It happens every day. Corporate counsel assess the merits of an action brought against the corporation, determine that the case is marginal at best, and conclude that it is one ripe for a quick summary judgment motion. Unfortunately, business as usual is no longer business as usual-particularly for employment-related actions.

According to federal government statistics, civil rights complaints more than doubled between 1990 and 1998. Sixty-five percent of those-some 27,500 cases-involved employment discrimination issues. Despite this trend, as outside counsel are now discovering, the view toward the use of summary judgment in employment-related cases to relieve the legal system of meritless claims has dimmed considerably in today's courthouses. These two situations have combined to make it more difficult than ever to render consistent advice on the decision to seek summary judgment.

Summary judgment was designed for "promptly disposing of actions in which there is no genuine issue as to any material fact." According to the Advisory Committee Notes, the very mission of the Rule 56 summary judgment procedure is "to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." However, there are members of the judiciary that have recently cautioned against the ready use of Rule 56. In fact, some judges have clearly opined that summary judgment is not a suitable means for the resolution of employment-related matters.

In the recent decision of Grafton v. Sears Termite & Pest Control, Inc., 2000 WL 422911 (N.D.Texas 2000), the Chief Judge for the Northern District of Texas expressed concern over the chronic use of summary judgment in employment discrimination cases. Before ultimately deciding in favor of the employer and granting summary judgment, the judge cited the oft-quoted case of Thornbrough v. Columbus & Greenville R.R. Co., 760 F.2d 633, 640 (5th Cir. 1985): "[b]ecause cases involving claims of employment discrimination involve nebulous questions of motivation and intent, summary judgment is usually considered an inappropriate tool for resolving these cases."

Other courts have held that summary judgment "should seldom be used in cases alleging employment discrimination." See Wallace v. Beech Aircraft Corporation, 87 F.Supp. 2d 1138 (D.Kansas 2000); O'Shea v. Yellow Technology Services, Inc., 185 F.3d 1093 (10th Cir. 1999); Smith v. St. Louis University, 109 F.3d 1261 (8th Cir. 1997); Johnson v. Minnesota Historical Society, 931 F.2d 1239 (8th Cir. 1991).

An Eastern District of New York court declared that determining whether a workplace is hostile is "the sort of issue that is often not susceptible of summary resolution." DiLaurenzio v. Atlantic Paratans, Inc., 926 F.Supp. 310, 314 (E.D.N.Y. 1996). A few years later, the judges on the Second Circuit, in a somewhat shocking ruling, reminded their colleagues that judges generally lack the "current real-life experience required in interpreting [the] subtle sexual dynamics of the workplace..." Gallagher v. Delaney, 139 F.3d 338 (2d Cir. 1998). Therefore, the court held that juries must decide what is and is not proper in the workplace because most factual issues in a sexual harassment case "cannot be effectively settled by a decision of an Article III judge on summary judgment." Id.

These judicial comments simply serve to remind the practitioner that summary judgment should be treated with special caution in employment-related cases. Of course, summary judgment motions are not per se improper, and clearly should not be discouraged. Many claims lacking merit will still be resolved before trial on the basis of summary judgment in favor of the employer. In fact, it is interesting to note that of the cases cited above, despite the cautionary language, many were decided in favor of the employer.

The question then becomes whether judges will grant the motion in borderline factual cases that lack any legal precedent. A general theme seems to be that while summary judgment is applied with added rigor in employment discrimination cases, where intent and credibility issues are crucial, it is not per se improper and may be useful in weeding out claims and cases obviously lacking merit. Washington v. Lake County, Ill., 96 F2d 250, 253 (7th Cir. 1992); Summers v. State Farm Mut. Auto. Ins. Co., 864 F2d 700, 709 (10th Cir. 1988).

Given the volume of employment-related cases filed, including employment discrimination, sexual harassment, and ERISA, and the multitude of causes of action alleged in each, it remains essential for parties to carefully review the facts and analyze the appropriateness of a motion for summary dismissal. The decision to move for summary judgment should never be made impetuously. Prior to determining whether summary judgment is appropriate, counsel must not only consider the facts, but venture to understand the court and the judge, and perhaps most importantly, study how a particular judge has historically viewed these motions. Summary judgment can no longer always be that routine, pre-trial, final piece of the puzzle.

The best advice in managing the increasing number of employment actions may be to remember that the courts are more cautious than ever about dismissing even a borderline employment case, and that there are always advantages and disadvantages associated with summary judgment motions. On the positive side, they can provide an opportunity to comprehensively analyze the facts of the case, quickly dispose of cases lacking merit and even provide a good foundation for continuing on to trial. But if a summary judgment motion is denied, despite the extreme cost involved, the defense has already laid out its case and eliminated its element of surprise and, perhaps, reinforced the strength of the case in the mind of the plaintiff.

With these potential outcomes in mind, corporate counsel and outside counsel need to work closely in employment-related cases to weigh the options and develop a strategy that provides the greatest chance for successfully defending an unsubstantiated claim. While the court system clearly has not revealed any one right answer to the summary judgment question, there remains adequate opportunity to use this tool-but only after careful evaluation of the specific situation.

Julie M. Lewis is a Partner in the Employment Litigation Practice Group and Heidi Schult Gregory is an Associate in the Business and Commercial Litigation Practice Group at Harris Beach, LLP. They can be reached at 800-685-1429.

1. National Law Journal, "How to Judge Age Bias," March 13, 2000. 2. 28 U.S.C.A. Federal Rules of Civil Procedure Rule 56, Advisory Committee Notes, 1937 Adoption. 3. 28 U.S.C.A. Federal Rules of Civil Procedure Rule 56, Advisory Committee Notes, 1963 Amendment 4. Grafton v. Sears termite & Pest Control, Inc., 2000 WL 422911 (N.D. Texas 2000); Wallace v. Beech Aircraft Corporation, 87 F.Supp.2d 1138 (D.C. Kansas 2000); and O'Shea v. Yellow Technology Services, Inc., 185 F.3d 1093 (10th Cir. 1999)(summary judgment denied in favor of employer).