Argued and Submitted May 4, 2000 — San Francisco, California.
KLEINFELD, Circuit Judge:
This case turns on summary judgment procedure. The issue is whether a judge must consider materials outside the motion papers and things referred to therein.
Plaintiff Gwendolyn Carmen holds state certification to teach elementary school. For many years, she worked as a day to day substitute teacher in San Francisco. Though she does not speak, read or write Chinese, she worked as a long-term substitute teacher in a fifth grade Chinese bilingual class during the 1991-92 school year. She had a Chinese-speaking teacher's aide.
Carmen lost the long-term substitute Chinese bilingual job for the 1992-93 school year to Eleanor Chan. Both Chan and Carmen lacked bilingual education certificates, but Chan spoke Chinese. Carmen sued the school district, claiming that she was discriminated against in this appointment because she is Black.
Carmen made another claim-one of more substance than her claim that the school district discriminated against her because she was Black by hiring someone who could speak Chinese to teach a Chinese bilingual class. The more substantive claim is that the school district retaliated against her for filing her lawsuit. An employer may not retaliate against someone for filing a civil rights claim, whether the claim is meritorious or not.
The school district moved for summary judgment on all claims, including the retaliation claim. The district court granted the motion, because Carmen had failed to produce any evidence showing that the school district's actions were in retaliation for filing her civil rights claims.
Carmen's memorandum in opposition to the school district's motion for summary judgment did not point to any competent evidence of retaliation whatsoever. The only evidence supporting a retaliation claim, in all of the papers submitted or even mentioned in the summary judgment proceedings, was a statement by Carmen in her deposition that she believed she was denied a position because of her lawsuit: "I believe it's because of this court case." She did not testify to any admission by a representative of defendant or any other evidence, direct or circumstantial, to support this subjective statement.
On this evidence, the district court was correct in determining that there was no genuine issue of material fact. A plaintiff's belief that a defendant acted from an unlawful motive, without evidence supporting that belief, is no more than speculation or unfounded accusation about whether the defendant really did act from an unlawful motive. To be cognizable on summary judgment, evidence must be competent.
The difficulty in this case arises because there was other evidence, not in the summary judgment papers, that would have made Carmen's retaliation case much stronger, and would have furnished a basis in personal knowledge for her belief. In her brief on appeal to this court, Carmen quotes from a declaration she made where she said that a vice president of the school board told her that "as long as I continue to maintain legal proceedings against the District, I will be unable to obtain employment with the district." The school board official filed a declaration that he had never made any such statement. On summary
Understandably, when the magistrate judge wrote her decision, she was unaware of this statement. The record in this case consists of six heavily stuffed folders of papers, eight or nine inches thick when pressed together. The declaration with this retaliation admission was filed two years before the summary judgment motion at issue. Carmen had sued her union as well as the school board and others. The declaration alleging the retaliation admission was filed in opposition to the union's motion for summary judgment (not the school board's motion that is before us on this appeal). That motion had been decided (the union prevailed) a year and a half, and many hundreds of pages of record, before the decision on the motion at issue on this appeal. As a practical matter, there was no reason why the magistrate judge would remember or look for Carmen's by-then ancient declaration.
We review summary judgment de novo.
Federal Rule of Civil Procedure 56 is arguably ambiguous. Supporting the proposition that the motion should be judged on the basis of the motion papers, the rule says that "the adverse party's response, by affidavits or as otherwise..., must set forth specific facts showing that there is a genuine issue for trial."
We held in Forsberg v. Pacific Northwest Bell Telephone Co.
But in Nilsson, Robbins, Dalgarn, Berliner, Carson & Wurst v. Louisiana Hydrolec,
Other circuits are not unanimous, but Forsberg is both binding on us and consistent with the majority view that the district court may limit its review to the documents submitted for the purposes of summary judgment and those parts of the record specifically referenced therein. Four circuits, the Fifth,
To avoid confusion that might remain after Nilsson, we now expressly reaffirm Forsberg. It is compelled by prior precedent.
Rule 56 may be adequately satisfied by a lawyer designating where (outside the opposition papers) the critical evidence can be found and what it says, though ordinarily the better practice would be to photocopy and attach the evidence to the opposition papers. It is difficult to imagine why the respondent's lawyer would not remember
The alternative, requiring the district court to search the entire record, even though the adverse party's response does not set out the specific facts or disclose where in the record the evidence for them can be found, is unfair. The cases often refer to the unfairness to the district court, which is substantial, but hardly the full story. If a district court must examine reams or file cabinets full of paper looking for genuine issues of fact, as though the judge were the adverse party's lawyer, an enormous amount of time is taken away from other litigants. Other litigants could have that judicial time, and get their cases resolved better and faster, if the district court could limit examination to the materials submitted in opposition to the summary judgment motion.
Requiring the district court to search the entire record for a genuine issue of fact, even though the adverse party does not set it out in the opposition papers, is also profoundly unfair to the movant. The gist of a summary judgment motion is to require the adverse party to show that it has a claim or defense, and has evidence sufficient to allow a jury to find in its favor on that claim or defense. The opposition sets it out, and then the movant has a fair chance in its reply papers to show why the respondent's evidence fails to establish a genuine issue of material fact. If the district court, or later this court, searches the whole record, in practical effect, the court becomes the lawyer for the respondent, performing the lawyer's duty of setting forth specific facts showing that there is a genuine issue for trial. The movant is then denied a fair opportunity to address the matter in the reply papers. Unless the court holds oral argument and brings up the fruit of its search, the movant never receives notice and an opportunity to be heard on the critical evidence. If given an opportunity, the movant might sometimes be able to show that the appearance of a genuine issue of fact was illusory.
We hold that the district court may determine whether there is a genuine issue of fact, on summary judgment, based on the papers submitted on the motion and such other papers as may be on file and specifically referred to and facts therein set forth in the motion papers. Though the court has discretion in appropriate circumstances to consider other materials, it need not do so. The district court need not examine the entire file for evidence establishing a genuine issue of fact, where the evidence is not set forth in the opposing papers with adequate references so that it could conveniently be found.