Tenth Circuit Rules on Miscellaneous Summary Judgment Issues

The Tenth Circuit has just issued an opinion in Bryant v. Farmers Insurance Exchange (10th Cir. Dec. 20, 2005) in which they addressed the propriety of an affidavit submitted by the plaintiff and the sufficiency of the plaintiff's response to the summary judgment motion lodged against her. Here is the court's summary introduction of the opinion:

This case involves various age and gender discrimination claims brought by Plaintiff-Appellant Judith A. Bryant ("Bryant") against her former employer, Defendant-Appellee Farmers Insurance Exchange ("Farmers"). The district court granted summary judgment in favor of Farmers. On appeal, Bryant raises two issues: (1) whether the district court abused its discretion in excluding portions of her summary judgment affidavit as inadmissable; and (2) whether there existed a genuine dispute of material fact regarding the pretextual nature of Farmers' proffered nondiscriminatory reasons for terminating Bryant. As to Bryant's affidavit, we hold, inter alia, that so long as the other prerequisites of Fed. R. Civ. P. 56(e) are met, it is permissible to submit simple statistical calculations such as averages without first being designated as an expert witness. Regarding pretext, we conclude that Bryant's evidence calling into question the veracity of Farmers' nondiscriminatory reasons for firing her are sufficient to establish pretext for summary judgment purposes.