Ames v. Napolitano ( 2017 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________
)
HARRIETT A. AMES, )
)
Plaintiff, )
)
v. ) Case No. 13-cv-001054 (APM)
)
KIRSTJEN NIELSEN, 1 et al., )
)
Defendants. )
_________________________________________ )
MEMORANDUM OPINION AND ORDER
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 responsibilit ies
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.
1
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, the court substitutes the current Secretary of
Homeland Security as the defendant in this case.
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 responsibilit ies
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.
2
Citations to Plaintiff’s and Defendant’s exhibits are to the page numbers electronically generated by CM/ECF.
2
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.
3
Plaintiff admits that Defendant’s evidence shows that she approved her staff’s recommendation that “FEMA comply
with reciprocity requirements and recognize a secret clearance for Mr. Walker.” Pl.’s Exs. at 91, ¶ 84; see Def.’s Exs.
1–5 at 21 (e-mail from Plaintiff regarding EOD for Walker and Bland). She claims, however, that the determination
of whether Mr. Walker could enter on duty was made by another office, rather than her Branch, due to an error by the
hiring office, and that her Branch did not communicate to the personnel office that Mr. Walker could enter on duty.
Id. at ¶¶ 85–86. But see Def.’s Exs. 1–5 at 21 (“[W]e can issue an EOD approval for Gary [Walker] and he can
complete E-Qip while on board. [Bland] on the other hand will need to complete E-Qip before we can EOD.”).
3
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–
4
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 (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
4
In its reply to this statement of fact, Defendant simply states that Plaintiff testified that “she retained her duties as
Branch Chief of the Personnel Security Branch with supervisory duties.” Def.’s Reply Stmt. at 13. Thus, Defendant
does not appear to dispute that some of Plaintiff’s duties were transferred to Hester; rather, Defendant presumably
seeks to clarify that Plaintiff retained her supervisory duties as Chief of the Branch after the September detail.
5
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.
6
§ 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)
7
(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 Plaintiff’s Branch from
adjudicating security clearances for FEMA OCSO hires and employees; (2) the September
decision to detail Ms. Hester to the 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
Plaintiff’s 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.
8
A. July Suspension of Adjudicatory Authority Within Plaintiff’s 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 Plaintiff’s 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
9
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
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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., Pl. 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
11
Defendant now claims motivated Garratt’s decision. See Pl.’s Opp’n at 22; Pl.’s Stmt., Pl. Fact
¶¶ 45–51. 5 In short, Plaintiff disputes the national security rationale advanced by Defendant.
The court agrees with Defendant that Egan bars review of Plaintiff’s Title VII claims that
are premised on the July suspension. Garratt’s concerns about the FEMA OCSO adjudicatory
process are predicated on “the same sort of ‘predictive judgment’ that Egan tells us ‘must be made
by those with the necessary expertise in protecting classified information,’ without interference
from the courts.” Ryan, 168 F.3d at 524 (quoting Egan, 484 U.S. at 529). To succeed on the
merits of her Title VII claims, Plaintiff must prove that the reason given for the July restriction is
pretext for discrimination. Doing so, however, necessarily will require the trier of fact to question
the veracity of the agency’s security concerns arising out of the Bland and Walker security
clearances. See Ryan, 168 F.3d at 524 (holding plaintiffs could not challenge the authenticity of
the employer’s reason without also challenging its validity). In that vein, the “predictive
judgment” of trained security personnel—be it Plaintiff herself or those within the agency, such as
Garratt, who found the adjudications to pose a threat to national security—will be directly called
into question. Egan forbids such second-guessing. See id.
Plaintiff tries to avoid the application of Egan by characterizing the agency’s reason for
the suspension as one grounded in failure to follow agency policy regarding interim security
5
Although the court considers Plaintiff’s argument, its factual premise is highly dubious. First, Plaintiff cannot
seriously dispute the existence of the OIG investigation. See Ames v. U.S. Dep’t of Homeland Sec., 153 F. Supp. 3d
342, 344 (D.D.C. 2016) (noting that in August 2011, a senior special agent of the DHS OIG interviewed Plaintiff
herself as part of an active investigation of Burt Thomas and the Bland/Walker adjudications). Second, Garratt’s
reasons for the July decision are not “new,” as Plaintiff claims. Compare Pl.’s Exs. at 20–21, 27–28 (interrogatory
responses), with Def.’s Exs. 9–14 at 26–27 (Garratt declaration). And while there are no contemporaneous records of
Garratt’s reasoning, there also are no records that contradict his story, nor any indication that he would have normally
documented his reasoning. Finally, Plaintiff inaccurately characterizes the present record by stating that Salazar and
Oliver (two officials who did not make the decision) were unaware of Garratt’s reasoning. See Pl.’s Opp’n at 22, 25–
26. In support of this contention, Plaintiff cites to Oliver’s and Salazar’s certifications of Defendant’s interrogatory
responses. See id. While these responses omit certain details mentioned in Garratt’s declaration, such as alleged
involvement by then-FEMA Chief Security Officer Burt Thomas, they expressly cite the improper grant of security
clearances by Plaintiff’s Branch as the reason for the decision. See Pl.’s Exs. at 20–21, 27–28.
12
clearances. See generally Pl.’s Opp’n at 28–30. In particular, Plaintiff claims that the agency
relied upon a new interpretation of a federal regulation relating to interim security clearances that
Plaintiff asserts is inconsistent with long-standing agency policy and practice, which is what she
adhered to in approving the two relevant adjudications here. See id.; Pl.’s Stmt., Pl. Fact ¶¶ 9–12,
16–28, cf. Pl.’s Exs. at 90–91, ¶¶ 79–86. Thus, according to Plaintiff, the court need not consider
the correctness of the agency’s security rationale because “[r]elying on [an] employee’s
compliance with [an undisclosed, newly interpreted] agency policy is pretext regardless of the
wisdom . . . of that policy.” Pl.’s Opp’n at 28.
