THOMAS v. NAPOLITANO et al

Filing 31

MEMORANDUM AND OPINION DENYING DEFENDANT'S MOTION FOR JUDGMENT ON THE PLEADINGS. Signed by Judge Gladys Kessler on 1/16/2014. (lcgk3, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

BURT R. THOMAS,
Plaintiff,
v.

Civil Action No. 13-359 (GK)

JEH JOHNSON, Secretary, U.S.
Department of Homeland
Security,
Defendant.

MEMORANDUM OPINION

Plaintiff Burt Thomas
Title

VII

action

against

of

Homeland

Department
"Defendant"),

("Thomas" or "Plaintiff") brings this
Jeh

Johnson,

Security

the
(the

Secretary

of

"Secretary"

the
or

claiming that he was removed from his position at

the Federal Emergency Management Agency ("FEMA" or "the Agency")
on the basis of his race.
This matter is before the Court on the Secretary's Motion
for Judgment on the Pleadings [Dkt. No. 19].
of the Motion,

Opposition

[ Dkt.

No.

22] ,

Upon consideration
and Reply

[ Dkt.

No.

29], the entire record herein, and for the reasons stated below,
the Secretary's Motion is denied.

BACKGROUND 1

I.

For

purposes

of

this

Motion,

the

facts

briefly.

Plaintiff,

who is African American,

FEMA,

component

of

a

("DHS").

Starting

the

in

Department

February,

2011,

position of Chief Security Officer.
July 28,

2011,

position,

Compl.

23-24.

temporary

where

he

was

Plaintiff was

detail

investigation

was

for

that

he

contract

outcome of the Agency's

Homeland

Compl.

Security
held

the

15-16.

<JI

given

no

told that

was

fraud,

the

work
the

On

do.

a

Am.

reason

to

for

of

subject

attempting

to

ongoing

an

the

influence

the

security clearance investigations,

and

covering up alleged misconduct of other employees.
<JI<JI

stated

is an employee of

Plaintiff

Am.

be

the Agency temporarily detailed Plaintiff to

different
<JI<JI

of

can

Am.

Compl.

17, 26.
On February 23, 2012,

Plaintiff was formally demoted to the

position of Director, Records Management Division.
40. 2

<JI

The official reason given for his demotion was "misconduct

and malfeasance."
asserted

that

knowingly

false

Walker

Am. Compl.

and

Am.

Compl.

Plaintiff

James

violated

statements
Bland,

46.

<JI

to

and

In particular,
Agency

permitting

work

policy
two

in positions

the Agency
by

making

employees,
requiring

Gary
a

top

1

The facts are taken from the Amended Complaint ("Am. Compl. ")
[Dkt. No. 7] and accepted as true for purposes of this Motion.

2

Plaintiff's position was later changed to Field Coordinator in
the Logistics Operations Division. Am. Compl. <JI 40.

-2-

secret

security

clearance

while

were still being investigated.
alleged that

their
'!['![

clearance

46-48,

applications

The Agency also

56.

Plaintiff permitted Walker and Bland to be hired
Am. Compl. '!I

even though he knew they had criminal backgrounds.
62.

Plaintiff contends that the reasons proffered by the Agency
for his 2011 detail and the 2012 demotion were merely pretext,
and

that

the

real

reason

for

these

actions

discrimination and reprisal.

Am. Compl.

that

investigation

white

detailed

employees

to

a

different

investigations.
that,

under

Am.

'!['![

position during

Compl.

by detailing him to

a

103.

generally
the

racial

He claims
were

pendency of

Plaintiff's

29-32.

'!['![

74,

was

new position in 2011,

not
such

theory

is

the Agency

intended to demean him sufficiently that he would be induced to
resign, which would allow it to replace him with a white person
and thereby "facilitate the process of eliminating

] African-

Americans from the security office."

37-38.

Am.

Compl.

