Sample Draft Motion for Summary Judgment

COMPLAINANT’S MOTION FOR SUMMARY JUDGMENT

1. Introduction
   Complainant John Doe respectfully moves for summary judgment on his behalf, as there are no disputed issues of material fact or credibility that warrant a hearing in this case.
2. Statement of the Claim(s)
   Whether Complainant was discriminated against on the bases of race and sex when he was denied a promotion to a Program Manager position in or about March 2024?
3. Statement of Undisputed Material Facts
   1. Complainant John Doe is an Asian male. Report of Investigation (ROI) at 214.
   2. Complainant has worked at the agency for 25 years, having spent the last 10 years as Deputy Program Manager. ROI at 215.
   3. Complainant served as Acting Program Manager on numerous occasions, including for a stretch of 6 months at one point, while the then Program Manager was on extended leave. ROI at 215-216.
   4. Complainant has achieved an Outstanding overall performance rating for the last 18 years. ROI at 216.
   5. Complainant has a bachelor’s of business administration degree and a master’s degree in organizational management. ROI at 487.
   6. Complainant applied for the Program Manager position at issue on November 5, 2023. ROI at 315.
   7. Complainant was informed by human resources that his application was complete on November 18, 2023. ROI at 764.
   8. Complainant was interviewed for the Program Manager position at issue on February 8, 2024. ROI at 298.
   9. On March 8, 2024, Complainant was informed that he was not selected for the Program Manager position at issue. ROI at 537.
   10. On March 14, 2024, Complainant learned that Jane Boe, the Selectee, was selected for the Program Manager position at issue. ROI at 537.
   11. Selectee is a white female. ROI at 555.
   12. Selectee never worked for the agency before she was hired for the Program Manager position at issue. ROI at 564.
   13. Selectee graduated from a community college with an associate’s degree in sociology in May of 2023. ROI at 569.
   14. Selectee’s only job experience consists of 3 years as a sales associate at a retail store. ROI at 570.
   15. Selectee applied and was interviewed for the Program Manager position at issue. ROI at 299.
   16. All 4 interview panel members stated in their affidavits that, based on interview performance, Complainant was the top candidate, while Selectee ranked 8^th out of 8 candidates. ROI at 300-319.
   17. The agency’s selecting official stated that, notwithstanding her relative lack of experience and qualifications, and the interview panel members’ recommendations, he decided to select Selectee for the Program Manager position at issue based on his “gut feeling.” ROI at 368.
   18. Selectee received her offer of employment from the agency on March 14, 2024; her entrance on duty date was April 15, 2024. ROI at 539.
4. Legal Standards

   1. Summary Judgment Standard

      Summary judgment is appropriate if the pleadings, answers to interrogatories, admissions, affidavits and other evidence establish no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. See 29 C.F.R. § 1614.109(g); see also Murphy v. Dep’t of the Army, EEOC Appeal No. 01A04099 (July 11, 2003) (noting that the regulation governing decisions without a hearing is modeled after the Federal Rules of Civil Procedure, Rule 56). Only disputes over facts that might affect the outcome of the suit under governing law, and not irrelevant or unnecessary factual disputes, will preclude the entry of summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Material factual disputes include credibility disputes where two or more people have different versions of the relevant event, and the determination of that credibility dispute will affect the outcome of the case. There is no genuine issue of material fact if the relevant evidence in the record, taken as a whole, indicates that a reasonable fact-finder could not return a verdict for the party opposing summary judgment. Id. 

      When opposing a properly supported motion for summary judgment, a party must respond with specific facts showing that there is a genuine issue of material fact and that the moving party is not entitled to judgment as a matter of law. See Anderson, 477 U.S. at 250. An opposing party may not rest upon mere allegations or denials in the pleadings or upon conclusory statements in affidavits; rather, they must go beyond the pleadings and support their contentions with proper documentary evidence. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). To defeat summary judgment, a party must show that there is sufficient material evidence supporting the claimed factual dispute to require a fact finder to resolve the parties’ differing versions of the truth at trial. Anderson, 477 U.S. at 248-49. 

