OUR CHALLENGE
America's Founding Fathers knew all too well the temptation to consolidate governmental power;
despite their best efforts to devise an effective system of checks and balances for the country. The
fourth estate – a free press – was thought to be an outside check on public sector collusion threatening
the freedom and liberty of Americans. Supposedly "the people have a right to know". Yet the
consolidation of media ownership and power following the Telecommunications Act of 1986, forged a
comfortable place among America's ruling class for controllers of the free press. The country's
governed must largely rely on the "Fifth Estate" to check monarchial power and other manifestations of
government waste, fraud, and abuse.
THE FIFTH ESTATE
Federal government whistleblowers, including Title VII claimants, comprise America's Fifth Estate.
They are essential to the country's system of checks and balances — particularly Congress' executive
and judicial branch oversight. America's entire federal workforce included nearly three million, non-
military employees in 2006 according to the most recent annual report on the subject by the U. S. Equal
Employment Opportunity Commission. Those among them with work related complaints of
discrimination, retaliation, and/or harassment based on race, color, religion, sex, and/or national origin
America's Founding Fathers knew all too well the temptation to consolidate governmental power;
despite their best efforts to devise an effective system of checks and balances for the country. The
fourth estate – a free press – was thought to be an outside check on public sector collusion threatening
the freedom and liberty of Americans. Supposedly "the people have a right to know". Yet the
consolidation of media ownership and power following the Telecommunications Act of 1986, forged a
comfortable place among America's ruling class for controllers of the free press. The country's
governed must largely rely on the "Fifth Estate" to check monarchial power and other manifestations of
government waste, fraud, and abuse.
THE FIFTH ESTATE
Federal government whistleblowers, including Title VII claimants, comprise America's Fifth Estate.
They are essential to the country's system of checks and balances — particularly Congress' executive
and judicial branch oversight. America's entire federal workforce included nearly three million, non-
military employees in 2006 according to the most recent annual report on the subject by the U. S. Equal
Employment Opportunity Commission. Those among them with work related complaints of
discrimination, retaliation, and/or harassment based on race, color, religion, sex, and/or national origin
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can usually pursue the matter through private litigation, subject to applicable time limitations. In exercising that option, these public
sector employees join the thousands of employment discrimination plaintiffs who file related cases in federal court each year. Many
accordingly become subject to the procedural device known as “summary judgment” which the New York Times recently noted has
pushed “. . . judges right up to and sometimes across the constitutional lines of determining the facts (of a case) for themselves.”
Cases Keep Flowing In, But The Jury Pool Is Idle ; Adam Liptak, “The New York Times”, 4/30/2007.
SUMMARY JUDGMENTS IN EMPLOYMENT DISCRIMINATION LAWSUITS
In employment discrimination lawsuits, it is almost invariably the employer/defendant that or who requests summary judgment.
Asking for the relief makes a litigant the “moving party” with at least one opponent that or who is a “nonmoving party”. A professor at
the University of Cincinnati College of Law conveniently explains:
discrimination, retaliation, and/or harassment of rightful redress. Their corresponding win/loss record is not consistently compiled on
a national basis. Some relatively recent statistics indicate that in 2001, summary judgments accounted for nearly all of the 98% of
employment cases disposed of on pretrial motions in favor of employers. See, The Limits of the Olympian Court: Common Law
Judging versus Error Correction in the Supreme Court, 63 Washington & Lee L. REV. 271 at 297 (2006) citing Why Are Employment
Discrimination Cases So Hard To Win?, 61 LA. L. REV. 555, 560 (2001).
THE PROLIFERATION OF SUMMARY JUDGMENTS AS A THREAT TO CITIZENS' GOVERNMENT OVERSIGHT
There is a general proliferation of summary judgments, suggesting that “(t)rials are on the verge of extinction”. Cases Keep Flowing
In, But The Jury Pool Is Idle; Adam Liptak, “The New York Times”, 4/30/2007. A federal trial judge is reported to lament that the trend
disavows ‘the most stunning and successful experiment in direct popular sovereignty in all history.’ Id. Reporter Adam Liptak adds
that “(j)ury trials may be expensive and time-consuming, but the jury, local and populist, is a counterweight to central authority and is
as important an element in the constitutional balance as the two houses of Congress, the three branches of government and the
federal system itself.” Id.
A compelling argument has been made that “(s)ummary judgment is unconstitutional.” See, Why Summary Judgment is
Unconstitutional, 93 VA. L. REV. 139 (2007). Less controversial, but equally disturbing is the observation that in employment
discrimination cases, the “. . . area of law is chaotic and often arbitrary, with some judges willing to grant summary judgment in cases
that other judges would find worthy of a trial.” The Limits of the Olympian Court: Common Law Judging versus Error Correction in the
Supreme Court, 63 Washington & Lee L. REV. 271 at 301 (2006). “(D)espite a significant number of appellate decisions,
employment discrimination law on summary judgment remains both stubbornly chaotic and amorphous.” Id. at 305.
