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Abilt v. Central Intelligence Agency

United States District Court, E.D. Virginia, Alexandria Division

February 10, 2015

JACOB E. ABILT, Plaintiff,
v.
CENTRAL INTELLIGENCE AGENCY, et al., Defendants.

MEMORANDUM OPINION AND ORDER

GERALD BRUCE LEE, District Judge.

This matter is before the Court on Defendants Central Intelligence Agency and John 0. Brennan's ("Defendants") Motion to Dismiss (Doc. 28). This is an employment discrimination action where Plaintiff Jacob E. Abilt[1] ("Plaintiff") alleges that his former employer, the Central Intelligence Agency ("CIA"), discriminated against him on the basis of his disability and his race, subjected him to a hostile work environment, and retaliated against him for complaining of discrimination. Plaintiff alleges that his supervisors at the CIA falsely reported that he was failing to satisfactorily perform his work assignments and later terminated him based on discriminatory motives. Defendants have formally asserted the state secrets privilege claiming that further litigation of Plaintiff's claims would require the disclosure of privileged information. Defendants maintain that dismissal is the appropriate remedy as privileged information is essential to the litigation of Plaintiff's claims. The issues before the Court are (1) whether Defendants have properly invoked the state secrets privilege, and (2) whether this action can proceed without risking disclosure of privileged information.

The Court holds that Defendants have properly invoked the states secret privilege. After careful consideration of the public and classified pleadings, the Court holds that Plaintiff s claims must be dismissed under the state secrets privilege because (1) privileged information is at the heart of Plaintiffs claims for discrimination on the basis of disability and race, hostile work environment and retaliation, (2) Defendants cannot defend this action without relying on privileged information, and (3) further litigation of Plaintiffs claims would present an unjustifiable risk of disclosure of classified information regarding (a) the identities of CIA officers and employees, (b) the job titles, duties, work assignments of Plaintiff and other covert employees, and the criteria and reasons for making the work assignments and employment decisions regarding them, (c) sources and methods used by covert employees, including operational tradecraft and the identity of human assets; (d) the targets and focus of CIA's intelligence collection and operations, and (e) the location of CIA covert facilities. Accordingly, the Court grants Defendant's motion.

BACKGROUND

Plaintiff Jacob Abilt, an African-American male, was employed in the CIA's National Clandestine Service[2] as an Applications Director and Technical Operations Officer from May 2008 until his termination in October 2011 (Docs. 1; 29-1). Plaintiff asserts that at or around the time he was hired, he informed his supervisors of his medically diagnosed condition, narcolepsy (Doc. 1). In 2009, Plaintiff began to experience symptoms of his disability in the workplace. Id. His supervisors agreed to grant Plaintiff an accommodation of his disability and allow him to take brief naps at his desk provided that Plaintiff account for the missing time by working through a lunch break or working beyond his scheduled tour of duty. Id. Despite this accommodation, Plaintiff claims his supervisors would harass him whenever they witnessed him taking naps at his desk. Id.

In February 2011, Plaintiff's supervisors placed him on an Advanced Work Plan requiring Plaintiff to submit weekly progress reports and attend weekly meetings to discuss his work performance, despite Plaintiff having consistently received positive performance evaluations, praise on his work ethic and approval of his Student Repayment Letter (Doc. 1). Plaintiff claims that none of his similarly situated colleagues were required to submit weekly reports and attend weekly meetings with supervisors. Id. Plaintiff alleges that his supervisors used the weekly meetings as a forum to harass him about his disability and to falsely accuse his work performance as falling below standards. Id.

In March and April 2011, Plaintiff worked on a project overseas in which he received accolades for "demonstrating skills that will enable greater efficiency in several operations" (Doc. 1). Despite this praise, Plaintiff was required to resume his weekly reporting and meetings once he returned from his overseas assignment. Id. In May 2011, Plaintiff's supervisors recommended that Plaintiff undergo a Fitness for Duty Evaluation to be conducted by the Office of Medical Services. Id. Plaintiff submitted to the evaluation and was rendered fit to perform his duties with the agreed upon accommodations. Id. Plaintiff claims that between February and July 2011, Plaintiff was subjected to a continuous pattern of harassment calculated to lead to his termination. The harassment included the submission of weekly reports, attendance at weekly meetings with supervisors, false accusations of poor work performance, harassment about his disability and accommodations, confronting Plaintiff with complaints solicited from co-workers and communicating with Plaintiff in a demeaning manner. Id. Consequently, Plaintiff filed a formal administrative complaint with the CIA alleging that his supervisors at the CIA discriminated against him on the basis of his disability and race, subjected him to a hostile work environment, and retaliated against him for having engaged in previous Equal Employment Opportunity activity (Doc. 1). The CIA issued a final decision rejecting Plaintiff's claims, and Plaintiff ultimately appealed the decision to the Equal Employment Opportunity Commission ("EEOC") (Doc. 29). The EEOC affirmed the CIA's final decision and denied Plaintiff's request for reconsideration. Id. Plaintiff was ultimately terminated from his position in a decision by the Personnel Evaluation Board in October 2011 (Doc. 1).

Plaintiff now brings this suit against Defendants Brennan and the CIA alleging the following: (1) disability discrimination and failure to accommodate in violation of Section 501 of the Rehabilitation Act of 1973, 29 U.S.C. § 791, et seq. ("Rehabilitation Act") (Count One); retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. (Title VII) (Count Two); race discrimination in violation of Title VII (Count Three); and hostile work environment in violation of the Rehabilitation Act and Title VII (Count Four) (Doc. 1).

