Defeating a motion for summary judgment is ideally not a single moment in employment litigation. This article is a field guide of practical strategies, favorite citations, and framing techniques to defeat these motions from a case’s inception.

CASE SELECTION AS SUMMARY JUDGMENT STRATEGY

The single most important tool to defeat summary judgment is to choose a case that is built to last. Begin by assuming the defendant will entirely contradict the would-be client’s account of what occurred. This isolates what is known and what must be gathered and helps to assess how a case may fare, even if the “unknowns” develop more favorably for the defense during discovery. The time to identify the reason given for termination and who the decisionmakers were is before, not after, a case is filed. If all of the written evidence is in the hands of the would-be defendant, and all of the potential witnesses are on its payroll, that all-too-common reality needs to be faced immediately. Third parties should be interviewed swiftly. Examining a case in this way demonstrates how much depends on items fairly characterized as risky versus how much is already fixed and able to be probed.

Consider a client who believes race was the cause of her termination, because she was the top-performing salesperson in her department. Compare a second woman claiming she was sexually assaulted by her boss one-on-one. Assuming the employer will dispute both claims, the two potential matters will look very different at summary judgment. The former will require substantial written discovery and carries the potential for a business judgment defense, fabrication of evidence, or the plaintiff simply being wrong about her relative performance. There are many “known unknowns.” The latter case, by contrast, can be contradicted by the harasser’s denial, but such a dispute should equate to the magic words — motion denied. The testimony of the second potential claimant may be all that is needed to prevail. This is not to say that the harassment case will prevail at trial. But it is pivotal to enter a matter having identified the unknowns in order to get to trial in the first place.

The next step is to consider if the case involves direct evidence or burden shifting, and the obstacles which will emerge in each situation. As to each case, sources can be used to reverse-engineer a summary judgment win. Case support is best considered before representation is undertaken and should be the focus before pleading and during discovery. In short, winning cases are built backward, from case law that points to the desired outcome and after careful consideration of the unknowns.

CLAIM SELECTION: THE BATTLEFIELD MATTERS

The second most powerful arrow in the quiver of a plaintiff’s lawyer — after deciding whether to fight at all — is getting to pick what will be contested and where. The choice of claim(s) and forum can be outcome-determinative. State and federal laws differ in many ways. The size of the employer that may be sued, whether individuals may be named, whether exhaustion of administrative remedies is required, whether statute of limitation shorteners may apply — sometimes even the causal standards differ. For example, there is no parallel in federal law regarding Michigan’s ban on height and weight discrimination.

When it comes to disability law, federal law does not require a written request for accommodation and is forgiving as to what must be said to trigger protections;¹ state law requires a written request on a short timeline.² The ADA Amendments Act of 2008 substantially reduced the burden on the plaintiff in proving she has a disability. Morrissey v Laurel Health Care Co.³ is an example of a case in which the court applied the old standard, and dismissed the case on summary judgment, only to be reversed.

With regard to sex harassment, certain affirmative defenses available in federal cases do not exist as to state law claims. Under Faragher v. City of Boca Raton⁴ and Burlington Industries, Inc. v. Ellerth,⁵ an employer may avoid vicarious liability for a supervisor’s hostile work environment harassment if no tangible employment action occurred (such as a classic hostile environment claim without termination), by proving that the employer took steps like adopting policies and training, and acting on them timely, and the employee unreasonably failed to take advantage of them. This is a true affirmative defense that can dispose of federal claims at summary judgment. It does not apply in Michigan.⁶

Individual liability also needs to be explored before filing, as there are many nuances that can create positive or unfortunate momentum at summary judgment. For example, it may be wise to include personal liability assault and battery claims where applicable. Winning as to intentional torts may not shift fees, but these claims often present clean and easy questions of fact for summary judgment (Defendant did or did not touch Plaintiff). Of course, not all claims can be pled against an individual. For claims arising under 42 U.S.C. § 1983, such as First Amendment retaliation cases or Equal Protection violations, personal liability for damages will depend on qualified immunity, essentially whether the wrong at issue was clearly established as a constitutional violation.⁷ Supervisors are generally liable under Elliott-Larsen.⁸ For Title VII claims, individual liability lies only for injunctive relief (essentially, these are treated as official capacity claims).⁹ Most courts hold that the Family Medical Leave Act does not afford individual liability for public employees,¹⁰ but the opposite is true under the Fair Labor Standards and Equal Pay Acts.¹¹

