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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 ...

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