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Clinton v. Perry

United States District Court, District of Columbia

February 15, 2019

RITA CLINTON, Plaintiff,
v.
RICK PERRY, Secretary, U.S. Department of Energy, Defendant.

          MEMORANDUM OPINION

          ROSEMARY M. COLLYER UNITED STATES DISTRICT JUDGE.

         Rita Clinton was terminated from employment at the United States Department of Energy (DOE) in July 2017 and sues Secretary Rick Perry here, alleging that she was fired in retaliation for prior equal-employment-opportunity (EEO) complaints. The government moves to dismiss her Complaint, arguing that it fails to allege an adequate causal connection between Ms. Clinton's EEO activity and her termination. DOE also contends that it had a legitimate nondiscriminatory reason for Ms. Clinton's discharge. The former point is a very close question on which the Complaint survives a motion to dismiss; the latter point is premature and may benefit from additional facts and further briefing on summary judgment. The Motion to Dismiss will be denied.

         I. FACTS

         Rita Clinton served as a Director and member of the Senior Executive Service (SES) in DOE's Office of the Chief Human Capital Officer from June 2010 until her termination in July 2017. Compl. [Dkt. 1] ¶¶ 14, 63.[1] In June 2010, she served as Director, Office of Human Resources Services. Id. ¶ 15. On July 1, 2015 she began to serve as Director, Office of Corporate Human Resources Operations, an HC-30 position. MSPB Dec. at 2, ¶ 3.[2] In that position, she was “responsible for overseeing the full range of human capital management operational functions to support DOE employees (non-executives) . . . .” Compl. ¶ 17. “The responsibility for processing suitability determination cases falls within the chain of command of the HC-30 Director.” Id. ¶ 18.[3]

         On January 24, 2016, Loretta Collier, Director of the Office of Human Capital Policy Accountability and Technology (HC-10), and Ms. Clinton switched positions. See Id. ¶¶ 19-20; MSPB Dec. at 2, ¶¶ 5-6. Thereafter, Ms. Clinton served as Acting Director and then Director of HC-10 and Ms. Collier served as Director of HC-30, with responsibility for processing suitability determination cases. See MSPB Dec. at 2, ¶ 5; Compl. ¶¶ 19-21. Ms. Clinton's new HC-10 position was responsible for overseeing the HC-30 position she had previously held. Compl. ¶ 36.

         The processing of suitability determination cases requires a Top Secret “Q” clearance. Id. ¶¶ 18, 22. Neither Ms. Clinton nor Ms. Collier had the requisite clearance. Id. ¶ 23. Such cases had been adjudicated by HC-30 employee Mark Petts, who held the required clearance and training by the Office of Personnel Management (OPM), until Mr. Petts retired from DOE in July 2015. Id. ¶¶ 26-27. As Director of HC-30, Ms. Clinton “would be copied on the suitability emails received in HC-30 for processing.” Id. ¶ 24.[4] According to the Complaint, Ms. Clinton “did not open these suitability emails; she created a folder and she would move the emails to the folder created when they arrived.” Id. ¶ 25.

         In anticipation of Mr. Petts' departure, Ms. Clinton assigned Rashida Jackson and Eryka Johnson to handle the suitability determinations. Id. ¶ 28. However, neither Ms. Jackson nor Ms. Johnson had the necessary Q clearance so Ms. Clinton called the Director of Headquarters, Personnel Security Division, and asked her to provide interim clearances to both women. Id. ¶¶ 28-30. The Complaint asserts that Ms. Clinton “had every reason to believe that the interim clearances for Ms. Jackson and Ms. Johnson would be processed and expedited since this was a process she and Ms. Grimes had undertaken numerous times since 2010 . . . .” Id. ¶ 33.

         Further, when Ms. Clinton and Ms. Collier switched positions in January 2016, Ms. Clinton “conducted meetings with Ms. Collier to update her on the projects within HC-30, and she discussed the suitability cases with Ms. Collier, ” even though Tonya Mackey, Ms. Clinton's first level supervisor, did not ask her “whether she had updated Ms. Collier regarding suitability cases.” Id. ¶¶ 37, 39; but see MSPB Dec. at 2-3, ¶ 6 (“Upon being detailed to each other's prior position as HC-10 and HC-30 Directors, [Ms. Clinton] did not mention to her successor, Loretta Collier, that the processing of suitability determination cases was a pending action item within the chain of command of the HC-30 Director.”) (emphasis added). As it turns out, neither Ms. Jackson nor Ms. Johnson had received an interim clearance or a Q clearance prior to January 2016, when Ms. Clinton left HC-30 and became HC-10 Director; in fact, “[a]s of at least March 18, 2016, neither Rashida Jackson nor Eryka Johnson had a Top Secret ‘Q' clearance.” MSPB Dec. at 3, ¶ 8. Additionally, Ms. Collier “did not undertake to learn the status of suitability cases when she assumed her position as Acting Director of HC-30 as required.” Compl. ¶ 41.

