One of the many challenges with every employment case involves which judge hears the lawsuit. If the wrong judge is assigned to a given lawsuit, the chances  of prevailing diminish. Lauren Browning learned this when she filed a lawsuit in 2005 alleging she was discriminated against on the basis of her gender at Southwest Research Institute here in San Antonio, Texas. Dr. Browning was a scientist, the only female scientist in her department. She complained about discrimination in general and in regard to her pay. In response, she was threatened with firing and was told her travel reimbursement requests would be looked at very closely. The SWRI Administrator pounded his fist on her desk and accused her of abusing the travel rules at the Institute. Her supervisor kept a secret file on her. Her boss warned her not to go to HR about her pay issues, again. Dr. Browning quit. She filed suit a year later.

The employer moved for summary judgment. Magistrate Judge Primomo recommended granting the motion. In his Recommendation, he consistently construed the evidence in favor of the employer, not the employee. For example, he mentioned that Dr,. Browning’s supposed written complaints about discrimination did not clearly invoke discrimination. He never mentioned that she also complained verbally. His recommendation disregarded Plaintiff’s affidavit that she wrote on the back of one of her evaluations that she felt she was the victim of wage disparities based on her gender. Yet, the Magistrate did accept affidavit testimony from her superior. The magistrate was expecting a higher level of evidence from the plaintiff than from the defendant.

The Magistrate Judge discussed the plaintiff’s allegation that she was not promoted, while men with inferior qualifications were promoted. The Magistrate Judge concluded that the plaintiff claimed no supervisor “approached” her about seeking a promotion. The Magistrate was suggesting the plaintiff expected management to come to her about possible promotions, an obviously unrealistic expectation. But, the plaintiff’s claims involved much more than that. The plaintiff actually said there was no way for a scientist to learn of any promotion opportunity because the openings were not posted. Even if they were posted, there was no mechanism by which an employee could apply for given position. Again, the Magistrate Judge construed the available evidence against the employee.

The Magistrate Judge claimed the secret file on her could not have upset her, because it was secret. The Magistrate Judge never mentioned that keeping a secret file suggests illicit motive on the part of the supervisor. He was viewing the evidence in the light most favorable to the movant, not to the non-movant.

It did not help Dr. Browning’s case that she quit. After years of abusive treatment, Dr. Browning quit. That means in a lawsuit for Title VII discrimination, she must show she was forced to quit. Mag. Judge Primomo found the conditions were not so bad that she truly had to quit. In finding the conditions were not so bad, the Magistrate Judge relied on testimony from the management witnesses while disregarding Dr. Browning’s testimony.

The Magistrate even found an argument not advanced by the employer. The Magistrate claimed that having Dr. Browning interview her replacement was not humiliating because she did not yet know she would resign. Yet, there was no evidence in the record regarding when the plaintiff decided to resign. The Magistrate Judge was looking for evidence to help the employer, not the employee. Mag. Judge Primomo did the same thing in Heinsohn v. Carabin and Shaw, No. 14-CV-00094 (W.D.Tex.). In Heinsohn, Mag. Judge Primomo again came up with an argument that helped the employer which had not been advanced by the employer. A court should not enter a summary judgment for an employer based upon a reason not articulated by the employer but identified sua sponte by the district court. Thomas v. Eastman Kodak Co., 183 F.3d 38, 62 (1^st Cir. 1999). The Magistrate Judge was trying to help the employer. Yet, at the summary judgment stage, his task was to construe evidence in favor of the employee.

Regarding summary judgment, the court must view the evidence in favor of the non-movant. The point of summary judgment is not to arrive at the truth, but to test the evidence and see whether there is enough evidence to justify a trial. A tie ought to go to the plaintiff. The Browning v. Southwest Research Institute case was complicated. The briefs for both sides exceeded 40 pages each. The plaintiff appealed to the appointed judge, Fred Biery. But, Judge Biery accepted the Magistrate’s finding with a very brief three page opinion. Judge Biery’s decision accepted the Recommendation with little discussion of the very complicated evidence.

The plaintiff then appealed to the Fifth Circuit in New Orleans. Dr. Browning drew a generally pro-employer judge, Edith Jones. Judge Jones issued a decision that does not discuss the evidence in any detail. Instead, the opinion simply refers to the plaintiffs’ “broad conclusory” allegations. The decision nitpicks the evidence to find objective facts supporting a failure to promote while disregarding the subjective use made of those apparent facts. For example, Dr. Browning is accused of making gratuitous negative comments about co-workers, as if that alone would justify a low evaluation. But, the better question is how were comparable male workers evaluated for same or similar offenses? Did male co-workers receive the same poor evaluations for a similar offense? That is the critical question. Judge Jones never asked that question. The Fifth Circuit decision looks at the incident in which her boss threatened her with termination when she complained about unequal pay and concludes they were simply discussing pay issues. Judge Jones minimized her evidence. Again, the judge construed the evidence not in favor of the employee, but in favor of the employer.

The Fifth Circuit decision never mentioned the incident in which the Administrator pounded his fist on Dr. Browning’s desk and said he would scrutinize Dr. Browning’s travel reimbursement requests. In the end, the Fifth Circuit opinion found nothing occurred other than the normal “petty annoyances” in any job. The Fifth Circuit and Judge Jones issued a result-oriented decision. Dr. Browning lost, again. See the Fifth Circuit opinion here.

So, in a case in which a woman complained about discrimination and was met with fist pounding and threats of termination, she could not even get a trial. The plaintiff appealed to the U.S. Supreme court. But, the Supreme Court accepts less than 1% of the appeal filed. Hers was not one of the lucky few.

Recently, Dr, Browning spoke with the Medium about her lawsuit experience. See Medium report here. Needless to say, she found the legal experience to be result oriented. Facts were less important than the fact that she was an employee and her case appeared in front of the wrong judges. Dr. Browning no longer works in her field. She was not able to find employment in the field she loved. The employer offered to settle her case, despite winning at the district court. Dr. Browning, however, declined to settle, since any settlement would require her to agree to a confidentiality clause. She insisted on her right to discuss what happened to her, both at her place of employment and in our civil justice system.