The Florida Bar

Florida Bar Journal

Recent Developments in the Use of Summary Judgment to Resolve Employment Discrimination Cases

L awyers who have practiced employment law for more than a few years have witnessed a dramatic change in the use of summary judgment to resolve employment discrimination disputes. As recently as five years ago, it was not unusual to find courts stating that summary judgment was disfavored and to be used rarely, sparingly, or with special caution in such cases. In the last few years, however, summary judgment has become one of the most common ways to resolve discrimination cases.

Being able to determine as quickly as possible which cases are likely to survive summary judgment and which are not is one of the most valuable skills an employment lawyer can develop in today’s legal environment. While summary judgment is traditionally viewed as a tool to be used by the employer, in many ways it is even more important for a plaintiff’s lawyer to have a firm understanding of the summary judgment standard. Many employment discrimination cases are taken on contingency; the ability to quickly assess the likelihood of surviving summary judgment helps to avoid accepting or pursuing cases with little chance of recovery. Moreover, losing plaintiffs are presumptively responsible for the prevailing defendant’s costs, which may amount to several thousands of dollars.1 I f the plaintiff’s attorney’s assessment of the case is seriously flawed, the plaintiff may also be liable for the defendant’s attorney’s fees.2 T ime spent in advance learning what cases are likely to survive summary judgment will save considerable time, not to mention expense, later.

The Federal Summary Judgment Standard
The federal summary judgment standard is well established.3 Under Fed. R. Civ. P. 56, the party moving for summary judgment bears the initial burden of informing the court of the basis for its motion and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact.4 This burden is a minimal one, and it does not necessarily require the moving party to support its motion with affidavits or other materials negating the non-moving party’s claim.5 Rather, “the burden on the moving party may be discharged by ‘showing’—that is, pointing out to the district court—that there is an absence of evidence to support the nonmoving party’s case.”6

Once the moving party meets its initial burden, the burden shifts to the nonmoving party to go beyond the pleadings and come forward with depositions or other evidentiary materials which show there is a genuine issue of material fact.7 Specifically, it is the nonmoving party’s burden to come forward with evidence on each essential element of his claim sufficient to sustain a jury verdict.8 To overcome a motion for summary judgment, a plaintiff must do more than simply show there is “some metaphysical doubt as to the material facts.” 9 “A mere scintilla of evidence in support of the plaintiff’s position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.”10

Employment Discrimination Cases
At first blush, one would expect the standard for granting or denying summary judgment in employment discrimination cases to be the same as for any other case. Until a few years ago, however, judicial opinions regularly included language suggesting that summary judgment is somehow especially inappropriate in such matters. More recently, the courts have tried to dispel any lingering notion that summary judgment should be applied differently in employment cases than in other matters.

Virtually every circuit has at one time or another expressed the view that summary judgment is disfavored in employment discrimination cases. The District of Columbia Circuit, for example, has said that “in discrimination cases summary judgment must be approached with special caution.”11 The First Circuit has stated that “we must exercise particular caution before sustaining summary judgments for employers on such issues as pretext, motive, and intent.”12 Similarly, the Second Circuit has stated that “an extra measure of caution is merited in affirming summary judgment in adiscrimination action.”13 The Fourth Circuit has stated that summary judgment is “seldom appropriate” in discrimination cases.14 The Fifth Circuit has repeatedly stated that summary judgments “are particularly questionable in cases of employment discrimination.”15 The Seventh Circuit has frequently stated that the summary judgment standard is to be applied with “added rigor” in discrimination cases.16 The Eighth Circuit has stated that “summary judgment should be used sparingly in employment discrimination cases,”17 and the Tenth Circuit has said “summary judgment should seldom be used in employmentdiscriminationcases.”18 Opinions from the 11th Circuit include such remarks as, “[a]s a general rule summary judgment is not a proper vehicle for resolving claims of employment discrimination which often turn on an employer’s motivation and intent,”19 and “summary judgment in employment discrimination cases. . . is especially questionable.”20

Despite these cautionary statements, in practice the courts have seldom refrained from granting summary judgment in any employment case in which the facts warranted it. As a result, it is not unusual to find cases in which the court voices extreme concern about using summary judgment to resolve an employment discrimination dispute at the same time that it affirms summary judgment.21