To be sure, this court previously held that, if Plaintiff’s adjudications were deemed to be
“questionable” due to a failure to follow agency policy, as opposed to a disagreement on the merits
of the underlying clearance determination, Egan might not necessarily bar review. See Ames, 121
F. Supp. 3d at 132–33 (citing Thomas v. Johnson, 4 F. Supp. 3d 157 (D.D.C. 2014)). But that is
not the case here. First and foremost, the action taken against the Personnel Security Branch was
not based strictly on Plaintiff’s failure to follow agency policy forbidding interim clearances.
Rather, the record evidence shows that the broader concern was that the security clearance
adjudicatory process within Plaintiff’s Branch had been compromised—a concern that arose when
Garratt learned of the then-ongoing OIG investigation into the questionable adjudications of
Walker and Bland. Def.’s Mem. at 8, 13, 27; see Def.’s Exs. 9–14 at 26–27. Under Egan, a trier
of fact cannot retrospectively look behind an agency’s security concern to determine whether it is
a pretext for discrimination.
Moreover, Ryan forecloses Plaintiff’s “attempt to circumvent Egan by characterizing the
challenged employment actions as procedural, divorced from any substantive security
determination.” 168 F.3d at 524. In Ryan, the plaintiffs focused on the agency’s adherence to the
13
procedures used to make the clearance decisions, as opposed to the denials themselves. But
because the agency denied the waivers based on its conclusion that “no clearances should be
granted without more extensive investigations than were possible here,” the court reasoned that
“the waiver denials were tantamount to clearance denials and were based on the same sort of
predictive judgment” contemplated by Egan. Id. (internal quotation marks omitted). By extension
here, Defendant’s interpretation and reliance on the applicable federal regulation reflects its
predictive judgment about the dangers of granting interim clearances without a full background
investigation. Egan cannot be avoided by claiming, as Plaintiff does, that the agency’s change in
policy interpretation itself demonstrates pretext, because such an inquiry necessarily would require
the trier of fact to scrutinize how the parties’ differing interpretations of interim security clearance
policies would apply to the Bland and Walker cases. Such predictive judgments are off limits
under Egan.
Therefore, under Egan, Plaintiff’s Title VII claims with respect to the July decision are
non-justiciable.
2. The Merits of Plaintiff’s Title VII Claims Under McDonnell Douglas
Even if Plaintiff’s Title VII claims premised on the July suspension could be adjudicated,
those claims fail on the merits. Although most discrimination cases contain no dispute that the
employee has suffered an adverse employment action, Baloch v. Kempthorne, 550 F.3d 1191, 1196
(D.C. Cir. 2008), that is not the case here. Defendant contends that the July suspension does not
constitute an adverse employment action. Def.’s Mem. at 20–21.
“[N]ot everything that makes an employee unhappy is an actionable adverse action.”
Douglas v. Donovan, 559 F.3d 549, 552 (D.C. Cir. 2009) (internal quotation marks omitted). In
the discrimination context, an “adverse employment action” is “a significant change in
14
employment status.” Id. (internal quotation mark omitted). To suffer an adverse action, the
employee must “experience[] materially adverse consequences affecting the terms, conditions, or
privileges of employment or future employment opportunities such that a reasonable trier of fact
could find objectively tangible harm.” Forkkio v. Powell, 306 F.3d 1127, 1131 (D.C. Cir. 2002)
(emphasis added). Although “hiring, firing, failing to promote, [and] reassignment with
significantly different responsibilities categorically are adverse employment actions,”
employment actions that do not obviously cause a significant change in employment status—such
as a decision causing a significant change in benefits—require the plaintiff to “go the further step”
of demonstrating how the decision caused objectively tangible harm. Douglas, 559 F.3d at 553,
556 (emphasis added) (internal quotation marks omitted). In the latter case, the court must
consider “whether the alleged harm is unduly speculative.” Id. at 553. “Purely subjective injuries,
such as dissatisfaction with a reassignment, or public humiliation or loss of reputation, are not
adverse actions.” Forkkio, 306 F.3d at 1130–31 (citations omitted); see, e.g., Douglas, 559 F.3d
at 552–53 (explaining that performance evaluations are ordinarily too speculative to be actionable
under Title VII). Indeed, in most cases, a tangible employment action will “inflict[] direct
economic harm.” Douglas, 559 F.3d at 552 (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S.
742, 762 (1998)).
The question here is whether a reasonable juror could find that the limited adjudicatory
suspension caused Plaintiff objectively tangible harm. A reasonable juror could not. The
“adverse” action in question was directed not at Plaintiff alone, but at the entire Branch. Plaintiff
cites no case for the proposition that an action taken against a group of people can be bootstrapped
into an adverse action against an individual, and the court is aware of none. Moreover, the July
restriction of adjudicatory authority is not “categorically” adverse, thus requiring Plaintiff to show
15
objectively tangible harm. But Plaintiff fails to present any evidence of such harm. She does not,
for instance, claim that the suspension affected her pay or grade. While Plaintiff’s declaration
asserts that the suspension “made it appear that [she] was somehow involved in unspecified
wrongdoing,” Pl.’s Exs. at 84, ¶ 30, such alleged harm is little more than a reputational injury,
which is not actionable, see Stewart v. Ashcroft, 352 F.3d 422 (D.C. Cir. 2003) (“[A] bruised ego
will not suffice to make an employment action adverse.” (internal quotation marks omitted)).
Accordingly, because the July suspension does not qualify as an adverse action, Plaintiff’s
disparate treatment claims fail. 6
The same result obtains as to Plaintiff’s retaliation claim, but for an even simpler reason:
It is undisputed that the July 2011 suspension took place before Plaintiff made initial contact with
an Equal Employment Opportunity counselor. See Am. Compl., Final Agency Decision, ECF No.
38-1 [hereinafter FAD], at 1; see also Def.’s Mem. at 20 n.7. To state the obvious, an employee
cannot claim retaliation for protected activity that has yet to occur.
Accordingly, to the extent Plaintiff’s discrimination and retaliation claims are premised on
the July suspension, Defendant’s Motion for Summary Judgment is granted.
