In Malin v Hospira Inc, 762 F3d 552 (7th Cir 2014), the Seventh Circuit reversed a summary judgment granted the defendant-employer, Hospira Inc, on the plaintiff's FMLA and Title VII retaliation claims. The court's analysis is unremarkable, even as it takes pains to emphasize that it has never erected a temporal proximity bar to a retaliation claim and address an evidence issues, but its conclusion highlights features of summary judgment practice that many will surely and dismayingly find all too familiar:
- Both in the district court and in this appeal, Hospira has misrepresented the record and Malin's legal arguments.
- Hospira repeatedly cherry-picked isolated phrases from Malin's deposition and claimed that these "admissions" doomed her case.
- Hospira's presentation of the evidence amounted to nothing more than selectively quoting deposition language it likes and ignoring deposition language it does not like.
- Hospira seems to have based its litigation strategy on the hope that neither the district court nor this panel would take the time to check the record.
While the court's condemnations are most unusual the practices that it cites are not; cherry-picking of evidence, misrepresenting the record and selectively quoting deposition language the defendant likes and ignoring deposition language it does not like is the norm, not the exception.
I have previously posted about this case, Retaliation & Temporal Proximity - "We reject the idea that the passage of a particular amount of time between protected activity and retaliation can bar the claim as a matter of law." I also again thank Rick Seymour for bringing this case to my attention and others over the NELA listserve.
