Njang v. Whitestone Group, Inc. , 187 F. Supp. 3d 172 ( 2016 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
SEBASTIAN NJANG, et al., )
)
Plaintiffs, )
)
v. ) No. 12-cv-0153 (KBJ)
)
THE WHITESTONE GROUP, INC., )
)
Defendant. )
)
MEMORANDUM OPINION AND ORDER
Plaintiffs Sebastian Njang, Marco Washington, and Joyce Ejikunle were
employed as security guards at a federal government office building in the District of
Columbia in 2009, when the events at issue in this lawsuit took place. All three
plaintiffs allege that the private security company that employed them—the Whitestone
Group, Inc. (“Whitestone” or “Defendant”)—took various actions that constituted
illegal race discrimination against them, in violation of 42 U.S.C. § 1981 (see Compl.,
ECF No. 1, ¶ 18 (Count II)), and Njang alone alleges that Whitestone also discriminated
against him on the basis of his national origin and race in violation of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (see Compl. ¶ 17 (Count I)).
Specifically, Njang and Washington assert that, out of discriminatory animus, their
supervisor falsely reported that they had committed fraud, which resulted in their
required suitability determinations being revoked, and eventually led to the termination
of their employment. (See Pls.’ Opp’n to Def.’s Mot. for Summ. J. (“Pls.’ Opp’n”),
ECF No. 19, at 1.) 1 In addition, Ejikunle claims that her supervisor threatened her and
reassigned her to a different position with fewer hours and lower pay because of her
race, and that Whitestone ultimately terminated her after she refused to relocate. (See
Compl. ¶ 15; Pls.’ Opp’n at 11–12.)
Before this Court at present is Whitestone’s motion for summary judgment under
Federal Rule of Civil Procedure 56. (See Def.’s Mot. for Summ. J. (“Def.’s Mot.”),
ECF No. 18, at 1.) Defendant’s primary argument is that Plaintiffs’ claims are time-
barred. (See Def.’s Mem. in Supp. of Def.’s Mot. (“Def.’s Mem.”), ECF No. 18-1, at 6–
8.) Defendant also contends that, even if the complaint’s claims are timely, the doctrine
established in Department of Navy v. Egan, 484 U.S. 518 (1988), precludes this Court’s
review of the discrimination claims filed by Njang and Washington (see id. at 8–9),
and, in any event, none of the plaintiffs can establish prima facie cases of
discrimination (see id. at 11–14).
As explained fully below, this Court concludes that Whitestone is entitled to
summary judgment on Plaintiffs’ Section 1981 claims (Count II) because these claims
are time-barred due to the six-month contractual limitations period in Plaintiffs’
employment contracts. Njang’s Title VII claim (Count I) is not time-barred, but neither
party has addressed the particular theory of liability upon which Njang’s Title VII claim
appears to be based—specifically, the “cat’s paw” theory that the Supreme Court
articulated in Staub v. Proctor Hospital, 562 U.S. 411 (2011)—nor have the parties
briefed the critical issues of (1) whether and to what extent Egan preclusion applies to
Title VII discrimination claims based upon a cat’s paw theory, and (2) whether Njang
1
Page numbers herein refer to those that the Court’s electronic filing system automatically assigns.
2
has sufficiently demonstrated proximate cause to survive summary judgment under the
analysis set forth in Staub. Accordingly, in its Order of March 31, 2016, this Court
ruled that Defendant’s motion for summary judgment was GRANTED IN PART and
DENIED IN PART. The instant Memorandum Opinion explains the Court’s reasons
for its prior ruling, and it also includes a separate order that requires the parties to
provide additional briefing on the material, remaining legal issues discussed below.
I. BACKGROUND
A. Facts 2
In February of 2009, Whitestone, a private security contractor, was assigned a
pre-existing contract to provide security guards for a federal government office building
in Washington, D.C. (See Compl. ¶¶ 7–9.) Whitestone retained many of the guards the
previous contractor had employed, including Plaintiffs Sebastian Njang, Marco
Washington, and Joyce Ejikunle. (See id.) Njang and Washington are both “black
male[s,]” and Ejikunle is a “black female[.]” (Id.) Njang was born in Cameroon and
immigrated to the United States in 2000 (see id. ¶ 7); Washington and Ejikunle were
both born in the United States, although Ejikunle was raised and educated in Nigeria,
and returned to the United States in 2002 (see id. ¶¶ 8–9).
In connection with their retention as Whitestone employees, Plaintiffs each
signed a written employment agreement with Whitestone. (See Def.’s Statement of
Material Facts Not in Genuine Dispute (“Def.’s SMF”), ECF No. 18-2, ¶ 7.) The
agreement included a provision in which the employee agreed “to file all claims or
2
The relevant facts have been gleaned from the complaint and the parties’ Statements Of Material
Facts, see Local Rule 7(h); additionally, all inferences have been drawn in Plaintiffs’ favor, see
Grosdidier v. Broad. Bd. of Governors, Chairman, 709 F.3d 19, 23–24 (D.C. Cir. 2013). The facts
stated herein are undisputed, unless otherwise noted.
3
lawsuits in any way relating to employment with the Company no more than six months
after the date of the employment action that is the subject of the claim or lawsuit.” (Id.)
The contract also required all of Whitestone’s security guards to pass the “suitability
determination” that the Federal Protective Services (“FPS”), a division of the
Department of Homeland Security, conducts. (See id. ¶ 2.)
A few months after Whitestone took over the security contract, it hired Chris
Ackerman, a white man, to serve as the project manager for the site. (See Compl. ¶ 11.)
Plaintiffs allege that Ackerman made a number of discriminatory remarks, including
telling Njang that his accent made him sound “like a monkey from Africa[.]” (See
Decl. of Pl. Sebastian Njang (“Njang Decl.”), Ex. 3 to Pls.’ Opp’n, ECF No. 19-4, ¶ 7.)
Plaintiffs assert that Ackerman also referred to an R&B song as “monkey music” (id.
¶ 9), and that he complained that “there were too many Africans and African Americans
at the site” (id. ¶ 11). 3
On September 22, 2009, Ackerman asked Washington to come to his office;
when Washington arrived, three FPS agents were waiting there for him. (See Dep. of
Marco V. Washington, Ex. 5 to Def.’s Mot., ECF No. 18-5, at 10.) Ackerman informed
Washington that his suitability determination had been revoked. (See id.) Washington
was required to turn over his credentials and was immediately escorted out of the
building. (See id. at 11.) The next day, the same sequence of events allegedly
happened to Njang. (See Dep. of Sebastian Njang (“Njang Dep.”), Ex. 4 to Def.’s Mot.,
ECF No. 18-4, at 9.)
Whitestone says that it determined that several of its employees were
3
Whitestone denies these allegations. (See Answer, ECF No. 2, ¶ 12.)
4
fraudulently claiming to have worked additional hours, and that it reported these
violations to FPS. (See Memorandum, ECF No. 8, at 2; FPS Investigation Summary,
Ex. A to Memorandum, ECF No. 8-1, at 1.) The FPS conducted an investigation in
which “four suspects were determined to be involved in fraudulent time card
documentation[,]” including Njang and Washington. (FPS Investigation Summary at 1.)
