Makky v. Secretary Homeland

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit

8-7-2008

Makky v. Secretary Homeland
Precedential or Non-Precedential: Precedential

Docket No. 07-3271

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 PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 07-3271

DR. WAGIH H. MAKKY,
Appellant

v.

MICHAEL CHERTOFF, Secretary of the
Department of Homeland Security, in
his official capacity; KIP HAWLEY,
Director, Transportation Security
Administration, in his official
capacity; DEPARTMENT OF HOMELAND
SECURITY; TRANSPORTATION SECURITY
ADMINISTRATION; OFFICE OF PERSONNEL
MANAGEMENT; FEDERAL BUREAU OF
INVESTIGATION

On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 06-cv-04329)
District Judge: Hon. Joseph E. Irenas

Argued June 25, 2008

Before: SLOVITER, BARRY and ROTH, Circuit Judges

Filed: August 7, 2008
Baher Azmy
Scott Michelman (Argued)
Jason Brown, pursuant to L.A.R. 46.3(a)
Scott Hovanyetz, pursuant to L.A.R. 46.3(a)
Seton Hall Law School
Center for Social Justice
Newark, New Jersey 07102

Edward Barocas
ACLU of New Jersey
Newark, New Jersey 07101

Arthur B. Spitzer
ACLU of the National Capital Area
Washington, D.C. 20036

Attorneys for Appellant

Jeffrey Bucholtz
Acting Assistant Attorney General
Christopher J. Christie
United States Attorney
Marleigh D. Dover, Esquire
Steven Y. Bressler, Esquire (Argued)
Civil Division
United States Department of Justice
Washington, D.C. 20530-0001

Alex Kriegsman, Esquire
Office of United States Attorney
Newark, New Jersey 07102-0000

Attorneys for Appellees

OPINION OF THE COURT

2
SLOVITER, Circuit Judge.

This appeal requires us to decide, as an issue of first
impression, whether a plaintiff’s prima facie case in a mixed-
motive Title VII employment discrimination action fails if it is
irrefutable that plaintiff does not meet a necessary objective
qualification for the job.1

I.

Factual Background and Procedural History

Appellant Dr. Wagih Makky emigrated to the United States
from Egypt thirty years ago, and became a naturalized citizen of the
United States. He also became a prominent researcher and
university professor in the field of aviation security, and is
considered to be a technical expert in that field. After the bombing
of a Pan American Airways airliner over Lockerbie, Scotland, the
United States government asked Makky to create a unit within the
Federal Aviation Administration (“FAA”), later subsumed into the
Transportation Safety Administration (“TSA”), for the purpose of
developing technology to detect and prevent explosives from being
detonated aboard commercial planes and trains. He was one of six
founding members of that project with a stated purpose of
preventing terrorist attacks on American passenger jets.

According to Makky’s complaint,2 Makky’s “expertise in
the detection of contraband and explosives is recognized

1
At oral argument, the government argued that two of our
prior cases reached this issue. See Fuentes v. Perskie, 32 F.3d 759,
764 (3d Cir. 1994); Keller v. Orix Credit Alliance, Inc., 130 F.3d
1101, 1113-14 (3d Cir. 1997) (en banc). Fuentes was a pretext
case, not a mixed-motive case. See Fuentes, 32 F.3d at 762. Keller
was both a pretext and mixed-motive case but did not explicitly
reach the issue presented here.
2
Because this is an appeal from the grant of a motion to
dismiss, we accept as true the factual allegations contained in
Makky’s complaint.

3
throughout the world.” App. at 75. He has authored many
scientific papers, served on national inter-agency committees, and
has chaired international symposia on explosives detection
technology. He is one of the nation’s “foremost technical experts
on transportation security.” App. at 68.

Makky has been married to his wife, an American citizen,
for over twenty-five years, and all of his close family members
living in Egypt have passed away with the exception of his two
brothers. Although Egyptian law provides that a person born to an
Egyptian father is irrevocably an Egyptian citizen, Makky
considers himself only an American citizen, and he does not
possess an Egyptian passport.

Makky was employed by the United States government for
the fifteen years between 1990 and 2005. In 1987, Makky first
applied for a security clearance due to his position as a senior
fellow at the Naval Oceans Systems Center. He was approved and
was granted a “secret” level security clearance. Then, in 1990, he
accepted the position with the FAA described above. In
connection with that position, he was once again granted a “secret”
level clearance and was stationed at the Transportation Security
Research and Development division in Atlantic City, New Jersey.

