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Horsey v. United States Department of State

United States District Court, District of Columbia

July 18, 2019

JOHN E. HORSEY, Plaintiff,
v.
UNITED STATES DEPARTMENT OF STATE, et al., Defendants.

          MEMORANDUM OPINION

          KETANJI BROWN JACKSON UNITED STATES DISTRICT JUDGE

         Pro se plaintiff John E. Horsey alleges that he was a “remarkable employee” who amassed numerous awards to reflect his “outstanding” employment record throughout his decades-long tenure as an employee with Defendant United States Department of State (“State”). (Am. Compl., ECF No. 22, ¶ 24.) Still, after Horsey engaged in a work-related altercation with a co-worker in 2011, State required Horsey to undergo a mental evaluation, and when Horsey refused to be evaluated without a union representative present, Horsey's security clearance was suspended and he was placed on administrative leave. (See Id. ¶ 34.) State later suspended Horsey indefinitely without pay and revoked his security clearance altogether. (See Id. ¶¶ 37, 39.) In the instant legal action, Horsey maintains that State undertook those employment actions because he is African American (see Id. ¶¶ 8, 22); indeed, his two-count complaint claims that State discriminated against him on the basis of his race and subjected him to a hostile work environment, both in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (see Id. ¶¶ 48-54; 55-59).

         Before this Court at present is the State Department's motion to dismiss Horsey's amended complaint for failure to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6). (See Defs.' Mot. to Dismiss Am. Compl. (“Defs.' Mot.”), ECF No. 28.) For the reasons explained below, this Court agrees with State that Horsey's amended complaint misses the mark, primarily because the pleading does not allege that Horsey suffered an adverse employment action because of his race, nor does it describe discriminatory conduct that is severe or pervasive enough to make his hostile work environment claim remotely plausible. Consequently, Horsey's amended complaint fails to allege facts that, if true, would support his claim that State discriminated against him on the basis of his race. As a result, the agency's motion to dismiss must be GRANTED, and Horsey's amended complaint must be DISMISSED. A separate Order consistent with this Memorandum Opinion will follow.

         I. BACKGROUND

         A. Alleged Facts[1]

         Horsey worked for the State Department as an Information Technology Specialist in the Information Resource Management Bureau until his “Top Secret” security clearance was revoked in June of 2012. (See Am. Compl. ¶¶ 3, 39.) According to the amended complaint, Horsey was involved in a workplace dispute with Shane Wardle, a Caucasian male co-worker, on February 3, 2011. (See Id. ¶ 6.) Wardle allegedly sent an email to his and Horsey's first and second line supervisors “moments after the alleged incident occurred, ” and in that email, Wardle allegedly “reported a false claim/allegation” about Horsey. (Id.) The complaint contends that the two supervisors met with Wardle and Horsey the following day to discuss the incident, but “Wardle would not repeat the claims made in the email[] in the presence of [Horsey][.]” (Id. ¶ 7.) Horsey “adamantly denied the allegations” from Wardle's email, and one of the supervisors “deemed the meeting a ‘stalemate'” and referred the incident “to Diplomatic Security for investigation.” (Id.) The complaint alleges that the supervisor who referred the matter for investigation knew that Wardle had “fil[ed] several false allegations against other U.S. Department of State employees with impunity[.]” (Id. ¶ 8.)

         According to the amended complaint, “[b]etween February 4, 2011 and February 23, 2011, ” a Diplomatic Security Special Agent “interviewed Mr. Wardle's witnesses as a part of his investigation, but did not interview any witnesses on [Horsey's] behalf.” (Id. ¶ 9.) The complaint further alleges that none of the witnesses interviewed “were present or witnessed the alleged February 3, 2011 event.” (Id.) The Special Agent conducting the investigation allegedly “ran a background check on Mr. Wardle . . . and was aware of [Wardle's] history of filing false claims[.]” (Id. ¶ 23.)

         The Special Agent interviewed Horsey on February 18, 2011, and asked Horsey “if he would be willing to speak with a Department[-]provided mental health professional concerning what may be an anger management problem.” (Id. ¶ 19.) Horsey allegedly “said he wanted to think about it” and thereafter sought advice from his union, which told him “that he should not voluntarily meet with anyone in the medical unit.” (Id. ¶ 26.) According to the amended complaint, on May 6, 2011, Horsey received a letter from the Office of Personnel Security and Suitability Bureau of Diplomatic Security, which stated that Horsey was being referred to the Office of Medical Services “for review and evaluation” (id. ¶ 27), and that “[p]ursuant to retention of [Horsey's] continued security clearance eligibility, ” Horsey would have to schedule such an evaluation (id. ¶ 29). The letter also included an advisory “that non-compliance with this directive could have negative consequences with regard to [Horsey's] security clearance eligibility.” (Id.) The amended complaint alleges that Horsey requested that any evaluation be conducted with a union representative present, but this request was allegedly denied. (See Id. ¶¶ 29, 30.) Horsey then “continued to receive requests/demands to undergo the mental evaluation” (id. ¶ 31), and he “continued to invoke his right to have a representative present for any interview relating to the matter under investigation” (id. ¶ 33).

