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Makky v. Chertoff

May 31, 2007

DR. WAGIH H. MAKKY, PLAINTIFF,
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; AND FEDERAL BUREAU OF INVESTIGATION, DEFENDANTS.



The opinion of the court was delivered by: Irenas, Senior District Judge

OPINION

This is an employment discrimination suit filed by Dr. Wagih H. Makky ("Dr. Makky"), a former employee of the Transportation Security Administration ("TSA"). Dr. Makky, an American citizen of Egyptian descent who is an Arab and a Muslim, asserts that he was subjected to persistent prejudice and derogatory comments on account of his national origin and religion, in violation of Title VII, 42 U.S.C. § 2000e-16(a), and the Civil Service Reform Act of 1978 ("CSRA"), 5 U.S.C. § 2303(b). Specifically, Dr. Makky claims employment discrimination under Title VII (Count One); employment discrimination under the CSRA (Count Two); violation of the procedural due process protections of the Fifth Amendment (Count Three); violation of agency procedures under the CSRA (Count Four); retaliation under the CSRA (Count Five); violation of the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552(a)(3)(A) (Count Six); and violation of the Privacy Act, 5 U.S.C. § 552a(d)(1) (Count Seven).

Defendants move to dismiss Counts One, Two and the claim of discriminatory bias in Count Three of the Complaint for lack of subject matter jurisdiction. Defendants move for summary judgment on all other counts.

I.

In 1978, Dr. Makky moved to the United States from Egypt. He married a U.S. citizen in 1981, and received a Ph.D. in 1983. In 1987 he became a U.S. citizen. Prior to working for the TSA, Dr. Makky was an Associate Professor at the University of Illinois, and a scientist at government research facilities and at the Naval Oceans Systems Center. On September 28, 1990, Dr. Makky was hired by the Federal Aviation Administration ("FAA"), as an Electronics Engineer in the Aviation Security Research and Development Lab in Atlantic City. (Def. Exh. 4, ¶1).*fn1 He was given a "secret" level security clearance.*fn2

In March, 2002, approximately six months after September 11th, Dr. Makky submitted a routine security clearance renewal.*fn3 The following October, 2002, Mr. Robin Burke became the Deputy Administrator in charge of the Security Lab, and thus, Dr. Makky's supervisor. (Compl. ¶42). On his initial visit to the Security Lab, Mr. Burke met with only one non-supervisory employee individually - Dr. Makky. In that meeting, Mr. Burke allegedly asked Dr. Makky about his national origin, and thereafter inquired into Dr. Makky's security clearance renewal application, including obtaining Dr. Makky's FBI file in early 2003.

On March 19, 2003, Dr. Makky was placed on administrative leave. (Def. Ex. 8, p.2). On March 28, 2003, Mr. Burke, on behalf of the TSA, sent Dr. Makky a letter indicating that he was placed on paid administrative leave due to questions concerning his security clearance. (Def. Ex. 4, ¶3). That August, Mr. Burke asked Dr. Makky to submit another security clearance renewal. Dr. Makky complied.

While it is unclear from the record what occurred during the interim, on January 19, 2005,*fn4 the Office of Transportation, Vetting & Credentials ("OTVC") issued an Initial Determination to Dr. Makky notifying him that a non-final determination was made that his access to National Security Information was denied. (Def. Ex. 4, ¶4). The letter was sent from Joy S. Fairtile, Associate Deputy Director of the OTVC, and listed the specific findings made by the OTVC that supported its decision.*fn5 (Def. Ex. 5).

Upon Dr. Makky's request, the Office of Personnel Management ("OPM") granted him access to 136 pages of his 148-page background investigation file upon which the initial determination was based. (Baker Supp. Decl., ¶8). The OPM referred ten additional pages to the FBI for review, as these documents originated with the FBI. (Id. at ¶10). The FBI ultimately granted Dr. Makky access to seven pages with redactions, and withheld three pages. (Def. Ex. 10, p.3). Another document, labeled a "processing document" and solely containing personal information about Dr. Makky, including his date of birth, social security number, height, weight, etc., was not disclosed until March 27, 2007. (Baker Supp. Decl., ¶11 and attachment). The final document, a generic cover sheet for documents containing national security information deemed "secret" was not disclosed because it was not part of Dr. Makky's background investigative file and thus not responsive to his document request. (Id. at ¶12).

On April 18, 2005, Dr. Makky responded to the Initial Determination in writing. (Def. Ex. 4, ¶5). The OTVC, in turn, sent Dr. Makky a Notice of Proposed Suspension for an Indefinite Period on August 8, 2005, for failure to maintain eligibility for access to national security information. (Def. Ex. 4, ¶6; Def. Ex. 8). This notice informed him of the proposal that he be suspended indefinitely without pay pending a final determination because it was a condition of his employment that he have a top secret security clearance. On August 24, 2005, Makky responded in writing, through counsel, to the August 8 Notice. (Def. Ex. 4, ¶7). He also responded orally, through a presentation to TSA officials including Mr. Burke. (Id.). On September 7, 2005, the OTVC imposed the suspension for an indefinite period, effective as of September 8, 2005. (Def. Ex. 4, ¶8; Def. Ex. 9). The decision was signed by Mr. Burke. (Def. Ex. 9).