The Seventh Amendment to the U. S. Constitution provides that
“(i)n Suits at common law . . . the right of trial by jury shall be
preserved, and no fact tried by jury, shall be otherwise re-examined
in any Court of the United States, than according to the rules of the
common law.” U. S. Const. amend. VII. Law professor Suja A.
Thomas shows “. . . that summary judgment conflicts with the core
principles or the ‘substance’ of the common law procedures” and
is therefore unlawful. See, Why Summary Judgment is
Unconstitutional, 93 VA. L. REV. 139 (2007). Assistant law professor
Carolyn Shapiro cautions:
The time has come for Congress (in conjunction with academics and/or employment law advocates) to confirm whether that
discretion has been abused to the detriment of federal workers and employees ostensibly protected under the False Claims Act, Title
31 U. S. C. sec. 3730(h).
CONGRESS IS OBLIGED TO INVESTIGATE THE USE OF SUMMARY JUDGMENTS AGAINST FEDERAL WHISTLEBLOWERS
find themselves welcomed by foreign nations. Federal government whistleblowers (including EEO complainants) are not truly availed
of protection afforded their speech by Congress through protracted, costly, and questionable legal proceedings. They need some
form of asylum and the present formulation of No FEAR II provides much of that counterweight. However, the federal judiciary should
also be directly checked by Congress in the overlapping interest of juries . Statistics suggest “. . . a surprising lack of deference to
juries [on the part of judges] when they rule for plaintiffs in employment cases and a willingness to grant judgment as a matter of law
(the equivalent of summary judgment) even in cases where a jury has already found for the plaintiff.” The Limits of the Olympian
Court: Common Law Judging versus Error Correction in the Supreme Court, 63 Washington & Lee L. REV. 271 at 306 (2006).
Detecting whether America’s federal judiciary unduly shields itself and/or its executive and/or legislative counterparts is as simple as
assessing whether plausible theories for establishing or refuting certain contractor and federal employment related liability have
been ignored on appeal through the affirmation of summary judgments. The process may generate trends or patterns based on
government branch and/or agency, federal judicial circuit, federal district, federal court, and/or federal judge. In any event, Congress is
obliged to confirm whether the federal judiciary of America holds the country’s Seventh Amendment sacrosanct, particularly in light of
contentions soundly advanced by Ohio law professor Suja A. Thomas. Assistant professor Carolyn Shapiro further notes that “(i)f
summary judgment is often inappropriately granted, levels of compliance with the antidiscrimination laws are likely depressed, and
plaintiffs who have legally cognizable injuries go uncompensated.” Id. at 307. (footnote omitted). The United States of America
should not profit by or in any way condone such a state of affairs.
sector employees join the thousands of employment discrimination plaintiffs who file related cases in federal court each year. Many
accordingly become subject to the procedural device known as “summary judgment” which the New York Times recently noted has
pushed “. . . judges right up to and sometimes across the constitutional lines of determining the facts (of a case) for themselves.”
Cases Keep Flowing In, But The Jury Pool Is Idle ; Adam Liptak, “The New York Times”, 4/30/2007.
SUMMARY JUDGMENTS IN EMPLOYMENT DISCRIMINATION LAWSUITS
In employment discrimination lawsuits, it is almost invariably the employer/defendant that or who requests summary judgment.
Asking for the relief makes a litigant the “moving party” with at least one opponent that or who is a “nonmoving party”. A professor at
the University of Cincinnati College of Law conveniently explains:
- The Supreme Court has interpreted (the law) to require . . . summary
judgment . . . when ‘a reasonable jury could [not] return a verdict for the
nonmoving party.’ In making this determination, a court considers the
entire record in the light most favorable to the nonmoving party and draws
only the ‘reasonable inferences [from the evidence] in favor of the
nonmovant.’ If the court decides that a reasonable jury could not find for
the nonmoving party, the court enters judgment for the moving party. If the
court decides that this standard is not met in other words, that a
reasonable jury could find for the nonmoving party then the case
proceeds to a trial before a jury.
Why Summary Judgment is Unconstitutional, 93 VA. L. REV. 139 at 145-
146 (2007). (footnotes omitted).
discrimination, retaliation, and/or harassment of rightful redress. Their corresponding win/loss record is not consistently compiled on
a national basis. Some relatively recent statistics indicate that in 2001, summary judgments accounted for nearly all of the 98% of
employment cases disposed of on pretrial motions in favor of employers. See, The Limits of the Olympian Court: Common Law
Judging versus Error Correction in the Supreme Court, 63 Washington & Lee L. REV. 271 at 297 (2006) citing Why Are Employment
Discrimination Cases So Hard To Win?, 61 LA. L. REV. 555, 560 (2001).
THE PROLIFERATION OF SUMMARY JUDGMENTS AS A THREAT TO CITIZENS' GOVERNMENT OVERSIGHT
There is a general proliferation of summary judgments, suggesting that “(t)rials are on the verge of extinction”. Cases Keep Flowing
In, But The Jury Pool Is Idle; Adam Liptak, “The New York Times”, 4/30/2007. A federal trial judge is reported to lament that the trend
disavows ‘the most stunning and successful experiment in direct popular sovereignty in all history.’ Id. Reporter Adam Liptak adds
that “(j)ury trials may be expensive and time-consuming, but the jury, local and populist, is a counterweight to central authority and is
as important an element in the constitutional balance as the two houses of Congress, the three branches of government and the
federal system itself.” Id.
