The opinion of the court was delivered by: DAVIS
MEMORANDUM OPINION AND ORDER
This matter came before the Court on Defendant's motion for dismissal, or, in the alternative, for summary judgment. For the following reasons, the motion for dismissal is granted in part and the motion for summary judgment is granted in its entirety.
Plaintiff Michael J. Edwards is Chief of Security Police with the Minneapolis branch of the U.S. Air Force Reserve ("Reserve") and has been employed with the Reserve for the past 16 years. (Amended Compl. P 6-7). To maintain security clearance for his position, Edwards is required to undergo a reinvestigation every five years. (Pl. Br. at 2). The reinvestigation consists of interviewing friends and associates of the employee and examining all relevant federal records. (Def. Br. at 8). The last security clearance of Edwards was conducted and completed in 1987. (Def. Exh. A, P 5).
Edwards is responsible for initiating his own reinvestigation and in November 1992, he requested such an investigation. (Def. Br. at 3-4; Def. Exh. F). The investigation was conducted by an agent of the Minneapolis office of the Defense Investigation Service ("DIS"). The results of the investigation were sent to the Personnel Security Division ("PSD") in Washington D.C. in January 1994. The PSD concluded that Edwards' security clearance should be suspended pending adjudication so as to allow further evaluation of Edwards' security clearance. (Def. Br. at 1). Defendant claims that because the position of Chief of Security Police requires a security clearance, Edwards was removed from that position in February 1994 and was assigned to the position of Executive Officer. (Amended Compl. P 20; Def. Br. at 2). Finally, in August 1994, Defendant informed Edwards of its intent to revoke his security clearance. (Amended Compl. P 22). Edwards responded to the notice of intent and provided character statements. Edwards security clearance was thereafter restored on January 21, 1995 and he was restored to the position of Chief of Security Police.
Defendant contends that it decided to issue the letter of intent to revoke based on Edwards' alleged financial irresponsibility in connection with his bankruptcy petition and a domestic abuse report filed against him in May 1993. (Def. Exh. D, P 7). In October 1994, the bankruptcy court concluded that Edwards had completed all payments required and he was discharged from all dischargeable debts. (Def. Exh. J). Defendant claims that this resolution of Edwards' financial situation was critical in the final decision to restore Edwards' security clearance. (Def. Exh. D, P 8; Amended Compl. P 23). Edwards concedes that he did not lose any pay due to his temporary assignment to the position of Executive Officer. (Edwards Depo. at 74).
Edwards claims that during the investigation for his security clearance, certain superiors made derogatory and false statements about him in retaliation for his support of a sexual harassment claim brought against the Air Force. In 1990, Amy Dunphy, a co-worker and girlfriend of Edwards', filed a sexual harassment suit against Defendant and certain individuals. (Edwards Aff. P 2). In June 1992, Edwards gave a deposition in support of Dunphy and was the only employee who testified on her behalf. (Edwards Aff. P 4). Edwards claims that those individuals alleged to have made false statements during his investigation were also the same individuals who disputed Dunphy's allegations. (Pl. Br. at 3-5).
In October 1994, Edwards filed a complaint with the EEOC, alleging claims for retaliation discrimination.
(Amended Compl. P 22). The EEOC subsequently issued Edwards a notice of his right to sue. (Amended Compl. P 26). Edwards then brought this action, alleging a claim of retaliation discrimination under Title VII. Edwards also brought two state law claims for negligent and intentional infliction of emotional distress, over which this Court has supplemental jurisdiction. All of Edwards' claims are asserted against the sole defendant Shelia Widnall, as Secretary of the U.S. Air Force.
This matter is now before this Court on Defendant's motion to dismiss, or in the alternative, a motion for summary judgment, on the basis that Edwards failed to timely initiate contact with the EEOC, the lack of subject matter jurisdiction over security clearance determinations, and Edwards' failure to establish a prima facie case of retaliation discrimination.
For the purposes of the Defendant's motion to dismiss, the Court takes all facts alleged in the Complaint as true. Westcott v. Omaha, 901 F.2d 1486, 1488 (8th Cir. 1990). Furthermore, the Court construes the allegations in the Complaint and all reasonable inferences arising from the Complaint favorably to Edwards. Morton v. Becker, 793 F.2d 185, 187 (8th Cir. 1986). A motion to dismiss will be granted only if "it appears beyond doubt that the Plaintiff can prove no set of facts which would entitle him to relief." Id.; see Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). The Court applies those standards in the following discussion.
Under Count I of the Amended Complaint, Edwards alleges a claim pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 701 et seq. Specifically, Edwards asserts that Defendant retaliated against him in violation of Title VII by "making false and derogatory statements regarding Edwards and in changing the terms and conditions of Edwards' employment." (Amended Compl. P 29). Thus, Edwards asserts two grounds as the basis for his retaliation claim: (1) false and derogatory statements, and (2) changed terms and conditions of his employment.
In regards to the second matter, Edwards argues that the terms and conditions of his employment were unlawfully changed when Defendant removed him from his position as Chief of Security Police and issued a notice of intent to revoke his security clearance. (Pl. Br. at 15). Although Edwards asserts that he is not seeking review of the merits of his security clearance, the Court concludes that consideration of whether Defendant unlawfully changed the terms and conditions of his employment as alleged would necessarily require review of matters not reviewable by this Court.
It is well-established law that courts do not have the authority to review the merits of security clearance determinations because of the discretionary nature of such decisions and because of the exclusive authority that the Executive Branch has over matters concerning national security. In Dept. of the Navy v. Egan, 484 U.S. 518, 98 L. Ed. 2d 918, 108 S. Ct. 818 (1988), the Supreme Court held that the decision to revoke security clearance for a Navy employee was not subject to review by the Merit Systems Protection Board. Recognizing the inherent authority of the Executive Branch to control matters regarding national security, the Court noted that discretionary matters regarding security clearances are decisions of such a kind that "must be made by those with the necessary expertise in protecting classified information" as opposed to "an outside nonexpert body." 484 U.S. at 529. The ...