United States District Court, D. Maryland
EMANUEL M. THOMPSON, et al., Plaintiffs,
ANDREW PRETZELLO, et al., Defendants.
Richard D. Bennett United States District Judge
The present action consists of two consolidated cases. In the first case, Plaintiff Emmanuel Thompson (“Thompson”) brings this action against Defendants Andrew Pretzello (“Pretzello”) and the United States Nuclear Regulatory Commission (the “NRC”) (collectively, “Defendants”),  alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”), 42 U.S.C. § 1981, 42 U.S.C. § 1983, and the Freedom of Information Act, 5 U.S.C. § 552 (“FOIA”). In the second case, Plaintiff Karl McDonald (“McDonald”) asserts identical claims and facts to those levied by Thompson. Both McDonald and Thompson (collectively, “Plaintiffs”), proceeding pro se, claim they suffered discrimination on the basis of their race while stationed, through their employment with GS4 American’s Waken Hut Service (“Waken Hut”), at Defendant NRC. Due to the common questions of law and fact, this Court consolidated the cases on October 2, 2015, pursuant to Rule 42(a) of the Federal Rules of Civil Procedure. See Order, ECF No. 21.
Presently pending before this Court is Defendants’ Motion to Dismiss and for Summary Judgment (ECF No. 30). The parties’ submissions have been reviewed and no hearing is necessary. See Local Rule 105.6 (D. Md. 2014). For the reasons stated below, Defendants Andrew Pretzello and United States Nuclear Regulatory Commission’s Motion to Dismiss and for Summary Judgment (ECF No. 30), construed as a Motion to Dismiss, is GRANTED. Plaintiffs’ Complaints are thus DISMISSED in their entirety.
This Court accepts as true the facts alleged in Plaintiffs’ Complaints. See Asiz v. Alcolac, Inc., 658 F.3d 388, 390 (4th Cir. 2011). This Court also recognizes that Plaintiffs are pro se and has accorded their pleadings liberal construction. See Erickson v. Pardus, 551 U.S. 89, 94 (2007).
I. Alleged Discriminatory Conduct
Plaintiffs allege that they suffered discrimination on the basis of their race while stationed, through their employment with GS4 American’s Waken Hut Service (“Waken Hut”), at Defendant NRC. At the time of the alleged discriminatory conduct,  Thompson and McDonald were employed as security professionals by Waken Hut but stationed at the NRC. Thompson Compl. ¶ 3, ECF No. 1. Beginning in 2008, Simpler was allegedly assigned to the Plaintiffs’ work location as the “Contracting Officer Technical Representative.” Id. ¶ 5. Plaintiffs are African-American, whereas Simpler is Caucasian. Plaintiffs allege that Simpler made repeated racially-charged derogatory remarks directed at the Plaintiffs and other African-American employees from 2009 to 2010. Id. ¶¶ 6, 8, 9, 10. Defendant Pretzello, the Deputy Director of the Division of Facilities and Security at Defendant NRC, was allegedly Simpler’s supervisor and “responsible for [Simpler’s] hiring and/or maintenance of his employment” during all periods relevant to Plaintiffs’ claims. Id. ¶ 7.
In response to Simpler’s alleged actions, Plaintiffs filed a written complaint of racial discrimination in January 2010. Id. ¶ 10. Later that month, McDonald attended a meeting with Branch Chief Darlene Fenton (“Branch Chief Fenton”) and two other individuals. Id. ¶ 11. At the meeting, McDonald described Simpler’s alleged discriminatory actions in detail. Id. A meeting was then held to discuss the discrimination allegations, at which the Waken Hut management team and Pretzello were present. Id. Thompson and McDonald allege that, despite these meetings, no action was taken against Simpler. Id. ¶ 12.
Plaintiffs claim that Simpler continued to make racially-charged derogatory comments to them. Id. ¶ 13. Thompson and McDonald consequently filed another written complaint in April 2011 and met with Branch Chief Fenton to discuss their complaint. Id. Branch Chief Fenton then allegedly told the Plaintiffs that she would terminate Simpler. Id. Plaintiffs assert that “upper level management” at NRC, including Pretzello, blocked Simpler’s termination. Id. Subsequently, Branch Chief Fenton was allegedly “removed, relocated, and/or terminated.” Id. On September 15, 2011, Plaintiffs were discharged for alleged “timesheet falsification.” Id. ¶ 14. Plaintiffs contend that this justification was mere pretext for their wrongful termination, which they claim was a result of their “rightful opposition to [Simpler’s] racial discrimination.” Id. ¶ 15.
II. Freedom of Information Act (“FOIA”) Request
Pursuant to Plaintiffs’ allegations of Simpler’s discriminatory conduct, the NRC Officer of Inspector General (“NRC OIG”) initiated an investigation to create a report on the matter (“OIG Report”). Defs.’ Mot. to Dismiss 3, ECF No. 30. On May 9, 2014, during the separate litigation Plaintiffs initiated against Waken Hut, McDonald, through counsel, requested “access to the report and any accompanying documents, information and/or tangible items that were used in preparation and/or dissemination of the report, pursuant to the Freedom of Information Act.” Defs.’ Mot. to Dismiss Ex. B, ECF No. 30-3 (Copy of FOIA Request). The FOIA request was denied under 5 U.S.C. § 552(b)(7)(A), which provides a disclosure exemption where the requested information could interfere with an enforcement proceeding. Defs.’ Mot. to Dismiss Ex. C, ECF No. 30-4 (Copy of FOIA Response). McDonald twice appealed the denial of his request, however these appeals were also denied on July 11, 2014. Defs.’ Mots. to Dismiss Exs. D, F, ECF Nos. 30-5 & 30-7 (Copies of Appeal Letters). Upon McDonald’s third appeal of the request denial, the NRC OIG had concluded its investigation; thus, the disclosure exemption no longer applied. The NRC subsequently produced the “releasable portions” of the OIG Report, redacting any identifying information of “the target, all third-party witnesses, and the investigatory officers.” Defs.’ Mot. to Dismiss Exs. I, J, ECF Nos. 30-9 & 30-10 (Copies of Appeal Determination Letter, Redacted NRC OIG Report). McDonald and Thompson now seek the disclosure of the redacted individuals’ names.
STANDARDS OF REVIEW
I. Rule 12(b)(1) of the Federal Rules of Civil Procedure
A motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction challenges a court’s authority to hear the matter brought by a complaint. See Davis v. Thompson, 367 F.Supp.2d 792, 799 (D. Md. 2005). This challenge under Rule 12(b)(1) may proceed either as a facial challenge, asserting that the allegations in the complaint are insufficient to establish subject matter jurisdiction, or a factual challenge, asserting “that the jurisdictional allegations of the complaint [are] not true.” Kerns v. United States, 585 F.3d 187, 192 (4th ...