In 1996, Makky’s security clearance was upgraded to “top
secret.” At that time, Makky notified the government via his
clearance application that he had recently found out that Egypt still
considered him a dual citizen of that country, and he indicated that
dual citizenship on the application.

Makky’s performance reviews have rated him at
“exceptional” and “outstanding.” App. at 76. “Dr. Makky’s job
performance has been exemplary.” App. at 76. He has been
commended for his “extraordinary technical insight.” App. at 76.

Makky was the only Muslim and only person of Arab
descent in his division. According to his complaint, he has “always
[been] treated differently than the other members of the group on
account of his national origin and religion.” App. at 76. The
person who hired Makky told him that it was a mistake to hire

4
someone of Arab descent. Another supervisor who spoke to a
group of employees, including Makky, stated, in the context of a
conversation about a possible terrorist attack by Islamic
fundamentalists, “Muslims have no brains.” App. at 76. Following
the September 11, 2001 attacks, Makky faced increased prejudice
and hostility at work.

A. Security Clearance Renewal

In March 2002, Makky submitted a required security
clearance renewal application. According to Makky, there were no
material changes since his 1987 application, except that some of his
family members had died so he had fewer connections with Egypt.

In October 2002, while the security clearance renewal was
still pending, Makky came under the supervision of Robin Burke
when Burke became Deputy Administrator of the Security Lab.
According to the complaint, Burke “took an unusual interest in Dr.
Makky’s national origin.” App. at 77. Specifically, Burke “made
it a point” to meet with Makky one-on-one and inquired into
Makky’s “background.” App. at 77. “The first and only thing
Burke wanted to know about Dr. Makky was his national origin.”
App. at 78. Makky was the only non-supervisory employee with
whom Burke met.

B. Suspension With Pay

On March 19, 2003, the day the United States invaded Iraq,
the TSA, through Burke, placed Makky on paid administrative
leave and, without giving any explanation, told him not to come to
work. One week later, Makky received a letter from Burke stating
that he had been placed on administrative leave “as a result of
questions concerning [his] security clearance.” App. at 79. Makky
later learned that Burke had obtained a copy of Makky’s FBI file
even though Burke had no role in the security clearance process.
Burke continued to take an active interest in Makky’s clearance.

In January 2005, the Associate Deputy Director of the
Office of Transportation Vetting & Credentialing (“OTVC”), Joy
S. Fairtile, issued an initial determination to Makky indicating that

5
a non-final determination was made to deny his security clearance
application pending further review. The notice of suspension cited
several security concerns, including Makky’s dual citizenship,
foreign relatives and associates, foreign countries he had visited,
and alleged misuse of his government computer as reasons for the
action. Makky began the process of administrative appeal on April
18, 2005 by responding in writing.

On August 8, 2005, at Burke’s direction, Makky was given
a Notice of Proposed Suspension for an Indefinite Period, citing the
security clearance revocation as the reason. Makky responded on
August 24, 2005 in writing and through counsel.

C. Suspension Without Pay

Makky was paid throughout his almost two and a half years
of administrative leave until September 7, 2005, when Burke
suspended Makky indefinitely without pay. Makky responded on
December 16, 2005 with an oral presentation, and on December 27,
2005 with additional written responses.

On March 7, 2006, the TSA issued its Final Denial of
Security Clearance to Makky, signed by Chief Security Officer
Douglas I. Callen. The Notice stated that Makky had successfully
mitigated all concerns about his security clearance except one –
concerns about foreign relatives and associates, whose identities
were not disclosed. The basis for the concern stemmed from
information in Makky’s FBI report. A redacted version of
Makky’s FBI file had been released to him on August 18, 2005.
This version did not contain information regarding the foreign
associates.

Makky also appealed his suspension to the Merit Systems
Protection Board (“MSPB” or “Board”) on October 5, 2005. The
Administrative Judge (“AJ”), Michael Garrety, held a hearing on
January 13, 2006. In his decision, the AJ noted that Makky’s
appeal challenged the TSA decision suspending him indefinitely
without pay effective September 8, 2005. The AJ stated that
Makky was entitled to the following procedural rights: (1) 30 days’
advance written notice of the proposed action, stating the specific

6
reasons for the action; (2) a reasonable amount of time to respond
to the proposed action and to furnish documents in response; (3)
the right to representation; and (4) a written decision on the action.
The AJ concluded that Makky had an adequate opportunity to make
a meaningful response, and that the AJ could not review the
determination not to permit Makky access to certain information
because it was not a permissible basis for review, see King v.
Alston, 75 F.3d 657, 661-62 (Fed. Cir. 1996).

