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Garcia v. Pompeo

United States District Court, District of Columbia

January 13, 2020

MICHAEL POMPEO, et al., Defendants.




         Plaintiff Gustavo Garcia is a dual citizen of the United States and Mexico who resides in Mexico. Over the course of several years, Plaintiff tried unsuccessfully to obtain employment with the U.S. Embassy in Mexico City. He came close in 2010, when he was conditionally hired for a position at the Embassy but was later denied a security certification, prompting his offer to be rescinded. Since then, Plaintiff has applied for various positions but without success. Plaintiff, on behalf of himself and others similarly situated, now sues the State Department, the Secretary of State, and the Attorney General, bringing a host of claims under Title VII, the Administrative Procedure Act, and the Constitution.

         This case is before the court on Defendants' Motion to Dismiss and for Summary Judgment. For the reasons explained below, the court grants in part and denies in part Defendants' Motion.


         Plaintiff is an attorney who lives and works in Mexico City, Mexico. First Am. Compl., ECF No. 4 [hereinafter FAC], ¶ 44. In January 2010, two Legal Assistant Resident Legal Advisor positions opened at the U.S. Embassy in Mexico City in the Department of Justice Office of Overseas Prosecutorial Development, Training, and Assistance. Id. ¶¶ 45-46. Plaintiff applied for the positions. Id. ¶ 47. Plaintiff interviewed for one of the positions and, in April 2010, received a conditional offer of employment. Id. ¶¶ 48-50. Plaintiff was informed that his employment was contingent upon being granted a security clearance or security certification. See Defs.' Statement of Material Facts, ECF No. 15-2 [hereinafter Statement of Facts], ¶ 1 (stating that Plaintiffs offer of employment was conditioned on him being granted a security certification); Pl.'s Resp. to Statement of Facts [hereinafter Pl.'s Resp. to Facts], ECF No. 19, ¶ 1 (stating that Plaintiffs offer was conditioned on him being granted a security clearance). A security certification involves a less rigorous background review than a security clearance. See Defs.' Mot. to Dismiss and for Summ. J., ECF No. 15 [hereinafter Defs.' Mot.], Ex. 17, Dep. of Timothy Haley, ECF No. 15-19 [hereinafter Haley Dep.], at 46-51. Shortly thereafter, Plaintiff was notified that his conditional offer of employment was withdrawn because he failed to obtain a security certification or clearance. Statement of Facts ¶ 2; Pl.'s Resp. to Facts ¶ 2. Later that year, the Plaintiff reapplied to the same position when it was reposted but was not selected. FAC ¶¶ 57-59. He also applied for other employment with the U.S. government in late 2010 and 2011 but again was unsuccessful. Id. ¶¶ 60-65.

         In mid-October 2012, Plaintiff received responsive information from a Freedom of Information Act and Privacy Act request he made for records about himself. Id. ¶ 66. According to Plaintiff, “[t]he released records revealed that the [Embassy Regional Security Office (“RSO”)] had collected and maintained a significant amount of information about [Plaintiff's] First Amendment-protected activities, ” including “his involvement in protests against U.S. immigration policy, his participation in community groups, his publication of a book about the visa process, and his seminars about the visa process, and that it had denied him a security certification based on these activities.” Id. ¶ 67.

         Soon after receiving the records, Plaintiff sought equal employment opportunity (“EEO”) counseling regarding the adverse security certification decision. Statement of Facts ¶ 3; Pl.'s Resp. to Facts ¶ 3. When counseling did not resolve the matter, Plaintiff filed a formal EEO complaint with the State Department in January 2013, claiming discrimination based on his dual citizenship. Defs.' Mot., Ex. 4, ECF No. 15-6, at 2. Plaintiff requested a hearing before the Equal Employment Opportunity Commission, at which point the State Department filed a motion to dismiss Plaintiff's claim as untimely. Statement of Facts ¶ 5; Pl.'s Resp. to Facts ¶ 38. The Administrative Law Judge denied the State Department's motion, finding “insufficient information to determine when [Plaintiff] reasonably suspected that he had been discriminated against to trigger the 45-day time limitation.” Defs.' Mot., Ex. 7, Order, ECF No. 15-9. Plaintiff withdrew his request for a hearing, and the complaint was remanded to the State Department. Statement of Facts ¶ 7. In May 2018, the State Department issued a final agency decision concluding that Plaintiff had not suffered discrimination based on national origin. Defs.' Mot., Ex. 8, Final Agency Decision, ECF No. 15-10, at 17.

         In the meantime, in June 2013, the Department of Justice Office of International Affairs (“OIA”) advertised a paralegal position that required a security clearance. FAC ¶ 75. Two months later, in August 2013, three RSO employees allegedly met with representatives from the Mexico City Migrant Assistant Office. During that meeting, they discussed Plaintiff and made a number of negative statements about him. Id. ¶ 76. Later that same month, Plaintiff contends, an RSO employee told another RSO employee that Plaintiff would be denied a security certification if he applied again. Id. ¶ 77. Plaintiff also alleges that between June 2013 and March 2014, the RSO discussed Plaintiff with the OIA and advised that “he could not pass or should not be passed through the background check.” Id. ¶¶ 78-80. In March 2014, Plaintiff interviewed with an OIA hiring official, during which Plaintiff claims he was asked about his prior EEO activity. Id. ¶ 81. A month later, Plaintiff was advised that he was not selected for the paralegal position. Id. ¶ 82.

