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Horsey v. U.S. Department of State

United States District Court, District of Columbia

March 22, 2016

JOHN E. HORSEY, Plaintiff,
v.
U.S. DEPARTMENT OF STATE, et al., Defendants.

MEMORANDUM OPINION

KETANJI BROWN JACKSON United States District Judge

Pro se Plaintiff John E. Horsey is an African-American man who worked as an employee of the U.S. Department of State (“the State Department” or “Defendant”) for more than two decades prior to the events that prompted the instant employment discrimination lawsuit. Horsey alleges that the State Department suspended his security clearance, and then suspended his employment indefinitely without pay, after he refused to undergo a required psychological evaluation without union representation, and that the State Department took these adverse actions against him due to discriminatory and retaliatory animus. Horsey has filed a three-count complaint under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; this Court liberally construes Horsey’s pleading as asserting four claims against the State Department: (1) that it subjected him to a hostile work environment (see Compl. ¶¶ 57-59), (2) that it discriminated against him by repeatedly ordering him to undergo a psychological evaluation and refusing his request for the presence of a union representative during that evaluation (see Id. ¶ 21), (3) that it retaliated against him by revoking his security clearance (see Id. ¶ 46), and (4) that it discriminated and retaliated against him by proposing to suspend him indefinitely without pay (see Id. ¶¶ 31-32).

Before this Court at present is the State Department’s motion to dismiss Horsey’s complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. (See Def.’s Mot. to Dismiss (“Def.’s Mot.”), ECF No. 11, at 1.)[1] Defendant’s primary argument is that Horsey has failed to exhaust all administrative remedies with respect to his discrimination claims, and that the Court is precluded from reviewing his retaliation claims under the doctrine the Supreme Court established in Department of Navy v. Egan, 484 U.S. 518 (1988). (See Def.’s Mem. in Supp. of Def.’s Mot. (“Def.’s Mem.”), ECF No. 11-1, at 1-2.) Defendant’s motion also maintains that Horsey has made insufficient allegations of fact with respect to his hostile work environment claim. (See id.)

As explained fully below, this Court concludes that Horsey’s current complaint must be dismissed in its entirety for several reasons; specifically, because Horsey has failed to exhaust administrative remedies with respect to some claims; because certain claims lack sufficient allegations of fact; and because the Egan doctrine precludes any challenge to the agency’s security clearance decision. However, bearing in mind Horsey’s pro se status, this Court will grant Horsey leave to refile the complaint with respect to two claims: (1) his hostile work environment claim, which might be viable if additional facts are identified, and (2) his amorphous claim of retaliation and discrimination based on the State Department’s proposal to suspend him, which, if properly pled, might be sufficient to avoid the Egan problem on the grounds established in the D.C. Circuit’s serial holdings in Rattigan v. Holder, 689 F.3d 764, 765 (D.C. Cir. 2012) (“Rattigan II”), and Rattigan v. Holder, 780 F.3d 413, 415 (D.C. Cir. 2015) (“Rattigan III”). Accordingly, although Defendant’s motion to dismiss is GRANTED with respect to the instant complaint, the Court will dismiss the complaint without prejudice and grant leave Horsey leave to refile it. A separate order consistent with this memorandum opinion will follow.

I. BACKGROUND

A. Facts

The following facts are undisputed, unless otherwise noted. Plaintiff Horsey was employed as an Information Technology Specialist in the Beltsville, Maryland office of the State Department’s Information Resource Management Bureau “[a]t all times relevant to this [law]suit[.]” (Compl. ¶ 3.) According to the complaint, on February 3, 2011, “Mr. Shane Wardle, a white male colleague, made an allegation of work place violence against [Horsey], contending he was verbally assaulted[] by a slew of derogatory names[.]” (Id. ¶ 11.) An investigation allegedly followed, and Wardle’s “allegations . . . against [Horsey] were inconclusive as to whether [Horsey] made any inappropriate or threatening remarks or exhibited any threatening behavior[.]” (Id. ¶ 12.) Nevertheless, on February 18, 2011, a Diplomatic Security investigator asked Horsey to attend psychological counseling voluntarily “in order to ascertain to what extent [he] might have an anger management problem.” (Id. ¶ 13.) Horsey declined the counseling on the advice of a union representative. (See id.)