Makky argued that he had received disparate treatment on
the basis of his national origin and religion. The AJ acknowledged
that the evidence that Burke inquired into Makky’s national origin
when he first met him was unrebutted but nevertheless found that
“this evidence is insufficient to establish that membership in a
protected category was a motivating factor in the agency’s
indefinite suspension action.” App. at 14.

Makky also argued that rather than being suspended without
pay he should have been able to remain in administrative leave
status while the final outcome of the security clearance was being
determined. The AJ stated that because Makky’s “retention in
administrative leave status was contrary to agency policy,” App. at
17, it was not appropriate for him to remain in an administrative
leave status.

The AJ denied all of Makky’s claims and informed him that
the decision would become final on May 9, 2006.

Makky petitioned the full Board for review. The MSPB
denied the petition. Thus, the order suspending Makky without pay
became final on August 15, 2006. On September 14, 2006, Makky
commenced suit in the United States District Court for the District
of New Jersey. On January 5, 2007, the FBI responded to the
request Makky had previously made under the Freedom of
Information Act (“FOIA”) to obtain an unredacted copy of the
previously redacted portions of his investigative file. It provided
him with additional portions of his FBI file, including the relevant
portion listing his foreign relatives and associates. Thereafter, the
District Court dismissed Makky’s case, and he filed a timely notice
of appeal.

7
D. District Court Decision

Makky’s District Court complaint contained seven claims:
(1) employment discrimination under Title VII, 42 U.S.C. § 2000e-
16(a) (Count 1); (2) employment discrimination under the Civil
Service Reform Act of 1978, 5 U.S.C. § 2303(b) (“CSRA”) (Count
2); (3) due process violations (Count 3); (4) violation of agency
procedures under the CSRA (Count 4); (5) retaliation under the
CSRA (Count 5); (6) violation of FOIA, 5 U.S.C. § 552(a)(3)(A)
(Count 6); and (7) violation of the Privacy Act, 5 U.S.C. §
552a(d)(1) (Count 7). Appellees moved to dismiss the first three
counts on the basis that the Court lacked subject matter
jurisdiction; they sought summary judgment on all other counts.

The District Court based its jurisdiction on 5 U.S.C. §
7703(b)(2) because this is a “mixed case” involving allegations of
employment discrimination as well as procedural violations. The
Court applied de novo review of the discrimination claim and
deferential review (i.e., abuse of discretion) to the non-
discrimination claims. Appellees argued that the District Court did
not have jurisdiction to review the denial of Makky’s security
clearance and therefore it could not review his termination based
upon the denial of the clearance. However, the Court recognized
that Makky “does not contest the security clearance determination.
Rather his sole argument is that the decision to place him on unpaid
leave on September 8, 2005, was discriminatory because the TSA
could have selected one of two less severe options . . . .” App. at
32-33. The Court noted that those options were transfer to a
position not requiring a clearance or remaining on paid leave.
Thus, Makky argued, the Court had jurisdiction because it did not
have to consider the merits of the security clearance to review the
claims of discrimination under a mixed-motive theory.

The District Court dismissed Count 1 of the complaint (the
Title VII discrimination claim) because even under a mixed-motive
theory, the fact-finder would not be able to weigh the non-
discriminatory reason proffered, the security clearance revocation,
and therefore could not determine whether the alleged
discrimination was a motivating factor or not. The Court
concluded, “[b]ecause as a matter of law Dr. Makky cannot prevail

8
on either a mixed-motive or a pretext theory, Defendants’ motion
to dismiss Count One will be granted.” App. at 38.

The Court dismissed Count 2 and the part of Count 3
alleging discrimination because those counts were premised on the
CSRA. With respect to the Due Process claims (regarding failure
to get information requested, failure to follow proper procedures,
etc.) alleged in the remaining counts, the Court, citing King, 75
F.3d at 661-62, and Cheney v. Department of Justice, 479 F.3d
1343, 1346 (Fed. Cir. 2007), concluded that the AJ’s decision was
not erroneous.

