Sample Draft Response to Motion for Summary Judgment

COMPLAINANT’S RESPONSE TO AGENCY’S MOTION FOR SUMMARY JUDGMENT

1. Introduction

   Complainant John Doe respectfully responds to the agency’s motion for summary judgment, and urges the Administrative Judge to deny it. Complainant will demonstrate through this Response that there are multiple disputed issues of material fact and 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. Responsive Statement of Undisputed Material Facts

   1. Complainant John Doe is an Asian male.

      Complainant concedes this fact is undisputed.

   2. Selectee Jane Boe is a white female.

      Complainant concedes this fact is undisputed.

   3. Complainant has a bachelor’s of business administration degree.

      Complainant concedes this fact is undisputed.

   4. Selectee has a bachelor’s degree in sociology, as well as a master’s degree in organizational management.

      Complainant concedes this fact is undisputed.

   5. Complainant worked for the agency for 25 years at the time he applied for the Program Manager position at issue, serving in various roles, but never in a management capacity.

      Complainant disputes this fact. While it is true that Complainant’s official roles never included supervisory or management responsibility, he frequently served as Acting Program Manager, and in that role he did successfully perform a wide range of supervisory and management tasks. ROI at 414-416, 832. There is a factual dispute regarding whether and to what extent Complainant had supervisory and management responsibilities in an acting capacity, which must be resolved during a hearing, where the Administrative Judge can assess the credibility and testimony of all witnesses.

   6. Selectee worked as a full-time supervisor for 8 months before joining the agency. As a supervisor, she performed a wide range of management and supervisory tasks.

      Complainant concedes this fact is undisputed, but disputes the relative value of Selectee’s supervisory role as compared to the extensive management and supervisory responsibilities he had while serving in an acting capacity with the agency. ROI at 414-416, 832.

   7. Complainant applied for the Program Manager position at issue on November 5, 2023.

      Complainant concedes this fact is undisputed.

   8. Selectee applied for the Program Manager position at issue on November 8, 2023.

      Complainant concedes this fact is undisputed.

   9. Complainant was interviewed for the Program Manager position at issue on February 8, 2024.

      Complainant concedes this fact is undisputed.

   10. Selectee was interviewed for the Program Manager position at issue on February 7, 2024.

       Complainant concedes this fact is undisputed.

   11. The interview panel ranked Complainant second out of eight candidates.

       Complainant disputes this fact. As indicated at page 456 of the ROI, only two of the four interview panel members provided affidavits in this case, and one of the two who did not provide an affidavit (Interview Panel Member (IPM) 3) stated during his deposition (ROI at 587-589) that he ranked Complainant first, and believed the other panel member who did not provide an affidavit (IPM 4) also ranked Complainant first. In addition, the interview panel members’ scoring sheets have not been produced by the agency. For these reasons, there is a factual dispute regarding where Complainant ranked in relation to Selectee, which must be resolved during a hearing, where the Administrative Judge can assess the credibility and conflicting testimony of all interview panel members.

   12. The interview panel ranked Selectee first out of eight candidates.

       Complainant disputes this fact. As indicated in Complainant’s response to the agency’s undisputed fact 11, there is a factual dispute regarding where Complainant ranked in relation to Selectee, which must be resolved during a hearing.

   13. Selectee’s qualifications for the Program Manager position at issue are far superior to those of Complainant.

       Complainant disputes this statement and points out that it is not a fact but rather a subjective opinion. The record evidence and hearing testimony and exhibits will establish that Complainant’s qualifications for the Program Manager position at issue, though different from those of Selectee, are vastly superior to hers. ROI at 218-220, 384-85, 409-421, 873-878.

   14. The agency’s selecting official stated that, in reaching his decision to hire Selectee, he relied on the interview panel members’ recommendations and his own “gut feeling.” ROI at 368.

       Complainant disputes the accuracy of the selecting official’s statement. As indicated in Complainant’s response to the agency’s undisputed fact 11, there is a factual dispute regarding where Complainant ranked in relation to Selectee; that factual dispute must be resolved during a hearing. The accuracy of the interview panel members’ rankings and recommendations is unclear, and the evidence indicating their true ranking and recommendations is incomplete and conflicting. ROI at 456, 587-589. Because of this, the selecting official’s statement cannot be taken at face value. He must be subjected to cross examination during a hearing, where his testimony and credibility can be properly assessed by the Administrative Judge in light of all of the evidence in the case.

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 genuine issues of material fact in this case, so the agency’s Motion for Summary Judgment must be denied, and the Administrative Judge should schedule a pre-hearing conference and hearing as soon as practicable.

   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. Thus, the undisputed evidence shows that Complainant has established a prima facie case of disparate treatment.

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

   Notwithstanding the foregoing, Complainant contends that there are disputed issues of fact regarding the question of pretext. Specifically, two significant factual disputes require a hearing in this case: (1) the parties dispute whether and to what extent Complainant had supervisory and managerial experience that was comparable (or vastly superior) to Selectee’s supervisory and managerial experience; and (2) the parties dispute the accuracy and legitimacy of the interview panel members’ recommendations and ranking. The first factual dispute pertains to the important question of the strength of Complainant’s job qualifications relative to those of Selectee. The second factual dispute pertains to what the interview panel actually recommended, and whether the selecting official legitimately relied on those recommendations, or whether that reliance is a mere pretext for race and/or sex discrimination. In summary, because the evidence is disputed as to the relative strength of Complainant’s qualifications as compared to those of Selectee, and as to the accuracy and legitimacy of the interview panel members’ recommendations and ranking, the Administrative Judge must conduct a hearing in this case before making a determination regarding the question of pretext.

6. Conclusion

   For the reasons set forth above, Complainant respectfully requests that the Administrative Judge deny the agency’s Motion for Summary Judgment and schedule this case for a pre-hearing conference and liability hearing as soon as practicable.

                                                                        ________________________________

                                                                        John Doe                                

                                                                        Complainant

CERTIFICATE OF SERVICE

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

                                                                        ________________________________

                                                                        John Doe                                

                                                                        Complainant