'!['![

He

notes that a white employee was ultimately chosen to replace him
in

his

position,

termination
employees
employees.

and

at
'!['![

Plaintiff

and

that

suspension

FEMA,

most

of

his
of

demotion

several

whom were

coincided

other
also

African
replaced

with

the

American
by

white

38, 107-111.
also

because he did not,

asserts

that

his

demotion

was

unfounded

in fact, violate Agency policy by permitting
-3-

Bland and Walker to work pending finalization of their security
clearances.
Bland

and

According to
Walker

to

Plaintiff,
perform

Agency practice permitted
least

at

some

their

of

responsibilities based on either a "reciprocal" or an "interim"
security clearance.

Am.

Compl.

tj{tj{

similarly-situated white employees,
responsibilities
clearance

for

ensuring

~equirements,

or demoted as he was.
of

demoting

certain

him,

including those with direct

compliance

with

Agency

intentionally
given

Am. Compl.

tjJ:

to

he

the

security

deprived

white

him

employees

of

under

54, 61, 93, 96-97, 106.

Procedural Background

Plaintiff filed this· case on March 20,
2013,

He claims that

were not detailed to different positions

protections

similar circumstances.
B.

80.

Finally, he maintains that in the process

the

procedural

56-60,

filed

an Amended

On

Complaint.

2013.
11,

July

On June 3,
2013,

the

Motion

for

Secretary filed its Answer [Dkt. No. 8] .
On

October

30'

2013,

Judgment on the Pleadings

the
[Dkt.

Plaintiff filed his Opposition

Secretary
No.

19] .

[Dkt.

No.

filed

its

On December 2,
22] .

2013,

On December 20'

2013, the Secretary filed his Reply [Dkt. No. 29].
I I .

STANDARD OF REVIEW

A Rule 12(c) motion is "functionally equivalent" to a Rule
12(b) (6) motion and governed by the same standard.

Rollins v.

Wackenhut Servs.,

2012).

Inc.,

703 F.3d 122,
-4-

130

(D.C. Cir.

To

survive the motion,
state a

claim to relief that is plausible on its face"

"nudge[

[his or her]

(2007).

be

v.

Twombly,

by

showing

any

set

allegations in the complaint."
In deciding a

of

facts

consistent

Rule 12 (c)

[and]

fact)

must

give

inferences

reasonable

motion,

(D.C.

Cir.

2008)

it may

with

a

the

court "must assume all
(even if doubtful in

the plaintiff the benefit

derived

from

Aktieselskabet AF 21. November 2001 v.
17

544,

Id. at 563.

the allegations in the complaint are true

8,

550 U.S.

"[O]nce a claim has been stated adequately,

supported

and to

claims across the line from conceivable

Bell Atlantic Corp.

to plausible."
570

a plaintiff need only plead "enough facts to

the

facts

of all

alleged."

Fame Jeans Inc.,

525 F.3d

(quotation marks and citations omitted).

The Court "must not make any judgment about the probability of
the

plaintiffs'

success,"

id.,

and

pleadings

only

if

judgment

on

the

fact

in

dispute

is

judgment as

a

Corp.,

F.2d

966

it

[the

and

1485

grant

clear

(D.C.

Cir.

a

that

movant]

Peters v.

matter of law."
1483,

should

is

motion

"no material
entitled

Nat' 1 R.R.
1992)

for

to

Passenger

(citations

and

quotation marks omitted).

III. ANALYSIS
The Government contends that Plaintiff's Title VII claim is
not justiciable under Dep't of Navy v. Egan,
and

its

progeny.

