a prima facie case of age discrimination was thereby established.  In such a situation, the employer must identify a non-discriminatory reason for its hiring decision, and the employee must show that the asserted reason is pretextual.  It has always been a little unclear how this burden-shifting process is actually supposed to proceed at trial, but nowadays, it increasingly plays out in the context of a summary judgment motion filed by the employer.   In that context, it becomes the employee’s burden to show enough inconsistencies or implausibilities in the employer’s declarations or deposition testimony as to allow the court to determine whether a potential fact finder could discredit the employer’s asserted reasons for its hiring decision.

It is important to keep in mind that, unless an employer actually admits that it acted for discriminatory reasons (which is not usual), employees in discrimination cases always bear the burden of proving that the employer’s claimed justifications for its conduct should not be accepted by the fact finder.  The fact finder has the difficult job of looking behind the employer’s explanations to discern its true motives.  Juries happen to be pretty good at this.  Summary judgment, on the other hand, does not seem to be as well-designed a tool for this purpose.  For one reason, the court has no opportunity to assess the demeanor of the witness who is proffering the employer’s stated reasons for its decision, and is not allowed to consider such factors in ruling on a summary judgment motion in any event.  Instead the courts require the party opposing summary judgment in effect to accept the employer’s testimony, and to introduce evidence or find enough inconsistencies in the record, to allow the court a basis for questioning it.  In other words, while juries can and do discredit witness testimony in their entirety for no better reason than their assessment of the witness’s manner or delivery, the court in ruling on summary judgment demands additional proof before discrediting such testimony.  That allows for the possibility that cases can be lost on summary judgment that could have been won at trial.  All of this is not to say that the court reached an incorrect result in this case as compared to the result that may have been reached at trial.  A jury in this case could well have concluded that plaintiff’s qualifications were not superior, or that the employer did not act for discriminatory reasons.  But the jury never go that chance in the Reeves case, because the court found the alleged inconsistencies in the record insufficient to question the employer’s explanations.

My concern is whether summary judgment is an efficient or appropriate tool to resolve such delicate issues as motivation in discrimination cases.  Courts can justify the increased use of summary judgment in these circumstances as a way of weeding weak cases out of the system, and saving the court the time and trouble of holding trials.  Defendants justify filing such motions on the ground that they may result in dismissal or at least in narrowing the issues for trial, without incurring the cost and risk of trial.  But the courts and the parties filing summary judgment motions may not always fully consider the cost of the motions themselves.  Often they are so voluminous, and require so much evidentiary preparation and court time that they may not save much in comparison with trial.  And the cost of trial is not necessarily the relevant basis of comparison.  In most cases, if summary judgment is denied,  the case is still not going to trial.  Instead, the case is usually going to get settled.  In addition to over-valuing the potential risk of trial (which allows parties filing summary judgment motions to rationalize the enormous expenditure of the motion itself), courts and the parties filing summary judgment motions also do not always factor in the cost of an appeal, which adds many thousands of dollars of attorneys’ fees, and years of delay and uncertainty.  They also do not factor the cost imposed on the party who is being denied his day in court, and his opportunity to obtain some compensation for his injuries.  A party such as the plaintiff in the Reeves case suffers his first perceived injustice when he is passed over in favor of a younger, perhaps-less qualified candidate.  Then he suffers a second perceived injustice when he is denied the opportunity to challenge this employment decision in court.   Thus summary judgment may generate considerable dissatisfaction with the system.

I have represented both employers and employees in discrimination cases, and I do not make these points to advocate a rule that is more favorable to one side or the other.  My point is that current summary judgment doctrine, which in discrimination cases appears to favor the employer, may actually impose some serious costs on the employer, in the form of the summary judgment motion itself, and the resultant appeal.  Those costs could in some cases exceed the costs of trial or settlement.  Yet employers often do not take these costs into consideration because of the allure of possible dismissal of troublesome cases.  From the employee’s point of view, current summary judgment doctrine presents a formidable potential obstacle in every case, and one that increases the plaintiff’s frustration with the system.  If I were put in charge of reforming the Code of Civil Procedure, my goal would be to simplify the process of getting to trial, while at the same time encouraging settlements, and reducing wasteful discovery and motion practice.  Our current heavy reliance on summary judgment to dispose of cases, as illustrated in a case like the Reeves case, does not seem to serve these ends.

(Thanks to California Labor & Employment Law Blog for bringing this case to my attention.)

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