DeLeonardis v. Weiseman

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________________
No. 92-2580
(Summary Calendar)
_____________________________
WILLIAM JUSTIN DELEONARDIS,
Plaintiff-Appellant,
versus
MARY WEISEMAN, Special Counsel,
Office of The Special Counsel, ET AL.,
Defendants-Appellees.
_________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(CA-H-90-3768)
_________________________________________________
(January 12, 1993)
Before KING, DAVIS, and WIENER, Circuit Judges.
PER CURIAM*:
In this handicap discrimination case, Plaintiff-Appellant
William Justin DeLeonardis appeals the grant of summary judgement
in favor of Defendants-Appellees Mary Weiseman,1 Special Counsel
for the Office of The Special Counsel (OSC), et al. Finding no
*
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the Court has determined
that this opinion should not be published.
1
We note that Kathleen Day Koch was substituted as a party
for Ms. Weiseman in the district court. The filings with this
court, however, represent Ms. Weiseman as the proper party.
reversible error in the district court's grant of summary judgment,
we affirm.
I
FACTS AND PROCEEDINGS
In January 1986, DeLeonardis became a Supervisory Attorney
Advisor in the Houston, Texas, office of the Social Security
Administration (SSA). He served in that capacity for over four
years, receiving several outstanding service awards and earning the
high regard of most of his superiors.2 In June 1990, DeLeonardis
was demoted to the position of Attorney-Advisor, with a
commensurate reduction in his pay level.3
The circumstances of DeLeonardis demotion have been the
subject of this and another lawsuit, as well as several
administrative actions. Our reading of the controlling law as to
our review of this case leads us to conclude that a full
explication of the details of DeLeonardis's demotion is not
necessary. Essentially, DeLeonardis asserts that his demotion and
the subsequent poor working environment that he was forced to abide
resulted from the homophobic reaction of one of his superiors
(Regional Chief Administrative Law Judge Richard Mueller) to the
revelation that DeLeonardis is homosexual and had written (under a
pen-name while off-duty) a story for a magazine for gay men. He
2
The record contains affidavits of praise from at least
five of the Administrative Law Judges with whom DeLeonardis
served.
3
DeLeonardis was moved from a GM-13 level to a GM-11 level.
2
asserts that the demotion violated his first amendment speech and
association rights. He also alleges discrimination based on his
handicapped status; he has cerebral palsy. Disagreeing, the SSA
asserts that the demotion occurred because DeLeonardis mishandled
the supervision of an errant employee.
As an employee of the SSA, DeLeonardis had no right to appeal
his demotion to the Merit System Protection Board (MSPB) after his
grievance was denied by the SSA itself. He was, however, entitled
to petition the OSC to investigate his claim of a prohibited
personnel practice,4 which he did. The OSC performed an initial
investigation into the circumstances of the demotion but decided
not to conduct a full investigation.
At the same time that he was trying to get the OSC to
investigate of his demotion, DeLeonardis continued his efforts to
regain his position as a supervisor by means within the SSA. These
efforts eventually produced a settlement agreement with the SSA,
which was entered into in October 1991. In accordance with the
agreement, the SSA changed the demotion to a "voluntary change to
a lower grade," adjusted his pay to the level at which he had been
compensated prior to the demotion, purged his personnel file of all
documentation pertaining to the demotion, and made several personal
accommodations for DeLeonardis. The agreement also contained a
reservation clause in which DeLeonardis expressly reserved the
right to continue the instant litigation.
DeLeonardis had filed the instant action in an attempt to
4
5 U.S.C. § 12, 23 (1988).
3
compel the OSC to perform a full investigation of the complaint he
had filed with that agency concerning his demotion. The district
court granted summary judgment in favor of the OSC, holding that
the decision of the OSC not to perform a full investigation after
it had performed a preliminary investigation was unreviewable.
DeLeonardis timely appealed the order of the district court.
II
ANALYSIS
The OSC must "investigate the allegation [of a prohibited
personnel practice] to the extent necessary to determine whether
there are reasonable grounds to believe that a prohibited personnel
practice has occurred, exists, or is to be taken," and bring
correct action "whe[n] appropriate."5 In Wren v. Merit System
Protection Board, the D.C. Circuit stated:
[W]hile the scope of an initial OSC investigation need
only be extensive enough to determine whether there are
reasonable grounds to believe a prohibited personnel
practice is occurring, has occurred, or will occur,
"[s]ome preliminary inquiry will . . . be necessary . .
. to determine whether the charge warrants a thorough
inquiry."6
Once the OSC has conducted its initial inquiry, however, the Wren
court continued, "it is . . . quite clear from the statutory
language and legislative history that Congress did not mean to make
5
Id. §§ 1212(a)(2), 1214(a)(1)(A).
6
681 F.2d 867, 874 (D.C. Cir. 1982)(quoting II House Comm.
on the Post Office and Civil Service, 95th Cong., 1st Sess.,
Legislative History of the Civil Service Reform Act of 1978, at
1496).
