Employment Discrimination Litigation: The Big Picture. In recent years employers in the United States have been subject to a tidal wave of civil employment discrimination litigation initiated by employees, former employees, disappointed job applicants, and others. The overwhelming bulk of employment discrimination cases arise out of discharges, layoffs, or other employment terminations, and the most common claim is a claim alleging a discriminatory discharge. Employers win about 80% of these cases, but claimants prevail on about 20% of all claims asserted. For all practical purposes, a typical case may be resolved or won at one of four different steps in the processing of the case: prior to a formal claim being filed; in front of a state or federal investigative agency (such as the EEOC); on summary judgment in court; or at trial in court. Employers generally do much better during the first three steps than they do at trials. This is because most trials are jury trials, and employers win only about half of all employment discrimination jury trials. Also, when employers lose jury trials, the verdicts against employers tend to be big.

     Summary Judgment. The summary judgment step in Court litigation has become a very important step for employers because (1) many cases are not resolved prior to summary judgment, (2) summary judgment is usually an employer's last chance to win a case without a trial, and (3) many employers have won many cases on summary judgment. In short, summary judgment has proven to be a very difficult step for many employment discrimination claimants to get by. This has been particularly true since the United States Supreme Court's 1993 decision in St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993), that a discriminatory discharge claimant has the burden of proving both that the employer's stated reason for the discharge is false and that illegal discrimination was the real reason for the discharge.

     The Hidalgo Case. A First Circuit decision shows how powerful the summary judgment weapon has become for employers. In Hidalgo v. Overseas Condado Insurance Agencies, Inc., -- F.3d -- (1st Cir. 8/11/97), the United States Court of Appeals for the First Circuit affirmed a summary judgment against a claimant in an age discrimination case. The claimant alleged that in March, 1993, several months before his sixty-fifth birthday in September, 1993, he was told by his employer that he was expected to retire when he turned sixty-five, that later he refused to so retire, and that his job was then eliminated when he turned sixty-five. The employer explained that the claimant's job was eliminated because (1) his division had been unprofitable for three years and therefore had to be absorbed by other company operations, and (2) the claimant had not been getting along with other important brokers and agents. The employer also noted that it had offered in September, 1993 to continue the claimant's employment in a different, commission-based job. In answer to this the claimant introduced evidence to show that the claimant was the only highly paid person in a division of only three people, that the claimant had never been informed of any alleged unprofitability of his division, that the company had not proved the division was unprofitable, and that the claimant's last review in January, 1993, had been an excellent review and said that he got along well with others in his work relationships.

     The First Circuit held on this evidence that although the claimant had introduced enough evidence to show that he was qualified for his job and that the employer's explanations for his job elimination were suspect, the claimant had not introduced evidence sufficient to prove that the real reason for his dismissal was age discrimination. The court said that proof the employer in March had expected the employee to retire in September was not proof that in September the employer had eliminated the employee's job because of age-related animus. The court said that the only inference the claimant's evidence supported "without improper speculation" was that the employer timed its job elimination to dovetail with the employee's normal retirement date, which "would be entirely appropriate."

     In the course of its decision, the First Circuit explained as follows (other cites and formatting omitted): "The ADEA does not stop a company from discharging an employee for any reason (fair or unfair) or for no reason, so long as the decision to fire does not stem from the person's age. Courts may not sit as super personnel departments, assessing the merits--or even the rationality--of employers' nondiscriminatory business decisions." "A mere showing that the employer's articulated reason may shield another (possibly nondiscriminatory) reason does not create a dispute of material fact sufficient to withstand summary judgment." "The material creating the factual dispute must herald the existence of definite competent evidence fortifying the plaintiff's version of the truth. Optimistic conjecture or hopeful surmise will not suffice. Arguments based largely upon improbable inferences and unsupported speculation fall short."

     Conclusion. The Hidalgo case is a strong rejection of a plausible discharge discrimination claim. The case's holding and approach to summary judgment issues should be very helpful to employers trying to resist discriminatory discharge claims.

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Dated: January, 2000
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