With respect to the claims under FOIA and the Privacy Act,
the Court held that the defendants met their burden to show that the
documents at issue fell into a statutory exemption for material to be
held secret in the interest of national security. The Court also
determined that an in camera review was not necessary.

On appeal, Makky argues that the District Court erred with
respect to the Title VII discrimination claim and the Due Process
claim under the CSRA. He argues that his suspension without pay
in September 2005 violated Title VII because discrimination was
a motivating factor in the decision to suspend him without pay
rather than to transfer him to another position or continue to
suspend him with pay. He also argues that he was entitled to the
materials in his FOIA request prior to his suspension without pay.

II.

Jurisdiction and Standard of Review

We have jurisdiction over this appeal of a final judgment
pursuant to 28 U.S.C. § 1291. The District Court had jurisdiction
because this is a “mixed case,” i.e., one containing allegations of
employment discrimination as well as allegations of procedural
violations under the CSRA. See 5 U.S.C. § 7703(b)(2). We review
the District Court’s grant of the government’s motion to dismiss
the Title VII claim de novo. See Pa. Employees Benefit Trust Fund
v. Zeneca, Inc., 499 F.3d 239, 242 (3d Cir. 2007). We also review
the District Court’s grant of the motion for summary judgment of

9
Makky’s due process claim de novo, and apply the same standard
applicable in the District Court. Saldana v. Kmart Corp., 260 F.3d
228, 231 (3d Cir. 2001). We review the agency decision on the
administrative record to determine whether it is arbitrary,
capricious, an abuse of discretion, or otherwise unsupported by law
or substantial evidence. See 5 U.S.C. § 7703(c).

III.

Discussion

A. Title VII Claim

Although Makky was dismissed from his position, his
complaint is limited to TSA’s decision to suspend him without pay
on September 7, 2005, which he claims was motivated by
discriminatory animus. Thus, he seeks back pay3 for the period
between September 8, 2005, when the suspension took effect, and
March 7, 2006, when his security clearance denial became final, on
the theory that the government could have transferred him to a
position not requiring a security clearance or could have kept him
on a suspended-with-pay status. Importantly, Makky does not
challenge as discriminatory the initial decision in January 2005 to
deny his security clearance pending review or the decision to place
him on leave with pay in March 2003 when the security clearance
issue was first raised. We note that the initial decision to deny the
security clearance and the later decision to suspend Makky without
pay are two discrete events.

Makky argues that in addition to the security clearance
denial, a motivating factor in the government’s decision to suspend
him without pay was discriminatory animus. The government
argues that we have no jurisdiction to review this claim because we
cannot review the merits of a security clearance denial and such
review would be necessary to examine Makky’s claim. The

3
There was some dispute at oral argument whether Makky
actually seeks back pay or whether he seeks reinstatement and
attorneys’ fees. It is not necessary to resolve this dispute.

10
government also contends that even if we did have jurisdiction,
Makky cannot prevail on his claim of discrimination because he
was not qualified to do his job.

1. Jurisdiction

In Department of the Navy v. Egan, 484 U.S. 518 (1988), a
non-Title VII case, the Supreme Court held that there is no judicial
review of the merits of a security clearance determination. That
decision is exclusively for the executive. The Court also stated that
the denial of a security clearance is not an “adverse action.” Id. at
530. Thereafter, in Stehney v. Perry, 101 F.3d 925 (3d Cir. 1996),
another non-Title VII case, we considered the claim of a
mathematician for the NSA who was fired for refusing to take a
polygraph test. She sued, alleging equal protection and due process
violations, among other claims. The district court had dismissed all
claims under Egan. We upheld the dismissal but for different
reasons. We stated: “If Stehney had asked for review of the merits
of an executive branch decision to grant or revoke a security
clearance, we would agree. But not all claims arising from security
clearance revocations violate separation of powers or involve
political questions.” Id. at 932. We held that we could review the
merits of Stehney’s claims because Stehney had standing, and her
claims were not barred by the political question doctrine or the
doctrine of sovereign immunity. We concluded, however, that a
writ of mandamus, which Stehney sought, was not appropriate
because Stehney had not sought relief under the Administrative
Procedure Act in the first instance. Moreover, deciding the merits,
we held that the NSA had followed its own regulations in denying
the security clearance and Stehney received all the process she was
due regarding the denial of the clearance (if she was due any
process at all since no one has a “right” to a security clearance).
Importantly, we noted that there was a distinction between
challenging the merits of a clearance revocation and challenging
the revocation process, and we had jurisdiction to rule on the
latter. Id.