         Horsey's amended complaint states that the investigation into the incident with Wardle “was determined to be ‘inconclusive'” and “was closed on March 12, 2011.” (Id. ¶ 31.) However, Horsey's “Top Secret Security Clearance was suspended and [Horsey] was placed on administrative leave with pay on November 29, 2011[.]” (Id. ¶ 34.) On December 9, 2011, Horsey received a “Proposal for Indefinite Suspension Without Pay” letter (id. ¶ 35), and was “suspended indefinitely on Mar[ch] 16, 2012” (id. ¶ 37). Between receiving the letter and his indefinite suspension going into effect, Horsey had “attended an appeal hearing on January 17, 2012” (id. ¶ 36), and his indefinite suspension without pay was later rescinded (see Id. ¶ 38). However, on June 6, 2012, Horsey was notified “that his Top Secret [Security] Clearance ha[d] been revoked[.]” (Id. ¶ 39.)

         B. Procedural History

         1. This Court's Dismissal Of Horsey's Initial Complaint

         Horsey initiated the instant lawsuit, pro se, on September 15, 2014. (See Compl., ECF No. 1.) His initial complaint included three counts: (1) discrimination on the basis of race, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (see Compl. ¶¶ 51-53); (2) retaliation for engaging in protected activity, in violation of Title VII (see Id. ¶¶ 54-56); and (3) hostile work environment, also in violation of Title VII (see Id. ¶¶ 57-59). State filed a motion to dismiss the complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) on January 9, 2015 (see Defs.' Orig. Mot. to Dismiss, ECF No. 11), and Horsey filed a motion for summary judgment on December 16, 2015 (see Pl.'s Mot. for Summ. J., ECF No. 17). On March 22, 2016, this Court issued a written opinion that granted State's motion to dismiss and denied Horsey's summary judgment motion as moot, but that also gave Horsey leave to file an amended complaint. (See Order, ECF No. 20); see also Horsey v. U.S. Dep't of State, 170 F.Supp.3d 256 (D.D.C. 2016).

         In its Memorandum Opinion, the Court interpreted Horsey's complaint as bringing “four separate claims” against the State Department:

(1) a hostile work environment claim . . .; (2) a discrimination claim based on repeated orders from various State Department officials that [Horsey] undergo a psychological evaluation and the agency's refusal to permit Horsey to have union representation during that evaluation; (3) a retaliation claim due to the State Department's decision to revoke [Horsey's] security clearance; and (4) a discrimination and retaliation claim based on the agency's proposal to suspend Horsey indefinitely without pay following the suspension of his security clearance.

Horsey, 170 F.Supp.3d at 265 (internal citations omitted). The Court then dismissed the claims that were “based on the three alleged instances in which Horsey was referred to a medical/psychological evaluation and denied union representation at that evaluation . . . for lack of administrative exhaustion.” Id. at 267. The Court further dismissed Horsey's claim “that the revocation of his security clearance was an act of unlawful retaliation” on the grounds that the Supreme Court's decision in Department of Navy v. Egan barred any such claim. Id. at 267-69; see also Egan, 484 U.S. 518 (1988).[2]

         Notably, this Court also dismissed Horsey's hostile work environment claim, because Horsey's complaint was “conspicuously devoid of any allegation that Horsey himself was subjected to intimidation, ridicule, or insult on the basis of his race, much less race-based affronts that were so severe or pervasive that the conditions of his employment were altered.” Horsey, 170 F.Supp.3d at 266. However, the Court provided Horsey with permission to “revise his claim” by filing an amended complaint, “given Horsey's pro se status and the confusion within the complaint regarding the factual basis for this and other claims[.]” Id. The Court further provided Horsey with leave to amend the discrimination and retaliation claims that might plausibly arise from the referral to security clearance authorities and Horsey's ultimate indefinite suspension, based on the Court's determination that “the Egan doctrine does not preclude judicial review of a revocation of an employee's security clearance if that employee brings a Title VII claim that is based on an allegedly false and discriminatory report or referral to the securities clearance authorities.” Id. at 269 (emphasis in original) (citing Rattigan v. Holder (Rattigan II), 689 F.3d 764, 771 (D.C. Cir. 2012)).[3]

         The Court based its grant of leave to amend on its conclusion that, “while the current complaint contains insufficient allegations regarding the circumstances that led to Horsey's indefinite suspension to state a Rattigan-type Title VII claim plainly, it appears that a viable claim of this nature might be lurking within this case.” Id. at 270.

         2. Horsey's Amended Complaint And The Parties' Subsequent Motion-To-Dismiss Briefing

         On April 12, 2016, Horsey filed an amended complaint that contains two counts of “Racial Discrimination in Violation of Title VII[.]” (Am. Compl. ¶¶ 48-54, 55-59.)[4] Count One claims that State's “conduct as alleged at length herein constitutes a Title VII discrimination based on race” (id. ¶ 49), and notably, the particular conduct that Count One references is the fact that “[Horsey] was suspended from his position indefinitely when [his] security [c]learance was revoked because he refused to participate in an unlawful [evaluation] and meet with medical personnel without a representative present” (id. ¶ 52). Count Two alleges that State subjected Horsey to a “hostile and abusive work environment” (id. ¶ 56), because it “ignored [Horsey's] rights . . ., [Horsey] was required to undergo an evaluation, and his white counterpart was not” (id. ¶ 57), and Horsey “endured discrimination that was pervasive and regular[] (in the form ...


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