These negative suitability determinations led to the revocation of Njang’s and
Washington’s security clearances, and their subsequent termination. (See Compl. ¶ 13;
Pls.’ Separate Listing of Material Facts That Are Genuinely In Dispute (“Pls.’ SMF”),
ECF No. 19 at 4–6, ¶ 1.) However, Njang and Washington have consistently denied
committing any fraud. (See Njang Decl. ¶¶ 17–19; see also Compl. ¶¶ 17–18).
A week after Njang and Washington were removed, Jose Guadarrama, Njang’s
replacement, approached Ejikunle—the third plaintiff. (See Decl. of Pl. Joyce Ejikunle
(“Ejikunle Decl.”), Ex. 5 to Pls.’ Opp’n, ECF No. 19-6, ¶ 13.) Ejikunle claims that
Guadarrama told her that if she did not start showing support for Ackerman and him,
“they would look for some reason to remove [her] from the site, just as they had done
with Mr. Njang and Mr. Washington.” (Id.) 4 Ejikunle asserts that this conversation led
her to file a race discrimination complaint with the EEOC on October 5, 2009; in that
complaint, she alleged that she had been subjected to hostile and threatening treatment
on the basis of her race. (See id. ¶ 14; Compl. ¶ 15.)
On October 9, 2009, Guadarrama allegedly told Ejikunle that she was being
relocated to another location. (See Ejikunle Decl. ¶ 15.) According to Ejikunle, she
protested this reassignment, which she says would have resulted in reduced hourly pay
4
This statement, too, is disputed. (See Answer ¶ 14.)
5
and fewer hours. (See id.) Whitestone claims that Ejikunle did not show up to work at
the new location and failed to contact her new supervisor about her new schedule, and
as a result, Whitestone treated her as having resigned. (See Def.’s SMF ¶¶ 34–37.)
Ejikunle maintains that she never intended to resign and that her termination was
involuntary. (See Ejikunle Decl. ¶ 17.)
B. Procedural History
Plaintiffs filed the instant employment discrimination lawsuit on January 30,
2012. The two-count complaint alleges that Whitestone violated Title VII in its
treatment of Njang (Count I) and that it violated 42 U.S.C. § 1981 in its treatment of all
three Plaintiffs (Count II).
In its motion for summary judgment, which was filed on August 30, 2013,
Whitestone contends that judgment should be granted in its favor on both counts. The
motion argues that Count I cannot withstand summary judgment on three grounds: first,
because Njang’s Title VII claim is time-barred; second, because even if the claim is
timely, Njang’s attempt to challenge the revocation of his suitability is not justiciable
under Department of Navy v. Egan, 484 U.S. 518 (1988); and, third, because Njang’s
allegations fail to state a claim of discrimination under Title VII. (See Def.’s Mem. at
6–18.) Defendant argues that Count II cannot proceed to trial for these same reasons.
(See generally Def.’s Mem.) Defendant’s motion has been fully briefed (see Pls.’
Opp’n; Def.’s Reply Mem. in Supp. of Def.’s Mot. (“Def.’s Reply”), ECF No. 20), and
is now ripe for this Court’s consideration.
II. MOTIONS FOR SUMMARY JUDGMENT UNDER RULE 56
Summary judgment is appropriate if there is “no genuine dispute as to any
6
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). “A fact is material if it ‘might affect the outcome of the suit under the governing
law,’ and a dispute about a material fact is genuine ‘if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.’” Steele v. Schafer, 535
F.3d 689, 692 (D.C. Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986)).
Under Rule 56, the moving party has the burden of demonstrating the absence of
a genuine dispute as to any material fact. See Celotex v. Catrett, 477 U.S. 317, 323
(1986). Once the moving party has met this burden, the nonmoving party must
designate “specific facts showing that there is a genuine issue for trial.” Id. at 324.
Although the Court “must view the evidence in the light most favorable to the
nonmoving party and draw all reasonable inferences in favor of the nonmoving party[,]”
Grosdidier v. Broad. Bd. of Governors, Chairman, 709 F.3d 19, 23–24 (D.C. Cir. 2013)
(internal quotation marks, alteration, and citation omitted), the nonmoving party must
show more than “[t]he mere existence of a scintilla of evidence in support of” his or her
position, Anderson, 477 U.S. at 252. Rather, “there must be evidence on which the jury
could reasonably find” for the nonmoving party. Id. Moreover, the nonmoving party
“may not rest upon mere allegation or denials of his pleading but must present
affirmative evidence showing a genuine issue for trial.” Laningham v. U.S. Navy, 813
F.2d 1236, 1241 (D.C. Cir. 1987) (internal quotation marks and citation omitted).
“Credibility determinations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts are jury functions, not those of a judge at summary
judgment.” Barnett v. PA Consulting Grp. Inc., 715 F.3d 354, 358 (D.C. Cir. 2013)
7
(quotation marks and citation omitted). Accordingly, a court’s role in deciding
summary judgment is not to “determine the truth of the matter, but instead [to] decide
only whether there is a genuine issue for trial.” Id. Given “the potential difficulty for a
plaintiff in an employment discrimination or retaliation action to uncover clear proof of
discriminatory or retaliatory intent,” Nurriddin v. Bolden, 40 F. Supp. 3d 104, 115
(D.D.C. 2014), this Court reviews a defendant’s motion for summary judgment in a
discrimination case with a slightly “heightened standard[,]” Walker v. England, 590 F.
Supp. 2d 113, 133 (D.D.C. 2008) (quotation marks and citation omitted). However,
although “summary judgment must be approached with specific caution in
discrimination cases, a plaintiff is not relieved of his obligation to support his
allegations” with competent evidence showing a genuine issue for trial. Id. at 132–33
(quoting Morgan v. Fed. Home Loan Mortg. Corp., 172 F. Supp. 2d 98, 104 (D.D.C.
2001)).
III. ANALYSIS
Plaintiffs’ complaint contains two counts. All three Plaintiffs allege that
Defendant discriminated against them on the basis of their race in violation of 42
U.S.C. § 1981. (See Compl. ¶ 18 (Count II).) Njang alone alleges that Defendant
discriminated against him on the basis of his national origin and race in violation of
Title VII. (See id. ¶ 17 (Count I).) As explained below, Plaintiffs’ Section 1981
claims must fail because they are barred by the six-month contractual limitations period
included in their employment contract with Whitestone. However, Njang’s Title VII
claim is different: it is not time-barred under the contractual limitations period because
a six-month limitation is unreasonable for Title VII claims. What is more, insofar as
8
Njang is challenging his termination, which was allegedly caused by a fraudulent and
discriminatory security referral, his claim might not be precluded by the doctrine that
the Supreme Court established in Egan, but only if the cat’s paw theory that the
Supreme Court has recognized in Staub can apply to discrimination claims that
challenge a plaintiff’s termination due to a knowingly false and discriminatory referral
to security personnel, and only if the facts presented here establish the elements of such
a cat’s paw claim. 5 Because neither party has addressed these tricky legal questions,
the standards that properly apply to cases such as this one remain to be determined, and
this Court cannot say, at this point, whether Njang should be permitted to proceed to
trial. Accordingly, while summary judgment in Defendant’s favor as to Plaintiffs’
Section 1981 claims (Count II) has been granted, Njang’s Title VII claim (Count I) will
have to be analyzed further, and on that basis, this Court has concluded that
Defendant’s motion for summary judgment with respect to Count I must be denied.
