Horsey v. United States Department of State

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

)
JOHN E. HORSEY, )
)
Plaintiff, )
)
v. ) No. 14-cv-1568 (KBJ)
)
U.S. DEPARTMENT OF STATE, et al., )
)
Defendants. )
)

MEMORANDUM OPINION

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 complaint under Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; this Court liberally construes

Horsey’s pleading as asserting four claims against the State Department: (1) that it

subjected him to a hostile work environment (see Compl. ¶¶ 57–59), (2) that it

discriminated against him by repeatedly ordering him to undergo a psychological

evaluation and refusing his request for the presence of a union representative during

that evaluation (see id. ¶ 21), (3) that it retaliated against him by revoking his security
clearance (see id. ¶ 46), and (4) that it discriminated and retaliated against him by

proposing to suspend him indefinitely without pay (see id. ¶¶ 31–32).

Before this Court at present is the State Department’s motion to dismiss Horsey’s

complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim

upon which relief can be granted. (See Def.’s Mot. to Dismiss (“Def.’s Mot.”), ECF

No. 11, at 1.) 1 Defendant’s primary argument is that Horsey has failed to exhaust all

administrative remedies with respect to his discrimination claims, and that the Court is

precluded from reviewing his retaliation claims under the doctrine the Supreme Court

established in Department of Navy v. Egan, 484 U.S. 518 (1988). (See Def.’s Mem. in

Supp. of Def.’s Mot. (“Def.’s Mem.”), ECF No. 11–1, at 1–2.) Defendant’s motion also

maintains that Horsey has made insufficient allegations of fact with respect to his

hostile work environment claim. (See id.)

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 precludes 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

1
Page numbers herein refer to those that the Court’s electronic filing system automatically assigns.

2
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 facts 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 “in order to ascertain to what

extent [he] might have an anger management problem.” (Id. ¶ 13.) Horsey declined the

counseling on the advice of a union representative. (See id.)

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

3
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 be 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

2
The complaint asserts that Horsey “reasonably believed that the examination could result in
disciplinary action against him” (id. ¶ 15), and as a result, he consulted “the Negotiated Labor –
Management Agreement between the American Federation of Government Employees (AFGE) Local
1534 and United States Department of State Handbook” (id. ¶ 16), among other sources (id. ¶¶ 16–19).
“Based on the information he [thus] obtained, [Horsey] maintained his right to representation at the
medical review and evaluation and . . . refused to waive this right[.]” (Id. ¶ 20.)

4
 characterized by his co-worker Mr. Shane Wardel accusing Mr. Horsey of
calling Mr. Wardel a “cracker.”

Mr. Horsey and Mr. Wardel are co-workers 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 problem 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 discriminated against Mr. Horsey because of his race.

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 2 nd

Letter”).) This letter also advised Horsey that his “failure to cooperate . . . [would]

result in a recommendation to suspend [his] security clearance . . . based on [his]

unwillingness to complete the security clearance process.” (August 2 nd 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

5
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 “proposal 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 leave 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.

6
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 Merit

Systems Protection Board’s (“MSPB’s”) subsequent affirmance of the suspension

determination. The MSPB’s decision became final on August 5, 2014. (See Def.’s

Mem., Ex. 4 (Initial Decision) at 13–14.)

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 of 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

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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 Federal Rule of Civil Procedure 12(b)(6), a party may move to

dismiss a complaint against it on the grounds that it “fail[s] to state a claim upon which

relief can be granted[.]” Fed. R. Civ. P. 12(b)(6). “Although ‘detailed factual

allegations’ are not necessary to withstand a Rule 12(b)(6) motion to dismiss for failure

to state a claim, a plaintiff must furnish ‘more than labels and conclusions’ or ‘a

formulaic recitation of the elements of a cause of action.’” Busby v. Capital One, N.A.,

932 F. Supp. 2d 114, 133 (D.D.C. 2013) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.

554, 555 (2007)). “[M]ere conclusory statements” are not enough to make out a cause

of action against a defendant. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To survive

a motion to dismiss, a complaint must contain sufficient factual matter, accepted as

true, to “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570.

Of course, this Court is mindful that Horsey is proceeding in this matter pro se,

8
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 plaintiff must meet his burden of stating a claim

for relief. See Budik v. Dartmouth–Hitchcock Med. Ctr., 937 F. Supp. 2d 5, 11 (D.D.C.

2013).

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 make

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

9
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.” 29 C.F.R. § 1614.105(a)(1); see Rafi v.

