The SJC Has Made It More Likely That You Will Try Your Employment Discrimination Case (Unless You Settle)

By: Joe Berman and Jeff Stern

Summary judgment.  Two words that bring a smile to all defense lawyers and their clients and send shivers of fear down the spines of plaintiff’s counsel.  Under Rule 56 of the Rules of Civil Procedure, summary judgment allows a defendant to avoid a trial if he or she persuades a judge that there are no disputed issues of material fact and that the defendant is entitled to judgment as a matter of law.  A successful summary judgment motion ends the case before the expense and uncertainty of trial.  It’s become a frequent – some would say too frequent --  stop along the long road of civil litigation, particularly in complex cases such as employment disputes.

A recent case may give defense counsel pause.

            In Verdrager v. Mintz Levin, et al., (May 31, 2016), a former associate of a large law firm alleged that she had been demoted and then terminated due to her gender and because she had earlier complained to her supervisors about discrimination.  A judge of the Superior Court granted summary judgment for the law firm, holding that there was no dispute that the firm had demoted and terminated the plaintiff for legitimate, non-discriminatory reasons.  However, the Supreme Judicial Court reversed.   The court listed seven factors in deciding whether or not self-help discovery is appropriate, thereby creating the potential for high stakes factual issues.

            The Verdrager case has received a lot of attention because the plaintiff had taken documents from the law firm’s computer network.  The firm had argued that such conduct was improper, going so far as to file a complaint with the Board of Bar Overseers against the plaintiff.  Finding for the plaintiff on an issue that it characterized as “novel,” the SJC held that in certain cases, an employee may search for, copy, and share with her attorney confidential documents that the employee was authorized to access in the course of employment to help prove her discrimination claim.   Thus, the plaintiff’s “self-help” discovery may under certain circumstances constitute protected activity for which she may not be demoted or fired.

Separate from that issue, the Verdrager case is significant for its lengthy discussion of a defendant’s burden when it seeks summary judgment before trial.  The SJC reiterated that, to survive a summary judgment motion, the employee-plaintiff must produce evidence from which a reasonable jury may infer that she was a member of a protected class (in this case, a woman), that she suffered harm (in this case, demotion and termination), that there was a discriminatory animus (in other words, a discriminatory intent rather than a non-discriminatory reason) and that the discriminatory intent caused the termination.  Due to the difficulty of proving that the employer had a pernicious, discriminatory intent and that this was the cause of the demotion or termination, courts have allowed plaintiffs to get past summary judgment under a three-part paradigm by which they may show indirect or circumstantial evidence of discrimination.  First, the plaintiff must show some evidence that she was a member of a protected class, she was performing her job at an acceptable level, and that she was terminated, demoted or the like.  At that point, the employer must articulate some legitimate, non-discriminatory reason for the action it took.  Assuming it does so, the burden flips back to the plaintiff to provide evidence that the employer’s articulated reason is simply a pretext for its real reason, which was discrimination.

            None of this is new.  The Verdrager holding reiterated long-established law in how summary judgment motions should be addressed in employment cases.

            What is new, however – and which will likely make it more difficult for defendants to get cases dismissed before trial – are the inferences and conjectures relied on by the SJC in reaching its conclusion that the plaintiff had produced sufficient evidence to get to trial.  A recurrent theme in the decision is that discrimination is tough to prove and that courts should indulge every inference in favor of plaintiffs: to allow them their day in court in front of a jury.   Lower courts will get the message; trial court judges will not want to substitute their own views about motive and intent for those of a jury.

Even if the plaintiff does not produce evidence that the real reason for her termination was discrimination, as long as the trial court judge agrees that there is sufficient evidence to infer that the proffered reason was pretextual, the plaintiff will survive summary judgment.  Give that some thought: with no direct evidence of discrimination, the plaintiff will get to trial if she persuades the judge that there is a dispute whether the reasons that her employer gave for demoting or firing her were untrue.  Under the SJC’s reasoning, “a showing of pretext … warrants, but does not require, a determination that the plaintiff was the victim of unlawful discrimination.”  As long as there is any possibility that the plaintiff could prove discrimination, the defendant will be unable to have the case dismissed at summary judgment.

            In reversing the defendant’s summary judgment, the SJC noted several facts that could help other plaintiffs in future cases.  For example, the court noted that ostensibly legitimate criticisms of the plaintiff’s job performance could reflect “stereotypical thinking on the basis of broad generalizations.”  Although, “these kinds of comments can, of course, admit of different interpretations by a jury … they could be understood to reflect a stereotypical view of women as not committed to their work.”  At another point, the SJC referenced a study that indicated that women and minorities at the firm believed that they did not have the same support network as white male lawyers.   Together with other inferences, this evidence entitled the plaintiff to a jury trial.

This reasoning has important practical consequences for both plaintiff and defense lawyers.   Obviously, summary judgment looks like a much steeper hill to climb.  Verdrager sets a high bar for the elimination of every possible factual dispute.  On the other hand, defeating a summary judgment motion is not the same thing as winning at trial.  At trial, juries are not permitted to speculate about the real reasons for an adverse employment action.  At that point, the plaintiff will have to produce evidence of actual discriminatory intent.  Plaintiffs may “win the battle, but lose the war.”

In sum, Verdrager provides a strong incentive to settle your employment case.  You should consider settlement at an early stage, before the significant expense of a summary judgment motion.  In the future, those motions will be less likely to succeed.  What remains will be the prospect of an expensive trial, whose outcome will be unpredictable.