Tuesday, April 4, 2017

Sample Answer--Essay VI

After the jump.

Section A: Mean 17.7/Median 19

Section C: Mean 13.5/Median 13.5
Section C (Denying Motion):

Zaruba’s motion for summary judgment should be denied.

A court should grant summary judgment when there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. FRCP 56(a). A material fact is an outcome-determinative fact, one whose resolution dictates which party prevails in a case. A genuine dispute exists when the evidence in the record allows a reasonable jury to resolve a fact in favor of either party; no genuine dispute exists when all the evidence points to one conclusions. A party is entitled to judgment as a matter of law when no reasonable jury could find in favor of the non-movant on one or more elements of a claim or defense.

The court views all evidence in the light most favorable to the non-moving party, drawing all reasonable inferences in her favor. The court is not to make credibility determinations, weigh evidence, or decide what evidence she believes proper. Summary judgment is based on all the materials produced in discovery, as well as affidavits and declarations. FRCP 56(c)(1)(A).

When the moving party does not bear the burden of persuasion (and therefore the initial burden of producing evidence) at trial, it may move either by pointing to evidence in the record, FRCP 56(c)(1)(A), or by showing that the materials cited by the non-movant do not establish the presence of a genuine dispute. Celotex. The non-movant (who bears the burden of persuasion and initial burden of production at trial) must then offer reasonably probative affirmative evidence from which a reasonable jury could find in its favor. Evidence on summary judgment need not be in a form admissible at trial, but must be presentable in a form that would be admissible at trial. FRCP 56(c)(2); Celotex.

To survive summary judgment, a plaintiff in a Title VII sex-discrimination claim must offer evidence from which a reasonable jury could find that she was discriminated against because of her sex. She can do that in either of two ways. First, she can produce direct evidence of intentional discrimination, which Kuttner does not attempt to do.

Second, she can proceed through the burden-shifting framework of McDonnell-Douglas, which is what Kuttner attempts in this case. Under this approach, the plaintiff must offer sufficient evidence of a prima facie case of discrimination, which involves evidence of “actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were based on discriminatory criterion.” This shifts the burden of production to the defendant to offer evidence of legitimate, non-discriminatory reasons for the adverse employment action. The burden of production then shifts back to the plaintiff, to offer evidence that the defendant’s profferred are false or mere pretexts for discrimination.

Kuttner has carried her burden of production on all four elements of the prima facie case. It is undisputed that she is a woman and thus a member of a protected class under Title VII, which prohibits discrimination in employment because of sex. It also is undisputed that Kuttner was fired, an adverse job action. Kuttner also offers evidence that she met her employer’s legitimate job expectations. For every year from 1998-2009, she was rated as “satisfactory” or “superior” and she was found to meet or exceed expectations in performance. Zaruba testified in his deposition that he had no previous complaints about Kuttner’s performance.

Finally, Kuttner has offered evidence of similarly situated male employees who received more favorable treatment; drawing all inferences in her favor, as the court must, these comparators show differential treatment. Kuttner offers several male comparators who committed similar violations involving misuse of the uniform and apparent authority, none of whom was fired. Deputy Morgan made two visits, in uniform, to a female inmate in the county jail, for personal, non-official reasons, a context that projected coercive authority on an individual already in police custody. Sergeant Moore began a personal relationship with a domestic-violence victim one week after arresting her boyfriend, a blatant display of coercive authority that a reasonable jury might infer influenced her willingness to enter a relationship, even if that was not Moore’s intent in effecting the arrest. Sergeant Moore also worked as a bouncer while off-duty; while he did not wear his uniform on the job, it was known that he was a police officer, which might suggest coercive authority.

Moreover, there is a genuine dispute as to whether Kuttner’s misconduct, even if a misuse of the uniform, improperly projected coercive authority. Zaruba testified that it did. But Richard Benjamin, the person from whom Kuttner tried to collect money for her boyfriend, was not home when she went, so he did not see or to speak to her while she was in uniform and could not feel any coercive authority. Kuttner left Bejamin a business card with her non-police name and private business, offering no indication on the card that she was a police officer or wielding police authority. Absent the display of coercive authority, Kuttner’s misconduct involved misuse of the uniform, although in a way that renders it distinguishable from Morgan allowing his girlfriend to wear his uniform in public, for which he was not fired.

Zaruba has carried his burden of producing evidence of legitimate non-discriminatory reasons—the conclusion of the Merit Commission and himself that what Kuttner did constituted a flagrant abuse of the uniform and police authority and a flagrant violation of department regulations and of appropriate law-enforcement conduct that warranted dismissal.

