In a partial victory and partial reversal for a federal employee who had prevailed at trial, the D.C. Circuit, in a divided opinion, addresses several issues that arise when “security issues” allegedly are relevant to the determination of an employment discrimination dispute.
The plaintiff was an FBI agent who was assigned to the US Embassy in Riyadh (Saudi Arabia), and he had converted to Islam. His supervisor initiated a bogus investigation against him, and the allegations were determined to be unfounded. He brought a Title VII retaliation claim based on the bogus investigation which he alleged was only brought on the basis of his race, and the jury found in his favor. In the district court, the case was assigned to Judge Huvelle and Magistrate Judge Facciola.
On the government’s appeal, the D.C. Circuit agreed with the government that the verdict had to be set aside, because the evidence as presented improperly allowed the jury to second-guess the security decisions made by the FBI.
However, the majority opinion did allow the plaintiff to pursue his retaliation claims based on a narrower evidentiary approach, i.e., without getting into “unreviewable security decisions.” Judge Kavanaugh’s dissent argues that under the Supreme Court’s Egan decision, even that would still be improper.
Some excerpts from the majority and dissenting opinions follow.
Rattigan v. Holder, No. 10-5014 (D.C. Cir. June 3, 2011)
Appeal from the United States District Court for the District of Columbia (No. 1:04-cv-02009)
Charles W. Scarborough, Attorney, U.S. Department of Justice, argued the cause for appellant. With him on the briefs was Ronald C. Machen Jr., U.S. Attorney, and Marleigh D. Dover, Assistant Director. R. Craig Lawrence, Assistant U.S. Attorney, entered an appearance.
Jonathan C. Moore argued the cause for appellee. With him on the brief was James R. Klimaski.
Before: ROGERS, TATEL, and KAVANAUGH, Circuit Judges.
Opinion for the Court filed by Circuit Judge TATEL.
Dissenting opinion filed by Circuit Judge KAVANAUGH.
TATEL, Circuit Judge:
In this case, a jury found that the FBI violated Title VII of the Civil Rights Act of 1964 by launching a security investigation of plaintiff, then an agent in its Saudi Arabia office, in retaliation for his filing of a discrimination complaint. On appeal, the government argues that plaintiff’s claim is nonjusticiable under Supreme Court and D.C. Circuit case law because adjudicating Title VII liability called for the jury to second-guess security judgments committed by law to FBI discretion. Because we agree that plaintiff’s case, as presented to the jury, invited just such second-guessing, we vacate the judgment in plaintiff’s favor. But because we also believe that plaintiff might be able to pursue his retaliation claim without calling into question unreviewable security decisions, we remand for further proceedings consistent with this opinion. . . .
. . . Rattigan filed suit in 2004, raising several claims of unlawful discrimination and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. In a series of rulings, the district court dismissed or granted summary judgment to the government as to all claims save one: Rattigan’s contention that the FBI retaliated against him “for complaining that OIO officials had discriminated against him on the basis of his race and national origin” by subjecting him to a security clearance investigation. See Rattigan v. Holder (“Rattigan II”), 636 F. Supp. 2d 89, 90 (D.D.C. 2009) (summarizing this procedural history). On the eve of trial, the government filed a motion to dismiss, arguing for the first time that Rattigan’s retaliation claim was nonjusticiable because, according to the government, it would require the jury to second-guess national security judgments committed by law to FBI discretion. The district court denied the motion. See id. at 91, 95. Following trial, the jury returned a verdict for Rattigan, and the district court denied the government’s post-trial motions.
The government now appeals, focusing primarily on its argument that Rattigan’s Title VII claim is nonjusticiable. . . .
. . . . In contrast to the claims raised in Ryan, Bennett, and Egan itself, Rattigan’s claim implicates neither the denial nor revocation of his security clearance nor the loss of employment resulting from such action. After all, the FBI left Rattigan’s clearance in place and he remains employed by that agency. Instead, Rattigan argues that his OIO supervisors referred him for a security investigation in order to retaliate against him because he filed Title VII claims and that this referral set in motion a several month long investigation by the FBI’s Security Division that caused him serious emotional distress and damaged his reputation. For that reason, the precise issue presented by this case is one of first impression. . . .
. . . . Based on the foregoing, the government would have us not only set aside the verdict but also order the case dismissed. But given our conclusion that challenges to OIO referral decisions fall outside Egan, and given that, as we shall explain, the OIO referral itself can qualify as a materially adverse action under Title VII, Rattigan’s case can proceed so long as the jury is not put in the position of second-guessing the Security Division. Dismissing the complaint is thus unwarranted because it would deprive Rattigan of his cause of action due to evidentiary rulings and jury instructions we have now concluded were flawed. See, e.g., United States v. Science Applications Int’l Corp., 626 F.3d 1257, 1261 (D.C. Cir. 2010) (vacating the judgment and remanding for a new trial because flawed jury instruction misstated the standard for scienter under the False Claims Act).
