By Ben Bodzy*

The settlement value of employment litigation largely turns on the likelihood that the case will survive summary judgment.  Most employment litigators would agree, regardless of whether they represent employers or employees, that certain judges and certain forums are more favorably disposed to summary judgment than others.  While seasoned litigators will have opinions regarding which judges are "good" or "bad" for Plaintiffs or Defendants, these opinions are predominantly based on anecdotal experiences and reputation.  Therefore, this article is an empirical analysis of summary judgment success rates for employment litigation in Tennessee federal courts. 

Methodology

Unfortunately, there is no readily accessible data that can generate a statistical summary of litigation outcomes with the click of a button.  Therefore, this review utilizes the best tool available, Westlaw, to search for summary judgment decisions in employment discrimination, retaliation, and harassment cases decided between January 1, 2009 and December 15, 2013 (basically a five year period).[i]  This review only includes summary judgment motions filed by defendants, and it excludes any converted Rule 12 motions, since summary judgment most typically arises when a defendant moves for summary judgment after discovery.  This review only includes decisions of U.S. District Judges who are currently sitting on the District Court bench, and it excludes any decisions rendered by Magistrate Judges, visiting judges, and U.S. District Judges who have retired or otherwise left the District Court bench (for example Judge Echols, Judge Phillips, or Judge Donald).  This review also analyzes the EEOC's success rate in defending summary judgment motions.

Overall Summary Judgment Success Rate

This review identified 338 summary judgment decisions in employment discrimination, retaliation, and harassment cases in Tennessee Federal District Courts over the last 5 years.  Of those decisions, summary judgment was granted in 69% of cases (232 cases).  Summary judgment was granted in part in 18% of cases (62 cases), and it was denied completely in 13% of cases (44 cases).

Eastern District Summary Judgment Success Rate

This review includes 73 cases from the Eastern District of Tennessee.  Overall, in the Eastern District of Tennessee, summary judgment was granted in 63% of cases (46 cases).  Summary judgment was partially granted in 22% of cases (16 cases), and it was denied in 15% of cases (11 cases).

Judge Collier granted summary judgment in 67% of cases (14 cases), granted partial summary judgment in 29% of cases (6 cases), and denied summary judgment in 5% of cases (1 case). 

Judge Greer granted summary judgment in 75% of cases (6 cases), granted partial summary judgment in 0% of cases (0 cases), and denied summary judgment in 25% of cases (2 cases).   

Judge Jordan granted summary judgment in 65% of cases (11 cases), granted partial summary judgment in 18% of cases (3 cases), and denied summary judgment in 18% of cases (3 cases).

Judge Mattice granted summary judgment in 33% of cases (3 cases), granted partial summary judgment in 56% of cases (5 cases), and denied summary judgment in 11% of cases (1 case).

Judge Varlan granted summary judgment in 67% of cases (12 cases), granted partial summary judgment in 11% of cases (2 cases), and denied summary judgment in 22% of cases (4 cases).

Middle District Summary Judgment Success Rate

This review includes 163 cases from the Middle District of Tennessee.  Overall, in the Middle District of Tennessee, summary judgment was granted in 63% of cases (102 cases).  Summary judgment was partially granted in 21% of cases (35 cases), and it was denied in 16% of cases (26 cases).

Judge Campbell granted summary judgment in 73% of cases (22 cases), granted partial summary judgment in 20% of cases (6 cases), and denied summary judgment in 7% of cases (2 cases).

Judge Haynes granted summary judgment in 75% of cases (27 cases), granted partial summary judgment in 6% of cases (2 cases), and denied summary judgment in 19% of cases (7 cases).

Judge Nixon granted summary judgment in 50% of cases (6 cases), granted partial summary judgment in 33% of cases (4 cases), and denied summary judgment in 17% of cases (2 cases).

Judge Sharp granted summary judgment in 58% of cases (15 cases), granted partial summary judgment in 15% of cases (4 cases), and denied summary judgment in 27% of cases (7 cases).

Judge Trauger granted summary judgment in 53% of cases (26 cases), granted partial summary judgment in 35% of cases (17 cases), and denied summary judgment in 12% of cases (6 cases).

Judge Wiseman granted summary judgment in 60% of cases (6 cases), granted partial summary judgment in 20% of cases (2 cases), and denied summary judgment in 20% of cases (2 cases).

