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Louis v. Hagel

United States District Court, District of Columbia

October 28, 2016

VALERY LOUIS, Plaintiff,
CHUCK HAGEL Secretary, U.S. Department of Defense, Defendant.


          TANYA S. CHUTKAN United States District Judge

         Plaintiff Valery Louis brings this action against the Department of Defense (“DOD”) alleging that the agency discriminated against him based on his race and national origin in violation of Title VII, 42 U.S.C. § 2000e et seq.[1] Plaintiff also alleges that he was constructively discharged. Defendant unsuccessfully challenged venue in this district and, after a scheduling conference, the parties agreed on a briefing schedule for pre-discovery motions. The court entered an order adopting the agreed-upon deadlines and Defendant filed a timely motion to dismiss. (ECF No. 20). However, Plaintiff has not filed a response to the motion, nor has he sought leave to extend his response deadline of August 16, 2016. (See ECF No. 19). Therefore, this court could treat Defendant's arguments as conceded. See Local Civil Rule 7(b). However, for the reasons set forth below, the court will GRANT Defendant's motion in part, and DENY the motion in part.

         A. BACKGROUND

         Plaintiff describes himself as an “Afro-American of Haitian national origin[ ].” (ECF No. 6, Corrected Compl. ¶ 7).[2] He is a former employee with the Defense Information Systems Agency (“DISA” or “Agency”)-a component division within DOD. Plaintiff alleges that during his employment, he “was subjected to racial and national origin epithets from other members of DISA's staff and that he was the victim of “physical assaults motivated by . . . hostility to his race and national origin.” (Id. ¶ 5). He claims that the assaults “included the administration of a gas which rendered [him] unconscious” and the administration of acid droplets that caused him “facial injuries.” (Id.) Allegedly fearing for his safety, Plaintiff resigned and DISA subsequently revoked his “classification, ” which the court interprets as his security clearance. (Id.)

         Plaintiff asserts three causes of action: disparate treatment (Count I);[3] hostile work environment (Count II); and constructive discharge (Count III). Defendant has moved to dismiss for lack of subject matter jurisdiction, Fed.R.Civ.P. 12(b)(1), and for failure to exhaust administrative remedies, Fed.R.Civ.P. 12(b)(6).


         1. Rule 12(b)(1)

         In evaluating a motion to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction, a court must “assume the truth of all material factual allegations in the complaint and ‘construe the complaint liberally, granting plaintiff the benefit of all inferences that can be derived from the facts alleged.'” Am. Nat'l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011) (citation omitted). “Nevertheless, ‘the court need not accept factual inferences drawn by plaintiffs if those inferences are not supported by facts alleged in the complaint, nor must the Court accept plaintiff's legal conclusions.'” Disner v. United States, 888 F.Supp.2d 83, 87 (D.D.C. 2012) (citation omitted). Importantly, the court “is not limited to the allegations of the complaint.” Hohri v. United States, 782 F.2d 227, 241 (D.C. Cir. 1986), vacated on other grounds, 482 U.S. 64 (1987). Rather, a court may consider “relevant facts found outside of the complaint” when resolving a Rule 12(b)(1) motion to dismiss for lack of jurisdiction. Mendoza v. Perez, 754 F.3d 1002, 1016 n.9 (D.C. Cir. 2014).

         2. Rule 12(b)(6)

         A motion to dismiss under Rule 12(b)(6) for failure to state a claim “tests the legal sufficiency of a complaint.” Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citation omitted). In most instances, when deciding a Rule 12(b)(6) motion, a court may “consider only the facts alleged in the complaint, any documents either attached to or incorporated in the complaint and matters of which [the Court] may take judicial notice.” E.E.O.C. v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997). Additionally, “the Court may consider documents specifically referenced in the complaint where the authenticity of the document is not questioned.” United Mine Workers of Am., Int'l Union v. Dye, No. CIV.A. 06-1053(JDB), 2006 WL 2460717, at *6 (D.D.C. Aug. 23, 2006); New York State Bar Ass'n v. F .T.C., 276 F.Supp.2d 110, 114 n.6 (D.D.C. 2003) (noting that “a document is not ‘outside' the complaint if the complaint specifically refers to the document and if its authenticity is not questioned.”) (quoting Cooper v. Pickett, 137 F.3d 616, 622-23 (9th Cir. 1997)).[4]

         C. ANALYSIS

         Defendant seeks dismissal on the grounds that: (1) this court does not have jurisdiction to consider Plaintiffs claims relating to his security clearance; and (2) Plaintiff failed to exhaust his administrative remedies with respect to his claims regarding racial/national origin epithets and physical assaults.

         1. Disparate Treatment - Security Clearance

         In its prior Opinion, this court warned Plaintiff that any claims regarding revocation of his security clearance had to be considered in light of this court's decision in Hendrix v. Napolitano,77 F.Supp.3d 188, 194-96 (D.D.C. 2015). See Louis v. Hagel, No. 15-CV-92 (TSC), 2016 WL 1301050, at *1 n.2 (D.D.C. Apr. 1, 2016). In Hendrix, this court explained that “a court may not review a decision regarding suspension or revocation of a . . . Security clearance, because such decisions are nonjusticiable under” Department of the Navy v. Egan,484 U.S. 518 (1988). 77 F.Supp.3d at 194; see also Rattigan v. Holder,689 F.3d 764, 766 (D.C. Cir. 2012) (noting that the Circuit interpreted Egan as barring “judicial review of adverse employment actions based on the denial or revocation of a security clearance.”) (citations omitted); cf. Oryszak v. Sullivan, 576 F.3d 522, 526 (D.C. Cir. 2009) (‚ÄúTherefore, following the lead of the Supreme Court, we have consistently held that because the authority to ...

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