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July 31, 1992


The opinion of the court was delivered by: SAUNDRA BROWN ARMSTRONG




 In this action, plaintiff Frank Buttino asserts that his employment as a Special Agent with the Federal Bureau of Investigation (the "FBI") was unconstitutionally terminated because he is gay. On February 11, 1992, this Court issued an Order granting defendants' motion for summary judgment as to plaintiff's claims under the First Amendment and Due Process Clause and denying summary judgment as to plaintiff's equal protection claim. *fn1" Defendants now move for reconsideration of the Court's denial of summary judgment as to plaintiff's equal protection claim. The crux of defendants' motion for reconsideration is that the Court improperly analyzed the Declaration of D. Jerry Rubino, the Justice Department Security Officer who affirmed the FBI's decision to revoke plaintiff's security clearance on Buttino's administrative appeal. *fn2" Specifically, they contend that the Court, in examining the issues presented in their summary judgment motion, should have limited its inquiry to the bases for Rubino's affirmance of the FBI's decision, and not the impropriety or alleged bias of the FBI's investigation preceding Rubino's decision. Defendants also maintain that the Court improperly attributed anti-gay bias to Rubino's decision and that evidence of discrimination against gays in the FBI in general is not germane to this Court's inquiry. The Court finds that these arguments are without merit and do not warrant reconsideration of this Court's prior decision.



 A. The Role of Rubino's Declaration in Adjudicating Defendants' Summary Judgment Motion

 Defendants begin their analysis by stating, erroneously, that the Court "held that the content of Rubino's declaration is irrelevant." Defs.' Mot. For Recons. at 2 (emphasis added). The Court made no such a finding. Rather, what the Court found was that his declaration did not determine, as a matter of law, that Buttino's loss of his security clearance and subsequent termination -- which are inextricably intertwined -- were not the result of the FBI's anti-gay policies. Id.3

 Defendants offered Rubino's testimony as evidence of non-discriminatory bases for the revocation of plaintiff's security clearance, as Rubino was the Department of Justice Security Officer who affirmed the FBI's decision on plaintiff's administrative appeal. While such testimony potentially supports defendants' position that plaintiff was not fired because of his sexual orientation, it certainly fails to establish an absence of any triable issues of fact. The Court's finding in this regard is particularly compelling since Rubino did not even become involved in the matter until after the FBI had revoked plaintiff's security clearance.

 At the same time, the Court found that plaintiff had submitted substantial evidence from which a reasonable trier-of-fact could infer the existence of anti-gay discrimination in the FBI, generally, and the specific effect of such discrimination on the decision to fire plaintiff. That evidence included (1) the vast disparity in the FBI's interest in plaintiff's personal life during the period when the FBI assumed he was heterosexual, as compared to the period after the FBI learned he was gay, (2) the FBI's requests that plaintiff disclose the names of other gay people at the FBI, *fn4" (3) documents suggesting that plaintiff's "punishment" was more severe than that typically imposed by the FBI for employee conduct of similar or greater seriousness than that for which plaintiff was accused, (4) defendants' self-described historical "absolute policy of dismissing all admitted or proven homosexuals from its employ," see Ashton v. Civiletti, 198 U.S. App. D.C. 190, 613 F.2d 923, 926 (D.C. Cir. 1979), and (5) declarations of others testifying to anti-gay discrimination on the part of the FBI. *fn5"

 Based on the specific evidence of gay discrimination by the FBI, the Court appropriately concluded that questions of fact remained with respect to plaintiff's equal protection claim. Nevertheless, defendants insist that this evidence does not demonstrate that Rubino's decision was tainted by anti-gay bias. Defs.' Mot. for Recons. at 9. This argument misses the point. As discussed in the Court's previous decision, the pertinent inquiry in this action does not end with whether or not the FBI's purported anti-gay policy influenced Rubino's decision. Rather, the Court must assess whether the defendants have a policy of discriminating against homosexuals, and if so, whether that policy was rationally related to a legitimate government interest. See Order (filed February 12, 1992) at 17. Rubino's declaration does not summarily extinguish the inferences of a discriminatory motive for plaintiff's termination that reasonably could be drawn from the considerable evidence presented to the Court by plaintiff.

