A Guide to Summary Judgment for Unrepresented Complainants

What is Summary Judgment?

Summary judgment is one way cases are resolved in the EEOC’s federal sector hearings process. Summary judgment decisions are issued by an Administrative Judge in favor of one party and against the other without first conducting a hearing. For this reason, summary judgment decisions are also referred to as “decisions without a hearing.”

Decisions without a hearing are based on the evidence contained in the Report of Investigation (ROI), any additional evidence gathered by the parties through discovery, and the arguments contained in the written and/or oral submissions of the parties. For general information about the discovery process, please refer to A Guide to the Discovery Process for Unrepresented Complainants.

Under What Circumstances is Summary Judgment Appropriate?

Summary judgment is appropriate only if the Administrative Judge determines that: (1) the record is complete, meaning there is sufficient evidence to issue a decision; and (2) there are no notable disputes about the facts central to the case (also known as “material” facts). If the Administrative Judge determines that one or both of these requirements are not satisfied, they will hold a hearing to further develop the record and clarify the evidence, so that a decision can be reached.

At What Stage of the Hearings Process is Summary Judgment Considered?

In most cases, summary judgment is considered after the Administrative Judge conducts an initial conference and the parties have had an opportunity to engage in the discovery process.

Who Can Request Summary Judgment?

Summary judgment may be requested by either party. To request summary judgment, a party must file a motion in writing. The party filing the motion is known as the “moving party.” The party responding to the other party’s motion is known as the “non-moving party.” For information on motions generally, please refer to A Guide to Motions for Unrepresented Complainants. The parties will receive specific instructions on how and when to file a summary judgment motion from the assigned Administrative Judge. A sample summary judgment motion can be found here.

Can Both Parties File Motions for Summary Judgment at the Same Time?

Yes. Both parties may file motions for summary judgment at the same time.

If Neither Party Requests Summary Judgment, Can the Administrative Judge Still Consider It?

Yes. The Administrative Judge can notify the parties that they believe the case is proper for summary judgment. If the Administrative Judge issues such a notice, the notice will explain the specific reasons for the proposed summary judgment and provide the parties instructions on how and when to respond. The parties always have an opportunity to respond to an Administrative Judge’s notice of proposed summary judgment.

What Information is Contained in a Summary Judgment Motion?

Summary judgment motions include: (1) a statement or list of undisputed facts central to the case (this is known as a “statement of undisputed material facts”); and (2) an analysis of these facts under applicable legal standards. The statement of undisputed material facts should contain citations to the ROI or other evidence gathered by the parties during discovery that supports each undisputed material fact. A statement of undisputed material facts should tell a story, with the initial goal of explaining what happened, where, when, how, by whom, and why—the secondary but equally important goal is to persuade the Administrative Judge that both parties are in agreement as to the material facts.

What is a Material Fact, an Undisputed Material Fact, and an Immaterial Fact?

Material facts are facts that are central to the case. This means they impact the ultimate determination as to whether discrimination occurred. Undisputed material facts are facts that are central to the case that both parties agree are true or accurate. Immaterial facts are facts that are not central to the case. 

For example, if a female complainant claims she was not selected for a job based on her sex, one material fact would be the sex of the person selected for the job instead of complainant. If both parties agree that the person selected for the job is male, then this is an undisputed material fact; that is, it is both a central fact, and it is not disputed by the parties. In contrast, an example of an immaterial fact would be which jacket complainant wore to the job interview. While complainant’s jacket choice may be interesting, it is not essential to determining whether discrimination occurred. 

How to Apply the Legal Standards to the Undisputed Material Facts

After the statement of undisputed material facts, the motion should include an analysis of those facts under the legal standards that apply to the case. In a non-selection case like the example above, the analysis should start with whether, at a minimum, complainant can show that she applied and was qualified for the job, and the person who got the job is of a different sex.

The legal standards that apply in a particular case depend on the complainant’s claims. For example, the legal standards applicable to a disparate treatment claim (i.e., a claim that a complainant was treated less favorably than another employee) differ from the standards applicable to a harassment claim, which differ from the standards applicable to a disability accommodation claim, and so forth. It is very important that you understand which legal standards apply in your case, and relatedly, which facts are most important, or “material,” in light of those legal standards. You can learn more about the various legal standards on the EEOC's website, which includes information about the laws enforced by the EEOC, as well as resources about the hearings process.

Are Responses to Summary Judgment Motions Permitted?

Yes. In fact, responses are not only permitted but highly encouraged. A response to a summary judgment motion must be in writing, submitted by the deadline set by the assigned Administrative Judge, and include: (1) a statement that responds to the undisputed material facts listed in the summary judgment motion; and (2) a responsive analysis of the facts under the applicable legal standards. 

Overall, the goal when responding to a motion for summary judgment is to persuade the Administrative Judge that one or more material facts are legitimately disputed. These legitimate disputes must be resolved in a hearing, during which the Administrative Judge will assess witness credibility, consider additional evidence, and reconcile the parties’ competing versions of what happened.