4
the OSC's decisions to terminate or conduct an investigation or
bring a proceeding before the Board reviewable on the merits."7
We have recognized and approved the Wren court's reasoning
that an employee's right to obtain judicial review of the OSC's
decision not to pursue a complaint is "limited to [the question of]
whether the OSC discharged its duty to investigate the complaint."8
We agree with our colleagues of the D.C. Circuit that when the OSC
decides to terminate an investigation that it began pursuant to a
complaint, the decision is not reviewable.
The district court correctly stated the law applicable to the
facts of the instant case:
In this case the OSC conducted a preliminary
investigation of plaintiff's allegations, referred his
handicap discrimination to the EEOC, and concluded that
further inquiry was unnecessary because the evidence did
not indicate that prohibited personal practices had
occurred. Plaintiff does not contend that OSC failed to
investigate his complaint; he contends that the
investigation was inadequate. Under these facts the
court cannot order OSC to conduct an additional
investigation of plaintiff's claims, nor will the court
second guess OSC's decisions to abandon or defer claims
following its preliminary investigation.
DeLeonardis nevertheless insists that courts are allowed to
look behind the agency's decision to terminate an investigation
when, as he claims it did here, the agency applies the incorrect
7
Id. at 875 n.9 (citing Senate Comm. on Governmental
Affairs, 95th Cong., 2d Sess., Markup Sess. on S.2640 (Civil
Service Reform Act of 1978), at 85-86 (unpublished transcript of
May 22, 1978); House Comm. on Post Office and Civil Service, 95th
Cong., 2d Sess., Markup Meetings on H.R. 11280 (A Bill to Reform
the Civil Service Laws), at 46-47 (Comm. Print 1978)).
8
Towers v. Horner, 791 F.2d 1244, 1246 n.14 (5th Cir.
1986)(citing Wren, 681 F.2d at 875 n.9).
5
legal standard in deciding to terminate the investigation.9 But
DeLeonardis fails to recognize, or at least to admit, that to allow
him to succeed on this argument we would have to vitiate the
clearly established rule that we do not look behind substantive OSC
determinations to terminate investigations. We are neither willing
nor authorized to do so.
The OSC is also correct in asserting that DeLeonardis's appeal
has been mooted by the settlement agreement that he entered into
with the SSA. The OSC's argument is straight-forward and
unassailable. It points out that there would be nothing for the
OSC to investigate if it were ordered to reopen DeLeonardis's case.
This is so, it notes, as a result of the expunging of all records
of the demotion pursuant to the provisions of the settlement
agreement. We agree that the effect of the plain language of that
9
DeLeonardis asserts that in terminating the investigation,
the OSC improperly presumed a nexus between his off-duty
activities and his on-duty performance. In its letter informing
him of the termination of the investigation, the OSC stated:
When you attempted to take action against [an] employee
[whom you had allowed to obtain information about your
lifestyle and writing], the employee used this
information as an affirmative defense. While your
action against the employee was ultimately sustained by
higher management, the agency did have to spend
resources and time reviewing the allegations the
employee made against you. Thus, your conduct off-duty
did have an adverse impact on the agency, and we find
no further basis for inquiry into your allegations of a
violation of 5 U.S.C. § 2302(b)(10).
(Emphasis added). Although we agree with DeLeonardis that the
nexus recognized by the OSC was improper (the fact that the
agency had to expend resources and time investigating specious
claims)) that arose because of his off-duty lifestyle and
activities))of one of DeLeonardis's subordinates cannot be used
as a nexus in this situation), forcing the OSC to conduct the
investigation because of this error would be a reversal of the
agency's discretion on substantive grounds.
6
agreement was the deletion from DeLeonardis's file of all data that
the OSC might investigate.
DeLeonardis urges that the OSC's argument is no more than an
attempt to use the settlement agreement, to which the OSC was not
a party, to "shirk its statutory duty to protect Appellant's
constitutional rights." Continuing, he asserts that "the
settlement of his discrimination claim for less than full
reinstatement with back pay at the GM-13 level does not moot his
constitutional claims for full reinstatement with back pay." The
fatal problem with his argument is that he asks us to require the
OSC to do something that he has rendered it unable to
do))investigate an incident that he has contracted to have expunged
from the SSA's files. Although it is clear that DeLeonardis has
not been made whole by the settlement))he is no longer a supervisor
with the SSA))he seeks in this lawsuit to compel an agency to do
something that he has made impossible.
III
CONCLUSION
Although the record in this case demonstrates rather serious
unfairness in the demotion of DeLeonardis, it is a wrong that is
beyond the authority of this court to redress. We cannot review
the substantive decision of the OSC to discontinue an investigation
for lack of cause once it has commenced one in response to an
employee's request. We also note in passing that even if we were
to compel the OSC to reinstate and perform a full investigation, it
7
would be placed in the impossible situation of reviewing a record
expunged of any evidence of the potential wrongdoing. The district
court's grant of summary judgment is
AFFIRMED.
8