 Moreover, the cases cited by defendants in support of their motion for reconsideration support the denial of their summary judgment motion. Neither Price Waterhouse v. Hopkins, 490 U.S. 228, 104 L. Ed. 2d 268, 109 S. Ct. 1775 (1989), Vasconcelos v. Meese, 907 F.2d 111 (9th Cir. 1990), nor Palmer v. Baker, 284 U.S. App. D.C. 377, 905 F.2d 1544 (D.C. Cir. 1990) stands for the proposition, as suggested by defendants, that the assertion of the existence of non-discriminatory factors justifying the action taken by a defendant somehow bars a plaintiff from obtaining a judgment in his favor. Rather, those cases stand for the rule (in Title VII actions) that where the plaintiff establishes that an improper factor played "a motivating part" in the decision to terminate, the defendant may avoid liability only by proving by a preponderance of the evidence that it would have made the same decision even if the impermissible factor had not been taken into account. Price Waterhouse, 490 U.S. at 258; Vasconcelos, 907 F.2d at 113. *fn6"

 There is nothing in any of those cases to support the proposition that the mere assertion by a defendant of alternative, non-discriminatory reasons for a termination decision compels a finding (at trial, much less on a summary judgment motion) that permissible factors were in fact the motivating factors for the termination decision. Here, the Court has simply found that plaintiff has provided evidence which creates a factual issue as to whether his homosexuality was the motivating factor in his termination. This is sufficient to preclude defendants' desire for summary judgment on the question of whether plaintiff was fired because he is gay. *fn7" The cases cited by defendants do not require -- or even suggest -- a different result.

 B. The Nature and Proper Scope of Plaintiff's Equal Protection Claim

 It is apparent from their filings relating to the instant motion, as well as their motion for summary judgment, that defendants are intent on limiting this Court's inquiry to the FBI's "decision to revoke plaintiff's security clearance" and to Rubino's affirmance of that decision. See Defs.' Hot. For Recons. at 4. There are two levels to defendants' argument. First, they suggest that an examination of Buttino's security clearance decision can somehow be divorced from defendants' alleged institutional discrimination against homosexuals. And second, that Rubino's declaration somehow establishes, as a matter of law, that the FBI's revocation decision was not the result of discriminatory practices.

 In advancing these arguments, defendants apparently seek to recast plaintiff's equal protection claim in their own terms. In doing so, they have disregarded the clear expression in the Court's prior Order that the decision to revoke plaintiff's security clearance cannot be undertaken in a vacuum, separate and apart from evidence of anti-gay discrimination within the FBI generally, and regarding plaintiff in particular. Moreover, the assertion that the Court "focused" or should focus exclusively on Rubino's handling of Buttino's administrative appeal, while completely ignoring the FBI's investigation of plaintiff, glosses over the fact that it was the FBI -- not Rubino -- that made the actual decision to revoke plaintiff's security clearance. Clearly, defendants are attempting to treat the security-clearance revocation decision as necessarily separate from the FBI's employment practices toward gays. Not only is this distinction artificial, but it also detracts from the central question before the Court -- which is, as plaintiff has said, whether or not the FBI "got rid of" him because he is gay. *fn8"

 C. Unsuitability of Administrative Review to Constitutional Questions

 The Court also rejects the notion, implicit in defendants' analysis, that the administrative affirmance of a lower agency's decision can serve to shield from judicial review arguably unconstitutional discrimination within that lower agency -- no matter how extensive the evidence of that discrimination may be. Defendants have offered absolutely no authority to support such proposed immunity, and indeed, defendants' posture is inconsistent with the appropriate disposition of constitutional challenges to administrative actions.

