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Ames v. Nielsen

United States District Court, District of Columbia

December 27, 2017

HARRIETT A. AMES, Plaintiff,
v.
KIRSTJEN NIELSEN, [1] et al., Defendants.

          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. 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.

         This 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 clearance decisions.

         Now 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 Judgment.

         II. BACKGROUND

         The 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.[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.

         In 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.[3] 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.

         Some 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.

         In 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.

         Later 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.[4] 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.

         In 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 23-24.

         III. LEGAL STANDARD

         Federal 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).

         Rule 56 "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.

         Once 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.

         IV. DISCUSSION

         Title 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).

         Under 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 "[1] she engaged in activity protected by Title VII, [2] the employer took adverse action against her, and [3] 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.

         This 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).

         Here, 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, 55.

         Defendant's 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.

         A. July Suspension of Adjudicatory Authority Within Plaintiffs Branch

         The 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.

         1. Justiciability of Plaintiffs Title VII Claims Under

         Egan 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.

         D.C. 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 prohibits.").

         The 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.

         With 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.

         Plaintiff 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 ...


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