Muir v. Applied Integrated Technologies, Inc.
Filing
21
MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 11/26/13. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
LEANNA A. MUIR
:
v.
:
Civil Action No. DKC 13-0808
:
APPLIED INTEGRATED TECHNOLOGIES,
INC.
:
MEMORANDUM OPINION
Presently pending and ready for review in this employment
discrimination case are two motions.
First, Plaintiff Leanna A.
Muir filed a motion to strike the affidavit of Vicki Redman.
(ECF
No.
16).
Second,
Defendant
Applied
Integrated
Technologies, Inc. (“AIT”) filed a motion to dismiss or, in the
alternative, for summary judgment.
(ECF No. 12).
The issues
have been fully briefed, and the court now rules, no hearing
being deemed necessary.
Local Rule 105.6.
For the following
reasons, both motions will be denied.
I.
Background
Unless
construed
otherwise
in
the
noted,
light
the
most
facts
favorable
outlined
to
here
are
Plaintiff,
the
nonmoving party.
This
case
centers
Plaintiff’s employment.
around
Defendant’s
termination
of
Plaintiff, AIT’s employee from December
2009 to September 1, 2011, is transgender.
Plaintiff’s sex was
classified as male at birth and Plaintiff was socialized as a
traditional male.
Until spring of 2011, Plaintiff presented as
a traditional male.
that
the
male
identity.
Over time, however, Plaintiff determined
designation
did
not
conform
to
her
gender
In or around February 2011, Plaintiff was diagnosed
with gender identity disorder, a conflict between one’s birthassigned
sex
and
one’s
gender
identity.
In
February
2011,
Plaintiff began medical treatment for gender reassignment and
has
been
under
the
care
of
medical
and
mental
health
professionals consistent with the accepted standards of care for
persons with gender identity disorder.
In or around spring of
2011, Plaintiff began to present and live as a female.
She
began
but
cross-gender
hormone
therapy
on
June
23,
2011
discontinued therapy on January 15, 2013 because of a lack of
full-time employment.
Plaintiff legally changed her name from
Jesse Muir to Leanna Muir on January 19, 2012.
(ECF No. 1 ¶¶
10, 12, 14-15, 17, 23-27).
Relevant
companies:
for
USIS
this
case,
National
Plaintiff
Security
Defendant, both federal contractors.
June
2009
hired
by
as
a
Construction
Defendant
Control Manager.
in
was
Division
2009
by
(“USIS”)
two
and
She was hired by USIS in
Surveillance
December
employed
as
Technician
a
part-time
and
was
Access
As a requirement for both positions, Plaintiff
had to hold and maintain a security clearance.
2
(Id. ¶¶ 31-32).
When
hired
by
Defendant,
Plaintiff
was
given
the
company’s
employee handbook which states that
If the Government withdraws an employee’s
security
clearance,
AIT
may
find
it
necessary
to
terminate
an
employee
involuntarily. If this occurs, AIT reserves
the right to decide to reassign the employee
to work that does not require access to
sensitive information. In the event that no
such assignment is available, AIT has no
other choice than to terminate the employee.
(ECF No. 12-4, at 2).
Plaintiff signed a form acknowledging
receipt of the employee handbook on November 9, 2009.
12-2).
Plaintiff
Secret
came
Clearance,
to
with
Defendant’s
access
to
employ
Sensitive
(ECF No.
holding
a
Top
Compartmented
Information (“TS/SCI”), which the Defense Intelligence Agency
(“DIA”) granted in approximately February 2007.
When
she
was
hired
presenting as a male.
Plaintiff
Center
for
Maryland.
was
by
USIS
Defendant,
Plaintiff
was
(Id. ¶ 33).
employed
Medical
and
(Id. ¶ 29).
with
Intelligence
Defendant
(“NCMI”)
at
at
the
National
Fort
Detrick,
In early March 2011, during the early stages of her
gender transition process, Plaintiff reported to work at Fort
Detrick in her company uniform with painted fingernails.
employee
at
Fort
Detrick
complained;
this
led
to
An
Defendant
calling Plaintiff for a meeting with several AIT managers on
March 16, 2011.
At that meeting, Plaintiff informed Defendant
of her treatment and her interest in transitioning from male to
3
female. Plaintiff told her management that the transition would
have no impact on her ability to perform her job.
