Jоhn E. HORSEY, Plaintiff, v. U.S. DEPARTMENT OF STATE, et al., Defendants.
No. 14-cv-1568 (KBJ)
United States District Court, District of Columbia.
Signed March 22, 2016
KETANJI BROWN JACKSON, United States District Judge
John Cuong Truong, U.S. Attorney‘s Office for the District of Columbia, Washington, DC, for Defendants.
MEMORANDUM OPINION
KETANJI BROWN JACKSON, United States District Judge
Pro se Plaintiff John E. Horsey is an African-American man who worked as an employee of the U.S. Department of State (“the State Department” or “Defendant“) for more than two decades prior to the events that prompted the instant employment discrimination lawsuit. Horsey alleges that the State Department suspended his security clearance, and then suspended his employment indefinitely without pay, after he refused to undergo a required psychological evaluation without union representation, and that the State Department took these adverse actions against him due to discriminatory and retaliatory animus. Horsey has filed a three-count сomplaint under Title VII of the Civil Rights Act of 1964,
Before this Court at present is the State Department‘s motion to dismiss Horsey‘s complaint under
As explained fully below, this Court concludes that Horsey‘s current complaint must be dismissed in its entirety for several reasons; specifically, because Horsey has failed to exhaust administrative remedies with respect to some claims; because certain claims lack sufficient allegations of fact; and because the Egan doctrine precludеs any challenge to the agency‘s security clearance decision. However, bearing in mind Horsey‘s pro se status, this Court will grant Horsey leave to refile the complaint with respect to two claims: (1) his hostile work environment claim, which might be viable if additional facts are identified, and (2) his amorphous claim of retaliation and discrimination based on the State Department‘s proposal to suspend him, which, if properly pled, might be sufficient to avoid the Egan problem on the grounds established in the D.C. Circuit‘s serial holdings in Rattigan v. Holder, 689 F.3d 764, 765 (D.C. Cir. 2012) (”Rattigan II“), and Rattigan v. Holder, 780 F.3d 413, 415 (D.C. Cir. 2015) (”Rattigan III“). Accordingly, although Defendant‘s motion to dismiss is GRANTED with respect to the instant complaint, the Court will dismiss the complaint without prejudice and grant leave Horsey leave to refile it. A separate order consistent with this memorandum opinion will follow.
I. BACKGROUND
A. Facts
The following fаcts are undisputed, unless otherwise noted. Plaintiff Horsey was employed as an Information Technology Specialist in the Beltsville, Maryland office of the State Department‘s Information Resource Management Bureau “[a]t all times relevant to this [law]suit[.]” (Compl. ¶ 3.) According to the complaint, on February 3, 2011, “Mr. Shane Wardle, a white male colleague, made an allegation of work place violence against [Horsey], contending he was verbally assaulted[] by a slew of derogatory names[.]” (Id. ¶ 11.) An investigation allegedly followed, and Wardle‘s “allegations against [Horsey] were inconclusive as to whether [Horsey] made any inappropriate or threatening remarks or exhibited any threatening behavior[.]” (Id. ¶ 12.) Nevertheless, on February 18, 2011, a Diplomatic Security investigator asked Horsey to attend psychological counseling voluntarily
Nearly three months later, on May 6, 2011, the Chief of the Adverse Actions Division of the Office of Personnel Security and Suitability referred Horsey to the State Department‘s Office of Medical Services for further evaluation, directing that Horsey “submit to a medical review and evaluation, specifically by a psychologist.” (See id.; see also id. Ex. A (Letter to Plaintiff from Paul D. Hallenbeck, Chief, Adverse Actions Division, Office of Personnel Security and Suitability, Bureau of Diplomatic Security, State Department, dated May 6, 2011).) Horsey was also advised that his “[f]ailure to cooperate and/or provide the information where requested ... may result in a recommendation for an adverse action regarding [his] eligibility for access to classified information.” (Id. Ex. A.) In response, on that same day, Horsey allegedly “contacted[] Dr. Matt Ubben, the Sr. Clinical Psychologist for the [State Department] who was appointed to conduct the medical review and evaluation[,] to make [an] appointment.” (Id. ¶ 14.) Horsey also purportedly asked Dr. Ubben to permit a union representative to be present during the medical review and evaluation (id.); however, “citing American Psychological Association regulations[,]” Dr. Ubben allegedly advised Horsey “that a union representative could not bе present[.]” (Id.)2
According to the complaint, Horsey contacted an EEO Counselor in June of 2011. (See Def.‘s Mem., Ex. 5 (EEO Counselor‘s Report) at 1 (identifying the exact date as June 27, 2011); Compl. ¶ 22.) During this consultation, Horsey asserted that the State Department had treated him differently because of his race on two occasions in February of 2011, to wit:
Claim 1. On 02/03/2011, because of his race, Mr. Horsey believes he was discriminated against when he was subjected to a hostile work environment characterized by his co-worker Mr. Shane Wardel accusing Mr. Horsey of calling Mr. Wardel a “cracker.”