A. The Six-Month Contractual Limitations Period In Plaintiffs’
Employment Contracts Bars Plaintiffs’ Section 1981 Claims, But Does
Not Bar Plaintiff Njang’s Title VII Claim
Section 1981 prohibits “racial discrimination in the making, performance,
modification, and termination of contracts, and the enjoyment of all benefits, privileges,
terms, and conditions of the contractual relationship[.]” Carney v. Am. Univ., 151 F.3d
1091, 1092–93 (D.C. Cir. 1998) (internal quotation marks and citation omitted). Title
VII is substantially similar insofar as it prohibits an employer from “discharg[ing] any
5
The D.C. Circuit accepted and refined the principle that a Title VII claim challenging a knowingly
false and retaliatory referral to security personnel is not precluded under Egan in its Rattigan line of
cases. See Rattigan v. Holder (Rattigan I), 643 F.3d 975 (D.C. Cir. 2011), on reh’g, Rattigan v. Holder
(Rattigan II), 689 F.3d 764 (D.C. Cir. 2012); Rattigan v. Holder (Rattigan III), 780 F.3d 413 (D.C. Cir.
2015).
9
individual, or otherwise . . . discriminat[ing] against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such
individual’s race, color, religion, sex, or national origin[.]” 42 U.S.C. § 2000e-2(a)(1).
As mentioned above, under the terms of the employment contracts that Plaintiffs Njang,
Washington, and Ejikunle entered into with Whitestone, any claims arising under these
discrimination provisions, as well as any other “claims or lawsuits in any way relating
to employment” must be brought “no more than six months after the date of the
employment action that is the subject of the claim or lawsuit.” (Def.’s SMF ¶ 7.)
Notably, the effect of the six-month contractual limitations period in Plaintiffs’
employment contracts must be evaluated with respect to Plaintiffs’ Title VII and
Section 1981 claims separately, because Section 1981 is an “independen[t] . . . avenue[]
of relief,” Johnson v. Ry. Express Agency, Inc., 421 U.S. 454, 460 (1975), despite the
fact that Section 1981 and Title VII generally cover the same discriminatory behavior.
Furthermore, while employment contract provisions such as the ones at issue here may
serve to shorten “the time for bringing an action” to a lesser period than the time that is
prescribed by statute, such a limitation is only enforceable if “the shorter period itself
[is] a reasonable period.” Order of United Commercial Travelers of Am. v. Wolfe, 331
U.S. 586, 608 (1947); accord Hunter-Boykin v. George Washington Univ., 132 F.3d 77,
80 n.1 (D.C. Cir. 1998). A plaintiff would ordinarily have four years from the date of
the allegedly discriminatory act to file a Section 1981 claim in court in the absence of
any contractual limitations period, see Uzoukwu v. Metro. Washington Council of
Gov’ts, 27 F. Supp. 3d 62, 66 (D.D.C. 2014) (citing Jones v. R.R. Donnelley & Sons
Co., 541 U.S. 369, 378–79 (2004)). The Title VII limitations period is less concrete
10
due to extensive administrative exhaustion requirements; however, by statute, a charge
must be filed with the EEOC within 180 days of the unlawful conduct, and the plaintiff
generally cannot file a Title VII law suit until he receives a right-to-sue notification
from the EEOC, which he typically can receive no earlier than 180 days after he files
his charge. See Mabry v. W. & S. Life Ins. Co., No. 1:03 CV 848, 2005 WL 1167002, at
*3 (M.D.N.C. Apr. 19, 2005).
Thus, to decide the limitations issue that Whitestone has raised in the instant
case, this Court must determine whether the six-month limitations period in Plaintiffs’
employment contracts is reasonable (and thus enforceable) as it applies to Plaintiffs’
Section 1981 and Title VII claims.
1. Under Applicable Case Law, Six Months Is A Reasonable
Limitations Period For Section 1981 Claims
The courts that have previously considered this question have generally held that
six months is a reasonable period of time with respect to Section 1981 claims, both
because nothing within Section 1981 indicates that Congress intended for a longer
window to bring such a claim, and also because the statute lacks other features that
would make filing a claim within six months impracticable, such as an administrative
exhaustion requirement. See Taylor v. W. & S. Life Ins. Co., 966 F.2d 1188, 1205 (7th
Cir. 1992) (upholding the dismissal of a Section 1981 claim as barred by a six-month
contractual limitations period because “by enacting [S]ection 1981 without a statute of
limitations, Congress implied that it is willing to live with a wide range of state statutes
and rules governing limitations of actions under [S]ection 1981.”); see also Thurman v.
DaimlerChrysler, Inc., 397 F.3d 352, 357–59 (6th Cir. 2004) (upholding as reasonable a
six-month contractual limitation for employment claims under, inter alia, Section 1981,
11
because six months provided the plaintiff with “ample time to investigate her claim and
determine her damages”). This Court agrees with that assessment, because Section
1981 does not contain a requirement that a plaintiff exhaust any administrative
remedies, so there are no time-consuming procedural prerequisites that a plaintiff must
satisfy before she brings her claim in court. See Johnson, 421 U.S. at 466 (emphasizing
that Section 1981 provides plaintiffs with an option to sue that is “independent of the
more elaborate and time-consuming procedures of Title VII”).
Furthermore, a six-month period within which to file suit is not an inherently
unreasonable period of time; indeed, that statutory limitations period is prescribed in
various other federal laws, including with respect to duty of representation suits under
the Labor Management Relations Act. See, e.g., DelCostello v. Int’l Bhd. of Teamsters,
462 U.S. 151, 169–72 (1983); see also Taylor, 966 F.2d at 1205. As the Seventh
Circuit noted, the fact that a six-month limitations period is established by law in other
contexts indicates that six months is not so short a period of time as “to work a practical
abrogation of the right of action[.]” See Taylor, 966 F.2d at 1205–06. Thus, consistent
with the findings of other courts that have addressed the propriety of a six-month
limitations period with respect to employment-related discrimination actions, this Court
concludes that the six-month limitations period in Plaintiff’s contract is reasonable as
applied to Plainitffs’ Section 1981 claims.
Turning back to the instant case, it is undisputed here that Plaintiffs filed their
Section 1981 claims in court more than six months after the alleged discriminatory acts
at issue in this case. Washington and Njang were terminated on September 22, 2009,
and September 23, 2009, respectively (see Def.’s SMF ¶¶ 17–19), and Ejikunle was
12
informed that her absence had been treated as a resignation on October 13, 2009 (see
Ejikunle Decl. ¶ 16). Plaintiffs did not file the instant lawsuit until January 30, 2012—
well over two years after the actions about which Plaintiffs complain. Consequently,
Plaintiffs have brought their Section 1981 claims well outside the six-month limitations
period that applies to such claims under the express terms of their employment
contracts, and as a result, Plaintiffs’ Section 1981 claims (Count II of the complaint)
are time-barred. Cf. Thurman, 397 F.3d at 358–59 (holding that a plaintiff’s Section
1981 were time-barred by a six-month contractual limitations period); Taylor, 966 F.2d
at 1205–06 (same).
2. Plaintiff Njang’s Title VII Claim Is Not Time-Barred
Plaintiff Njang’s Title VII claim is subject to a different analysis as far as the
contractual six-month limitations period is concerned. The procedure for bringing a
Title VII claim is far more involved and time-consuming than the procedure for
bringing a Section 1981 claim, and this difference matters when it comes to evaluating
the reasonableness of the contracted-to time limit.
