Experienced counsel for an employer defending against a discrimination lawsuit will look for an opportunity to fi le a motion for summary judgment from the court. Summary judgment ends the litigation without the time and expense of a trial, and is granted when there are no material facts in dispute and the moving party is entitled to judgment as a matter of law.

In determining whether there are key facts in dispute requiring a trial, courts ruling on summary judgment motions are taking a closer look at what employers have said in position statements submitted in response to charges fi led with the EEOC or state administrative agencies, and comparing those statements to what is being said about the same subjects in the lawsuit.

In Hernandez v. Hughes Missile Systems Co., 362 F.3d 564 (2004), the Ninth Circuit Court of Appeals held that an issue of material fact was created when an employer offered differing justifi cations for its failure to rehire a former employee. In a position statement to the EEOC, a manager for the employer had said the plaintiff was not rehired because he had a history of on-the-job substance abuse and failed to show he was rehabilitated. However, in a pre-trial deposition that same manager said the plaintiff’s application was rejected because of the company’s policy not to rehire individuals terminated for misconduct (such as on-the-job substance abuse). The court held that a jury could reasonably conclude that the employer’s new explanation, never presented to the EEOC, was a pretext for discrimination. Consequently, the employer’s motion for summary judgment was denied.

A similar result was reached recently by a federal district court in the Northern District of Illinois.These cases are a warning to employers responding to agency investigations to carefully evaluate and articulate the reason or reasons for having taken an adverse employment action. As a possible additional safeguard, we encourage including a disclaimer in any position statement to the effect that the company is not waiving its right to present new or additional facts or arguments based on subsequently acquired information, and that the position statement is not an affi davit or intended to be used as evidence in litigation. While not foolproof, the disclaimer may assist you in your efforts to obtain summary judgment in a subsequent lawsuit.

If you have any questions about the subjects discussed in this article, please contact Elizabeth Noonan (312-609-7795) or any other Vedder Price attorney with whom you have worked.