   2. Disparate Treatment Standard

      To establish a prima facie case in a non-selection case, Complainant must show: (1) he is a member of the protected class; (2) he applied for and was qualified for the position; (3) he was not selected despite his qualifications; (4) someone outside his protected class was selected. Williams v. Dep’t of Education, EEOC Request No. 05970561 (August 6, 1998). Complainant may also set forth evidence of acts from which, if otherwise unexplained, an inference of discrimination can also be drawn.

      If the complainant establishes a prima facie case of disparate treatment, the burden shifts to the agency to articulate one or more legitimate, non-discriminatory reasons for the challenged actions. See Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). If the agency does so, the complainant must prove, by a preponderance of the evidence, that the agency’s articulated reasons for its actions were not its true reasons, but rather shams or pretexts for unlawful discrimination. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 511 (1993); Burdine, 450 U.S. at 256; McDonnell Douglas, 411 U.S. at 804.

      The Commission has held that pretext may be demonstrated in a variety of different ways in non-selection cases. Complainant could do so, for example, by showing that his qualifications were “plainly superior” to those of the selectee; that discriminatory statements were made or that he was subjected to questionable past personal treatment attributable to those responsible for the personnel actions leading to the complaint; that comparative or statistical data reveal differences in treatment across various group lines; that Agency policy was applied unequally; that the Agency deviated from standard procedures without explanation or justification; or that inconsistencies in the evidentiary record were not adequately explained. Broderick D. v. U.S. Postal Serv., EEOC Appeal No. 0120162220 (Jan. 11, 2017) (citing Hung P. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120141721 (Dec. 3, 2015); Melissa F. v. U.S. Postal Serv., EEOC Appeal No. 0120141697 (Nov. 12, 2015)).

5. Analysis

   As explained below, there are no genuine issues of material fact in this case, and Complainant is entitled to judgment as a matter of law in his favor.

   It is undisputed that Complainant is Asian and male; that he applied and was qualified for the Program Manager position at issue; that he was not selected despite his extensive qualifications; and that a white female was selected for the position, even though her qualifications pale in comparison to those of Complainant. Thus, Complainant has established a prima facie case of disparate treatment.

   In support of its hiring decision, the agency cites the selecting official’s affidavit, in which he stated that his choice of Selectee was based on his “gut feeling.” This evidence, as weak as it is, at least arguably constitutes a legitimate, non-discriminatory reason for the agency’s decision.

   The undisputed evidence, however, establishes that the agency’s explanation for its selection decision is pretext for disparate treatment. Complainant’s qualifications are plainly superior to those of Selectee: Complainant has 25 years of experience at the agency, and earned Outstanding performance ratings for the last 18 of those years—Selectee has a mere 3 years of experience at a retail store; Complainant served as Deputy Program Manager for the last 10 years, and during that time often served as Acting Program Manager, once for a period of 6 months—Selectee’s sales associate position at a random retail store cannot compare; Complainant holds bachelor’s and master’s degrees, while Selectee holds only an associate’s degree; and the hiring panel members unanimously ranked Complainant first based on his interview performance, while also ranking Selectee last. In summary, Complainant’s agency experience, relevant job experience, education, and interview performance far exceeded Selectee’s minimal qualifications and performance. As a result, the undisputed evidence indicates that the selecting official’s “gut feeling” is a clear pretext for discrimination based on race and sex.

6. Conclusion

   For the reasons set forth above, Complainant respectfully requests that the Administrative Judge grant his Motion for Summary Judgment, issue a decision on liability without a hearing, and schedule this case for a pre-hearing conference and hearing to determine what monetary damages and other relief Complainant should be awarded.

                                                                        ________________________________

                                                                        John Doe                                

                                                                        Complainant

CERTIFICATE OF SERVICE

I hereby certify that on ____/____/20____, I have uploaded to the Public Portal and emailed the attached Motion for Summary Judgment to the following individuals at the addresses listed below:

                                                                        ________________________________

                                                                        John Doe                                

                                                                        Complainant