United States District Court, District of Columbia
SHEILA M. CLARK, Plaintiff,
JEH JOHNSON, Secretary of Homeland Security, and DEPARTMENT OF HOMELAND SECURITY, Defendants.
MEMORANDUM OPINION AND ORDER
RANDOLPH D. MOSS United States District Judge
Clark, who is proceeding pro se, alleges that her
former employer, Federal Emergency Management Agency
("FEMA"), discriminated against her on the basis of
race and retaliated against her for engaging in protected
conduct, in violation of Title VII of the Civil Rights Act of
1964. FEMA, which is a component of the Department of
Homeland Security ("DHS"), revoked Clark's
security clearance and terminated her employment following
investigations into alleged misconduct. The first
investigation, which was conducted by FEMA, arose from
allegations made in an anonymous letter, and the second
investigation-which FEMA referred to another component of DHS
for investigation-arose from evidence of unrelated misconduct
discovered in the course of the initial investigation. Clark
alleges that she was subjected to disparate treatment on the
basis of her race during both investigations, and that in the
second investigation, FEMA retaliated against her for filing
Equal Employment Opportunity ("EEO") and
has moved to dismiss or, in the alternative, for summary
judgment on the grounds that (1) all of Clark's claims
are non-justiciable because the Court cannot review matters
related to Executive Branch security-clearance decisions, (2)
Clark failed to exhaust administrative remedies with respect
to some of her claims, and (3) Clark does not allege an
adverse employment action. See Dkt. 8. For the
reasons explained below, the Court will grant in part and
deny in part FEMA's motion.
an African-American woman, worked as the Chief Component
Human Capital Officer for FEMA from December 26, 2010, until
her termination on May 6, 2013. Compl. ¶¶ 4, 14.
According to her formal EEO complaint, Clark had been in
federal service for twenty-eight years, Dkt. 8-11 at 36,
culminating in her "rank" as a member of the Senior
Executive Service, id. at 25; Compl. ¶
14.Around December 12, 2011, however, the DHS
Office of the Inspector General ("OIG") received an
anonymous letter alleging misconduct by Clark and others.
Id. ¶ 16. (The nature of the alleged misconduct
is not described in the complaint.) Although the OIG declined
to investigate the allegations, FEMA's Office of the
Chief Security Officer ("OCSO") began an
investigation. Id. ¶ 17. In the course of that
investigation, OCSO reviewed Clark's email and discovered
evidence that Clark "may have [engaged in misconduct by]
assist[ing] with the hiring of OSCO Special Agent Marvin
Washington." Id. ¶¶ 18, 26. In May
2012, FEMA referred the allegations that Clark committed
misconduct in the hiring of Washington to another component
of DHS, the U.S. Citizenship and Immigration Services's
("USCIS") Office of Security and Integrity
("OSI"), for investigation. Id. ¶ 26.
July 2012 and the end of August 2012, Clark was absent from
work on medical leave. Dkt. 8-11 at 29. Clark nonetheless
initiated the informal EEO process on July 24, 2012. Compl.
¶¶ 10, 52; Dkt. 8-11 at 5 n.5. It appears that
Clark's initial complaints focused on matters not at
issue in this litigation. Dkt. 8-11 at 39. Overtime, however,
Clark supplemented her complaints, asserting, for example,
that her supervisor had sought to discredit and demean her by
telling "the entire office" that Clark was
"under investigation and [that] the case [was] mov[ing]
forward." Dkt. 8-11 at 40, 45-46. Then, according to the
complaint, on August 17, 2012, Clark "made a
whistleblower disclosure against FEMA leadership."
Compl. ¶27. The complaint does not reveal the nature of
complaint further alleges that, on September 27, 2012, John
Rooney, the selecting official for the OSCO special agent
position for which Washington was hired, referred allegations
relating to Clark's conduct in assisting Washington to
the U.S. Attorney's Office for prosecution. Compl.