Nearly three months later, on May 6, 2011, the Chief of the Adverse Actions Division of the Office of Personnel Security and Suitability referred Horsey to the State Department’s Office of Medical Services for further evaluation, directing that Horsey “submit to a medical review and evaluation, specifically by a psychologist.” (See id.; see also Id. Ex. A (Letter to Plaintiff from Paul D. Hallenbeck, Chief, Adverse Actions Division, Office of Personnel Security and Suitability, Bureau of Diplomatic Security, State Department, dated May 6, 2011).) Horsey was also advised that his “[f]ailure to cooperate and/or provide the information where requested . . . may result in a recommendation for an adverse action regarding [his] eligibility for access to classified information.” (Id., Ex. A.) In response, on that same day, Horsey allegedly “contacted[] Dr. Matt Ubben, the Sr. Clinical Psychologist for the [State Department] who was appointed to conduct the medical review and evaluation[, ] to make [an] appointment.” (Id. ¶ 14.) Horsey also purportedly asked Dr. Ubben to permit a union representative to be present during the medical review and evaluation (id.); however, “citing American Psychological Association regulations[, ]” Dr. Ubben allegedly advised Horsey “that a union representative could not be present[.]” (Id.)[2]

According to the complaint, Horsey contacted an EEO Counselor in June of 2011. (See Def.’s Mem., Ex. 5 (EEO Counselor’s Report) at 1 (identifying the exact date as June 27, 2011); Compl. ¶ 22.) During this consultation, Horsey asserted that the State Department had treated him differently because of his race on two occasions in February of 2011, to wit:

Claim 1. On 02/03/2011, because of his race, Mr. Horsey believes he was discriminated against when he was subjected to a hostile work environment characterized by his co-worker Mr. Shane Wardel accusing Mr. Horsey of calling Mr. Wardel a “cracker.”
Mr. Horsey and Mr. Wardel are co-workers in the IT department at State. On 2/3/2011, Mr. Horsey was working on computer trouble tickets. Usually the procedure is you have to put your name on the computer problem ticket you are working on, and close it out when you are done. Mr. Horsey did not put his name on the ticket that evening because he didn’t think anybody else would be coming in and he was just going to finish up the ticket and close it out right away. Mr. Wardel took one of the trouble tickets Mr. [H]orsey was working on and claimed it to be his own after Mr. Horsey completed the work. When Mr. Horsey asked Mr. Wardel if he took his ticket, Mr. Wardel became hostile and belligerent, and Mr. Horsey stormed out of the office. Mr. Wardel reported this incident and fabricated a complaint by alleging that Mr. Horsey pointed his finger in Mr. Wardel’s face and alleges that Mr. Horsey called Mr. Wardel a “cracker.” Mr. Horsey claims that is a racial term he never used, and Mr. Wardel made this a race issue and discriminated against Mr. Horsey because of his race.
Claim 2. Because of his race, Mr. Horsey believes he was discriminated against when IRM and [Diplomatic Security Office] conducted an unfair investigation on 02/18/2011 and they did not hear Mr. Horsey’s side of the story and did not speak to people who could support Mr. Horsey’s side of the story . . . .

(Def.’s Mem., Ex. 5 at 2 (emphasis added).)

On August 2, 2011, the Director of the Office of Personnel Security and Suitability issued a second written directive requiring Horsey to submit to a psychological evaluation. (See Compl. ¶ 23; see also Ex. C (Letter to Plaintiff from James C. Onusko, Director, Office of Personnel Security and Suitability, Bureau of Diplomatic Security, State Department, dated August 2, 2011 (hereinafter “August 2nd Letter”).) This letter also advised Horsey that his “failure to cooperate . . . [would] result in a recommendation to suspend [his] security clearance . . . based on [his] unwillingness to complete the security clearance process.” (August 2nd Letter, at 1.) Nevertheless, Horsey “continued to assert his right to representation” and declined to undergo a psychological evaluation without representation. (Compl. ¶ 24.) In the meantime, Horsey continued to “report[] to work . . . and perform[] his regular duties, all of which required a security clearance.” (Id. ¶ 25.)

According to the complaint, on November 29, 2011, Horsey “was informed that his security clearance had been suspended, and he had been placed on administrative leave.” (Id. ¶ 28; see also Def.’s Mem., Ex. 8 (Letter to Plaintiff from James C. Onusko dated November 29, 2011).) Then, on December 9, 2011, the State Department’s Human Resources department notified Horsey of a “proposal to suspend him indefinitely without pay based on [his] failure to maintain a security clearance.” ...


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