Horsey v. U.S. Dep't of State
Horsey v. U.S. Dep't of State
Opinion of the Court
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 *100the 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
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Technology Specialist in the Information Resource Management Bureau until his "Top Secret" security clearance was revoked in June of 2012.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).
*101The 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 ,
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 ,
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 ,
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.)
State responded to Horsey's amended complaint with a renewed motion to dismiss, filed on July 19, 2016. (See Defs.' Mot.) On September 6, 2016, this Court advised Horsey that he had an obligation to respond to State's motion, at the risk of having the motion deemed conceded. (See Min. Order of Sept. 6, 2016). Horsey did not respond as directed, and on October 28, 2016, the Court granted State's motion as conceded, and dismissed Horsey's case without prejudice. (See Order Granting Mot. to Dismiss, ECF No. 30; see also Mem. Op. Granting Mot. to Dismiss, ECF No. 31.) On November 16, 2016, Horsey moved to reopen the case (see Mot. to Reopen Case, ECF No. 32), and the Court granted his motion (see Min. Order of Nov. 18, 2016).
State's motion to dismiss became ripe on December 2, 2016. (See Pl.'s Opp'n to Defs.' Mot., ECF No. 33.) In the motion, State contends that Horsey's amended complaint "suffers the same factual and legal deficiencies as his initial complaint." (Defs.' Mem. in Supp. of Defs.' Mot. ("Defs.' Mem."), ECF No. 28-1, at 1.) In particular, State argues that the amended complaint's discrimination count must be dismissed because the pleading fails to allege that Horsey suffered an adverse employment action. (See id. at 6-8.) State further maintains that, to the extent that Horsey's amended complaint challenges employment actions taken pursuant to the suspension or revocation of his Security Clearance, any such claim necessarily fails on Egan grounds, because the Rattigan carve-out does not apply. (See id. at 8-11.)
In this regard, State argues that the Rattigan doctrine does not apply in a case such as this, because the Rattigan exception *104to Egan applies only where "non-security personnel report security concerns about an individual[ ] and the agency's security personnel subsequently determine that the reported security concerns are unfounded "-i.e. , where " 'the designated agency experts reached a final security clearance determination that was favorable to the plaintiff' " (Defs.' Mem. at 8 (first emphasis added; second emphasis in original) (quoting Rattigan I ,
Horsey responds to State's motion to dismiss by insisting that he "had a right to have a [union] representative present during all interviews concerning this matter"; that "this specific right was denied"; and that the officials who investigated Horsey "were fully aware" of the complaining co-worker's "history of [i]nitiating and filing [f]alse [r]eports and [i]nitiating [u]nfounded [c]laims against other fellow [f]ederal and [c]ontractor [e]mployees." (Pl.'s Response to Defs.' Reply in Supp. of Mot. to Dismiss Am. Compl. ("Pl.'s Surreply"), ECF No. 35, at 1.) Horsey further maintains that "[t]he information that was used to prompt a referral to the Office of Medical Services [ ] was directly related to a biased investigation conducted by Diplomatic Security[.]" (Id. at 2.) Finally, Horsey claims that State's motion "failed to show that [Horsey] did not plead enough facts to state a claim to relief that is plausible on its face[,]" and that the motion "ignored [Horsey's] Amended Complaint in its entirety[,] therefore not addressing the facts that [u]phold" a Rattigan -type claim. (Id. at 5.)