Sebelius, No. 08-5384, 2010 WL 2162053, at *1 (D.C. Cir. May 24, 2010) (affirming

dismissal of plaintiff’s Title VII claims because plaintiff contacted counselor outside of

45-day period). If the matter is not resolved informally, the employee may then file a

formal complaint with the agency, see 29 C.F.R. §§ 1614.105(d), 1614.106(a); however,

“he or she must do so within 90 days of receipt of the agency’s final decision ‘or after a

complaint has been pending for at least 180 days.’” Crawford v. Johnson, No. 14-cv-

436, 2016 WL 777910, at *4 (D.D.C. Feb. 26, 2016) (quoting Koch v. Walter, 935 F.

Supp. 2d 143, 149 (D.D.C. 2013)).

10
 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

denied a judicial audience[,]” id. at 13 (internal quotation marks and citation omitted).

“A 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be

granted is the appropriate vehicle to challenge an alleged failure to exhaust

administrative remedies under Title VII[,]” Blue v. Jackson, 860 F. Supp. 2d 67, 72

(D.D.C. 2012) (internal citation and quotation marks omitted), and in evaluating such a

motion, the court “may consider only the facts alleged in the complaint, any documents

either attached to or incorporated in the complaint and matters of which [a court] may

take judicial notice.” Bowe-Connor v. Shinseki, 845 F. Supp. 2d 77, 85 (D.D.C. 2012)

(quoting Equal Emp’t Opportunity Comm’n v. St. Francis Xavier Parochial Sch., 117

F.3d 621, 624–25 n.3 (D.C. Cir. 1997)).

Significantly for present purposes, the administrative exhaustion requirement

functions like a statute of limitations, see Crawford, 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

11
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 construction 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 identifies 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.

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 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 abuse must be “sufficiently severe or pervasive to

alter the conditions of [his] employment and create an abusive working

environment.” Baloch, 550 F.3d at 1201; accord Brooks v. Grundmann, 748 F.3d 1273,

1276 (D.C. Cir. 2014); Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 577 (D.C. Cir. 2013);

Baird v. Gotbaum, 662 F.3d 1246, 1250 (D.C. Cir. 2011). Given this high hurdle, even

the liberal interpretation that is afforded to pro se pleadings cannot save Horsey’s

hostile work environment claim, which contains no clear statement regarding the

particular facts and circumstances that support Horsey’s bald contention that he was

subjected to a hostile work environment. (See Compl. ¶¶ 6–50.) Instead, the section of

the complaint that pertains to the hostile work environment claim simply “reallege[s]

and incorporate[s]” all the previous paragraphs of the complaint (id. ¶ 57) without

further explanation, and the brief Horsey filed in opposition to Defendant’s motion to

dismiss also fails to highlight the allegations of fact in the complaint that support the

hostile work environment contention.

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

13
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 post 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 Allegedly 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

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Compl. ¶¶ 13, 21, 23; Def.’s Mem. at 8; see also Compl. ¶ 21 (“Plaintiff felt that he was

. . . the victim of unlawful discrimination both because of the referral itself and because

of the refusal of representation . . .”).) And the complaint specifically alleges that

Horsey contacted an EEOC counselor in “June 2011” with respect to the referrals of

February 18, 2011, and May 6, 2011. (See Compl. ¶ 22.) 3 This EEOC contact was well

outside the 45-day window that the Title VII regulations prescribe. 29 C.F.R.

§ 1614.105(a)(1). Furthermore, the complaint alleges that Horsey’s next contact with

an EEO Counselor occurred on January 12, 2012 (see Compl. ¶ 32), which is 163 days

after the alleged referral on August 2, 2011 (see Compl. ¶ 23)—far beyond the

applicable 45-day reporting period.

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 at 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

3
Documents outside the four corners of the complaint confirm Horsey’s estimation of the timing—the
EEO Counselor’s Report indicates that initial contact took place on June 27, 2011. (See Def.’s Mem. at
8 (citing June 2011 EEO Counselor’s Report, Ex. 5 to Def.’s Mem., ECF No. 11-4, at 1)). For the
purpose of the instant motion to dismiss, however, this Court relies solely upon the complaint’s more
general (but nonetheless accurate) factual allegation.

15
(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 unlawful retaliation (see Compl. ¶ 46)—should be

dismissed per the Supreme Court’s holding in Department of Navy v. Egan, 484 U.S.

518 (1988). In Egan, the Supreme Court held 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.” Egan, 484

4
The State Department also initially argued that Horsey failed to file a timely appeal of the MSPB’s
final ruling, which had affirmed the agency’s decision to place Plaintiff on indefinite suspension
without pay. (See Def.’s Mem. at 8-10.) However, the agency subsequently withdrew this argument
after determining that the delay was due to Horsey’s in forma pauperis status. (See Def.’s Reply, ECF
No. 15, at 4). In light of this withdrawal, Defendant’s arguments regarding the untimely appeal were
not considered by the Court when it assessed the merits of Defendant’s exhaustion contention. See,
e.g., WildEarth Guardians v. Salazar, 670 F. Supp. 2d 1, 7 n.6 (D.D.C. 2009).

