Diamond v. Atwood

• Decision Date: 20 January 1995
• Docket Number: Nos. 93-5235 and 93-5246,s. 93-5235 and 93-5246
• Citation: 43 F.3d 1538
• Parties: 66 Fair Empl.Prac.Cas. (BNA) 1249, 66 Empl. Prac. Dec. P 43,447, 310 U.S.App.D.C. 113 Dennis DIAMOND, Appellee/Cross-Appellant, v. Brian ATWOOD, Administrator, Agency for International Development, Appellant/Cross-Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1538

43 F.3d 1538

66 Fair Empl.Prac.Cas. (BNA) 1249,

66 Empl. Prac. Dec. P 43,447, 310 U.S.App.D.C. 113

Dennis DIAMOND, Appellee/Cross-Appellant, v. Brian ATWOOD, Administrator, Agency for International

Development, Appellant/Cross-Appellee.

Nos. 93-5235 and 93-5246.

United States Court of Appeals, District of Columbia Circuit.

Argued Oct. 20, 1994.

Decided Jan. 20, 1995.

Sally M. Rider, Asst. U.S. Atty., Washington, DC, argued the cause for the appellant/cross-appellee. On brief were Eric H. Holder, Jr., U.S. Atty., and R. Craig Lawrence and John D. Bates, Asst. U.S. Attys., Washington, DC, John R. Johnson, Asst. U.S. Atty., Washington, DC, entered an appearance.

Michael J. Kator, Washington, DC, argued the cause for the appellee/cross-appellant. On brief was Richard A. Salzman, Washington, DC.

Before BUCKLEY, GINSBURG and HENDERSON, Circuit Judges.

Opinion for the court filed by Circuit Judge KAREN LeCRAFT HENDERSON.

KAREN LeCRAFT HENDERSON, Circuit Judge:

J. Brian Atwood, the Administrator of the Agency for International Development (AID), appeals the grant of summary judgment against him and his agency based on an employment discrimination claim brought by Dennis Diamond (Diamond) under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Secs. 2000e et seq. The district court held that AID was bound as a matter of law by its delegee's finding of unlawful employment discrimination. We disagree. The delegee's proposed disposition of Diamond's complaint does not bind AID because it was neither adopted by AID nor finally decided by the delegee. Accordingly, we reverse the district court and remand the case for trial.

I.

The relevant facts are undisputed. AID hired Diamond in its Office of Equal Opportunity Programs (EOP) in April 1982. He became Acting Director of EOP in January 1985 when the incumbent was transferred to another agency. In April 1988, the agency declared a vacancy in the position. Diamond and other qualified candidates applied. Jessalyn Pendarvis, a black female, was selected in February 1989 as EOP Director. Diamond, a white male, was reassigned to the AID Office of General Counsel as an attorney advisor. Believing that the EOP Director selection decision involved race and sex discrimination, Diamond timely sought informal counseling regarding his grievance. In May 1989, he filed a formal complaint of discrimination against the EOP office which is charged with investigating and resolving discrimination complaints against the agency. AID regulations directed that such complaints be referred to the AID Office of General Counsel or to another federal agency. AID Handbook 24 at 5A-3 (effective Nov. 28, 1983) (attached as tab 10 to Statement of Material Facts filed March 25, 1992). Because of the conflicts of interest caused by Pendarvis heading the EOP office and Diamond serving as an attorney advisor in the Office of General Counsel, AID delegated to the Department of State (State) the authority to investigate and take final agency action on Diamond's complaint. In a letter dated June 6, 1989, and addressed to Clarence Hodges, Deputy Assistant Secretary for Equal Employment Opportunity and Civil Rights at State, AID proposed to "transfer to [State] the authority to perform all functions of the complaint processing ... beginning with the acceptance/rejection determination through the issuance of a Final Agency Decision." Joint Appendix (JA) 72. Two days later, State accepted the delegation.

State hired a private investigator to inquire into Diamond's allegations and to draft a proposed resolution of his complaint. In October 1989, the investigator completed her inquiry and submitted her findings and proposed disposition to State. The investigator's proposal concluded that Diamond "was not selected for the position ... because of his race (white) and sex (male), after serving as Acting Director with an outstanding record for four years." JA 20. On July 6, 1990, Ronald Roskens, the AID Administrator, requested in writing that Hodges's successor, Audrey Morton, "complete [her] analysis and render a judgment and final decision in this case." JA 77.

