IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

MONTE MOORE,

Plaintiff,

v.

EXELON GENERATION COMPANY, LLC,

Defendant.

Case No. 12 C 1955

Hon. Harry D. Leinenweber

MEMORANDUM OPINION AND ORDER

I. BACKGROUND

Plaintiff brings this Title VII action alleging race

discrimination and retaliation. According to the Complaint,

Plaintiff was offered a position at Exelon’s Dresden Nuclear Plant. 

He alleges that he accepted the offer and subsequently reported to

work on August 14, 2006 for the purpose of in- processing, training

and clearance. Of the 40 applicants reporting for in- processing,

Plaintiff was the only African-American. On the first day of

training, he was pulled out of the session and sent home. In late

August 2006 he was notified that he had been denied “unescorted

access” to the nuclear facilities. On September 5, 2006, the job

offer was rescinded by Exelon due to the denial of “unescorted

access.” This denial was pursuant to the regulations issued by the

Nuclear Regulatory Commission (the “NRC”), to which Exelon, as an NRC

licensee, was subject. 10 C.F.R. § 73.56 (l). He contends that the

denial was due to his race. On March 13, 2007, he filed a charge
with the Equal Employment Opportunity Commission (the “EEOC”) and

received a Right-to-Sue Letter on December 21, 2011. He filed this

action within ninety (90) days of its receipt. 

He bases his claim of retaliation on the fact that subsequent to

his filing of the EEOC charge, he followed a directive from Exelon

that he undergo psychological counseling in order to gain unescorted

access. He completed counseling with his own psychologist who

cleared him of any psychological distress or dysfunction. He was

then required to have an interview with Exelon’s psychologist which

lasted only 15 minutes. He was again denied unescorted access based

on the interview with Exelon’s psychologist. He contends that this

latter denial of unescorted access was in retaliation to his filing

the EEOC charge.

Exelon has moved to dismiss contending that, under unanimous

Supreme Court and Court of Appeals precedent no court has the power

to review a national security access decision made under federal law;

Title VII specifically exempts national security clearance decisions

from its coverage; the retaliation claim was never subject to a

timely EEOC charge; and the Complaint fails to state sufficient facts

to make a claim of discrimination plausible.

II. DISCUSSION

Plaintiff argues that the cases cited by Exelon are

distinguishable and a 7th Circuit case, Exelon Generation Co., LLC v.

Local 15 IBEW, 676 F.3d 566, (7th Cir. 2012), specifically makes

access decisions reviewable by Courts; the Title VII provision cited

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by Exelon does not apply; and Plaintiff did not need to file a

retaliation charge with the EEOC because his original charge was

broad enough to encompass it. 

The Nuclear Regulatory Commission, pursuant to the statutory

mandate under the Atomic Energy Act, 42 U.S.C. § 2011 et seq.,

requires all licensees, like Exelon who operate nuclear generators,

to implement access authorization programs. 10 C.F.R. § 73.56. “Any

individual to whom a licensee intends to grant unescorted access to

nuclear power plant” is subject to personnel access authorization. 

The programs must provide high assurance that such individuals “are

trustworthy and reliable, such that they do not constitute an

unreasonable risk to public health and safety or the common defense

and security.” 10 C.F.R. § 73.56(c). Presumably to meet due process

requirements, a licensee must also include a procedure for the

notification of individuals denied unescorted access and must include

procedures for review if a denial may adversely affect employment. 

The procedures must ensure that the individual is informed of the

grounds for the denial and allow the opportunity to provide

additional relevant information and an objective review of the

information upon which the denial was based. “The procedure must

provide for an impartial and independent internal management review.” 

10 C.F.R. § 73.56(l).

Since Plaintiff was denied employment because he was denied

unescorted access by Defendant, he seeks to have this Court declare

that Defendant’s conduct, i.e., the denial was a violation of

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Plaintiff’s rights under Title VII. The Defendant contends that this

Court does not have jurisdiction to make this determination citing

Department of the Navy v. Egan, 484 U.S. 518; Makky v. Chertoff, 541

F.3d 205 (3rd Cir. 2008); and Brazil v. U.S. Dept. of Navy, 66 F.3d

193 (9th Cir. 1995).

In Egan, the Supreme Court held that the Merit Systems

Protection Board had no jurisdiction to review a denial of a security

clearance. Egan was hired to work around nuclear powered submarines. 

The Navy denied his application for security clearance and he was

therefore discharged because the denial precluded him from working at

the job for which he was hired. A hearing officer reversed the

discharge but the full Board reversed the hearing officer finding

that it had no jurisdiction to review the merits of the denial. The

Supreme Court affirmed, noting that the courts “traditionally have

been reluctant to intrude upon the authority of the Executive in

military and national security affairs.”

While Egan did not involve Title VII, two Circuits have applied

the Egan reasoning to Title VII cases in which an employee was

discharged or denied employment for not having appropriate security

clearances. In Makky v. Chertoff, 541 F.3d 205 (3rd Cir. 2008), the

Transportation Safety Administration discharged the plaintiff from

his position as a researcher for a project with the stated purpose of

preventing terrorist attacks on American passenger jets. After the

United States invaded Iraq the plaintiff’s security clearance was

suspended. The reasons given were the fact that he had foreign

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relatives and associates (the plaintiff was a Muslim and of Arab

descent). The Court agreed that it had no jurisdiction to review the

denial of security clearance under the reasoning in Egan and since a

clearance was a requirement of his job, he was not qualified for the

job under the prima facie case formula as discussed by the Supreme

Court in Texas Department of Community Affairs v. Burdine, 450 U.S.

248, 254 (1981).

