AMES v. NIELSEN
1:13-cv-01054
D.D.C.Dec 27, 2017Background
- Harriett Ames, a dark-skinned African‑American woman, was Chief of FEMA’s Personnel Security Branch, responsible for adjudicating employee security clearances.
- In 2011, two hires (Walker and Bland) whose clearances Ames handled drew an OIG investigation; FEMA conducted a Security Compliance Review (SCR) that rated the Personnel Security Program "unsatisfactory" and identified multiple management and adjudicatory problems.
- July 2011: FEMA suspended the Branch’s authority to adjudicate OCSO (internal) clearances.
- September 2011: Alfreda Hester (another African‑American woman) was detailed to the Branch and assumed many adjudicatory duties; Ames retained title but alleges de facto displacement.
- November 2011: Ames was formally removed as Branch Chief and reassigned to be Chief of the Training Section. Ames sued under Title VII and the Equal Protection Clause alleging race, color, and sex discrimination and retaliation; Equal Protection claim was previously dismissed.
- At summary judgment, the court held claims premised on the July suspension and the September detail fail (July: non‑justiciable under Egan and not an adverse action; September: not shown to be pretextual), but denied summary judgment as to the November reassignment (triable issues on adversity and pretext/causation).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Egan bars judicial review of Title VII claims challenging the July suspension of Branch adjudicatory authority | Ames: suspension was procedural or policy‑based (not a predictive national‑security judgment) and therefore justiciable | DHS: suspension rested on national‑security predictive judgments about compromised adjudications and is non‑justiciable under Egan | Held: Egan bars review of claims based on the July suspension (non‑justiciable) |
| Whether the July suspension was an adverse employment action | Ames: suspension harmed reputation and work duties | DHS: action targeted the Branch, not Ames individually, and caused no tangible harm to pay/grade | Held: Not an adverse action for Ames; claims based on it fail |
| Whether Egan bars review of the September detail of Hester | Ames: detail was a pretextual personnel action and not a security predictive judgment | DHS: detail was justified by SCR findings and backlog implicating clearance validity (Egan) | Held: Egan does not categorically bar review of the September detail (disputed factual basis) |
| Whether the September detail was adverse and pretextual | Ames: detail effectively removed key duties and displaced her; shifting DHS explanations show pretext | DHS: detail addressed SCR/backlog; Hester is same race and evidence does not show discrimination or pretext | Held: Triable dispute on adversity, but no reasonable jury could find DHS’s explanations pretextual; summary judgment for DHS on September claims |
| Whether Egan bars review of the November reassignment | Ames: reassignment was motivated by non‑security reasons and thus justiciable | DHS: reassignment linked to clearance concerns and SCR (national‑security) | Held: Egan does not bar review of the reassignment claims on this record |
| Whether the November reassignment was an adverse action and pretextual/retaliatory | Ames: reassignment removed supervisory duties, placed her in a nominal/unformed training role soon after she engaged EEO activity; DHS’s reasons shifted over time and decision‑makers’ accounts conflict (temporal proximity supports causation) | DHS: reassignment was lateral, retained grade/title and was to utilize Ames’s skills to address SCR; reasons are legitimate and non‑retaliatory | Held: A reasonable jury could find the reassignment materially adverse and that DHS’s shifting explanations create triable issues of pretext and causation; summary judgment denied as to reassignment claims |
Key Cases Cited
- Egan v. Department of the Navy, 484 U.S. 518 (national‑security predictive judgments about clearances are non‑justiciable)
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (burden‑shifting framework for discrimination claims)
- Celotex Corp. v. Catrett, 477 U.S. 317 (summary judgment standards; movant’s initial burden)
- Anderson v. Liberty Lobby, 477 U.S. 242 (genuine dispute and materiality standards at summary judgment)
- Ryan v. Reno, 168 F.3d 520 (D.C. Cir.: Egan bars Title VII review where proving pretext requires second‑guessing clearance decisions)
- Rattigan v. Holder, 689 F.3d 764 (D.C. Cir.: Egan does not categorically insulate all security‑related personnel actions; limited review possible)
- Reeves v. Sanderson Plumbing Prods., 530 U.S. 133 (once employer offers nondiscriminatory reason, central question is whether plaintiff showed it is pretext)
- Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53 (retaliation adverse‑action standard: would dissuade a reasonable worker)
- Forkkio v. Powell, 306 F.3d 1127 (lateral changes and when reassignment is materially adverse)
- Baloch v. Kempthorne, 550 F.3d 1191 (retaliation/discrimination adverse action analysis)
- Nurriddin v. Bolden, 818 F.3d 751 (burden‑shifting disappears after employer proffers reason; focus on discrimination vel non)
- Niskey v. Kelly, 859 F.3d 1 (D.C. Cir.: total loss of ability to perform job can be materially adverse)