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United States District Court, District of Columbia

July 16, 2003


The opinion of the court was delivered by: John D. Bates, District Judge


Plaintiff Bennie L. Boykin ("plaintiff") brings this action for alleged discrimination on the basis of his race, color, and age, and for alleged retaliation under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et. seq. ("Title VII"). Defendant Gordon R. England, Secretary, Department of the Navy ("defendant" or "the Navy"), moves to dismiss plaintiff's complaint or, in the alternative, for summary judgment. For the reasons stated below, the motion is granted.


Plaintiff, an African-American male, was employed by the Department of the Navy, Office of Information, as a Visual Information Technician (OA), GS-0303-06. Compl. ¶ 6. In the summer of 2000, plaintiff used Navy equipment to duplicate a copyrighted movie not yet available to the public. Def.'s Mot., Ex. 5. Lt. Richard Naystatt, Deputy Director, Navy Visual News Service, told plaintiff that the unauthorized duplication of copyrighted material was a felony, and that such use of government equipment was intolerable. Def.'s Mot., Ex. 2. Nevertheless, on September 19, 2000, plaintiff again used government equipment to make unauthorized copies of a copyrighted production not yet available to the public. Def.'s Mot., Ex. 2, 3, 5.

Plaintiff was thereafter subjected to a series of what he contends were discriminatory actions. First, on January 9, 2001, plaintiff was notified that his access to classified information was suspended, and a request was made to suspend his security clearance. Compl. ¶¶ 9, 10. The following day, plaintiff received a Notice of Proposed Removal and was placed on administrative leave. Id. ¶ 12. Three months later, on April 17, 2001, plaintiff was notified of the Navy's formal Decision to Remove. Contemporaneously therewith, however, plaintiff was offered the opportunity to enter and, in fact, did enter an Abeyance/Last Chance Agreement, which allowed him to remain employed on a probationary status for 18 months, as long as he refrained from engaging in further misconduct. Def.'s Mot., Ex. 14, 15. That same day, following the execution of the Abeyance/Last Chance Agreement, and apparently to plaintiff's surprise, he received a Notice of Proposed Indefinite Suspension and was again placed on administrative leave. Def.'s Mot., Ex. 19; Compl. ¶¶ 16, 18. Two days afterwards, on April 19, 2001, plaintiff visited an EEO counselor, and was informed of his right to file an EEO complaint. Def.'s Mot., Ex. 18.*fn1

Plaintiff was given an opportunity to respond to the Notice of Proposed Indefinite Suspension and did so in writing on May 10, 2001. Thereafter, he was offered an opportunity to rescind his Abeyance/Last Chance Agreement, but he never replied. Def.'s Mot., Ex. 20, 21. On August 16, 2001, defendant issued a Notice of Decision on Proposed Indefinite Suspension to plaintiff Def.'s Mot., Ex. 22. Plaintiff remained on indefinite suspension until his ultimate removal, effective June 21, 2002. Pl.'s Mem. P. & A. Supp. Opp'n Def.'s Mot., Ex. 4.*fn2

In this litigation, plaintiff brings several counts of discrimination and retaliation under Title VII, alleging that the following actions were improper: (1) the suspension of his access to classified information, Compl. ¶ 9; (2) the request to suspend his security clearance id. ¶ 10; (3) the decision to issue the Notice of Proposed Removal, id.¶ 12; (4) the subsequent Decision to Remove coupled with the Abeyance/Last Chance Agreement id. ¶ 14; (5) the decision to place plaintiff on administrative leave in two instances, the latter of which was rendered on the same day as the Decision to Remove id. ¶¶ 12, 16; (6) the decision to issue a Notice of Proposed Indefinite Suspension and subsequent decision to suspend plaintiff indefinitely, id., ¶ 18; and (7) defendant's failure to properly rate plaintiff's performance, id. ¶ 21.

Defendant now moves to dismiss or, in the alternative, for summary judgment on plaintiff's claims.*fn3 Based on the record before it, the Court concludes that there is no genuine issue of material fact and that defendant is entitled to judgment as a matter of law on all of plaintiff's claims.


I. Legal Framework

A. Standard for Summary Judgment

Summary judgment is appropriate when the pleadings and the evidence demonstrate that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The party seeking summary judgment bears the initial responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may successfully support its motion by "`informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Id. (quoting Fed.R.Civ.P. 56(c)).