         At an unspecified time in 2016, Ms. Collier sent Ms. Clinton an email “and asked her if she had received ‘87 emails in January' regarding the suitability cases”; Ms. Clinton answered that “she had not received 87 cases in January.” Id. ¶¶ 42-43. On about December 2, 2016, Ms. Clinton met with Ms. Mackey, Deputy Chief Human Capital Officer, and her second level supervisor, Ken Venuto, Director of Human Capital Management, about the suitability cases. Id. ¶¶ 44-45. Asked whether she had received the suitability cases when she was Director, HC-30, and “[b]elieving that Ms. Mackey was referring to the 87 cases [Ms. Clinton] was asked by Ms. Collier ha[d] she received in . . . the month of January 2016, [Ms. Clinton] responded no.” Id. ¶ 45. Ms. Mackey “did not clarify her request or inquire further” during the December 2, 2016 meeting. Id. ¶ 48. Ms. Clinton informed Ms. Mackey and Mr. Venuto that she had contacted the Director of Headquarters Security Operations in the Office of Environment, Health, Safety and Security in November 2016, by phone and email, and “he agreed to re-send the suitability cases, ” presumably to HC-30 Director Collier. Id. ¶ 49-50.

         Despite Ms. Clinton's apparent confusion about the questions regarding her receipt of the suitability cases, she does admit that she “receive[d] e-mails [sic] . . . with pending suitability determination cases between the dates of July 29, 2015 and May 25, 2016, which she filed into an email folder entitled ‘Personnel Security.' The sum total of those emails over the ten (10) month period was likely 87.” Id. ¶ 46; see also MSPB Dec. at 3, ¶ 9 (“[Ms. Clinton] received 87 e-mails . . . with pending suitability determination cases between the dates of July 29, 2015 and May 25, 2016, which she filed into an e-mail folder entitled ‘Personnel Security.'”).

         Ms. Clinton thought it “remarkable” that her first- and second-line supervisors were questioning her concerning “matters dating several months back, but within days of Ms. Mackey and Mr. Venuto being questioned by the EEO counselor regarding the EEO complaint that [she] had filed against the two of them” in March 2016. Compl. ¶ 53. Ms. Clinton was thereafter notified of a proposal to remove her due to misconduct based on a charge of lack of candor; after written and oral responses, Ingrid Kolb, Director, Office of Management and the Deciding Official, issued a final decision to remove her, effective July 20, 2017. Id. ¶¶ 54, 63; see also MSPB Dec. at 3, ¶¶ 13-16.

         Before her termination, Ms. Clinton had filed two EEO complaints with DOE-the first on January 27, 2014 (DOE Case No. 13-0131-HQ-ME) and the second on March 23, 2016 (DOE Case No. 16-0049-HQ-ME). Compl. ¶¶ 56-57. The March 2016 EEO complaint was filed against Ms. Clinton's first- and second-level supervisors, Ms. Mackey and Mr. Venuto. Id. ¶¶ 52-53. Mr. Venuto had been Ms. Clinton's first-level supervisor from January 2013 through January 23, 2016; Ms. Mackey became her first-level supervisor on January 24, 2016. Id. ¶¶ 58-59. Ms. Clinton alleges that Mses. Mackey and Kolb and Mr. Venuto were all aware of her EEO activity, Id. ¶¶ 60-61, and that the December 2, 2016 meeting about her performance occurred “within days of Ms. Mackey and Mr. Venuto being questioned by the EEO counselor.” Id. ¶ 53.

         Ms. Clinton challenged her termination before the MSPB and received the Initial Decision affirming her termination on February 20, 2018; the decision became final on March 27, 2018. Id. ¶ 10. She filed this suit on April 26, 2018, within 30 days of the final MSPB decision. Id. ΒΆ 11. The ...


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