For example, in contrast to the procedures applicable to Section 1981 claims, an
individual alleging a Title VII claim must first file a charge with the EEOC within 180
days after the alleged unlawful employment conduct. See 42 U.S.C. § 2000e-5(e)(1).
“The EEOC is then required to investigate the charge and determine whether there is
reasonable cause to believe that it is true.” Occidental Life Ins. Co. of Cal. v. EEOC,
432 U.S. 355, 359 (1977). If the EEOC determines that there is not reasonable cause,
then it dismisses the charge, see 42 U.S.C. § 2000e-5(b), and issues a “right-to-sue”
letter to the plaintiff, notifying the plaintiff that he has the right to bring his own civil
action, see id. § 2000e-5(f)(1). See also id. (explaining that a plaintiff can request such
13
a letter only after 180 days have passed since the filing of his EEOC charge). Thus,
under the statutory framework, the complainant may bring his Title VII claim in federal
court only after receiving a right-to-sue notification from the EEOC, which typically
requires waiting at least 180 days after filing his charge with the EEOC. See id;
Occidental Life Ins. Co. of Cal., 432 U.S. at 361.
Given this expansive and intricate exhaustion requirement, the majority of
federal courts that have considered the issue of contractual limitations periods have
found that a six-month contractual limit with respect to filing a Title VII claim in court
is unreasonable. See Mazurkiewicz v. Clayton Homes, Inc., 971 F. Supp. 2d 682, 689
(S.D. Tex. 2013) (agreeing “with the majority view of the lopsided split in the federal
courts on this issue, and hold[ing] that a six-month limitations period is unenforceable
against claims that require an EEOC right-to-sue letter”); see also Cole v. Convergys
Customer Mgmt. Grp., Inc., No. 12-2404, 2012 WL 6047741, at *4 (D. Kan. Dec. 5,
2012) (finding the “six-months’ limitations period . . . unenforceable, unreasonable, and
against public policy under federal law as to [plaintiff’s] Title VII claims”); O’Phelan
v. Fed. Express Corp., No. 03 C 00014, 2005 WL 2387647, at *5 (N.D. Ill. Sept. 27,
2005) (holding that the “employment agreement’s six month limit in which to file suit is
not enforceable against [plaintiff’s] Title VII claim”). To be sure, some courts have
found a six-month contractual limitations period to be reasonable and enforceable with
respect to Title VII claims. See, e.g., Thurman, 397 F.3d at 355, 358 (upholding
dismissal of Title VII claims as barred by reasonable six-month contractual limitations
period); Ellison v. DaimlerChrysler Corp., No. 3:06 CV 899, 2007 WL 3171758, at *5,
*9 (N.D. Ohio Oct. 30, 2007) (dismissing Title VII claim as barred by six-month
14
limitation period). However, this Court finds the reasoning of the majority view more
persuasive, primarily because such a short limitations period effectively prevents
plaintiffs from bringing Title VII claims when the typical time frame for exhausting
such claims is considered.
Specifically, under the exhaustion framework described above, a plaintiff usually
must wait until 180 days have passed from the filing of the charge with the EEOC to
bring his or her claim in court. See 42 U.S.C. § 2000e-5(f)(1); Occidental Life Ins. Co.
of Cal., 432 U.S. at 361. Thus, merely by complying with the administrative exhaustion
requirements of Title VII, plaintiffs are typically precluded from bringing their claims
in court within six months of the challenged conduct, which means that a six-month
limitations period has the practical effect of waiving employees’ substantive rights
under Title VII. See O’Phelan, 2005 WL 2387647, at *4; see also Mabry, 2005 WL
1167002, at *4 (“Because the contractual limitations period would expire before the
employee ever had the opportunity to file suit, the employee would be effectively
precluded from filing a Title VII or ADA suit”); Lewis v. Harper Hosp., 241 F. Supp.
2d 769, 772 (E.D. Mich. 2002) (“Were this Court to uphold the six month limitation of
action clause as to Plaintiff’s Title VII claim, the EEOC’s period of exclusive
jurisdiction would have the effect of abrogating Plaintiff’s ability to bring a Title VII
suit”); Salisbury v. Art Van Furniture, 938 F. Supp. 435, 437–38. (W.D. Mich. 1996)
(finding six-month contractual limitation unreasonable because it “effected a practical
abrogation of the right to file an ADA claim” (internal quotation marks omitted)). For
this reason, this Court finds that a six-month limitations period amounts to “a practical
abrogation of the right of action” under Title VII, Taylor, 966 F.2d at 1205–06, and
15
thus is unreasonable as applied to Title VII claims. Therefore, the Court holds that
Njang’s Title VII claim is not time-barred. 6
B. Whether Or Not Njang’s Title VII Claim Can Survive Summary
Judgment Under A Cat’s Paw Theory Despite The Egan Preclusion
Doctrine Requires Further Analysis
Undaunted by the possibility that Njang could successfully mount the contractual
limitations hurdle with respect to his Title VII discrimination claim (he does),
Whitestone also argues, as a threshold matter, that “the Court does not have authority to
hear Njang[’s] . . . claim[] because it would require judicial review of the validity of the
decision of an Executive branch agency, the Federal Protective Services, to deny
security and suitability determinations.” (Def.’s Mem. at 1.) This jurisdictional
argument rests on the contention that “an agency’s decision to deny or revoke an
employee’s security clearance is precluded from judicial review,” Horsey v. U.S. Dep’t
of State, No. 14-cv-1568, 2016 WL 1118254, at *8 (D.D.C. Mar. 22, 2016)—which is
the well-established doctrine of preclusion that the Supreme Court first articulated in
the case of Department of the Navy v. Egan, 484 U.S. 518 (1988). Whitestone’s
preclusion argument is well-founded, because under D.C. Circuit precedent, the Egan
6
The Court acknowledges that its conclusion that the six-month contractual limitations period applies
differently to different employment-related causes of action places plaintiffs like the ones before the
Court today in an awkward position: although they would no doubt prefer to bring all their
discrimination claims in court at one time, the application of the six-month window for bringing their
Section 1981 claims means that, as a practical matter, their Title VII claims and Section 1981 claims
will have to be filed separately. The Supreme Court addressed this situation in Johnson v. Railway
Express Agency, Inc., 421 U.S. 454 (1975). The Johnson Court acknowledged that applying the short
limitations period to the Section 1981 claims “press[es] a civil rights complainant who values his
[Section] 1981 claim into court before the EEOC has completed its administrative proceeding,” id. at
465, and the Court suggested that such plaintiff could file his or her Section 1981 claims in federal
district court within the contractual limitations period and then move to stay the action pending the
EEOC’s investigation of the Title VII claim. See id. at 465. The plaintiff can then later amend his or
her complaint to include the Title VII claim after receiving the right-to-sue notification. See id. at 465.
Because Plaintiffs in the instant case have taken no such steps to preserve their Section 1981 claims
within the limitations period, only Njang’s Title VII claim survives as not time-barred.
16
doctrine is not limited to direct challenges to security clearance decisions; it also
extends to judicial review of “employment actions based on denial of security clearance
. . . , including under Title VII.” Bennett v. Chertoff, 425 F.3d 999, 1001 (D.C. Cir.
2005); see also Ryan v. Reno, 168 F.3d 520, 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”). But the D.C. Circuit has also held that
Egan does not preclude judicial review of a Title VII claim that challenges a knowingly
false and discriminatory report or referral to the security clearance authorities.