In more recent cases, the courts have begun to acknowledge expressly what had previously been recognized only as a matter of practice—that summary judgment can and does play an important role in employment discrimination cases. Thus, for example, the Second Circuit recently stated that despite the cautionary language it may have used in earlier decisions, there is no longer any question that “summary judgment remains available for the dismissal of discrimination claims in cases lacking genuine issues of material fact.”22 Similarly, the Fourth Circuit has stated that despite previous admonitions that summary judgment is “seldom appropriate” in employment discrimination cases, in fact “[t]he standards for awarding summary judgment apply equally in discrimination cases, even where the motive or intent of the defendant is at issue.”23 The Seventh Circuit has also disavowed much of its earlier summary judgment rhetoric, stating that “regardless of our inclusion of the phrase ‘added rigor’ in prior cases, we review a district court’s decision to grant a motion for summary judgment on a claim involving issues of employment discrimination as we review any case brought before this court involving the review of a grant of summary judgment.”24
The 11th Circuit en banc directly confronted the cautionary language contained in some of the court’s previous opinions in Chapman v. AI Transport, 229 F.3d 1012 (11th Cir. 2000).The court acknowledged that some of its “opinions from past years purport to announce ‘[a]s a general rule [that] summary judgment is not a proper vehicle for resolving claims of employment discrimination which often turn on an employer’s motivation and intent,’”25 but added that the rule was not consistently followed in the past and that there is “no question that it has not been followed in recent years.”26 The court pointed out that “[s]ummary judgment is hardly unknown, or for that matter rare, in employment discrimination cases, more than 90 percent of which are resolved before trial. . . , many of them on the basis of summary judgment for the defendant.”27 The court concluded that whatever it might have said in the past, “[t]he long and short of it is that the summary judgment rule applies in job discrimination cases just as in other cases. No thumb is to be placed on either side of the scale.”28

While the court’s opinion does disavow language contained in several earlier opinions, it is hardly a radical change in the law. In fact, the conclusion that summary judgment applies with equal force to employment discrimination cases is compelled by Supreme Court precedent. As the 11th Circuit noted, while the Supreme Court has said that questions of fact in job discrimination cases are “both sensitive and difficult” and “[t]here will seldom be ‘eyewitness’ testimony as to the employer’s mental processes,” it has also stated that “none of this means that trial courts or reviewing courts should treat discrimination differently from other ultimate questions of fact.”29 The Supreme Court has made clear that it would be inappropriate to insulate employment discrimination cases from judicial review under the same standards as other civil cases.30

Previous 11th Circuit cases foreshadowed the court’s opinion in Chapman. As early as 1990, the court noted that despite the cautionary language in earlier cases, “summary judgments for defendants are not rare in employment discrimination cases.”31 In Raney v. Vinson Guard Service, Inc., 120 F.3d 1192, 1197 (11th Cir. 1997), the court added that under the then-current state of the law, in order to avoid summary judgment in an employment discrimination case, the plaintiff is “effectively required to put forth her entire case. . . to persuade the court that a reasonable factfinder could rule in the plaintiff’s favor.”

Discrimination Issues
Knowing generally that summary judgment is an appropriate tool to use in employment cases does practitioners little good if they do not know when to use it. Under the right circumstances, summary judgment can, of course, be used to resolve almost any issue that may arise in an employment discrimination case, but some issues common to many cases are especially appropriate for summary resolution.

For example, summary judgment is frequently used to dispose of cases where the plaintiff fails to show that he was treated less favorably than persons outside his protected classification.32 If the plaintiff “fails to identify similarly situated, nonminority employees who were treated more favorably, [the] case must fail because the burden is on [the plaintiff] to establish such disparate treatment as part of [a] prima facie case.”33 Either the plaintiff can identify such comparators or not. If the plaintiff fails to identify a sufficiently similar comparator, and cannot produce any direct evidence of discrimination, summary judgment for the defendant is likely.

Identifying legitimate comparators is not as simple as one might initially assume. In order “to make a comparison of the plaintiff’s treatment to that of nonminority employees, the plaintiff must show that he and the employees are similarly situated in all relevant respects.”34 It is the plaintiff’s burden to show that the comparator is “nearly identical” to the plaintiff “in order to prevent courts from second-guessing employers’ reasonable decisions and confusing apples with oranges.”35

Summary judgment is also frequently used to dismiss cases where the plaintiff fails to offer evidence sufficient to show that the employer’s articulated reason for its action was a mere pretext for discrimination. In this regard, it is important to remember that a plaintiff cannot avoid summary judgment merely by questioning the wisdom of an employer’s decision: An employer may take action against an employee “for good or bad reason without violating federal law.”36 The courts “are not in the business of adjudging whether employment decisions are prudent or fair.”37 The following frequently quoted passage expresses this limitation well:

Federal courts do not sit as a super-personnel department that re-examines an entity’s business decisions. No matter how medieval a firm’s practices, no matter how high-handed its decisional process, no matter how mistaken the firm’s managers, [the laws against discrimination do] not interfere. Rather, our inquiry is limited to whether the employer gave an honest explanation for its behavior.38

It is also important not to confuse “disagreement about the wisdom of an employer’s reason with disbelief about the existence of that reason and its application in the circumstances.”39 Reasonable people may disagree about whether an employer acted correctly or fairly, “but such potential disagreement does not, without more, create a basis to disbelieve an employer’s explanation that it in fact based its decision” on its asserted reasons.40 An employer’s decision

may seem to some to be bad business judgment and to others to be good business judgment, but federal courts do not sit to second-guess the business judgment of employers. Stated somewhat differently, a plaintiff may not establish an employer’s proffered reason as pretextual merely by questioning the wisdom of the employer’s reason, at least not where. . . the reason is one that might motivate a reasonable employer.41

