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Thomas v. Johnson

United States District Court, District Circuit

January 16, 2014

BURT R. THOMAS, Plaintiff,
v.
JEH JOHNSON, Secretary, U.S. Department of Homeland Security, Defendant.

MEMORANDUM OPINION

GLADYS KESSLER District Judge.

Plaintiff Burt Thomas ("Thomas" or "Plaintiff") brings this Title VII action against Jeh Johnson, the Secretary of the Department of Homeland Security (the "Secretary" or "Defendant"), claiming that he was removed from his position at the Federal Emergency Management Agency ("FEMA" or "the Agency") on the basis of his race.

This matter is before the Court on the Secretary's Motion for Judgment on the Pleadings [Dkt. No. 19]. Upon consideration of the Motion, Opposition [Dkt. No. 22], and Reply [Dkt. No. 29], the entire record herein, and for the reasons stated below, the Secretary's Motion is denied.

I. BACKGROUND[1]

For purposes of this Motion, the facts can be stated briefly. Plaintiff, who is African American, is an employee of FEMA, a component of the Department of Homeland Security ("DHS"). Starting in February, 2011, Plaintiff held the position of Chief Security Officer. Am. Compl. ¶ 15-16. On July 28, 2011, the Agency temporarily detailed Plaintiff to a different position, where he was given no work to do. Am. Compl. ¶¶ 23-24. Plaintiff was told that the reason for the temporary detail was that he was the subject of an ongoing investigation for contract fraud, attempting to influence the outcome of the Agency's security clearance investigations, and covering up alleged misconduct of other employees. Am. Compl. ¶¶ 17, 26.

On February 23, 2012, Plaintiff was formally demoted to the position of Director, Records Management Division. Am. Compl. ¶ 40.[2] The official reason given for his demotion was "misconduct and malfeasance." Am. Compl. ¶ 46. In particular, the Agency asserted that Plaintiff violated Agency policy by making knowingly false statements and permitting two employees, Gary Walker and James Bland, to work in positions requiring a top secret security clearance while their clearance applications were still being investigated. ¶¶ 46-48, 56. The Agency also alleged that Plaintiff permitted Walker and Bland to be hired even though he knew they had criminal backgrounds. Am. Compl. ¶ 62.

Plaintiff contends that the reasons proffered by the Agency for his 2011 detail and the 2012 demotion were merely pretext, and that the real reason for these actions was racial discrimination and reprisal. Am. Compl. ¶¶ 74, 103. He claims that white employees under investigation generally were not detailed to a different position during the pendency of such investigations. Am. Compl. ¶¶ 29-32. Plaintiff's theory is that, by detailing him to a new position in 2011, the Agency intended to demean him sufficiently that he would be induced to resign, which would allow it to replace him with a white person and thereby "facilitate the process of eliminating [] African-Americans from the security office." Am. Compl. ¶¶ 37-38. He notes that a white employee was ultimately chosen to replace him in his position, and that his demotion coincided with the termination and suspension of several other African American employees at FEMA, most of whom were also replaced by white employees. ¶¶ 38, 107-111.

Plaintiff also asserts that his demotion was unfounded because he did not, in fact, violate Agency policy by permitting Bland and Walker to work pending finalization of their security clearances. According to Plaintiff, Agency practice permitted Bland and Walker to perform at least some of their responsibilities based on either a "reciprocal" or an "interim" security clearance. Am. Compl. ¶¶ 56-60, 80. He claims that similarly-situated white employees, including those with direct responsibilities for ensuring compliance with the security clearance requirements, were not detailed to different positions or demoted as he was. Finally, he maintains that in the process of demoting him, the Agency intentionally deprived him of certain procedural protections given to white employees under similar circumstances. Am. Compl. ¶ 54, 61, 93, 96-97, 106.

B. Procedural Background

Plaintiff filed this case on March 20, 2013. On June 3, 2013, he filed an Amended Complaint. On July 11, 2013, the Secretary filed its Answer [Dkt. No. 8].

On October 30, 2013, the Secretary filed its Motion for Judgment on the Pleadings [Dkt. No. 19]. On December 2, 2013, Plaintiff filed his Opposition [Dkt. No. 22]. On December 20, 2013, the Secretary filed his Reply [Dkt. No. 29].

II. STANDARD OF REVIEW

A Rule 12(c) motion is "functionally equivalent" to a Rule 12(b) (6) motion and governed by the same standard. Rollins v. Wackenhut Servs., Inc. , 703 F.3d 122, 130 (D.C. Cir. 2012). To survive the motion, a plaintiff need only plead "enough facts to state a claim to relief that is plausible on its face" and to "nudge[ [his or her] claims across the line from conceivable to plausible." Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570 (2007). "[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Id. at 563.

In deciding a Rule 12 (c) motion, a court "must assume all the allegations in the complaint are true (even if doubtful in fact)... [and] must give the plaintiff the benefit of all reasonable inferences derived from the facts alleged." Aktieselskabet AF 21. November 2001 v. Fame Jeans Inc. , 525 F.3d 8, 17 (D.C. Cir. 2008) (quotation marks and citations omitted). The Court "must not make any judgment about the probability of the plaintiffs' success, " id., and should grant a motion for judgment on the pleadings only if it clear that "no material fact is in dispute and [the movant] is ...


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