In further response to the Initial Determination, Dr. Makky made an oral presentation on December 16, 2005, (Def. Ex. 4, ¶5), and submitted an additional written response to the Initial Determination on December 27, 2005. (Id.). On March 7, 2006, the TSA issued a Final Denial of Security Clearance, upholding its initial decision to deny security clearance.*fn6 (Def. Ex. 6). It was signed by Douglas I. Callen, Chief Security Officer. (Id.). On August 18, 2006, DHS sent Dr. Makky a letter indicating that the DHS Security Appeals Panel unanimously concluded that he did not meet the standard for access to classified information. (Def. Ex. 7).

Dr. Makky appealed his suspension to the Merit Systems Protection Board ("MSPB" or "the Board") on October 5, 2005. (Def. Ex. 1). Administrative Judge Michael H. Garrety ("AJ Garrety") held a hearing on January 13, 2006, and on April 4, 2006, issued an Initial Decision that affirmed the Department of Homeland Security's actions. (Id.). On May 9, 2006, Dr. Makky petitioned the full Board for a review of the AJ's decision. (Compl. ¶101). The Board denied Dr. Makky's petition on August 15, 2006, and adopted the AJ's decision as the final decision of the Board. (Compl. ¶102). On September 14, 2006, Dr. Makky commenced this action.

II.

This Court has jurisdiction to review the determinations of the MSPB because this is a "mixed case," one that contains allegations of employment discrimination as well as claims of procedural violations. 5 U.S.C. § 7703(b)(2).*fn7

Dr. Makky advocates for de novo review of both his discrimination and non-discrimination claims, but cites no case law in support of his position. While the Third Circuit has not determined the standard of review in mixed cases, other circuits have uniformly held that a bifurcated standard of review applies, where discrimination claims are reviewed de novo, and other claims are reviewed on the administrative record. See Kelliher v. Veneman, 313 F.3d 1270, 1275 (11th Cir. 2002)("We have found no case law in this or any other Circuit that would require a de novo review of claims other than discrimination claims presented in a 'mixed case.' Courts that have addressed the issue uniformly apply the de novo standard of review only to the discrimination claims while other claims adjudicated before the MSPB are reviewed on the record."); Carr v. Reno, 23 F.3d 525, 528 (D.C. Cir. 1994); Mason v. Frank, 32 F.3d 315, 317 (8th Cir. 1994); Williams v. Rice, 983 F.2d 177, 179-80 (10th Cir. 1993); Morales v. Merit Sys. Protection Bd., 932 F.2d 800, 802 (9th Cir. 1991); Johnson v. Burnley, 887 F.2d 471, 474 n.1 (4th Cir. 1989); Williams v. Dept. of the Army, 715 F.2d 1485, 1488 (Fed. Cir. 1983).*fn8

Morever, 5 U.S.C. § 7703(c) expressly requires that the Court of Appeals for the Federal Circuit review non-discrimination claims on the administrative record. We see no logical basis for adopting a different standard for the same claims simply because the claims were filed together with discrimination claims in district court. Thus, in reviewing the non-discrimination claims, we are limited to review of the administrative record and must affirm the MSPB decision unless it is: "(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence . . ." 5 U.S.C. § 7703(c). We review discrimination claims de novo. Id.

When considering Defendants' motions to dismiss, the Court must accept as true all well-pleaded allegations in the Complaint and view them in the light most favorable to Plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994). The Court must accept as true any and all reasonable inferences derived from those facts. See Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 (3d Cir. 1994). In addition to the allegations of the Complaint, the Court may consider documents attached to or specifically referenced in the Complaint, and matters of public record, without converting the motion to dismiss into one for summary judgment. See Mele v. Federal Reserve Bank of N.Y., 359 F.3d 251, 255 n.5 (3d Cir. 2004); Sentinel Trust Co. v. Universal Bonding Ins. Co., 316 F.3d 213, 216 (3d Cir. 2003).

III.

Before the Court is Defendants' motion to dismiss Count One of the Complaint, which alleges national origin and religious discrimination under Title VII based upon the TSA's suspension of Dr. Makky without pay.*fn9 Defendants contend that we do not have jurisdiction to review the denial of Dr. Makky's security clearance, and thus we cannot review his termination based upon the denial of clearance. Dr. Makky, however, does not contest the security clearance determination.*fn10 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; it could have permitted Dr. Makky to remain on administrative leave or transferred him to a position that does not require a security clearance. Thus, Dr. Makky argues that the Court has jurisdiction because it need not review the security clearance determination to review the claims of discrimination. See Stehney v. Perry, 101 F.3d 925, 932 (3d Cir. 1996).

