The US District Court in the Eastern District of Illinois took a definitive stance on separating two distinct legal issues when it denied defendant Exelon Energy’s motion to dismiss Plaintiff MW’s civil suit for discrimination against the company even though she had lost her security clearance to work in that capacity.

In the memorandum and order dated November 22, the facts of the case are clearly laid out. MW worked for Exelon as a nuclear equipment operator in a nuclear power plant, a job that obviously would require a security clearance. MW in her pleadings alleged that another worker, JZ, sexually harassed her for several months in 2017, and she reported the matter to her union who in turn reported it shortly thereafter to Exelon’s HR department. HR then commenced an investigation but did not move JZ, stating he had too much seniority, according to plaintiff MW. In June she was granted a restraining order by Illinois State Court against JZ.  Prior to that, MW had been diagnosed with PTSD by mental health professionals due to allegedly being stalked by JZ, and Exelon’s subsequent failure to take decisive action.

Under the U.S. Nuclear Regulatory Commission’s “fitness for duty” requirements, Exelon made a mandatory referral of MW to its Employee Assistance Program due to her PTSD diagnosis. She was put on short term disability until August of the same year. MW complained to Exelon that they did not report the restraining order against JZ to the NRC as was required. The predicament of what to do to separate JZ from MW was difficult, as JZ’s union steward stated he could not be forced to work on third shift.

When MW returned to work, she alleged she was told that it was impossible to prevent JZ from ever being at the plant while she was there, but was assured there would be very narrow windows of working together and crossing paths. MW also stated that in September of 2017 she was participating in a meeting in which she heard JZ’s voice on a speaker phone, which upset her to the point she had to leave the meeting and suffered an anxiety attack in the bathroom outside the room. Exelon officials then told her until they figured out how to handle the work arrangements they were “zeroing out” her badge. MW has been off work since then.

MW subsequently filed suit for discrimination (she was reported to NRC, JZ was not) and violations of the Americans with Disability Act (not making accommodations for her PTSD).

In the memorandum, it states:

MW alleges that Exelon failed to adequately address JZ’s conduct towards her, which caused her emotional and physical distress, which Exelon then failed to properly accommodate, which then led to investigation of MW’s emotional and mental state, and eventually her termination for failure to maintain a security clearance under NRC regulations. Of course, termination and the steps taken to accomplish it are unquestionably adverse actions.MW alleges that Exelon took these actions, rather than actions more favorable to her and possibly less favorable to JZ, because she is a woman and JZ is a man. That is all MW needs to allege at the pleading stage to state a claim for sex discrimination in violation of Title VII.

Security Clearance Denial Prohibits Discrimination Lawsuit?

Exelon argued that a plaintiff fired for failing to maintain a security clearance is barred from bringing a discrimination lawsuit for failure to satisfy security clearance regulations because those decisions are within the sole discretion of the executive branch. Exelon made that argument based on long-standing legal theory couched around the Separation of Powers Clause in the U.S. Constitution (notably Department of the Navy vs. Egan) and that NRC Regulations did not allow her to keep her clearance and her employment was not up to Exelon itself. However, the district court differed in their opinion, stating:

Exelon may be correct that Egan will ultimately require dismissal of MW’s Title VII claim. Federal courts appear to agree that Egan requires dismissal of any claim that ultimately requires review of a security clearance determination. But some courts have held that Egan does not bar claims alleging that a private employer “used the government’s security clearance decision as a pretext for terminating [the plaintiff] in a discriminatory fashion

In its final paragraph before the motion to dismiss was denied, the court expressly left open the door for the matter to continue based on the distinction of the “private employer” vs. government agency made in previous cases by restating:

In other words, Egan does not bar discrimination lawsuits against private employers that have not been delegated authority over security clearance decisions. Exelon is a private company, but it does not address this authority discussing how Egan applies to it. Moreover, the complaint is an insufficient basis to determine Exelon’s relationship with the NRC and whether Exelon’s decisions can be attributed to the government. Discovery is necessary on that issue as well.

So, if in fact Exelon had no choice on how to handle the matter via the NRC and can show that with evidence and regulatory authority, they may eventually prevail on this issue. Otherwise, the case will proceed to the finder of fact to determine what, if any, liability Exelon has in the matter. In any event, the matter could be one ripe for appeal from either side and create new precedence, at least in that circuit. As one law professor once told me, “there is no such case that is exactly on point with yours and if you can’t find the distinctions, you are not doing your job”.

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Joe Jabara, JD, is the Director, of the Hub, For Cyber Education and Awareness, Wichita State University. He also serves as an adjunct faculty at two other universities teaching Intelligence and Cyber Law. Prior to his current job, he served 30 years in the Air Force, Air Force Reserve, and Kansas Air National Guard. His last ten years were spent in command/leadership positions, the bulk of which were at the 184th Intelligence Wing as Vice Commander.