See Rattigan v. Holder (Rattigan II), 689 F.3d 764, 771 (D.C. Cir. 2012). These
binding precedents complicate the instant case, because Njang has brought his Title VII
claim to challenge the termination of his employment—not the allegedly discriminatory
referral to the security clearance authorities itself—but he alleges that it was the
fraudulent and discriminatory referral that caused the security clearance review that
ultimately resulted in the adverse employment action he seeks to challenge.
As explained fully below, this Court concludes that, from the standpoint of Egan,
there is a salient distinction between a Title VII challenge to an allegedly
discriminatory referral to the security clearance authorities (as was the case in Rattigan)
and a Title VII challenge to a termination that occurs after a security clearance review
that was allegedly prompted by a discriminatory referral (the facts of the instant case),
which means that Njang is wrong to insist that his Title VII claim is not precluded on
the basis of the Rattigan exception. But the preclusion argument that Whitestone makes
under Egan raises another complex legal question, the answer to which is not readily
apparent without further briefing: is the Egan doctrine unavoidably implicated here
17
because, when considering Njang’s Title VII claim, the Court would necessarily have to
evaluate the decisions of the security clearance authorities in order to assess Njang’s
challenge to his termination (an evaluation that would run afoul of Egan), or could a
plaintiff in Njang’s position rely on the “cat’s paw” theory that the Supreme Court
recognized in Staub v. Proctor Hospital, 131 S. Ct. 1186 (2011), to bypass any need for
review of the security clearance determination on the grounds that the challenged
termination was proximately caused by the discriminatory action of the agent who
referred him for a security clearance review? The parties have not opined on this
conceptually difficult, yet material, legal question. And not only have they failed to
address the interplay between Egan, Rattigan, and Staub, it is apparent that neither
party has assessed the extent to which the instant record does, or does not, establish the
proximate cause that would be necessary to support a discrimination claim under
Staub’s cat’s paw theory, even assuming that Njang’s claim is not precluded.
This all means that, although the Court cannot accept Njang’s argument that his
claim fits within the Rattigan exception to Egan, there is a possibility that Njang’s Title
VII claim can nevertheless survive under Staub, but only if the cat’s paw theory is
viable in the security clearance review context and also if Njang has proffered sufficient
record evidence to support a discrimination claim based on that theory. These
unresolved legal and factual determinations, which are described in the following
discussion, must be analyzed fully before the Court can determine whether Njang can
proceed to trial. Accordingly, this Court has denied Defendant’s motion for summary
judgment with respect to Njang’s Title VII claim without prejudice (see Order, ECF No.
22); see, e.g., Council on Am.-Islamic Relations Action Network, Inc. v. Gaubatz, No.
18
CV 09-2030 (CKK), 2015 WL 9216686, at *4 (D.D.C. Dec. 17, 2015) (motion for
summary judgment denied without prejudice where additional briefing required), and
the parties will be ordered to submit supplemental briefs on the significant legal issues
that remain to be resolved.
1. Njang’s Challenge To His Termination Does Not Fit Squarely Within
The Rattigan Exception To Egan
This Court begins its discussion of the complexities of Njang’s Title VII claim
by dispensing with Njang’s contention that the Rattigan exception is all that is required
to save his discrimination claim from Egan preclusion. (See Pls.’ Opp’n at 19–20.) To
understand why Rattigan does not apply as Njang asserts, one must first have a firm
grasp of the tenets of the preclusion doctrine that the Supreme Court established in
Egan. In brief, the Egan case involved a plaintiff who had been hired by the Navy,
contingent upon his obtaining a security clearance. After reviewing the plaintiff’s
background, the Navy’s personnel authorities denied him security clearance, and the
plaintiff petitioned the Merit Systems Protection Board for review of that clearance
denial. See Egan, 484 U.S. at 522. The Board determined that it lacked the authority to
review the clearance decision—a conclusion with which the Supreme Court ultimately
agreed. The Court’s primary reason for holding that the Board could not review the
plaintiff’s challenge to the security determination was its conclusion 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. Indeed, according to the Supreme Court, “it is not reasonably
possible for an outside nonexpert body to review the substance of such a judgment and
to decide whether the agency should have been able to make the necessary affirmative
19
prediction with confidence.” Id. Therefore, the Egan Court held that an agency’s
decision to deny or revoke an employee’s security clearance is precluded from judicial
review. See id.
The D.C. Circuit subsequently applied the Egan doctrine to bar judicial review of
Title VII claims that challenge adverse employment actions stemming from security
clearance decisions, as mentioned above. See Bennett, 425 F.3d at 1001; see also Ryan,
168 at 524 (explaining that, “under Egan, an adverse employment action based on
denial or revocation of a security clearance is not actionable under Title VII”). The
conclusion that the Egan bar extends to employment claims that stem from security
clearance determinations can be stated quickly, but the D.C. Circuit’s rationale is worth
pausing to examine. This outcome, the D.C. Circuit explained, “follows inexorably
from the manner in which the factfinder resolves Title VII discrimination and
retaliation claims[,]” Rattigan v. Holder (Rattigan I), 643 F.3d 975, 981 (D.C. Cir.
2011), on reh’g, 689 F.3d 764 (D.C. Cir. 2012); that is, such cases typically involve
application of the familiar three-step framework of McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973), pursuant to which “(1) the plaintiff must first prove a prima facie
case of discrimination, (2) if the plaintiff does so, then the burden shifts to the
defendant ‘to articulate some legitimate, nondiscriminatory reason for the action in
question,’ and (3) if the defendant meets that burden, the plaintiff must show that the
defendant’s proffered reasons ‘were not its true reasons, but were a pretext for
discrimination[,]’” Rattigan I, 643 F.3d at 981 (quoting Wiley v. Glassman, 511 F.3d
151, 155 (D.C. Cir. 2007)). According to the D.C. Circuit, a plaintiff who brings a
Title VII claim to challenge an adverse employment action based on the allegedly
20
discriminatory or retaliatory denial of a security clearance “run[s] smack up against
Egan” in the course of satisfying the McDonnell Douglas requirements, Ryan, 168 F.3d
at 524, because “determin[ing] whether [or not] the employer’s proffered
nondiscriminatory reason for the adverse employment action—i.e., that the plaintiff’s
clearance was denied or revoked on national security grounds—was in fact pretext for
discrimination would require the factfinder to evaluate the validity of the government’s
security concerns[,]” Rattigan I, 643 F.3d at 981, which is a forbidden exercise under
Egan. See also Bennett, 425 F.3d at 1003 (explaining that, “[w]hile Bennett claims that
TSA’s security clearance explanation is pretextual, . . . a court cannot adjudicate the
credibility of that claim” because “[t]o do so would require the trier of fact to evaluate
the validity of the agency’s security determination”). In other words, in the typical
Title VII case, the plaintiff “could not challenge the proffered reason’s authenticity
without also challenging its validity[,]” and “the district court . . . could not proceed
with the . . . discrimination action without reviewing the merits of [executive branch]’s
decision not to grant a clearance”; therefore, pursuant to Egan, “the court [is]
foreclosed from proceeding at all.” Ryan, 168 F.3d at 524.
