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