United States District Court, D. Columbia.
For LEROY HENDRIX, Plaintiff: Donna Williams Rucker, RUCKER & ASSOCIATES, PC, Washington, DC.
For JANET NAPOLITANO, In her official as Secretary of the U.S. Department of Homeland Security, Defendant: Marina Utgoff Braswell, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC.
TANYA S. CHUTKAN, United States District Judge.
Plaintiff Leroy Hendrix alleges five counts in his Complaint: 1) employment discrimination on the basis of race pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § § 2000e, et seq. (" Title VII" ); 2) employment discrimination on the basis of retaliation pursuant to Title VII; 3) hostile work environment pursuant to Title VII; 4) constructive discharge/wrongful termination; and 5) equitable relief. Defendant Jeh Johnson, Secretary of the United States Department of Homeland Security, moved for dismissal of the Complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim and for summary judgment under Rule 56 on Count IV (ECF No. 10, the " Motion" ). In the Motion, the Secretary argues that Executive Branch security clearance decisions are committed by law to the " broad discretion" of the Executive Branch agency responsible and are not subject to judicial review, citing Dep't of the Navy v. Egan, 484 U.S. 518, 527-29, 108 S.Ct. 818, 98 L.Ed.2d 918 (1988). (Mot. at 9-17). In his Opposition, Mr. Hendrix acknowledges the effect of Egan and " [v]oluntarily agrees to dismiss Counts I -- III of his Complaint." (ECF No. 13, Opp'n at 15). The scope of the Court's analysis, therefore, is limited to Counts IV and V of the Complaint. Because the facts and law present but one outcome on Count IV, the Court enters summary judgment on it in the Secretary's favor. The Court must dismiss Count V for failure to state a claim upon which relief can be granted.
I. RELEVANT UNDISPUTED MATERIAL FACTS
The following facts are undisputed by the parties. Mr. Hendrix, who is African-American, was employed in the United States Secret Service's Los Angeles Field Office (" FO" ) at the time of his retirement on September 30, 2012. (ECF No. 1,
Compl., ¶ 15; Mot. 1 ¶ 1; Opp'n 9). On October 1, 2010, Mr. Hendrix received a Notice from the Chief of the Secret Service's Security Clearance Division (" SCD" ) that his Top Secret security clearance was being suspended because additional time was needed to resolve adverse information regarding Mr. Hendrix's alleged misuse of the Baltimore FO's Confidential Fund and to conduct additional investigation. (Compl. ¶ 44; Mot. 2 ¶ 5; Opp'n 10). Mr. Hendrix subsequently received a Notice of Determination (" NOD" ) dated October 3, 2011, from the Chief of the SCD stating that a determination was made to revoke Mr. Hendrix's Top Secret security clearance based on his knowing use of the Baltimore FO's Confidential Fund for unauthorized purposes associated with a retirement party, and for intimidating a subordinate employee to sign Secret Service forms authorizing the payment. (Compl. ¶ 44; Mot. 2 ¶ 8; Opp'n 11). Between October 1, 2010 and October 3, 2011, the SCD placed Mr. Hendrix on " Do Not Admit" status, which meant that he was not permitted access to secure facilities or grounds. (Compl. ¶ ¶ 43, 46; Mot. 2 ¶ ¶ 6, 7; Opp'n 10). Mr. Hendrix appealed the NOD to the final stage of review for such actions and received a notice dated July 20, 2012, upholding the revocation of his Top Secret security clearance and informing him that there was no further right to appeal. (Mot. 3 ¶ ¶ 9, 10; Opp'n 11).
On November 9, 2011, Mr. Hendrix received a notice of Proposed Indefinite Suspension from the Los Angeles FO informing Mr. Hendrix of a proposal to suspend him for an indefinite period without pay for failure to maintain his Top Secret security clearance; the notice provided appeal rights to the parent office for the Los Angeles FO. (Compl. ¶ 7; Mot. 3 ¶ 11; Opp'n 11). Following Mr. Hendrix's response to the proposal, on January 12, 2012, he received an Indefinite Suspension Decision from the parent office for the Los Angeles FO stating that he would be suspended from duty without pay for an indefinite period of time effective January 14, 2012. This Decision further stated that the indefinite suspension would terminate at such time as the Secret Service issued either a decision reinstating Mr. Hendrix's Top Secret security clearance, or issued a final decision revoking that clearance and completed any further adverse action stemming from the same matter. (Compl. ¶ 50; Mot. 4 ¶ 12 and Ex. 11; Opp'n 11).
Mr. Hendrix then received a notice of Proposed Removal dated July 30, 2012 from Special Agent in Charge (" SAIC" ) Joseph Beaty that proposed Mr. Hendrix's removal from Secret Service employment based on failure to meet the requirements of his position due to revocation of his Top Secret security clearance. (Compl. ¶ 51; Mot. 4 ¶ 13; Opp'n 12). The Proposed Removal required that any reply be directed to Deputy Assistant Director (" DAD" ) Lee Fields, Office of Investigations. ( Id.). Mr. Hendrix submitted a written reply and subsequently received a Removal Decision from DAD Fields upholding the proposed removal and making Mr. Hendrix's removal effective October 1, 2012. (Mot. 4 ¶ 14; Opp'n 12). Mr. Hendrix retired effective September 30, 2012. (Compl. ¶ 15; Mot. 5 ¶ 15; Opp'n 9).
II. LEGAL STANDARD
Summary judgment is proper " if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). " [T]he plain language of Rule 56(c) mandates the entry of summary
judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). " In such a situation, there can be 'no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Maydak v. United States, 630 F.3d 166, 181, 394 U.S.App.D.C. 22 (D.C. Cir. 2010) (quoting Celotex Corp., 477 U.S. at 322-23). " The moving party is 'entitled to a judgment as a matter of law' because the nonmoving party ...