Opinion
ll-CV-5215 (CBA)
November 23, 2011.
MEMORANDUM AND ORDER
On October 24, 2011, plaintiff Noha Shehabeldin, appearing pro se, commenced this action pursuant to 42 U.S.C. § 2000e-3 against the United States Postal Inspection Service ("USPIS") and USPIS administrator Lewis Brooks, based on the revocation of Shehabeldin's security clearance for her job as a mail courier at JFK airport. Shehabeldin seeks $50,000 in damages. Shehabeldin's request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 is granted solely for the purpose of this order. For the reasons set forth below, the complaint is dismissed in full.
Standard of Review
Pursuant to the in forma pauperis statute, a district court must dismiss a case if the court determines that the complaint "is frivolous or malicious; fails to state a claim on which relief may be granted; or seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B). In reviewing plaintiffs complaint, the Court is mindful that, "a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus. 551 U.S. 89, 94 (2007) (internal quotation marks omitted); see Sealed Plaintiff v. Sealed Defendant. 537 F.3d 185, 191 (2d Cir. 2008). However, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal. 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
Background
Discussion
240.26
It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment, for an employment agency, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-thejob training programs, to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.42 U.S.C. § 2000e-3(a).
Even under the most liberal pleading standards, however, the complaint does not state a claim for retaliation. Section 2000e-3 protects employees who have participated in a Title VII proceeding, such as by filing a charge or complaint of discrimination against their employer, and whose employer retaliated against them for doing so. "That is, an employee must show (1) participation in a protected [Title VII] activity; (2) that the defendant knew of the protected activity; (3) an adverse employment action; and (4) a causal connection between the protected activity and the adverse employment action." Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir. 2005) (internal quotation marks omitted). Here, Shehabeldin has never been employed by USPIS, and she does not allege that she ever filed a charge of discrimination or participated in any way in a Title VII proceeding. She also does not appear to have filed a complaint with the EEOC, which is a statutory prerequisite to maintaining any Title VII action in district court. McPherson v. New York Citv Dept. of Educ. 457 F.3d 211, 213 (2d Cir. 2006). Thus, Shehabeldin's retaliation claim may not lie.
In addition, there is no individual liability under Title VII, so Shehabeldin cannot state a Title VII claim against defendant Brooks. Wrighten v. Glowski. 232 F.3d 119, 120 (2d Cir. 2000).
Rather, Shehabeldin's complaint appears to consist primarily of a challenge to USPIS's decision to revoke her security clearance. It is well-settled, however, that federal courts lack jurisdiction over the merits of security clearance decisions, which are committed by law to the Executive branch. See Department of the Navy v. Egan, 484 U.S. 518, 528-29 (1969);Criales v. American Airlines. 1999 WL 1487601, at *9 (E.D.N.Y. 1999) ("Egan has consistently been held to stand for the proposition that federal courts lack jurisdiction over challenges to the merits of security clearance denials."); Williams v. Reilly. 743 F. Supp. 168, 171 (S.D.N.Y. 1990) ("[T]he Court has no subject matter jurisdiction to review [the Defense Department agency's] decision to investigate or revoke Williams' security clearance."); Brazil v. U.S. Dep't of Navy, 66 F.3d 193, 196 (9th Cir. 1995) (holding that Egan and circuit precedent "preclude judicial review of security clearance decisions made by the Executive or his delegee" even "in the context of a Title VII discrimination action"). Thus, Shehabeldin is unable to state a claim on these grounds.
Conclusion
Accordingly, the complaint, filed in forma pauperis, is dismissed for failure to state a claim. 28 U.S.C. § 1915(e)(2)(B). The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of an appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.