II. APPLICABLE LEGAL STANDARD
A. Motions To Dismiss Under Rule 12(b)(6)
Federal Rule of Civil Procedure 12(b)(6) allows a party to move to dismiss a complaint on the grounds that it "fail[s] to state a claim upon which relief can be granted[.]" Fed. R. Civ. P. 12(b)(6). To survive such a motion, the complaint must "contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal ,
*105Wash. All. of Tech. Workers v. U.S. Dep't of Homeland Sec. ,
In evaluating whether a complaint sets forth sufficient factual allegations, a court must "accept the plaintiff's factual allegations as true and construe the complaint liberally, granting plaintiff the benefit of all inferences that can reasonably be derived from the facts alleged." Sickle v. Torres Advanced Enter. Sols., LLC ,
B. Intentional Discrimination and Hostile Work Environment Claims Under Title VII
"There are two statutory elements for an employment discrimination action under Title VII: (1) the plaintiff suffered an adverse employment action (2) because of the employee's race, color, religion, sex, or national origin." Horsey ,
"To state a Title VII hostile work environment claim, a plaintiff must allege that his employer subjected him to discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of his employment and create an abusive working environment." Horsey ,
III. ANALYSIS
Horsey has filed an amended complaint that alleges, primarily, that the State Department revoked his security clearance after he refused to undergo a mental evaluation without his union representative *106present. (See Am. Compl. ¶¶ 52, 57.) The pleading suggests that racial discrimination motivated State's employment decisions, simply and solely because Horsey is African American and the Caucasian co-worker with whom he had an altercation was not required "to partake in a meeting with medical personnel as a part of the investigation into his false allegations against [Horsey][.]" (Id. ¶ 53.) But the amended complaint also plainly alleges that Horsey's own refusal to consent to the allegedly discriminatory mental evaluation was the reason that his security clearance was revoked and he was ultimately suspended. (See id. ¶¶ 52, 57; see also Pl.'s Surreply at 4.)
Thus, as explained fully below, even if the allegations in the amended complaint are taken as true, they establish that the cause of the critical adverse employment action (Horsey's suspension) was Horsey's own declination, not race discrimination. In addition, the complaint's bald assertion that Horsey "endured discrimination that was pervasive and regular[ ] (in the form of emails, phone calls, and letters[ ] threatening [his] employment)" (Am. Compl. ¶ 58)-without further description or discussion-is manifestly insufficient to support any reasonable inference that State subjected Horsey to a hostile work environment in violation of Title VII. Therefore, both Title VII counts in Horsey's amended complaint fail to state a claim as a matter of law and must be dismissed.
A. Horsey's Amended Complaint Does Not Allege That Horsey Suffered An Actionable Adverse Employment Action "Because Of" His Race
Liberally construed and fairly read, Horsey's amended complaint alleges that he endured seven distinct workplace slights arising out of the conflict with his co-worker, each of which Horsey might have intended to present as an actionable adverse employment action in support of his intentional discrimination claim: (1) his co-worker's allegedly false report to supervisors about him (see Am. Compl. ¶ 6); (2) his supervisor's referral of the altercation incident for investigation (see id. ¶ 7); (3) the investigation itself (see id. ¶¶ 9-17, 24-25, 31); (4) State's request, and ultimately its requirement, that Horsey undergo a mental evaluation (see id. ¶¶ 8, 19, 26-28); (5) the denial of Horsey's request to have union representation present at the mental evaluation (see id. ¶¶ 29-31, 33, 41); (6) the subsequent suspension and revocation of Horsey's security clearance (see id. ¶¶ 34, 39); and (7) Horsey's being placed on administrative leave and eventually indefinitely suspended (see id. ¶¶ 34, 37). Significantly for present purposes, the only one of these potential adverse actions that the amended complaint attributes to race discrimination is State's requirement that Horsey undergo a mental evaluation, and as it turns out, this circumstance is a fatal flaw with respect to Horsey's Title VII claim of intentional discrimination (Count I), for the reasons explained below.
1. A Mental Evaluation Requirement Is Not An Adverse Employment Action, And Even So, Horsey Has Not Exhausted Any Discrimination Claim Based On This Requirement
The amended complaint explicitly suggests that State's requirement that Horsey undergo a mental evaluation was racially discriminatory. (See id. ¶ 53 ("[Horsey's co-worker] (white male) was not asked to partake in a meeting with medical personnel as part of the investigation into his false allegations against [Horsey] (black male), and remains employed with Defendants.").) But State's requirement that Horsey undergo a mental evaluation does not appear to qualify as an *107adverse employment action for Title VII purposes. Such a requirement does not, in and of itself, impact or alter an employee's working conditions. See Ng ,
Even if State's mental evaluation requirement, and/or State's refusal to authorize union representation during the evaluation, qualified as an adverse employment action for Title VII purposes, this Court's prior opinion concerning Horsey's initial complaint specifically held that Horsey had failed to exhaust his administrative remedies pertaining to this particular claim. See Horsey ,
Horsey has not requested reconsideration of this Court's prior failure-to-exhaust determination, and the Court sees no reason to revisit that conclusion now. Therefore, even if the amended complaint's allegation that State's mental evaluation requirement was discriminatory is true, it is not an actionable basis for proceeding with Horsey's intentional discrimination claim (either because that requirement is not an adverse employment action or because any claim premised on that requirement is unexhausted), and thus, to the extent that Count One of Horsey's amended complaint rests on the allegedly discriminatory mental evaluation requirement, that claim must be dismissed.