35-37).
Defendant
Plaintiff,
told
down.”
her
suspended
that
the
Plaintiff
customer
and,
needed
(Id. ¶¶ 32,
according
time
to
to
“cool
(Id. ¶ 38).
Defendant conveys a different version of this interaction.
As part of its motion for summary judgment, Defendant filed an
affidavit of Vicki Redman, Defendant’s Human Resources Manager.
According to Ms. Redman, Timothy Wolfe, Security Manager for the
DIA
at
Fort
Detrick,
informed
Defendant
that
in
order
to
maintain her TS/SCI security clearance – a requirement to work
at Fort Detrick - Plaintiff must provide a letter from a mental
health
care
practitioner
attesting
to
Plaintiff’s
fitness
to
work, and a personal statement from Plaintiff explaining the
thought process that led Plaintiff to become transgender.
Wolfe is an employee of DIA, not Defendant.
Mr.
(ECF No. 12-3 ¶ 7).
At the March 16, 2011 meeting, Defendant informed Plaintiff of
DIA’s demands and gave her sixty (60) days to comply.
Plaintiff
was informed that “pursuant to DIA policy/directive, she could
not report to work until the documentation was provided, and
that,
if
timeframe,
the
documentation
the
DIA
may
was
terminate
(Id. ¶ 8).
4
not
its
provided
within
subcontract
with
this
AIT.”
The
Department
of
Navy
Central
Adjudication
Facility
(“DONCAF”) was responsible for adjudicating Plaintiff’s security
clearance.
In
April
of
2011,
Plaintiff
met
with
Krystal
Williams, a DONCAF security clearance investigator and informed
her that she had been diagnosed with gender identity disorder.
(ECF No. 17-2 ¶ 2, affidavit of Plaintiff).
No further details
about the substances of that meeting are provided.
On May 9,
2011, Plaintiff sent a letter to DONCAF describing her diagnosis
and her intent to transition from male to female.
3).
(ECF No. 17-
On the same day, Plaintiff’s therapist sent a letter to
DONCAF confirming Plaintiff’s diagnosis and the therapy she was
undergoing.
works
for
(ECF No. 17-4).
the
contractor
that
mention of these letters.
information
from
DONCAF
In her affidavit, Ms. Redman - who
employs
provides
concerning Plaintiff.
-
makes
no
Plaintiff has never received any
that
the
clearance has been changed in any way.
Plaintiff
Plaintiff
a
printout
status
of
her
(Id. ¶ 43).
from
DONCAF’s
The message provides:
DONCAF previously responded to an RRU with
the following response: “We received your
request to recertify the subject’s security
eligibility determination. However in order
to comply with your request please have
subject
provide
a
written
[statement]
regarding
his
being
by
a
psychologist
(circumstances surrounding why, how long,
etc.).
Also, please include any available
documentation
from
the
psychologist
himself.” To date we have yet to receive a
5
security
systems
response. Please respond within the next 30
days, [no later than] 14 July 2011.
(ECF No. 17-7) (“DONCAF Status Report”).1
message
is
not
stated
explicitly,
The date of this
but
given
the
deadline
provided, it appears to have been generated on June 14, 2011.
On
or
Director
around
of
July
Security,
1,
2011,
requested
Tim
a
Donnelly,
letter
from
Defendant’s
Plaintiff’s
therapist regarding her gender identity disorder, treatment, and
ability to work.
(Id. ¶ 45).
Plaintiff’s therapist responded
in a letter dated July 18, 2011, addressed to Mr. Ellsworth Lew
of
AIT,
describing
treatment,
and
Plaintiff’s
assertingthat
Plaintiff’s job performance.
the
disorder,
treatment
the
would
(ECF No. 17-6).
prescribed
not
affect
On or around July
26, 2011, Defendant came back to Plaintiff, seeking a personal
statement from Plaintiff describing why and for how long she has
been transgender.
(Id. ¶ 46).
Plaintiff refused to do so,
feeling it was intrusive and unnecessary given that DONCAF, and
not Defendant, controlled Plaintiff’s security clearance.
¶
60).
Defendant
makes
no
mention
of
any
request
by
(Id.
Mr.
