Rates of Dismissal by Summary Judgment

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Rates of Dismissal by Summary Judgement in Employment Discrimination Cases

Rates of Dismissal by Summary Judgement in Employment Discrimination Cases

This study was a featured article in the Atlanta Journal-Constitution on Oct 18, 2013. Read the original article.

Justice at Work is an ongoing initiative with the primary purpose of protecting litigants’ rights to a trial by a jury of their peers. In an effort to further enhance Justice at Work’s mission, a study was conducted to ascertain the current rate of dismissal via summary judgement for plaintiffs in employment discrimination cases. Accordingly, the data revealed the rate at which employment plaintiffs’ cases were summarily adjudicated in 2011 and 2012 in the Northern District of Georgia.

Methodology: This study evaluated all employment discrimination cases in which an order for summary judgement had been issued in 2011 and 2012, wherein defendants moved for summary judgement on at least a portion of the employment discrimination claim(s) in each case. From this group of cases, the data was further limited by focusing upon those cases in which the litigant was represented by counsel at the time a response to the defendant’s motion for summary judgement was filed with the court, in an effort to gauge the rate of claim dismissal when litigants had the benefit of counsel to navigate the complexities of the Federal Rules of Civil Procedure and motions practice generally.

In order to streamline data collection, Justice at Work collaborated with a technology firm to develop a program that utilized an automated search function that would enter the Federal Judiciary’s Case Management/Electronic Case Files system (“CM/ECF”) to retrieve all dockets within the parameters dictated by the user. For this study, a search was conducted for all dockets for employment discrimination case types (suit types 442 and 445 as reflected on case docket sheets in PACER[1]) with any case activity occurring in years 2011 and 2012 in the Northern District of Georgia.

Phase I

The dockets were organized into an authorities database, and a Phase I analysis was performed in which the dockets were reviewed via a text search that was utilized to locate all cases in 2011 and 2012 in which an order upon the defendant’s summary judgement motion was issued. Frequently, orders followed a Report & Recommendation[2] (“R&R”) issued by a Magistrate Judge, and accordingly, the R&R’s and orders were manually downloaded from the CM/ECF system. After collection, the R&R’s and orders were organized into a database in which each case was classified by name, citation, type (e.g. “race”), whether the motion was granted or denied (in full or in part) per the docket text, the Magistrate Judge and District Court Judge assigned to the matter and whether the R&R, where applicable, was adopted by the District Court. Orders were excluded that were entitled “Order on Motion to Dismiss, or in the Alternative, Motion for Summary Judgement,” when the Rule 12 Motion to Dismiss standard of review was used to adjudicate the claims.

Phase II

After organization of the R&R’s and orders in the authorities database, a Phase II analysis was conducted, in which each R&R and order was separately reviewed for the actual distinct claims existing for summary adjudication. The authors found this necessary in an effort to review all discrimination claims raised, as, for example, a case classified as simply “Race” or “Sex,” etc., on the docket frequently includes other discrimination claim types brought in conjunction with the primary classification type. Accordingly, the actual claims in existence at the time of summary judgement were extracted from the text of the R&R’s and orders, as well as the claims moved upon by the defendant(s) at summary judgement. Finally, the claims that were dismissed or survived were separately notated in the authorities database.

Phase III

In Phase III, the authors reviewed not only the rates of survival amongst the entire collection of cases, but also reviewed specific case types to determine the likelihood of survival at summary judgement. To the extent feasible, cases decided upon grounds such as timeliness, procedural grounds, failure to exhaust administrative remedies and estoppel were excluded from this secondary analysis of the specific case types. Dismissal and survival rates of the various District Court Judges and Magistrates, where applicable, were also included for each case type.

Phase IV

Finally, in Phase IV, the authors undertook a review of discrete claim types in the two most prevalent case types: sex discrimination and race discrimination. In this phase, the most commonly appearing disparate treatment claims arising under these case types were reviewed for survival rates (e.g. discriminatory termination, failure to promote, etc.), as well as claims for hostile work environment. Furthermore, as the case types provide demographic information relevant to the form of discrimination, this demographic information was analyzed as well. From this data, the likelihood of success for the various demographics that were represented in the cases was calculated in accordance with the proportion of cases being brought by the particular demographic.

1 PACER is the commonly-used acronym for “Public Access to Court Electronic Records,” a service that provides online access to U.S. Appellate, District and Bankruptcy Court records. See http://www.pacer.gov. 2 In the Northern District of Georgia, the Court has designated the Magistrate Judges to conduct hearings and submit disposition recommendations to the full extent allowed by law in, inter alia, cases containing a claim under Title VII or 42 U.S.C. § 1981. See 28 U.S.C. § 636(b); NDGA Standing Order No. 08-01, (June 12, 2008), http://www.gand.uscourts.gov/pdf/Standing_Order_08-01.pdf. Accordingly, a large portion of the District Court orders reviewed in this study follow a Report & Recommendation issued by the Magistrate Judge.

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