In determining whether there exists a genuine issue of material fact sufficient to preclude summary judgment, the court must regard the non-movant's statements as true and accept all evidence and make all inferences in the non-movant's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A non-moving party, however, must establish more than the "mere existence of a scintilla of evidence" in support of its position. Id. at 252. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50 (internal citations omitted). Summary judgment is appropriate if the non-movant fails to offer "evidence on which the jury could reasonably find for the [non-movant]." Id. at 252.*fn4

B. The McDonnell Douglas Framework

A plaintiff has the burden of establishing a prima facie case of discrimination by a preponderance of the evidence. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). To establish a prima facie case of discrimination, a plaintiff must demonstrate that (1) he is a member of a protected class; (2) he suffered an adverse employment action; and (3) the unfavorable action gives rise to an inference of discrimination. Brown v. Brody, 199 F.3d 446, 452 (D.C. Cir. 1999); Stella v. Mineta, 284 F.3d 135, 145 (D.C. Cir. 2002). To make out a prima facie claim of retaliation, plaintiff must establish that (1) he engaged in a statutorily protected activity; (2) the employer took an adverse personnel action; and (3) a causal connection existed between the two. Brody, 199 F.3d at 452.

If the plaintiff establishes a prima facie case, the burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for its actions. McDonnell Douglas, 411 U.S. at 802. The employer's burden, however, is merely one of production. Burdine, 450 U.S. at 254-55. The employer "need not persuade the court that it was actually motivated by the proffered reasons. It is sufficient if the defendant's evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff." Id.

If the employer is successful, the burden shifts back to the plaintiff to show that the employer's stated reason was a pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000). The plaintiff "may attempt to establish that he was the victim of intentional discrimination `by showing that the employer's proffered explanation is unworthy of credence.'" Id. (quoting Burdine, 450 U.S. at 256). But "[p]roof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination." Id. at 147. Thus, the trier of fact may also "consider the evidence establishing the plaintiff's prima facie case `and inferences properly drawn therefrom . . . on the issue of whether the defendant's explanation is pretextual.'" Id. (quoting Burdine, 450 U.S. at 255 n. 10). "Whether judgment as a matter of law is appropriate in any particular case will depend on a number of factors . . . includ[ing] the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case and that properly may be considered on a motion for judgment as a matter of law." Id. at 148-49.

Although under the McDonnell Douglas framework the "intermediate evidentiary burdens shift back and forth under this framework, `[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.'" Reeves, 530 U.S. at 143 (quoting Burdine, 450 U.S. at 253). Indeed, once the defendant has proffered a legitimate non-discriminatory reason for its action, the burden-shifting McDonnell Douglas framework "disappear[s], and the sole remaining issue [i]s discrimination vel non." Id. at 142-43.

II. Plaintiff's Allegations

Although plaintiff's allegations are framed into several counts in his complaint, for the purpose of analysis, the allegations are better grouped into just two categories: alleged adverse actions relating to or justified by defendant on the basis of plaintiff's security clearance status, and alleged adverse actions justified by defendant on the basis of plaintiff's misconduct (i.e., his copyright violations). As discussed below, claims based on the former set of allegations must be dismissed because they are not reviewable under Department of Navy v. Egan, 484 U.S. 518 (1988), and subsequent precedent. Claims based on the latter set of allegations must be dismissed because, on the facts set forth, plaintiff has not suffered an actionable adverse employment action.

A. Allegations Relating to Security Clearance

In Department of Navy v. Egan, the Supreme Court held that the Merit Systems Protection Board does not have the authority to review the substance of an underlying decision to deny or revoke a security clearance. 484 U.S. at 520. The Court's decision was grounded in a concern for allowing the Executive Branch sufficient discretion to make security clearance decisions:

The protection of classified information must be committed to the broad discretion of the agency responsible, and this must include broad discretion to determine who may have access to it. Certainly, it is not reasonably possible for an outside nonexpert body to review the substance of such a judgment and to decide whether the agency should have been able to make the necessary affirmative prediction with confidence.
Id. at 529.