Donnelly for information for AIT purposes; instead, Defendant
maintains
that
it
requested
based on orders from DIA.
receive
1
the
demanded
this
information
from
Plaintiff
According to Defendant, failure to
personal
statement
resulted
It is unknown what “RRU” is an abbreviation for.
6
in
DIA
terminating the subcontract with AIT for Plaintiff’s position.
Ms. Redman maintains that AIT had no role in this decision.
(ECF No. 12-3 ¶ 11).
Ms. Redman acknowledges that Plaintiff did
not have any performance issues and therefore attempted to find
her
another
job
for
which
position existed currently.
she
was
qualified,
(Id. ¶ 12).
but
no
such
On September 6, 2011,
Defendant informed Plaintiff that her employment was terminated
effective September 1, 2011.
notice
stated
the
reason
as
(Id. ¶¶ 48, 63).
follows:
The termination
“[Armed
Forces
Medical
Intelligence Center] informed AIT that documentation requested
from
you
on
July
25,
2011,
determining
employment, has not been received.
continued
Part-time
It is determined that you
will no longer be able to support the contract because of the
inability to resolve the matter at hand.”
(ECF No. 12-5).2
Plaintiff continued to work for USIS until her contract ended in
October 2011.
(Id. ¶ 49).
On December 22, 2011, Plaintiff
filed a charge of discrimination against AIT with the Equal
Employment Opportunity Commission (“EEOC”).
(Id. ¶¶ 48-50).
On March 15, 2013, Plaintiff filed a complaint in this
court claiming that Defendant’s termination of her employment
was sex discrimination in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e, et seq., “because it
2
Armed Forces Medical Intelligence Center (“AFMIC”) was
NCMI’s former name.
7
perceived her to be a man who did not conform to traditional
gender stereotypes associated with men in society or because
[Plaintiff] is transgender and intended to physically transition
from
male
includes
to
a
female.”
second
(Id.
count,
¶
62).
claiming
that
Plaintiff’s
her
complaint
termination
also
violated Maryland’s Fair Employment Practices Act (“FEPA”), Md.
Code Ann., State Gov’t § 20-606.
(Id. ¶¶ 67-69).
Defendant
filed a motion to dismiss or, in the alternative, for summary
judgment on May 20, 2013.
(ECF No. 12).
Plaintiff opposed the
motion on June 20, 2013 (ECF No. 17), to which Defendant replied
on July 8, 2013 (ECF No. 18).
Plaintiff filed a motion to
strike portions of the affidavit of Vicki Redman on June 20,
2013.
(ECF No. 16).
Defendant opposed the motion on July 8,
2013 (ECF No. 19), to which Plaintiff replied on July 25, 2013
(ECF No. 20).
II.
Motion to Strike
Plaintiff
moves
to
strike
portions
of
Ms.
Redman’s
affidavit, arguing that the statements are outside Ms. Redman’s
personal knowledge and are inadmissible hearsay.
Ms. Redman’s
affidavit
Defendant
is
the
primary
evidence
submitted
support of its motion for summary judgment.
what
information
may
be
considered
in
by
Thus, to determine
resolving
Defendant’s
motion, this motion to strike must first be addressed.
8
in
Plaintiff contends that Rule 56(c)(4) of the Federal Rules
of Civil Procedure requires affidavits used to support or oppose
a motion for summary judgment to be made on personal knowledge,
set out facts that would be admissible in evidence, and show
that the affiant is competent to testify on the matters stated.
Plaintiff further contends that an affidavit that fails to meet
this standard may be stricken or disregarded by the court.
(ECF
No. 16-1, at 1 (citing Evans v. Techs. Applications & Serv. Co.,
80 F.3d 954, 962 (4th Cir. 1996)).
Plaintiff
accurately
captures
an
affidavit’s
substantive
requirements as set out in Rule 56(c)(4), but fails to cite a
procedural rule permitting the striking of an affidavit.
Rule
12(f) is the only procedural rule addressing motions to strike,
and it states that a court may, on its own or on motion made by
a party, “strike from a pleading an insufficient defense or any
redundant,
immaterial,
impertinent,
Fed.R.Civ.P. 12(f) (emphasis added).
or
scandalous
matter.”
Per Rule 7(a), pleadings
include the complaint, the answer to a complaint, counterclaim,
or crossclaim, and - if permitted by the court – the reply to an
answer.
