On December 16, 2024, NELA filed an amicus brief with the U.S. Supreme Court in Ames v. Ohio Department of Youth Services. The question presented is whether, to survive summary judgment, employees of so-called “majority” groups must show “background circumstances” that the employer discriminates against the majority as an additional element of their prima facie case under McDonnell Douglas Corp. v. Green. Under the authorship of renowned Supreme Court practitioner Eric Schnapper, NELA took the opportunity to remind the Court that all workers, and not just majority workers, can be harmed by lower courts’ overly rigid application of the McDonnell Douglas at the summary judgment stage. NELA urged the Court to hold that while McDonnell Douglas can be a useful tool in some cases and that plaintiffs have the right to proceed under that framework if they so choose, employees do not need to establish a prima facie case at all to survive summary judgment. Rather, the question at summary judgment should be, as it is in all cases, whether there is a genuine issue of material fact that could allow a reasonable jury to find in the plaintiff’s favor. In crafting this brief, NELA weighed many competing interests, … Read More
Summary Judgement
Kenneth Moses v. United States Steel Corp.
On March 13, 2024, NELA joined the Western Pennsylvania Employment Lawyers Association and NELA-Eastern Pennsylvania in an amicus brief in support of the worker in Moses v. U.S. Steel (3rd Circuit). The brief addressed the numerous errors made by the lower court in granting summary judgment to U.S. Steel. Mr. Moses sued U.S. Steel, alleging race discrimination under 42 U.S.C. § 1981 and the Pennsylvania Human Relations Act, 43 Pa. Stat. § 955(a). The district court ignored both circuit and Supreme Court precedent, requiring that Mr. Moses show “pretext plus” in order to survive summary judgment. Additionally, the district court rationed evidence between the prima facie case stage and the pretext stage and relied on the testimony of another employee who felt that he personally had never been the victim of race discrimination by U.S. Steel. The brief points out not only the long-recognized evidentiary burden that plaintiffs alleging race discrimination must overcome, but the numerous controlling cases that require only evidence of a prima facie case and evidence of pretext in order to survive summary judgment. We are grateful to NELA Board Member Christine Elzer, Elzer Law Firm, LLC (Pittsburgh, PA) for drafting this important brief.… Read More
NELA Amicus Brief: Punt v. Kelly Services & GE Controls Solutions (10th Cir.)
On April 5, 2016, NELA was joined by our colleagues from the National Disability Rights Network (NDRN) in filing an amicus brief in the U.S. Court of Appeals for the Tenth Circuit, in support of the Plaintiff-Appellant Kristin Punt in Punt v. Kelly Services & GE Solutions Controls.
The district court granted summary judgment against the Plaintiff regarding her failure to accommodate claim, based on an out-of-context interpretation of Cisneros v. Wilson (10th Cir. 2000), regarding whether her request for medical leave as a reasonable accommodation under the Americans with Disabilities Act (ADA) was “indefinite.” Specifically, the district court erred by: 1) finding that the Plaintiff’s accommodation request amounted to a request for indefinite leave, and was thus unreasonable as a matter of law, because she could not specify how long her impairment would last, and therefore guarantee that she would not need additional future leave; 2) imposing no obligation on the Defendant to engage in the ADA’s interactive process; and 3) focusing on her cancer’s duration rather than on its workplace impact.
Our amicus brief makes three arguments:
1) It describes the extent to which the facts of this case are clearly distinguishable from the peculiar facts of … Read More
NELA Amicus Brief: Jones v. City of Boston (1st Cir.)
On March 11, 2016, NELA joined the Equal Justice Society, Justice at Work, the American Civil Liberties Union of Massachusetts, and the Charles Hamilton Houston Institute for Race and Justice in filing an amicus brief in support of the Plaintiff-Appellants in Jones v. City of Boston, currently pending in the U.S. Court of Appeals for the First Circuit.
The amicus brief provides the court with important historical context regarding the development of the law governing disparate impact, and its importance to addressing systemic discrimination in professions, like law enforcement, with deeply-imbedded cultures of exclusion that would otherwise be practically impossible to remedy.
After providing that background, the brief turns to the problems raised by the manner in which the district court evaluated both “business necessity” and “availability of a less-discriminatory alternative” in the context of resolving a motion for summary judgment. As the brief argues, the district court applied a “watered-down” version of the business necessity requirement to the Department and a heightened version of the less discriminatory alternative standard to the plaintiffs. This is particularly problematic at the summary judgment stage, because doing so necessitated drawing a number of inferences against the plaintiffs, weighing the evidence inappropriately, and … Read More
NELA Amicus Brief: Sharif v. United Airlines (4th Circuit)
On October 26, 2015, NELA joined the Metropolitan Washington Employment Lawyers Association (MWELA) in filing an amicus brief in the U.S. Court of Appeals for the Fourth Circuit in support of the Plaintiff-Appellant in Sharif v. United Airlines, Inc.
Drawing on an extensive line of cases from the U.S. Supreme Court and Courts of Appeals, the amicus brief systematically dismantles the legal and practical reasoning underlying the so-called “honest belief” defense. To accept a defendant’s professed “honest belief” that the reasons for taking an adverse action against an employee are correct, when presented with evidence that the asserted reasons are unworthy of credence, requires the court to draw a series of inferences regarding the weight of that evidence and the credibility of those presenting it, in favor of the non-moving party. This is forbidden at summary judgment, as recently re-affirmed by the U.S Supreme Court in Tolan v. Cotton, 134 S. Ct. 1861 (2014). Further, the brief thoroughly demonstrates that the application of the “honest belief” defense is incompatible with the longstanding rules courts have used to determine whether a defendant’s proffered non-discriminatory reasons are in fact a pretext for unlawful behavior.
The brief was drafted by Stephen … Read More
NELA Amicus Brief: Graves v. Deutsche Bank Securities, Inc. (U.S. Supreme Court)
On July 28, 2014, NELA filed an amicus brief in support of a petition for certiorari in the U.S. Supreme Court in Graves v. Deutsche Bank Securities, Inc., No. 13-1546. The petition was filed by NELA members Richard T. Seymour and Eric Schnapper on behalf of petitioner Daniel B. Graves. The issue in this age discrimination case is whether courts should grant summary judgment by relying on inferences that excuse all but the most egregious evidence of discrimination. NELA scrutinizes requests for amicus briefs at the petition stage closely. One was warranted here because this issue falls squarely within NELA’s current amicus priorities of combatting summary judgment abuse and challenging judicially created doctrines that erect barriers to jury trial access to plaintiffs alleging employment discrimination.
Plaintiff Graves held the positions of both director and managing director at defendant Deutsche Bank with responsibility for maintaining relationships with major corporate clients. Graves complained that some of his accounts being were re-assigned to younger bankers with the effect of significantly decreasing his annual bonus. He was terminated days before the bonuses were scheduled to be paid. Graves testified that his supervisor said that the dismissal was not performance based, but motivated because … Read More
NELA Amicus Brief: Adams v. Festival Fun Parks (2nd Circuit)
NELA was joined by The Arc of the Unites States, the National Disability Rights Network, The Office of Protection and Advocacy for Persons with Disabilities, and Disability Rights Vermont on an amicus brief in this case to ensure that the U.S. Court of Appeals for the Second Circuit had a full understanding of the ADA Amendments Act’s (ADAAA) changes to the disability analysis and, when applying those changes, of the inherent nature of intellectual disability. Both are issues of first impression for the Second Circuit and both analyses were badly botched by the district court. Author: Brian East… Read More