Summary judgment is less likely in cases where evidence of racial or other offensive remarks is available, but even then it is not completely foreclosed. If such evidence is connected to the employment decision at issue it is considered direct evidence, but summary judgment may still be available if the employer can show that it would have reached the same decision even without the unlawful motive.42 In order to overcome direct evidence of discrimination, the employer “must show that its legitimate reason, standing alone, would have induced it to make the same decision.”43

Direct evidence is rare, however: “Only the most blatant remarks, whose intent could be nothing other than to discriminate on the basis of [race]. . . constitute direct evidence of discrimination.”44 Moreover, “[f]or statements of discriminatory intent to constitute direct evidence of discrimination, they must be made by a person involved in the challenged decision”45 and be directly related to that decision. “Remarks by non-decisionmakers or remarks unrelated to the decisionmaking process itself are not direct evidence of discrimination.”46

While derogatory remarks made outside the decision-making process are not direct evidence, they can be introduced to support a circumstantial case.47 A discriminatory remark made by a decisionmaker unrelated to the challenged decision itself or a remark made by a nondecision-maker in the decision-making process may be used to show that the employer generally harbors discriminatory motives. In such cases, whether summary judgment will be granted depends on what other evidence is available to support the plaintiff’s circumstantial case. For example, in Scott v. Suncoast Beverage Sales, Ltd., 295 F.3d 1223 (11th Cir. 2002), the plaintiff produced direct evidence that some two and a half years before the plaintiff was terminated, his supervisor (a coworker at the time) said, “We’ll burn his black ass.”48 The court held that the statement did not constitute direct evidence because it was too remote in time from the challenged decision.49 While the statement could be used to support a circumstantial case, it was insufficient in itself to prevent summary judgment. The court explained that “[a]lthough a comment unrelated to a termination decision may contribute to a circumstantial case for pretext, it will usually not be sufficient absent some additional evidence supporting a finding of pretext.”50 The court ultimately held that in light of the other evidence available, including undisputed evidence that the plaintiff had repeatedly violated his employer’s work rules, the supervisor’s offensive remarks were not sufficient to prevent summary judgment.

Application to Discipline Cases
A few examples will help to illustrate how summary judgment can be used most effectively and what a plaintiff must do in today’s legal environment to avoid summary dismissal of a meritorious claim. The first two involve terminations, but the principles involved apply equally to claims involving demotions, suspensions, involuntary transfers, and other adverse employment actions.51 The others involve promotion claims and apply principles equally applicable to hiring claims.

In order to state a prima facie claim of discriminatory discharge, the plaintiff generally must show “[1] that she is a member of a protected class, [2] that she was qualified for the job from which she was fired and [3] that the misconduct for which she was discharged was nearly identical to that engaged in by an employee outside the protected class whom the employer retained.”52 The first two elements are nearly always present and nearly always uncontested; it is the third that is the source of most disputes. One of the first questions prudent plaintiffs’ attorneys should therefore ask potential clients is whether they are aware of any employees who engaged in conduct similar to theirs but were treated differently. If not, and direct evidence is not available, the claim is not likely to survive summary judgment.

It takes more than a surface similarity between the plaintiff’s conduct and that of the potential comparator to state a prima facie case. In Silvera v. Orange County, 244 F.3d 1253, 1259 (11th Cir. 2001), the plaintiff, who was black, and a white comparator were both employed in public schools and both had arrest records for child molestation. The plaintiff had been arrested four times, twice for battery of his wife, once for lewd assault on a female child, and once for aggravated assault of his son. The comparator had been arrested twice, once for driving under the influence and once for lewd assault on a student while on school property. A jury rendered a verdict in favor of the plaintiff and the district court denied the defendant’s motion for judgment as a matter of law.53 The 11th Circuit reversed, holding that the plaintiff and the comparator were not sufficiently similar to allow any inference of discrimination. The court noted the following differences between the plaintiff and the comparator: First, although they had both been arrested several years earlier for lewd assault on a child, the plaintiff had three additional arrests. Second, the plaintiff’s arrests were for violent assaults while none of the comparators were. Third, the plaintiff’s most recent arrest was only two months before his termination, while the comparator’s most recent arrest was over two years old. Finally, the employer produced evidence that its decisionmakers thought they were bound by a preexisting agreement not to terminate the comparator because of the arrest for lewd assault, and no such agreement (or belief in one by the employer) existed with respect to the plaintiff.