B. September Detail of Ms. Hester
The court turns next to the September 2011 decision to detail Ms. Hester to the Personnel
Security Branch. According to Plaintiff, the detail resulted in Hester effectively replacing Plaintiff
as Chief of the Branch. For the reasons stated below, while the court finds that Egan does not
6
Although the court need not reach the issue, the court also finds that Plaintiff has failed to point to any admissible
evidence that would create a genuine dispute of fact as to pretext. The only rebuttal Plaintiff offers to Defendant’s
non-discriminatory reason is that no contemporaneous records corroborate Garratt’s explanation for suspending the
Branch’s security clearance function and that others, namely Oliver and Salazar, were not aware of that explanation.
See Pl.’s Opp’n at 22. But the absence of a contemporaneous record does not create a conflict with Garratt’s stated
reasons, and Plaintiff’s contention about the absence of knowledge by others is based entirely on her own speculation,
not direct testimony from those persons. See id. (citing Pl.’s Stmt., Pl. Fact ¶¶ 48–49, which in turn cite Pl.’s Exs. at
27–28 (Defendant’s supplemental interrogatory answer that makes no reference to Oliver’s or Salazar’s knowledge)).
Plaintiff’s Title VII claim therefore fails on the ultimate question of “discrimination vel non.”
16
preclude review of Plaintiff’s claims premised on the September detail, these claims fail on the
merits because no reasonable jury could find that the reasons proffered by the agency were pretext
for discrimination or retaliation.
1. Justiciability of Plaintiff’s Title VII Claims Under Egan
The court begins its Egan inquiry by identifying the reasons proffered by the agency for
the September 2011 detail of Hester. Those reasons have varied, albeit slightly. In its Motion,
Defendant states that Hester was detailed “to address two equally important concerns that arose at
th[e] time,” which “formed the bases for the detail”: “the shortcomings identified in the SCR” and
“the thousands of backlogged cases awaiting clearance adjudication.” Def.’s Mem. at 28; see also
Def.’s Stmt. ¶ 60 (stating that Clifford Oliver, the then-Acting Chief of FEMA OCSO, “decided
to reach out to DHS OCSO for help” “[d]ue to the workload and stress experienced by the
Personnel Security Branch and given the results of the SCR”). Those reasons are corroborated by
contemporaneous e-mails among Plaintiff’s superiors. See Def.’s Mot., Exs. 15–23, ECF No. 73-
6 [hereinafter Def.’s Exs. 15–23], at 2. By contrast, Defendant’s supplemental interrogatory
response offers a narrower reason: “[T]he decision was made because of concerns that Ms. Ames
and the Personnel Security Branch had improperly granted security clearances.” Pl.’s Exs. at 22.
Nowhere do Defendant’s interrogatory responses identify a backlog of security clearances as a
reason for the detail. See generally id. at 11–13, 22–23, 29–30, 43–44, 53–55.
Defendant contends that there is no inconsistency among these rationales for Hester’s detail
because, among its 16 findings, the SCR found that the Personnel Security Branch had improperly
granted interim security clearances and that the processing of clearances was not in accordance
with federal regulations. See Def.’s Exs. 9–14 at 10. In light of that finding, Defendant argues,
17
the predictive security risk assessment at the heart of Egan is necessarily implicated, thereby
barring review of the decision to transfer Hester into Plaintiff’s Branch.
Defendant’s reliance on Egan cannot, however, be sustained on this record at the summary
judgment stage. What role, if any, Plaintiff’s erroneous security clearance determinations played
in the decision to temporarily assign Hester to the Branch is unclear. True, the SCR makes
reference to erroneous or improper processing of security clearances, but it does so only in two of
16 different administrative and management deficiencies identified within the Personnel Security
Program. See Def.’s Exs. 9–14 at 3–14; cf. Def.’s Stmt. ¶¶ 37–55. Indeed, the majority of the
SCR addresses problems with Branch management that have nothing to do with security risk
assessments. See, e.g., Def.’s Exs. 9–14 at 8 (negative comments by interviewed personnel
regarding management and work environment); id. at 12 (management is inaccessible and can be
abrupt, demeaning, and abusive at times); id. (morale at extremely low level); id. at 11 (unrealistic
metric/statistical units of production for adjudicative staff); id. (poor communication due to
inconsistencies in management’s delivery of policy and guidance to staff); id. at 9, 13
(inexperience of adjudication staff); id. at 12 (staff would benefit from training but requests are
denied or they receive no response from management); id. (staff not always utilized to its
strengths); id. at 13 (written policy frequently old, incomplete, and inaccurate); accord Def.’s Stmt.
¶¶ 40, 42, 46–52, 54. Other problems concern the Branch’s failure to adjudicate clearances in a
timely manner. See Def.’s Exs. 9–14 at 9 (FEMA not meeting adjudication timelines mandated
by federal law); id. at 10 (backlog of 4,200 cases awaiting adjudication); accord Def.’s Stmt. ¶¶ 41,
43.
In view of the breadth of the SCR’s criticisms, the court cannot find at this stage, as a
matter of law, that Egan precludes review of the decision to detail Hester to the Personnel Security
18
Branch. If in fact the SCR prompted Hester’s detail, it does not necessarily follow that Egan
precludes review of that decision, as many of the report’s critiques have nothing to do with
predictive judgments about security risk assessments. Therefore, the court finds that there remains
a material dispute of fact as to whether Egan precludes review of the decision to assign Hester to
the Personnel Security Branch.
2. Adverse Employment Action
As with the July suspension, Defendant also claims that Plaintiff did not suffer adverse
employment action as a result of the September detail. Def.’s Mem. at 3, 21–22. The September
detail at issue here does not involve hiring, firing, or failure to promote. After all, Plaintiff at least
nominally retained her title of Chief of the Personnel Security Branch, as well as her status as a
GS-14 level employee. See Notice of Correction at 3. Plaintiff further admits that her salary even
increased during the time of the detail. Id. Thus, Plaintiff relies instead on the change in her duties
after Hester’s detail, which she alleges resulted in her effective displacement as Chief of the
Branch. See Pl.’s Opp’n at 21.