2. None Of The Remaining Adverse Employment Actions Are Alleged To Have Taken Place Because Of Horsey's Race
Each of the other potentially adverse actions that appears in Horsey's amended complaint is likewise insufficient to support Horsey's intentional discrimination claim, because none of them is alleged to have occurred "because of" Horsey's race, as Title VII requires. See 42 U.S.C. § 2000e-2(a). In other words, Horsey's amended complaint fails to raise a plausible inference that State was motivated by race, even in part, when it made these other employment decisions. See *108Univ. of Sw. Tex. Med. Ctr. ,
With respect to the most obviously adverse of the employment actions that are described in the complaint-Horsey's suspension, the revocation of his security clearance, and his first being placed on administrative leave before being indefinitely suspended-Horsey's pleading plainly points to his refusal to undergo the mental evaluation as the cause of the alleged adverse action. For example, in laying out Horsey's discrimination claim, the amended complaint alleges that "[Horsey] was suspended from his position indefinitely when [Horsey's] security [c]learance was revoked because he refused [to] participate in an unlawful [evaluation] and meet with medical personnel without a representative present[.]" (Am. Compl. ¶ 52 (emphasis added).) And the complaint further acknowledges that Horsey received a letter from Diplomatic Security requiring that he undergo a " 'mandatory evaluation'[ ] as part of the security clearance process[,]" and that the letter notified Horsey "that non-compliance with this directive could have negative consequences with regard to your security clearance eligibility." (Id. ¶¶ 28, 29.) Thus, the amended complaint's own allegations establish that State's decisions to suspend and later revoke Horsey's security clearance; to place him on administrative leave; and to indefinitely suspend him occurred not because of Horsey's race but because of his own recalcitrance with respect to the mental evaluation. Cf. Townsend v. United States ,
Horsey's intentional discrimination theory as articulated in the complaint also appears to rest on his contention that he was "suspended indefinitely when a knowingly false and discriminatory referral was made to security clearance authorities." (Am. Compl., at 1.) When this Court previously addressed the sufficiency of these allegations as they appeared in Horsey's initial complaint, the Court reasoned that there might be one potential path forward toward establishing the necessary causation, despite the many legal obstacles that the alleged facts presented: if Horsey amended the complaint to make a plausible allegation that the "basis for the wrongful revocation of Horsey's security clearance was a knowingly false and discriminatory report or referral" to security clearance authorities, as the D.C. Circuit authorized in the Rattigan line of cases. Horsey ,
With respect to the first deficiency, the amended complaint contains no allegations that the referral to security clearance authorities was racially discriminatory; instead, in laying out the factual allegations, the amended complaint emphasizes that "[Horsey's] Top Secret Security Clearance was suspended" (Am. Compl. ¶ 34) only after State repeatedly demanded that Horsey undergo a mental evaluation (see id. ¶¶ 27-29, 31) and Horsey repeatedly refused to do so without a union representative present (see id. ¶¶ 29-30, 33). And while the amended complaint alleges that Wardle (Horsey's co-worker) made a false report to his supervisors about Horsey, the pleading contains no allegations that Wardle was motivated by Horsey's race (see id. ¶¶ 6-7); or that their supervisor's decision to refer the incident to Diplomatic Security for investigation was racially discriminatory (see id. ¶¶ 7-8); or that Diplomatic Security conducted its investigation because of racial animus or in a manner that was racially discriminatory (with the exception of the referral for mental evaluation (see Sec. III.A.i, supra )) (see Am. Compl. ¶¶ 9-17, 24-25, 31).
