In all employment lawsuits, the employer will move for summary judgment or seek dismissal of the case. Even when the facts are very strong, the employer wants to “take a swing” at summary judgment. It should be obvious that the employee must then point to specific facts which show that a trial is necessary. Summary judgment is not supposed to involve weighing the evidence. It is supposed to address the question whether there are sufficient minimal facts to justify having a trial. So, what happens if the plaintiff’s lawyer responds to the summary judgment motion not with actual evidence, but instead relies only on the Complaint? In such instances, the plaintiff will lose. That is what happened in Webb v. City of Huntsville, No. 17-CV-03829 (S.D. Tex. 8/10/2020). In this case, Kimberly Webb sued the City of Huntsville, saying she was fired after she complained about sexual harassment and sexual assault by her supervisor.

Why would the employee’s attorney rely solely on the Complaint? The Complaint is nothing more than a list of allegations. It is not supported by any witness or piece of evidence. Why would the plaintiff’s attorney overlook this very critical response? We will see.

New Evidence

The plaintiff lost. The judge initially granted the motion for summary judgment. Later, the employee obtained new counsel. The new plaintiff’s lawyer submitted a motion asking for reconsideration. He claimed the employee had located new evidence. In the motion for reconsideration, the plaintiff, Ms. Webb, showed that her former law firm had changed attorneys three times within five months. She had kept up to date with the lawsuit. She prompted the attorney when the response to the motion for summary judgment was due. She ¬†even provided an outline of evidence to use in the response. The court noted Plaintiff’s proactive assistance to her attorney. The court found this was sufficient to show the attorney may have erred, but the client did her part.

Regarding the “new evidence,” the judge rightly noted that the new testimony was not actually new. The witness was available prior to the motion for summary judgment. But, the old attorney simply failed to depose that witness. The judge did, however, allow the new attorney to submit an amended response to Defendant’s motion for summary judgment. But, the Judge did not allow discovery, which meant the plaintiff could not depose the helpful witness.

So, in the end, after many months, the Court granted summary judgment. The evidence was still the same, but now, at least the plaintiff’s attorney was able to craft an actual argument based on the limited evidence available. And, it is critical to our system of justice that every person feel s/he had their day in court. Ours is an adversarial system of justice. If one adversary fails, then the entire system fails.