That said, not all Title VII claims involving security clearance evaluations are
foreclosed by Egan: the D.C. Circuit has clarified that the Egan bar for Title VII claims
does not apply to employment challenges that are based on the allegation that one or
more co-workers—not trained Security Division personnel—who were motivated by
discriminatory or retaliatory animus knowingly filed false reports to the Security
Division. See Rattigan II, 689 F.3d at 768 (“[W]e adhere to our holding that Egan’s
absolute bar on judicial review covers only security clearance-related decisions made
21
by trained Security Division personnel and does not preclude all review of decisions by
other FBI employees who merely report security concerns.”); see also id. 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”); Burns-Ramirez v. Napolitano, 962 F. Supp. 2d
253, 256 (D.D.C. 2013) (same). In the Rattigan line of cases, an FBI employee alleged
that “FBI officials retaliated against him in violation of Title VII . . . when, by
reporting unfounded security concerns to the Bureau’s Security Division, they prompted
an investigation into his continued eligibility for a security clearance.” Rattigan II, 689
F.3d at 765. The investigation cleared Mr. Rattigan, who retained his security
clearance and his job; he filed the Title VII lawsuit to challenge the referral of his case
to the Security Division as unlawful retaliation. See id. at 766.
Significantly for present purposes, the D.C. Circuit held that this type of claim
falls outside the Egan bar because “Egan shields from review only those security
decisions made by . . . employees . . . trained and authorized to make security clearance
determinations, and not the actions of . . . other . . . employees who, like Rattigan’s . . .
supervisors, may from time to time refer matters to the [Security] Division.” Id.
(internal quotation marks and citation omitted). The Court explained that this limitation
was consistent with the rationale of Egan, which was that “certain discretionary
security decisions are . . . committed to the Executive’s expert judgment.” Rattigan I,
643 F.3d at 983. Furthermore, to mitigate the risk that Title VII actions such as these
might chill the reporting of important security concerns, the court “impose[d] a scienter
requirement—a Title VII claimant may proceed [with a Rattigan claim] ‘only if he can
22
show that agency employees acted with retaliatory or discriminatory motive in reporting
or referring information that they knew to be false.’” Burns-Ramirez, 962 F. Supp. 2d
at 256 (emphasis in original) (quoting Rattigan II, 689 F.3d at 771). The Circuit also
subsequently determined that both the “[m]otive and knowing falsity must unite in the
same person”; that is, the same employee who makes the report with the prohibited
motive must also know that the report is false. Rattigan v. Holder (Rattigan III), 780
F.3d 413, 416 (D.C. Cir. 2015). Thus, a plaintiff seeking to bring a Rattigan-based
Title VII claim to challenge a security referral must show that: (1) the reporting
employee had a discriminatory or retaliatory motive for reporting the plaintiff or
referring false information about him, and (2) the reporting employee knew that the
report or referral of information was false. See Rattigan II, 689 F.3d at 771.
With all this in mind, Njang argues that his Title VII claim is not precluded
under Egan because it falls squarely within the Rattigan realm. (See Pls.’ Opp’n at 19–
20.) To be sure, Njang appears to have offered sufficient evidence to raise a genuine
question regarding the fact-based issue of whether his supervisor (project manager
Ackerman) orchestrated knowingly false allegations regarding Njang’s participation in
time card fraud for racially discriminatory reasons and then referred Njang to the
Federal Protective Services division for a suitability review on this basis. See infra Part
III.B.2. But for Egan purposes, the fit between the facts of the instant case and the
facts of Rattigan is not sufficiently exact. This is because the only adverse employment
action that the plaintiff in Rattigan challenged was the false security referral itself, see
Rattigan I, 643 F.3d at 981 (explaining that “[i]n contrast to the claims raised in Ryan,
Bennett, and Egan itself, Rattigan’s claim implicates neither the denial nor revocation
23
of his security clearance nor the loss of employment resulting from such action”), and
no Egan concerns were implicated under such circumstances because the sole act to be
evaluated by the Court was the allegedly discriminatory referral—an act that occurred
prior to the unreviewable security clearance determination. By contrast, Njang appears
to be challenging his termination, which occurred after the security clearance review
(see Compl. ¶ 1 (stating that “Plaintiffs bring this action against their former employer
for firing them”)), and although the termination allegedly stemmed from a knowingly
false and discriminatory security referral by Ackerman (see Pls.’ Opp’n at 20
(“Plaintiffs in this case clearly are challenging the actions of Defendant’s agents in
falsely reporting to the Federal Protective Service that Plaintiff[] Njang . . . encouraged
employees to [commit time card fraud].”), Njang’s Title VII does conceivably implicate
concerns about evaluating a security clearance decision in a manner that the claim in
Rattigan did not. Thus, the Rattigan cases do not provide an obvious escape from Egan
preclusion for Njang, insofar as they do not establish that a claim challenging a
termination based on a discriminatory security referral evades the Egan bar on Title VII
claims that the D.C. Circuit recognized in Ryan and Bennett. 7
7
A legal system that permits a suit by a plaintiff who brings a Title VII claim to challenge a knowingly
false referral to security authorities that does not result in any further harm to the plaintiff—as in
Rattigan—but prevents a suit by a Title VII plaintiff who suffers actual harm (termination) as a result
of a knowingly false referral to security authorities—the allegation here—is manifestly strange. But
the oddness of that outcome is somewhat mitigated when one considers another significant difference
between the facts of Rattigan and the claims at issue here: Rattigan’s claim was brought under Title
VII’s antiretaliation provision, 42 U.S.C. § 2000e-3(a), while Njang’s claim was brought under Title
VII’s substantive antidiscrimination provision, 42 U.S.C. § 2000e-2(a). The D.C. Circuit has long
recognized that the antiretaliation provision “‘cover[s] a broad range of employer conduct’ that extends
beyond the statute’s substantive antidiscrimination provision[,]” Rattigan I, 643 F.3d at 986 (alteration
in original) (quoting Thompson v. N. Am. Stainless, LP, 562 U.S. 170, 173 (2011)), and this greater
breadth manifests itself in the wider range of materially adverse actions that a Title VII plaintiff can
challenge as retaliatory. Thus, a plaintiff who brings a typical discrimination claim can only contest as
sufficiently adverse an action that caused “a significant change in [his] employment status, such as
hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a
decision causing significant change in benefits.” Douglas v. Donovan, 559 F.3d 549, 552 (D.C. Cir.
24
2. Njang’s Title VII Claim Appears To Rest On A Cat’s Paw Theory,
But Neither Party Has Briefed How Such a Claim Interacts With
The Egan And Rattigan Doctrines Or Whether The Record
Evidence Establishes The Requisite Proximate Cause
Notwithstanding the unavailability of the Rattigan path as a gateway past the
Egan bar for Njang’s Title VII challenge to his termination, this Court notes that
Njang’s discrimination claim is somewhat atypical, insofar as he does not appear to
contend that the decision of the FPS security review personnel was a pretext for
discrimination, or that the person who allegedly acted with discriminatory animus—his
manager, Ackerman—was the person who made the decision to revoke his clearance,
necessitating his firing. Instead, Njang asserts that the suitability review undertaken by
potentially well-meaning security staff would not have occurred but for the knowingly
false referrals that Ackerman made with discriminatory intent. (See Pls.’ Opp’n at 9
(“Njang insists that Defendant orchestrated [false] statements against him . . . in order
to . . . replace [him] with [a] Caucasian[] . . . .”) This kind of claim is based on a “cat’s
paw” theory of liability, which the Supreme Court has accepted as a means of
establishing an employment discrimination claim. See Staub, 131 S. Ct. at 1191. 8 In
2009) (internal quotation marks and citation omitted). By contrast, “the antiretaliation provision . . . is
not limited to discriminatory actions that affect the terms and conditions of employment[,]” Thompson,
562 U.S. at 174 (internal quotation marks and citation omitted), and, indeed, a Title VII plaintiff
alleging retaliation can challenge any action “that ‘could well dissuade a reasonable worker from
making or supporting a charge of discrimination[,]’” Rattigan I, 643 F.3d at 986 (quoting Burlington N.
& Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006)). Thus, while the Rattigan court concluded that a
reasonable jury could find that the security referrals themselves—regardless of any subsequent
investigation—could dissuade a reasonable worker from bringing a discrimination claim, see id., it is
highly doubtful that a false referral, on its own, would qualify as a significant change in employment
conditions for discrimination purposes. Consequently, if Njang attempted to shoehorn his Title VII
action into the Rattigan doctrine by restyling his claim as a challenge to Ackerman’s allegedly
discriminatory referral alone, he would likely fail to state a claim for discrimination under Title VII.
8
The term “cat’s paw” derives from one of Aesop’s fables in which “a monkey induces a cat by flattery
to extract roasting chestnuts from the fire. After the cat has done so, burning its paws in the process,
the monkey makes off with the chestnuts and leaves the cat with nothing.” Staub, 131 S. Ct. at 1190
n.1.
25
Staub v. Proctor Hospital, which concerned an employment discrimination claim
brought under the Uniformed Services Employment and Reemployment Act (USERRA),
38 U.S.C. § 4311, the Supreme Court held that liability exists under a cat’s paw theory
where “a supervisor performs an act motivated by [discriminatory] animus that is
intended by the supervisor to cause an adverse employment action, and . . . that act is
[the] proximate cause of the ultimate employment action,” even if the supervisor was
not the official who made the decision to take adverse action. 131 S. Ct. at 1194
(emphasis omitted). 9 The Staub Court explained that proximate cause in this context
“requires only some direct relation between the injury asserted and the injurious
conduct alleged,” such that “the exercise of judgment by the [subsequent]
decisionmaker does not prevent the earlier agent’s action (and hence the earlier agent’s
discriminatory animus) from being the proximate cause of the harm.” Id. at 1192
(internal quotation marks and citation omitted). Thus, the cat’s paw theory applies
when “the company official who makes the decision to take an adverse employment
action . . . has no discriminatory animus but is influenced by previous company action
that is the product of a like animus in someone else.” Id. at 1191; see, e.g., Walker v.
Johnson, 798 F.3d 1085, 1095 (D.C. Cir. 2015); Swann v. Office of the Architect of the
Capitol, No. 13-CV-01076 (CRC), 2016 WL 2733099, at *5 (D.D.C. May 10, 2016).
What complicates matters for the purpose of the instant analysis is the fact that
Staub-style employment discrimination claims do not press the traditional argument that
the decision maker’s proffered reason was a pretext for discrimination; instead, this
9
The Staub Court noted that USERRA “is very similar to Title VII,” Staub, 131 S. Ct. at 1191, and
courts in this jurisdiction have applied Staub’s analysis to Title VII claims. See, e.g., Burley v. Nat’l
Passenger Rail Corp., 801 F.3d 290, 297 n.1 (D.C. Cir. 2015); Gibbs v. Wash. Metro. Area Transit
Auth., 48 F. Supp. 3d 110, 127 n.4 (D.D.C. 2014).
26
theory of Title VII liability maintains that another agent “committed an action based on
discriminatory animus that was intended to cause, and did in fact cause, [the
challenged] adverse employment [action].” Staub, 131 S. Ct. at 1193. Therefore, it is
not clear how a cat’s paw claim interacts with the traditional pretext-based analysis
under McDonnell Douglas. See Diaz v. Tyson Fresh Meats, Inc., 643 F.3d 1149, 1151
(8th Cir. 2011) (acknowledging, but not resolving, the “uneasy marriage” between a
Staub analysis and McDonnell Douglas); see also Seoane-Vazquez v. Ohio State Univ.,
577 F. App’x 418, 427 n.3 (6th Cir. 2014); Benjamin Pepper, Staub v. Proctor Hospital:
A Tenuous Step in the Right Direction, 16 Lewis & Clark L. Rev. 363, 385 (2012)
(identifying the interaction of Staub and McDonnell Douglas as an open question).
And, consequently, it is also unclear whether a Title VII claim challenging a
termination of employment that was allegedly caused by a discriminatory referral to
security clearance authorities can proceed despite Egan; in other words, it has yet to be
decided whether Egan preclusion applies to a cat’s paw–based Title VII claim that
challenges a termination that results from the revocation of a security clearance, given
that, as explained above, the D.C. Circuit considered Egan to be applicable to Title VII
claims precisely because of the specific intersection of Egan and McDonnell Douglas.
Neither party here has recognized that Njang’s claim follows a cat’s paw
structure, much less spoken to the question of whether and to what extent Egan
precludes Title VII claims involving the revocation of a security clearance in which the
challenge to the employee’s termination is premised on a cat’s paw theory. In addition,
and perhaps even more fundamentally, having not recognized the potential applicability
of Staub, the parties here have not evaluated or addressed the question of whether the
27
established facts in the instant record are sufficient to demonstrate the elements of a
Staub claim—i.e., (1) that a supervisor performed an act of discriminatory animus; (2)
that the act was intended to cause an adverse employment action; and (3) that the act
was the proximate cause of the ultimate adverse action, see Shinabargar v. Bd. of
Trustees of Univ. of D.C., No. 15-CV-330 (BAH), 2016 WL 393180, at *9 (D.D.C. Feb.
1, 2016)—even assuming that such claim can proceed as a matter of law.
Notably, this Court finds that the record evidence in this case does raise a
genuine issue of fact regarding the first two Staub elements, insofar as a reasonable jury
could find that Ackerman’s referral of Njang to the Federal Protective Services was
made with a discriminatory intent and was knowingly false, and was intended to result
in his termination. Specifically, Njang asserts that Ackerman made racist comments
and revealed his preference for white employees over black employees on numerous
occasions. A sworn declaration that Njang has attached to his Opposition brief
catalogues these racially insensitive remarks. 10 And given this testimony, there would
10
(See Njang Decl. ¶ 7 (“In the presence of Mr. Grimm and Mr. Buchner, Mr. Ackerman accused me of
not being able to speak clearly and asserted that I spoke like a ‘monkey from Africa’ and that I needed
a translator for him to understand me. Mr. Ackerman said that he was uncomfortable working with
people who could not speak English, and that he could not understand why I was named supervisor on
the site. He accused me of not being able to speak English because of my accent.”); id. (“A few days
later, Mr. Ackerman and I were discussing business in the lobby at 810 7 th St. and he said that I needed
to talk more clearly because he did not understand me.”); id. (“I was so upset about Mr. Ackerman’s
remarks I sent a complaint to the President of the Company on 7/18/09 wherein I objected to the
discriminatory treatment by Mr. Ackerman.”); id. ¶ 8 (“[In July 2009,] Mr. Ackerman told me that I
needed to name an assistant to cover when I [was] not at work, and he need[ed] to have questions
answered. I told him that I would name Marco Washington (African American) as my assistant . . .
because he ha[d] filled in as my assistant in the past and ha[d] extensive experience in security work.