In Brazil v. U.S. Dept. of Navy, 66 F.3d 193 (9th Cir. 1995), a

civilian employee of the Navy’s Military Sealift Command was assigned

to a ship that was capable of carrying nuclear weapons. To work at

such a job an employee was required to hold a Nuclear Weapons

Personnel Reliability Program Certification. As a result of certain

misconduct plaintiff’s certificate was revoked. Plaintiff filed a

Title VII action with the EEOC based on his contention that he was

discriminated against based on his race. The Ninth Circuit upheld a

grant of summary judgment in favor of the Navy pointing out that

Title VII analysis presented the plaintiff with an “insurmountable

Hurdle” in establishing a prima facie case of race discrimination

because he could not establish that he was qualified to perform the

job. It arrived at this conclusion because in its view courts lacked

jurisdiction to review the decision to revoke his certification. It

based its conclusion on Egan.

Plaintiff argues that not withstanding these cases the law is

different in the Seventh Circuit. He cites Exelon Generating Co.,

LLC v. IBEW, 676 F.3d 566 (7th Cir. 2012). In that case the Seventh

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Circuit was called upon to determine whether NRC regulations allowed

the denial or revocation of unescorted access privileges to be

subject to review by labor arbitrators hearing grievance procedures

under collective bargaining agreements. The court held that such

decisions were grievable. In doing so the court did not cite Egan or

any case from any other circuit. What the court did point out was

that the NRC had since 1991 taken the unequivocal position that labor

arbitrators have the power of review and that a 1991 amendment did

not take away that power. The case did not involve Title VII but was

a declaratory judgment action and did not involve the review of a

specific denial or revocation of unescorted access privileges. What

position the Seventh Circuit would take on a Title VII case is

unknown particularly with respect to Section 703(g) of Title VII

which is discussed next. The Defendant points out that in Footnote 3

of this case, the court showed great scepticism as to Exelon’s

contention that a court could not review a security clearance. 

However, the court deleted reference to Title VII in the footnote

prior to final publication. 

Title VII itself in Section 703 (g) specifically states that “it

shall not be an unlawful employment practice for an employer to fail

or refuse to hire and employ any individual for any position if 

“(1) the occupancy of such position, or access

to the premises in or upon which any part of the

duties of such position is performed or is to be

performed, is subject to any requirement imposed

in the interest of the national security of the

United States under any security program in

effect pursuant to or administered under any

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statute of the United states or an Executive

order of the President, and (2) such an

individual has not fulfilled or has ceased to

fulfill that requirement.” 

42 U.S.C. § 2000e-2(g). 

Here the “requirement” is imposed pursuant to regulations

adopted by the Nuclear Regulatory Commission. Consequently Exelon’s

decision to deny unescorted access to the Plaintiff would appear to

be “not an unlawful employment practice” and accordingly not covered

by Title VII. Plaintiff argues that this provision does not apply,

first because his Complaint does not allege that Plaintiff’s position

requires “unescorted access,” and second, because the unescorted

access was denied by the Defendant and not by an outside governmental

agency. However, Plaintiff’s Complaint appears to assume that his

position did, in fact, require unescorted access and the regulations

specifically delegating the obligation to perform the security

clearance program to the licensee, Exelon, were promulgated under The

Atomic Energy Act by the Nuclear Regulatory Commission. 

However, according to the EEOC, Section 703(g) is an affirmative

defense to a charge of discrimination and an employer cannot use

Section 703(g) to circumvent the requirements of Title VII by

selectively applying its security clearance requirements to members

of protected classes. In other words, an employer cannot use its

security clearance program in a discriminatory manner by applying

differing standards depending on, for example, the race of the

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employee. EEOC, Policy Guidance on the Use of the National Security

Exception Contained in § 703(g) of Title VII. 

The Complaint does allege that Plaintiff was the only applicant

denied unescorted access privileges out of 40 applicants. However,

he does not allege that the application was selectively applied

although this can reasonably be inferred from his Complaint. The

Court certainly can make the determination that the national security

criteria are not being applied uniformly without having to delve into

whether the criteria are over restrictive, for example. Thus, the

Court believes that it is too early to dismiss Plaintiff’s case. The

issue can be revisited on summary judgment if the Defendant wishes to

go that route. Accordingly, the Motion to Dismiss the Title VII

discrimination claim is denied. 

Plaintiff also alleges a Title VII claim of retaliation. 

However, the claim of retaliation was not made the subject of an EEOC

charge. Plaintiff claims that it is reasonably related to the claim

of discrimination that was set out in his EEOC charge and therefore

he need not specifically mention the retaliation. However, for two

claims to be related, the EEOC Charge and the Complaint must, at a

minimum, describe the same conduct and implicate the same

individuals. Teal v. Potter, 559 F.3d 687 (7tj Cir. 2009). Here the

EEOC charge specifically relates to the act of notification on

August 24, 2006, that the job offer was rescinded. The Complaint of

retaliation allegedly occurs in September 2007 when Plaintiff’s

unescorted access was again denied. Clearly the two acts are not

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reasonably related. Sauzek v. Exxon Coal USA, Inc., 202 F.3d 913

(7th Cir. 2000) (“an employer’s decision to terminate a worker is a

separate and distinct act from a subsequent not to rehire that

employee during a recall.”). Here the decision to deny unescorted

access some thirteen months after the original decision to deny

unescorted access is a separate and distinct act and must be the

subject of an EEOC charge in order to bring a Title VII action for

retaliation. Accordingly, the claim for retaliation is denied.

III. CONCLUSION

For the reasons stated herein, the Defendant’s Motion to Dismiss

the Title VII discrimination claim is denied. The Motion to Dismiss

the Title VII retaliation claim is granted.

IT IS SO ORDERED.

Harry D. Leinenweber, Judge

United States District Court

DATE:10/25/2012

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