We begin with the question of whether the OIO referral can qualify as a materially adverse action under Title VII. As the Supreme Court recently explained, Title VII’s retaliation provision “cover[s] a broad range of employer conduct” that extends beyond the statute’s substantive antidiscrimination provision. Thompson v. N. Am. Stainless, LP, __U.S.__, 131 S. Ct. 863, 868 (2011); see also Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006) (holding that the federal government faces the same standards of liability for retaliation under Title VII as a private employer). In the retaliation context, a materially adverse action is one that “could well dissuade a reasonable worker from making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006) (internal quotation marks omitted). Whether a particular adverse action satisfies the materiality threshold is generally a jury question, with our role limited to determining whether, viewing the evidence in the light most favorable to the plaintiff, a reasonable jury could find the action materially adverse. See Pardo-Kronemann v. Donovan, 601 F.3d 599, 607 (D.C. Cir. 2010) (explaining, in the context of claim that reassignment of duties was materially adverse, that “whether a particular reassignment of duties constitutes an adverse action is generally a jury question” (internal quotation marks and alterations omitted)).
Viewing the evidence in this case in the light most favorable to Rattigan, we have no doubt that a reasonable jury could find that OIO’s security referral itself might “well dissuade a reasonable worker from making or supporting a charge of discrimination.” White, 548 U.S. at 57. The referral alone created the very real possibility not only that Rattigan would face a stressful and potentially reputation-damaging investigation, but also that the FBI would revoke his security clearance and terminate his employment. See, e.g., Trial Tr. at 82 (July 27, 2009) (testimony of Michael Pyszczymuka) (acknowledging that being the subject of a security investigation could harm an FBI agent’s career); Trial Tr. at 53–54 (July 22, 2009) (testimony of Cheryl Tucker) (recognizing the career-damaging effect a security investigation could have for an agent like Rattigan who was involved in the FBI’s sensitive and important inquiry into the September 11 attacks). In our view, a reasonable jury could conclude that these ominous prospects are more than sufficient to deter a reasonable employee from filing a discrimination complaint. See Porter v. Shah, 606 F.3d 809, 818 (D.C. Cir. 2010) . . . .
. . . . Moreover, this conclusion depends not at all on the actions that the Security Division takes: the possible negative repercussions of an OIO referral could deter an employee from filing a complaint even though OIO has no control over whether the Security Division undertakes an investigation or ultimately decides to revoke a security clearance. The situation is to some extent analogous to the filing of a criminal complaint for retaliatory purposes, which may qualify as a materially adverse action under Title VII. See White, 548 U.S. at 64 (favorably citing a Tenth Circuit decision “finding actionable retaliation where employer filed false criminal charges against former employee who complained about discrimination” (citing Berry v. Stevinson Chevrolet, 74 F.3d 980, 984 (10th Cir. 1996))); see also Steele v. Schafer, 535 F.3d 689, 696 (D.C. Cir. 2008) (noting that “the Supreme Court [has] indicated that a false report to government authorities can constitute retaliation,” and accordingly finding actionable the filing of a false report to the D.C. Office of Unemployment Compensation contesting the employee’s unemployment benefits). . . .
. . . . Thus, although Title VII challenges to security referrals could in some circumstances invite the jury to question Security Division judgments about the seriousness of security concerns, that is far from inevitable. Ultimately, it falls to the district court to guard against this risk of violating Egan. To do so, the district court could, for example, instruct the jury to assume that the reasons the Division gave for commencing an investigation—provided those reasons did not rest on false or misleading allegations—fully justified undertaking the investigation. We recognize that limitations required to ensure compliance with Egan may make it impossible for some plaintiffs to mount evidence sufficient to allow a reasonable jury to believe retaliation had occurred. In such cases, the district court will need to enter judgment for the government. Cf. In re Sealed Case, 494 F.3d 139, 144–45 (D.C. Cir. 2007) (recognizing in state secrets context that where plaintiff is unable to establish prima facie case without the use of privileged information, lack of evidence requires dismissal).
Here, whether Rattigan has adduced sufficient evidence for his claim to proceed without running into Egan is a question we leave in the district court’s able hands. Having presided over the trial and several years of motions practice, the district court is in the best position to decide whether, given the record and any cautionary instructions and evidentiary rulings it believes necessary, Rattigan’s case can go forward without putting the jury in the position of second-guessing the Security Division. See Jones, 557 F.3d at 681 (“Given the state of the record and the factual intricacies intertwined with [plaintiff’s] allegations, we are unwilling to delve into questions that the district court did not address.” (internal quotation marks and alterations omitted)).
KAVANAUGH, Circuit Judge, dissenting:
In Department of Navy v. Egan, 484 U.S. 518 (1988), the Supreme Court held that the Navy’s decision to deny Egan a security clearance could not be reviewed in the course of his personnel action against the Navy. Justice Blackmun’s opinion for the Court reasoned 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.” Id. at 529. The Egan Court thus precluded agency employees such as Egan from pursuing personnel actions against their agency employers when doing so would entail second-guessing the agency’s security clearance decision. The Court recognized that Congress could override the presumption of unreviewability that attached to security clearance decisions, but it said that Congress had not done so with respect to personnel suits like Egan’s. See id. at 530.
The majority opinion here, however, reads Egan more narrowly. Under the majority opinion, security clearance decisions are committed not “to the broad discretion of the agency responsible,” id. at 529, but only to some agency employees who possess the “requisite training and expertise.” Maj. Op. at 15. Under the majority opinion’s scheme, courts may not review the decisions of agency employees who initiate investigations or grant, deny, or revoke clearances, but courts may review the decisions of agency employees who report security risks. The majority opinion’s slicing and dicing of the security clearance process into reviewable and unreviewable portions is nowhere to be found in Egan, and does not reflect the essential role that the reporting of security risks plays in the maintenance of national security.
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