Summary judgment may be appropriate, though rare, in cases of employment discrimination where the plaintiff fails to show a genuine factual issue with regard to the employer’s discriminatory motive or intent with regards to an employment action. Plaintiff has the initial burden of presenting their prima facie case by showing to a preponderance of the evidence that without further explanation by the employer, the adverse employment action against them was due to their protected class. The employer is then afforded the opportunity to present another reason for their employment action. This reason need not be wise nor practical, just nondiscriminatory. The plaintiff may defeat a motion for summary judgment either by discrediting the employer’s proffered reasons as being pretextual or by presenting evidence that the motivating reason for the employment action was more likely than not discriminatory. If the evidence is in balance, however, there is no genuine issue of material fact and the employer may prevail on summary judgment.
The following recent opinions reflect an inclination to uphold summary judgments for the defendant in discrimination cases. The court recognized recently in Brooks v. Peabody & Arnold, LLP, that while summary judgment is a disfavored remedy in the context of discrimination cases based on disparate treatment, such does not preclude the remedy from ever being appropriate. The court rejected the plaintiff’s argument that she was fired due to her status as a disabled person. The plaintiff contended that her disability, rather than the warnings she had recently received at work or the company’s suspicions of fraud, was the reason for her termination. The court held that the plaintiff failed to present sufficient evidence of the defendant’s discriminatory intent to rebut the defendant’s showing that, through their use of a private investigator, they believed the plaintiff to be misrepresenting herself as disabled. The defendant was held to have discharged the plaintiff for lying about her disability, rather than for her disability, therefore withstanding the motion for summary judgment.
Generally, evidence of direct touching in a sexual harassment claim is enough to at least survive summary judgment, if not sufficient to allow the plaintiff to prevail on their claim. “[A] single act of harassment may, if egregious enough, [may] suffice to evince a hostile work environment.” Noviello v. City of Boston, 398 F.3d 76, 84 (Mass. 2005). In Rivera-Martinez v. Comm. Of Puerto Rico, et al., however, the court awarded summary judgment to the employer where the plaintiff complained that her employer sexually touched her forearm and a little over a year later, touched her back, torso and brassiere area. The court held that there was no indication that the employer’s touching, while inappropriate, was sexual in nature. Further, the court held that the plaintiff failed to show that the harassment was severe and pervasive or that it was reserved just for women.