Mr. Horsey and Mr. Wardel are coworkers in the IT department at State. On 2/3/2011, Mr. Horsey was working on computer trouble tickets. Usually the procedure is you have to put your name on the computer рroblem ticket you are working on, and close it out when you are done. Mr. Horsey did not put his name on the ticket that evening because he didn‘t think anybody else would be coming in and he was just going to finish up the ticket and close it out right away. Mr. Wardel took one of the trouble tickets Mr. [H]orsey was working on and claimed it to be his own after Mr. Horsey completed the work. When Mr. Horsey asked Mr. Wardel if he took his ticket, Mr. Wardel became hostile and belligerent, and Mr. Horsey stormed out of the office. Mr. Wardel reported this incident and fabricated a complaint by alleging that Mr. Horsey pointed his finger in Mr. Wardel‘s face and alleges that Mr. Horsey called Mr. Wardel a “cracker.” Mr. Horsey claims that is a racial term he never used, and Mr. Wardel made this a race issue and discrimi-
Claim 2. Because of his race, Mr. Horsey believes he was discriminated against when IRM and [Diplomatic Security Office] conducted an unfair investigation on 02/18/2011 and they did not hear Mr. Horsey‘s side of the story and did not speak to people who could support Mr. Horsey‘s side of the story ....
(Def.‘s Mem., Ex. 5 at 2 (emphasis added).)
On August 2, 2011, the Director of the Office of Personnel Security and Suitability issued a second written directive requiring Horsey to submit to a psychological evaluation. (See Compl. ¶ 23; see also Ex. C (Letter to Plaintiff from James C. Onusko, Director, Office of Personnel Security and Suitability, Bureau of Diplomatic Security, State Department, dated August 2, 2011 (hereinafter “August 2nd Letter“)).) This letter also advised Horsey that his “failure to cooperate ... [would] result in a recommendation to suspend [his] security clearancе ... based on [his] unwillingness to complete the security clearance process.” (August 2nd Letter, at 1.) Nevertheless, Horsey “continued to assert his right to representation” and declined to undergo a psychological evaluation without representation. (Compl. ¶ 24.) In the meantime, Horsey continued to “report[] to work ... and perform[] his regular duties, all of which required a security clearance.” (Id. ¶ 25.)
According to the complaint, on November 29, 2011, Horsey “was informed that his security clearance had been suspended, and he had been placed on administrative leave.” (Id. ¶ 28; see also Def.‘s Mem., Ex. 8 (Letter to Plaintiff from James C. Onusko dated November 29, 2011).) Then, on December 9, 2011, the State Department‘s Human Resources department notified Horsey of a “proрosal to suspend him indefinitely without pay based on [his] failure to maintain a security clearance.” (Compl. ¶ 29; see Def.‘s Mem. at 4.) Horsey‘s suspension became effective on March 16, 2012. (See Compl. ¶ 31.)
Acting on his belief that the indefinite suspension “was retaliation for engaging in ... protected activity, both for his earlier attempted EEOC complaint in June 2011 and for his repeated assertions” of the right to have a union representative present during the medical evaluation, Horsey “contacted an EEOC counselor on January 12, 2012” (id. ¶ 32; see Def.‘s Mem., Ex. 6 (EEO Counselor‘s Report)) and filed a formal EEOC complaint in February of 2012 (see Compl. ¶ 34). Meanwhile, the agency‘s decision to suspend him indefinitely was officially rescinded, and, instead, Horsey “was placed on administrative leаve retroactively with[out] pay[,]” effective May 16, 2012. (Id. ¶ 35; see Def.‘s Mem., Ex. 1 (Letter to Plaintiff from J. Robert Manzanares, Deputy Assistant Secretary, Bureau of Human Resources, State Department, dated May 16, 2012).)
