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Summary Judgment in Employment & Wrongful Termination Cases

In many employment and wrongful termination cases that don't settle shortly after the lawsuit is filed, the employer files a motion for summary judgment with the court. This is usually done after the parties completed written discovery (exchanging information and documents through form interrogatories and requests for production of documents) and after the employer takes Plaintiff's deposition or after other depositions of parties and/or witnesses in the case are completed.

Summary Judgment Motion is a tool that allows the employer to get the entire case dismissed or at least parts of the case dismissed before it ever gets to trial. Even though such a motion is usually a large document, consisting of many pages of arguments and supporting law, along with declarations, and exhibits containing parts of discovery responses and deposition testimony, the basic legal message that such a motion conveys is this: even if everything that the Plaintiff says is true, he does not have a case as a matter of law, or at least some of the claims that are contained in the Plaintiff's lawsuit should be dismissed for the same reason. 

As an illustration, suppose that a terminated employees files a disability discrimination lawsuit, alleging that the employer failed to accommodate her and terminated her because of her disability. During her deposition, the following exchange between the plaintiff and the defense attorney takes place: 

- Why do you think you were terminated?
- Because my boss did not like me and wanted to get rid of me. 
- Are there any other reasons why you think you have been terminated?
- No, that's the only reason I can think of. 
- Do you believe that your disability played any role in your termination?
- No, I don't think so.

This kind of testimony is likely fatal to the wrongful termination case, because the defense attorney is going to take that testimony, attach it to his motion for summary judgment and argue to the court that since Plaintiff herself admitted that she was not terminated because of her disability, the disability discrimination allegations should be dismissed.   

Many employment, discrimination and wrongful termination cases are dismissed on summary judgment because one or more elements of Plaintiff's claim are missing or cannot be established. The most common reason that summary judgment is granted is because the plaintiff is unable to show to the court sufficient evidence that the real reason for termination was discrimination or retaliatory and not the one proffered by the employer (i.e. performance, misconduct, insubordination, etc.). Some of the other typical reasons that the courts grant summary judgment in wrongful termination cases are: 
* Plaintiff is unable to establish that she was able to return to work with or without accommodation on a specific or at least approximate date (in disability cases).  
* Plaintiff is unable to establish that she had a qualifying disability within ADA/FEHA (disability cases). 
* Plaintiff is unable to establish that the employer is the one who failed to engage in the interactive process to find reasonable accommodations (disability cases).   
* Plaintiff lacks evidence that would show that the sexual advances of her supervisor were unwelcome to her (sexual harassment cases).   
* Plaintiff is unable to show that the slanderous publication was made by the defendants and not by someone else or no one. (Defamation cases).  
* Plaintiff, an older worker, is replaced by someone who is of equal or comparable age (age discrimination cases). 

Plaintiff's goal in opposing such a motion is not to prove her case, as she would have to do during trial, but to only demonstrate through similar evidence and arguments that there is a "disputed or triable issues of fact with regard to each claim or at least some of the claims." One of the advantages that Plaintiff has in opposing this motion is that generally, the court must construe all inferences from the evidence in Plaintiff's favor. Thus, at least for the purposes of opposing summary judgment, the "he said/she said" situation is generally favorable to the Plaintiff because it creates exactly that - a disputed issue of fact. This is especially true in harassment cases where the plaintiff and her witnesses' version of the events is usually completely different from the harasser or manager's version of the same events.   

Some courts are known to be more likely to dismiss cases than others. For instance, the more conservative jurisdiction, such as Placer and Sacramento County are known to be more likely to dismiss a case and never let it get to trial than the more liberal jurisdiction (Alameda, Contra Costa, San Francisco & Santa Clara). The risk of having a case dismissed on summary judgment must be taken into account in evaluating the case and in settlement negotiations. Your attorney should be able to evaluate your case and advise you what the likelihood of your case being dismissed on summary judgment is based on his prior experience opposing such motions and based on the law that applies to your claims. 

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Law Office of Arkady Itkin - San Francisco & Sacramento Injury and Employment Lawyer
We represent employees and employers in employment and wrongful termination cases, as well as victims of serious injuries in San Francisco, Oakland, Sacramento, San Jose, Palo Alto, San Mateo and throughout Northern California. We all represent businesses and start-ups in a wide range of business and employment issues and disputes. 


57 Post Street, Suite 812, San Francisco, CA 94104; Tel. (415) 295-4730; Fax. (415) 508-3474; [email protected]
  • Home
  • Employment Law
    • Wrongful Termination >
      • At-Will Employment
      • Termination After Unfair Warnings and Write-Ups
      • Union Grievance, Workers Comp and Wrongful Termination
      • Labor Code 970 Claims
      • Promissory Estoppel and Employment Contracts
      • Implied Contract Claims
    • Discrimination >
      • Proving Discrimination
      • Age Discrimination
      • Disability Discrimination >
        • Protected Disabilities
        • Medical Leave / Disability Accommodations
        • Job Reassignment As A Disability Accommodation
        • SSI Disability Benefits and Your Court Case
        • Sample Request for Reasonable Accommodation
      • Pregnancy Discrimination
      • Race Discrimination
      • Sample Discrimination Complaint
      • DFEH and EEOC Investigations
    • Retaliation >
      • How to Prove Retaliation
      • Dealing with Retaliation While Still Employed
      • Retaliation for Complaining
      • Whistleblower Retaliation
    • Harassment
    • Defamation at Workplace
    • Prof. License Defense
    • Leaves of Absence >
      • Medical Leave as Reasonable Accommodation
      • FMLA Entitlement and Reinstatement to Work
      • CFRA Leave
      • Employers' FMLA Notice Obligations
      • Paternity Leave (FMLA)
      • Sample FMLA Leave Request
    • Wages / Overtime Claims >
      • Wage Claims
      • Employee or Contractor
      • Exempt / Non-Exempt >
        • Admistrative Exemption
        • IT Support Specialists Compensation
        • Computer Professional Exemption from Overtime
        • Recruiters / Account Executives Exemption
        • Complaining About Being Misclassified
      • Vacation Pay / PTO
      • On-Call Time Compensation
      • Deductions fr. Commissions
    • Unempl. Benefits Appeals >
      • Tips for EDD Phone Interview
      • Unemployment Benefits Appeal Hearing Representation
      • CUIAB Hearing Tips
    • Employment Law Blog
    • For Employers
  • Personal Injury
    • Five Tips For Injury Cases
    • Slip-and-Fall Injuries
    • Assault and Battery
    • Recorded Statements
    • Repairing Your Vehicle
    • Unpaid Medical Bills
    • Injury Law Blog
    • Medical Malpractice
    • Police Excessive Force
  • Practice Areas
  • About
  • Results
  • Submit Case
  • Contact
  • Resources
    • Consultations
    • Workplace Rights Checklist
    • Deposition Tips
    • Mediation Tips
    • Effective Mediator
    • Suing Current Employer
    • Severance Agreements
    • Workplace Investigation
    • Arbitration
    • Statutes of Limitations
    • Healthy Litigation Mindset
    • Trial Tips
    • Working Remotely
    • How To Find The Right Lawyer For Your Case