         After being turned down for the OIA position, in May 2014, Plaintiff sought EEO counseling, this time asserting a claim of retaliation. Statement of Facts ¶ 8; Pl.'s Resp. to Facts ¶ 8; Defs.' Mot., Ex. 9, EEO Counselor's Report, ECF No. 15-11. When counseling did not resolve the dispute, Plaintiff filed a second formal EEO complaint, this time with the Department of Justice. FAC ¶ 83.

         During the EEO proceedings, Plaintiff learned that the Mexico City Embassy stores the security files of those considered “Ordinarily Resident” in the Foreign Service National Investigators' (“FSNI”) Office and that FSNIs have access to the security files. Id. ¶ 90. An “Ordinarily Resident” is defined as a foreign national or U.S. citizen who is locally resident and has legal, permanent resident status within the host country. Id. ¶ 25. During the period at issue in this case, the practice of the State Department was to conduct security certifications for all locally hired staff who did not require a security clearance, whether or not they were United States citizens. Haley Dep. at 46-51.

         Plaintiff continued to apply for other Embassy positions but was not selected for any. Id. ¶¶ 84-89. For example, when the OIA again advertised the paralegal position in May 2014, Plaintiff reapplied for the job. Id. ¶¶ 84-85. In July 2014, Plaintiff was advised that he was not selected for the position. Id. ¶ 86. He again unsuccessfully applied for a State Department position in 2015. Id. ¶¶ 88-89.

         On August 3, 2018, Plaintiff filed suit against Defendants, challenging (1) his non-hiring based on the denial of his security certification; (2) the State Department's collection and retention of information pertaining to Plaintiff's involvement in various political, social, and professional groups; and (2) the State Department's failure to follow two internal operating regulations. Compl., ECF No. 1. Plaintiff brings claims under Title VII, the Administrative Procedure Act (“APA”), and the Constitution. See generally id.; FAC.


         Defendants move both to dismiss Plaintiff's Complaint under Federal Rule of Civil Procedure 12(b)(6) and for summary judgment under Rule 56. See generally Defs.' Mot. Both parties have submitted sworn affidavits and other evidence “outside the pleadings.” See Fed. R. Civ. P. 12(d). Because the court does not exclude such evidence, it must treat Defendants' motion as one for summary judgment under Rule 56. Id. Accordingly, the court must determine whether a genuine issue of material fact exists as to any claim. Fed.R.Civ.P. 56(c).

         A “genuine dispute” of a “material fact” exists when the fact is “capable of affecting the substantive outcome of the litigation” and “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Elzeneiny v. District of Columbia, 125 F.Supp.3d 18, 28 (D.D.C. 2015). In assessing a motion for summary judgment, the court considers all relevant evidence presented by the parties. Brady v. Office of Sergeant at Arms, 520 F.3d 490, 495 (D.C. Cir. 2008). The court looks at the facts in the light most favorable to the nonmoving party and draws all justifiable inferences in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). If the court determines “no reasonable jury could reach a verdict in [the non- movant's] favor, ” then summary judgment is appropriate. Wheeler v. Georgetown Univ. Hosp., 812 F.3d 1109, 1113 (D.C. Cir. 2016).

         Before discussing the merits, the court notes two procedural aspects of the case in its present posture. First, only Defendants filed a statement of material facts as to which there is no genuine dispute. See LCvR 7(h) (requiring that summary judgment motions and oppositions be accompanied by statements of material facts); Statement of Facts. Although Plaintiff responded to Defendants' statement, see Pl.'s Resp. to Facts, and submitted over thirty exhibits, see Pl.'s Opp'n to Defs.' Mot., ECF No. 19 [hereinafter Pl.'s Opp'n], Exs. A-FF, ECF Nos. 19-1- 19-32, he did not identify any material facts that he asserts are undisputed. Thus, insofar as undisputed facts go, the court is largely constrained to those asserted by Defendants. Second, the parties engaged in some discovery in the administrative proceedings but have yet to take any discovery in this matter. Defendants' motion therefore is before the court largely on an administratively compiled record.


         In Count I of his Complaint, Plaintiff alleges national origin discrimination under Title VII. FAC ¶¶ 94-100. He contends that the State Department “has a policy of processing all [persons who are “ordinarily resident” in Mexico, or ORs, ] for security certifications, regardless of citizenship, despite the fact that that process may only be used for non-U.S. citizens.” Id. ¶ 95. He adds that “[t]reating U.S. citizens as non-U.S. citizens constitutes prohibited national origin discrimination in violation of Title VII.” Id. ¶ 96. Defendants respond that Plaintiff's claim is subject to dismissal because “he cannot demonstrate that [the Department of] State's reason for refusing him a security certification was motivated by national origin discrimination, ” because “[a]t bottom, [Plaintiff's] claim does not protest discrimination based on national origin; it seeks to compel discrimination based on citizenship, ” and “Title VII contains no such mandate.” Defs.' Mot. at 11-12. The court agrees.

         Title VII discrimination claims are evaluated under the three-step McDonnell-Douglas burden-shifting framework. Iyoha v. Architect of the Capitol, 927 F.3d 561, 566, 574 (D.C. Cir. 2019) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). “[A] Title VII plaintiff seeking to prove disparate treatment through indirect, circumstantial evidence ‘must first establish a prima facie case of prohibited discrimination.'” Cruz v. McAleenan, 931 F.3d 1186, 1191 (D.C. Cir. 2019) (quoting Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1288 (D.C. Cir. 1998)). Once a plaintiff has established her prima facie case, the burden shifts to the employer to articulate a legitimate nondiscriminatory reason for the challenged ...

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