Decisions — continued from Previous Page
Nazir is probably best known for its
scathing criticism of oppressive summary judgment motions filed by employers. It
provides plenty of procedural ammuni- tion for opposing summary -judgment motions, including a holding that reply
separate statements are unauthorized. (Id. at 252.) But it also includes a section warning trial courts that most discrimina- tion cases are unsuited for summary adju- dication. Nazir first recognizes that the sum-
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mary judgment process “has become the target of criticism” particularly “in employment litigation” where it is “abused, especially by deep pocket defen- dants to overwhelm less well-funded liti- gants” as employers ask courts to make “determinations properly reserved for the factfinder, sometimes drawing inference in the employer’s favor, sometimes requiring the employees to essentially prove their case at the summary judg- ment stage.” (Id. at 248.) The court went on to explain that: Proof of discriminatory intent often depends on inferences rather than direct evidence. (Citation). And because it does, “very little evidence of such intent is necessary to defeat sum- mary judgment.” (Citation) Put con- versely, summary judgment should not be granted unless the evidence cannot support any reasonable inference for plaintiff.
(Id. at 283) Next the Nazir court provides the
kind of guidance for trial courts that employees have sought for years: We … observe that many employ-
ment cases present issues of intent, and motive, and hostile working environ- ment, issues not determinable on paper. Such cases, we caution, are rarely appropriate for disposition on summary judgment, however liberalized it be… ‘[S]ummary judgment has spread ... through the underbrush of undesirable cases, taking down some healthy trees as it goes.’ (Citation) This, we cannot allow.
(Id. at 286.) This section of Nazir should lead off
every summary judgment opposition. Trial judges should understand at the outset that summary adjudication should rarely be granted in employment- discrimination cases. With the procedural bounty Nazir
provides, it is easy to overlook several very 88— The Advocate Magazine APRIL 2011
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