United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING DEFENDANTS' MOTION FOR
BERNARD A. FRIEDMAN, SENIOR UNITED STATES DISTRICT JUDGE.
matter is presently before the Court on defendants'
motion for partial dismissal [docket entry 13]. Plaintiff has
filed a response in opposition and defendant has filed a
reply. Pursuant to E.D. Mich. LR 7.1(f)(2), the Court shall
decide this motion without a hearing.
an employment discrimination action in which plaintiff, who
works as a Customs and Border Protection (“CBP”)
officer, alleges that defendants denied him a security
clearance and several promotions because of his race (Arab),
religion (Muslim) and national origin (Albania) and because
he refused their requests to “becom[e] an informant by
infiltrating Albanian and Iraqi gangs and smugglers, and
obtaining intelligence for use in an ongoing criminal
investigation.” Compl. ¶ 17. Plaintiff also
alleges that defendants subjected him to a hostile work
environment. He asserts claims under Title VII of the Civil
Rights Act of 1964 (Counts I, II, III) and for violation of
his First and Fifth Amendment rights (Counts IV, V, VI, and
VII). Plaintiff seeks damages, costs, attorney fees, and
injunctive relief. The defendants are Kirstjen Nielsen
(Secretary of the Department of Homeland Security) and
Christopher Perry (Director of the Detroit Field Office of
U.S. CBP), both sued in their official capacity
argue that all of plaintiff's claims, except his Title
VII claim as to a specific promotion denial, should be
dismissed because (1) Nielsen is the only proper defendant
regarding plaintiff's Title VII claims, (2) the Court
lacks subject matter jurisdiction to adjudicate
plaintiff's claims regarding the revocation of his
security clearance, (3) all of plaintiff's Title VII
claims except one are either untimely or premature, and (4)
plaintiff's constitutional claims are preempted by Title
VII. Plaintiff disputes each of these points.
correctly argue that Title VII is a federal employee's
exclusive remedy for workplace discrimination. See Brown
v. Gen. Servs. Admin., 425 U.S. 820, 835 (1976) (stating
that Title VII “provides the exclusive judicial remedy
for claims of discrimination in federal employment”);
Hunter v. Sec'y of U.S. Army, 565 F.3d 986, 993
(6th Cir. 2009) (noting that “Title VII prohibits
discrimination in employment on the basis of race, color,
religion, sex, and national origin . . . and provides the
exclusive remedy for such claims in federal
employment.”). As all of plaintiff's claims concern
alleged discrimination he experienced as a federal employee,
his constitutional claims (Counts IV - VII) must be
Title VII claims (Counts I - III) are subject to various
pre-suit requirements. Initially, within 45 days of the
allegedly discriminatory action, he must file a complaint
with his employing agency's EEO counselor:
“The right to bring an action under Title VII regarding
equal employment [opportunity] in the federal government is
predicated upon the timely exhaustion of administrative
remedies, as set forth in [the EEOC regulations].”
Benford v. Frank, 943 F.2d 609, 612 (6th Cir.1991);
see also Brown, 425 U.S. at 829-32, 96 S.Ct. 1961.
Under 29 C.F.R. § 1614.105(a)(1), an aggrieved employee
“must initiate contact with a[n EEO] [c]ounselor 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” in order to
facilitate informal resolution of the dispute. Failure to
timely seek EEO counseling is grounds for dismissal of the
discrimination claims. Benford, 943 F.2d at 612.
Hunter, 565 F.3d at 993. If plaintiff files a timely
EEO complaint and is dissatisfied with the agency's final
decision, he may appeal to the Equal Employment Opportunity
Commission (“EEOC'). See 29 C.F.R. §
1614.110. If plaintiff files a timely appeal with the EEOC
and is dissatisfied with its decision, he may file suit in
the appropriate United States District Court within 90 days.
See 42 U.S.C. §§ 2000e-16(c).
present case, defendants argue that all of plaintiff's
failure-to-promote claims except the one alleged in ¶
44(r) of the complaint should be dismissed either because
plaintiff did not file a timely EEO complaint or because he
has not exhausted his administrative remedies. Plaintiff
appears to concede that these claims are all either untimely
or premature, but he argues they should all be allowed to
proceed on the grounds that they all are part of a
“continuing violation” of his right not to be
discriminated against. The Court rejects plaintiff's
argument. Each instance when plaintiff allegedly was not
promoted, see Compl. ¶ 44(a)-(q) and 44(t)-(z),
was a discrete discriminatory act, and each was subject to
the “rigorous administrative exhaustion requirements
and time limitations.” Brown, 425 U.S. at 833.
As the Supreme Court held in Nat'l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 113-14
(2002), “discrete discriminatory acts are not
actionable if time barred, even when they are related to acts
alleged in timely filed charges” and “only
incidents that took place within the timely filing period are
actionable.” As plaintiff concedes that the only
failure-to-promote claim he timely and properly exhausted is
the one alleged in ¶ 44(r) of his complaint, this is the
only such claim that may proceed.
does allege other discrete acts of discrimination, i.e., that
defendants subjected him to four investigations from 2009
through September 2016. Defendants indicate that the agency
dismissed plaintiff's complaints regarding these
investigations because, like all but one of his
failure-to-promote complaints, they were not filed within 45
days. As plaintiff does not dispute this in his response
brief, the Court shall dismiss the complaint to the extent it
is based on these allegedly discriminatory investigations.
only other discriminatory act alleged in the complaint is
that “while serving as a member of a special unit,
[plaintiff] was denied his security clearance by Internal
Affairs.” Compl. ¶ 51. As defendants correctly
note, however, “courts traditionally have been
reluctant to intrude upon the authority of the Executive in
military and national security affairs.” Dep't
of Navy v. Egan, 484 U.S. 518, 530 (1988).
Plaintiff's only contrary authority, Tenenbaum v.
Caldera, 45 Fed.Appx. 416, 418 (6th Cir. 2002)
(“Judicial review [of security clearance decisions] may
be appropriate, for example, where the plaintiff alleges a
violation of constitutional rights”), is unpublished.
Such decisions “are non-precedential and bind only the
parties to those cases.” Sun Life Assurance Co. of
Canada v. Jackson, 877 F.3d 698, 702 (6th Cir. 2017). As
plaintiff has offered no binding or otherwise persuasive
authority contradicting Egan, the Court shall
dismiss the complaint to the extent it is based on the
alleged denial or revocation of his security clearance.
as defendants correctly note, the only proper defendant in
this matter is the agency head, defendant Nielsen. See
Mulhall v. Ashcroft, 287 F.3d 543, 550 (6th Cir. 2002).
Accordingly, the Court shall dismiss the complaint as to the
only other remaining defendant, Perry.
these reasons, IT IS ORDERED that defendants' motion for
partial dismissal is granted as follows: Counts IV-VII are
dismissed; Counts I-III are dismissed except as to the
failure-to-promote claim alleged in ¶ 44(r) of the