United States District Court, District of Columbia
HARRIETT A. AMES, Plaintiff,
KIRSTJEN NIELSEN,  et al., Defendants.
MEMORANDUM OPINION AND ORDER
P. 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. Following events that began with agency
management stripping her Branch of some of its adjudicatory
responsibilities and ended with her reassignment to a
different unit, Plaintiff filed suit against Defendants under
Title VII of the Civil Rights Act of 1964 and the Equal
Protection Clause of the Constitution, alleging both
retaliation and race, color, and gender discrimination.
court previously dismissed Plaintiff's Equal Protection
claim but deferred decision on whether Department of Egan
v. Navy, 484 U.S. 518 (1988), and its progeny barred
Plaintiff's Title VII claims as non-justiciable. At the
motion to dismiss stage, the court reasoned, it was too early
to determine whether adjudicating Plaintiff's claims
would require an evaluation of the merits of her security
before the court is Defendant's Motion for Summary
Judgment. After considering the record and the parties'
briefs, the court concludes that Plaintiff has put forth
sufficient evidence to survive summary judgment as to one of
the three agency decisions underlying her claims-her
reassignment. The court enters judgment in favor of Defendant
with respect to the other two decisions at issue-stripping
Plaintiffs Branch of security clearance adjudication
responsibilities and temporarily transferring another agency
employee into the Branch. The court therefore grants in part
and denies in part Defendant's Motion for Summary
following facts are undisputed, except where noted. Plaintiff
Harriett Ames, a dark-skinned African-American woman, is the
former Chief of the Personnel Security Branch at the Federal
Emergency Management Agency ("FEMA"), a sub-agency
within the Department of Homeland Security ("DHS").
Def.'s Mot. for Summ. J., ECF No. 73 [hereinafter
Def.'s Mot], Def.'s Stmt, of Material Facts in
Dispute, ECF No. 73-1 [hereinafter Def.'s Stmt], ¶
1; Pl.'s Statement of Material Facts, ECF No. 78
[hereinafter Pl.'s Stmt.], Exs., ECF No. 78-1
[hereinafter Pl.'s Exs.], at 81, ¶ 2. The Personnel
Security Branch is a component of the Program Protection
Division, which is within FEMA's Office of the Chief
Security Officer ("OCSO"). Def.'s Stmt. ¶
2. As head of the Branch, Plaintiff was responsible for
"adjudicating [security] clearances of employees and
prospective employees" within FEMA. See Am.
Compl., ECF No. 29 [hereinafter Am. Compl.], ¶ 19;
Def.'s Mot, Exs. 1-5, ECF No. 73-4 [hereinafter
Def.'s Exs. 1-5], at 4, ¶ 10; cf.
Def.'s Mot., Def.'s Mem. of Points & Authorities,
ECF No. 73-2 [hereinafter Def.'s Mem.], at 20-21;
Pl.'s Opp'n to Mot. for Summ. J., ECF No. 76
[hereinafter Pl.'s Opp'n], at 20.
April 2011, the Personnel Security Branch adjudicated
security clearances for Gary Walker and James Bland, two
employees hired to work for FEMA OCSO as "Supervisory
Fraud Manager[s]." See Def.'s Stmt.
¶¶ 9, 14; cf. Def.'s Exs. 1-5 at
13-18, 24. Plaintiff determined that Bland and Walker's
positions would require "SS." Def.'s Stmt.
¶ 7; Def.'s Exs. 1-5 at 21. "SS" means
"Special Sensitive, " a term that designates a
position as requiring access to "Top Secret/Sensitive
Compartmented Information" ("TS/SCI").
