Moore v. Exelon Generation Company, LLC

Filing 21

MEMORANDUM OPINION AND ORDER Signed by the Honorable Harry D. Leinenweber on 10/25/2012: Mailed notice(wp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

MONTE MOORE,
Plaintiff,

Case No. 12 C 1955

v.

Hon. Harry D. Leinenweber

EXELON GENERATION COMPANY, LLC,
Defendant.

MEMORANDUM OPINION AND ORDER
I.
Plaintiff
discrimination

brings
and

this

BACKGROUND
Title

retaliation.

VII

action

According

to

alleging
the

race

Complaint,

Plaintiff was offered a position at Exelon’s Dresden Nuclear Plant.
He alleges that he accepted the offer and subsequently reported to
work on August 14, 2006 for the purpose of in- processing, training
and clearance.

Of the 40 applicants reporting for in- processing,

Plaintiff was the only African-American.

On the first day of

training, he was pulled out of the session and sent home.

In late

August 2006 he was notified that he had been denied “unescorted
access” to the nuclear facilities.

On September 5, 2006, the job

offer was rescinded by Exelon due to the denial of “unescorted
access.”

This denial was pursuant to the regulations issued by the

Nuclear Regulatory Commission (the “NRC”), to which Exelon, as an NRC
licensee, was subject.

10 C.F.R. § 73.56 (l).

denial was due to his race.

He contends that the

On March 13, 2007, he filed a charge

with the Equal Employment Opportunity Commission (the “EEOC”) and
received a Right-to-Sue Letter on December 21, 2011.

He filed this

action within ninety (90) days of its receipt.
He bases his claim of retaliation on the fact that subsequent to
his filing of the EEOC charge, he followed a directive from Exelon
that he undergo psychological counseling in order to gain unescorted
access.

He completed counseling with his own psychologist who

cleared him of any psychological distress or dysfunction.

He was

then required to have an interview with Exelon’s psychologist which
lasted only 15 minutes.

He was again denied unescorted access based

on the interview with Exelon’s psychologist.

He contends that this

latter denial of unescorted access was in retaliation to his filing
the EEOC charge.
Exelon has moved to dismiss contending that, under unanimous
Supreme Court and Court of Appeals precedent no court has the power
to review a national security access decision made under federal law;
Title VII specifically exempts national security clearance decisions
from its coverage; the retaliation claim was never subject to a
timely EEOC charge; and the Complaint fails to state sufficient facts
to make a claim of discrimination plausible.
II.
Plaintiff

argues

that

DISCUSSION
the

cases

cited

by

Exelon

are

distinguishable and a 7th Circuit case, Exelon Generation Co., LLC v.
Local 15 IBEW, 676 F.3d 566, (7th Cir. 2012), specifically makes
access decisions reviewable by Courts; the Title VII provision cited
- 2 -

by Exelon does not apply; and Plaintiff did not need to file a
retaliation charge with the EEOC because his original charge was
broad enough to encompass it.
The Nuclear Regulatory Commission, pursuant to the statutory
mandate under the Atomic Energy Act, 42 U.S.C. § 2011 et seq.,
requires all licensees, like Exelon who operate nuclear generators,
to implement access authorization programs. 10 C.F.R. § 73.56. “Any
individual to whom a licensee intends to grant unescorted access to
nuclear power plant” is subject to personnel access authorization.
The programs must provide high assurance that such individuals “are
trustworthy

and

reliable,

such

that

they

do

not

constitute

an

unreasonable risk to public health and safety or the common defense
and security.” 10 C.F.R. § 73.56(c).

Presumably to meet due process

requirements, a licensee must also include a procedure for the
notification of individuals denied unescorted access and must include
procedures for review if a denial may adversely affect employment.
The procedures must ensure that the individual is informed of the
grounds

for

the

denial

and

allow

the

opportunity

to

provide

additional relevant information and an objective review of the
information upon which the denial was based.