16
U.S. at 529. According to the Egan Court, “[i]t is not reasonably possible for an

outside nonexpert body to review the substance of a judgment [about security

clearance] and to decide whether the agency should have been able to make the

necessary affirmative prediction with confidence[,]” id.; therefore, an agency’s decision

to deny or revoke an employee’s security clearance is precluded from judicial review,

see id. at 529. The D.C. Circuit has long applied Egan’s preclusion principle not only

to bar lawsuits that seek to challenge security clearance determinations directly, see,

e.g., Ryan v. Reno, 168 F.3d 520, 523 (D.C. Cir. 1999) (holding that a Department of

Justice decision that job applicants were ineligible for security clearances was not

reviewable); U.S. Info. Agency v. Krc, 905 F.2d 389, 395–96 (D.C. Cir. 1990) (finding

defendant’s refusal to clear a foreign service officer for overseas postings

unreviewable), but also to prevent the progression of employment discrimination and

retaliation actions that are, at bottom, based on an alleged improper denial or revocation

of security clearance, see Bennett v. Chertoff, 425 F.3d 999, 1001 (D.C. Cir. 2005)

(“[E]mployment actions based on denial of security clearance are not subject to judicial

review, including under Title VII”); Ryan, 168 F.3d at 524 (D.C. Cir. 1999) (holding

that “under Egan an adverse employment action based on denial or revocation of a

security clearance is not actionable under Title VII”). And according to the State

Department here, “review of [Horsey’s] . . . claim[] would constitute an especially

pernicious violation of Egan, because it would intrude into Executive Branch security

clearance decisions.” (See Def.’s Mem. at 2.)

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

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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.

1988) (holding that the MSPB has the authority to review an agency’s reasons for a

security clearance determination), rev’d, 484 U.S. 518 (1988). But the Supreme Court

overruled that decision as mentioned, and it expressly concluded that the substance of

an agency’s decision to deny or revoke security clearances is not reviewable. Horsey’s

citations to excerpts from an “Adjudicative Guideline” that he claims the State

Department violated when it revoked his security clearance (see Compl. ¶¶ 41, 44), as

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well his contention that the Department’s analysis was inadequate or inaccurate (see id.

¶¶ 40, 42–45), are similarly inapposite, and if anything, they simply serve to underscore

that he is seeking to have this Court “second-guess[] the agency’s national security

determination[]” in exactly the same manner that Egan prohibits. See Bland v. Johnson,

66 F. Supp. 3d 69, 73 (D.D.C. 2014) (“In order for a court to find that discrimination or

retaliation, rather than an agency’s stated security clearance concerns, was the reason

for an adverse employment action, the court would have to inquire into and pass

judgment on the validity of the agency’s security determinations, which Egan does not

permit the court to do.”).

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

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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 complaint in June 2011 and for his repeated assertions with respect to

his Weingarten rights[.]” (Compl. ¶ 32 (emphasis added).) 5 Defendant focuses 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

5
“Weingarten rights” refers to the Supreme Court’s decision in NLRB v. J. Weingarten, Inc., 420 U.S.
251 (1975), in which the Court upheld the National Labor Relations Board’s determination that, under
section 7 of the National Labor Relations Act, 29 U.S.C. § 157, an employee represented by a union is
entitled to union representation during an interview that the employee reasonably believes will result in
discipline. See Weingarten, 420 U.S. at 251. In this case, Plaintiff appears to assert that these rights
extend to the medical evaluations he was ordered to undergo. (See Compl. ¶ 15.)

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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 actions” (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 clearance 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

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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 hostile 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 several respects, and Defendant’s motion to dismiss the complaint must be

GRANTED. Some of Horsey’s claims—i.e., the discrimination claims based on each

of the medical evaluation referrals and his challenge to security clearance revocation—

are time-barred or precluded, and, therefore, fail as a matter of law. But his contention

that he was subjected to a hostile work environment and suffered retaliation and

discrimination on the basis of his proposed indefinite suspension are merely

insufficiently pled, not legally barred. Therefore, as stated in the accompanying order,

the complaint will be dismissed, but Horsey will have 21 days within which to file an

amended complaint with respect to his hostile work environment and indefinite

suspension claims.

DATE: March 22, 2016 Ketanji Brown Jackson
KETANJI BROWN JACKSON
United States District Judge

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