This matter is now before the Court on Defendant's Motion to Dismiss. Defendants have invoked the state secrets privilege claiming that privileged information regarding (a) the identities of CIA officers and employees, (b) the job titles, duties, work assignments of Plaintiff and other covert employees, and the criteria and reasons for making the work assignments and employment decisions regarding them, (c) sources and methods used by covert employees, including operational tradecraft and the identity of human assets, (d) the targets and focus of CIA's intelligence collection and operations, and (e) the location of CIA covert facilities is at the core of Plaintiff's discrimination claims (Doc. 29). Defendants maintain that Plaintiff cannot establish his claims, and Defendants cannot defend this action without relying on privileged state secrets information. Id. Therefore, Defendants argue, Plaintiffs action must be dismissed. Id

Plaintiff acknowledges that classified information is relevant to his claims. Plaintiff, however, maintains that the Court can reach an informed decision about whether he was terminated because of discriminatory bias, or instead, because of his alleged poor performance without considering classified information related to Plaintiff's job duties, work performance and assignments (Doc. 45). Instead, Plaintiff suggests that the Court can use pseudonyms and protective orders to protect national security interests, and other accommodations to protect national security interests. Id.

STANDARD OF REVIEW

While it is not expressly stated in their motion, Defendants presumably move to dismiss this action pursuant to Federal Rule of Civil Procedure 12(b)(6). Defendants, however, attached a public Declaration and Formal Claim of State Secrets Privilege and Statutory Privileges by Defendant Brennan (Doc. 29-1) to their motion, and submitted a classified in camera, ex parte declaration for the Court's consideration. Where the parties present matters outside of the pleadings and the court considers those matters, as here, the motion is treated as one for summary judgment. See Fed.R.Civ.P. 12(d); Gadsby by Gadsby v. Grasmick, 109 F.3d 940, 949 (4th Cir.1997). "There are two requirements for a proper Rule 12(d) conversion." Greater Baltimore Center for Pregnancy Concerns, Inc. v. Mayor and City Council of Baltimore, 721 F.3d 264, 281 (4th Cir.2013). First, all parties must "be given some indication by the court that it is treating the 12(b)(6) motion as a motion for summary judgment, " which can be satisfied when a party is "aware that material outside the pleadings is before the court." Gay v. Wall, 761 F.2d 175, 177 (4th Cir.1985); see also Laughlin v. Metro. Washington Airports Auth., 149 F.3d 253, 261 (4th Cir.1998) (commenting that a court has no obligation "to notify parties of the obvious"). "[T]he second requirement for proper conversion of a Rule 12(b)(6) motion is that the parties first be afforded a reasonable opportunity for discovery.' Greater Baltimore, 721 F.3d at 281.

Here, the parties had adequate notice that Defendants' motion would be treated as a motion for summary judgment as evidenced by the Court's February 2, 2015 Order (Doc. 48). The Court recognizes the dangers in allowing discovery to proceed in this action where Defendants contend that the very core of Plaintiff's claims implicate classified information. Therefore, the Court declined to allow any discovery in this action.

Under Federal Rule of Civil Procedure 56, the Court must grant summary judgment if the moving party demonstrates that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In reviewing a motion for summary judgment, the Court views the facts in a light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Once a motion for summary judgment is properly made and supported, the opposing party has the burden of showing that a genuine dispute exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. 242-48. A "material fact" is a fact that might affect the outcome of a party's case. Id at 248; JFK Holding Co. v. Wash. Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001). Whether a fact is considered to be "material" is determined by the substantive law, and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248; Hooven-Lewis v. Caldera, 249 F.3d 259, 265 (4th Cir. 2001). A "genuine" issue concerning a "material" fact arises when the evidence is sufficient to allow a reasonable jury to return a verdict in the nonmoving party's favor. Anderson, 477 U.S. at 248. Rule 56(e) requires the nonmoving party to go beyond the pleadings and by its own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).

ANALYSIS

I. The State Secrets Privilege

The Court holds that there is no genuine issue of material fact that Defendants have properly invoked the states secret privilege, and that the privileged information is at the heart of Plaintiff's claims for discrimination on the basis of disability and race, hostile work environment and retaliation. After careful consideration of the public and classified pleadings, the Court holds that Plaintiff's claims must be dismissed under the state secrets privilege. Plaintiff cannot establish his Title VII and Rehabilitation Act claims, nor can Defendant defend this action without reliance on evidence that is protected by the state secrets privilege. Additionally, further litigation of Plaintiff's claims would present an unjustifiable risk of disclosure of classified information regarding specific CIA programs or activities on which Plaintiff worked and information concerning the CIA's employment of Plaintiff, his colleagues, and his supervisors. Accordingly, the Court grants Defendant's Motion for Summary Judgment.

Created by federal common law, the state secrets doctrine bars litigation of an action entirely or excludes certain evidence because the case or evidence risks disclosure of "state secrets"-that is, "matters which, in the interest of national security, should not be divulged." United States v. Reynolds, 345 U.S. 1, 10 (1953). Although developed at common law, the state secrets doctrine also "performs a function of constitutional significance, because it allows the executive branch to protect information whose secrecy is necessary to its military and foreign-affairs responsibilities." El-Masri v. United States, 479 F.3d 296, 303 (4th Cir.2007). At the same time, the state secrets doctrine does not represent an abdication of judicial control over access to the courts, as the judiciary is ultimately tasked with deciding whether the doctrine properly applies to a particular case. Id. at 312. The state ...


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