Morton forwarded the proposed disposition on October 24, 1990 to the AID Administrator and explained his options. JA 20-21. ¹ On November 9, 1990, Acting AID Administrator Mark Edelman returned the proposed disposition to Morton "for handling," noting that the reason for the delegation "remains as valid today as it was last year." JA 22. Edelman also highlighted defects in the proposed disposition which he requested Morton to correct "before issuing it under [her] signature." Id. On November 26, 1990, Morton returned the proposed disposition to the AID Administrator. She explained that she did not intend to sign it because AID's delegation to State was "legally defective" and therefore any "issuance of a decision under [her] signature would not ... be enforceable nor [sic] binding on either party." JA 24. ² Subsequent negotiations between AID and Diamond were unsuccessful. Diamond then filed suit in district court under Title VII, alleging race and sex discrimination.

The district court granted summary judgment to Diamond, holding that "a government agency is bound by the results of an administrative determination favorable to its employee upon a complaint of employment discrimination, and is not entitled to a de novo trial and judgment in federal court." Diamond v. Roskens, 790 F.Supp. 350, 353 (D.D.C.1992). It concluded that summary judgment was appropriate because AID's delegee had found that Diamond was a victim of employment discrimination. Id.

II.

We review the district court's summary judgment order de novo. School Dist. of Hatboro-Horsham v. Alexander, 981 F.2d 1265, 1267 (D.C.Cir.1992). "Summary judgment is appropriate only where there is no genuine issue of material fact, and, viewing the evidence in the light most favorable to the nonmoving party, the movant is entitled to prevail as a matter of law." Beckett v. Air Line Pilots Ass'n, 995 F.2d 280, 284 (D.C.Cir.1993) (citation and internal quotation marks omitted). Here the facts are not in dispute; they do not, however, support the conclusion that either AID or State adopted the proposed disposition.

We must first clarify what is not at issue in this appeal. We do not consider whether AID discriminated against Diamond. Nor do we reach whether the agencies' reasons for not acting on the proposed disposition were correct or justified. The sole issue is whether either AID or State effectively adopted as a final agency decision the finding of employment discrimination contained in the proposed disposition.

Diamond concedes that the proposed disposition was not formally adopted as a final agency decision. ³ He argues instead that the undisputed facts manifest the "equivalent" of a final agency decision because Morton's proposal represents her final decision and thus the final decision of the individual to whom final decisionmaking authority had properly, and repeatedly, been delegated.

But Morton did not adopt the proposed disposition. She simply recommended it to AID, noting that her proposal "must be signed by the head of the agency or that person designated by the agency head" and that the AID Administrator "as agency head and final decision maker can reject this proposed disposition and issue a different decision." JA 20. Because she believed that "issuance of a decision under [her] signature would not, in [her] opinion, be enforceable nor [sic] binding on either party," she proposed certain action by AID. JA 24-25. She recommended that AID adopt the proposed disposition, continue settlement negotiations with Diamond or refer the matter to the Equal Employment Opportunity Commission (EEOC) "for review and issuance of a proposed disposition and ultimately a final agency decision." JA 24. She expressly noted that neither she nor State had made a decision regarding the proposed disposition. ⁴ AID was to resolve the Diamond complaint as it chose for "submission of the proposed disposition concludes the involvement of the Department of State in this matter." JA 21.

It is immaterial whether Morton was correct in believing that she lacked the authority to make a final decision. Likewise, it is of no consequence whether she should have adopted the proposed disposition. The critical point is that she did not attempt to exercise such authority.

AID also expressly refused to act on the proposed disposition. In July 1990, AID Administrator Roskens had requested that Morton "complete [her] analysis and render a judgment and final decision in this case." JA 77. In November 1990, after Morton referred the proposed disposition to AID, Acting AID Administrator Mark Edelman responded that AID, without reservation, had delegated to State its full authority to process and resolve Diamond's complaint. He explained to Morton that "[t]he reason for the transfer--the real or apparent conflict of...