Powell v. Nat'l Inst. of Bldg. Scis.

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AMIR CLAYTON POWELL, Plaintiff, v. NATIONAL INSTITUTE OF BUILDING SCIENCES, Defendant.

No. 23-cv-3336 (DLF)

United States District Court, District of Columbia

September 29, 2024

MEMORANDUM OPINION

DABNEY L. FRIEDRICH, UNITED STATES DISTRICT JUDGE

Amir Clayton Powell brings this employment discrimination action against the National Institute of Building Sciences (“NIBS”). He seeks relief under the D.C. Human Rights Act, D.C. Code § 2-1401 et seq., and the D.C. Wage Payment Collection Law, D.C. Code § 32-1302 et seq., and he asserts claims for defamation breach of contract, wrongful termination, and invasion of privacy. NIBS moves to dismiss and for summary judgment. Mot., Dkt. 20. For the reasons below, the Court will grant the defendant's motion in part and deny it in part.

I. BACKGROUND^[1]

NIBS is a non-profit organization that seeks to solve problems related to the construction of safe, affordable structures for housing, commerce, and industry in the United States. Am Compl. ¶ 6, Dkt. 17. NIBS holds government contracts covered by the organization's facility security clearance, which account for up to thirty percent of its annual gross revenue. Id. ¶ 8, 23.

Powell is an African American male, trained lawyer, and experienced executive professional. Id. ¶¶ 5, 7. In September 2022, Powell began employment as the President and CEO of NIBS. Id. ¶ 7. He was preceded in his position by Henry Green, an African American male, Lakeisha Woods, an African American female, and Steven Ayers, a white male. Id. ¶¶ 7.

Powell was informed that he was required to obtain a Secret Level government security clearance as a condition of employment. Id. ¶ 8. Powell began his employment without any clearance and obtained an interim Secret clearance in January 2023. Id. ¶ 10. Powell never received a final clearance. He alleges that he was not given any date by which he was required to obtain a final clearance, and that his predecessor Ayers, a white male, never held a Secret Level clearance. Id. ¶¶ 7-8.

As President and CEO, Powell reported to the NIBS Board of Directors and served as a Board member. Id. ¶ 7. During Powell's tenure, Anne Ellis, a white female served as Chair of the NIBS Board and Thomas Phoenix served as Vice Chair. Id. The complaint alleges that Ellis “micromanage[d]” Powell and his day-to-day operations; reached out to Powell's “direct reports to provide her with information about Mr. Powell that she continually tried to use against him”; complained about Powell's hiring decisions; commissioned and presented to the Board a study to “undermine Mr. Powell on where N[IB]S resources should be deployed”; frequently went “directly to [Powell's] staff” regarding scheduling disputes; and “demanded that Mr. Powell justify all travel for himself.” Id. ¶ 9. During a May 2023 Board meeting, Powell asserts that he “was asked to leave the boardroom to allow for private deliberations” between other Board members and that he “was the only member of the Executive Team excused from the meeting.” Id. ¶ 12. During another executive session, Powell alleges that Ellis “stressed the need to remind Mr. Powell that he works for the [Board]” and “encouraged other Board Members to remember that Mr. Powell works for them.” Id.

Ellis, Phoenix, and another Board member managed Powell's CEO 360 Review. Id. ¶ 11. Powell selected Ashley Kelloff as the Human Resources consultant responsible for interviewing NIBS staff and stakeholders for his review. Id. In June 2023, Kelloff presented her results at a dinner attended by Powell, Ellis, and Phoenix. Id. ¶ 14. Kelloff explained that interviewees considered Powell a “‘visionary' and a ‘good leader,'” but noted some areas for improvement: interviewees stated that Powell “needed to be ‘clear on the reporting relationship to the Board'”; and that Powell's “‘my people' comments” and “opinions on things outside of the NIBS strategy appear too biased and controversial and go against the inclusivity NIBS has been cultivating.” Id. During the review dinner, Phoenix raised concerns about Powell's use of the term “hotep” as a greeting in emails. Id. ¶ 15. Phoenix stated that “he had been told and confirmed through his own research that a terrorist group was now using ‘hotep' as a greeting” and that Powell “should discontinue using the term in his greetings because it reflected poorly on NIBS.” Id. Phoenix told Powell: “You can do what you want. No one is telling you how to communicate, but it would probably be better to stop using that word just to avoid any confusion.” Id. According to Powell, “‘Hotep!' is a friendly greeting in certain circles of Afro-centric and Black culture.” Id. Powell alleges that “Phoenix's comments were very hurtful,” “attacked [Powell's] ethnic identity,” and “raised the prospects of [Powell's] appearance of fealty to a non-existent Black terrorist group.” Id. ¶¶ 15, 23. Powell also alleges that Ellis “fabricated” an interaction with Powell's executive assistant to “disparage” Powell. Id. ¶ 15. Ellis purportedly “falsely claimed” that Powell's executive assistant told Ellis “to get in line like everybody else to speak to [Powell].” Id. Powell asserts that, in reality, his assistant merely told Ellis that Powell was out of town and “[the assistant] would attempt to reach him, but she was not certain that she would be able to.” Id.

