United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
P. MEHTA, UNITED STATES DISTRICT JUDGE
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offer to be rescinded.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.
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'
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conditional offer of employment was withdrawn because he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.
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.
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.
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.
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
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.
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.
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.
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).
“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.
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.
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.
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 ...