While the 11th Circuit’s reversal could be viewed as second-guessing the jury and the district judge, the court was in fact protecting the employer from being second-guessed. The court explained:

In determining whether employees are similarly situated for purposes of establishing a prima facie case, it is necessary to consider whether the employees are involved in or accused of the same or similar conduct and are disciplined in different ways. The most important factors in the disciplinary context. . . are the nature of the offenses committed and the nature of the punishments imposed. In order to satisfy the similar offenses prong, the comparator’s misconduct must be nearly identical to the plaintiff’s in order to prevent courts from second-guessing employers’ reasonable decisions.54

Even when the plaintiff successfully produces evidence of a valid comparator and thereby establishes a prima facie case, the summary judgment inquiry is still not over. The establishment of a prima facie case merely shifts the burden to the employer to articulate a nondiscriminatory reason for its action. This burden is “exceedingly light.”55 Once the employer meets this burden, the ultimate burden of proof shifts back to the plaintiff to prove that the employer’s articulated reason for its action was a mere pretext. Plaintiffs frequently try to meet this burden by showing that the employer was wrong when it accused the plaintiff of misconduct. While this may seem a logical strategy, it actually misses the entire point of the laws against discrimination. Such laws are aimed solely at preventing discrimination, not at preventing erroneous discharges. An employer is not required to prove that it had good cause for discharging an employee in order to avoid liability under Title VII, only that it had a good faith reason to believe it had a legitimate reason for discharge.56

The Seventh Circuit’s opinion in Jones v. Union Pacific, 302 F.3d 735 (7th Cir. 2002), illustrates this point well. In that case, the plaintiff alleged that he was discharged because of his race. The employer produced evidence that it discharged the plaintiff because an investigation led it to believe he was insubordinate and threatened a company security officer. The plaintiff tried to prove pretext by showing that the confrontation with the officer did not happen in the way the employer described it and was otherwise not his fault. He argued that on summary judgment the court was required to accept his version of the confrontation, and accepting that version, he was provoked and therefore should not have been fired.57 The court rejected this argument and affirmed the order granting summary judgment:

Jones asserts that he was not insubordinate or quarrelsome with Agent Brody. His argument is, in essence, that under the applicable summary judgment standards we must accept his version of the facts as true, and, as such, Union Pacific could have no legitimate reason for firing him. Jones misapprehends the applicable standards. While we do accept his version of the facts as true, the actual issue is not whether Union Pacific’s account of events is correct, rather it is whether Union Pacific honestly believed the report of its officers. “[A]rguing about the accuracy of the employer’s assessment is a distraction. . . because the question is not whether the employer’s reasons for a decision are ‘right but whether the employer’s description of its reasons is honest.’”58

As Jones illustrates, a plaintiff who expends all of his resources trying to show that he did not do what the employer accused him of doing may be wasting his time. Unless he can also show that the employer did not honestly believe the accusations, he will have proved only that the employer was wrong, not that it was acting out of discriminatory motive.59 Mistakes are not unlawful, only discrimination.60

Judicial deference to employer judgment in matters of discharge and discipline is critical to maintaining the balance Title VII was intended to preserve: preventing discrimination without unduly interfering with the employer’s right to manage its workforce. The same deference also applies to selecting and promoting employees.

Application to Hiring/Promotion Cases
In order “to establish a prima facie case of discriminatory failure to promote, a plaintiff must prove: (1) that he is a member of a protected class; (2) that he was qualified for and applied for the promotion; (3) that he was rejected; and (4) that other equally or less qualified employees who were not members of the protected class were promoted.”61 If the plaintiff meets this burden, the employer must then articulate the reasons for its decision to promote someone else. Typically, the employer will produce evidence that the person it selected was in its opinion better qualified than the plaintiff. It is then up to the plaintiff to show that the employer’s articulated reason is a mere pretext for discrimination. The most common approach plaintiffs take is to try to show that despite the employer’s opinion, the plaintiffs are in fact better qualified than the successful candidate.

The 11th Circuit considered such an argument in Lee v. GTE Florida, 226 F.3d 1249 (11th Cir. 2000). The plaintiff in that case argued that she was more qualified than the person actually selected because she had more of the commercial real estate experience that the job in question required. The employer argued that such experience was not as important as the BETTER managerial skills and strategic planning experience that the successful candidate possessed.The plaintiff argued that the conflict should be submitted to a jury, and the district court agreed. After a jury rendered a verdict in favor of the plaintiff and the district court denied a motion for judgment as a matter of law, the employer appealed. The 11th Circuit reversed. The court explained that the dispute was primarily over whether the employer’s assessment of the candidate’s relative qualifications was correct, which by itself does not raise an inference of discrimination:

In a failure to promote case, a plaintiff cannot prove pretext by simply showing that she was better qualified than the individual who received the position that she wanted. A plaintiff must show not merely that the defendant’s employment decisions were mistaken but that they were in fact motivated by sex. We have explained that a plaintiff may not establish that an employer’s proffered reason is pretextual merely by questioning the wisdom of the employer’s reasons, at least not where. . . the reason is one that might motivate a reasonable employer.62