For similar reasons, Horsey's amended complaint further fails to allege sufficient facts to support a reasonable inference that any discriminatory motive and knowing falsity united in one person. See Horsey ,
In sum, Horsey's amended complaint fails to allege that the State Department took any actionable adverse employment action against Horsey because of his race. Therefore, the complaint fails to raise a plausible Title VII discrimination claim and Horsey's first count must be dismissed.
B. Horsey's Amended Complaint Does Not Allege Sufficient Facts To Support A Hostile Work Environment Claim
"Not everything that makes an employee unhappy is an actionable adverse action." Broderick v. Donaldson ,
Horsey's amended complaint alleges that State (1) "ignored [Horsey's] rights under Weingarten , and those guaranteed on the form DS-7619" (Am. Compl. ¶ 57; see also id. ¶¶ 17, 18; Ex. 4 to Am. Compl., ECF No. 22-1, at 11);
First, on their face, these allegations are patently insufficient to establish a hostile work environment, even if they are taken as true. For example, the complaint does not illuminate how State "required" Horsey to undergo a mental evaluation, much less that it did so in a "severe or pervasive" manner, nor does Horsey's pleading describe the volume, nature, or content of the alleged "emails, phone calls, and letters" that Horsey allegedly received. (Id. ¶ 57.) To be sure, this Court is required to draw all reasonable inferences in Horsey's favor, see Sickle ,
Second, even if the Court assumed or inferred that State harshly threatened Horsey's employment every single day for months on end, to qualify as a hostile work environment, "the behavior complained of must be 'so objectively offensive as to alter the conditions of the victim's employment.' " Townsend v. United States ,
Finally, because Title VII makes it unlawful for an employer "to discriminate against any individual ... because of such individual's race, color, religion, sex, or national origin[,]" 42 U.S.C. § 2000e-2(a)(1), it is "important in hostile work environment cases to exclude from consideration personnel decisions that lack a linkage of correlation to the claimed ground of discrimination[,]" Kelley v. Billington ,
*112IV. CONCLUSION
For the reasons explained above, when this Court looks at the totality of the circumstances as alleged in the complaint, as it must, see Horsey , 170 F. Supp. 3d at 264, it is clear that, despite having been provided with the opportunity to add sufficient allegations, Horsey has once again failed to overcome the "high hurdle" of pleading an actionable Title VII hostile work environment claim, id. at 265, nor has he pled sufficient facts to support his claim that State took adverse actions against him because of his race. Consequently, and as set forth in the accompanying Order, State's motion to dismiss Horsey's amended complaint will be GRANTED , and Horsey's action will be DISMISSED .
The facts recited herein are drawn from Horsey's amended complaint and are accepted as true for the purpose of the Court's analysis of State's motion to dismiss. See, e.g., Suarez v. Colvin ,
The Supreme Court held in Egan that "the protection of classified information must be committed to the broad discretion of the agency responsible, and this must include broad discretion to determine who may have access to it."
In a series of precedential cases between 2011 and 2015, the D.C. Circuit determined that the Egan doctrine does not preclude judicial review of a security clearance revocation where the employee brings a Title VII claim based on an allegedly false and discriminatory report or referral to security clearance authorities. See Rattigan v. Holder (Rattigan I ),
Horsey does not appear to raise a retaliation claim in his amended complaint. (See generally Am. Compl.)
Page-number citations to the documents that the parties have filed refer to the page numbers that the Court's electronic filing system automatically assigns.
To be clear, even if Horsey had alleged that State suspended and/or revoked his Security Clearance "because of" his race, under existing Supreme Court precedent, this Court would not be authorized to review such a decision. See Horsey , 170 F. Supp. 3d at 268 ("[A]n agency's decision to deny or revoke an employee's security clearance is precluded from judicial review[.]" (citing Egan ,
" 'Weingarten rights' refers to the Supreme Court's decision in NLRB v. J. Weingarten, Inc. ,
Reference
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- John E. HORSEY v. UNITED STATES DEPARTMENT OF STATE
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