Qafko v. Duke et al

Filing 20

OPINION and ORDER granting Defendants' 13 Motion for Partial Dismissal and dismissing defendant Perry. Signed by District Judge Bernard A. Friedman. (JCur)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DIMITRI QAFKO,
Plaintiff,

Civil Action No. 17-CV-13916

vs.

HON. BERNARD A. FRIEDMAN

KIRSTJEN M. NIELSEN, et al.,
Defendants.
__________________________/
OPINION AND ORDER GRANTING
DEFENDANTS’ MOTION FOR PARTIAL DISMISSAL
This matter is presently before the Court on defendants’ motion for partial dismissal
[docket entry 13]. Plaintiff has filed a response in opposition and defendant has filed a reply.
Pursuant to E.D. Mich. LR 7.1(f)(2), the Court shall decide this motion without a hearing.
This is an employment discrimination action in which plaintiff, who works as a
Customs and Border Protection (“CBP”) officer, alleges that defendants denied him a security
clearance and several promotions because of his race (Arab), religion (Muslim) and national origin
(Albania) and because he refused their requests to “becom[e] an informant by infiltrating Albanian
and Iraqi gangs and smugglers, and obtaining intelligence for use in an ongoing criminal
investigation.” Compl. ¶ 17. Plaintiff also alleges that defendants subjected him to a hostile work
environment. He asserts claims under Title VII of the Civil Rights Act of 1964 (Counts I, II, III)
and for violation of his First and Fifth Amendment rights (Counts IV, V, VI, and VII). Plaintiff
seeks damages, costs, attorney fees, and injunctive relief. The defendants are Kirstjen Nielsen
(Secretary of the Department of Homeland Security) and Christopher Perry (Director of the Detroit

Field Office of U.S. CBP), both sued in their official capacity only.1
Defendants argue that all of plaintiff’s claims, except his Title VII claim as to a
specific promotion denial, should be dismissed because (1) Nielsen is the only proper defendant
regarding plaintiff’s Title VII claims, (2) the Court lacks subject matter jurisdiction to adjudicate
plaintiff’s claims regarding the revocation of his security clearance, (3) all of plaintiff’s Title VII
claims except one are either untimely or premature, and (4) plaintiff’s constitutional claims are
preempted by Title VII. Plaintiff disputes each of these points.
Defendants correctly argue that Title VII is a federal employee’s exclusive remedy
for workplace discrimination. See Brown v. Gen. Servs. Admin., 425 U.S. 820, 835 (1976) (stating
that Title VII “provides the exclusive judicial remedy for claims of discrimination in federal
employment”); Hunter v. Sec’y of U.S. Army, 565 F.3d 986, 993 (6th Cir. 2009) (noting that “Title
VII prohibits discrimination in employment on the basis of race, color, religion, sex, and national
origin . . . and provides the exclusive remedy for such claims in federal employment.”). As all of
plaintiff’s claims concern alleged discrimination he experienced as a federal employee, his
constitutional claims (Counts IV - VII) must be dismissed.
Plaintiff’s Title VII claims (Counts I - III) are subject to various pre-suit
requirements. Initially, within 45 days of the allegedly discriminatory action, he must file a
complaint with his employing agency’s EEO counselor:
“The right to bring an action under Title VII regarding equal
employment [opportunity] in the federal government is predicated