While “evidence showing an employer hired a less qualified applicant over the plaintiff may be probative of whether the employer’s proffered reason for not promoting the plaintiff was pretextual,” in order to prove pretext through a comparison of qualifications, the plaintiff must show that he “was substantially more qualified than the person promoted.”63 Mere “disparities in qualifications are not enough in and of themselves to demonstrate discriminatory intent unless those disparities are so apparent as virtually to jump off the page and slap you in the face.”64 The court explained that this phrase “should be understood to mean that disparities in qualifications must be of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff for the job in question.”65 The court directed that judgment be entered in the employer’s favor because the plaintiff failed to establish that “she was more qualified than [the person promoted], let alone so clearly more qualified for the position than [him] that a reasonable juror could infer discriminatory intent from the comparison.”66

The court rejected a similar failure to promote claim in Cofield v. Goldkist, 267 F.3d 1264 (11th Cir. 2001). The court held that even assuming the plaintiff was more qualified than the person actually promoted, the employer was still entitled to summary judgment because she was not so clearly more qualified as to give rise to an inference of pretext for discrimination:

Cofield cannot. . . establish pretext simply by showing that she is more qualified than Bowen. . . . The relevant inquiry for us. . . is not to judge which employee was more qualified, but to determine whether any disparity between Bowen’s and Cofield’s managerial qualifications is so great that a reasonable fact-finder could infer that Goldkist did not believe Bowen to be better qualified.

* * *

We may safely assume that Cofield was qualified to be a Plant Superintendent at Goldkist. Cofield may even be justified in believing she was more qualified than Bowen for that position. But Cofield’s qualifications are not so superior as to allow a reasonable fact-finder to conclude that Goldkist’s reason for hiring Bowen was pretextual. We will not second guess Goldkist’s decision to emphasize qualifications over length of service.67

As an example of when summary judgment is not appropriate, consider Sledge v. Goodyear Dunlop Tires N.A., 275 F.3d 214 (11th Cir. 2001). In that case, the plaintiff, a black male, met his burden of establishing a prima facie case by showing that whites who were less qualified than him were promoted. He rebutted the employer’s proffered reason for rejecting him- that others were better qualified—by presenting evidence that not only was he more qualified than the white employees promoted ahead of him, but also that his immediate supervisors recommended him for promotion, that the employer repeatedly changed the promotion requirements, and perhaps most tellingly, that only one of the employer’s 107 maintenance mechanics was black. On this record, the court concluded, a reasonable jury could easily find in the plaintiff’s favor, and summary judgment was therefore inappropriate.

Conclusion
Employment discrimination cases today are resolved more often on summary judgment than they are at any other stage of litigation. Knowing how to assess whether a case can be resolved on summary judgment is therefore a critical skill that every employment lawyer needs to develop. From assessing whether to take a case to assessing a case’s ultimate value, the practitioner must keep the federal summary judgment standard, and its application by the courts, foremost in mind. q