 While considerable deference is accorded to administrative determinations relating to security clearances, Department of the Navy v. Egan, 484 U.S. 518, 98 L. Ed. 2d 918, 108 S. Ct. 818 (1988), it is also true that "constitutional questions are unsuited to resolution in administrative hearing procedures and, therefore, access to the courts is essential to the decision of such questions." Califano v. Sanders, 430 U.S. 99, 109, 51 L. Ed. 2d 192, 97 S. Ct. 980 (1977) (emphasis added). Thus, even assuming benign motivations for Rubino's affirmance of the FBI's revocation of plaintiff's security clearance, Rubino is not entrusted as an arbiter of the constitutional adequacy of an administrative action. *fn9" As such, his decisions obviously cannot bind the judiciary to his findings even if he purported to undertake such an adjudication. This Court has the authority and the obligation under the United States Constitution to consider colorable claims under the Equal Protection Clause. Plaintiff has stated such a claim and has presented sufficient evidence creating an issue of fact as to whether the FBI fired him because he is gay.

 The propriety of according complete deference to the parent agency's administrative appellate process of a lower agency's decision is especially questionable where the parent and lower agencies each have historically distinct operational cultures. See generally K. O'Reilly and J. Mayhook, Civil Rights and the FBI, 16 Hum. Rts. 32 (1989). In that regard, the Court finds Rubino's testimony as to his own or the Department of Justice's tolerance of gay employees to be of limited value where plaintiff's lawsuit is challenging the allegedly pervasive discrimination against gays in the FBI.10 Surely, the absence of discriminatory practices in the Justice Department outside the FBI cannot serve to shield actual unconstitutional discrimination within the FBI. In fact, there is nothing to indicate that other courts have accorded much, if any, weight to the absence of discriminatory practices in the Justice Department generally when reviewing discrimination claims against the FBI. See, e.g., Perez v. FBI, 707 F. Supp. 891, 903, 916-17 (W.D. Tex. 1989) (Title VII class action against the FBI in which the district court placed "little confidence in the 'objectivity'" of the Equal Employment Opportunity officer's finding that the FBI did not systematically discriminate against Hispanics).

 D. "Lack of Candor" and "Uncooperativeness" in the Wake of Employer's Own Discriminatory Practices

 Entirely aside from the foregoing, this Court also finds problematic the very argument for which Rubino's declaration is offered to support -- namely, that the inference of unconstitutional discrimination is inapposite on a motion for summary judgment upon a showing that plaintiff was "deceptive" or "uncooperative." In its Order denying summary judgment as to plaintiff's equal protection claim, this Court noted that there is a viable question as to whether plaintiff's "lack of candor" and "uncooperativeness" would ever have been an issue but for the FBI's alleged anti-gay practices. Defendants' motion for reconsideration and Rubino's declaration are both silent as to this salient issue. This silence is of no small consequence, as the interplay between the FBI's practices toward "admitted homosexuals" and the assertion that plaintiff's security risk was revoked because he was "less than candid" regarding his homosexuality is necessarily significant to the factual question of whether plaintiff was fired because of his sexual orientation.

 It is in this respect that the handful of other reported federal cases considering equal protection claims by gay persons are of somewhat limited assistance in reviewing the constitutionality of defendants' conduct in this action. If the facts are proven to be as plaintiff alleges they are, this case would appear to be the first instance in which a federal court would have occasion to consider the constitutional sufficiency of a government agency's citing a gay employee's lack of candor regarding his homosexuality as the explanation for his termination. Similarly, this would be the first instance for a court to examine an accusation by an employee that he reasonably perceived being candid regarding his homosexuality as being a surefire ticket to dismissal. *fn11" By denying defendants' motion for summary judgment, and denying this motion for reconsideration, this Court is simply acknowledging that the equal protection Clause of the United States Constitution is at least implicated where a government agency allegedly turns a certain class of its own employees into security risks by its own policies, and then cites that "security risk" as the basis for the termination of a member of the affected class.



 Defendants' motion for summary judgment as to plaintiff's equal protection claim was properly denied. Defendants have failed to adduce any arguments which warrant reconsideration of that decision. Accordingly,

 IT IS HEREBY ORDERED THAT defendants' motion for reconsideration is DENIED.


 DATED: July 31, 1992


 United States District Judge

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