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In his response brief, plaintiff indicates that he has agreed to dismiss the other
defendants, Charles Mullins Jr. (CBP Internal Affairs Criminal Investigator), Aaron Poyer (CBP
Supervisory Criminal Investigator), and “unidentified CBP officers.” See Pl.’s Br. at 6 n.1
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upon the timely exhaustion of administrative remedies, as set forth in
[the EEOC regulations].” Benford v. Frank, 943 F.2d 609, 612 (6th
Cir.1991); see also Brown, 425 U.S. at 829–32, 96 S.Ct. 1961. Under
29 C.F.R. § 1614.105(a)(1), an aggrieved employee “must initiate
contact with a[n EEO] [c]ounselor within 45 days of the date of the
matter alleged to be discriminatory or, in the case of personnel action,
within 45 days of the effective date of the action” in order to facilitate
informal resolution of the dispute. Failure to timely seek EEO
counseling is grounds for dismissal of the discrimination claims.
Benford, 943 F.2d at 612.
Hunter, 565 F.3d at 993. If plaintiff files a timely EEO complaint and is dissatisfied with the
agency’s final decision, he may appeal to the Equal Employment Opportunity Commission
(“EEOC’). See 29 C.F.R. § 1614.110. If plaintiff files a timely appeal with the EEOC and is
dissatisfied with its decision, he may file suit in the appropriate United States District Court within
90 days. See 42 U.S.C. §§ 2000e-16(c).
In the present case, defendants argue that all of plaintiff’s failure-to-promote claims
except the one alleged in ¶ 44(r) of the complaint should be dismissed either because plaintiff did
not file a timely EEO complaint or because he has not exhausted his administrative remedies.
Plaintiff appears to concede that these claims are all either untimely or premature, but he argues they
should all be allowed to proceed on the grounds that they all are part of a “continuing violation” of
his right not to be discriminated against. The Court rejects plaintiff’s argument. Each instance when
plaintiff allegedly was not promoted, see Compl. ¶ 44(a)-(q) and 44(t)-(z), was a discrete
discriminatory act, and each was subject to the “rigorous administrative exhaustion requirements
and time limitations.” Brown, 425 U.S. at 833. As the Supreme Court held in Nat’l R.R. Passenger
Corp. v. Morgan, 536 U.S. 101, 113-14 (2002), “discrete discriminatory acts are not actionable if
time barred, even when they are related to acts alleged in timely filed charges” and “only incidents
that took place within the timely filing period are actionable.” As plaintiff concedes that the only
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failure-to-promote claim he timely and properly exhausted is the one alleged in ¶ 44(r) of his
complaint, this is the only such claim that may proceed.
Plaintiff does allege other discrete acts of discrimination, i.e., that defendants
subjected him to four investigations from 2009 through September 2016. Defendants indicate that
the agency dismissed plaintiff’s complaints regarding these investigations because, like all but one
of his failure-to-promote complaints, they were not filed within 45 days. As plaintiff does not
dispute this in his response brief, the Court shall dismiss the complaint to the extent it is based on
these allegedly discriminatory investigations.
The only other discriminatory act alleged in the complaint is that “while serving as
a member of a special unit, [plaintiff] was denied his security clearance by Internal Affairs.” Compl.
¶ 51. As defendants correctly note, however, “courts traditionally have been reluctant to intrude
upon the authority of the Executive in military and national security affairs.” Dep’t of Navy v. Egan,
484 U.S. 518, 530 (1988). Plaintiff’s only contrary authority, Tenenbaum v. Caldera, 45 F. App’x
416, 418 (6th Cir. 2002) (“Judicial review [of security clearance decisions] may be appropriate, for
example, where the plaintiff alleges a violation of constitutional rights”), is unpublished. Such
decisions “are non-precedential and bind only the parties to those cases.” Sun Life Assurance Co.
of Canada v. Jackson, 877 F.3d 698, 702 (6th Cir. 2017). As plaintiff has offered no binding or
otherwise persuasive authority contradicting Egan, the Court shall dismiss the complaint to the
extent it is based on the alleged denial or revocation of his security clearance.
Finally, as defendants correctly note, the only proper defendant in this matter is the
agency head, defendant Nielsen. See Mulhall v. Ashcroft, 287 F.3d 543, 550 (6th Cir. 2002).
Accordingly, the Court shall dismiss the complaint as to the only other remaining defendant, Perry.

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For these reasons,

IT IS ORDERED that defendants’ motion for partial dismissal is granted as follows:
Counts IV-VII are dismissed; Counts I-III are dismissed except as to the failure-to-promote claim
alleged in ¶ 44(r) of the complaint; and the complaint is dismissed as to defendant Perry.

Dated: May 14, 2018
Detroit, Michigan

s/Bernard A. Friedman
BERNARD A. FRIEDMAN
SENIOR UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon counsel of record and
any unrepresented parties via the Court's ECF System to their respective email or First Class
U.S. mail addresses disclosed on the Notice of Electronic Filing on May 14, 2018.
s/Johnetta M. Curry-Williams
Case Manager

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