Powell claims that the NIBS senior management was responsible for his failure to obtain a final Secret Level clearance. When Powell's interim clearance was issued in January 2023, Bob Payn, the NIBS Facility Security Officer, purportedly failed to follow certain regulatory procedures: he did not ask Powell to execute a Standard Form, SF-312, or to brief Powell on the requirements for interim access to classified materials, as required by the National Industrial Security Program, see 32 CFR § 117.10. Id. ¶ 10. According to Powell, Payn “is untrained and unfamiliar with the proper procedures for processing security clearances.” Id. ¶ 24. In March 2023, when the Defense Counterintelligence and Security Agency reached out to Payn to inquire whether Powell still needed a Secret Level clearance, Payn purportedly failed to respond. Id. ¶ 10.

On July 20, 2023, the Agency withdrew Powell's interim clearance, allegedly because of Payn's nonresponse. Id. ¶ 18. The Agency also sent a confidential “Eyes Only Package” to Payn and Powell, which included a “Statement of Reasons” for its inability to make a final determination on Powell's Secret Level clearance. Id. The Agency referred Powell's application to its Consolidated Adjudication Services for further consideration and a final determination, and that investigation remained pending after the withdrawal of Powell's interim clearance. Id. Powell shared the contents of the “Eyes Only Package” with NIBS legal counsel Hugh Webster but declined to provide its details to the NIBS Board. Id. ¶¶ 20-22. After the withdrawal of Powell's clearance, Ellis “commented” that Powell “could have been walled off from information that required a security clearance.” Id. ¶ 18.

On Friday, July 28, 2023, Powell, Ellis, Phoenix, and other NIBS Board members and senior executives met to discuss the withdrawal of Powell's interim clearance. Id. ¶ 22. Ellis read a prepared announcement that the NIBS Board had voted to place Powell on paid administrative leave for thirty days, out of “an abundance of caution” due to his withdrawn clearance. Id. ¶ 23.

Ellis also stated that Powell “knew he needed a Secret Level Security Clearance when he was hired, he did not get it, and he took a job which he knew he was unqualified for and should be suspended and terminated.” Id. ¶ 22. Additionally, Phoenix explained that the Board “did not have any choice” except to place Powell on leave: the Board was concerned about the suspension of NIBS's facility clearance level, which covered contracts for “less than thirty percent of the organization's gross annual revenue.” Id.

The following Monday, on July 31, 2023, Ellis and Phoenix convened a meeting with the entire NIBS staff and disclosed that Powell was being placed on administrative leave. Id. ¶ 25. Ellis repeated her statement that Powell “knew he needed a Secret Level Security Clearance when he was hired, he did not get it, and he took a job which he knew he was unqualified for.” Id. A staff member asked whether Ellis was concerned about Powell's privacy, because Ellis's announcement “would cause staff to spread rumor [sic] over the weekend about Ms. Powell [sic].” Id. Ellis allegedly responded that “rumors are the best what [sic] to get information out.” Id.

Roughly two weeks later, on August 14, 2023, Powell was terminated by a unanimous vote of the NIBS Board. Id. ¶ 27. Upon his termination, the Defense Counterintelligence and Security Agency closed its investigation into his security clearance. Id. Powell asserts that his paycheck for regular wages was due on August 15, 2023, and that NIBS failed to pay that check on time. Id. He further claims that his employment contract was for a two-year term and he was guaranteed three months' severance pay if he was terminated in less than two years. Id.

Powell sued NIBS. His complaint raises six claims: (1) disparate treatment and hostile work environment under the D.C. Human Rights Act, D.C. Code § 2-1401 et seq.; (2) wage theft under the D.C. Wage Payment and Wage Collection Law, D.C. Code § 1301 et seq.; (3) defamation; (4) breach of contract; (5) wrongful termination; and (6) invasion of privacy / false light. Am. Compl. ¶¶ 28-70. He seeks damages, a declaratory judgment, and other relief. Id. ¶¶ A-H.

NIBS moves to dismiss Powell's action for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) or, in the alternative, for summary...