A Brief Intro to the Agency Motion for Summary Judgement (MSJ)
- InformedFED Chief
- 7 hours ago
- 7 min read
Navigating the Agency’s Motion for Summary Judgment
One of the more complex hurdles in the federal sector EEO hearing process is the Agency's Motion for Summary Judgment (MSJ) at the hearing stage. Agencies often file a "Motion for Summary Judgment"—technically known in the federal sector as a Motion for a Decision Without a Hearing as an attempt to prevent a hearing. As of early 2026, many agencies appear to be filing MSJ's as a as a delay mechanism, without regard to the actual merits of the MSJ. Understanding what this motion is and how to oppose it is critical to preserving your rights.
What is a Decision Without a Hearing?
Under the Equal Employment Opportunity Commission (EEOC) regulations, an Administrative Judge may issue a decision without a hearing if they find that there is "no genuine issue as to any material fact." See 29 C.F.R. § 1614.109(g) (2024). This means that even if the AJ accepts all your facts as true, the law would still require that the Agency prevail. The EEOC’s summary judgment procedure is modeled after Rule 56 of the Federal Rules of Civil Procedure. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The primary purpose is to filter out cases where a hearing would serve no purpose because the facts are not in dispute.
The Two Pillars of Summary Judgment: "Material" and "Genuine"
To defeat an Agency’s motion, you must demonstrate that a hearing is necessary to resolve factual disputes. There are two key concepts to understand:
Material Fact: A fact is "material" if it has the potential to affect the outcome of the case under the applicable law. See Anderson, 477 U.S. at 248. For example, in a retaliation case, whether your supervisor knew about your prior EEO activity is a material fact.
Genuine Issue: An issue is "genuine" if the evidence is such that a reasonable factfinder could find in your favor. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). It is not enough to simply say a fact is in dispute; you must point to evidence that supports your version of the truth.
Why Credibility Matters in the Agency Motion for Summary Judgement (MSJ)
One of the most powerful arguments against the agency Motion for Summary Judgement (MSJ) (summary judgment) is the existence of credibility issues. The EEOC has held that summary judgment is "not appropriate for a case that can only be resolved by weighing conflicting evidence." See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). For example, if your supervisor claims they selected another candidate because of superior "leadership skills," but you have evidence that they have never previously used that criteria, a "he-said, she-said" scenario emerges. An AJ cannot decide who is more believable based solely on written papers; that determination must be made through live testimony and cross-examination at a hearing.
How to Oppose the Agency’s Motion
When the Agency files its motion, you must file a written Opposition to the Motion for Summary Judgment. This is not the time to repeat the allegations in your complaint. Instead, you must be specific and evidentiary.
Don't Rely on Pleadings: You cannot defeat summary judgment by simply repeating your claims. You must "set forth specific facts showing that there is a genuine issue for a hearing." See 29 C.F.R. § 1614.109(g)(2).
Use the Report of Investigation (ROI): Point to specific affidavits, emails, or documents in your ROI that contradict the Agency’s narrative.
Leverage Discovery: If you have conducted depositions or received answers to interrogatories, use those transcripts to highlight inconsistencies in management’s statements.
Highlight "Pretext": In most EEO cases, the Agency will provide a "legitimate, non-discriminatory reason" for its actions. Your job is to show that this reason is a "pretext"—a lie or a cover-up for discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804 (1973).
The Administrative Judge's Duty
It is important to remember that at the summary judgment stage, the AJ's role is not to weigh the evidence but to determine if a trial is necessary. The AJ must view all evidence in the light most favorable to you (the Complainant) and draw all "justifiable inferences" in your favor. See Anderson, 477 U.S. at 255. If there is any doubt as to whether a hearing is required, the AJ should err on the side of holding the hearing.
Can a Complainant File a Motion for Summary Judgment?
While the Agency is the party that most frequently files a Motion for a Decision Without a Hearing (MSJ), it is a common misconception that only the "defense" can use this tool. Under the Equal Employment Opportunity Commission (EEOC) regulations, any party—including the complainant—may move for a decision without a hearing if they believe the material facts are not in dispute. See 29 C.F.R. § 1614.109(g) (2024); see also Equal Employment Opportunity Commission, Management Directive 110, ch. 7, § V (Aug. 5, 2015).
Filing your own Motion for Summary Judgment can be a powerful strategic move in specific circumstances:
Direct Evidence of Discrimination: If your Report of Investigation (ROI) contains "smoking gun" evidence—such as an email from a supervisor explicitly stating they are taking an action because of a protected trait—there may be no factual dispute for a judge to resolve. In such cases, you may be entitled to judgment as a matter of law. See, e.g., Jaleesa P. v. U.S. Postal Serv., EEOC Appeal No. 2021002648 (Mar. 13, 2023).
Failure of the Agency’s Burden of Production: In the McDonnell Douglas framework, once you establish a prima facie case, the Agency must articulate a "legitimate, non-discriminatory reason" for its action. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). If the Agency fails to provide a specific, clear, and individualized reason during discovery or in the ROI, a complainant can move for summary judgment on the grounds that the Agency has failed to meet its legal burden. See Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254-55 (1981).
Sanctions and Default Judgment: In extreme cases where an Agency has failed to conduct a timely or adequate investigation, a complainant may move for a "decision without a hearing" as a sanction. See 29 C.F.R. § 1614.109(f)(3) (2024) (authorizing Administrative Judges to issue a decision in favor of the opposing party as a sanction for failure to provide requested information or for noncompliance with orders).
Filing an affirmative Motion for Summary Judgment requires analysis of the record. You must demonstrate that the Agency’s defenses are so legally or factually thin that "no reasonable factfinder" could rule in their favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). While the threshold is high, it is a vital option for complainants seeking to expedite justice when the evidence of a violation is overwhelming.
Conclusion
A Motion for Summary Judgment is a critical moment in your EEO case. For career federal employees, defeating this motion is the final hurdle before your claims are heard in an open forum before the Administrative Law Judge. Often, if you defeat an MSJ, the agency will be more amenable to settling the dispute. By focusing on material factual disputes and credibility issues, you can protect your right to a day in court and move one step closer to a resolution.
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