Here, Makky asserts: “As alleged in the Complaint, TSA
supervisor Robin Burke suspended Dr. Makky without pay on
account of Dr. Makky’s national origin and religion, in violation of

11
Title VII of the Civil Rights Act of 1964. Although proceedings
surrounding his security clearance had been commenced at the time
of Burke’s actions, Dr. Makky’s allegations nevertheless clearly
state a Title VII claim that does not in any way depend on an
analysis of whether the ultimate suspension or revocation of his
security clearance was proper.” Appellant’s Br. at 15. Makky
acknowledges that he would be foreclosed under Egan from
challenging the decision to deny the security clearance, even if it
were denied due to discrimination. He emphasizes that is not what
he is arguing.

Instead, he argues that the decision to suspend him without
pay was motivated in substantial part by discriminatory animus,
and that claim is not foreclosed under Egan. He compares his
situation to that of Stehney, who, we held, could challenge the
process by which her clearance was denied. Based on our
precedent in Stehney, we conclude that we have jurisdiction to
review Makky’s claim of discrimination because a discrimination
claim under a mixed-motive theory does not necessarily require
consideration of the merits of a security clearance decision. The
basis of a mixed-motive theory is that both a legitimate and
discriminatory reason for an employment decision can co-exist.
See Watson v. Se. Pa. Transp. Auth., 207 F.3d 207, 216 (3d Cir.
2000) (recognizing that the point of a mixed-motive theory is that
a plaintiff may suffer discrimination even though there may also be
a legitimate reason for the adverse employment action). We
reiterate that in analyzing Makky’s mixed-motive Title VII claim,
we cannot question the motivation behind the decision to deny
Makky’s security clearance.

2. Mixed-Motive Theory of Discrimination

A Title VII plaintiff may state a claim for discrimination
under either the pretext theory set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), or the mixed-motive theory
set forth in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989),
under which a plaintiff may show that an employment decision was
made based on both legitimate and illegitimate reasons. Following
some division among the circuits as to application of Price
Waterhouse, Congress enacted two new statutory provisions geared

12
toward setting the applicable standard in a mixed-motive case. The
first provision stated: “Except as otherwise provided in this
subchapter, an unlawful employment practice is established when
the complaining party demonstrates that race, color, religion, sex,
or national origin was a motivating factor for any employment
practice, even though other factors also motivated the practice.” 42
U.S.C. § 2000e-2(m). The second provision gave the employer a
limited affirmative defense to “‘demonstrate that it would have
taken the same action in the absence of the impermissible
motivating factor.’” Desert Palace, Inc. v. Costa, 539 U.S. 90, 95
(2003) (quoting 42 U.S.C. § 2000e-5(g)(2)(B)) (alterations
omitted). If proven, this defense limits the plaintiff’s relief to
injunctive relief, attorneys’ fees, and costs. Id. at 94.

Although the courts were divided about whether a
discrimination claim brought under a mixed-motive theory had to
be proven with direct evidence, the Supreme Court resolved the
circuit split in Desert Palace by holding that a plaintiff does not
need to present “direct evidence” of discrimination to proceed on
a mixed-motive theory of discrimination under Title VII. Id. at 92.
The Court reiterated the general principle that “Title VII has made
it an ‘unlawful employment practice for an employer . . . to
discriminate against any individual . . . , because of such
individual’s race, color, religion, sex, or national origin.” Id. at 92-
93 (quoting 42 U.S.C. § 2000e-2(a)(1)). In sum, “[i]n order to
obtain an instruction under § 2000e-2(m), a plaintiff need only
present sufficient evidence for a reasonable jury to conclude, by a
preponderance of the evidence, that ‘race, color, religion, sex, or
national origin was a motivating factor for any employment
practice.’” Id. at 101.