THE CORE CASES: THE TRUSTIEST ARROWS IN THE QUIVER

While case and claim/forum selection are the plaintiff lawyer’s most powerful tools, success at summary judgment also depends on a disciplined assessment of the law that will control the case. Ideally, a case should be winnable at the moment of filing, assuming it will be disputed in full, because of precedent already in hand. Every case needs development, but by choosing cases with the end in mind, discovery can be shaped around what has proven to be a winning formula elsewhere.

OVERCOMING SUMMARY JUDGMENT USING DIRECT EVIDENCE

The most dependable means of defeating summary judgment in retaliation and harassment (both state and federal) cases is developing direct evidence. This could include a decision-maker telling the plaintiff, “We need someone thinner in this role,” or “We need to youth-enize our workforce.” Assuming the defendant will deny saying these things, and the plaintiff will testify they were said, a credibility dispute arises, precluding resolution at summary judgment. The defense’s only option is to try to trivialize the comments or to argue about who said them and when.

Overcoming an argument that a non-decision-maker cannot provide direct evidence
Remarks by anyone who “may have influenced” the decision may constitute direct evidence.¹² Lower-level supervisors who give negative reviews or issue write-ups can supply the discriminatory animus necessary to prevail, even where the senior supervisor exercised independent judgment and/or made independent inquiry.¹³ Discovery should proceed accordingly. Overcoming arguments that direct evidence comments came too late

Sometimes it is claimed that “direct” evidence must be generated before the termination decision. This is incorrect.¹⁴ Seek out both pre- and post-termination comments in discovery.

Overcoming “stray” remarks defense
Reaching the conclusion that damning remarks are merely “stray” requires weighing evidence against the nonmovant and should not be permitted. That said, this defense is regularly raised on summary judgment. Develop a rich evidentiary record in context to defeat it. “[W]here the plaintiff presents evidence of multiple discriminatory remarks or other evidence of pretext, we do not view each discriminatory remark in isolation, but are mindful that the remarks buttress one another.”¹⁵ Martin v. Langford¹⁶ is a plaintiff-friendly example of a court refusing to rule based on the “stray-ness” of a remark. The terminating supervisor stated the plaintiff was unsympathetic, “that maybe this was due to her religion, because Islam is unsympathetic.”¹⁷

When discovery is complete, be sure to frame the “stray-ness” question correctly. Statements are always to be judged in the light most favorable to the nonmovant, drawing all reasonable inferences in her favor, and the question is whether, based on the statement, any reasonable jury could conclude that plaintiff’s protected classification was a motivating factor. This does not require telling the plaintiff, “You are fired because of [protected category].”¹⁸ Furthermore, in DeBrow v. Century 21 Great Lakes, Inc., Michigan’s Supreme Court held that a single comment could be sufficient, with the highly quotable reminder: “the trial court cannot make factual findings or weigh credibility in deciding a motion for summary disposition;” the dispute over the “stray-ness” of a remark is “for the finder of fact to consider.”¹⁹

DEFEATING SUMMARY JUDGMENT USING BURDEN SHIFTING

To prove discrimination circumstantially, practitioners rely on the McDonnell Douglas burden-shifting test.²⁰ Most cases readily satisfy the first elements of the test so that the fight focuses on the employer’s proffered explanation for termination, how similarly others were treated, and plaintiff’s evidence that the reason given for adverse action was a pretext for retaliation or discrimination. One of the most-cited cases about who is “similar enough” is Ercegovich v. Goodyear Tire & Rubber Co.,²¹ which held that being “similar” does not require being the same. But plan for robust discovery on comparators to frame the fight ideally. The very question, “Whether the comparison between similarly situated individuals is sufficiently relevant is itself a jury question.”²²

When it comes to arguing pretext, frame the burden appropriately: “In order ‘to survive summary judgment, a plaintiff need only produce enough evidence to ... rebut, but not disprove, the defendant’s proffered rationale.’”²³ Moreover, “[t]his burden is not heavy.”²⁴ Below are proven winning paths to rebutting the employer’s given reason for an adverse job action. Again, these factors are best considered at the point of case selection to determine if a case can survive summary judgment, and then they should be fully developed throughout discovery:

• Lack of prior discipline for same conduct – Plaintiff’s own prior experience of not being disciplined for conduct that is later used to terminate may prove pretext.²⁵
• Violating internal policies – An employer’s departure from policy may be evidence of pretext.²⁶ Statements “made in violation of store policy” or departure from company policy suggest “there was a retaliatory motive.”²⁷
• Not affording progressive discipline – A subcategory within the larger context of violating internal policies, the “failure to uniformly apply a progressive discipline policy can be evidence of pretext, especially when the company asserts that policy as a rationale for the employee’s termination.”²⁸
• Failure to document – Lack of personnel file documentation about an issue and failing to discuss an alleged performance issue with the employee before firing him allows an inference of pretext.²⁹
• Expert testimony – “[E]xpert testimony suggesting that [plaintiff] acted reasonably during [allegedly terminable] incidents, and in accordance with local [nursing] standards” may allow an inference of pretext.³⁰
• Arbitration decisions – A non-binding arbitration decision that the plaintiff did not violate policy allowed an inference of pretext.³¹
• Waiting too long to discipline – A “prolonged delay [two months] between [the defendant’s] discovery of [plaintiff’s admitted] policy violations and her termination ... undercuts the company’s proffered reason for its adverse employment action,” creating a question of fact as to pretext.³²
• Shortcutting a performance improvement plan (PIP) – If a warning or PIP has a stated duration, and the employee is fired sooner than that (with protected conduct in between), “the adverse employment action is unlike the action previously contemplated or does not occur on the schedule previously laid out, then the temporal proximity of the adverse action to the protected conduct is certainly evidence of causation.”³³
• Biased remarks – “[D]iscriminatory remarks, even by a non-decision-maker, can serve as probative evidence of pretext,” including those that were not considered outright “direct” evidence.³⁴
• Adding reasons for adverse action mid-case – Adding reasons for an adverse employment action as the case develops may create sufficient doubt to give issue of pretext to a jury.³⁵ This is a subcategory of broader case law that holds shifting explanations may prove pretext.³⁶
• Hiring after RIF – Courts may look up to two years after a layoff due to stated economic concerns for evidence that the cost saving was merely pretext.³⁷
• “Lost” documentation – The inability to produce original evaluation/ ranking/rating forms in a layoff supports a triable question of fact as to causation.³⁸
• Training after supposed terminable offense – Continuing to train the plaintiff when the managers had negative reports about attitude and only documenting the issue shortly before termination is evidence of pretext.³⁹
• Not considering demotion first – Another fact that may contribute to a finding of pretext occurs where an employer “did not consider reasonable alternatives to demotion.”⁴⁰
• Corrective steps after plaintiff reports an issue – Actions the employer takes after and in response to a plaintiff’s protected conduct to correct the issue may be circumstantial evidence of a motive to retaliate.⁴¹
• Temporal proximity – “When an employer takes an adverse action very soon after learning of an employee’s protected activity, the temporal proximity alone may be sufficient to establish the causation element.”⁴² The shorter the better, but for example, Rogers v. Henry Ford Health Sys.⁴³ held that a roughly two-month period between the employee’s protected activity and the material adverse event was, alone, “sufficient temporal proximity to establish a causal connection.”⁴⁴ Rymal v. Baergen, 262 Mich. App. 274, 314 (2004), found the temporal proximity between October 1999 and March 2000 events was evidence of pretext. Case law is replete with other winning facts for plaintiffs. Every win can be a blueprint for a subsequent triumph on a new client’s similar facts. Case selection and issue framing based on known winners maximizes the odds of defeating summary judgment.

CONCLUSION

Summary judgment casts a long shadow over employment litigation. Yet the core principles remain: Credibility determinations, disputes over motive, and competing inferences belong to juries, not judges. Defeating summary judgment rarely turns on a single brilliant argument in a brief. More often, it is the result of disciplined work done months earlier: in careful case selection, thoughtful forum selection and claim framing, strategic discovery, and a clear understanding of the legal standards that govern — before they are needed at oral argument.