Ames v. Napolitano
Civil Action No. 2013-1054
| D.D.C. | Dec 27, 2017Background
- Harriett Ames, an African-American woman, was Chief of FEMA’s Personnel Security Branch, responsible for adjudicating employee security clearances.
- In 2011 DHS OIG investigated questionable clearances for two OCSO hires; FEMA leadership suspended the Branch from adjudicating OCSO hires and ordered a Security Compliance Review (SCR) that rated the Program "unsatisfactory."
- In September 2011 FEMA detailed Alfreda Hester (also an African-American woman) into the Branch and Hester assumed many adjudicatory duties; Ames retained title but alleges de facto displacement.
- In November 2011 Ames was reassigned from Chief of the Personnel Security Branch to Chief of the Training Section; she claims this was discriminatory (race, color, gender) and retaliatory under Title VII.
- Defendant moved for summary judgment arguing (1) Egan v. Navy bars judicial review of actions implicating national-security predictive judgments, (2) several actions weren’t materially adverse, and (3) proffered reasons were legitimate and not pretextual.
- The court granted summary judgment to Defendant as to (a) the July suspension of adjudicatory authority (Egan/non-justiciable and not adverse) and (b) the September detail of Hester (no pretext). The court denied summary judgment as to Ames’s November reassignment (triable issues on adversity, pretext, and retaliation causation).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Egan bars review of the July suspension of Branch adjudicatory authority | Ames: suspension was procedural or policy-based, not a security predictive judgment | DHS: suspension stemmed from national-security concerns about adjudications (a predictive judgment) | Held: Egan bars review; Title VII claims based on July suspension dismissed |
| Whether the July suspension was an adverse employment action | Ames: suspension harmed reputation and job functions | DHS: action targeted Branch, not Ames individually; no pay/grade loss or tangible harm | Held: not an adverse action; claims fail on that ground |
| Whether Egan bars review of the September detail (Hester) | Ames: detail was pretextual and motivated by discrimination/retaliation | DHS: detail addressed SCR findings and backlog, implicating security concerns | Held: Egan does not categorically bar review here; factual dispute remains |
| Whether the September detail was adverse and pretextual | Ames: duties were taken and she was effectively displaced | DHS: Ames retained title/grade and explanations (SCR/backlog) are legitimate | Held: Triable on adversity? Court found evidence insufficient to show pretext; summary judgment for DHS on September detail |
| Whether Egan bars review of the November reassignment | Ames: reassignment was not security-predictive and thus reviewable | DHS: reassignment tied to SCR findings and clearance concerns (sometimes asserted) | Held: Egan inapplicable as a matter of law to reassignment; claims are reviewable |
| Whether the November reassignment was adverse and pretextual (incl. retaliation causation) | Ames: reassignment removed supervisory duties, position lacked substance; temporal proximity to EEO contact supports retaliation | DHS: lateral reassignment, same grade/title, legitimate nondiscriminatory reasons (efficiency, SCR implementation) | Held: jury-triable issues exist on adverse action, pretext, and causation; summary judgment denied as to reassignment |
Key Cases Cited
- Egan v. Navy, 484 U.S. 518 (1988) (courts may not second-guess agency predictive judgments about national-security determinations like security clearances)
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) (burden-shifting framework for indirect evidence discrimination claims)
- Ryan v. Reno, 168 F.3d 520 (D.C. Cir. 1999) (Egan bars Title VII claims that would require reviewing the substance of security-clearance judgments)
- Rattigan v. Holder, 689 F.3d 764 (D.C. Cir. 2012) (Egan does not categorically shield all decisions touching eligibility for classified access; factual context matters)
- Niskey v. Kelly, 859 F.3d 1 (D.C. Cir. 2017) (loss of ability to perform job duties due to clearance suspension can be materially adverse)