Mr. Ackerman told me that he did not want Mr. Washington to be my assistant because he claimed that
we needed diversity on the workforce. I understood that as referring to Mr. Washington being black.
Mr. Ackerman pressed me to name Ivan Guadarrama (Caucasian), who had only been an officer since
March or April[] 2009 and had no supervisory background and no security experience. . . . I refused to
name Mr. Guadarrama to be my assistant . . . .”); id. ¶ 9 (“I recall having a supervisor’s meeting in
August 2009 at my site [at] about 8:30 in the morning and Mr. Ackerman was meeting with myself and
Mr. Buckner (African American) in the lobby.[] Mr. Buckner’s cell phone rang and Mr. Ackerman
commented to Mr. Buckner: ‘Can we cut off that monkey music? That is so unprofessional[.]’ The
music was from a popular African American singer by the name of Jamie Foxx.”).)
28
appear to be ample evidence to support a conclusion that Ackerman had a
discriminatory motive when he referred Njang for a suitability review.
In addition, the record also contains testimony that could support a jury finding
that the fraud accusations made against Njang were false, that Ackerman referred the
fraud allegations to FPS knowing that they were false, and that Ackerman made the
referral with the intent to get Njang fired. To begin with, Njang flatly denies
committing any time card fraud. (See Pls.’ Opp’n at 20; see also Njang Decl. ¶ 17
(testifying that the allegations of fraud that were made against him were false).)
Moreover, although two Whitestone employees testified that they had witnessed Njang
instructing another employee to falsify her time card (see Njang Decl., Attach. 3, ECF
No. 19-4, at 18–19), the schedule sheets that Njang has submitted as evidence appear to
support Njang’s contention that his accusers were not even present at the relevant time,
and thus could give rise to a reasonable inference that the fraud allegations were
fabricated (see id., Attach. 4, ECF No. 19-4, at 21–22). Furthermore, Ejikunle’s
declaration strongly implies that Ackerman knew false charges regarding time card
fraud were being made against Njang, and that it was Ackerman who arranged for
Njang’s accusers to report these false claims in order to bring about Njang’s
termination. According to Ejikunle, after Njang was fired, one of the employees who
had accused Njang at Ackerman’s behest threatened that “if [she] did not start showing
support for Ackerman . . . they would look for some reason to remove [her] . . . , just
as they had done with Mr. Njang and Mr. Washington.” (Ejikunle Decl. ¶ 13.) All told,
then, a reasonable jury could find on this record that Ackerman had a discriminatory
motive and was behind the fabrication and referral of the fraud claims against Njang
29
(thus, he knew the accusations were false), in order to prompt the suitability
investigation that led to Njang’s firing. 11
Given all that, this Court is confident that any heightened scienter requirement
that might be necessary to prevent clearance-related Title VII claims from chilling good
faith security referrals in the cat’s paw context is at least arguably present in this case.
See Rattigan II, 689 F.3d at 770. Thus, what remains to be assessed for the purpose of
summary judgment is whether Egan nevertheless precludes cat’s paw–based Title VII
termination claims stemming from knowingly false and discriminatory referrals to
security clearance authorities (i.e., whether Njang’s cat’s paw theory of liability is
viable as a matter of law), and, if such claims can proceed despite Egan, whether the
evidence here is such that a reasonable jury could find that the revocation of Njang’s
suitability clearance was, in fact, proximately caused by Ackerman’s discriminatory
11
Defendants’ primary response is to argue that this Court should disregard Njang’s own sworn
testimony for several reasons. (See Def.’s Reply 5–6.) This Court concludes that none of these reasons
is persuasive. First of all, the Court does not perceive a fatal contradiction between Njang’s
declaration and his prior sworn deposition testimony (see Def.’s Reply at 6 (arguing that Njang initially
denied knowing what prompted the FPS investigation and his suitability revocation, but later stated in
his declaration that false reports submitted by Whitestone employees prompted the investigation (citing
Njang Dep. at 9, 10; Njang Decl. ¶ 20))), because any discrepancy between Njang’s two statements is
easily accounted for by considering the scope of the questions posed in the two different settings—i.e.,
the statements in Njang’s deposition speak to whether he knew about the reasons behind his suitability
revocation at the time it occurred (see Njang Dep. at 10 (“Q: Do you know why you were forced to
surrender your credentials to the FPS Officers? A: On that September 23, 2009, I didn’t know why they
asked me to surrender my credentials . . . .”)), while the declaration statement Defendant points to
discusses what Njang believed at the time of the declaration (see Njang Decl. ¶ 20 (“Now I believe that
Ackerman used the falsified statements prepared by Guadarrama, and Officers Schorr and Smith to get
our suitability revoked.”)). Furthermore, because Njang’s statement that “[t]o date, [he had] never been
told why [his] credentials were taken from [him]” (Njang Decl. ¶ 16) does not contravene his later
statement that he believed Ackerman was behind the revocation, Njang’s declaration is not internally
contradictory. (See Def.’s Reply at 6.) And Whitestone also fails to establish that Njang’s theory that
Ackerman knowingly falsely reported information to the FPS is not supported by personal knowledge
and thus should be disregarded. It is true that Njang makes this assertion in his declaration (see Njang
Decl. ¶ 20), and that his own knowledge of Ackerman’s mental state is limited, but the falsity
contention is supported by other record evidence: specifically, Ejikunle’s sworn declaration that
Guadarrama threatened that he and Ackerman would “look for some reason to remove [her] from the
site, just as they had done with Mr. Njang” (Ejikunle Decl. ¶ 13). Therefore, there is ample factual
basis for concluding that Ackerman knowingly reported false information to FPS in order to initiate
FPS’s investigation of Njang, and a reasonable jury could so find.
30
referral (i.e., whether the proximate cause element of the Staub analysis has been met).
In this regard, then, while Njang may very well have the kernels of a successful Title
VII claim at the Rule 56 stage, this Court needs more elaboration from the parties
before it can determine with certainty whether Njang’s claim can proceed to trial.
IV. ORDER
For the reasons explained above, Plaintiffs’ Section 1981 claims are time-barred,
and Njang’s Title VII claim must be analyzed further. Accordingly, this Court has
already GRANTED IN PART and DENIED IN PART Defendant’s motion for
summary judgment. (See Order, ECF No. 22 (granting in part and denying in part ECF
No. 18).) It is hereby
ORDERED that Defendant Whitestone shall submit a renewed motion for
summary judgment, along with a memorandum of law that specifically addresses the
issues of (1) whether Egan precludes Njang’s Title VII claim as a matter of law, and (2)
whether Njang’s Title VII claim survives summary judgment under a cat’s paw theory.
Defendant’s memorandum, which shall be no more than 25 pages, shall be filed on or
before June 17, 2016, and shall evaluate Njang’s claim under the cat’s paw framework
articulated in Staub (especially with respect to Staub’s proximate cause requirement),
and also analyze how a cat’s paw claim intersects with Egan and the D.C. Circuit cases
that interpret Egan’s applicability to Title VII claims. Plaintiff Njang shall file a
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responsive brief of no longer than 25 pages on or before July 8, 2016; and any reply
brief, which shall be no longer than 15 pages, shall be filed on or before July 22, 2016.
DATE: May 18, 2016 Ketanji Brown Jackson
KETANJI BROWN JACKSON
United States District Judge
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