The opinion of the court was delivered by: Thomas W. Phillips United States District Judge
Plaintiff Loretta Davidson has sued her former employers, Lockheed Martin Energy Systems, Inc., and its successor Wackenhut Services, Inc., alleging she was wrongfully discharged because of her race and that during her employment she was subjected to unequal terms and conditions of employment, and retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et. seq., and 42 U.S.C. § 1981. Defendant Wackenhut Services, Inc., has moved for summary judgment asserting that there are no genuine issues as to material facts, and that Wackenhut is entitled to judgment as a matter of law on all of plaintiff's claims. Because plaintiff has failed to make a prima facie showing that her termination was racially motivated, and because the defendant has articulated a legitimate, nondiscriminatory reason for her termination and plaintiff has not shown the stated reason to be pretext, defendant Wackenhut's motion for summary judgment will be granted, and this action will be dismissed.*fn1
This case involves the Y-12 Plant in Oak Ridge, Tennessee. Effective January 10, 2000, DOE selected WSI to replace LMES as the security and related support services contractor for four DOE facilities in Oak Ridge. These four DOE facilities house classified materials pertaining to national security, secret scientific research, and the development of nuclear weapons. The Y-12 Plant maintains the nation's stockpile of weapons-grade uranium. Improper access into any one of these Oak Ridge facilities threatens national security, could benefit foreign governments or terrorist groups, and jeopardizes the safety of the nation's military and civilian populations. Thus, the security of the Y-12 Plant is vital to national security.
The work performed by security guards at Y-12, Security Police Officers (SPOs) and Security Officers (SOs) as they are officially called, is subject to extensive DOE regulations that apply to protective force personnel at government-owned facilities like Y-12. See 10 C.F.R. Part 1046. These regulations require SPOs to meet certain physical fitness and other requirements, at specified intervals, to maintain their status. DOE regulation 10 C.F.R. § 1046.14 expressly requires all protective force personnel to have a "current access authorization for the highest level of classified matter to which they potentially have access." WSI required its SOs and SPOs to obtain and maintain a Q-Clearance as a condition of their employment.
In 1978 Davidson was hired by Union Carbide Corporation. From 1978 until her termination in September 2000, she worked as a security guard at the Y-12 Plant, first for Union Carbide (1978-1984), next for LMES (1984-2000), and finally for WSI (2000). Davidson was employed by WSI only from February 15, 2000 until September 29, 2000, when WSI terminated her employment because her security clearance was terminated by DOE. Throughout her employment with WSI, Davidson worked at Y-12 as either an SPO (armed guard) or SO (unarmed guard).
Davidson understood she "had to have a clearance" in order to work as a guard at Y-12. WSI's employment offer letter informed Davidson that her employment with the company was contingent on "obtaining and maintaining of all . . . clearances for the position." DOE has exclusive authority to grant, suspend and terminate security clearances. Davidson held a Q-Clearance until it was terminated by DOE in September 2000.
DOE periodically reviews security clearances to determine whether to continue an individual's clearance in effect or, if not, whether to suspend or terminate it. The problems that led to the termination of Davidson's Q-Clearance arose during one of these reviews. In reviewing Davidson's clearance, DOE required her to provide certain financial information and informed her by letter dated August 24, 2000 that her "failure to submit the requested documentation may result in the termination of [her Q-Clearance]." When Davidson did not provide the required information, DOE "administratively terminated" her Q-Clearance, and so notified her by letter dated September 27, 2000. DOE took this action under 10 C.F.R. § 710.6(a) which provides that when an individual fails to produce requested information, "any access authorization then in effect may be terminated . . . ."
By letter dated September 27, 2000, DOE notified WSI that it had administratively terminated Davidson's clearance. It is WSI's policy and practice at Y-12 to terminate the employment of any employee whose security clearance has been revoked or terminated by DOE. The termination of the employee is not delayed pending any appeal the employee may elect to take from DOE's action. The policy and practice of forthwith terminating an employee whose clearance has been terminated was also consistently followed by the previous government contractors at Y-12: LMES, Martin Marietta Energy Systems (MMES), and Union Carbide Corporation. From August 1989 to April 1999, fifty-four employees at the Y-12 Plant had their security clearance terminated and in each instance, LMES/MMES forthwith terminated the employee upon being notified of the termination by DOE.
Upon receiving notification from DOE that Davidson's Q-Clearance had been terminated, WSI called DOE to make sure it understood the letter correctly. DOE confirmed that it had intentionally used the word termination as opposed to suspension. Under WSI's policy, when DOE notifies WSI that an employee's clearance has been terminated, WSI proceeds at once to terminate the employee. WSI informed Davidson orally and by letter dated October 2, 2000, that her employment was being terminated effective September 29, 2000.
Davidson appealed the decision of DOE's Oak Ridge office to the Director of DOE's Office of Safeguards and Security. After examining the record, the Office of Safeguards and Security affirmed the action taken by the Oak Ridge office and so informed Davidson by letter of November 13, 2000.
Under the federal regulations, DOE may either suspend or terminate an employee's security clearance. Under the practice followed by WSI at Y-12, there is an important difference between the termination of a clearance and the suspension of a clearance. If an individual's clearance is suspended, WSI continues to employ the individual but assigns the individual to a position not requiring a clearance pending DOE's decision whether to reinstate or to terminate the individual's clearance. If the individual's suspended clearance is later reinstated, the individual's employment is continued. But if the individual's clearance is terminated, the individual's employment is terminated.
It is Davidson's contention that WSI terminated her in retaliation after she complained to WSI about a statement made to her by supervisor Bobby Beaty in June 2000 involving WSI's dress code. WSI has a dress code applicable to protective force personnel. Regarding female employees the policy states that "when worn in a braid, the hair shall not extend more than 6 inches below the back yolk [collar]." Commander Beaty told Davidson that she was "out of compliance," referring to her hair, which she was wearing in braids or "corn rows," and told Davidson that she needed to put her hair up. Davidson responded, "No, I'm not," and told Beaty that wearing her hair in that style was part of "my culture." Beaty answered, "I don't give a damn about [your] culture," at which point the conversation ended.
Using WSI's internal concern procedure, Davidson immediately reported the incident to Gary Brandon, Manager of Protective Services at Y-12, who told her an investigation would be conducted. The next day, Davidson signed a written complaint. In the meantime, Beaty reported to Site Commander, P.C. Tarrant that Davidson' hair was not in compliance with the dress code. Tarrant spoke with Davidson and told her to secure her hair so it complied with the dress code. Tarrant prepared a written report about the incident and sent it to Operations Manager Gary Brandon.
Rose Weaver, WSI's Diversity Coordinator, conducted the investigation of Davidson's complaint against Beaty. Based on Weaver's investigation, WSI concluded that Beaty's conduct was unprofessional, that his remark to Davidson was inappropriate, and that his conduct could not be condoned. As a result, Beaty was verbally counseled by his supervisor, Steve Gibbs, WSI's Director of Protective Force Operations, and was instructed on WSI's harassment policy and required to attend a cultural diversity training program. By letter dated July 6, 2000, Weaver informed Davidson of the ...