Thus, “[m]otions, briefs or memoranda, objections, or
affidavits may not be attacked by the motion to strike.”
Lowery
v. Hoffman, 188 F.R.D. 651, 653 (M.D.Ala. 1999) (quoting 2 James
Moore,
et
al.,
Moore’s
Federal
Practice
§
12.37[2]
(3d
ed.
1999)); see also MJ Harbor Hotel, LLC v. McCormick & Schmick
9
Rest.
Corp.,
599
F.Supp.2d
612,
623
(D.Md.
2009).
Here,
Plaintiff seeks to strike portions of Ms. Redman’s affidavit,
which
does
Plaintiff’s
not
constitute
motion
to
a
strike
pleading
these
under
items
Rule
is,
7(a).
therefore,
procedurally improper and will be denied.
The proper way for a party to register its objection to an
opposing party’s motions, memoranda, or affidavits is through
the briefs or memoranda that the party submits to the court.
McNair v. Monsanto Co., 279 F.Supp.2d 1290, 1298 (M.D.Ga. 2003).
“The court will then implicitly, if not explicitly, rule upon
[the]
objections
in
its
consideration
of
the
motion.”
Id.
Plaintiff makes such objections in her opposition, repeating the
arguments made in her faulty motion to strike.
at 13-16).
(See ECF No 17,
Plaintiff specifically objects to four statements of
Ms. Redman:
- In connection with the DIA subcontract at
issue, only the DIA could determine
whether an individual was cleared TS/SCI
national security clearance.
- On or about March 15, 2011, Timothy Wolfe,
Security Manager for the DIA at the Fort
Detrick
worksite,
informed
AIT
that
Plaintiff
needed
to
provide
certain
documentation
to
maintain
her
TS/SCI
security
clearance.
He
specifically
requested the following documentation: (1)
a letter from a mental health care
practitioner
attesting
to
Plaintiff’s
fitness to work; and (2) a personal
statement from Plaintiff explaining the
thought process that lead [sic] Plaintiff
10
to the decision to become transgender.
Mr. Wolfe is not, and has never been, an
employee of AIT.
- On or about March 16, 2011 . . . [w]e also
informed Plaintiff that pursuant to DIA
policy/directive, she could not report to
work
at
Fort
Detrick
until
the
documentation was provided, and that, if
the documentation was not provided within
this [60 day] timeframe, the DIA may
terminate its subcontract with AIT.
- After Plaintiff failed to provide a
personal statement, the DIA terminated its
subcontract with AIT for the Access
Control Specialist position at issue at
its sole discretion.
(ECF
No.
12-3
¶¶
6-8,
11).3
Plaintiff
objects
to
these
statements, arguing that Ms. Redman neither sets forth the basis
for her knowledge of DIA’s authority over Plaintiff’s security
clearance
nor
provides
statement.
Plaintiff
any
documentation
further
contends
to
support
that
Mr.
such
a
Wolfe’s
statements and the DIA policy/directive to AIT are inadmissible
hearsay
and
are
unsupported
by
any
documentary
evidence.
Finally, Plaintiff objects to Ms. Redman’s statement concerning
DIA’s
decision
to
terminate
the
subcontract
with
Defendant,
arguing that Ms. Redman is not a DIA employee and fails to show
how she has personal knowledge regarding DIA’s reasoning for
3
Defendant contends that those portions of Ms. Redman’s
affidavit that Plaintiff did not object to in her motion to
strike means that they are uncontested.
Defendant incorrectly
conflates the concepts of admissibility and undisputed fact.
The latter does not necessarily follow from the former.
11
terminating the subcontract nor any documentation supporting her
statement.
Defendant,
in
opposition,
contends
that
Ms.
Redman’s
statement concerning DIA’s authority over Plaintiff’s security
clearance and the DIA’s reasons for terminating its subcontract
with AIT is based on her personal knowledge as Defendant’s Human
Resources
Manager.
Regarding
the
DIA
policy/directive,
Defendant submits that it is not hearsay because Ms. Redman’s
statement is not being offered for the truth or accuracy of
DIA’s policy, but only that Defendant informed Plaintiff of the
policy, regardless of the actual substance.
Finally, Defendant
argues that Mr. Wolfe’s statement is not hearsay because it is
not offered for the truth of the matter, but only that Defendant
had received requests for two pieces of information.