In

Egan,

the

-5-

Supreme

484 U.S. 518

Court

held

(1988)

that

the

Merits Systems Protection Board lacked the authority to review
the

Navy's

decision

to

deny

a

employee because "no one has a

security
'right'

clearance

to

a

naval

to a security clearance"

and "predictive judgments" involved in making security clearance
determinations "must be committed to the broad discretion of the
484

u.s.

held

that

agency responsible" for making such a determination.
at 824, 25.
Relying
"[b] ecause

on

the

Egan,

our

authority

Court

to

of

Appeals

a

security

issue

has

clearance

is

a

discretionary function of the Executive Branch and involves the
complex

area

of

foreign

relations

and

national

security,

employment actions based on denial of security clearance are not
subject to judicial review."
1003

(D.C .. Cir.

522,

526

(D.C.

2005);
Cir.

Bennett v. Chertoff, 425 F.3d 999,

see also Oryszak v.

2009)

(Ginsberg,

J.,

Sullivan,

concurring)

576 F.3d
("We have

held that actions based upon denial of security clearance .
are beyond the reach of judicial review.")

( citations omitted) .

This is true even if the employee claims, under Title VII,
the
e.g.,

security clearance
Ryan v.

adverse

Reno,

employment

decision was

168 F.3d 520,
action

based

that

racially motivated.

524

(D.C.

on denial

Cir.

or

1999)

revocation

(" [A]n
of

a

security clearance is not actionable under Title VII.").
The Secretary argues that these cases require the dismissal
of Plaintiff's case.

The Court disagrees.
-6-

Each of the cases

cited involved an adverse employment action directly predicated
on

an

unfavorable

adjudicating

security clearance determination,

the

plaintiff's

required a merits

employment

claim

such that
necessarily

review of the underlying security clearance

decision.
In contrast,
been

"based on"

security

Plaintiff's demotion is not
any decision

clearance.

regarding his

Instead,

Plaintiff

alleged to have

eligibility for

alleges

that

he

a

was

demoted based on (among other things) his purported violation of
a

general

policy

governing

the

activities

clearances have not yet been finalized.

of

employees

whose

Our Court of Appeals

has stated that:
We do not believe that Egan insulates f.rom Title VII
all decisions that might bear upon an employee's
eligibility to access classified information.
Rather,
the Court in Egan emphasized that the decision to
grant
or
deny
security
clearance
requires
a
"[p] redictive judgment" that "must be made by those
with the necessary expertise in protecting classified
information."
Rattigan

v.

Holder,

(emphasis in original)

689

F.3d

764,

767

(D.C.

Cir.

2012)

(citation omitted).

Resolving Plaintiff's Title VII claim, as it is alleged in
the Amended Complaint, does not require the Court to review the
validity of any "predictive

judgment" made "by those with the

necessary expertise in protecting classified information."

Id.

It merely requires a consideration of whether similarly situated

-7-

employees were treated the same under the relevant policies,
consideration that
jurisdiction. 3

lies

squarely within

the

Court's

a

Title VII

Accordingly, Egan and its progeny do not preclude

judicial review of Plaintiff's claim as a matter of law. 4
IV.

CONCLUSION

For

the

foregoing

reasons,

Defendant's

Motion

is

denied.

An Order shall accompany this Memorandum Opinion.

January 16, 2013
United States District Judge

Copies to: attorneys on record via ECF

3

The Secretary contends that Plaintiff was removed from his post
based on his "malfeasance in granting [Walker and Bland] interim
security clearances[.]"
Def.'s Mot. at 1.
Even if it were true
that Plaintiff granted such clearances in the first instance,
which Plaintiff disputes, Pl.'s Opp'n at 3, our Court of Appeals
has held that Egan applies only to security clearance decisions
made by "trained Security Division personnel," Rattigan, 689
F. 3d at 768 (emphasis added) .
It is not alleged that Plaintiff
falls into this category.
4

The
Secretary also
suggests
that
Plaintiff's
claim of
procedural irregularities has no legal basis.
Def. 's Mot. at
16-17.
However, it is clear that Plaintiff seeks relief on the
basis of his demotion and proffers the procedural irregularities
merely as
evidence
that
he was
treated differently
from
similarly-situated white employees.
See Am. Compl. at Count II
(Demotion).
-8-