The doctrine set forth in Egan has since evolved to preclude federal district court review of actions involving security clearance determinations. See, e.g., Dorfmont v. Brown, 913 F.2d 1399, 1401 (9th Cir. 1990) (holding that the District Court does not have authority to review attacks on the merits of a department's security clearance decision). of particular relevance, the D.C. Circuit in Ryan v. Reno, 168 F.3d 520, 523 (D.C. Cir. 1999), held that adverse employment actions based on the denial or revocation of a security clearance are not actionable under Title VII. The court reasoned that it could not properly apply the McDonnell Douglas burden shifting framework to an adverse action involving a security clearance determination because, in evaluating whether the defendant's proffered reason for taking an adverse action was pretextual, the court would be required to look into the merits of the security clearance determination — a step that is barred under Egan. See id. at 524.

In the instant case, several of the alleged adverse employment actions relate to or are justified by defendant on the basis of security clearance concerns: defendant's request for suspension of plaintiff's security clearance, Def.'s Mot., Ex. 8; the decision to withdraw his access to classified information, id Ex. 8, 9; his placement on administrative leave on January 10, 2001,*fn5 and again on April 17, 2001 id., Ex.10, 16, 17; and the Notice of Proposed Indefinite Suspension and subsequent indefinite suspension id Ex. 16, 22. Questioning whether any of these actions were, in fact, a result of discrimination or retaliation as plaintiff alleges, would require the Court to examine the merits of defendant's security clearance determinations. Under Egan and Ryan v. Reno, such an inquiry is impermissible. Claims based on these alleged adverse actions therefore fail.*fn6

Plaintiff challenges the foregoing conclusion, arguing that his position did not require a security clearance. Plaintiff points out that, under 5 C.F.R. § 511.701(a), "an official with properly delegated authority must approve (certify) the proposed classification." Pl.'s Mem. P. & A. Supp. Opp'n Def.'s Mot., at 6. According to plaintiff, the person who certified his position for security classification was not legally authorized to do so.

This argument fails as well. Defendant has submitted what appears to be an official and properly executed position description,*fn7 which includes the challenged Classification/Job Grading certification signed by W.F. Mason, Assistant Chief of Information (Administration and Resource Management), as well as a Supervisory Certification by Christopher Madden, Director, Navy Visual News Service. See Def.'s Mot., Ex. 1. Plaintiff has provided no factual basis whatsoever for his argument that the Assistant Chief of Information had not been delegated the appropriate authority to certify his position for security classification. See id. Plaintiff cannot raise a genuine issue of fact by way of a mere assertion or allegation. See Anderson, 477 U.S. at 249 ("If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted."). Accordingly, the Court concludes that defendant is entitled to judgment as a matter of law all on claims relating to adverse actions justified on the basis of security clearance concerns.

B. Other Alleged Adverse Actions

Setting aside all of the alleged actions relating to security clearance issues, none of the remaining actions of which plaintiff complains actually rise to the level of an adverse employment action under Title VII. In the D.C. Circuit, an adverse action under Title VII must have "materially adverse consequences affecting the terms, conditions, or privileges of [his] employment or [his] future employment opportunities such that a reasonable trier of fact could conclude that the plaintiff has suffered objectively tangible harm." Brown v. Brody, 199 F.3d at 457; see also Burlington Indus. Inc. v. Ellerth, 524 U.S. 742, 761 (1998) ("[A] tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits."); Walker v. WMATA, 102 F. Supp.2d 24, 29 (D.D.C. 2000) (`[A]n employment decision does not rise to the level of an actionable adverse action . . . unless there is a `tangible change in the duties or working conditions constituting a material employment disadvantage'") (quoting Kilpatrick v. Riley, 98 F. Supp.2d 9, 21 (D.D.C. 2000)). In the present case, the alleged adverse employment actions do not involve sufficiently tangible harm under the Brown v. Brody standard.

1. Notice of Proposed Removal

Plaintiff complains about defendant's decision to issue him a Notice of Proposed Removal, purportedly based on his unauthorized duplication of copyrighted materials during working hours. See Def.'s Mot., Ex. 5. However, the Notice of Proposed Removal was essentially a precursor to the April 17, 2001 Decision to Remove (which, as discussed below, was never effectuated). In other words, the Notice was merely an "interlocutory or mediate decision." See Page v. Bolger, 645 F.2d 227, 233 (4th Cir. 1981) (en banc) ("[T]here are many interlocutory or mediate decisions having no immediate effect upon employment conditions which were not intended to fall within the direct proscriptions of . . . Title VII . . . that are simply steps in a process for making such obvious end decisions as those to hire, to promote etc."). No "tangible harm" or "materially ad verse consequence" followed directly from the Notice, and hence it is not separately actionable. See Brown v. Brody, 199 F.3d at 457.

