Before proceeding to trial, an employment discrimination case in court must survive a hurdle in the procedural process known as summary judgment, which is governed by Federal Rule of Civil Procedure (FRCP) 56 and Massachusetts Rule of Civil Procedure (MRCP) 56. As discussed here, the process is different when an employment discrimination case remains under the jurisdiction of the Massachusetts Commission Against Discrimination.
Under federal law, three Supreme Court decisions handed down in 1986, referred to as The Trilogy, examined the summary judgment standard. In Anderson v. Liberty Lobby, the Supreme Court characterized the summary judgment inquiry as “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” In doing so, the Supreme Court delineated the province of the jury:
Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether he is ruling on a motion for summary judgment or for a directed verdict. The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.
Similarly, in Celotex v. Catrett, the Supreme Court noted that a party moving for summary judgment must show “the lack of a genuine, triable issue of material fact.” Finally, in Matsushita Electric v. Zenith Radio, the Supreme Court relied on earlier precedent and reiterated that inferences at the summary judgment stage “must be viewed in the light most favorable to the party opposing the motion.”
A close evaluation of the principles set forth in The Trilogy demonstrate that employment discrimination cases, by their nature, are generally ill-suited for summary judgment. In Blare v. Husky, for example, the Massachusetts Supreme Judicial Court recognized that summary judgment is disfavored in employment discrimination cases:
The ultimate question of the defendants’ state of mind is elusive and rarely is established by other than circumstantial evidence, which requires the jury to weigh the credibility of conflicting explanations of the adverse hiring decision.
Likewise, in Dominguez-Cruz v. Suttle Caribe, the First Circuit noted that “determinations of motive and intent, particularly in discrimination cases, are questions better suited for the jury.”
Relying on circumstantial evidence is certainly not a nuance of employment discrimination cases. Rather, as noted by the Second Circuit in Binder v. Long Island Lighting, circumstantial evidence is also highly probative in criminal cases which, as detailed below, carry a higher burden of proof:
Resort to a pretextual explanation is, like flight from the scene of a crime, evidence indicating consciousness of guilt, which is, of course, evidence of illegal conduct.
Beyond circumstantial evidence, some employment law cases hinge on disputed direct evidence. Using a sexual harassment case hypothetical as an example: Jane has been with the same company for several years and has a long history of successful performance. She recently received a promotion. Her new boss makes sexually explicit comments to her for a number of months and asks her out to dinner.
Jane rebuffs her boss’s advances each time and finally informs him that she intends to notify human resources. Shortly thereafter, the company terminates Jane’s employment on the recommendation of her boss. Aside from Jane, there are no witnesses to these comments and behavior. Jane’s boss denies ever behaving inappropriately toward her. Some would characterize this as a classic “he said-she said” scenario and conclude that Jane has little chance of prevailing. This is simply not true.
With respect to summary judgment, Jane would overcome this hurdle since weighing credibility is clearly a jury function. As such, a judge is in no position to decide based merely on legal briefs that Jane is telling the truth and that her boss is lying or vice versa. Only a jury, who will hear live testimony from Jane and her boss and also witness each party undergo intense cross-examination, will truly be in the position to decide who is lying and who is telling the truth.
As numerous courts have held, affidavits based on personal knowledge are sufficient to overcome summary judgment, which both MRCP 56(e) and FRCP 56(c)(4) specifically contemplate. In Darchak v. City of Chicago Board of Education, for example, the Seventh Circuit reversed summary judgment for the employer in a national origin discrimination case, stating:
It is true that uncorroborated, self-serving testimony cannot support a claim if the testimony is based on “speculation, intuition, or rumor” or is “inherently implausible.” But testimony based on first-hand experience is none of those things. Darchak’s testimony presents specific facts, even if that testimony may be less plausible than the opposing litigant’s conflicting testimony (a question we need not-nay, cannot-reach).
The First Circuit’s ruling in Velazquez-Garcia v. Horizon Lines of Puerto Rico likewise reversed summary judgment in an employment discrimination case on the same basis:
[W]hether a nonmovant’s deposition testimony or affidavits might be self-serving is not dispositive. It is true that testimony and affidavits that “merely reiterate allegations made in the complaint, without providing specific factual information made on the basis of personal knowledge” are insufficient. … [P]rovided that the nonmovant’s deposition testimony sets forth specific facts, within his personal knowledge, that, if proven, would affect the outcome of the trial, the testimony must be accepted as true for purposes of summary judgment.
Analytically, this is no different than a district attorney who prosecutes an individual alleged to have committed a crime using the victim’s own eyewitness testimony as evidence. In such a case, the jury is free to accept or disregard the victim’s identification. Interestingly, the prosecutor’s burden of proof in a criminal case is higher than that of a plaintiff in a civil case. In particular, the prosecutor must show “beyond a reasonable doubt” that the defendant committed the crime.
In contrast, an employee’s burden in an employment discrimination or sexual harassment case is “preponderance of the evidence.” As such, Jane must prove to the jury that it was more likely than not that her boss sexually harassed her. In employment discrimination and sexual harassment cases, surviving summary judgment and getting the case to jury is a function of both marshaling the facts as well as reminding the judge of the summary judgment standard. Both are equally important.
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