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Home / Expert Opinion / Workplace Issues: Weighing of evidence, discriminatory motive issues for jury

Workplace Issues: Weighing of evidence, discriminatory motive issues for jury

Lindy Korn

The Court of Appeals has reversed summary judgment in a disability discrimination case, holding that the jury could find that the plaintiff was disabled under the Americans with Disabilities Act and that her employer offered pretextual reasons for her termination, Bar-Tur v. Arience Capital Management, LP, 11-864-cv, summary order (Aug. 3).

The district court concluded, “Bar-Tur fails to carry her burden of establishing as a matter of law that her CVID (Common Variable Immunodeficiency) substantially impacts her ability to breathe, sleep or speak,” Bar-Tur v. Arience Capital Mgmt., LP, No. 09-Civ. 2653, 2011 WL 565333, (SDNY Feb. 9, 2011). The Second Circuit reminded the court that the questions was not whether Bar-Tur “established” her claim, but whether she presented sufficient evidence to raise an issue of fact for trial.

In this case, the district court had weighed evidence about Bar-Tur’s ability to breathe given evidence of her active lifestyle, and resolved the factual dispute on the motion for summary judgment against the non-moving party. The appeals court reminds the district court that on a summary judgment motion the court is not entitled to weigh the evidence.

As to the retaliation claim, the appeals court found that there was sufficient evidence in the record to raise an issue for trial and that a reasonable jury could find that the facts of the case connecting her discharge to her medical condition, the timing and sequence of events that led up to her discharge were retaliatory.

The legitimate non-discriminatory reason offered presented issues of motive that are reserved for a jury, the court noted. Here the record contained evidence that at the time of her discharge, employees commented that:

1) Bar-Tur would be able to attend to her “little doctor appointments” now that she was relieved of certain responsibilities;

2) The demotion was supposed to be a personal opportunity for Bar-Tur to take care of some important things in her life; and

3) Arience wanted to give Bar-Tur “space to work through her health issues.”

This case served as an important reminder that there are boundaries to what may be accomplished in a motion for summary judgment. This writer, who represents only plaintiffs can make an observation that in discrimination cases, it is important to have the genuine issues of material facts heard by a jury, who can make decisions based on their life experiences. Summary judgment motions operate as a gatekeeper and therefore must not be granted where motives or credibility issues exist.

Lindy Korn practices at The Law Office of Lindy Korn and can be reached at or (716) 856-KORN (5676).