1 See Fed. R. Civ. P. 54(d)(1) (“Except when express provision therefor is made either in a statute of the United States or in these rules, costs other than attorneys’ fees shall be allowed as of course to the prevailing party unless the court otherwise directs.”). The rule “establishes a presumption that costs are to be awarded to a prevailing party, but vests the district court with discretion to decide otherwise.” Chapman v. AI Transport, 229 F.3d 1012, 1038 (11th Cir. 2000); see also EEOC v. W&O, Inc., 213 F.3d 600, 620 (11th Cir. 2000).
2 A prevailing defendant in a Title VII action is entitled to recover attorney’s fees if the plaintiff’s claim was “frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.” Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978). While this standard is stringent, it has not prevented the award of fees in appropriate cases. See, e.g., Jerelds v. City of Orlando, 194 F. Supp.2d 1305 (M.D. Fla. 2002); Scelta v. Delicatessen Support Services, Inc., 146 F. Supp.2d 1255 (M.D. Fla. 2001).
3 The state standard is different. For a discussion of the differences, see T. Logue and J. Soto, Florida Should Adopt The Celotex Standard for Summary Judgments, 76 Fla. B.J. 20 (2002).
4 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
5 Id.
6 Id.
7 Id. at 324.
8 Id. at 322–23; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).
9 Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
10 Anderson, 477 U.S. at 252.
11 Aka v. Washington Hosp. Center, 116 F.3d 876, 880 (D.C. Cir. 1997).
12 Straughn v. Delta Air Lines, Inc., 250 F.3d 23, 34 (1st Cir. 2001).
13 Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 69 (2d Cir. 2001).
14 Ballinger v. North Carolina Agric. Extension Serv., 815 F.2d 1001,1004 (4th Cir. 1987) (internal citation omitted).
15 E.g., Waltman v. Int’l Paper Co., 875 F.2d 468, 482 (5th Cir. 1989); Bullard v. OMI, Georgia, Inc., 640 F.2d 632, 634 (5th Cir. 1981).
16 Webb v. Clyde L. Choate Mental Health and Dev. Ctr., 230 F.3d 991, 997 (7th Cir. 2000) (“We apply this standard with added rigor in employment discrimination cases, where intent and credibility are crucial issues.”); McCoy v. WGN Cont’l Broad. Co., 957 F.2d 368, 370-71 (7th Cir. 1992) (the summary judgment standard “is applied with added rigor in employment discrimination cases, where intent is inevitably the central issue.”). In earlier cases, the court went so far as to state that summary judgment is “notoriously inappropriate” for resolving discrimination claims. Stumph v. Thomas & Skinner, Inc., 770 F.2d 93, 97 (7th Cir. 1985) (citations and internal quotations omitted).
17 Luciano v. Monfort, Inc., 259 F.3d 906, 908 (8th Cir. 2001).
18 O’Shea v. Yellow Technology Services, Inc., 185 F.3d 1093, 1098 (10th Cir. 1999).
19 Delgado v. Lockheed-Georgia Co., 815 F.2d 641, 644 (11th Cir. 1987).
20 Batey v. Stone, 24 F.3d 1330, 1336 (11th Cir. 1994) (internal quotation and citation omitted).
21 See, e.g., Holtz, 258 F.3d 62 (granting summary judgment despite statement that it is to be used with “an extra measure of caution”); Luciano, 259 F.3d 906 (granting summary judgment despite statement that it should be used “sparingly”).
22 Holtz, 258 F.3d at 69; see also Abdu- Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001) (“It is now beyond cavil that summary judgment may be appropriate even in the fact-intensive context of discrimination cases.”).
23 Walker v. MCI Telecommunications Corp., 187 F.3d 633 (4th Cir. 1999) (Table).
24 Alexander v. Wisconsin Dept. of Health and Family Services, 263 F.3d 673, 680-681 (7th Cir. 2001). its own estimate, the court had used the phrase “added rigor” in some 30 published opinions. Id. at 681 n.2. Without a trace of irony, the court acknowledged that “it [was] understandable how one might infer from our regular use of this phrase that we meant to communicate a more stringent standard to be used in reviewing employment cases.” Id. at 681.
25 Id. at 1025, quoting Delgado v. Lockheed-Georgia Co., 815 F.2d 641, 644 (11th Cir. 1987).
26 Chapman, 229 F.3d at 1025.
27 Id. at 1025, quoting from Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1396 (7th Cir. 1997) (citations omitted). The court obtained this statistical estimate from the following sources: Lewis Maltby, Employment Arbitration: Is it Really Second Class Justice?, Disp. Resol. Mag., Fall 1999, at 23-24 (“the majority of employment cases, some 60 percent, are resolved by summary judgment.”); Administrative Office of the U.S. Courts, Judicial Business of the United States Courts: 1999 Report of the Director, p. 160-62 (94.09 percent of employment civil rights cases are resolved before trial).
28 Chapman, 229 F.3d at 1026. The district courts have been quick to notice the 11th Circuit’s approval of summary judgment in employment cases. See, e.g., Couts v. Beaulieu Group, LLC, WL 22429695 (N.D. Ga. 2003); Davis v. Qualico Miscellaneous Inc., 161 F. Supp.2d 1314, 1319 (M.D. Ala. 2001); Johnston v. Henderson, 144 F. Supp. 1341, 1349 (S.D. Fla. 2001).
29 Id., quoting from St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 524 (1993), in turn quoting from Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 716 (1983).
30 St. Mary’s, 509 U.S. at 524; see Reeves v. Sanderson Plumbing, 530 U.S. 133, 148 (2001); Chapman, 229 F.3d at 1026.
