U.S. Information Agency v. Krc, 91-5339

• Decision Date: 23 July 1993
• Docket Number: No. 91-5339,91-5339
• Parties: 61 Empl. Prac. Dec. P 42,323, 300 U.S.App.D.C. 339, 61 USLW 2641 UNITED STATES INFORMATION AGENCY v. Jan KRC, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1211

989 F.2d 1211

61 Empl. Prac. Dec. P 42,323, 300 U.S.App.D.C. 339,

61 USLW 2641

UNITED STATES INFORMATION AGENCY v. Jan KRC, Appellant.

No. 91-5339.

United States Court of Appeals, District of Columbia Circuit.

Argued Nov. 13, 1992.

Decided April 9, 1993.

Rehearing Denied July 23, 1993.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 87-01740).

Richard Laird Hart, with whom Arthur B. Spitzer, Washington, DC, was on the brief, for appellant.

Edward R. Cohen, Attorney, Dept. of Justice, with whom Stuart M. Gerson, Asst. Atty. Gen., Jay B. Stephens, U.S. Atty., and Barbara L. Herwig, Washington, DC, were on the brief, for appellee.

Before WALD, D.H. GINSBURG, and HENDERSON, Circuit Judges.

Opinion for the Court filed by Circuit Judge D.H. GINSBURG.

Opinion dissenting in part filed by Circuit Judge WALD.

D.H. GINSBURG, Circuit Judge:

This appeal arises from a decision by the United States Information Agency to terminate the Foreign Service appointment of Jan Krc. The USIA Office of Security (USIA-OS or OS) determined that Krc posed a security risk because of certain homosexual relationships he had had during his assignment in Belgrade. Krc alleges that the USIA violated his right to equal protection, tortiously interfered with his prospective employment prospects, and interfered with his civil service career in violation of § 1103 of the Foreign Service Act, 22 U.S.C. § 4133(a). The district court granted summary judgment for the USIA on the equal protection claim, and as to the latter two claims, held that it lacked jurisdiction or, in the alternative, that the USIA was entitled to summary judgment. We

affirm the district court's grant of summary judgment on the equal protection and tort claims and its dismissal for lack of jurisdiction of the statutory claim.

I. BACKGROUND

Krc entered the Foreign Service with a limited appointment in 1982, and in 1983 was posted to Yugoslavia. While Krc was in Yugoslavia, the USIA Office of Security received certain information, classified "Secret," regarding him. (The Government has filed the Secret information with this court under seal.) When the USIA debriefed Krc at the end of his posting in 1984, it undertook to find an explanation for this Secret information. During this debriefing, Krc revealed that while in Yugoslavia, he had engaged in homosexual conduct with a number of partners, including not only other Foreign Service officers (FSOs) but also the assistant military attache of a non-NATO European country and two nationals of a Communist country.

In October 1984 after an investigation the USIA Personnel Director, Angie Garcia, informed Krc that she intended to terminate his Foreign Service appointment; his sexual relationships, she wrote, "demonstrate[d] insubordination, irresponsibility, poor judgment and lack of discretion." In December 1984, however, upon hearing Krc's version of what he was told at a briefing about USIA's fraternization policy barring sexual relations with East Bloc nationals, Garcia decided to issue only an official letter of reprimand "based on the poor judgement [sic] and indiscretion demonstrated by [Krc's] actions." Shortly thereafter, the USIA Director of Security, Bernard Dowling, informed Garcia that he would "not approve any foreign service assignment of Mr. Krc because of the strong security risk involved." Dowling explained that Krc "not only showed poor judgment and lack of discretion" while in Yugoslavia but "also committed acts which we feel make him a security risk in any foreign service assignment," namely "engaging in homosexual relationships with eight different men, including two citizens of Yugoslavia."

Because Dowling refused to approve any future overseas assignments for Krc, Garcia informed him that she was terminating his Foreign Service appointment pursuant to § 611 of the Foreign Service Act. On March 2, 1985, the USIA officially terminated Krc's appointment to the Foreign Service and appointed him to a position in its domestic civil service (at a slightly higher annual salary). The USIA never revoked Krc's security clearance.

Krc filed a complaint with the Foreign Service Grievance Board challenging the termination of his Foreign Service appointment. In March 1987 the FSGB ordered Krc reinstated in the Foreign Service. The USIA sued in District Court to set aside the FSGB's order, and Krc counterclaimed, seeking enforcement of the FSGB's order and alleging that the USIA's failure to comply with the order violated the Administrative Procedure Act, 5 U.S.C. §§ 701 et seq., and the Due Process Clause of the Fifth Amendment.

