A recent review of appeals of employment cases in the Sixth Circuit revealed the Court is more likely to uphold rather than overturn grants of summary judgment in favor of defendant-employers. In a solid 60% of appeals in these cases, the Circuit upheld summary judgment for the employer.

The survey involved an analysis of Sixth Circuit cases in the last twelve months that fell under the “labor and employment” classification and ended in district court with some level of summary judgment (whether entire or partial). Of the cases uncovered using this method, a mere 1% (two cases) involved appeals from summary judgment in favor of the plaintiff-employee, but both cases were dismissed for failing to meet an exception to the final appealable order rule. Another 8% resulted in a mixed “affirmed in part, reversed in part” disposition. Notably, just about one-third of the appeals resulted in complete reversal of the defendants’ summary judgment victory in district court.

Also uncovered were the most frequently-litigated statutes in these types of employment cases. Assuming that appeals of summary judgment in the employment context fairly represent appeals in employment cases in the Sixth Circuit generally, the major extrapolation from this survey is that employee claims most frequently involve accusations of discrimination and the invocation of the ADA’s protections. At least one-third of all cases involved discrimination claims of some sort (whether racial, ethnic, gender, etc.), and about one-fifth specifically alleged retaliatory actions by the employer. A distant second to ADA claims were those under the ADEA and FMLA. Finally, about one-fifth of cases involved some government entity as a defendant, and about half of those raised § 1983 claims.

Although the sample size is small, it does tell us a few things about employment appeals in the Circuit. Summary judgment for employers is upheld more often than not, but 60% is by no means an “overwhelming” majority. Recall that the overall affirmance rate at the Circuit is around 90% (but this includes pro se, prisoner, and criminal appeals). So that means that employment summary judgment appeals are reversed at a higher rate than average, and it indicates that the Court is carefully reviewing these appeals. Employers therefore should not take affirmance for granted, and must carefully marshal the arguments needed to convince the Court to uphold summary judgment.