The federal sector Equal Employment Opportunity Commission (EEOC) complaint process is already daunting (and it may soon be subject to significant changes). One of the most consequential points in that process is an administrative judge’s (AJ’s) decision whether to hold a hearing at all. EEOC regulations allow an AJ to issue a “decision without a hearing”—the administrative equivalent of summary judgment—but only after following specific procedures that give the complainant notice and an opportunity to respond.
In a recent appeal handled by KCNF attorney Briana Imran, the EEOC’s Office of Federal Sector (OFS, formerly the Office of Federal Operations or OFO) vacated a decision in which an AJ failed to provide the required notice and opportunity to respond before granting summary judgment that no party had requested. The decision is Renaldo V. v. Dep’t of State, EEOC Appeal No. 2026002375 (Sept. 23, 2026).
Procedural Background
The complainant, a contractor with a private company who worked on U.S. embassy facility projects for the Department of State, alleged that the Agency discriminated against him based on age and retaliated against him when it reassigned him to a new post, sent a Letter of Concern to his employer, and terminated his position. After the Agency’s investigation, he requested a hearing before an EEOC AJ.
At the initial conference in April 2025, the AJ made a “preliminary determination” that no discovery was necessary, citing evidence that the Agency might not be the complainant’s employer at all. (KCNF has written before about AJs denying discovery.) The AJ’s Case Management Order also suggested that the record might warrant a decision without a hearing and set a deadline for dispositive motions.
In response, the Agency filed a motion to dismiss, arguing that, because the complainant worked for a subcontractor, the Agency was not his employer. It did not move for a decision without a hearing. The complainant opposed the motion, arguing that the Agency was his joint employer.
In April 2026, the AJ issued a Decision Without a Hearing (otherwise known as summary judgment) agreeing with the complainant that the Agency was a joint employer. As a result, the AJ denied the motion to dismiss. But in the same decision, the AJ stated incorrectly that the Agency had also moved for a decision without a hearing, set out a list of “material facts not in genuine dispute,” and granted summary judgment in the Agency’s favor. The Agency issued a final order adopting the AJ’s decision, and the complainant appealed.
OFS’s Decision
OFS vacated both the AJ’s decision and the Agency’s final order. It began with the governing standard. Under 29 C.F.R. § 1614.109(g), an AJ may issue a decision without a hearing only when there is no genuine issue of material fact, and only after the record has been adequately developed. Even then, under Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003), an AJ may not rule for one party without a hearing unless the opposing party has received:
- ample notice of the proposal to issue a decision without a hearing;
- a comprehensive statement of the allegedly undisputed material facts;
- an opportunity to respond to that statement; and
- the chance to engage in discovery before responding, if necessary.
OFS also pointed to § 1614.109(g)(3), which allows an AJ who concludes on the AJ’s own initiative that the material facts are not in genuine dispute to issue a decision without a hearing only after giving the parties notice and 15 calendar days to respond in writing.
The AJ here did not meet those requirements. OFS found nothing in the record showing that the AJ had notified the parties of a sua sponte proposal to issue a decision without a hearing or had given them a comprehensive statement of the purportedly undisputed facts; the AJ’s list of undisputed facts appeared for the first time in the decision dismissing the case. OFS also agreed with the complainant that the Agency’s motion sought only dismissal on the joint employer issue, not a full dismissal via a decision without a hearing. As a result, the complainant never had a chance to oppose summary judgment in writing before the AJ granted it. Citing Gurley v. Dep’t of Transp., EEOC Appeal No. 0120093479 (Mar. 8, 2010), OFS held that the AJ erred by issuing a decision without a hearing without these procedural safeguards, and it remanded the case to the EEOC’s Washington Field Office for further proceedings before an AJ.
The lesson is straightforward: an AJ cannot treat a motion to dismiss as a motion for summary judgment, or grant summary judgment on the AJ’s own initiative, without first giving the complainant notice, the facts on which the ruling would rest, and a chance to respond. If you receive a decision without a hearing that you never had an opportunity to oppose, that defect may be grounds for appeal. Thus, it is important to act quickly and consult an experienced federal sector employment attorney.