“The procedure must

provide for an impartial and independent internal management review.”
10 C.F.R. § 73.56(l).
Since Plaintiff was denied employment because he was denied
unescorted access by Defendant, he seeks to have this Court declare
that Defendant’s

conduct,

i.e.,

the

- 3 -

denial

was

a

violation

of

Plaintiff’s rights under Title VII. The Defendant contends that this
Court does not have jurisdiction to make this determination citing
Department of the Navy v. Egan, 484 U.S. 518; Makky v. Chertoff, 541
F.3d 205 (3rd Cir. 2008); and Brazil v. U.S. Dept. of Navy, 66 F.3d
193 (9th Cir. 1995).
In

Egan,

the

Supreme

Court

held

that

the

Merit

Systems

Protection Board had no jurisdiction to review a denial of a security
clearance. Egan was hired to work around nuclear powered submarines.
The Navy denied his application for security clearance and he was
therefore discharged because the denial precluded him from working at
the job for which he was hired.

A hearing officer reversed the

discharge but the full Board reversed the hearing officer finding
that it had no jurisdiction to review the merits of the denial.

The

Supreme Court affirmed, noting that the courts “traditionally have
been reluctant to intrude upon the authority of the Executive in
military and national security affairs.”
While Egan did not involve Title VII, two Circuits have applied
the Egan reasoning to Title VII cases in which an employee was
discharged or denied employment for not having appropriate security
clearances.

In Makky v. Chertoff, 541 F.3d 205 (3rd Cir. 2008), the

Transportation Safety Administration discharged the plaintiff from
his position as a researcher for a project with the stated purpose of
preventing terrorist attacks on American passenger jets.

After the

United States invaded Iraq the plaintiff’s security clearance was
suspended.

The reasons given were the fact that he had foreign
- 4 -

relatives and associates (the plaintiff was a Muslim and of Arab
descent). The Court agreed that it had no jurisdiction to review the
denial of security clearance under the reasoning in Egan and since a
clearance was a requirement of his job, he was not qualified for the
job under the prima facie case formula as discussed by the Supreme
Court in Texas Department of Community Affairs v. Burdine, 450 U.S.
248, 254 (1981).
In Brazil v. U.S. Dept. of Navy, 66 F.3d 193 (9th Cir. 1995), a
civilian employee of the Navy’s Military Sealift Command was assigned
to a ship that was capable of carrying nuclear weapons.

To work at

such a job an employee was required to hold a Nuclear Weapons
Personnel Reliability Program Certification.

As a result of certain

misconduct plaintiff’s certificate was revoked.

Plaintiff filed a

Title VII action with the EEOC based on his contention that he was
discriminated against based on his race.

The Ninth Circuit upheld a

grant of summary judgment in favor of the Navy pointing out that
Title VII analysis presented the plaintiff with an “insurmountable
Hurdle” in establishing a prima facie case of race discrimination
because he could not establish that he was qualified to perform the
job. It arrived at this conclusion because in its view courts lacked
jurisdiction to review the decision to revoke his certification.

It

based its conclusion on Egan.
Plaintiff argues that not withstanding these cases the law is
different in the Seventh Circuit.

He cites Exelon Generating Co.,

LLC v. IBEW, 676 F.3d 566 (7th Cir. 2012).
- 5 -

In that case the Seventh

Circuit was called upon to determine whether NRC regulations allowed
the denial or revocation of unescorted access privileges to be
subject to review by labor arbitrators hearing grievance procedures
under collective bargaining agreements.
decisions were grievable.

The court held that such

In doing so the court did not cite Egan or

any case from any other circuit.

What the court did point out was

that the NRC had since 1991 taken the unequivocal position that labor
arbitrators have the power of review and that a 1991 amendment did
not take away that power.

The case did not involve Title VII but was

a declaratory judgment action and did not involve the review of a
specific denial or revocation of unescorted access privileges.

What

position the Seventh Circuit would take on a Title VII case is
unknown particularly with respect to Section 703(g) of Title VII
which is discussed next.

