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Thomas v. Johnson

United States District Court, D. Columbia.

March 30, 2015

BURT R. THOMAS, Plaintiff,
v.
JEH JOHNSON, Secretary, United States Department of Homeland Security, Defendant

For BURT C THOMAS, Plaintiff: Phillip Robert Kete, LAW OFFICE OF PHILLIP ROBERT KETE, Chesapeake Beach, MD.

For JANET A. NAPOLITANO, U.S. DEPARTMENT OF HOMELAND SECURITY, Defendants: Wyneva Johnson, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE FOR D.C., Washington, DC.

Page 241

MEMORANDUM OPINION

ALAN KAY, UNITED STATES MAGISTRATE JUDGE.

Pending before the Court are Plaintiff's Second Amended Motion to Compel a 30(b)(6) Deposition (" Motion" ) [72]; Defendant's Opposition to Plaintiff's Motion (" Opposition" ) [73]; and Plaintiff's Reply to the Opposition (" Reply" ) [74]. Plaintiff Burt R. Thomas (hereinafter " Plaintiff" or " Thomas" ) moves this Court to compel a Rule 30(b)(6) deposition of Defendant Department of Homeland Security (" DHS" ) (hereinafter " Defendant" ).

I. Background

The underlying case stems from a complaint filed by Plaintiff alleging violations of Title VII of the Civil Rights Act of 1964. Plaintiff was employed by the Federal Emergency Management Agency (" FEMA" ), beginning in July 2008. (6/03/2013 Amended Complaint [7] ¶ 5.) From February 27, 2011 through February 24, 2012, Plaintiff was officially assigned to the position of Chief Security Officer for FEMA. (Amended Complaint ¶ 15.) According to Plaintiff, FEMA claimed that in June of 2011, two or more

Page 242

of its employees reported to management " that [Plaintiff] had committed fraud, covered up a sexual harassment claim, covered up an employee's DUI charge, covered up other misconduct, and influenced the outcome of security clearance investigations" ( Id. ¶ 17.)[1] On July 28, 2011, Plaintiff was detailed to a position within the office of the DHS chief security officer for 180 days. ( Id. ¶ 23.) In August 2011, Plaintiff initiated an informal EEO complaint and in December 2011, he filed an administrative complaint alleging discrimination based on race and color. (Amended Complaint [7] ¶ ¶ 12-13.) On February 23, 2012, FEMA notified Plaintiff that as of the following day he was " being demoted [which included a pay reduction] to the GS-15 position of Director, Records Management Division, but later changed to Field Coordinator in FEMA's Logistics Operations Division." ( Id. ¶ ¶ 40-41.)

In its Answer to the Amended Complaint, Defendant asserted that a reason for demoting Plaintiff was that:

Plaintiff allow[ed] Gary Walker and James Bland to enter on duty as Federal employees, with only an interim Secret national security clearance (thereby waiving preappointment investigative requirements) in positions that required a Top Secret national security clearance with access to Sensitive Compartmented Information (TS/SCI), which are categorized as Special-Sensitive positions. These actions violated 5 C.F.R. § 732.202(a)(2)(i), which prohibits an agency from waiving the preappointment investigative process for appointment to Special-Sensitive positions, and the DHS and FEMA security policies that reiterate and implement that prohibition.

( Motion at 2) (citing 7/11/2013 Answer to Amended Complaint [8] ¶ 56).

Plaintiff's Interrogatory No. 7 requested that, for the period 2011-2012, Defendant " identify each position requiring a TAS or TS-SCI clearance which was filled by a new hire or contractor, and state whether at the time of entering on duty the person had a clearance at the designated level." (Motion at 2) (citing Interrogatory No. 7). In response thereto, Defendant provided a chart in the form of an Excel worksheet (the " Chart" ), which was interpreted by Plaintiff to show that some of the persons who entered on duty did not undergo the requisite background investigation and/or obtain the requisite a security clearance prior to their employment. (Motion at 3) (referencing Chart, a portion of which is attached as Motion, Exh. C). Plaintiff subsequently noticed a Rule 30(b)(6) deposition to " make sure that his interpretation of the spreadsheet was correct." (Motion at 3); see Motion, Exh. B (October 27, 2014 Rule 30(b)(6) Deposition Notice) setting a deposition for November 24, 2014.

On December 17, 2014, this Court convened a telephone conference with counsel, whereby Defendant indicated that it was willing to provide Plaintiff with a declaration in lieu of a Rule 30(b)(6) deposition. Plaintiff's counsel consented to the provision of a declaration but he did not waive his right to take a deposition if he found the declaration inadequate.[2] On January 16, 2015, Defendant provided Plaintiff's counsel with ...


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