31 Earley v. Champion Int’l, 907 F.2d 1077, 1081 (11th Cir. 1990).
32 See, e.g., Maynard v. Board of Regents, 342 F.3d 1281, 1289 (11th Cir. 2003) (In order for a discharged employee “[t]o satisfy the prima facie requirement, [he] must show that a non-minority [employee] in similar circumstances was retained …”); Knight v. Baptist Hosp. of Miami, Inc., 330 F.3d 1313, 1316 (11th Cir. 2003) (affirming summary judgment on ground that plaintiff failed to “establish a prima facie case because she [could] not show that similarly situated employees of other races were treated better”); Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997) (As part of a “plaintiff’s prima facie case, the plaintiff must show that his employer treated similarly situated employees outside his classification more favorably than [himself].”).
33 Jones v. Bessemer Carraway Medical Ctr., 137 F.3d 1306, 1311 (11th Cir.), opinion modified on other grounds, 151 F.3d 1321 (11th Cir. 1998); accord, Holifield, 115 F.3d at 1562.
34 Holifield, 115 F.3d at 1562 (emphasis added); see Knight, 330 F.3d at 1316.
35 Silvera v. Orange County, 244 F.3d 1253, 1259 (11th Cir. 2001) (citations and quotations omitted).
36 Combs v. Plantation Patterns, 106 F.3d 1519, 1528 (11th Cir. 1997), cert. denied, 522 U.S. 1045 (1998).
37 Chapman, 229 F.3d at 1030, quoting from Damon v. Fleming Supermarkets, 196 F.3d 1354, 1361 (11th Cir. 1999). See also Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181, 1187 (11th Cir. 1984) (an “employer may fire an employee for good reason, bad reason, reason based on erroneous facts, or for no reason at all, as long its action is not for discriminatory reason.”).
38 Chapman, 229 F.3d at 1030, quoting Elrod v. Sears Roebuck & Co., 939 F.2d 1666, 1470 (11th Cir. 1991), in turn quoting Mechnig v. Sears, Roebuck & Co., 864 F.2d 1359, 1365 (7th Cir. 1988).
39 Combs, 106 F.3d at 1543 (emphasis in original); see Chapman, 229 F.3d at 1030.
40 Id. (emphasis in original).
41 Id.
42 See Price Waterhouse v. Hopkins, 490 U.S. 228, 276 (1989) (O’Connor, J., concurring in the judgment) (“in order to justify shifting the burden on the issue of causation to the defendant, a disparate treatment plaintiff must show by direct evidence that an illegitimate criterion was a substantial factor in the decision. . . . Where a disparate treatment plaintiff has made such a showing, the burden then rests with the employer to convince the trier of fact that it is more likely than not that the decision would have been the same absent consideration of the illegitimate factor”); accord Desert Palace v. Costa, 123 S. Ct. 2148, 2151 (2003).
43 Steger v. General Elec. Co., 318 F.3d 1066, 1075 (11th Cir. 2003); see Speedy v. Rexnord Corp., 243 F.3d 397, 402 (11th Cir. 2001) (“[P]roving that the same decision would have been justified absent a retaliatory motive is not the same as proving the same decision would have been made absent the motive.”).
44 Bass v. Board Of County Com’rs, Orange County, 256 F.3d 1095, 1106 (11th Cir. 2001), quoting from Damon v. Fleming Supermarkets, 196 F.3d 1354, 1358 (11th Cir. 1999).
45 Id., quoting from Trotter v. Bd. of Trustees, 91 F.3d 1449, 1453–54 (11th Cir. 1996).
46 Id., quoting from Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998).
47 See Ross v. Rhodes Furniture, Inc., 146 F.3d 1286 (11th Cir. 1998). Evidence of such remarks, however, is generally not alone sufficient to support a discrimination claim. Rojas v. Florida, 285 F.3d 1339, 1343 (11th Cir. 2002); Manning v. Chevron Chemical Co., 332 F.3d 874, 881-884 (5th Cir. 2003).
48 Scott, 295 F.3d at 1227.
49 Id. at 1227–28. Accord, Vesprini v. Shaw Contact Flooring Services, Inc., 315 F.3d 37, 41–42 (1st Cir. 2002) (temporal gap of one and one-half to two years between alleged discriminatory remarks and the defendants’ action “severely undermines the reasonableness of any inference that there existed a causal relationship between the remarks and the subsequent decisionmaking” and was therefore insufficient to prevent summary judgment); Staples v. Pepsi-Cola General Bottlers, Inc., 312 F.3d 294, 301 (7th Cir. 2002) (statement that was made two years before challenged employment decision was too “temporally removed” to constitute direct evidence or to prevent summary judgment); Conley v. Vill. of Bedford Park, 215 F.3d 703, 711 (7th Cir. 2000) (comments made two years prior to the adverse employment action were “too distant temporally” to constitute direct evidence or to prevent summary judgment).
50 Scott, 295 F.3d at 1229 (emphasis in original). Accord, Rojas, 285 F.3d 1339 (affirming summary judgment despite evidence of sexist remark because the remark was not related to the plaintiff’s discharge and other evidence showed that the plaintiff violated work rules).
51 For a general discussion of what constitutes an adverse employment action, see L. Kraftchick and T. Ronzetti, Dodging the Extra Arrow, Recent Developments in the Law of Retaliation, 75 Fla. B.J. 26, 28–30 (2001).
52 Williams v. Motorola, Inc., 303 F.3d 1284, 1293 (11th Cir. 2002).