A compelling argument has been made that “(s)ummary judgment is unconstitutional.” See, Why Summary Judgment is
Unconstitutional, 93 VA. L. REV. 139 (2007). Less controversial, but equally disturbing is the observation that in employment
discrimination cases, the “. . . area of law is chaotic and often arbitrary, with some judges willing to grant summary judgment in cases
that other judges would find worthy of a trial.” The Limits of the Olympian Court: Common Law Judging versus Error Correction in the
Supreme Court, 63 Washington & Lee L. REV. 271 at 301 (2006). “(D)espite a significant number of appellate decisions,
employment discrimination law on summary judgment remains both stubbornly chaotic and amorphous.” Id. at 305.
The Seventh Amendment to the U. S. Constitution provides that
“(i)n Suits at common law . . . the right of trial by jury shall be
preserved, and no fact tried by jury, shall be otherwise re-examined
in any Court of the United States, than according to the rules of the
common law.” U. S. Const. amend. VII. Law professor Suja A.
Thomas shows “. . . that summary judgment conflicts with the core
principles or the ‘substance’ of the common law procedures” and
is therefore unlawful. See, Why Summary Judgment is
Unconstitutional, 93 VA. L. REV. 139 (2007). Assistant law professor
Carolyn Shapiro cautions:
- The standards that courts use to resolve summary judgment motions in employment discrimination cases are well
established and largely uncontroversial, and they require judges to engage in a fact-intensive analysis. As in any area of law,
there are easy cases cases that unquestionably warrant summary judgment, on the one hand, on the other, cases that
clearly require a trial. But in the middle, the general nature of the standards, the factual variation in the cases, and the large
number of existing precedents provide judges with enormous discretion in deciding summary judgment motions.
- The Limits of the Olympian Court: Common Law Judging versus Error Correction in the Supreme Court, 63 Washington & Lee
L. REV. 271 at 298 (2006).
The time has come for Congress (in conjunction with academics and/or employment law advocates) to confirm whether that
discretion has been abused to the detriment of federal workers and employees ostensibly protected under the False Claims Act, Title
31 U. S. C. sec. 3730(h).
CONGRESS IS OBLIGED TO INVESTIGATE THE USE OF SUMMARY JUDGMENTS AGAINST FEDERAL WHISTLEBLOWERS
- The No FEAR Institute and its advocacy arm, the No FEAR Coalition, showcased No
FEAR II during Whistleblower Week in Washington, D. C. (WWW), May 13-19, 2007. Upon
enactment by Congress, No FEAR II would amend the Notification and Federal Employee
Antidiscrimination and Retaliation Act of 2002. As currently proposed, No FEAR II
submits that agencies engaged “in discrimination, retaliation, harassment or violations of
federal (anti-discrimination) and/or whistleblower (protection) laws undermine the
confidence of the American people in the Government, put the (public’s) safety and
services at risk, and reduces the Federal Government’s ability to timely and adequately
address vital public needs.” Yet ostracized and perhaps emotionally and/or financially
devastated individuals are largely left to their own devices to expose such unlawfulness.
find themselves welcomed by foreign nations. Federal government whistleblowers (including EEO complainants) are not truly availed
of protection afforded their speech by Congress through protracted, costly, and questionable legal proceedings. They need some
form of asylum and the present formulation of No FEAR II provides much of that counterweight. However, the federal judiciary should
also be directly checked by Congress in the overlapping interest of juries . Statistics suggest “. . . a surprising lack of deference to
juries [on the part of judges] when they rule for plaintiffs in employment cases and a willingness to grant judgment as a matter of law
(the equivalent of summary judgment) even in cases where a jury has already found for the plaintiff.” The Limits of the Olympian
Court: Common Law Judging versus Error Correction in the Supreme Court, 63 Washington & Lee L. REV. 271 at 306 (2006).
Detecting whether America’s federal judiciary unduly shields itself and/or its executive and/or legislative counterparts is as simple as
assessing whether plausible theories for establishing or refuting certain contractor and federal employment related liability have
been ignored on appeal through the affirmation of summary judgments. The process may generate trends or patterns based on
government branch and/or agency, federal judicial circuit, federal district, federal court, and/or federal judge. In any event, Congress is
obliged to confirm whether the federal judiciary of America holds the country’s Seventh Amendment sacrosanct, particularly in light of
contentions soundly advanced by Ohio law professor Suja A. Thomas. Assistant professor Carolyn Shapiro further notes that “(i)f
summary judgment is often inappropriately granted, levels of compliance with the antidiscrimination laws are likely depressed, and
plaintiffs who have legally cognizable injuries go uncompensated.” Id. at 307. (footnote omitted). The United States of America
should not profit by or in any way condone such a state of affairs.
