United States District Court, D. Columbia.
Harriett A. Ames, Plaintiff,
Jeh Charles Johnson, et al., Defendants
HARRIETT A. AMES, Plaintiff: Phillip Robert Kete , LAW OFFICE
OF PHILLIP ROBERT KETE, Chesapeake Beach, MD.
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,
OPINION AND ORDER
Mehta, United States District Judge.
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.
court concludes that, at this early stage, on Defendant's
Motion to Dismiss, it cannot determine whether adjudicating
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
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"
). 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.
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). 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).
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
for removing her from adjudicating security clearances "
are unworthy of credence and are mere pretexts for
discrimination and retaliation." Id. ¶ 33.
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.
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.
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.