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Clark v. Johnson

United States District Court, District of Columbia

September 12, 2016

SHEILA M. CLARK, Plaintiff,
v.
JEH JOHNSON, Secretary of Homeland Security, and DEPARTMENT OF HOMELAND SECURITY, Defendants.

          MEMORANDUM OPINION AND ORDER

          RANDOLPH D. MOSS United States District Judge

         Sheila 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 whistleblower complaints.

         FEMA 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.

         I. BACKGROUND

         Clark, 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.[1]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.

         Between 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 Clark's disclosure.

         The 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.

         The day 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.

         At some 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, id. ¶81.

         Clark 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.[2] 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.

         With 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"[3] 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.

         Rather 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.[4] See Dkt. 18.

         II. LEGAL STANDARDS

         "To 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 original).

         Summary 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 plaintiff." Id.

         III. ANALYSIS

         A. Justiciability

         FEMA 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 ...


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