TBA Law Blog


Posted by: Christy Gibson on Jan 10, 2014

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.

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[i] This methodology is limited to the extent that there are cases that do not appear on Westlaw.