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This is not legal advice, which can only be given by an attorney admitted to practice law in your jurisdiction after hearing all of the facts and circumstances in a particular case.

Monday, July 14, 2014

Is the 7th Circuit contradicting itself on standards of proof?

Is there a contradiction in the 7th Circuit Federal Court of Appeals?

7/7: The Court rules that a claim is insufficient without sex-based comments or evidence of better treated comparable employees.

7/10: The Court rules that a claim is sufficient without those things.

In Carlson v. CSX (http://bit.ly/1kUu1Jt), decided on July 10, 2014, the 7th Circuit, which covers IN, IL and WI, and is not known for its sympathy to worker's rights, permitted a claim to move forward without evidence of sex-based comments by the decision-maker, or evidence of better treated employees.

Only a few days before, however, the Court decided Hutt v Solvay (http://bit.ly/1qzlNuf), in which they threw the case out of court. Why? They noted that the decision-maker had said nothing about age, and that, although younger workers were treated better, they were not in similarly-situated jobs. The only link was a request that workers submit their birth dates, but there was no showing that age caused the disciplinary actions that made them ineligible for bonuses. Is there a contradiction between these two cases?

Not at all. Solvay v. Hutt involved a case at the "summary judgment" stage. This stage is after discovery, when the plaintiff has had a chance to request documents from the defendant, and to depose witnesses. At this point, the courts rightly expect all the elements of the claim to be proven by specific reference to written documents and deposition witness transcripts.

In the Carlson case, by contrast, the case was at a much earlier stage, that of a "motion to dismiss." This stage comes right after the plaintiff files her complaint, and no discovery has been taken. The standard of proof is such cases is well-known to be less, and the claim merely need be "plausible," rather than "likely." I think the Hutt opinion should have given more credence to the evidence of better treated employees. However, the Court used the correct legal standard at the advanced stage of "summary judgment": whether a reasonable juror could find that the plaintiff had enough evidence to show that the employer discriminated against her because of her sex.

The importance of the different standards is this: At the early stage of the motion to dismiss, which comes right after the plaintiff files her complaint, the complaint need only contain allegations that show a plausible claim. Here, the drafter of the complaint must understand the elements of a discrimination claim, and at least allege (in good faith, of course) that they exist.

In other words, all you need do at this stage is say that you will have the goods. The plaintiff then gets to move forward to the discovery stage, in which she can request documents and take witness depositions that provide evidence for the allegations in the complaint. In this stage, you hopefully find the goods.

At the next stage, that of the "summary judgment" motion, the plaintiff must point to admissible evidence in documents and witness transcripts and her own affidavit such that a reasonable juror could find in her favor. At that point, the plaintiff must have the goods, so to speak, that back up the allegations in the complaint. It's not enough to say you have them. Show me, says the court.

All this is well-known to lawyers in the field, of course. But it is yet another demonstration of how careful one must be in evaluating whether a discrimination claim is likely to be a winner in the courts. You can get past the early motion to dismiss easily enough, if you know how to write the baroque complexities that the federal courts call a Complaint.

But you'd better be pretty sure that the goods are going to surface -- statements by the decision-maker or better treated employees in similarly situated jobs -- or you will spend a few years in Bleak House for nothing.

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