But beyond
that, the circumstances of Mr. Wolfe’s statement satisfy the
“Then-Existing
Mental,
Emotional,
or
Physical
Condition”
exception to the rule against hearsay, as the statements of the
third-party
-
Defendant’s
practices.
Mr.
Wolfe
-
are
non-discriminatory
relevant
intent
to
in
demonstrating
its
employment
Fed.R.Evid. 803(3).
As discussed below, the only issue presently pending is
whether DIA terminated Plaintiff’s employment at Fort Detrick
because
she
did
not
cooperate
12
with
the
DIA’s
or
DONCAF’s
investigation.4
Only the last of the four statements goes to
that central issue.
as
AIT’s
Human
As to this statement, Ms. Redman’s position
Resources
Manager
made
terminating Plaintiff’s employment.
her
responsible
for
Thus, her statement that
DIA decided to terminate Plaintiff’s contract will be accepted
as within her personal knowledge and is deemed admissible, to be
given such weight as it deserves given any supporting evidence,
or lack thereof.
III. Motion to Dismiss
Defendant
moved
summary judgment.
to
dismiss
or,
in
the
alternative,
for
It is not readily apparent from Defendant’s
filings whether the motion to dismiss is based on Plaintiff’s
failure to state a claim or, rather, for lack of subject-matter
jurisdiction.
As
discussed
below,
Defendant
makes
two
arguments: (1) that it terminated Plaintiff’s employment for a
legitimate non-discriminatory reason and Plaintiff cannot show
pretext; or (2) because the decision to terminate was based on
Plaintiff’s failure properly to maintain her security clearance,
a decision which is excepted from liability pursuant to the
national security exception to Title VII.
2(g).
42 U.S.C. § 2000e-
In the original motion, Defendant advances both arguments
4
The parties differ on which agency controlled Plaintiff’s
security clearance.
Ultimately, the dispute is whether
Plaintiff’s security clearance status was changed.
Identifying
which agency on the Department of Defense’s organizational chart
made the change is immaterial for purposes of this motion.
13
as reasons to dismiss Plaintiff’s complaint under Rule 12(b)(6)
for failure to state a claim or, alternatively, for summary
judgment.
In the reply, however, Defendant characterizes the
national security exception argument as one of dismissal for
lack
of
subject-matter
jurisdiction.
The
legitimate,
non-
discriminatory reason argument is characterized as one seeking
summary
judgment,
fulfilled
her
incarnation
seemingly
accepting
requirement
under
Defendant’s
arguments
of
Rule
that
Plaintiff
8(a).
This
will
be
how
latter
they
evaluated for purposes of Defendant’s motion to dismiss.
Hegab
v.
courts
Long,
are
716
F.3d
generally
790,
794
without
(4th
Cir.
subject-matter
2013)
has
are
See
(“federal
jurisdiction
to
review an agency’s security clearance decision.”).
A.
Standard of Review for Motion to Dismiss Pursuant to
Rule 12(b)(1)
Defendant’s motion to dismiss for lack of subject matter
jurisdiction
“questions
is
of
governed
subject
by
matter
Rule
12(b)(1).
jurisdiction
must
Generally,
be
decided
‘first, because they concern the court’s very power to hear the
case.’”
(4th
Owens-Illinois, Inc. v. Meade, 186 F.3d 425, 442 n.4
Cir. 1999) (quoting
2 James Wm. Moore, et al., Moore’s
Federal Practice § 12.30[1] (3d ed. 1998)).
The Plaintiff always
bears the burden of proving that subject matter jurisdiction
properly exists in federal court.
14
See Evans v. B.F. Perkins
Co., a Div. of Standex Int’l Corp., 166 F.3d 642, 647 (4th Cir.
1999).
In considering a Rule 12(b)(1) motion, the court “may
consider
evidence
outside
the
pleadings”
to
help
determine
whether it has jurisdiction over the case before it.
Richmond,
Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d
765, 768 (4th Cir. 1991); see also Evans, 166 F.3d at 647.
court
should
grant
such
a
motion
“only
if
the
The
material
jurisdictional facts are not in dispute and the moving party is
entitled to prevail as a matter of law.”
Richmond, 945 F.2d at
768.
