The federal Tenth Court of Appeals handed down an opinion which is illustrative of the difficulty plaintiffs have in federal court to clear the ever increasing height of the summary judgment hurdle. Many of the judges in the federal system are clearly usurping the role of a jury and deciding fact issues by simply stating that no reasonable jury could decide in a certain manner to allow a plaintiff to receive a jury trial of the case. The U.S. Constitution grants every citizen the right to a jury trial. However, this right is being seriously eroded by judges who apparently don’t like the jury system and the result is the curtailment of this constitutional right. The Tenth Court of Appeals ruled in the case of Brown v. Scriptpro, Inc., that Brown failed to produce enough evidence to get to a jury regarding his Family Medical Leave Act (FMLA) claim. Brown requested time off to accompany his wife to the doctor regarding their new baby (an area which is protected by the FMLA). This request was refused and two days later Brown was fired. Brown sued for interference with his right to take leave and retaliation for having requested the leave. Scriptpro responded by pointing to discipline problems of Brown stating that they were the reason he was fired when he was. The evidence presented did not show that Scriptpro had informed Brown that it had an intent to fire him if the matters were not corrected. Also, Scriptpro did not present evidence that it always fires employees with Brown’s level of performance issues. It appears from the evidence that they simply fired him two days after the request for FMLA leave. The Court stated that there was no evidence to rebut Scriptpro’s assertion that they fired Brown for the previous performance problems. However, this shows how some courts have apparently distanced their assessments from that of the “reasonable juror”. You may or may not agree with me, but anytime you have a situation like this with an action and then an almost immediate reaction by the employer, a question of fact for a jury arises in my mind. Some federal courts don’t agree with this and demand some more evidence beyond the close proximity of the act and a result. However, this is what a jury does. A jury listens to the testimony, judges the witnesses and their demeanor, examines the evidence and then decides. And, this is my issue with the opinion, in that it appears that a reasonable jury could believe that Scriptpro decided to fire Brown based on the FMLA leave request. A plaintiff does not have to show that the protected activity is the only cause of his termination. Even though there may have been other reasons for Brown’s termination, it appears that the FMLA request could have been the final act that caused his termination. At least, this would be something for a reasonable jury to decide based on having all the evidence and the chance to judge its credibility by hearing and seeing the witnesses (something the judges did not have before them in deciding the case from afar).