Horsey‘s top secret security clearance was also formally revoked, by letter dated June 6, 2012. (See Compl. ¶ 36; Def.‘s Mem., Ex. 2 (Letter to Plaintiff from Scott P. Bultrowicz, Director, Diplomatic Security Service, State Department, dated June 6, 2012); see also Def.‘s Mem., Ex. 3 (Letter to Plaintiff from Gregory B. Starr, Acting Assistant Secretary, Bureau of Diplomatic Security, State Department, dated July 25, 2013 (sustaining the clearance determination).)) Thereafter, on September 30, 2013, Horsey once again received formal notice that he was suspended indefinitely. (See Compl. ¶ 49; Def.‘s Mem., Ex. 7 (Letter to Plaintiff from Marcia Bernicat, Deputy Assistant Secretary for Human Resources, State Department, dated September 30, 2013) at 3.) Horsey appealed the suspension decision administratively, resulting in the
B. Procedural History
Horsey filed the instant Title VII action on September 3, 2014. His three-count complaint alleges unlawful discrimination based on race (Count One); retaliation for engaging in protected activities (Count Two); and exposure to a hostile and abusive working environment (Count Three). The complaint—which Horsey has filed pro se—does not allocate particular allegations of fact to each оf these claims; however, it appears that Horsey intends to assert that the State Department committed unlawful discrimination and/or retaliation and exposed him to a hostile work environment insofar as it (1) referred him for the psychological evaluations without just cause and without honoring his alleged right to union representation, (2) revoked his security clearance, and (3) indefinitely suspended him from his position as an information technology specialist, effective March 16, 2012. (See Compl. ¶¶ 21, 31, 36.)
Defendant filed the instant motion to dismiss on January 9, 2015. (See Def.‘s Mot. at 1.) Defendant contends that Horsey‘s complaint must be dismissed on three grounds; namely, because Horsey failed to exhaust all of his administrative remedies in a timely fashion; because Horsey‘s attempt to challenge the revocation of his security clearance is not justiciable under Department of Navy v. Egan, 484 U.S. 518 (1988); and because there are insufficient allegations in the complaint to support Horsey‘s hostile work environment claim. (See Def.‘s Mem. at 1-2.) Defendant‘s motion has been fully briefed (see Pl.‘s Opp‘n to Def.‘s Mot. (“Pl.‘s Opp‘n“), ECF No. 13; Def.‘s Reply in Supp. of Def.‘s Mot., ECF No. 15), and is now ripe for this Court‘s consideration.
II. LEGAL STANDARDS
A. Motions To Dismiss Under Federal Rule Of Civil Procedure 12(b)(6)
Pursuant to
Of course, this Court is mindful that Horsey is proceeding in this matter pro se, and that the pleadings of pro se parties are to be “liberally construed“—i.e., “held to less stringent standards than formal pleadings drafted by lawyers[.]” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (internal quotation marks and citations omitted). “This benefit is not, however, a license to ignore the Federal Rules of Civil Procedure[.]” Sturdza v. United Arab Emirates, 658 F. Supp. 2d 135, 137 (D.D.C. 2009). In other words, even a pro se plain-
B. Title VII Claims For Hostile Work Environment And Intentional Discrimination Or Retaliation
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.” Baloch v. Kempthorne, 550 F.3d 1191, 1201 (D.C. Cir. 2008) (internal quotation marks and citations omitted). The Court determines whether a hostile work environment exists by considering “the totality of the circumstances, including the frequency of the discriminatory conduct, its severity, its offensiveness, and whether it interferes with an employee‘s work performance.” Id. (citing Faragher v. City of Boca Raton, 524 U.S. 775, 787-88 (1998)).
Likewise, when a plaintiff contends that his employer has intentionally discriminated against him with respect to the terms and conditions of his employment, or retaliated against him for his engagement in protected activity, a plaintiff must mаke allegations of fact that, if true, would establish the elements of a discrimination or retaliation claim. 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.” Brady v. Office of Sergeant at Arms, 520 F.3d 490, 493 (D.C. Cir. 2008). To prove a retaliation claim under Title VII, a plaintiff must show (1) that he engaged in a statutorily protected activity; (2) that he suffered a materially adverse action by his employers; and (3) that a causal link connects the two. See Hamilton v. Geithner, 666 F.3d 1344, 1357 (D.C. Cir. 2012).