¶¶ 28, 70. In particular, one issue under
investigation was whether Clark violated the Privacy Act, 5
U.S.C. § 552a, by disclosing certain agency records to
Washington. According to Rooney, he made the referral at the
request of the FEMA Office of Chief Counsel simply to obtain
a declination of prosecution in order to facilitate
OCSA's efforts to interview Clark as part of its
investigation. Dkt. 8-14 at 6. Clark disputes this account,
Dkt. 18 at 47-49, but all agree that the U.S. Attorney's
Office declined to prosecute. On October 1, 2012, Clark was
detailed to a special human resources project for 120 days,
Compl. ¶ 29; Dkt. 8-11 at 34, and on October 3 and 4,
2012, she was interviewed by two USCIS special agents as part
of the administrative investigation, Compl. ¶45.
after she was interviewed, Clark filed a formal EEO complaint
alleging that FEMA "engaged in an ongoing pattern and
practice of discrimination and hostile work environment
harassment toward [her] on the basis of [her] race (African
American), color (brown complexion), sex (female), disability
(perceived) and prior EEO activity." Dkt. 8-11 at 29. As
relevant here, the EEO complaint alleged that Clark is
"a member of FEMA's senior leadership[, ] yet [she]
[is] continuously treated differently (disparate
treatment)." Mat 32. Clark claimed that the allegations
of "misconduct concerning" her assistance to
Washington in the FEMA hiring process "should have been
handled through an independent investigation"
"[p]er FEMA's own policy, " but that, instead,
FEMA ignored requirements applicable to administrative
investigations in order to "pursue a fishing/witch hunt
expedition with no boundaries." Id. at 33-34.
Clark further alleged that "the entire [administrative
investigation] process was inconsistent . .. [with] how other
similarly situated executives are" treated; that she was
subjected to disparate treatment with respect to the October
3 and 4th interviews; that "Rooney's actions did not
follow FEMA's normal practices (disparate treatment) or
DHS policy in forwarding matters that they believe are
criminal in nature to the DHS OIG to investigate;" and
that she "believ[ed] [that she] was treated in this
manner because [she is] an African-American female."
Id. at 34-35. Clark also alleged that she was
detailed to the special human resources project in
retaliation for her EEO complaint. Dkt. 8-11 at 34.
point following the USCIS investigation, Clark was placed on
administrative leave for twenty-two weeks. Id.
¶ 78. On December 6, 2012, her top secret security
clearance was suspended. Id. ¶ 79. Then, on May
6, 2013, Clark was removed from federal service "for
inappropriate conduct, " id. ¶ 80, and on
June 25, 2013, her security clearance was revoked,
filed this suit on January 30, 2014. See Dkt. 1.
Clark's complaint alleges disparate treatment in the
course of FEMA's investigation into the anonymous letter
and disparate treatment and retaliation with respect to the
subsequent USCIS investigation. With respect to the investigation
of the anonymous letter, Clark alleges that FEMA used the
investigation as a pretext to search her email and that, when
non-African American employees were investigated, their
emails were not searched. Compl. ¶¶ 18-23. She
further alleges that the subsequent USCIS investigation was
conducted in retaliation for "her prior EEOC activity
and whistleblower disclosures" and that she was again
subjected to disparate treatment in the course of that
investigation. Id. ¶¶ 47-52.
respect to disparate treatment in the USCIS investigation,
Clark claims that USCIS's investigation of her was
purportedly governed by the "USCIS OSI Investigations
Division Operational Guidance, " and that, in contrast,
when non-African American employees are investigated, those
investigations are conducted either by FEMA or the DHS OIG
and the investigations are governed by FEMA regulations.
Id. ¶¶ 46-50. She further alleges that she
was required to complete two sworn statements as part of the
investigation, and that, in contrast, when non-African
American employees are under investigation, they are either
not interviewed at all or not required to provide statements
under oath, id. ¶ 51, and that unlike in her
case, "[w]hen allegations of.. . misconduct [involving]
white employees are made, [those employees] are not detailed
from their positions, " id. ¶ 30. Clark
also points to several other claimed irregularities in the
USCIS investigation, including that (1) she did not receive a
Required Appearance Memorandum prior to being interviewed,
id. ¶¶ 58, 64; (2) the misconduct
allegations were not referred to the DHS OIG, id.
¶ 61; (3) she was not given an opportunity to review or
correct a transcript of the interview, id. ¶
62; (4) she "was asked over 340 questions" in the
interview, id. ¶ 63; (5) she received a
"Kalkines notice" the day of the interview,
id. ¶ 65; (6) the investigation was biased,
id. ¶ 66; and (7) "[t]he USCIS
investigators coerced statements from witnesses, "
id. ¶ 67. Finally, Clark alleges that as a
result of the purportedly discriminatory and retaliatory
investigation, she was placed on administrative leave for
twenty-two weeks, her security clearance was suspended, she
was removed from federal service, and her security clearance
was revoked. Id. ¶¶ 77-81.
than answer the complaint, FEMA moved to dismiss or, in the
alternative, for summary judgment, appending various
evidentiary exhibits to its motion-some of which were part of
the EEO administrative record, and some of which were not.
