Something seems rotten – but it’s not in Denmark. It’s in the U.S. Court of Appeals for the Eighth Circuit, where judges are denying citizens their day in court, and unjustly preventing them from having their cases heard by a jury of their peers.
This isn’t coming from us. It’s coming from Senior Judge Donald Lay. This summer he wrote dissents in not one … not two … but three cases. In each instance, he charged that his colleagues improperly granted summary judgment – that they threw out claims of workplace wrongdoing against employers, even though there were disputed facts that a jury might have found in the workers’ favor.
In one dissent, Judge Lay took the rare step of criticizing not just the majority’s ruling, but the entire circuit-wide trend: “Too many courts in this circuit, both district and appellate, are utilizing summary judgment [to dismiss cases] where issues of fact remain.”
Apparently no one’s listening. Last Thursday the Eighth Circuit granted summary judgment against a worker who alleged that his employer fired him because he is Hispanic. Rather than letting a jury sort out the contested issues, as the law requires, the court downplayed – even ignored – obvious facts that supported the worker’s claims. The three-judge panel on the case consisted of Bush I appointee James Loken, Reagan appointee John Gibson, and Bush II appointee Steven Colloton.
Here’s the story. Adolfo Ramirez was promoted from supervisor to Area Manager at GDX Automotive. At that time, the company gave him a written promise that he would enjoy a 90-day grace period, during which he could return to his old job if things didn’t work out. A little over a month into the new assignment, Ramirez tried to exercise that option. But his boss rebuffed him, saying, “Amigo, you can do this job.” This was the same boss who, at staff meetings, “jokingly” asked Ramirez, a U.S. citizen, to show his “green card.”
A month later – still within that 90-day grace period – GDX decided to eliminate Ramirez’s Area Manager position as part of a workforce reduction. Based on both the written agreement and his past performance as supervisor (which was good enough to earn him a promotion), Ramirez expected to resume his former duties. Instead, he learned he was being terminated. All of the supervisor positions had been filled - by non-Hispanics.
GDX denied acting out of ethnic bias. It said it let Ramirez go while keeping the non-Hispanic supervisors because he had performed poorly as Area Manager. The Eighth Circuit bought the company’s defense. According to Judges Loken, Gibson and Colloton, the facts were so clear-cut that the case didn’t deserve to go to trial. A jury never got to decide.
But wait a minute. What about the written agreement GDX had with Ramirez to let him return to his job as supervisor? And what about the fact that GDX lulled Ramirez into keeping the Area Manager position by saying he “[could] do this job,” only to turn around and say he was performing that job too poorly to return to his job as supervisor – the job he’d performed well enough to earn a promotion? Nothing doing, as far as the Eighth Circuit was concerned. Without even flagging these obvious questions, the court flatly concluded: “The record establishes that [GDX] perceived that Ramirez performed poorly as Area Manager, and [Ramirez has not] directed us to evidence suggesting that GDX’s perception was unfounded. …”
In other words, the judicial equivalent of closing your eyes, putting your hands over your ears and repeating “I can’t hear you,” over and over again.
And those off-hand remarks about Ramirez’s heritage? On their own they may have been insufficient to prove discrimination - but might not a jury decide that they rounded out the picture? Again, nothing doing. Rather than considering those remarks as part of a bigger story, as it should have, the court examined them in isolation – and, unsurprisingly, saw bubkes.
As Judge Lay observed, the Ramirez case is but one recent example of the Eighth Circuit’s readiness to deprive people of their day in court. In another example, Green v. Franklin National Bank of Minneapolis, a 2-1 majority, consisting of Bush II-appointee Michael Melloy and Reagan-appointee Roger Wollman, upheld summary judgment against a worker who alleged she was fired in retaliation for complaining about racial harassment. Judges Melloy and Wollman credited the bank’s assertion that it terminated Green for refusing to work, rather than because she’d blown the whistle. But as Judge Lay pointed out in dissent, the facts of the case “call[ed] into question whether Green actually refused to work … thereby undercutting the very essence of the bank’s [defense].” In other words, more eye-shutting, more ear-covering, more “I can’t hear you.”
In the end, a jury may have weighed the facts in Ramirez, Green and similar cases and reached the same conclusions as the Eighth Circuit. But under the law, that was for the jury to decide - not the court. Everyone agrees that judges may legitimately use summary judgment to weed out unmeritorious cases. But they may not use it to usurp the jury’s authority to weigh disputed evidence.
That’s what Judge Lay was saying. One day, perhaps, the active judges on his court, nine of 11 of whom were appointed by Presidents Bush I, Reagan and Bush II, will listen to him.
Ramirez v. Gencorp, No. 05-3825, slip op. (Sept. 14, 2006).