Notably, an employee who seeks to bring a claim of discrimination or retaliation in federal court must first exhaust available administrative remedies. See Payne v. Salazar, 619 F.3d 56, 65 (D.C. Cir. 2010) (“Title VII complainants must timely exhaust their administrative remedies before bringing their claims to court.” (internal quotation marks and citation omitted)). As a general matter, this means that the employee must contact an EEO Counselor to initiate informal counseling “within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the action.”
Although these reporting and filing deadlines are not jurisdictional and are subject to waiver, estoppel, and equitable tolling, see Brown v. Marsh, 777 F.2d 8, 14 (D.C. Cir. 1985) (citations omitted), it is well established that the plaintiff-employee “who fails to comply, to the letter, with administrative deadlines ordinarily will be
Significantly for present purposes, the administrative exhaustion requirement functions like a statute of limitations, see Crawford, 166 F. Supp. 3d at 6-7, 2016 WL 777910, at *4, which means that the defendant may raise the plaintiff‘s failure to exhaust administrative remedies as an affirmative defense, see Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997); Briscoe v. Costco Wholesale Corp., 61 F. Supp. 3d 78, 84-85 (D.D.C. 2014). However, just as a court may dismiss a claim for running afoul of the statute of limitations if “the complaint on its face is conclusively time-barred,” Firestone v. Firestone, 76 F.3d 1205, 1209 (D.C. Cir. 1996), a court may likewise dismiss a Title VII action for failure to exhaust administrative remedies if the failure to exhaust is evident on the face of the complaint, see, e.g., Alfred v. Scribner Hall & Thompson, LLP, 473 F. Supp. 2d 6, 9 (D.D.C. 2007) (dismissing a Title VII claim where even a liberal constructiоn of the complaint indicated that the pro se plaintiff had failed to exhaust the necessary administrative remedies).
III. ANALYSIS
Horsey‘s complaint consists of a lengthy recitation of facts regarding various alleged wrongs followed by three claims that incorporate all preceding paragraphs; consequently, it is exceedingly difficult to determine the exact nature of Horsey‘s claims, and also to ascertain which of the factual allegations gives rise to which of the stated causes of action. Construing the pleading liberally and drawing all inferences in Plaintiff‘s favor, this Court discerns that Horsey has brought four separate claims against his employer: (1) a hostile work environment claim, the basis of which is unclear because the complaint never idеntifies the particular facts that purportedly give rise to the claim (see Compl. ¶ 57); (2) a discrimination claim based on repeated orders from various State Department officials that he undergo a psychological evaluation and the agency‘s refusal to permit Horsey to have union representation during that evaluation (see id. ¶ 21); (3) a retaliation claim due to the State Department‘s decision to revoke his security clearance (see id. ¶¶ 41-46); 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 (see id. ¶¶ 31-32). As explained below, all four of these claims must be dismissed for various reasons, but because the first and fourth claims might be viable with more refined pleading, this Court will permit Horsey to redraft and refile his complaint with respect to those claims.
A. Horsey‘s Complaint Fails To State A Hostile Work Environment Claim
As mentioned above, a plaintiff must allege “that his employer subjected him to discriminatory intimidation, ridicule, and insult” in order to state a hostile work environment claim, and the alleged
What is more, even when all of the facts that Horsey has alleged in the complaint as a whole are considered, his pleading is 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. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993). To the contrary, the complaint‘s general litany of facts actually appears to undermine Horsey‘s hostile work environment contention, inasmuch as the complaint specifically states that Horsey “reported to work ... and performed his regular duties” even while the alleged investigation into the Wardle-related incident was ongoing (Compl. ¶ 25), and Horsey persistently “maintain[ed] his right to representation following the letters dated May 6, 2011 and August 2, 2011,” continuing to do so up “until the date of his suspension on November 29, 2011,” (id.; see also id. ¶ 26 (alleging that “[a]t no point[] did [State Department] officials take any action to remove [Horsey] from his pоst or raise an issue regarding [his] ability to competently handle classified material“).)
In short, even the most liberal review of Horsey‘s complaint fails to unearth allegations that describe a work environment consisting of “discriminatory intimidation, ridicule, and insult” based on Horsey‘s race that was so “severe or pervasive to alter the conditions of [his] employment[.]” Baloch, 550 F.3d at 1201. Consequently, Horsey‘s hostile work environment claim as alleged in this complaint must be dismissed. However, given Horsey‘s pro se status and the confusion within the complaint regarding the factual basis for this and other claims, the Court will permit Horsey to revise his claim in the context of an amended complaint, if he so chooses, as explained below.
