United States District Court, District of Columbia
ROSEMARY M. COLLYER UNITED STATES DISTRICT JUDGE.
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.
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. 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. 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.
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.
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. ¶
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.
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.
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.
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.
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
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.
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.
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. ¶ 11. The ...