But a reasonable jury could find pretext. Pretext is suggested by the evidence of the more severe treatment of Kuttner compared with male officers who engaged in similar conduct. (In Young, the Court considered the same evidence for differential treatment of the prima facie case and pretext). Second, Kuttner is one of 32 women in a workforce of more than 200 deputies, a disparity that, taken in the light most favorable to Kuttner, suggests that her misconduct alone does not explain her firing.


Section A (Granting Motion):

Zaruba’s motion for summary judgment should be granted.

A court should grant summary judgment when there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. FRCP 56(a). A material fact is an outcome-determinative fact, one whose resolution dictates which party prevails in a case. A genuine dispute exists when the evidence in the record allows a reasonable jury to resolve a fact in favor of either party, but only if the conclusion in favor of the non-movant is a reasonable one, in light of evidence on the record. A party is entitled to judgment as a matter of law when no reasonable jury could find in favor of the non-movant on one or more elements of a claim or defense.

The court views all evidence in the light most favorable to the non-moving party, drawing all reasonable inferences in her favor. The court is not to make credibility determinations, weigh evidence, or decide what evidence she believes proper. But the court may disregard evidence that is “blatantly contradicted by the record.”

When the moving party does not bear the burden of persuasion (and therefore the initial burden of producing evidence) at trial, it may move either by pointing to evidence in the record, FRCP 56(c)(1)(A), or by showing that the materials cited by the non-movant do not establish the presence of a genuine dispute. Celotex. The non-movant (who bears the burden of persuasion and initial burden of production at trial) must then offer reasonably probative affirmative evidence from which a reasonable jury could find in its favor. Evidence on summary judgment need not be in a form admissible at trial, but must be presentable in a form that would be admissible at trial. FRCP 56(c)(2); Celotex.

To survive summary judgment, a plaintiff in a Title VII sex-discrimination claim must offer evidence from which a reasonable jury could find that she was discriminated against because of her sex.

She can do that in either of two ways. First, she can produce direct evidence of intentional discrimination, which Kuttner does not attempt to do.

Second, she can proceed through the burden-shifting framework of McDonnell-Douglas, which is what Kuttner attempts in this case. Under this approach, the plaintiff must offer sufficient evidence of a prima facie case of discrimination, which involves evidence of “actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were based on discriminatory criterion.” This shifts the burden of production to the defendant to offer evidence of legitimate, non-discriminatory reasons for the adverse employment action. The burden of production then shifts back to the plaintiff, to offer evidence that the defendant’s profferred are false or mere pretexts for discrimination.

Kuttner has carried her burden of production on the first three elements of the prima facie case. It is undisputed that she is a woman and thus a member of a protected class under Title VII, which prohibits discrimination in employment because of sex. It also is undisputed that Kuttner was fired, an adverse job action. Kuttner also offers evidence that she met her employer’s legitimate job expectations. For every year from 1998-2009, she was rated as “satisfactory” or “superior” and she was found to meet or exceed expectations in performance. Zaruba testified in his deposition that he had no previous complaints about Kuttner’s performance.

But Kuttner’s claim fails on the fourth prong—showing that similarly situated male employees received more favorable treatment. The comparators she offers are not analogous because none involved the two factors present in her misconduct: Misuse of the uniform with the improper projection of coercive police authority for personal or private ends. For example, Deputy Morgan made two personal visits, in uniform to a femal inmate in the county jail, but there is no indication that his doing so project coercive authority. The same is true of Morgan allowing his girlfriend to wear his uniform in public. As for Sergeant Moore, he never wore his uniform while working as a bouncer, nor is it clear he projected coercive authority, as the evidence shows that his employers, but not the public, knew he was a police officer. Nor is there evidence he used police authority in dating the arrestee’s girlfriend or that the arrest was motivated by his personal goals. Finally, Deputy Zbilski neither misused his uniform nor projected police authority for personal gains.

Even if this evidence were sufficient for the final prong of the prima facie case, Zaruba has carried his burden of producing evidence of legitimate non-discriminatory reasons—the conclusion of the Merit Commission and himself that what Kuttner did constituted a flagrant abuse of the uniform and police authority and a flagrant violation of department regulations and of appropriate law-enforcement conduct that warranted dismissal.

And there is no reasonable evidence from which a reasonable jury could find this as pretext. The only evidence is the alleged differential treatment of Kuttner compared with her male colleagues. But, as described above, the comparators all were sufficiently different to justify differential treatment. Kuttner offers no other probative, affirmative evidence that Zaruba is being untruthful in his stated reasons for the firing.