B.
Analysis
Defendant
argues
that
the
court
lacks
subject-matter
jurisdiction because the termination of Plaintiff’s employment
stemmed
from
clearance.
her
failure
to
maintain
the
necessary
security
Such decisions are insulated from judicial review by
the national security exception to Title VII, which provides:
[I]t shall not be an unlawful employment
practice . . . for an employer to discharge
any
individual
for
employment
in
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 statute of the United States or
any Executive order of the President; and
15
(2) such individual has not fulfilled or
has ceased to fulfill that requirement.
42 U.S.C. § 2000e-2(g).
Subsequent case law has established
that courts do not have subject-matter jurisdiction over the
substance of the Executive branch’s decision to grant, deny, or
revoke a security clearance.
Dep’t of Navy v. Egan, 484 U.S.
518, 529-530 (1988); Guillot v. Garrett, 970 F.2d 1320, 1324 (4th
Cir.
1992)
(“unless
otherwise,
the
authority
to
Congress
courts
grant
information.”).
will
or
not
deny
specifically
intrude
access
upon
to
has
the
provided
President’s
national
security
The United States Court of Appeals for the
Fourth Circuit has extended the reach of the doctrine further,
holding that the decision to investigate an employee and revoke
his security clearance was unreviewable for violations of Title
VII.
Fourth
Becerra v. Dalton, 94 F.3d 145, 149 (4th Cir. 1996).
Circuit
initiation
of
a
found
that
security
“the
distinction
investigation
and
the
between
denial
The
the
of
a
security clearance is a distinction without a difference,” id.,
because the issues that led to the investigation could very well
be the same issues that led to the final security clearance
decision.
“Thus, if permitted to review the initial stage of a
security clearance determination to ascertain whether it was a
retaliatory act, the court would be required to review the very
issues that the Supreme Court has held are non-reviewable.”
16
Id.
It is undisputed that Plaintiff’s position at Fort Detrick
required
a
evidence
on
security
the
clearance.
record
shows
Defendant
that
contends
“Plaintiff’s
that
the
security
clearance was being investigated by the DIA and/or DONCAF, and
that further action was required by Plaintiff to maintain her
national security clearance.”
this
assertion,
report;
(2)
undergoing
the
Defendant
email
various
(ECF No. 18 at 7).
points
exchange
stages
to:
(1)
the
concerning
of
gender
In support of
DONCAF
the
status
effects
reassignment;
of
(3)
Plaintiff’s May 9, 2011 letter to DONCAF outlining her gender
therapy; and (4) the May 31, 2011 email from AIT confirming that
Plaintiff’s full-time employer’s security office was conducting
an investigation.
themselves,
According to Defendant, such facts, in and of
trigger
the
national
security
exception
and
necessitate dismissal.
Plaintiff appears to accept that if her termination with
DIA was in fact based on DONCAF’s decision that her security
clearance was no longer valid, her claim stemming from that
adverse employment action would end.
But Plaintiff contends
that the security clearance issue is just a smokescreen to hide
the fact that she was terminated by Defendant – under no orders
of DIA - because of sex discrimination.
Plaintiff submits that
her security clearance has never been revoked or downgraded, nor
has Defendant presented any evidence to the contrary.
17
Further,
Plaintiff
points
documentation
out
from
DIA
Plaintiff’s contract.
that
Defendant
indicating
that
has
it
provided
was
no
terminating
Plaintiff’s theory of the case does not
require the court to evaluate the propriety of the security
clearance determination or investigation because, according to
Plaintiff, her termination was not based on a security clearance
determination.
Based on the current evidence, Plaintiff’s arguments are
more
convincing.
The
national
security
exception
is
well-
established and when it is triggered, the disposition of a case
is simple: dismissal for lack of subject-matter jurisdiction.
But
Defendant
tries
to
stretch
the
further than its present boundaries.
theory,
if
the
employer
scope
of
the
exception
According to Defendant’s
launches
a
security
clearance
investigation and the employee is subsequently terminated, the
termination
is
the
result
of
the
security
investigation and therefore cannot be reviewed.
clearance
Such logic only
works if (1) the job requires a security clearance, and (2) the
employee’s
inactive.
security
No
clearance
party
is
disputes
actually
the
first
revoked
part;
or
made
Plaintiff
vigorously disputes the second part.