3. Requirement of Basic Qualification in Mixed-Motive Cases

Assuming arguendo that Makky has adequately pled that the
TSA discriminated against him, we must decide whether an
essential qualification for the job is a component of Makky’s prima
facie case. When a plaintiff attempts to prove a discrimination
claim under a pretext theory, the McDonnell Douglas burden-
shifting framework applies. See 411 U.S. at 802-04. Under that
familiar test, the plaintiff must first establish a prima facie case of

13
discrimination by showing that: (1) s/he is a member of a protected
class; (2) s/he was qualified for the position s/he sought to attain or
retain; (3) s/he suffered an adverse employment action; and (4) the
action occurred under circumstances that could give rise to an
inference of intentional discrimination. See McDonnell Douglas,
411 U.S. at 802; Sheridan v. E.I. DuPont de Nemours & Co., 100
F.3d 1061, 1066 n.5 (3d Cir. 1996) (en banc).

If a plaintiff establishes a prima facie case of discrimination,
then an inference of discriminatory motive arises and the burden
shifts to the defendant to articulate a legitimate, non-discriminatory
reason for the adverse employment action. See St. Mary’s Honor
Ctr. v. Hicks, 509 U.S. 502, 506-07 (1993). If the defendant does
so, the inference of discrimination drops and the burden shifts back
to the plaintiff to show that the defendant’s proffered reason is
merely pretext for intentional discrimination. See id. at 507-08.

In Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510 (2002),
the Court held that the McDonnell Douglas prima facie case is an
“evidentiary standard, not a pleading requirement.” In addition, the
Court stated that the McDonnell Douglas framework does not
apply in every case, and the requirements of a prima facie case may
vary depending on the case. Id. at 511-12. See also Jones v. Sch.
Dist. of Philadelphia, 198 F.3d 403, 411 (3d Cir. 1999) (stating that
the required elements of a prima facie case depend on the facts of
the particular case).

The McDonnell Douglas burden-shifting framework does
not apply in a mixed-motive case in the way it does in a pretext
case because the issue in a mixed-motive case is not whether
discrimination played the dispositive role but merely whether it
played “a motivating part” in an employment decision. It is
significant that in Desert Palace, the Court omitted any discussion
of the McDonnell Douglas framework as a requirement in mixed-
motive cases.

Makky argues that qualification for the position, an element
of the prima facie case in the McDonnell Douglas test, does not
need to be established in a mixed-motive case because the essence
of the mixed-motive theory is the recognition that there may be a

14
legitimate reason, as well as a prohibited reason, for the adverse
employment action. The government argues that even under a
mixed-motive theory, a plaintiff must state a prima facie case in
order to prevail.4 The government argues that at least Makky must
demonstrate that he was “minimally qualified for his job . . . .”
Appellees’ Br. at 31.

We need not decide the question whether a plaintiff
pursuing a mixed-motive theory of discrimination must satisfy each
of the elements of the McDonnell-Douglas prima facie case, as that
issue is not squarely before us. We limit our consideration to the
need for plaintiff to show his or her qualification, and specifically
objective qualification, for the job. For example, if the hospital
employing a person who has been performing surgery learns that
the employee falsified his or her qualifications and never went to
medical school, that employee could not establish a prima facie
mixed-motive case irrespective of allegations of racial or ethnic
discrimination. We hold today that a mixed-motive plaintiff has
failed to establish a prima facie case of a Title VII employment
discrimination claim if there is unchallenged objective evidence
that s/he did not possess the minimal qualifications for the position
plaintiff sought to obtain or retain. In this respect at least,
requirements under Price Waterhouse do not differ from those of
McDonnell Douglas.

In the usual case, the issue of basic qualification will not
arise until the summary judgment stage, following discovery and
fact-finding, because it will ordinarily be a question of fact. The
issue will turn on whether plaintiff is able to perform or has
satisfactorily performed the job, an issue that entails a subjective

4
The government cites Berquist v. Washington Mutual
Bank, 500 F.3d 344, 356 (5th Cir. 2007), in support of this
proposition, but that case involved a claim under the Age
Discrimination in Employment Act (“ADEA”) and did not
explicitly distinguish between “pretext” discrimination cases and
“mixed-motive” discrimination cases. It does, however, suggest
that in a mixed-motive ADEA case a plaintiff would need to show
that s/he is qualified to do his or her job.

15
evaluation to be evaluated by the factfinder. It is only in the rare
mixed-motive case that plaintiff’s lack of qualification to do the job
will be capable of objective determination before discovery.