2. Decision to Remove and Last Chance Agreement

Plaintiff also seeks relief based on the April 17, 2001 Decision to Remove — a decision of the type that would ordinarily constitute an adverse employment action under the "tangible harm" standard articulated in Brown v. Brody. However, here the April 17, 2001 removal decision was never effectuated. Instead, because plaintiff signed an Abeyance/Last Chance Agreement, ("LCA"), he was allowed to remain on full employment status for 18 months, for a probationary period. Def.'s Mot., Ex. 14, 15. Thus plaintiff suffered no materially adverse consequences from the April 17, 2001 decision to remove him and cannot bring a Title VII claim based on that action.*fn8

Plaintiff alleges that the LCA was somehow adverse to him or otherwise improper. But plaintiff benefitted from entering the LCA by attaining the postponement of his removal and the opportunity to avoid removal altogether if he refrained from further misconduct. Def.'s Mot., Ex. 14, 15; see also United States Dep't Air Force v. Fed. Labor Relations Auth., 949 F.2d 475, 478 (D.C. Cir. 1991) (LCAs are "probationary contracts negotiated by an agency with an employee who faces removal or serious discipline for poor performance. In exchange for the employer's withholding the adverse action, the employee pledges rehabilitation or job performance improvement in specific ways."). Moreover, the LCA did not place any conditions on plaintiff's position that had a material effect on the terms of his employment. Cf. Austin v. Haaker, 76 F. Supp.2d 1213, 1219 (D. Kan. 1999) (last chance agreement that suspended employer's regular attendance policy altered terms and conditions of plaintiff's employment and thus constituted adverse employment action).*fn9

To the extent plaintiff is complaining that he was forced under duress or threat to sign the LCA, or was fraudulently induced to do so, these allegations fail. The fact that plaintiff's removal would have been effectuated had he not signed the LCA does not mean that his decision to execute the LCA was involuntary. See Williams v. United States Postal Service, No. 03-3012, 2003 WL 932440, at *2 (Fed. Cir. 2003) (unpublished) ("[T]he unpleasant alternative of removal that [plaintiff] faced does not render his acceptance of the [last chance] agreement involuntary, nor does it amount to coercion or duress."). It may be that plaintiff did not expect that following the execution of the LCA he would be placed on administrative leave. But plaintiff was subsequently given the opportunity to rescind the LCA and chose not to do so. Def.'s Mot., Ex. 20, 21. Accordingly, plaintiff cannot sustain any Title VII claim based on his execution of the LCA.

3. Plaintiff's Performance Evaluation

Finally, plaintiff alleges that defendant discriminated against him by withholding his performance evaluation of October 30, 2000, pending the investigation and disposition concerning his misconduct. Def.'s Mot., Ex. 7. But under Brown v. Brody, plaintiff must demonstrate that he has suffered some form of objectively tangible harm with regard to his employment conditions. 199 F.3d at 457. Here, plaintiff has not demonstrated any tangible effects on employment stemming from his lack of a formal appraisal. He has not shown that a missing performance evaluation resulted in any subsequent adverse action, and the record indicates that none of the disciplinary actions taken against plaintiff were in any way attributed to his incomplete appraisal.

Although plaintiff argues that had he been properly appraised he could have qualified for monetary awards, he provides no evidence that awards were actually available to employees in his position and were based upon an employee's formal performance appraisal. Moreover, given that plaintiff was rated as "unacceptable" in the evaluation that defendant withheld, it is implausible that finalizing the appraisal would have allowed plaintiff to receive a performance-based award.*fn10 See Pl.'s Mem. P. & A. Supp. Opp'n Def.'s Mot., at 9; Def.'s Mot., Ex. 7.

Plaintiff asserts that defendant's failure to issue him a performance evaluation constituted a violation of certain Navy and Office of Personnel Management regulations. Even if true, however, such an alleged violation would not change the fact that plaintiff was not sufficiently affected by the absence of a performance evaluation to state a claim under Title VII.


Plaintiff cannot succeed on his claims as alleged. Certain actions taken against plaintiff are not subject to review by this Court because they relate to security clearance issues. Other actions do not constitute adverse employment actions that would give rise to a prima facie case of discrimination under Title VII. There are thus no genuine issues of material fact that would prevent the entry of summary judgment on each of the plaintiff's claims. Therefore, defendant is entitled to judgment as a matter of law.

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