See Def.'s Stmt. ¶¶ 13-14;
cf. Pl.'s Stmt, Pl. Fact ¶ 7; Def.'s
Reply in Support of Mot. for Summ. J., ECF No. 80
[hereinafter Def.'s Reply], Def.'s Resp. to Pl.'s
Counter-Statement of Material Facts, ECF No. 80-1
[hereinafter Def.'s Reply Stmt.], at 4-5. "Top
secret" clearance is the highest level of security
clearance. Def.'s Stmt. ¶ 15. Plaintiff approved a
"secret" interim clearance status for Walker in
April 2011 and requested an "EOD" (entry of duty)
for him before he completed his "e-QIP, " a
web-based automated system designed to facilitate the
processing of investigative forms used when conducting
background investigations. Def.'s Exs. 1-5 at 21, 24;
Def.'s Stmt. ¶ 8 n.2. Plaintiff also approved a
"secret" interim clearance status for Bland in May
2011 and requested an EOD for him before a full background
investigation was completed. Def.'s Stmt. ¶¶
13, 16-17; Pl.'s Exs. at 90, ¶ 79. Neither Plaintiff
nor the Personnel Security Branch granted "interim
top secret clearance" to any FEMA employees or
hires, including Walker and Bland. See Def.'s
Stmt. ¶ 4.
months later, Bland's and Walker's security
clearances would come under scrutiny. In July 2011, the DHS
Office of Inspector General ("OIG") conducted an
investigation into FEMA OCSO's hiring and security
clearance adjudication practices. Def.'s Stmt. ¶21;
Def.'s Mot, Exs. 9-14, ECF No. 73-5 [hereinafter
Def.'s Exs. 9-14], at 16, ¶3; see Id. at
22-23, ¶ 13; cf. Pl.'s Stmt., Pl. Fact
¶¶ 40-42. During this timeframe, then-FEMA
Associate Administrator David Garratt learned about the
security clearance adjudications of Walker and Bland, both of
whom were granted favorable adjudications despite past
transgressions. Def.'s Stmt. ¶22; see also
Def.'s Exs. 9-14 at 26-27, ¶¶ 3, 5. On July 22,
2011, Garratt suspended FEMA OCSO from adjudicating security
clearances for its own hires and employees. Def.'s Stmt.
¶26; Def.'s Exs. 9-14 at 28; see also
Pl.'s Opp'n at 20. Because Garratt did not see any
evidence of potentially compromised adjudication practices
for FEMA hires outside of OCSO, he still permitted the Branch
to adjudicate security clearances for non-OCSO personnel.
Def.'s Stmt. ¶¶ 25, 28.
light of the issues surrounding the Personnel Security
Branch, including the then-ongoing OIG investigation, the DHS
Chief Security Officer at the time, Gregory Marshall, ordered
that a Security Compliance Review ("SCR") be
conducted on the Personnel Security Branch and other FEMA
security branches. Id. ¶¶ 30-31. The SCR
was conducted in August 2011. Id. ¶ 33. It
resulted in 16 findings critical of the Personnel Security
Program, whose day-to-day operations were run by Plaintiff,
and an overall rating of "unsatisfactory" for the
Program. Id. ¶¶ 37-38; see also
Def.'s Exs. 9-14 at 3-14. During that same month,
Plaintiff told Jose Cantu, her first-line supervisor, that
there was a backlog of 3, 500 suitability/public-trust
investigations that were awaiting adjudication but not
reported "on the metrics." Def.'s Stmt. ¶
56. Several weeks later, on September 8, 2011, Plaintiff sent
an e-mail to Cantu and Jose Salazar, her second-line
supervisor, stating that she was overwhelmed with deadlines
and was experiencing headaches and chest pains, making it
increasingly difficult to work under such conditions.
Id. ¶¶ 57-58.
in September 2011, agency management detailed Alfreda Hester,
an African-American woman and employee from DHS headquarters,
to serve as a deputy to Cantu. Id. ¶¶ 64-
64A, 66. Her position title was "Deputy Division
Director for Program Protection Division." Id.
¶66. Hester took over Plaintiff s duties adjudicating
security clearances, representing the Branch in personnel
security meetings and senior staff meetings, approving leave
requests, and scheduling training. Pl.'s Stmt., PI.
Fact¶ 62. Plaintiff, however, retained her title as
Chief of the Personnel Branch and continued to supervise
security specialists in her Branch. Def.'s Stmt. ¶
66; see also Notice of Correction Related to
Gov't Exs., ECF No. 81 [hereinafter Notice of
Correction], at 3.
November 2011, agency management formally removed Plaintiff
as Chief of the Personnel Security Branch and reassigned her
to a different position within FEMA OCSO. Def.'s Stmt.