“[W]ithdrawing an employee’s supervisory duties” or reassigning an employee with
“significantly different responsibilities” can constitute an adverse employment action, but the
inquiry is necessarily fact-bound. Czekalski v. Peters, 475 F.3d 360, 364 (D.C. Cir. 2007)
(alteration in original) (internal quotation marks omitted). For example, in Forkkio, the plaintiff
brought a Title VII claim premised on a significant change in job responsibilities after losing his
job title as “Section Chief” during an agency reorganization. 306 F.3d at 1129, 1131. The D.C.
Circuit held this change did not constitute material adversity because the plaintiff’s substantive
responsibilities were not reduced: “he was given additional functions to perform; he continued to
supervise his former staff members; and he was given additional staff.” Id. at 1131. Although the
19
plaintiff was forced to report to a colleague who was previously his peer, and was unable to attend
weekly meetings with the other section chiefs or receive certain communications sent to
management officials during the several months before his reappointment, the court found such
facts were “not sufficiently significant to amount to materially adverse consequences.” Id.
(internal quotation marks omitted).
By contrast, an employment action that results in “a complete inability to perform all of
[one’s] job responsibilities” is considered adverse under Title VII. See Niskey v. Kelly, 859 F.3d
1, 8 (D.C. Cir. 2017). In Niskey, the district court held that the Department of Defense’s decision
to suspend the security clearance of an employee working as an information technology specialist
was not adverse. See id. The Circuit disagreed, holding that “a reasonable trier of fact could find
that the suspension of Niskey’s security clearance, even though initially with pay, was materially
adverse.” Id. at 8–9. The court reasoned that “because the nature of Niskey’s job was such that,
without a security clearance, he could not perform any aspects of his job,” “[a] reasonable trier of
fact could conclude that a total loss of ability to function as an employee amounted to objectively
tangible harm.” Id. at 8 (internal quotation marks omitted). “[S]uch employment paralysis seems
to be far more than the type of ‘purely subjective harm[]’ for which suit might not stand.” Id.
(alteration in original) (quoting Forkkio, 306 F.3d at 1131). Notably, the court distinguished its
earlier decision in Forkkio, where the plaintiff “lost little more than his job title” and “the substance
of his work, pay, and benefits did not materially change for the worse.” Id. at 9. Niskey, on the
other hand, “lost almost everything.” Id.
The September detail in this case falls somewhere in between Forkkio and Niskey. Unlike
in Niskey, Plaintiff did not suffer a complete loss of job responsibilities because she retained certain
supervisory responsibilities. See Def.’s Stmt. ¶ 66; see also Notice of Correction at 3. Yet,
20
Plaintiff does not merely allege that she was unable to attend certain meetings or receive certain
communications, like the plaintiff in Forkkio. Instead, she claims that substantive duties relating
to the adjudication of security clearances—duties that were presumably central to her job as Chief
of the Personnel Security Branch—were transferred to Hester. See Pl.’s Stmt., Pl. Fact ¶ 62. And,
importantly, Plaintiff’s claim that she was de facto removed from her leadership position does not
rest on her testimony alone. The record contains an e-mail dated September 2, 2011, from Oliver,
then-Acting Chief of FEMA OCSO, which states that the person designated to the Branch—who
ended up being Hester—“will have complete authority of the Personnel Security Program. They
will first focus on training the personnel security staff and then will address other shortcomings
identified in the SCR.” See Def.’s Exs. 15–23 at 2 (emphasis added). Although Defendant claims
that Plaintiff did not report to Hester and Hester did not assume her duties as Chief of the Branch,
see Def.’s Mem. at 21 (citing Def.’s Exs. 15–23 at 13, ¶ 5), these facts are disputed and bear
directly on the element of adversity. Thus, viewing the evidence in the light most favorable to
Plaintiff, the court finds a reasonable jury could find that the September detail was materially
adverse for purposes of Plaintiff’s discrimination claim. See Czekalski, 475 F.3d at 365 (“Whether
a particular reassignment of duties constitutes an adverse action for purposes of Title VII is
generally a jury question.”).
The same result follows for Plaintiff’s retaliation claim. Retaliation “encompass[es] a
broader sweep of adverse actions than those in a pure discrimination claim.” Baloch, 550 F.3d at
1198 n.4. In the retaliation context, a “materially adverse” action is one that would have
“dissuaded a reasonable worker from making or supporting a charge of discriminatio n.”
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006) (internal quotation marks
omitted). As already discussed, there is a factual dispute with regard to the consequences of the
21
September detail. The court therefore has little trouble concluding that the prospect of a de facto
replacement might dissuade a reasonable worker from making a charge of discrimination.
Accordingly, the court finds Plaintiff has submitted sufficient evidence to create a triable issue
with respect to adversity in the retaliation context.
3. Pretext
Having concluded that the evidence is sufficient to show that Plaintiff suffered adverse
employment action, the court must now turn to the circumstantial evidence of both discriminatory
and retaliatory intent. As stated above, Defendant has proffered a legitimate, non-discriminat ory
and non-retaliatory reason for the September detail—addressing problems in the SCR and the
backlog of adjudications in Plaintiff’s Branch. Accordingly, the McDonnell Douglas burden-
shifting framework is no longer relevant, and the central question is whether a reasonable jury
could find that the legitimate reason proffered by Defendant is not the actual reason and that
Defendant intentionally discriminated or retaliated against her on the basis of race, color, or
gender. In other words, the court must determine whether a jury could infer discrimination and
retaliation from all of the evidence presented by both parties. See Nurriddin, 818 F.3d at 758–59;
Jones, 557 F.3d at 678–79; see also Hamilton v. Geithner, 666 F.3d 1344, 1351 (D.C. Cir. 2012)
(holding that courts must consider “the total circumstances of the case” and ask whether the jury
could infer discrimination or retaliation “from the combination of (1) the plaintiff’s prima
facie case; (2) any evidence the plaintiff presents to attack the employer’s proffered explanation
for its actions; and (3) any further evidence of discrimination that may be available to the
plaintiff . . . or any contrary evidence that may be available to the employer.” (alteration in
original) (internal quotation mark omitted)).
