coordinator position was not appealed. On June 2, 1978, the Board affirmed the findings of the VA.
On July 10, 1978, Nolan brought this action in district court seeking de novo review of the administrative decisions. In her first cause of action, Nolan sought review of the coordinator, leave, and resignation issues which she claimed were acts of discrimination on the basis of her sex which culminated in her constructive discharge. In her second cause of action, Nolan argued that the VA’s failure to process her § 752 appeal was a due process violation. Nolan sought back pay or retroactive leave without pay, reinstatement, and attorney fees. Jurisdiction was premised on Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-16; 42 U.S.C. § 1981; 28 U.S.C. §§ 1343(4), 2201 and 2202; 5 U.S.C. §§ 701 et seq., 7501 and 7532; and Executive Order 11478.
Nolan moved for summary judgment and the VA filed a cross motion for summary judgment. The district court granted the VA’s motion and this appeal was taken from such judgment.
II. LAW
A. Summary judgment on the discrimination claims.
As a federal employee Nolan was entitled to de novo review in the district court of her Title VII action on the issues that were determined against her during the administrative proceedings. See Chandler v. Roudebush, 425 U.S. 840, 96 S.Ct. 1949, 48 L.Ed.2d 416 (1976). Nolan argued that the district court’s grant of Fed.R. Civ.P. 56(c) summary judgment deprived her of her right to de novo review. However, in some situations summary judgment may be based on the district court’s review of the proceedings and record from the administrative level. See Hackley v. Roudebush, 520 F.2d 108, 156-57 (D.C.Cir.1975). The VA was entitled to judgment as a matter of law if there were no genuine issues as to any material facts based on the evidence presented to the EEO hearing examiner.
Discrimination claim concerning the VA’s denial of Nolan’s request for leave without pay. 1.
Nolan requested leave without pay pending the outcome of her EEO complaint concerning evaluations of her prior job performance. She stated that acceptance of the AHDT assignment prior to resolution of her complaint might prejudice her rights and the pending investigation. Dr. Chase denied the leave request and the district court decided that such denial was not shown to have been discriminatory.
Nolan contended that summary judgment should not have been granted because managerial discretion was involved in Dr. Chase’s denial of the request. Such discretion questioned Dr. Chase’s motives and intent in his decision. Nolan argued that this state of mind issue coupled with the VA’s admitted past discrimination toward Nolan created a genuine issue of material fact that should not have been determined on summary judgment. See Hackley v. Roudebush, supra, at 157.
In Hackley, supra, 520 F.2d at 157, the D. C. Circuit reversed the district court’s grant of summary judgment in a race discrimination claim involving the promotion of a federal employee. Although the court stated summary judgment may be appropriate based on the administrative record in some situations, it also stated that summary judgment is precluded if the motive underlying a crucial factual issue involved in a discretionary promotion decision is disputed. Id.; see Mabey v. Reagan, 537 F.2d 1036, 1045 (9th Cir. 1976); 6 Moore’s Federal Practice 156.17[41.-1], at 930 (2d ed. 1982). Nolan contended that Dr. Chase’s motives were questionable because other VA officials discriminated against her in the past and this pattern of discrimination raised an inference in Nolan’s favor that such discrimination also pervaded Dr. Chase’s decision to deny her leave request.
It is a fundamental proposition that, in reviewing the district court’s order of summary judgment in favor of the VA, all