The point of summary judgment is to dismiss cases that have no genuine chance of winning in front of a jury, or cases that a jury should not even hear. Summary judgment should result in dismissal of  cases that lack any real issue of fact. Why have a trial if there is no genuine issue? “Summary” means quick. So, if there is no real issue of fact, then it makes sense for the judge to decide the case quickly. But, at some point, some judges have hijacked the summary judgment motion to serve as a vehicle for judicial fact-finding. We see such an example in Wheat v. Florida Parish Juvenile Justice Commission, No. 14-30788 (5th Cir. 1/5/2016).

Lillie Wheat worked as a detention officer at a juvenile detention facility operated by the Florida Parish Juvenile Justice Commission. She rose through the ranks to Assistant Director of Female Services in 2008. In 2009, she took time off under the Family Medical Leave Act for surgery. She was terminated after her leave ran out. She filed suit for FMLA retaliation. She settled her claim and was reinstated to her old job in 2011. The Assistant Director position was filled, so she returned as regular officer but at her old, higher salary. After a couple of issues with juvenile inmates, Ms. Wheat was fired in 2012. She filed suit saying she was fired due to her gender – regarding an issues with a female juvenile inmate – and for FMLA retaliation.

Ms. Wheat advanced several claims for retaliation, a missed raise, the assignment of janitorial duties upon her return, and her request to be transferred away from a difficult juvenile inmate. The majority opinion actually refused to consider many of the retaliation incidents, but did address these three identified acts of retaliation. The majority opinion rejected the janitorial duties claim. Said the court, an “unsupported,” “bare bones” claim that janitorial duties is materially adverse to her career is not enough. The court was saying that her own claim that being assigned janitorial duties was harmful to her career was not enough. The claim lacks “contextual” detail to make that an adverse claim. That finding is counter-intuitive. If a relatively long-term employee like Lillie Wheat cannot testify to what is harmful to her career, who can?

Responding to the dissent, the majority added that there was no evidence that being assigned janitorial duties after being an Assistant Director constituted treating her differently than other detention officers. “Properly read, the record does not exclude the possibility that some ‘janitorial duties’ were expected of JDS officers generally – but especially those, like Wheat, who had just recently been hired or reinstated.” And, in that sentence, the court finds there is no way Ms. Wheat can allege the assignment was adverse.

The court then addressed her positive but late performance evaluations. Although it was positive, it stated that she would not receive a 4% pay raise. Noted the majority opinion, Ms. Wheat checked the box saying she reviewed and agreed with this rating. Ms. Wheat did not appeal this rating at the time. Again in responding to the dissent, the majority argued that the raise “may” have been affected by the lateness of the evaluation. So, that means the dissent agrees she might not meet her burden at trial regarding that factual issue. This possibility is not enough to create a dispute fact, said the majority.

The majority did agree that the termination itself is materially adverse. So, yes, that act does constitute actionable retaliation. Ms. Wheat did show she was treated differently regarding her prior issues with juvenile inmates. Some detention officers were discharged for mis-treating inmates, while others were not. So, the court reversed summary judgment regarding the termination itself.

In dissent, Judge Reeves of the Southern District of Mississippi noted that the majority opinion essentially draws available factual issues against the Plaintiff. For example, regarding the assignment of janitorial duties, Judge Reeves points out that her “bare bones” assertion should be enough. This is summary judgment, not trial. Ms. Wheat is a witness like any other. She also has a relatively long period of working at the detention facility. She is in a position to identify what is harmful to her career. Judge Reeves suggests that simple “common sense” suggests that being assigned janitorial duties when she is senior to many other workers is retaliatory. Or, as the judge explains, whether the janitorial duties were adverse to her is a strong enough issue that a jury should decide it. The dissent pointed to some decisions which explicitly found that a senior person being assigned janitorial duties constitutes negative treatment of that worker.

[Indeed, the majority opinion, seems to countenance that some persons would perceive this assignment as materially adverse when it acknowledges the “possibility.” The court’s use of the word “possibility” suggests a new standard for summary judgment, one that disregards “possible” factual issues. If “possible” facts are now excluded from summary judgment consideration, few cases will pass muster. Too, the disregard of her “unsupported” allegation ignores several cases that find plaintiffs are indeed competent to testify to their own observations. See, e.g. Tolan v. Cotton, 572 U.S. ___, 134 S.Ct. 1861, 1863 (2014); Jacobs v. N.C. Administrative Office of the Courts, 780 F.3d 562, 569 (4^th Cir. 2015); Burton v. Freescale Semiconductor, LP, No. 14-50944 (5^th Cir. 8/10/2015).]

The dissent pointed out that the Fifth Circuit in Wilson v. Monarch Paper Co., 939 F.2d 1138, 1145 (5th Cir. 1991), found the assignment of a white collar executive to janitorial duties to be retaliatory. But, now, when  this same issue concerns a blue collar executive, the same court finds that no, this treatment was not retaliatory. In a judicial version of a snit, the dissent described the majority’s view as “we-don’t-know-what-janitorial-duties-really” means.

I have to say that phrase is accurate. What sort of evidence is needed to address what janitorial duties mean? Some judges appear to lack experience with real jobs, with real consequences. I am also concerned that the Fifth Circuit seemed to fault the employee in some way for not objecting to her performance evaluation or for not appealing it. Workers who have returned to work as she returned are under a magnifying glass as it is. The majority opinion seems to expect her to disregard the scrutiny and pretend she is a normal worker. That is asking too much from someone who must bring the bread home everyday. All workers tolerate difficult issues from their bosses. Workers who return to work after a lawsuit may have to tolerate even more abuse. It flies in the face of economic reality to expect Ms. Wheat to object to every possible issue. This is a poorly reasoned opinion. See decision here.