22
In rebutting the explanation proffered by the defendant, the plaintiff may show that the
reasons offered were not the defendant’s true reasons, but were a pretext for retaliation or
discrimination. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981); Durant v.
District of Columbia, 875 F.3d 685, 697 (D.C. Cir. 2017). To do so, the plaintiff may point to,
among other things, the defendant’s “better treatment of similarly situated employees outside the
plaintiff’s protected group, its inconsistent or dishonest explanations, its deviation from
established procedures or criteria,” its “pattern of poor treatment of other employees in the same
protected group as the plaintiff, or other relevant evidence that a jury could reasonably conclude
evinces an illicit motive.” Wheeler v. Georgetown Univ. Hosp., 812 F.3d 1109, 1115 (D.C. Cir.
2016) (emphasis added) (internal quotation mark omitted). “[T]hough evidence of pretext is not
per se sufficient to permit an inference of discrimination [or retaliation], it [u]sually . . . will be
enough to get a plaintiff’s claim to a jury.” Jones, 557 F.3d at 679 (second and third alterations in
original) (internal quotation marks and citations omitted).
Plaintiff points primarily to Defendant’s alleged shifting explanation for transferring
Hester into the Program as evidence of pretext. Cf. Pl.’s Opp’n at 7–10, 23–26. Recall, Defendant
asserts in its Motion that the reason for detailing Hester was to assist with the backlog of security
clearances and to address the weaknesses identified in the SCR, Def.’s Mem. at 28, but in its
interrogatory responses it identified a narrower reason for the detail—the erroneous security
clearances of Bland and Walker—and made no mention of the backlog, see Pl.’s Exs. at 22. To
be sure, “shifting and inconsistent justifications are probative of pretext.” Geleta v. Gray, 645
F.3d 408, 413 (D.C. Cir. 2011) (internal quotation marks omitted). But while “[a]n employer’s
changing rationale for making an adverse employment action can be evidence of pretext, there are
instances where, although the plaintiff has . . . set forth sufficient evidence to reject the defendant’s
23
explanation, no rational factfinder could conclude that the action was discriminatory.” Giles v.
Transit Emps. Fed. Credit Union, 794 F.3d 1, 9 (D.C. Cir. 2015) (alterations in original) (first
quoting Geleta, 645 F.3d at 413–14; then quoting Reeves, 530 U.S. at 148). “This is because the
plaintiff’s attack on the employer’s explanation must always be assessed in light of the total
circumstances of the case.” Id. (internal quotation marks omitted).
Viewing the evidence in the light most favorable to Plaintiff here, the court finds that,
notwithstanding the different reasons proffered by Defendant for Hester’s detail, no reasonable
jury could find that the motive for the transfer decision was discriminatory or retaliatory. To begin,
to the extent Defendant proffers different explanations for why it assigned Hester to the Personnel
Security Branch, those differences are slight, giving rise to only a weak inference of pretext. As
Defendant points out, the SCR clearly criticizes the Branch for granting security clearances not in
accordance with federal regulations, which is the very reason Defendant put forth in its
interrogatory responses for the detail. Moreover, the additional reason for the detail now proffered
by Defendant, i.e., to address the backlog of security investigations, is rooted in undisputed record
evidence. It is not cut from whole cloth for the purposes of litigation. There was a significant
backlog of security clearance adjudications in the Personnel Security Branch; the SCR did criticize
the Branch for that backlog; and the backlog was cited in contemporaneous e-mails as a reason for
Hester’s transfer. See Pl.’s Exs. at 85, ¶ 37. See generally Def.’s Exs. 9–14 at 3–14. Indeed, on
the very day that Plaintiff complained to her first-line supervisor, Jose Cantu, that her workload
was causing her significant stress, Oliver wrote to Cantu: “With the disaster activity and the results
of the SCR, I am aware of the recent workload and stress the personnel security program is under.”
Def.’s Exs. 15–23 at 2. To address the problem, Oliver indicated that he would be assigning “a
current DHS personnel security manager” to FEMA—who turned out to be Hester—and hiring
24
contractors to help with the workload. Id. Oliver signed off: “I believe that the combination of
these two actions is an appropriate response to Harriett’s concerns raised in her e-mail to you.
Please pass along my concern to Harriet concerning health and the steps I am directing be taken to
support her.” Id. Oliver’s words and actions undermine any reasonable inference of
discrimination. Thus, while the proffered explanation in Defendant’s briefing is more fulsome
than that set forth in its interrogatory responses, no reasonable jury could find that the more
fulsome explanation is pretext for discrimination. Cf. Geleta, 645 F.3d at 413 (explaining that the
employer’s reasons had changed over time and were thus probative of pretext where an official
initially told the plaintiff to make up a reason for his reassignment, and the defendants later stated
instead that the program plaintiff directed was dismantled and then again shifted to say the
employer decided to create a new vision for the program).
Additional record evidence, in the form of Plaintiff’s own testimony, supports the court’s
conclusion. Plaintiff testified that after she was investigated by DHS OIG in 2011, and refused to
re-adjudicate a case, “the chain of events just started happening,” and her “duties were taken
away,” “because they wanted [her] to . . . re-adjudicate a case, and [she] refused to do it.” Notice
of Correction at 4. Thus, Plaintiff admits that her own conduct set in motion the course of events
leading to Hester’s designation to the Branch.
Finally, and perhaps most critically, the person Plaintiff claims effectively replaced her,
Hester, is herself an African-American female. See Def.’s Stmt. ¶ 66; Pl.’s Stmt., Def. Fact ¶ 66.
This fact “cuts strongly against any inference of discrimination.” Murray v. Gilmore, 406 F.3d
708, 715 (D.C. Cir. 2005). Thus, the court finds that no reasonable jury could conclude that the
real reason for the September detail was race, color, or gender discrimination or retaliation.
25
Accordingly, the court grants Defendant’s Summary Judgment Motion with respect to
Plaintiff’s Title VII discrimination and retaliation claims based on the September detail.