Western District Summary Judgment Success Rate

This review includes 102 cases from the Western District of Tennessee.  Overall, in the Western District of Tennessee, summary judgment was granted in 82% of cases (84 cases).  Summary judgment was partially granted in 11% of cases (11 cases), and it was denied in 7% of cases (7 cases).

Judge Anderson granted summary judgment in 80% of cases (43 cases), granted partial summary judgment in 7% of cases (4 cases), and denied summary judgment in 13% of cases (7 cases).

Judge Breen granted summary judgment in 85% of cases (17 cases), granted partial summary judgment in 15% of cases (3 cases), and denied summary judgment in 0% of cases.

Judges Fowlkes and Mayes each granted summary judgment in 100% of cases (2 and 11 cases, respectively).

Judge McCalla granted summary judgment in 73% of cases (11 cases), granted partial summary judgment in 27% of cases (4 cases), and denied summary judgment in 0% of cases (0 cases).

EEOC

In cases where the EEOC brings suit directly, its cases survived summary judgment every time.  In five cases, summary judgment was denied entirely.  In three cases, the defendant was able to obtain partial summary judgment.

Conclusions

There are several take-aways from these statistics:

1.     Almost seven out of every 10 employment litigation cases do not survive summary judgment in Tennessee federal courts.

2.     The Western District is a more hospitable forum for employers than the Middle District or Eastern District.

3.     The judge you draw matters.  Certain judges are much more likely to grant summary judgment than others.  Of the judges who decided 5 or more employment cases, the rate of dismissal ranges from 33% (Judge Mattice) to 100% (Judge Mayes).

4.     The EEOC's success rate on summary judgment is much higher than private plaintiffs, which is not surprising since the EEOC selectively litigates the most egregious cases.

5.     Whether these statistics alter your pre-conceived notions of summary judgment, or they reinforce them, these statistics provide an empirical basis for assessing your employment cases in Tennessee District Courts.

*Ben Bodzy is a shareholder at Baker, Donelson, where he represents management in labor and employment litigation with two primary focuses: traditional labor matters and litigation relating to the enforcement of post-employment restrictive covenants. Ben is a graduate of Southern Methodist University School of Law. He may be reached at bbodzy@bakerdonelson.com or 615-726-5640.

Here’s the latest newsletter from TBA’s Labor and Employment Section.  I want to thank this issue's authors for their well-written articles – Ben Bodzy, Jennifer Rusie, and John LaBar (a repeat performer). If you have an article or idea for an article, I urge you to e-mail me at bbuchanan@visalaw.com or call me at 615-345-0266.

Bruce Buchanan

Check out David Mikics article from The New York Times titled In Praise of (Offline) Slow Reading and let us know your thoughts.

Check out this article by Cheryl Conner on Forbes.com and find out if you are mentally strong. 

So in case you need some ideas for a happier holiday check out these articles by Kimberly Medlock. 

By Bruce E. Buchanan*

When the Federal Government was shutdown between October 1 and 16, 2013, it had different effects on government operations covering immigration.

USCIS

The U.S. Citizenship and Immigration Services (USCIS) did not close during the government shutdown because it is a fee-based agency, which is not dependant on federal government funding for its operations.  Thus, the USCIS continued to process petitions and applications, fingerprint applicants, and conduct interviews. 

E-VERIFY

However, E-Verify, which is jointly administered by the USCIS and the Social Security Administration, was not in operation during the government shutdown.  Thus, employers, who utilize E-Verify to verify the employment authorization of new employees, could not submit new hires to E-Verify nor could employees challenge a non-confirmation during this period of time.  At the conclusion of the shutdown, the USCIS issued guidance on how employers should deal with those issues that arose during the government shutdown. 

IMMIGRATION COURTS

Immigration Courts were shut down, except for cases involving detained individuals.  Since Memphis, our only Immigration Court in Tennessee, does not handle detained cases, the Memphis Immigration Court was closed for the duration of the government shutdown. 