Dr. Makky urges the Court to apply a mixed-motive analysis to determine that race and/or national origin was a motivating factor in his suspension.*fn11 We note first, however, that Dr. Makky's discrimination claims do not survive under the McDonnell Douglas pretext framework. See McDonnell Douglas v. Green, 411 U.S. 792 (1973); Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). To establish a prima facie case under McDonnell Douglas, Dr. Makky must show: "(1) that he is a member of a protected class; (2) that he is qualified for the position; (3) that he was either not hired or fired from that position; (4) under circumstances that give rise to an inference of unlawful discrimination such as might occur when the position is filled by a person not of the protected class." Jones v. School Dist., 198 F.3d 403, 410-11 (3d Cir. 1999)(internal quotations omitted).

Dr. Makky cannot establish prong two, that he was qualified for the position. It is undisputed that Dr. Makky's former position, Electronics Engineer, requires a security clearance. Therefore, because his security clearance was revoked by the January 19, 2005 OTVC Initial Determination, he was not "qualified" for the position from which he was suspended.

Similarly, Dr. Makky cannot state a claim under the Price Waterhouse mixed-motive/direct evidence framework. "Under Price Waterhouse, when [a] plaintiff alleging unlawful termination presents 'direct evidence' that his [religion and national origin] was a substantial factor in the decision to fire him, the burden of persuasion on the issue of causation shifts, and the employer must prove that it would have fired the plaintiff even if it had not considered his [religion and national origin]." Fakete v. Aetna, Inc., 308 F.3d 335, 338 (3d Cir. 2002). A defendant who successfully asserts an affirmative defense may still be subject to declaratory relief, injunctive relief, and attorney's fees and costs. See Desert Palace, Inc. v. Costa, 539 U.S. 90, 94-95 (2003); 42 U.S.C. § 2000e-5(g)(2)(B).

Under this theory, Dr. Makky must show that his religion or national origin was a motivating factor in Mr. Burke's decision to indefinitely suspend him without pay after the OTVC issued the Initial Determination to revoke his security clearance. Thus, the issue can be framed as to what action the TSA could have taken with respect to Dr. Makky between the Initial Determination on January 19, 2005, which led to his suspension on August 8, 2005, and the August 15, 2006, final decision of the MSPC, which is not challenged before this Court.

In undertaking a mixed-motive analysis, the Court must look to the alleged non-discriminatory reason, as well as the alleged discriminatory reason for the adverse employment action, in order to determine whether the latter was a motivating factor. While this is feasible in most circumstances, the Court cannot conduct this analysis when the non-discriminatory reason proffered by the Defendants is that the Plaintiff is not qualified for the position because he cannot maintain the required security clearance. Under Egan and its progeny, a court cannot review national security determinations.*fn12

Morever, the decision to suspend Dr. Makky was, at a minimum, permitted by internal directive, if not suggested or even required. This directive, a TSA memorandum from Richard Whitford, Assistant Administrator for Human Resources, (the "Whitford Memorandum" or "the Memorandum") dated April 20, 2004, discusses the use of indefinite suspensions. The Memorandum addresses TSA Management Directive 1100.75-1, which provides that "an employee may be suspended indefinitely for matters in which . . . [the] TSA is conducting an investigation of conduct that it reasonably believes was committed by the employee in question and is so serious that if it proves to be true, the employee's continued presence at the worksite would represent a threat to life, property, safety or the effective operation of workplace." (Def. Ex. 3)(emphasis added).

In clarifying the meaning of "conducting an investigation," the Memorandum notes that the phrase includes a wide range of circumstances. It states that "if management determines that the employee should not be allowed to remain in the workplace in any capacity pending the outcome of the matter, management should immediately initiate action proposing to suspend the employee indefinitely[.]" (Id.).

Listed in the Memorandum are three examples of situations in which indefinite suspensions are appropriate. The first is "where an employee's security clearance has been denied or revoked and the matter is pending further review or appeal." (Id.). It explains, in a footnote, that in a situation calling for a suspension, the employee may be placed on administrative leave for "no more days than required to effect an indefinite suspension." (Id.). Thus, the TSA's placement of Dr. Makky on indefinite suspension was in accordance with the policy outlined in the Whitford Memorandum.*fn13

The alternative offered by Dr. Makky, that Mr. Burke could have allowed him to remain on administrative leave pending a final determination by the Board, is discredited by the Memorandum because the initial determination gave the TSA "apparently reliable information" that Dr. Makky's continued presence at work could "threaten workplace safety or security, or effective operations." (Id.). Thus, Dr. Makky should have been placed on administrative leave, if at all, for no more days than required for the TSA to effect the indefinite suspension. (Def. Ex. 3).

Therefore, what remains is the assertion that Mr. Burke's decision to suspend Dr. Makky, rather than transfer him to a position not requiring a security clearance, was motivated by Mr. Burke's discriminatory animus. It is not clear from the record whether transferring Dr. Makky was a viable option.*fn14 However, even if Mr. Burke should have transferred Dr. Makky instead of suspending him, the Court is barred from analyzing this decision because it cannot review the propriety of the non-discriminatory reason for the action, i.e., the revocation of Dr. Makky's security clearance. ...


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