¶ 88; Def.'s Mot, Exs. 24-30, ECF No. 73-7
[hereinafter Def.'s Exs. 24-30], at26; see Pl.'s Exs.
at 91-92, ¶ 89. Plaintiffs new job title was Chief of
the Training Section. Def.'s Stmt. ¶¶ 93, 100,
102; Def.'s Exs. 24-30 at 26. A white female was named
interim Chief of the Personnel Security Branch. See
Am. Compl. ¶ 42; Am. Answer, ECF No. 51
[hereinafter Am. Answer], ¶ 42; Def.'s Exs. 24-30 at
Rule of Civil Procedure 56 provides that a court must grant
summary judgment "if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law." Fed.R.Civ.P.
56(a). A dispute is "genuine" only if a reasonable
fact-finder could find for the nonmoving party, and a fact is
"material" only if it is capable of affecting the
outcome of litigation. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986).
"mandates the entry of summary judgment, after adequate
time for discovery and upon motion, against a party who fails
to make a showing sufficient to establish the existence of an
element essential to that party's case ... on which that
party will bear the burden of proof at trial."
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The party moving for summary judgment "bears the initial
responsibility of informing the district court of the basis
for its motion" and identifying those portions of the
record that it believes "demonstrate the absence of a
genuine issue of material fact." Id. at 323.
the moving party has made an adequate showing that a fact
cannot be disputed, the burden shifts to the party opposing
summary judgment to "set forth specific facts showing
that there is a genuine issue for trial."
Anderson, 477 U.S. at 250 (internal quotation marks
omitted). The nonmoving party may oppose the motion using
"any of the kinds of evidentiary materials listed in
Rule 56(c), except the mere pleadings themselves, and it is
from this list that one would normally expect the nonmoving
party to make the showing to which [the Court has]
referred." Celotex Corp., 477 U.S. at 324.
"The evidence of the non-movant is to be believed, and
all justifiable inferences are to be drawn in his
favor." Anderson, 477 U.S. at 255. But
"[t]o defeat a motion for summary judgment, the
non-moving party must offer more than mere unsupported
allegations or denials." Dormu v. District of
Columbia, 795 F.Supp.2d 7, 17 (D.D.C. 2011) (citing
Celotex Corp., 477 U.S. at 324). In other words, if
the non-movant's evidence is "merely colorable, or
is not significantly probative, summary judgment may be
granted." Anderson, 477 U.S. at 249-50
(citations omitted). Summary judgment, then, is appropriate
when the nonmoving party fails to offer "evidence on
which the jury could reasonably find for the
[non-movant]." Id. at 252.
VII prohibits federal agencies from discriminating against
their employees based on race, color, or sex. McGrath v.
Clinton, 666 F.3d 1377, 1379 (D.C. Cir. 2012);
see 42 U.S.C. § 2000e-16(a). Title VII also
makes it unlawful to retaliate against an employee
"because [s]he has opposed any practice made an unlawful
employment practice" by the statute. McGrath,
666 F.3d at 1379-80 (quoting 42 U.S.C. § 2000e-3(a)).
Where, as here, a plaintiff proffers only indirect evidence
of unlawful discrimination or retaliation to support her
Title VII claims, courts apply the burden-shifting framework
set forth in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). See Weber v. Battista, 494 F.3d
179, 182 (D.C. Cir. 2007).
this framework, a plaintiff must first establish her prima
facie case. Walker v. Johnson, 798 F.3d 1085, 1091
(D.C. Cir. 2015). To state a prima facie case of
discrimination, a plaintiff must show that "(1) [s]he is
a member of a protected class, (2) [s]he suffered an adverse
employment action, and (3) the unfavorable action gives rise
to an inference of discrimination (that is, an inference that
[her] employer took the action because of [her] membership in
the protected class)." Brown v. Sessoms, 774
F.3d 1016, 1022 (D.C. Cir. 2014) (internal quotation marks
omitted). To state a prima facie case of retaliation, a
plaintiff must show that " she engaged in activity
protected by Title VII,  the employer took adverse action
against her, and  the employer took that action because of
[her] protected conduct." Walker, 798 F.3d at
1091-92. Once the plaintiff has established her prima facie
case, the burden shifts to the employer, who must identify
some "legitimate, non-discriminatory or non-retaliatory
reason" for the employment action, see Id. at
1092, which the plaintiff can rebut by showing that the
employer's stated reason is "merely pretext, "
Brown, 774 F.3d at 1023.
framework is modified at the summary judgment stage.