One of the initial effects of the shutdown was the postponement of cases set for October 1 to grant Cancellation of Removal to Respondents.  (In fiscal year 2013, the maximum number of the granting of Cancellation of Removal was reached well before the end of the fiscal year; thus, many cases were set for October 1, the first day of FY 2014 in order for Immigration Judges to formally grant Cancelation of Removal after hearing the cases toward the end of FY 2013.)  After the shutdown ended, the Immigration Judges initially re-set the cases for October 31 and November 1.  However, in many of those cases, the Immigration Judges issued written orders granting Cancellation of Removal without a hearing.

For other Immigration Court Cases set for Master Calendar or Individual Calendar hearings, the cases have been re-set for six months or later.  In some cases, where Respondents have a weak case for relief or no relief is available, this delay is helpful for Respondents.  However, for those cases where it is probable that relief will be awarded, Respondents are suffering because of this delay. 

ICE

The effect of this shutdown on Immigration and Customs Enforcement (ICE) varied.  The ICE attorneys assigned to the non-detained Immigration Court docket and worksite enforcement cases were furloughed.  On the other hand, ICE attorneys assigned to detained Immigration Court docket, such as Oakdale, Louisiana, remained on the job.  ICE agents, who are non-attorneys, remained on the job conducting business as usual. 

DEPARTMENT OF LABOR

The Department of Labor, who processes Labor Certifications and Labor Condition Applications and investigates certain immigration-related cases, was closed throughout the government shutdown.  Thus, many employment-based cases were delayed for at least two and one-half weeks.  Likely these cases were delayed even longer because when the shutdown ended, there was a backlog of cases to handle. 

Overall, the government shutdown had some detrimental effects on immigration cases, which will take many months to bring back to pre-shutdown normal operations.

By Bruce E. Buchanan*

In reviewing the numerous OCAHO decisions issued so far this year, there have been some fairly common violations that have gotten employers in a lot of trouble. Here’s my detailed take on what some of those common errors are and why they consistently plague employers.

#1 – The Missing I-9 Form

The most common violation is the most basic: failure to prepare an I-9 form, especially failing to complete an I-9 Form until after being served with a Notice of Inspection (NOI).  This violation occurred in 25 of the 28 decisions this year, as published on the OCAHO’s website.  In several cases, U.S. v. Red Bowl Asian Bistro, U.S. v. Kobe Sakura Japanese, and U.S. v. Kobe Sapporo Japanese, the owners simply were unaware of the requirement to complete an I-9 Form for their employees.  Unfortunately, ignorance of the law, even if it is the truth, is no excuse.

#2 – Section 1 Troubles

The second most common violation is failure to ensure the proper completion of Section 1 of the I-9 Form.  This occurred in approximately 50% of the 2013 OCAHO decisions.  Some of the cases where the violations occurred include U.S. v. Platinum Builders of Central Florida, U.S. v. La Tolteca Mexican Restaurant, U.S. v. Occupational Resource Management, and U.S. v. Super 8 Motel.  One of the arguments commonly provided by employers is that they were not responsible for the completion of Section 1; therefore, they could not (or should not) be penalized for those errors in Section 1.  Unfortunately, the law says otherwise.  

The responsibility for executing an error-free Form I-9 rests solely on an employer, even if Section 1 must be completed by an employee.  After all, ICE is not going to seek out each individual employee and levy a monetary fine against the offending employee.  Rather, ICE is going to fine the employer because it is the employer’s legal responsibility to review the information recorded by employees in Section 1.

While many of the OCAHO decisions do not specify the exact details of what was omitted or incorrectly completed in Section 1, some of the decisions do provide sufficient details.  Of the more detailed cases, the most common Section 1 error relate to the employee’s legal status in the U.S.  Typically, employees will:

·       Fail to check one of the four boxes attesting to the employee’s status;

·       Check off two or more of those boxes;

·       Check a box for permanent residence or employment authorization but fail       

        to include an “A” number; or

·       Fail to sign the attestation in Section 1.

For many employers, these types of violations are easily preventable simply by conducting a thorough review of Section 1 before proceeding to Section 2.

#3 - Backdating

A third, common I-9 error that is often reflected in OCAHO decisions is the backdating of I-9 Forms.  Backdating occurs when the form is signed and the date indicated is not the date the form was actually signed, but when the form should have been signed, days, months or even years prior.  Often, this violation is committed in conjunction with the failure to complete the I-9 Forms until after the service of the NOI.

