Most headlines about employment law cases, whether it is an employment discrimination or whistleblower retaliation claim, relate to a jury trial verdict. Big damage awards in age discrimination and gender discrimination lawsuits are certainly newsworthy. But the most consequential decision in almost every employment discrimination or whistleblower retaliation case is made by a judge—not the jury—at the summary judgment stage.
In civil cases, including employment discrimination and whistleblower retaliation cases, one party can file a motion for summary judgment with the judge. If the judge grants the motion for summary judgment, it means that the case is dismissed and a jury will not hear the case or render a verdict on it.
Typically, the employer (defendant) files a motion for summary judgment after the parties have completed the discovery process, and for purposes of this article it will be assumed that the employer filed the motion. In discovery, the employee and employer must exchange information that is responsive to written requests for information (such as interrogatories and requests for production of documents). Also, the parties take depositions of key witnesses during discovery and exchange expert reports on a variety of topics such as emotional distress damages and lost pay calculations.
At the close of the discovery stage, the employer often files a motion for summary judgment, which is governed by Federal Rule of Civil Procedure 56’...
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