"[O]nce the employer has claimed a nondiscriminatory
reason for its actions, th[e] burden-shifting framework
disappears, " Nurriddin v. Bolden, 818 F.3d
751, 758 (D.C. Cir. 2016), and "the sole remaining issue
[i]s discrimination vel non, " Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 142-43 (2000)
(internal quotation marks omitted); see also Jones v.
Bernanke, 557 F.3d 670, 678 (D.C. Cir. 2009) (applying
same rule in retaliation context). The "central
question" becomes "whether the employee produced
sufficient evidence for a reasonable jury to find that the
employer's asserted nondiscriminatory or non-retaliatory
reason was not the actual reason and that the employer
intentionally discriminated or retaliated against the
employee." Walker, 798 F.3d at 1092 (internal
quotation marks omitted).
Plaintiff's Title VII claims are premised on three agency
actions that she alleges ultimately led to her removal as
Chief of the Personnel Security Branch and reassignment to
the Training Section. Those actions are: (1) the July
decision to suspend Plaintiffs Branch from adjudicating
security clearances for FEMA OCSO hires and employees; (2)
the September decision to detail Ms. Hestertothe Personnel
Security Branch; and (3) the November reassignment decision.
See Pl.'s Opp'n at 11-15, 20, 24. With
respect to each of these actions, Plaintiff claims race,
color, and gender discrimination, as well as retaliation.
See generally Am. Compl. ¶¶4, 12, 33, 38,
response to each of these actions is threefold. First,
Defendant argues that Plaintiffs Title VII claims are
non-justiciable under Department of Egan v. Navy,
484 U.S. 518 (1988), because they challenge a national
security decision made by the agency. Def.'s Mem. at 5.
Second, Defendant argues that even if Plaintiff s claims are
not barred by Egan, Plaintiff cannot establish a
prima facie case of discrimination or retaliation under Title
VII because she did not suffer a cognizable adverse
employment action. Id. at 18, 20. Finally, Defendant
argues that it had legitimate, non-discriminatory and
non-retaliatory reasons for all three of its actions, and
such reasons were not pretextual. Id. at 24. The
court will address each of these arguments in turn, in the
order in which the agency actions occurred.
July Suspension of Adjudicatory Authority Within
court turns first to the July 2011 decision by the agency to
suspend the Personnel Security Branch from adjudicating
security clearances for FEMA OCSO hires and employees. For
the reasons stated below, the court concludes that Plaintiff
loses under all three of Defendant's arguments.
Justiciability of Plaintiffs Title VII Claims Under
The parties agree that Egan and its progeny preclude
judicial review of Title VII claims that require courts to
evaluate the merits of security clearance determinations, but
disagree as to whether Egan applies in this case.
See Ames v. Johnson, 121 F.Supp.3d 126, 127 (D.D.C.
2015). In Egan, the Supreme Court held that the
Merit Systems Protection Board lacked the authority to review
a federal employee's complaint about the denial of a
security clearance. 484 U.S. at 527-29. The Court stated
that, "[f]or 'reasons ... too obvious to call for
enlarged discussion, ' the protection of classified
information must be committed to the broad discretion of the
agency responsible, and this must include broad discretion to
determine who may have access to it." Id. at
529 (second alteration in original) (citation omitted). The
Court explained that "it is not reasonably possible for
an outside nonexpert body to review the substance of such a
judgment and to decide whether the agency should have been
able to make the necessary affirmative prediction with
confidence." Id. Thus, the ordinary presumption
favoring reviewability of administrative actions "runs
aground when it encounters concerns of national
security." Id. at 526-27.
