Circuit Courts Criticized From Within on Summary Judgment
Circuit Judges in the Fourth and Eighth Circuits have recently criticized their colleagues for being too quick to grant summary judgment--a quick method of resolving a case which should only be granted when no issues of material fact are reasonably in dispute.
In the Fourth Circuit, Judge Roger Gregory recently dissented from a grant of summary judgment in a case involving an Asian-American woman's allegations of race discrimination and sexual harassment. As Judge Gregory points out, the woman, a PhD. scientist who was terminated from a management position, had substantially more experience than a white manager who was retained over her, and she also claims that she had one of her projects terminated immediately after she rebuffed a supervisor's sexual advance.
Additionally, she notes in her complaint that, while 60% of the company's Asian-American employees were layed off in a recent action, only 7.5% of its white employees were terminated. Nevertheless, the majority granted summary judgment for the employer, citing the plaintiff's failure to hire an expert witness to explain that a 60% termination rate is significantly higher than a 7.5% termination rate, and that this disparity is statistically relevant.
Similarly, the Judge Donald Lay of the Eighth Circuit has issued several dissents complaining of a pattern of unjustified grants of summary judgment by his colleagues. According to Judge Lay:
Too many courts in this circuit, both district and appellate, are utilizing summary judgment in cases where issues of fact remain. This is especially true in cases where witness credibility will be determinative. In these instances, a jury, not the courts, should ultimately decide whether the plaintiff has proven her case. Summary judgment should be the exception, not the rule. It is appropriate “only . . . where it is quite clear what the truth is, . . . for the purpose of the rule is not to cut litigants off from their right of trial by jury if they really have issues to try.”
ACS Member Seth Rosenthal recently published an article arguing that conservative judges routinely ignore the Seventh Amendment right to a jury trial and grant unwarranted summary judgments. According to Rosenthal:
Disrespecting the historic responsibility of the jury doesn't match up with the prototype of the modest jurist who conservatives say they embrace. Nor does it jibe with their championing of "constitutionalist" judges who adhere to the original understanding of our founding document. James Madison, after all, called the jury-trial guarantee "one of the best securities of the rights of the people" and wrote that it "ought to remain inviolate." Few things embody the will of the people like a jury verdict. And few things usurp it like displacing the jury from its fact-finding role.