53 Although the evidence that a “district court considers when ruling on a motion for judgment as a matter of law is different from the evidence considered when the court rules upon a summary judgment motion, the ‘standard for granting summary judgment mirrors the standard for judgment as a matter of law, such that the inquiry under each is the same.’” Chapman, 229 F.3d at 1025 n.11, quoting from Reeves, 530 U.S. at 150.
54 Silvera, 244 F.3d at 1259 (citations and quotations omitted).
55 Bui v. Haley, 321 F.3d 1304, 1320 (11th Cir. 2003).
56 See, e.g., Chapman, 229 F.3d at 1030; Combs, 106 F.3d at 1543.
57 Id. at 744.
58 Id. (citations omitted).
59 See, e.g., Standard, 161 F.3d at 1333 (“The heart of the pretext inquiry is not whether the employee agrees with the reasons that the employer gives for the discharge, but whether the employer really was motivated by those reasons.”); Giannopoulos v. Brach & Brock Confections, Inc., 109 F.3d 406, 411 (7th Cir. 1997) (“the pertinent question is not whether [the employer] was right to believe that [the plaintiff engaged in the alleged misconduct] and that as a result [the plaintiff] should be discharged, but whether his belief that this was so genuine or whether this rationale was merely a pretext for. . . discrimination.” A plaintiff “cannot avoid summary judgment with an unadorned claim that a jury might not believe [the employer’s] explanation for his termination; he must point to evidence suggesting that [the employer] did not honestly believe that explanation.”); Ikejiani v. Dade County Public Health Trust, 2003 WL 1572333 (S.D. Fla. 2003) (On summary judgment, the “question. . . is not what actually transpired. . . , nor is it whether [the employer] appropriately dealt with what actually transpired. The question is whether [the employer] acted in good faith in determining what transpired on that day and whether it acted out of racial animus.”).
60 See, e.g., Alexander v. Fulton County, Ga., 207 F.3d 1303, 1339 (11th Cir. 2000) (“A plaintiff must show not merely that the defendant’s employment decisions were mistaken but that they were in fact motivated by race.”).
61 Denney v. City of Albany, 247 F.3d 1172, 1183 (11th Cir. 2001), quoting from Combs, 105 F.3d at 1539 n.11. The standards for a prima facie case of failure-to-hire are similar: “The burden is on the plaintiff to show that she is a member of a protected class, that she applied for and was qualified for an available position, that she was rejected, and that the defendant filled the position with a person outside of the protected class.” Walker v. Prudential Property and Cas. Ins. Co., 286 F.3d 1270, 1274–75 (11th Cir. 2002). There is some conflict as to whether plaintiffs must show that they are merely qualified for the position or as qualified as the person selected. The conflict seemed to be resolved in Walker v. Mortham, 158 F.3d 1177, 1185 (11th Cir. 1998), cert. denied, 120 S. Ct. 39, 145 L. Ed. 2d 36 (1999), when the court held that plaintiffs need only prove that they are merely qualified, but in Denney, a more recent case, the court stated that plaintiffs still must show they are as qualified as the successful applicant to establish a prima facie case. Denney, 247 F.3d 1172, 1183. See Etienne v. Muvico Theaters, Inc., 2003 WL 21184268 (S.D. Fla. 2003).
62 Lee, 226 F3d at 1253.
63 Id. at 1254.
64 Id., quoting from Deines v. Texas Dept. of Protective and Regulatory Servs., 164 F.3d 277, 280 (5th Cir. 1999).
65 Id. at 1253–54.
66 Id. at 1255.
67 Id. at 1268-69 (citations omitted). Accord, Green v. Miami-Dade, 2003 WL 22331877 (S.D. Fla. Sep. 9, 2003); LeBlanc v. TJX Companies, Inc., 214 F. Supp.2d 1319 (S.D. Fla. 2002) (Plaintiff’s assertion that there was “no way someone with [his] level of experience and education could receive such a low score” on a promotion evaluation was insufficient to show that he had been discriminated against.); Norrell v. Waste Away Group, Inc., 2003 WL 681968 (M.D. Ala. 2003) (“[T]he standard for addressing relative qualifications in the 11th Circuit requires a plaintiff to prove that he or she was ‘substantially more qualified than the person promoted’ in order to establish pretext.”); Gaddis v. Russell Corp., 242 F. Supp.2d 1123 (M.D. Ala. 2003) (“Although the Plaintiff produced some evidence of her advantageous qualities—a graduate degree, positive remarks from superiors, and training new employees on the computer software—she has not established that her qualifications were so superior to those of [the employees promoted] that a reasonable juror could infer discriminatory intent from a comparison of their respective credentials.”); Rogers-Libert v. Miami-Dade County, 184 F. Supp. 2d 1273, 1280 (S.D. Fla. 2001) (“The issue is not which employee was more qualified, but whether there was such a disparity between [the plaintiff’s] and [the successful candidate’s] qualifications that no reasonable fact-finder could believe that” the latter could be selected over the former (citations omitted)).

Lee A. Kraftchick is an assistant county attorney for Miami-Dade County and has been head of its labor section since 1984. Mr. Kraftchick was a law clerk to the late Judge C. Clyde Adkins, chief judge of the U.S. District Court for the Southern District of Florida. He is a graduate of the University of Miami School of Law.

This column is submitted on behalf of the Labor and Employment Law Section, Cathy J. Beveridge, chair, and Frank E. Brown, editor.