Our holding today is necessarily narrow. We merely hold
that in a mixed-motive employment discrimination case a plaintiff
who does not possess the objective baseline qualifications to do
his/her job will not be entitled to avoid dismissal.

This involves inquiry only into the bare minimum
requirement necessary to perform the job at issue. Typically, this
minimum requirement will take the form of some type of licensing
requirement, such as a medical, law, or pilot’s license, or an
analogous requirement measured by an external or independent
body rather than the court or the jury. This requirement comports
with the purpose of the prima facie case as discussed by the
Supreme Court in Texas Department of Community Affairs v.
Burdine, 450 U.S. 248, 254 (1981), insofar as it will eliminate the
“most common nondiscriminatory reason[] for the plaintiff’s
rejection” – lack of minimum baseline qualification. We caution
that we are not imposing a requirement that mixed-motive plaintiffs
show that they were subjectively qualified for their jobs, i.e.,
performed their jobs well. Rather, we speak only in terms of an
absolute minimum requirement of qualification, best characterized
in those circumstances that require a license or a similar
prerequisite in order to perform the job.

4. Whether Makky was Objectively Minimally Qualified

In this case, we need not dwell on when or how a plaintiff’s
qualification for an objective requirement for the position at issue
should or will be raised because Makky included in his complaint
the fact that in January 2005 the TSA suspended his security
clearance. Although the suspension was not a final decision, it
nevertheless rendered Makky “ineligible for access to National
Security Information,” App. at 117, and therefore it is not relevant
that the decision was not final. Makky does not dispute that his
position required him to have access to National Security
Information. The lack of a security clearance in a position such as
Makky’s is akin to the lack of a license in a position such as a

16
medical doctor because without a security clearance Makky’s
subjective qualifications are irrelevant.5 A security clearance is the
minimum requirement needed to hold Makky’s position. Thus, as
of January 2005, when Makky’s clearance was suspended, he was
not qualified on the most basic level to perform his job.

As we noted earlier, Makky acknowledges that we cannot
review the decision to deny his security clearance. Rather, Makky
claims that he was discriminated against in September 2005 when
he was suspended without pay. We need not decide whether a
plaintiff would be entitled to prevail on a claim of employment
discrimination for the period following the adverse employment
action of suspension without pay until there is a final decision on
that employee’s entitlement to security clearance because Makky
was not qualified to do his job as of January 2005, when he lost
access to National Security Information.

Makky also argues that the decision to suspend him without
pay in September 2005 was discriminatory because TSA could
have transferred him to a different position not requiring access to
National Security Information. We do not accept his contention
that TSA could have transferred him rather than suspending him
without pay. TSA had no legal obligation to do so.

Therefore, we will affirm the District Court’s decision
dismissing Makky’s claim for employment discrimination, albeit
for slightly different reasons.

B. Due Process

Makky argues that TSA committed harmful procedural error
by denying him adequate notice of the underlying reasons for his
suspension in violation of its own directive, TSA Management

5
We note that a security clearance may not be as objective
a qualification as a medical license. Under Egan, however, the
grant or denial of a security clearance takes on an objective quality
because of the lack of judicial review of the underlying reasons for
the decision.

17
Directive (“MD”) No. 1100.75-3. Specifically, Makky claims that
he was entitled to receive information about the identity of the
foreign associates who were given as the reason for the ultimate
denial of his security clearance.

Under the regulations governing the due process rights of
TSA employees, the burden is on Makky to show that he suffered
harmful error, which is “[e]rror by the agency in the application of
its procedures that is likely to have caused the agency to reach a
conclusion different from the one it would have reached in the
absence or cure of the error.” 5 C.F.R. § 1201.56(c)(3) (2005).6

Makky cites King, 75 F.3d at 661, for the proposition that
the agency was required to give him notice of the reasons for the
clearance suspension and an “adequate opportunity to make a
meaningful reply . . . .” Although the King court applied the
requirements of the CSRA, 5 U.S.C. § 7513, Makky asserts that
those requirements are materially indistinguishable from MD No.
1100.75-3, the applicable TSA directive. In fact, the language of
the relevant provisions differ, as the directive governing the TSA,
MD No. 1100.75.3, pt. 6, sec. H.3.a.(1)(i) (“The employee should
be provided a copy of the material relied upon to support each
charge and specification with the letter.”), does not contain the
requirement that the employer give “specific reasons” as does 5
U.S.C. § 7513(b)(1) (“An employee against whom an action is
proposed is entitled to . . . written notice . . . stating the specific
reasons for the proposed action[.]”). Moreover, Appellees state that
the statutory notice provision, 5 U.S.C. § 7513, does not apply here
because TSA is exempted; therefore King and the other cases

