Thomas v. Johnson, 4 F. Supp. 3d 157

Thomas, African American, employed by FEMA as Chief Security Officer from Feb 2011.
On July 28, 2011, FEMA temporarily detailed Thomas to a different role with no work.
Reasons for detail included an ongoing investigation into contract fraud and related misconduct.
On Feb 23, 2012, Thomas was demoted to Director, Records Management Division for misconduct and malfeasance.
Agency alleged Thomas violated policy by permitting two employees to work pending security clearances while under investigation and hiring them despite criminal backgrounds.
Thomas asserts pretext and racial discrimination, alleging white employees under similar investigations were treated more favorably and citing procedural irregularities.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Egan forecloses judicial review of Thomas's Title VII claim.	Thomas argues Egan bars review of security-clearance decisions, including related demotion.	Johnson argues Egan and related cases preclude such employment actions from review.	Egan does not preclude Title VII review of demotion claims.
Whether the demotion can be reviewed under Title VII without invalidating the underlying clearance decision.	Thomas contends demotion is not based on clearance eligibility, so Title VII review applies.	Johnson contends review would require evaluating clearance determinations.	Review does not require merits review of clearance; courts may consider treatment of similarly situated employees under policy.
Whether the Amended Complaint plausibly states a Title VII discrimination claim based on pretext.	Thomas claims pretext and disparate treatment based on race and retaliatory motives.	Johnson argues the claim rests on denial of clearance, which is not actionable under Title VII.	Plaintiff's allegations support a plausible Title VII discrimination claim at this stage.

Department of Navy v. Egan, 484 U.S. 518 (1988) (security-clearance decisions are discretionary and reviewable only to limited extent)
Bennett v. Chertoff, 425 F.3d 999 (D.C. Cir. 2005) (actions based on denial of clearance are not subject to judicial review)
Oryszak v. Sullivan, 576 F.3d 522 (D.C. Cir. 2009) (security-clearance decisions are generally non-reviewable; concurrence noted)
Ryan v. Reno, 168 F.3d 520 (D.C. Cir. 1999) (adverse action based on denial of clearance not actionable under Title VII)
Rattigan v. Holder, 689 F.3d 764 (D.C. Cir. 2012) (Egan limits, but review can extend to related disparate-treatment claims)