The Defendant points out that in Footnote 3

of this case, the court showed great scepticism as to Exelon’s
contention that a court could not review a security clearance.
However, the court deleted reference to Title VII in the footnote
prior to final publication.
Title VII itself in Section 703 (g) specifically states that “it
shall not be an unlawful employment practice for an employer to fail
or refuse to hire and employ any individual for any position if
“(1) the occupancy of such position, or access
to the premises in or upon which any part of the
duties of such position is performed or is to be
performed, is subject to any requirement imposed
in the interest of the national security of the
United States under any security program in
effect pursuant to or administered under any
- 6 -

statute of the United states or an Executive
order of the President, and (2) such an
individual has not fulfilled or has ceased to
fulfill that requirement.”
42 U.S.C. § 2000e-2(g).
Here

the

“requirement”

is

imposed

pursuant

adopted by the Nuclear Regulatory Commission.

to

regulations

Consequently Exelon’s

decision to deny unescorted access to the Plaintiff would appear to
be “not an unlawful employment practice” and accordingly not covered
by Title VII.

Plaintiff argues that this provision does not apply,

first because his Complaint does not allege that Plaintiff’s position
requires “unescorted access,” and second, because the unescorted
access was denied by the Defendant and not by an outside governmental
agency.

However, Plaintiff’s Complaint appears to assume that his

position did, in fact, require unescorted access and the regulations
specifically

delegating

the

obligation

to

perform

the

security

clearance program to the licensee, Exelon, were promulgated under The
Atomic Energy Act by the Nuclear Regulatory Commission.
However, according to the EEOC, Section 703(g) is an affirmative
defense to a charge of discrimination and an employer cannot use
Section 703(g)

to

circumvent the

requirements

of

Title

VII

by

selectively applying its security clearance requirements to members
of protected classes.

In other words, an employer cannot use its

security clearance program in a discriminatory manner by applying
differing standards depending on, for example, the race of the

- 7 -

employee.

EEOC, Policy Guidance on the Use of the National Security

Exception Contained in § 703(g) of Title VII.
The Complaint does allege that Plaintiff was the only applicant
denied unescorted access privileges out of 40 applicants.

However,

he does not allege that the application was selectively applied
although this can reasonably be inferred from his Complaint.

The

Court certainly can make the determination that the national security
criteria are not being applied uniformly without having to delve into
whether the criteria are over restrictive, for example.

Thus, the

Court believes that it is too early to dismiss Plaintiff’s case. The
issue can be revisited on summary judgment if the Defendant wishes to
go that route.

Accordingly, the Motion to Dismiss the Title VII

discrimination claim is denied.
Plaintiff also alleges a Title VII claim of retaliation.
However, the claim of retaliation was not made the subject of an EEOC
charge.

Plaintiff claims that it is reasonably related to the claim

of discrimination that was set out in his EEOC charge and therefore
he need not specifically mention the retaliation.

However, for two

claims to be related, the EEOC Charge and the Complaint must, at a
minimum,

describe

individuals.

the

same

conduct

and

implicate

Teal v. Potter, 559 F.3d 687 (7tj Cir. 2009).

the

same

Here the

EEOC charge specifically relates to the act of notification on
August 24, 2006, that the job offer was rescinded.

The Complaint of

retaliation allegedly occurs in September 2007 when Plaintiff’s
unescorted access was again denied.
- 8 -

Clearly the two acts are not

reasonably related.

Sauzek v. Exxon Coal USA, Inc., 202 F.3d 913

(7th Cir. 2000) (“an employer’s decision to terminate a worker is a
separate and distinct act from a subsequent not to rehire that
employee during a recall.”).

Here the decision to deny unescorted

access some thirteen months after the original decision to deny
unescorted access is a separate and distinct act and must be the
subject of an EEOC charge in order to bring a Title VII action for
retaliation.

Accordingly, the claim for retaliation is denied.
III.

CONCLUSION

For the reasons stated herein, the Defendant’s Motion to Dismiss
the Title VII discrimination claim is denied.

The Motion to Dismiss

the Title VII retaliation claim is granted.
IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court
DATE:10/25/2012

- 9 -