6
Makky argues that the District Court should have applied
the harmful error standard used in Mercer v. Department of Health
& Human Services, 772 F.2d 856, 859 (Fed. Cir. 1985), i.e., that
the error “might have caused the agency to reach a conclusion
different than the one reached.” Mercer cited the 1985 version of
§ 1201.56(c)(3) which used the word “might,” but was later
amended to its current form, which uses the phrase “likely to have
caused.” Thus, Makky relies on an outdated version of the
applicable regulation.

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Makky cites do not apply. In short, Appellees argue that Makky
received all the notice he is owed.

In this case, it is not necessary for us to resolve whether §
7513 or MD No. 1100.75-3 applies, or whether the decisions of the
Federal Circuit (the court of original jurisdiction for claims of
procedural error under the CSRA, 5 U.S.C. § 7703(b)), in King, 75
F.3d 657, and Cheney, 479 F.3d 1343, apply here. Makky’s due
process claim is, at its heart, a claim that he did not receive proper
notice concerning his security clearance denial because the initial
notice he received did not state what associations with foreign
nationals he failed to report and/or had caused the concern; rather
the notice merely stated that he had failed to report associations
with foreign nationals. Makky had successfully mitigated all of the
other security concerns through his responses, but the information
about foreign associates was ultimately critical to the final decision
denying Makky’s security clearance.

The foreign associates were listed in a classified FBI report.
The TSA does not have the authority to release information that the
FBI has declared “classified,” particularly where, as here, Makky’s
security clearance had already been suspended at the time he sought
the classified information. See 50 U.S.C. § 435(a)(1) (stating that
“no employee in the executive branch . . . may be given access to
classified information by any department, agency, or office . . .
unless, based upon an appropriate background investigation, such
access is determined to be clearly consistent with the national
security interests of the United States”). See also Exec. Order No.
13,292, sec. 6.1(z), 68 Fed. Reg. 15,315, 15,332 (Mar. 28, 2003)
(restricting access to National Security Information to those who
have an appropriate clearance and a “Need-to-know” the
information, which is at the sole discretion of authorized holders of
the information). Because Makky did not have the requisite
security clearance at the time he sought the classified information,
TSA could not release that information to him. To conclude
otherwise would require us to review the merits of Makky’s
security clearance access, which is impermissible, see King, 75
F.3d at 662 (citing Egan, 484 U.S. at 530).

Makky contends that he should have had access to the

19
information in the FBI classified file that contained the information
about the foreign associates, because otherwise he was at a
complete loss on how to respond since the associates had never
been identified to him. Although the material was ultimately
released in January 2007, it was not until well after the suspension,
at a time that was too late to be meaningful. Makky states that if he
had access to the material earlier he could have contested the TSA’s
allegations. The government argues that this case is similar to
King, where the court held that plaintiff, who knew his medical
status was at issue, was given adequate notice. Makky also could
have focused his responses to his foreign associates. After all, they
could hardly have numbered in the thousands.

Although there is some appeal to Makky’s argument, the fact
remains that the information Makky sought was classified 7 and he
did not possess the proper security clearance to gain access to that
information. Therefore, we cannot hold that the TSA should have
released the classified information to Makky in violation of the
relevant statutory and executive authority. The District Court
properly affirmed the AJ’s holding that Makky was given adequate
due process.

IV.

Conclusion

For the foregoing reasons, we will affirm the judgment of
the District Court dismissing Makky’s Title VII employment

7
Makky argues that there is no record evidence that the
material was classified at the time he requested it. He bases that
argument on the fact that the government ultimately disclosed the
material on January 5, 2007, and his claim that there is no record
evidence to support the contention that it was classified prior to
that date. However, there is record evidence to support the
conclusion that the material was classified, specifically the
assertions contained within the TSA’s final written notice denying
Makky’s security clearance. See App. at 119-21 (referring to the
information regarding foreign associates as classified material).

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discrimination claim and granting summary judgment in favor of
Appellees on his due process claim.

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