To date, Defendant has provided insufficient evidence that
the actor with control over Plaintiff’s security clearance (DIA
or DONCAF) actually placed Plaintiff’s clearance in a status
18
that would prevent her from continuing her work at Fort Detrick.
Multiple
appellate
jurisdiction
require
to
courts
decide
consideration
have
claims
of
the
found
that
merits
that
‘do
[]
of
a
“courts
not
have
necessarily
security
clearance
decision,’ as long as they remain vigilant not to ‘question the
motivation
behind
the
security clearance.’”
decision
to
deny
[the
plaintiff’s]
Zeinali v. Raytheon Co., 636 F.3d 544,
550 (9th Cir. 2011) (quoting Makky v. Chertoff, 541 F.3d 205, 213
(3d Cir. 2008)) (alterations in original); see also Romero v.
Dep’t of Def., 527 F.3d 1324, 1328 (Fed. Cir. 2008) (reading
Egan
to
determine
hold
–
that
and
a
the
court
Merit
may
Systems
review
Protection
–
“whether
Board
a
may
security
clearance was denied [and] whether the security clearance was a
requirement of the appellant’s position.”).
On a Rule 12(b)(1)
motion, the court may consider evidence outside the pleadings.
And while the burden rests with the Plaintiff to demonstrate
subject-matter
jurisdiction,
the
court
should
grant
a
Rule
12(b)(1) motion “only if the material jurisdictional facts are
not in dispute and the moving party is entitled to prevail as a
matter of law.”
Richmond, 945 F.2d at 768.
Here, subject-matter jurisdiction turns on whether the DIA
terminated Plaintiff’s contract because she no longer held the
security clearance required for her position.
Defendant submits
that DIA revoked Plaintiff’s security clearance and terminated
19
her contract because she would not provide the demanded personal
statement.
According to Defendant, it acts as an intermediary
between DIA and Plaintiff; any demands for information Defendant
gave
to
Defendant
Plaintiff
were
DIA’s
relies
Ms.
Redman’s
on
demands,
not
affidavit
Defendant’s.
and
Plaintiff’s
termination notice to support this point.
Plaintiff, on the other hand, disputes Defendant’s entire
story.
She
acknowledges
that
DONCAF
was
investigating
her
clearance but insists she cooperated with them, providing the
May
2011
letters
to
DONCAF
from
her
and
her
therapist.
Plaintiff points to the fact that Defendant has produced no
correspondence
between
DIA/DONCAF
and
Defendant
regarding
Plaintiff’s security clearance investigation and its supposed
deficiencies,
nor
any
terminate
Plaintiff’s
clearance
had
been
documents
contract
or
evincing
downgraded.
that
DIA’s
decision
Plaintiff’s
According
to
to
security
Plaintiff,
Defendant requested the documents in July 2011 to satisfy their
prurient
interest
in
her
gender
reassignment.
The
current
record is insufficient to determine, as a matter of law, that
the national security exception to Title VII has been triggered,
thus eliminating subject-matter jurisdiction on this aspect of
20
Plaintiff’s case.
Therefore, the case may proceed to consider
Defendant’s motion for summary judgment.5
IV.
Motion for Summary Judgment
Plaintiff has submitted an affidavit pursuant to Rule 56(d)
indicating
that
premature
and
Defendant’s
that
motion
discovery
is
adequately respond to the motion.
for
summary
necessary
judgment
before
she
is
can
(ECF No. 17-1).
As a general matter, “summary judgment [must] be refused
where
the
nonmoving
party
has
not
had
the
opportunity
discover information that is essential to the motion.”
to
Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 250 n.5 (1986).
The
nonmovant must make it clear to the court that more discovery is
needed pursuant to Rule 56(d), which provides that “[i]f a nonmovant shows by affidavit or declaration that, for specified
reasons,
it
cannot
present
facts
essential
to
justify
its
opposition, the court may . . . defer considering the motion.”
“The purpose of the affidavit is to ensure that the nonmoving
party is invoking the protections of Rule 56[(d)] in good faith
5
Even if Plaintiff’s DIA contract was terminated because of
her failure to maintain a security clearance, this would not
necessitate dismissal of the entire case, as Plaintiff remained
Defendant’s employee eligible to work on other contracts that
did not require a security clearance. Defendant submits that it
searched for then-available positions and found none for which
Plaintiff was qualified, which led to Plaintiff’s termination.