See Dkt. 8. Consistent with the D.C. Circuit's
decision in Fox v. Strickland, 837 F.2d 507 (D.C.
Cir. 1988), FEMA advised Clark that her failure to respond to
the motion could result in dismissal of her case. Dkt. 8 at
1. Clark filed a memorandum opposing FEMA's motion, but
did not offer any additional evidence in support of her
position and did not provide a statement of material facts in
dispute, see Dkt. 11, and FEMA filed its reply
brief, see Dkt. 13. The Court then issued a
Fox-Neal order further cautioning Clark about the
need fully to respond to FEMA's motion, including the
need to identify any contested issues of fact, as required by
Federal Rule of Civil Procedure 56, and providing Clark with
an opportunity to file a supplemental response or opposition.
Dkt. 15. See Dkt. 15 at 1; see also Fox v.
Strickland, 837 F.2d 507 (D.C. Cir. 1988); Neal v.
Kelly, 963 F.2d 453 (D.C. Cir. 1992). Clark accepted
this invitation and filed a revised opposition to FEMA's
motion on August 31, 2015, along with a statement of disputed
facts and documentary evidence. See Dkt. 18.
survive a motion to dismiss, a complaint must have
'facial plausibility, ' meaning it must 'plead[ ]
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.'" Hettinga v. United States, 611
F.3d 471, 476 (D.C. Cir. 2012) (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)). "In evaluating a
Rule 12(b)(6) motion, the Court must construe the complaint
'in favor of the plaintiff, who must be granted the
benefit of all inferences that can be derived from the facts
alleged.'" Id. (quoting Schuler v.
United States, 617 F.2d 605, 608 (D.C. Cir. 1979)).
Furthermore, "a prose complaint, however
inartfully pleaded, must be held to less stringent standards
than formal pleadings drafted by lawyers."
Abdelfattah v. U.S. Dep 't of Homeland Sec, 787
F.3d 524, 533 (D.C. Cir. 2015) (quoting Erickson v.
Pardus, 551 U.S. 89, 94 (2007)). "The [C]ourt,
however, need not accept as true a legal conclusion couched
as a factual allegation, or inferences . . . unsupported by
the facts set out in the complaint." Ames v.
Johnson, 121 F.Supp.3d 126, 129 (D.D.C. 2015) (internal
quotation marks and citations omitted) (second alteration in
judgment is appropriate when "the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a); see Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986). "A fact is
material if it 'might affect the outcome of the suit
under the governing law, ' and a dispute about a material
fact is genuine 'if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.'" Steele v. Schafer, 535 F.3d 689,
692 (D.C. Cir. 2008) (quoting Liberty Lobby, 477
U.S. at 248). "Credibility determinations, the weighing
of the evidence, and the drawing of legitimate inferences
from the facts are jury functions, not those of a judge. . .
. The evidence of the non-movant is to be believed, and all
justifiable inferences are to be drawn in his favor."
Liberty Lobby, 477 U.S. at 255. To prevail at
summary judgment, the non-moving party must, however, offer
more than "a scintilla of evidence" in support of
its position. Id. at 252. "[T]here must be
evidence on which the jury could reasonably find for the
first contends that this case must be dismissed in its
entirety because it involves national security matters that
are non-justiciable under Navy v. Egan,484 U.S. 518
(1988). See Dkt. 8 at 17. The Court reviews this
portion of FEMA's motion under the standards applicable
to a motion to dismiss, as FEMA contends that "it is
clear on the face of the complaint that" Clark's
Title VII charges are barred under Egan and does not
rely on any evidence outside the complaint in support of its
non-justiciability argument Dkt. 8 at 19; see also
Dkt. 13 at 3-6. The D.C. Circuit, moreover, has held that
amotion to dismiss under Egan should be reviewed
pursuant to Rule 12(b)(6), and not for lack of subject-matter
jurisdiction under Rule 12(b)(1). See Oryszak v.
Sullivan,576 F.3d 522, 525 (D.C. Cir. 2009) (holding
issue of non-justiciability under Egan does not go
to Court's subject-matter jurisdiction); see also