Are Summary Judgment Motions Overused?

If I’ve said it once, I've said it a thousand times ... motions for summary judgment in employment discrimination cases are generally wasteful exercises in futility. Typically, there is some, good faith, triable issue of fact that a plaintiff can raise to defeat the motion. I see it over and over again. Here’s another case in that long line.

In Towey v. H&M Hennes & Mauritz LP (Supreme Court, N.Y. Co., 113226/04 - Decided: July 23, 2007), the Plaintiff alleged discrimination by the Defendant, a Swedish corporation, due to its failure to promote as well as the termination of her employment based on pregnancy and her national origin as a U.S. citizen in violation of State and municipal laws. The Plaintiff was employed as the Defendant's spokesperson, and had an exemplary employment record. After becoming pregnant, the Plaintiff negotiated a maternity leave package that allowed her to telecommute from home and receive her full salary. In the tenth week of her maternity leave she was terminated, ostensibly because she removed approximately $11.00 worth of sample garments from the corporate office without immediately paying for them. The company had an unwritten practice that employees could take items and pay for them later. The Court held that the Plaintiff could show the adverse employment action occurred under circumstances giving rise to an inference of discrimination. Although the Defendant proffered a non-discriminatory reason for the termination (which is not recited or otherwise described in the Court's Decision), there were triable issues of fact as to whether that reason was pre-textual.

Given that the employer had an unwritten practice of allowing employees to take items and pay for them later, I fail to see the point for its summary judgment motion other than it being a reflexive response. It seems obvious that the Plaintiff would raise a triable issue based on the unwritten policy and, accordingly, the issue of pre-text would be a matter left for the trier of fact to determine ultimately. In the employment discrimination sphere, it’s a rare bird that prevails on a summary judgment motion. While I don’t deny the efficacy or wisdom of such motions in some limited situations, I think defendants should use more prudence and discretion in weighing their potential benefits against the costs involved and the dubious likelihood of success.