A federal judge writes a nice blog on federal judges.  See herculesandtheumpire.com.  He discusses the studies on employment cases in the Northern District of Georgia.  I wrote about that study here.  

Judge Richard Kopf titles his blog post, "Judges are Killing Title VII of the Civil Rights Act of 1964."  The judge wrote about that Georgia study, because he found the results to be "stunning."  He then asked that the authors do a similar study of his own summary judgment results in employment cases.  The judge learned that his rate of granting summary judgment in his Nebraska court was even higher than the Northern District of Georgia.  His rate was 86% to 82% for the Georgia court. 

Judge Kopf states flatly that summary judgment law in employment cases favors the granting of summary judgment.  He is right.  I am sure he is referring to everything from the stray remarks doctrine to adverse credibility inferences in affidavits to the caselaw favoring the use of summary judgment.  These doctrines are all judicial creations.  They are not found in any statutes.  Yet, they impact plaintiffs in employment cases a great deal.  

In Judge Kopf’s blog post dated Oct. 23, 2013, he quotes a federal law clerk describing her experience working in two different federal district courts.  See the Judge’s post.  The law clerk makes a valid point that many cases were dismissed because the plaintiff did not exhaust administrative remedies.  I presume she means one or more claims were not filed with the EEOC.  if the claim is not first filed with the EEOC, then the plaintiff cannot later file suit on that claim. 

The law clerk also states that many times, the district court’s hands are tied.  They are limited by circuit court precedent.  For example, one of the cases dismissed in the Georgia study concerned a gender discrimination lawsuit in which a man grabbed a woman’s crotch.  That case was granted summary judgment.  The law clerk argues that if there is precedent that grabbing a crotch alone is not sufficient evidence to make out a claim of sex harassment, then grabbing a crotch may not be sufficiently severe or pervasive.  

I cannot disagree with that argument.  Each lawsuit has such unique facts that one cannot quantify crotch grabbing for all lawsuits.  But, surely the argument does not end there.  The point of summary judgment is not to weigh evidence but to determine where there is a minimal level of evidence to make out a factual dispute.  Surely, grabbing a crotch and nothing else may be enough in some cases to satisfy the requirement that sex harassment be severe or pervasive.  Surely, the judge could have reached a different result, even if court of appeals precedent might offer some obstacle.  

In fact, among the comments to this law clerk post is a comment by another federal law clerk.  Another long-term law clerk explains that he has read many affirmations of summary judgment, where, he says, his judge would have denied sumamry judgment.  Yes, I said that right.  This law clerk states that his judge disagrees with many summary judgment rulings by other federal judges. 

There is sufficient discretion in any motion for summary judgment for a judge to allow a plaintiff his/her day in court.  That is all any plaintiff can hope for.