C. November Removal and Reassignment
Finally, the court turns to Defendant’s decision to remove Plaintiff from her position as
Chief of the Personnel Security Branch and to reassign her as head of the Training Section. For
the reasons stated below, the court not only finds that Egan is inapplicable to Plaintiff’s Title VII
claims based on the reassignment, but also holds that there is sufficient evidence upon which a
reasonable jury could conclude that the reassignment was adverse and that Defendant’s proffered
reasons for that decision were pretext for discrimination and retaliation.
1. Justiciability of Plaintiff’s Title VII Claims Under Egan
The question whether Egan bars judicial review of Plaintiff’s Title VII claims predicated
on her reassignment turns on whether Defendant’s proffered explanation for that action involves a
predictive judgment about security risk. It does not.
As with the September detail, Defendant has proffered different reasons for its November
reassignment decision. In its interrogatory responses, for example, Defendant states that Salazar
made the decision to reassign Plaintiff due to concerns about the improper adjudication of security
clearances. See Pl.’s Exs. at 23. 7 Now in its Motion, Defendant claims that a series of other
individuals participated in the decision both to remove Plaintiff as Chief of the Branch and to
reassign her to a different position, citing broad reasons relating to the SCR as the basis for its
7
Defendant cites to a contemporaneous e-mail showing a continued concern relating to security clearances within the
Branch, see Def.’s Mem. at 15, but that e-mail is hardly conclusive that Plaintiff’s security clearance decisions
motivated Defendant to reassign her, compare Def.’s Exs. 24–30 at 6 (“The first recommendation is that until they
revamp the Personnel Security Branch, we need to take over the FEMA OCSO cases and I am quite concerned about
all of their national security adjudications especially at the TS/SCI level.”), with id. at 6–7 (“Secondly, our efforts to
assist are moving at a slow pace. Harriett is still the driving force within the organization and we are constantly hitting
road blocks. So my recommendation is to move Harriett to another security discipline within the office. Harriett tried
to halt the training efforts and is still the authority on PSB actions.”).
26
decision—namely, that Plaintiff failed to accept the results of the SCR and impeded Defendant’s
efforts to address the shortcomings identified therein. See, e.g., Def.’s Mem. at 3, 9, 30; cf. Def.’s
Stmt., ¶¶ 89–90. It ought to be plain by now that Egan does not necessarily preclude review of
such reasons for an employment decision. See Rattigan, 689 F.3d at 770 (noting that “it is our
duty not only to follow Egan, but also to preserv[e] to the maximum extent possible Title VII’s
important protections against workplace discrimination and retaliation” (alteration in original)
(internal quotation marks omitted)). Because a reasonable trier of fact could conclude that
security-clearance concerns had little, or nothing at all, to do with the decision to reassign Plaintiff,
the court cannot conclude at this stage as a matter of law that Plaintiff’s discrimination claims
premised on the November reassignment are non-justiciable.
2. Adverse Employment Action
Next, Defendant argues that the November reassignment does not constitute a material
adverse action. Defendant points out that Plaintiff retained her GS-14 level and her title as “Chief.”
Def.’s Mem. at 22. It also asserts that the transfer did not result in a reduction of Plaintiff’s
responsibilities. In support, Defendant points to Salazar’s “Memorandum of Record,” which it
claims Plaintiff refused to accept, stating that “Plaintiff would serve as the ‘primary supervisor’
over an expansive security education and training program portfolio.” Id. (citing Def.’s Exs. 24–
30 at 14–16); see Def.’s Stmt. ¶¶ 103–04. Defendant also points to Salazar’s Declaration, Def.’s
Mem. at 22, which describes the duties of Plaintiff’s Training Section position as follows:
[T]he duties [of Plaintiff’s job series] involved the management,
supervision, and performance of work in: (1) developing,
evaluating, maintaining, and/or operating systems, policies,
training, devices, procedures, and methods used for safeguarding
information, property, personnel, operations, and materials; and/or
(2) developing and implementing policies and procedures for
analyzing and evaluating the character, background, and history of
employees, candidates for employment, and other persons having or
27
proposed to be granted access to classified or other sensitive
information, materials, or work sites.
Def.’s Exs. 24–30 at 3, ¶ 7. According to Defendant, this description shows Salazar “envisioned
Plaintiff performing functions” of equal significance. See Def.’s Mem. at 22–23.
Plaintiff, on the other hand, argues that her reassignment was materially adverse because
her new position as Chief of the Training Section involved significantly different responsibilit ies,
and her supervisory duties were eliminated or at least reduced. See Pl.’s Opp’n at 17. In particular,
Plaintiff contends that when she was reassigned to head the Training Section there was not “any
training section in existence, in the sense of a unit with employees.” Pl.’s Stmt., Pl. Fact ¶ 103.
She further claims that at the time, “there was not even a position description for the chief’s job,”
id., and that she was not provided with such a description until long after her meeting with Salazar
in November 2011, id. ¶ 90; see also Pl.’s Exs. 91–92, ¶ 89 (“[Salazar] stated [a position
description] was forthcoming, however I did not receive a new Standard Form action until
February . . . .”); id. at 181–82 (Salazar deposition). In this vein, Plaintiff also disputes that she
refused to allow Salazar to issue her the “Memorandum of Record.” See Pl.’s Stmt., Def. Fact
¶ 89, Pl. Fact ¶ 90. Moreover, as to the position description itself, Plaintiff notes that there was
nothing in the description (or Salazar’s declaration) indicating that she would supervise anyone.
See Pl.’s Stmt., Pl. Fact ¶ 105. Finally, Plaintiff claims that, even if she retained some supervisory
authority, the position of Chief of the Training Section was a “substantially different job,” see Pl.’s
Opp’n at 17, and that she had no experience in training staff or managing a training program, see
Pl.’s Exs. at 91, ¶ 87–88.
