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Ames v. Johnson

United States District Court, D. Columbia.

August 14, 2015

Harriett A. Ames, Plaintiff,
v.
Jeh Charles Johnson, et al., Defendants

         For HARRIETT A. AMES, Plaintiff: Phillip Robert Kete , LAW OFFICE OF PHILLIP ROBERT KETE, Chesapeake Beach, MD.

         For DEPARTMENT OF HOMELAND SECURITY, JEH CHARLES JOHNSON, Secretary, U.S. Department of Homeland ) Security, Defendants: John Cuong Truong, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE FOR THE DISTRICT OF COLUMBIA, Washington, DC.

Page 127

         MEMORANDUM OPINION AND ORDER

         Amit P. Mehta, United States District Judge.

         I. INTRODUCTION

         Plaintiff Harriett Ames is the former Chief of the Personnel Security Branch within the Federal Emergency Management Agency. As head of the Personnel Security Branch, Plaintiff's responsibilities included adjudicating security clearances for employees. Claiming that she was terminated from her position because of her race, Ames filed suit under Title VII of the Civil Rights Act of 1964 and the Equal Protection Clause of the Constitution. The parties agree that, under Dep't of Navy v. Egan, 484 U.S. 518, 108 S.Ct. 818, 98 L.Ed.2d 918 (1988), and its progeny, race discrimination claims that require courts to evaluate the merits of security clearance determinations are non-justiciable. They disagree, however, as to whether Egan requires dismissal of this case.

         The court concludes that, at this early stage, on Defendant's Motion to Dismiss, it cannot determine whether adjudicating

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Plaintiff's discrimination claim necessarily will require the court to evaluate the merits of her security clearance decisions. Thus, the court cannot say for certain that Egan precludes review of her discrimination claim. The court, therefore, denies Defendants' motion to dismiss with respect to Plaintiff's Title VII claim. The court, however, grants Defendants' motion with respect to Plaintiff's claim under the Equal Protection Clause, because Title VII is the exclusive remedy for her discrimination claim.

         II. BACKGROUND

         Plaintiff Harriett Ames is an African-American woman and the former Chief of the Personnel Security Branch at the Federal Emergency Management Agency (" FEMA" ), an agency within the Department of Homeland Security (" DHS" ).[1] Am. Compl., ECF No. 29, ¶ ¶ 4, 5, 15. The Personnel Security Branch is a component of the Program Protection Division, which itself is a component of the Office of the Chief Security Officer of FEMA. Id. ¶ 16. As the head of the Personnel Security Branch, Ames was responsible for " adjudicating [security] clearances of employees and prospective employees" within the Office of the Chief Security Officer. See id. ¶ 19.

         On July 22, 2011, agency management " barred" Plaintiff and her branch from adjudicating security clearances. Id. Ames was not given a reason for the decision at the time, id. ¶ 20, but according to an internal agency report prepared after an investigation into Ames' claims of racial discrimination [hereinafter " Final Agency Decision" ], she was suspended from processing security clearances because the " Agency learned that [Plaintiff] had served as both the adjudicator and character reference for one of the individuals that [she] was adjudicating and had supposedly cleared." Final Agency Decision, ECF No. 38-1, at 6 (cited in Am. Compl. ¶ 23).[2] Plaintiff denies this charge. Am. Compl. ¶ 24. The Final Agency Decision further states that Plaintiff was suspended from her adjudicatory responsibilities because a review " had found several questionable cases that had been improperly adjudicated by [Plaintiff and her team]," had uncovered " deficiencies in [her] branch," and had revealed issues with Plaintiff's " management style and manner of processing." Final Agency Decision at 7 (quoted in Am. Compl. ¶ 22).

         Another reason offered for Plaintiff's removal, according to the complaint, though not expressly stated in the Final Agency Decision, was " that she had erroneously granted security clearances" to two people, Gary Walker and Skip Bland. Id. ¶ 25. Ames contends that those clearances were " provided on the same bases as clearances have consistently been provided white people throughout DHS" and " by white adjudicators throughout DHS." Id. ¶ ¶ 28-29. She further alleges that no white official in DHS " has been removed from his or her duties for providing clearances on the bases relied on by Ms. Ames." Id. ¶ 30. She contends that management's explanations

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for removing her from adjudicating security clearances " are unworthy of credence and are mere pretexts for discrimination and retaliation." Id. ¶ 33.

         In September 2011, agency management detailed an employee from DHS headquarters to take over Plaintiff's duties adjudicating security clearances, though Ames nominally remained the head of her branch. Id. ¶ 34. Plaintiff's complaint quotes from what appears to be another internal agency document, explaining that agency management " decided that this was the best path for mitigating hard issues found [within] the Personnel Security Branch." Id. ¶ 35.

         Then, in November 2011, Ames was formally removed as head of the Personnel Security Branch and transferred to a position in the training branch, while a white employee took over her position as chief. Id. ¶ ¶ 39, 42. Jorge Cantu, the Director of the Program Protection Division, advised Plaintiff that the reason for her transfer was his " desire to improve efficiencies and effectiveness within the Program Protection Division and to allow you an opportunity to use your security skills within another unit of [the Office of Chief Security Officer]." Id. ¶ ¶ 43-44. Her new position did not, however, require her to use her security skills. Id. ¶ 50. Cantu allegedly later denied that he was involved in the decision to reassign Ames to the training branch. Id. ¶ ¶ 47-48.

         After exhausting her administrative remedies, including filing a complaint with the Equal Employment Opportunity Commission, Ames brought this action alleging race discrimination in violation of Title VII of the Civil Rights Act of 1964 and the Equal Protection Clause.

         III. ...


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