Ames v. Nielsen

• Decision Date: 27 December 2017
• Docket Number: Case No. 13–cv–001054 (APM)
• Citation: 286 F.Supp.3d 70
• Parties: Harriett A. AMES, Plaintiff, v. Kirstjen NIELSEN, et al., Defendants.
• Court: U.S. District Court — District of Columbia

286 F.Supp.3d 70

Harriett A. AMES, Plaintiff,

v.Kirstjen NIELSEN,¹ et al., Defendants.

Case No. 13–cv–001054 (APM)

United States District Court, District of Columbia.

Signed December 27, 2017

Phillip Robert Kete, Law Office Of Phillip Robert Kete, Chesapeake Beach, MD, for Plaintiff.

John Cuong Truong, U.S. Attorney's Office for the District of Columbia, Washington, DC, for 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, 108 S.Ct. 818, 98 L.Ed.2d 918 (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 Plaintiff's 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., Pl. 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], at 26; see Pl.'s Exs. at 91–92, ¶ 89. Plaintiff's 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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, 106 S.Ct. 2548.

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...