Circuit precedent has sharpened Egan's
application in this jurisdiction. In Ryan v. Reno,
the plaintiffs were denied federal jobs because they were not
granted the required security clearances, a decision that the
plaintiffs asserted was discriminatory. 168 F.3d 520, 522-23
(D.C. Cir. 1999). Stating that it was "necessary"
to apply the McDonnell Douglas burden-shifting
analysis to determine the merits of the plaintiffs'
claims, the court concluded that it could not "clear the
second step of McDonnell Douglas without running
smack up against Egan." Id. at 523-24.
Specifically, because the federal agency had proffered the
plaintiffs' inability to obtain security clearances as
its non-discriminatory reason for the non-hiring, the court
ruled that plaintiffs "could not challenge the proffered
reason's authenticity without also challenging its
validity." Id. at 524. Challenging the
reason's validity, in turn, would have required the
plaintiffs to ask the court to review the merits of the
security clearance decisions-a result forbidden by Egan.
See Id. Accordingly, the court in Ryan found
the plaintiffs' claims to be non-justiciable under
Egan. Id. at 524-25. Cases after Ryan
similarly have held that Egan bars Title VII claims
where "an adverse employment action [is] based on denial
or revocation of a security clearance, " Ryan,
168 F.3d at 524; see Foote v. Moniz, 751 F.3d 656,
658-59 (D.C. Cir. 2014) (holding Title VII plaintiff could
not challenge the Department of Energy's decision to deny
him certification under its Human Reliability Program, which
evaluated the suitability of employment applicants who would
have access to nuclear devices, materials, or facilities);
Bennett v. Chertoff, 425 F.3d 999, 1003 (D.C. Cir.
2005) ("Bennett could not challenge the authenticity of
TSA's proffered reason [for termination]-her inability to
maintain a security clearance-without also challenging the
validity of the reason, which is what Ryan
D.C. Circuit also has limited Egan's reach. In
Rattigan v. Holder, the court held that
Egan does not "insulate from Title VII
all decisions that might bear upon an employee's
eligibility to access classified information." 689 F.3d
764, 767 (D.C. Cir. 2012). Instead, because
"Egan emphasized that the decision to grant or
deny security clearance requires a '[p]redictive
judgment' that 'must be made by those with the
necessary expertise in protecting classified information,
'" Egan does not preclude review of
decisions by employees lacking expertise in security matters
who merely report security concerns. Id. at 767-68
(alteration in original) (quoting Egan, 484 U.S. at
529). In particular, the court concluded that Egan
does not apply to discrimination claims premised on the
assertion that that "agency employees acted with a
retaliatory or discriminatory motive in reporting or
referring information that they knew to be false."
Id. at 771.
these cases in mind, the court must determine whether
Plaintiff's Title VII claims- particularly, the evidence
that she relies upon to establish pretext-would require the
court to second guess the agency's "predictive
judgment" regarding its security clearance
determinations. Defendant contends that its reason for
suspending Plaintiff's Branch from adjudicating security
clearances for FEMA OCSO hires or employees was grounded in
"national security concerns" about FEMA OCSO's
adjudicatory process. See, e.g., Def.'s Reply at
3. As support for its position, Defendant relies on the sworn
declaration of the agency official who made the decision,
David Garratt. See Def.'s Mem. at 13. Garratt
attests that he issued the directive to halt certain security
adjudications after learning of OIG's investigation into
the security clearances of two recently hired FEMA OCSO
employees (Walker and Bland). See Def.'s Exs.
9-14 at 26-27, ¶¶ 3, 5; cf. Id. at 22-23,
¶ 13. Garratt further declares that he limited the scope
of the prohibition only to adjudication of clearances of OCSO
employees based on his immediate concern that the
adjudication process within FEMA OCSO was or had been
compromised. Id. at 27, ¶ 5.
attempts to create factual disputes with respect to the
agency's reasoning behind the July decision by arguing
that "Garratt had no reason for his alleged [security]
concern, and therefore, it did not exist." Pl.'s
Stmt., PI. Fact¶43C; see Pl.'s Opp'n at 22.
Plaintiff points to the absence of any contemporaneous
records corroborating Garratt's story or the OIG
investigation, and the lack of evidence that other agency
officials were aware of the reasons Defendant now claims
motivated Garratt's decision. See Pl.'s Opp'n ...