A motion for summary judgment, or a “motion for decision without a hearing,” and responding to one, is probably the most important event in any litigation. It is where one side presents all of the facts that it can to convince the judge that no hearing or trial is required, while the other side says a hearing is required. For federal employees who are pursuing their EEO claims, this can be confusing. It is not like other motions. It is centrally important to how the EEO process functions. In the federal EEO context, if there is no hearing required, then the administrative judge will end the case. Once summary judgment has been decided, or “entered” into the docket, then the only option is to appeal. Because it ends the litigation and forecloses any hearing, obviously cost-conscious parties focus their efforts on knocking cases out through summary judgment.
The above description takes summary judgment process out of the EEO complaint context. Let’s go through it a bit to show you how we get to summary judgment in the first place. When an employee first files a complaint, that complaint is investigated and a report of investigation is issued. At that point, the employee can request a hearing before an administrative judge. Once the administrative judge is assigned, the employee can pursue discovery. Discovery (hopefully) closes the gaps that the initial investigation left out. Witnesses can be deposed and documents requested that were not turned over in the investigation. These documents and depositions can then be used to support claims at a hearing and, perhaps more importantly, at summary judgment. Once discovery has ended, or ‘closed,’ that means that both sides have everything they are going to get from each other to prove or disprove the claims before the Judge. There are no more documents to get, no more witnesses. Everyone has what they need to make their point to the judge. The judge is not going to waste everyone’s time on a claim that cannot be proven. That’s a benefit to everyone, including the taxpayer. If there is no point to hearing witnesses testify about the facts of the case, then the judge should enter summary judgment. For example, if someone brings a pure whistleblower retaliation claim in the EEO context, summary judgment should be granted. Whistleblower claims need to be brought at the MSPB. It’s a waste of everyone’s time to proceed on whistleblower claims because the law does not allow an EEOC administrative judge to do anything about these claims. A judge literally is forbidden by law from doing anything to help the employee. That’s just an extreme example to illustrate a point. Summary judgment should not come out of nowhere. Every person involved in the EEO process should be thinking about summary judgment starting on day one. In the vast majority of cases, summary judgment is the closest that anyone comes to a hearing or trial. If the complainant defeats summary judgment, then a hearing is scheduled and frequently the agency is under a lot of pressure to settle the claims. On the other hand, if the employee loses at summary judgment, his only real option is a long process of appeal before the EEOC, unless he takes it to federal court. Few cases actually proceed to a hearing because the costs involved increase exponentially, and it makes more sense to settle than to risk losing.
For most federal employees in the EEO context, summary judgment is complex. Sometimes it is called a “decision without a hearing,” but the rules are the same. The following is a dissection of the basic standards that the EEOC administrative judges use for assessing whether summary judgment should be granted as to particular claims.
The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Yaccarino v. Postmaster General, EEOC Case No. 01A05735 (2001).
The critical question for purposes of summary judgment is, therefore, if there is a “genuine issue of material fact” that the administrative judge needs to decide. In a recent case, the EEOC reiterated how summary judgment is supposed to work. Here is a breakdown in general terms of what the EEOC is saying in (hopefully) layman’s terms. Each of the following is taken from Denisse Y. v. Esper, EEOC Appeal No. 2019001084 (March 27, 2019).
In ruling on a motion for summary judgment a court does not sit as a fact finder. Denisse Y. v. Esper, EEOC Appeal No. 2019001084 (March 27, 2019).
When the parties submit summary judgment motions, the judge is not supposed to resolve any issue of the credibility of witnesses. If Witness A says the light was red, but Witness B says the light was green, then there is a credibility conflict that may need to be resolved.
The evidence of the nonmoving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the nonmoving party’s favor. Denisse Y. v. Esper, EEOC Appeal No. 2019001084 (March 27, 2019).
Similar to the above statement, this means that the judge must take as a given that witness is telling the truth. Additionally, if there is an additional inference that must be made, the judge has to take that as true. For example, if Witness A says he stated in the presence of his supervisor that he filed an EEO complaint, then absent evidence that the supervisor could not hear it, the judge would most likely be bound to accept as true that the supervisor heard it. At least for the purposes of the motion for summary judgment.
A disputed issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the nonmoving party. Denisse Y. v. Esper, EEOC Appeal No. 2019001084 (March 27, 2019).
This statement means that the evidence for a fact needs to be at least plausible. Let’s say the fact is that the light was ‘green.’ Witness A says the light was green. But if he was twelve blocks away in Manhattan at the time, it’s not really plausible that he saw the green light and distinguished it from all the other closer lights. If that was the only evidence in favor of the light being green, a judge could probably say that it isn’t enough and grant summary judgment instead. It is worth mentioning that ‘speculating,’ that is, surmising or guessing about a fact, is not evidence. Any employee or complainant in the EEO system can testify on their own behalf. However, they aren’t allowed to guess at things that they don’t have “personal knowledge” of, such as what someone else knows, or what was happening when they weren’t around.
A fact is “material” if it has the potential to affect the outcome of the case. Denisse Y. v. Esper, EEOC Appeal No. 2019001084 (March 27, 2019).