There are ways ICE can typically detect backdating of I-9 form; simply by “marking” the I-9 Forms during an NOI audit.  Another way is comparing the revision date of the form to the dates of the signatures. Both of these examples were highlighted in U.S. v. Kobe Sakura Japanese and U.S. v. Kobe Sapporo Japanese.  These types of violations can lead to a finding that the employer lacked good faith, which accounts for a 5% aggravating factor, which further increases an I-9 penalty.

#4 – Section 2 Errors

Employers also commit a wide variety of errors in the completion of Section 2.  Some of the OCAHO decisions provide enough details to glean what types of Section 2 errors incur the wrath of ICE and OCAHO.  Based on decisions like U.S. v. Black and Blue Steak and Crab - Buffalo, U.S. v. Super 8 Motel, and U.S. v. Taste of China, which specify the Section 2 violations, there are numerous types of violations, including:

·       Failure of the employer to sign the Section 2 attestation;

·       Failure to indicate a List A or B/C documentation;

·       Insufficient information listed in List A or B/C; or

·       Improper or expired documents listed in List A or B/C.

On some occasions, the employers, who did not record any information in Lists A, B or C, have argued that supporting documentation, attached to the I-9 Form should amount to substantial compliance of the Form I-9 requirements.  However, OCAHO has repeatedly stated, and the Ninth Circuit Court of Appeals recently affirmed, that this reasoning is not tenable.  (See U.S. v. Ketchikan Drywall Services).  Affixing photocopies of I-9 support documents to an incomplete I-9 Form, which has failed to record any of the relevant information in List A or B/C, does not satisfy an employer’s legal duties. However, if an employer fails to record one or two pieces of data, such as the document title and/or the expiration date of a document, the attachment of those documents, which includes that data, to the I-9 form, when presented to ICE, will amount to only a technical violation. (Technical violations can be corrected within 10 business days of ICE’s Notice of Technical Errors without incurring a financial penalty.)

If your organization has never had to face ICE or OCAHO, then that is something to give thanks!  Help avoid these top five common errors by making them a priority in your I-9 training and compliance programs.

________________

*This article was originally published on November 26, 2013 by LawLogix’s The I-9 and E-Verify Blog at http://www.lawlogix.com/blog/top-5-common-i-9-errors-seen-through-eyes-ocaho. 

*Bruce E. Buchanan is an attorney at the Nashville Office of Siskind Susser, P.C.  He is a graduate of Vanderbilt University School of Law.  Mr. Buchanan writes a blog on employer immigration compliance, located at http://blogs.ilw.com/blog.php?29223-I-9-E-Verify-Immigration-Compliance, and is a contributor toThe I-9 and E-Verify Blog, located at http://www.lawlogix.com/blog. He may be reached at bbuchanan@visalaw.com or (615) 345-0266.

By Eliza Epps*

Introduction

In the employment immigration process, one of the underlying questions is who receives the benefit – the employer or the employee?  A prevailing view is that Congress intended a mutual benefit to both the employer and employee.  The U.S. Court of Appeals for the Sixth Circuit held in Patel v. United States Citizenship and Immigration Services, No-12-1962 (Oct.11, 2013), an alien beneficiary of an employment-based immigration petition has prudential and constitutional standing to challenge the USCIS’s denial of such petition as arbitrary and capricious.  This holding follows a trend in standing determinations across circuit courts of appeals, but it has several glaring faults. 

Facts of the Case

The USCIS denied Shasikant Patel’s petition for an employment visa.  Shasikant Patel filed suit against the USCIS in District Court under the Administrative Procedure Act (APA) claiming that the USCIS’s denial was arbitrary and capricious. In their denial, the USCIS cited Patel’s current sponsor’s failure to file their own labor certification application with the Department of Labor (DOL) (while relying on a previous one for another company) as their reason for denial. The District Court determined Patel did not have prudential standing to bring such a challenge to the USCIS’s denial.

The Sixth Circuit detailed the three-step process for obtaining permanent residence based on employment, which include the employer’s application for a labor certification from the DOL, the employer’s petition to the USCIS on behalf of the alien beneficiary, and the alien’s application to adjust status.