With this objective in mind, a responsive fact statement should address each undisputed material fact listed in the other party’s motion for summary judgment, indicating agreement or disagreement that the fact is undisputed. For example, in the non-selection example above, instead of agreeing that the person selected for the job was male, the parties actually disagree on this essential fact. Complainant believes it was her male co-worker who got hired for the job, while the agency asserts it was a female candidate from outside the agency. The non-moving party should indicate in their responsive fact statement that the sex of the person who got the job—a fact material to the case—is disputed rather than undisputed. 

The non-moving party should also cite to the ROI or other evidence gathered by the parties to point out for the Administrative Judge where the evidence conflicts. For example, the non-moving party could cite to the selecting official’s affidavit testimony stating that the selectee was a female candidate from outside the agency, whereas a selection sheet document in the ROI indicates that the selectee was complainant’s male co-worker. A sample response to a summary judgment motion can be found here.

What is the Key Difference Between a Motion for Summary Judgment and a Response to a Motion for Summary Judgment?

Motions for summary judgment are intended to persuade the Administrative Judge that the undisputed material facts, when viewed alongside the legal standards applicable to the case, so clearly favor the party requesting summary judgment that a hearing is unnecessary and a decision can be made in favor of the moving party as a matter of law. A response to a motion for summary judgment, on the other hand, should focus on how the existing factual disputes, if resolved in the non-moving party’s favor, could support a judgment in that party’s favor. The related goal is to persuade the Administrative Judge that a hearing is needed to resolve the factual disputes.

Can I File a Reply?

The party that files a motion for summary judgment may, if the Administrative Judge allows it, file a reply to the non-moving party’s response. Generally speaking, summary judgment replies should be brief, focusing on the facts discussed and arguments made in the non-moving party’s response, not on previously raised or new arguments. Before filing a reply, the party should consult with the Administrative Judge as to whether a reply will be considered.

What Happens After a Summary Judgment Motion and Response to the Motion Have Been Filed?

The Administrative Judge will carefully review the summary judgment motion, the non-moving party’s response, and the moving party’s reply, if one was filed, to determine whether a hearing is needed. 

What Are the Possible Outcomes?

Administrative Judge Grants Summary Judgment for Complainant: If the Administrative Judge issues a decision granting a complainant’s motion for summary judgment as to at least one claim, the case will proceed to the relief phase of the process. The relief phase is when the Administrative Judge decides what monetary damages and other types of relief to award in a case. In that phase, the Administrative Judge may schedule a hearing on relief, during which the parties will be given the opportunity to present evidence related to and argue in favor of or against the complainant’s request for relief, which may include, for example, reinstatement to a former job, monetary damages for pain and suffering, monetary damages for out-of-pocket expenses resulting from the discrimination, attorney’s fees, and leave restoration. Alternatively, the Administrative Judge may decide a hearing on relief is unnecessary, and instead ask the parties to submit written evidence and arguments in support of or against the complainant’s request for relief. At the conclusion of the relief stage, once the Administrative Judge issues a decision on relief, the Administrative Judge will also issue an Order Entering Judgment in favor of the complainant, which formally ends the hearings process for the case.

Administrative Judge Grants Summary Judgment for Agency: If the Administrative Judge issues a decision granting a federal agency’s motion for summary judgment as to all of a complainant’s claims, they will also issue an Order Entering Judgment in favor of the federal agency.

Administrative Judge Partially Grants/Partially Denies Summary Judgment for Either Party: If the Administrative Judge issues a decision granting summary judgment as to one or more but not all of a complainant’s claims, the case will proceed to a hearing on the remaining claim(s).

Administrative Judge Denies Summary Judgment for Either Party: If the Administrative Judge denies a motion for summary judgment, the Administrative Judge may or may not issue a written or oral decision in which they explain why they did so; the Administrative Judge may simply advise the parties that they believe summary judgment is inappropriate due to one or more factual disputes. Either way, the case will proceed to a hearing, during which the parties will be given the opportunity to present evidence related to and argue in support of or against the complainant’s claims of discrimination.

Can the Administrative Judge’s Decision on Summary Judgment Be Appealed?

Yes. Information about the parties’ appeal rights will be included with the Administrative Judge’s Order Entering Judgment. The information will explain that, after the Order Entering Judgment has been issued, the federal agency will issue a “final order", in which the agency will either accept or reject the Administrative Judge’s final decision. Note that appeals may be filed only after an agency final order has been issued. The agency final order will contain additional information about a complainant’s right to appeal to the EEOC’s Office of Federal Operations (OFO) or file a civil action in federal district court.

Learn more here about the EEOC’s federal sector case processing requirements, including information about the summary judgment process:

• U.S. Equal Employment Opportunity Commission (eeoc.gov)
• 29 C.F.R. Part 1614 (regulations governing the EEOC’s federal sector hearings process)
• EEOC’s Management Directive 110, Chapter 7 (Hearings)