Being “material” really just means “relevant.” The issue is whether the fact is relevant to proving a claim. Every claim has ‘elements’ to it. This means that the law (cases, laws) provide specific things that need to be proven. If proving a fact is relevant to proving one of the elements, it is ‘material.’ This is where having a background in EEO law is the most helpful, and where it is most difficult to explain in general terms. Proving the elements of a case is really what the entire process is about. Every claim has its own elements, and what those elements are can vary widely and be the subject of dispute. But this is (supposed to be) a simple explanation, so here is a simple example. Let’s take a murder case, because it is something almost everyone has seen on TV or at least heard or thought about at some point. There are (generally) three elements to first-degree murder: A killing of another person, with intent, and with malice aforethought. This might seem obvious, but if the person didn’t die, there is no murder. You can’t prove a murder case if the alleged victim is sitting in courtroom. Similarly, if the victim was killed because of a car accident, there is no intent—it might be manslaughter, but not a first-degree murder. Thus, a “material” fact in the murder context would be anything that made it more likely that all of the elements of the crime happened. If the police cannot find a body and the person may still be just missing or even hiding, it is hard to prove the element of a “killing.” Let’s say there were text messages from the alleged victim the day before the trial. That would tend to show that there was no killing. But if, instead, the police can present four witnesses who say they saw the accused drop the body at sea, that would make it more likely there was actually a killing, even though there is no body. These are all “material” facts because they tend to make it more likely that something occurred. The reality is that nothing is ever 100% for sure to be true. That is why lawyers speak of something “tending” to be true or not. Part of a lawyer’s job is to analyze the evidence and give feedback about the evidence and strength of a claim.
If a case can only be resolved by weighing conflicting evidence, summary judgment is not appropriate. Denisse Y. v. Esper, EEOC Appeal No. 2019001084 (March 27, 2019).
This means that if Witness A says the light was green, and Witness B says it was red, and they both could plausibly be believed, then the judge cannot rely on that evidence to grant summary judgment and get rid of the case. Finding these conflicts or developing the evidence to show that there is a conflict is a major part of what lawyers do.
In the context of an administrative proceeding under Title VII, an AJ may properly consider summary judgment only upon a determination that the record has been adequately developed for summary disposition. Denisse Y. v. Esper, EEOC Appeal No. 2019001084 (March 27, 2019).
This is unique to the EEO context. EEOC Administrative Judges are, in theory, there to help the agency root out its own discrimination. The EEOC is there to correct discrimination when the agencies are unwilling or unable to do so itself. So before an AJ can grant summary judgment, he or she must first make a finding that there is sufficient evidence in the record to determine whether discrimination occurred or not. That is, the evidence that he or she is considering along with the report of investigation must be enough to satisfy her that if there were discrimination, it would have been found. The best example of this would probably be a case where a complainant was not hired for a specific job. The report of investigation should include information about who actually did get the job. Without that information, there is no way to know if the agency’s excuse, that they picked the most qualified candidate, makes any sense. In that case, the AJ would likely remand the case to the agency to produce that information.
First, motions for summary judgment from complainants are rare. It is much more common for complainants to file what is called an “opposition to the motion for summary judgment.” When the agency files a motion for summary judgment, the complainant is entitled to file a statement in response. This should include a statement of the facts that support the complainant’s position, a discussion of the background law that shows that the evidence is relevant to the claims, and the evidence used to support the facts and law, usually attachments such as emails, statements, etc. Second, judges are short on time, just like the rest of us. They want you to get to the point, and quickly. Many people confuse having a lengthy document with a good document. In my experience, five pages that are well-written will beat fifty unfocused pages any day of the week. “Brevity is the soul of wit.” While any employee is certainly entitled to file their own summary judgment opposition or motion, I have yet to see the case where even a little help from an attorney would not have been beneficial. Finally, losing at summary judgment is the death knell of the case. Once summary judgment has been entered, the only option is appeal. An agency that has won on summary judgment will be unlikely to believe that the case has any real value. Settlement for more than a fraction of what the case could have been settled for is gone. Winning at the summary judgment stage, that is, defeating the agency’s motion for summary judgment, is extremely helpful in trying to force a settlement. This is for a few reasons. First, the agency attorney has had to spend some real time thinking about the case just in filing the motion for summary judgment in the first place. Second, a judge’s decision can be convincing evidence that the employee’s case has merit. A well-written opinion from the judge will more convincing to the agency decision-makers because the judge has no interest in the outcome. Finally, the probability that the agency will lose the case has increased substantially. Think of a basketball game where a team is down 10 points with three seconds left versus being down only one point. But in litigation, you never really know the score until it’s over.
I hope this has been helpful. It is difficult for practitioners who live this process every day to explain this because it is so detailed. The devil is in the details. Frankly, the sooner you can find someone who knows their way around this system the better. Too many times people have come to me after discovery or after summary judgment and I have to break some bad news to them that, no matter what actually happened, the evidence they have now is what they are stuck with, and it doesn’t prove their claims. It is a heartbreaking but necessary part of my job. Having a lawyer to help you through the process from the beginning is probably the best thing you can do to ensure that you don’t end up with summary judgment being entered against you.