B. Horsey Did Not Exhaust All Administrative Remedies With Respect To The Allegеdly Discriminatory Medical Referrals And Denials of Union Representation
As this Court interprets it, Horsey‘s complaint alleges that he was ordered to undergo a medical and psychological evaluation on three separate occasions: February 18, 2011; May 6, 2011; and August 2, 2011. (See Compl. ¶¶ 13, 21, 23; Def.‘s Mem. at 6.) Both parties construe the pleading as making the allegation that each of these directives, along with the agency‘s concomitant refusal to allow Horsey to bring a union representative to the evaluations, was a discrete discriminatory action. (See Compl. ¶¶ 13, 21, 23; Def.‘s Mem. at 8; see also Compl. ¶ 21 (“Plaintiff felt that he was ... the victim of unlawful
Horsey himself appears to acknowledge that his EEO contacts were untimely, responding to Defendant‘s statements regarding the lack of exhaustion by admitting, with respect to at least one of the discrimination claims, that the claim “was untimely, due to the terminal illness of his father.” (Pl.‘s Opp‘n аt 3.) Assuming that Horsey intended for this remark to invoke the principle of equitable tolling, it is manifestly insufficient to establish that such tolling is warranted, because a tardy plaintiff must “show[] (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing[]” in order to receive the benefit of equitable tolling. Holland v. Florida, 560 U.S. 631, 649 (2010) (internal quotation marks omitted) (citing Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)); see also Dyson v. District of Columbia, 710 F.3d 415, 421 (D.C. Cir. 2013) (upholding the district court‘s finding that the plaintiff was not entitled to equitable tolling because, without explanation or excuse and with full knowledge of the EEOC time limits, plaintiff delayed unnecessarily in filing her Intake Questionnaire with the EEOC and failed to communicate with the EEOC about the filing of her charge). Neither of these circumstances appears anywhere in Horsey‘s complaint, or, for that matter, anywhere in his brief in opposition to Defendant‘s motion to dismiss.
Consequently, this Court agrees with Defendant that the Title VII discrimination claims in Horsey‘s complaint that are based on the three alleged instances in which Horsey was referred to a medical/psychological evaluation and denied union representation at that evaluation must be dismissed for lack of administrative exhaustion.4
C. Egan Bars Judicial Review Of Horsey‘s Contention That The Revocation Of His Security Clearance Was Retaliatory
Defendant asserts that Horsey‘s third claim—i.e., that the revocation of his security clearance was an act of
As a general matter, this Court agrees. In paragraphs 42 through 45 of his complaint, Horsey appears to launch a vigorous attack on the agency‘s decision to revoke his security clearance. (See Compl. ¶¶ 42-45.) For example, he argues that the agency adjudicator “focused entirely on the Plaintiff not having the requested psychological evaluation” (Compl. ¶ 42), and that the adjudicator failed to analyze “other factors or variables, or the Plaintiff‘s past favorable conduct and work performance while holding a security clearance.” (Compl. ¶ 43; see also id. ¶ 46 (contesting the adjudicator‘s “unbalanced analysis“).) Given these assertions, it certainly seems as if Horsey is asking this Court to review the adjudicator‘s analysis regarding the revocation of Horsey‘s security clearance, which is precisely the type of judgment that Egan instructs must be left to the Executive Branch. See Egan, 484 U.S. at 527-30 (holding, with respect to a potential naval officer who was denied security clearance because of his prior criminal record and history of alcoholism, that the agency‘s clearance decision was not reviewable, given that the Executive Branch has the constitutional authority to protect national security information and that authority includes controlling who has access to such information).
The only case that Horsey cites to support his assertion that his claim is not precluded under Egan is the Federal Circuit decision that was the precursor to the Supreme Court‘s Egan opinion. See Egan v. Dep‘t of Navy, 802 F.2d 1563 (Fed. Cir. 1986) (holding that the MSPB has the authority to review an agency‘s reasons for a security clearance determination), rev‘d,
Thus, this Court finds that Horsey‘s claim challenging the revocation of his security clearance is barred under Egan and must be dismissed.