Meanwhile, Krc began to pursue job opportunities elsewhere. In 1988 he tried to secure part-time work with a contractor working for the Defense Intelligence Agency. Krc could not be authorized for such work, however, until the Defense Industrial Security Clearance Office (DISCO) converted his security clearance into an industrial security clearance. In May 1988 DISCO submitted to the USIA-OS a form letter inquiring whether any "adverse information was developed subsequent to issuance" of Krc's security clearance. The OS answered in the affirmative, after which Krc was not hired for the job. As a result, Krc added a new counterclaim, alleging that by advising DISCO of "adverse information" about him, the USIA tortiously interfered with his prospective employment opportunities and business advantage.

The district court granted the USIA's motion to set aside the FSGB's order and dismissed the APA and due process counterclaims. The Court of Appeals affirmed, but remanded for the district court to consider Krc's equal protection and tortious interference claims. United States Information

                Agency v. Krc, 905 F.2d 389 (D.C.Cir.1990).   Meanwhile, in February 1990 Krc applied for an excursion tour to a United States consulate in Czechoslovakia, but the OS refused to clear him for that position.   On remand, Krc added a third counterclaim, alleging that the USIA had refused to approve him for the excursion tour in retaliation for his earlier grievance and had therefore interfered with his civil service career in violation of § 1103 of the Foreign Service Act, 22 U.S.C. § 4133(a)
                

II. ANALYSIS

As indicated above, the district court denied Krc relief on all counts. We affirm that judgment for the reasons that follow.

A. Equal Protection

Krc alleges that his termination from the Foreign Service "deprived [him] of the equal protection of the law in violation of the Fifth Amendment." Specifically, Krc contends that the USIA discriminated against him on the basis of "his sexual orientation and conduct, factors that have no relationship to [his] ability to perform the duties of a Foreign Service officer or to his trustworthiness and loyalty to the United States." After reviewing the record and the Secret information submitted in camera, the district court found that the USIA had terminated Krc not on account of his sexual orientation but solely on account of his particular conduct and that the USIA had a rational basis for doing so. The district court therefore granted the USIA's motion for summary judgment on the equal protection claim.

In Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), the Supreme Court outlined the showing that a plaintiff must make in order to prove intentional discrimination. Although Price Waterhouse itself was a Title VII sex discrimination suit, the way in which the Court allocated the burden of proof there applies equally to all claims of employment discrimination. See, e.g., Pontarelli v. Stone, 930 F.2d 104, 114 (1st Cir.1991) (Price Waterhouse applies to § 1983 claim alleging employment discrimination in violation of the equal protection clause of the Fourteenth Amendment). First, the plaintiff must prove that an illegitimate factor played a substantial role in the challenged employment decision. See Price Waterhouse, 490 U.S. at 258, 109 S.Ct. at 1794 (opinion of Brennan, J.); id. at 259, 109 S.Ct. at 1795 (White, J., concurring); id. at 265, 109 S.Ct. at 1798 (O'Connor, J., concurring). If the employee makes that showing, then he or she will prevail unless the employer proves that it would have made the same decision even in the absence of the impermissible factor, an affirmative defense. See id. at 244-45, 109 S.Ct. at 1787-88 (opinion of Brennan, J.); id. at 259-60, 109 S.Ct. at 1795-96 (White, J., concurring) (quoting Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1987)); Price Waterhouse, 490 U.S. at 276-77, 109 S.Ct. at 1804-05 (O'Connor, J., concurring).

In this case, it is clear that the USIA would have terminated Krc from the Foreign Service on the basis of his conduct, i.e., regardless of his sexual orientation. Therefore, we need not determine whether Krc's homosexuality in fact played a substantial role in the employment decision, nor whether it would have been rational for the USIA to have relied upon his homosexuality in terminating him from the Foreign Service (as opposed to restricting him to assignments in countries where homosexuality is not unlawful or perhaps even opprobrious, cf. Padula v. Webster, 822 F.2d 97, 104 (D.C.Cir.1987)).

It is beyond genuine dispute that the USIA would have terminated the Foreign Service appointment of an officer who had heterosexual escapades with the military attache of a neutral country and with nationals of a Communist country. Such behavior reflects appallingly poor judgment and virtually invites an approach from a hostile intelligence service. Although Dowling testified that Krc's sexual activity probably gave rise to the Secret information, Krc alleges that the facts recounted in the Secret information actually arose prior to his sexual dalliances in Yugoslavia, and we assume, as we must, that the plaintiff's Moreover, Krc can point to no pattern, or even instance, of USIA...