As discussed above, a lateral transfer can constitute a materially adverse action where the
transfer involves the withdrawal of supervisory duties or reassignment with significantly different
responsibilities. See Czekalski, 475 F.3d at 364–65. In this case, Plaintiff has raised genuine
28
factual disputes with respect to whether she lost supervisory duties and whether her position
involved significantly different responsibilities. First, the parties disagree as to whether the
training position was in fact a position with existing duties at the time of her reassignment. 8 See
Pl.’s Exs. at 92, ¶ 90 (“As far as I could tell from what management told me, the training position
would have few or no staff to supervise.”). This factual dispute is material because if the Training
Section was not staffed, then Defendant’s contention that Plaintiff would be the “primary
supervisor” of the Section is irrelevant.
In addition, the parties disagree about whether the duties of the new position were
substantially different than those Plaintiff performed as Chief of the Personnel Security Branch.
Compare id. at 86, ¶¶ 42–48 (describing some of Plaintiff’s duties as Chief of Personnel Security
Branch), with Def.’s Exs. 24–30 at 14–16 (Memorandum of Record). Plaintiff claims that she had
no experience in training staff or managing a training program, see Pl.’s Exs. at 91, ¶¶ 87–88, and
her new position, as described by Salazar, clearly implicated such duties, see Def.’s Exs. 24–30
at 14–16, ¶ 7. Indeed, the title of the position was “Chief of the Training Section.” Defendant
fails to address why the shift in the nature of the job responsibilities between the two pertinent
positions—Chief of the Personnel Security Branch and Chief of the Training Section—was
insignificant. Cf. Def.’s Exs. 24–30 at 4, ¶ 7 (explaining why Salazar believed Plaintiff was
qualified for the position based on her previous experience as a Federal Special Security Officer);
id. ¶ 8 (stating that the work was “just as significant,” without any further comparison of the two
8
In the Memorandum of Record, Salazar described this position as “new.” See Def.’s Exs. 24–30 at 14; see also id.
at 26 (formal reassignment memorandum issued by Cantu describing position as “new”). In his declaration, Salazar
explains that he considered the position “new” because “although [it] had been in existence prior to [the]
reassign[ment] . . . a reorganization of the OCSO in November 2011 resulted in a shift in the focus of the Training
Section.” See Def.’s Exs. 24–30 at 3, ¶ 6. This tells this court little, however, about the nature of the Training Section
at the time of Plaintiff’s reassignment or whether it was in fact staffed. Plaintiff, for example, claims in her declaration
that, at the time of her reassignment, “the training needs of the office had not been identified” and thus “it was
impossible to know what the actual duties of the position would be.” Pl.’s Exs. at 92, ¶ 90.
29
positions’ duties). This fact is material, as a significant change in responsibilities factors into the
adversity determination. See Niskey, 859 F.3d at 9 (citing Forkkio, 306 F.3d at 1131); cf. Pardo-
Kronemann v. Donovan, 601 F.3d 599, 607 (D.C. Cir. 2010) (holding that where a plaintiff alleges
a claim based on reassignment, “the fact-finder must compare the position the plaintiff held before
the transfer to the one he holds afterwards,” and comparing the two position descriptions at issue).
Therefore, viewing the evidence in the light most favorable to Plaintiff, the court concludes
that a reasonable juror could find that Plaintiff suffered an adverse action when she was reassigned.
See Czekalski, 475 F.3d at 365 (“The court may not take that question away from the jury if a
reasonable juror could find that the reassignment left the plaintiff with significantly diminished
responsibilities.”).
3. Pretext
Having concluded that the evidence is sufficient to show that Plaintiff suffered a materially
adverse action, the court now turns to evidence of discriminatory and retaliatory intent. As with
the September detail, Plaintiff relies on Defendant’s inconsistent statements about the employment
action taken to demonstrate pretext. See Wheeler, 812 F.3d at 1115, 1119. Unlike the September
detail, however, the court finds that the inconsistencies in Defendant’s reasons for Plaintiff’s
reassignment are far more pronounced and create a sufficient dispute of fact for the jury’s
consideration.
Defendant’s explanations for Plaintiff’s reassignment have been a moving target.
According to Plaintiff, when Salazar and Cantu informed her about the reassignment, they said
that the decision was made “to improve efficiencies of the office.” Pl.’s Exs. at 91, ¶ 89. They
also demurred when Plaintiff asked if she had done something wrong—apparently, they never
raised the issue of erroneous security clearances—and further told her that the training branch
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would be a “good fit.” Id. A contemporaneous e-mail, however, suggests a different reason for
the reassignment. On November 1, 2011, Kimberly Lew, DHS OCSO’s Chief of Personnel
Security Division, e-mailed Gregory Marshall, DHS’s Chief Security Officer, to offer her
observations and recommendations for improving the Personnel Security Branch. See Def.’s Exs.
24–30 at 6–7. Lew did not mention “efficiencies.” Instead, she wrote:
[O]ur efforts to assist are moving at a slow pace. Harriett is still the
driving force within the organization and we are constantly hitting
road blocks. So my recommendation is to move Harriett to another
security discipline within the office. Harriett tried to halt the
training efforts and is still the authority on PSB actions.
Id. A trier of fact will have to decide whether improving “efficiencies” is simply a euphemism for
“halting training efforts,” or evidence of an unlawful motive.