D. The Discrimination And Retaliation Claims Arising From Horsey‘s Proposed Indefinite Suspension Might Satisfy The Exception to Egan Outlined in Rattigan, But Must Be Repled
Although it is well established that the Supreme Court‘s Egan doctrine generally precludes discrimination claims that relate to security clearance decisions, there is also a clearly defined exception to Egan that might have some applicability here, given the allegations that Horsey has made in the complaint. Specifically, the D.C. Circuit has held 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. See Rattigan II, 689 F.3d at 771 (holding that a plaintiff‘s “Title VII claim may proceed only if he can show that agency employees acted with a retaliatory or discriminatory motive in reporting or referring information that they knew to be false“). A plaintiff seeking to advance a Rattigan-based Title VII claim related to an agency‘s revocation of his security clearance must show that: (1) the agency employee had a discriminatory or retaliatory motive to report the plaintiff or to refer false information about him, and (2) the reporting employee knew that the report or referral of information was false. See id. at 771. In addition, both the “[m]otive and knowing falsity must unite in the same person.” Rattigan III, 780 F.3d at 416.
This Court reads Paragraph 32 of Horsey‘s complaint to allege that the Department‘s proposal to suspend his employment indefinitely, which occurred after his security clearance was suspended, was a discriminatory act that was undertaken in “retaliation for [Plaintiff] engaging in protected activity, both for his earlier attempted EEOC comрlaint in June 2011 and for his repeated assertions with respect to his Weingarten rights[.]” (Compl. ¶ 32 (emphasis added).)5 Defendant focus-
es on the fact that the challenged proposed suspension of his employment allegedly resulted from the suspension of Horsey‘s security clearance, and argues that the Court cannot review the proposed suspension claim under Egan. (See Def.‘s Mem. at 10-15.) Defendant is undoubtedly correct to contend that Egan precludes this claim if Horsey‘s contention is solely that the indefinite suspension violated Title VII because it was an adverse employment action that stems from the wrongful security clearance revocation. (See supra Part III. C.) See also Ryan, 168 F.3d at 524 (“[A]dverse employment action[s] based on [a] revocation of a security clearance [are] not actionable under Title VII.“). But Horsey‘s Title VII claim might survive Defendant‘s Egan argument under the Rattigan carve-out; that is, if the alleged basis for the wrongful revocation of Horsey‘s security clearance was a knowingly false and discriminatory report or referral. See Rattigan II, 689 F.3d at 770.
Horsey‘s complaint appears to contain at least some factual kernels that might support a Title VII claim that satisfies the Rattigan requirements. He alleges, for example, that Wardle falsely accused him of calling Wardle derogatory names (see Compl. ¶ 11), which triggered the subsequent call for an investigation (see id. ¶ 12), and despite the “inconclusive” nature of that investigation and Horsey‘s “unblemished record filled with awards and commendations for excellence and bereft of any disciplinary aсtions” (id. ¶ 13), the false Wardle accusation prompted the authorities to require him to undergo the psychiatric evaluation that ultimately had repercussions for maintaining his security clearance (see id.; see also id. ¶ 32 (reiterating Horsey‘s belief that, not only did the agency err with regard to its security clearance determination, but that the indefinite suspension was “retaliation for engaging in a protected activity” and that “he was being unfairly targeted and the victim of unlawful discrimination“)).)
The State Department has neither identified nor squarely addressed the existence of a Rattigan-type Title VII claim in Horsey‘s complaint, and Horsey‘s pleading only gestures in its direction. Furthermore, it is not clear from the facts as alleged exactly when the referral to the security clеarance office occurred, much less who, in particular, made the referral, which is information that is necessary for the Court to determine whether or not the motive and knowing falsity elements “unite in the same person.” Rattigan III, 780 F.3d at 416. Thus, 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. Accordingly, this Court will dismiss the complaint‘s current Title VII claim with respect to indefinite suspension, but will permit Horsey to redraft and refile his complaint with respect to this claim, in light of his pro se status.
IV. CONCLUSION
Horsey has alleged that the State Department discriminated against him, retaliated against him, and subjected him to a hostilе work environment when it required that he undergo a psychiatric evaluation without union representation; suspended his top secret security clearance; and proposed that his employment be indefinitely suspended. For the reasons explained above, Horsey‘s complaint is deficient in
COMITE FIESTAS DE LA CALLE SAN SEBASTIAN, INC., Plaintiff, v. Carmen Yulin CRUZ, et al., Defendants.
CIVIL NO. 14-1929 (FAB)
United States District Court, D. Puerto Rico.
Signed March 17, 2016