(ECF No. 12-3 ¶ 12).
That purported search – and subsequent
termination – is independent of a decision on Plaintiff’s
security clearance and outside the national security exception,
thus presenting a potential Title VII claim.
21
and to afford the trial court the showing necessary to assess
the
merit
Internet
of
a
Domain
party’s
opposition.”
Names,
302
F.3d
Harrods
214,
(internal quotation marks omitted).
244
Ltd.
(4th
v.
Sixty
Cir.
2002)
Rule 56(d) allows a court
to deny summary judgment or delay ruling on the motion until
discovery is conducted if the “nonmovant shows by affidavit or
declaration that, for specified reasons, it cannot present facts
essential to justify its opposition.”
Notably,
requests
made
pursuant
Fed.R.Civ.P. 56(d).
to
Rule
56(d)
simply demand discovery for the sake of discovery.’”
“‘cannot
Hamilton
v. Mayor & City Council of Balt., 807 F.Supp.2d 331, 342 (D.Md.
2011) (quoting Young v. UPS, No. DKC–08–2586, 2011 WL 665321, at
*20 (D.Md. Feb. 14, 2011)).
Courts interpreting Rule 56(d) have
consistently held that a nonmovant’s request may be denied if
“the additional evidence sought for discovery would not have by
itself created a genuine issue of material fact sufficient to
defeat summary judgment.”
Ingle ex rel. Estate of Ingle v.
Yelton, 439 F.3d 191, 195 (4th Cir. 2006) (internal quotation
marks
omitted).
Put
simply,
“fishing expedition[s].”
Rule
56(d)
does
not
authorize
Morrow v. Farrell, 187 F.Supp.2d 548,
551 (D.Md. 2002), aff’d, 50 F.App’x 179 (4th Cir. 2002); see also
Wright v. Eastman Kodak Co., 550 F.Supp.2d 371, 382 (W.D.N.Y.
2008) (“While a Rule 56[(d)] discovery request may be granted to
allow a plaintiff to ‘fill material evidentiary gaps,’ it may
22
not be premised solely on speculation as to evidence which might
be discovered.”), aff’d, 328 F.App’x 738 (2d Cir. 2009).
Here, it is undisputed that Defendant moved for summary
judgment before any discovery.
Plaintiff submitted an affidavit
of Laura J. Brown, one of her attorneys.
Ms. Brown submits that
she needs to discover: (1) documents reflecting communications
between DIA and Defendant concerning Plaintiff’s employment and
eventual
termination,
her
security
clearance,
and
the
DIA
policy/directive that allegedly prohibited her from returning to
work after March 16, 2011; (2) testimony of AIT employees who
communicated
with
DIA
concerning
DIA’s
alleged
demand
of
information from Plaintiff and those employees who attended the
March
16,
2011
meeting
with
Plaintiff;
(3)
documents
and
testimony regarding AIT’s efforts to find Plaintiff a substitute
position following termination of her contract with DIA; and (4)
documents and testimony from DONCAF and DIA employees who have
knowledge of Plaintiff’s security clearance investigation, the
alleged documentation DIA demanded, and the contract with AIT on
which Plaintiff worked.
(ECF No. 17-2 ¶ 5).
Plaintiff’s affidavit identifies discovery needs relevant
to
the
central
issue
terminated
because
clearance,
or
of
whether
of
a
this
this
case:
failure
reason
whether
Defendant
to
maintain
a
was
merely
pretext
a
was
security
by
Defendant, hiding the real reason: impermissible discrimination
23
on
the
basis
of
Plaintiff’s
sex.
Additionally,
even
if
Plaintiff’s employment with DIA was terminated on DIA’s accord,
there would still be an issue of whether Defendant’s subsequent
search for a replacement position was purposefully less thorough
because
of
Plaintiff’s
transgender
status.
Therefore,
Defendant’s motion for summary judgment is premature and will be
denied.
V.
Conclusion
For the foregoing reasons, the motion to strike filed by
Plaintiff will be denied.
The motion to dismiss or, in the
alternative, for summary judgment filed by Defendant will be
denied.
A separate order will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
24
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