Prudential Standing

Standing to bring suit is a fundamental issue in all cases.  Prudential standing is defined in the APA as whether the party is “adversely affected or aggrieved by agency action.”[i]   A party is adversely affected or aggrieved if the interest he seeks to protect is arguably within the zone of interests to be protected or regulated by the statute that he says was violated.[ii]  To determine the zone of interests, courts look at the Congressional purpose and do not deem the test to be demanding on parties arguing that their interest is in the zone of interests intended.

The Sixth Circuit reversed the District Court stating Patel has prudential standing to challenge the USCIS’s decision.  They did this by referencing language in the code that makes employment visas available to the immigrant, rather than his employer. Thus, the alien beneficiary has a direct stake in the outcome of an employment-based petition.

The Sixth Circuit also discussed the trend among other circuits.  It noted decisions from three other circuits that have granted the alien beneficiary prudential standing in similar employment-based cases.  They concluded this analysis by saying that “the alien, ultimately, is the one who is entitled to the employment visa.”  Patel v. USCIS, at *7.  This marks a shift away from mutuality of benefit towards a focus on the alien beneficiary’s benefit.   

Constitutional Standing

The Sixth Circuit also found Patel had constitutional standing to challenge the USCIS. The Court stated Patel’s injury was that he “lost a significant opportunity to receive an immigrant visa,” not merely that his petition was denied.  Id. at *7.  In addition, the Court stated the “lost opportunity is itself a concrete injury – and a favorable decision would redress it.” Id. at *8.  By characterizing the injury as a lost opportunity for consideration, instead of as a denial in the process, the Court embodied a trend towards highlighting the alien beneficiary in employment-based immigration, instead of the employer.

This re-characterization appears faulty because it effectively re-characterizes the immigration process and potentially bypasses the legal steps for employment-based immigration.  It does so by recognizing an injury that could occur before the USCIS actually becomes involved. 

Detriment of Having a Policy Based Legal Standard

This trend among circuits establishes a legal standard that is largely policy based. Having a trend-based appellate standard that grants prudential standing in these types of challenges to the USCIS, the courts demonstrate a disconnect between themselves and the agency law they are interpreting.  While it may be a sound understanding of agency law under the APA, the Court does not recognize just how different immigration law is from other types of agency law.  Or, it recognizes this difference, and bypasses it.

Conclusion

It is not clear that this grant of prudential standing (and also constitutional standing in this case) has a practical function.  There are still several hurdles that Patel must overcome in order to actually prove the USCIS’s denial was arbitrary and capricious.  His ultimate remedy is also not clear.  Even if he proves the USCIS’s denial was arbitrary and capricious, his remedy can only be granted by the USCIS as the denial at issue here is for the first step of the process.  Ultimately, this decision follows a trend among circuits, but this trend is just that – a surface trend that could change depending on a Court’s understanding of the USCIS and immigration law at the time.

This December issue of the Immigration Law Section Newsletter attempts to bring together the new and various changes that occurred in the area of U.S. immigration law from October 2013 through present.  I would like to thank the authors for the articles in this issue, Bruce Buchanan of Siskind Susser, P.C., and Eliza Epps of Olsen Law Firm.  Overall, this issue is lacking articles about Immigration Reform because it did not happen in 2013.  However, with the ever-changing landscape of U.S. immigration law, Immigration Reform could always occur in the future, and if it does occur, then we will cover all aspects of Immigration Reform in subsequent newsletters.

Terry Olsen

JOHNNY PYLE v. BETTY MULLINS
Court: TN Court of Appeals

Attorneys:

Donna Keene Holt, Knoxville, Tennessee, for the appellant, Johnny Pyle.

Brian H. Trammell, Knoxville, Tennessee, for the appellee, Betty Mullins.

Judge: SUSANO

Johnny Pyle sued Betty Mullins for personal injuries sustained in a three-vehicle accident.1 Mullins admitted liability. The issue of damages was tried to a jury. At the close of the proof, the jury returned a verdict awarding Pyle $15,000 in compensatory damages. The trial court, in its role as the thirteenth juror, affirmed the verdict. Pyle appeals. He claims the verdict should be set aside because of a lack of material evidence to support the verdict, erroneous evidentiary rulings, and the failure of the court to instruct the jury regarding a preexisting condition. On our review, we conclude that there is no reversible error. Accordingly, the judgment of the trial court is affirmed.

.PDF Version of Case

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