Defendant’s shifting explanations for the reassignment during the EEO investigation and
in this litigation only buttress the case for pretext. According to the Final Agency Decision,
prepared at the conclusion of the internal EEO investigation: “Management articulated legitimate,
non-discriminatory reasons for reassigning [Plaintiff] to the Training Branch. The [Program
Protection Division Director] stated that he reassigned [Plaintiff] . . . ‘to improve efficiencies and
effectiveness within [the Division] and to allow [Plaintiff] an opportunity to use [her] security
skills within another unit of the OCSO.’” FAD at 8. Once in litigation, that explanation faded
away. Instead, Defendant’s supplemental interrogatory response focused exclusively, and quite
dramatically, on the concern that Plaintiff and the Personnel Security Branch had improperly
granted security clearances that created an “undue risk to national security.” Pl.’s Exs. at 23. The
interrogatory response said nothing about efficiencies, interfering with training efforts, or putting
Plaintiff’s skills to another use. Then, for purposes of summary judgment, the explanation shifted
yet again. Defendant’s newly proffered reason was “to utilize [Plaintiff’s] skill set and, more
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importantly, to remove an impediment to the efforts to address ‘observations’ identified in the
SCR.” Def.’s Mem. at 30–31. Each of the agency’s declarants, including Salazar and Cantu,
echoes this rationale. See Def.’s Exs. at 24–30 at 3, ¶ 6 (Salazar Declaration) (“I recommended to
Mr. Oliver that Ms. Ames be reassigned . . . because of her unwillingness to cooperate in
implementing the mitigation plan under the SCR, among other reasons.”); Def.’s Exs. 15–23 at 20,
¶ 13 (Lew Declaration) (“I also recommended that Ms. Ames be reassigned . . . because she was
impeding our efforts to address the issues in the SCR, including halting training efforts.”); id. at 8,
¶ 8 (Cantu Declaration) (“Based on the findings within the [SCR] . . . as well as my personal
observations that Ms. Ames was impeding our efforts to deal with the issues in the SCR, I made
the decision to recommend that Ms. Ames be assigned . . . .”); see also Def.’s Exs. 9–14 at 18,
¶ 11 (Marshall Declaration); Def.’s Exs. 1–5 at 5, ¶ 18 (Oliver Declaration). Not one of them
attributes Plaintiff’s reassignment, even in part, to her improper granting of security clearances
that created an “undue risk to national security.” It may be, as Defendant contends, that the
common thread running through these explanations is Plaintiff’s impeding implementation of the
SCR’s recommendations. But that conclusion is better reached by the jury, not this court at the
summary judgment stage.
Finally, record inconsistencies concerning who made the decision to reassign Plaintiff
support her case for pretext. For example, in his EEO investigation affidavit, Cantu denied any
participation in the reassignment decision. Pl.’s Stmt., Pl. Fact ¶ 87; Def.’s Reply Stmt. at 1. Yet
the record contains a memorandum issued by Cantu to Plaintiff dated November 21, 2011, which
states, “I have made the decision to reassign you . . . .,” Def.’s Exs. 24–30 at 26, as well as evidence
that Cantu told Oliver that he had decided to reassign Plaintiff, see Def.’s Exs. 1–5 at 6, ¶ 20
(Oliver declaration stating, “[s]hortly after taking to him, Mr. Cantu emailed me and told me that
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he made the decision to recommend reassignment of Ms. Ames”); Def.’s Exs. 24–30 at 22 (e-mail
from Cantu to Oliver, stating Cantu had “made the decision to recommend reassignment” of
Plaintiff and requesting favorable consideration of that decision); cf. id. at 23 (e-mail from Cantu
to Lew advising her that Plaintiff had been informed of her reassignment on the previous day and
stating that he would like to introduce Nina Kirby as the acting Branch Chief). Defendant’s
Amended Answer attempts to clarify that Cantu did not make the decision but simply signed a
letter from upper management, see Am. Answer ¶ 48, and in its Motion Defendant continues to
maintain that Cantu was not a decision maker, see Def.’s Reply at 20. This may well be true. But
a jury will have to decide whether Defendant’s changing positions are merely innocent or proof of
discriminatory motive. 9
With respect to Plaintiff’s retaliation claim, the court finds that Plaintiff can proceed to
trial. For the reasons already discussed, there is a genuine dispute of material fact as to whether
the agency’s reason for the reassignment was pretext. Moreover, the record facts are sufficient to
support a reasonable inference of causation. Plaintiff initiated contact with the EEO Counselor in
August 2011 and filed a formal Complaint in October 2011. See FAD at 2. The November
reassignment occurred roughly two months later, on November 21, 2011. That temporal proximity
is close enough to put the issue of causation to a jury. See Hamilton, 666 F.3d at 1357–58.
Thus, Defendant’s Motion for Summary Judgment is denied with respect to Plaintiff’s
discrimination and retaliation claims premised on her reassignment.
9
Although a closer call, Plaintiff’s gender discrimination claim likewise may proceed to trial. Ordinarily, “a
replacement within the same protected class cuts strongly against any inference of discrimination.” Murray, 406 F.3d
at 715. Here, Plaintiff’s temporary replacement was a woman, Nina Kirby. The record does not, however, contain
evidence as to the identity of Plaintiff’s permanent replacement. Therefore, the strong inference against discrimination
that applies when a replacement is of the same protected class does not necessarily apply here. A jury will have to
decide what, if any, weight to give to the fact that Plaintiff was temporarily replaced by a woman.
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D. Plaintiff’s Request to Reopen Discovery under Rule 56(d).
In her Opposition, Plaintiff alternatively asks the court to deny Defendant’s Motion under
Federal Rule of Civil Procedure 56(d). Plaintiff claims that Defendant’s answers to Plaintiff’s
interrogatories concerning the personnel who participated in the agency decision-making and the
reasons for the three aforementioned decisions “were radically different from the information
provided in support of the summary judgment motion,” and that such differences effectively barred
her “from follow-up written discovery and from taking the depositions of the officials whose
affidavits the agency would ultimately rely on.” Pl.’s Opp’n at 32. While she acknowledges that
the “natural remedy” for such conduct would be to defer ruling on Defendant’s Motion so that
Plaintiff could take additional discovery, Plaintiff ultimately asks the court to deny the Motion in
order to avoid rewarding Defendant for its conduct and further delaying resolution of the case. See
id. Moreover, because she did not submit an affidavit or declaration along with her Opposition,
as required by Rule 56(d), Plaintiff also moves for leave to file a one-sentence declaration of
counsel, which simply says that the statements made by counsel regarding the Rule 56(d) request
in Plaintiff’s Opposition “are true.” See Request for Leave to File Decl. of Counsel, ECF No. 79
[hereinafter Request for Leave], at 3. 10 For the following reasons, the court denies this request.
Under Rule 56(d), if the nonmovant “shows by affidavit or declaration that, for specified
reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer
considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take
discovery; or (3) issue any other appropriate order.” Fed. R. Civ. P. 56(d). A Rule 56(d) motion
“requesting time for additional discovery should be granted almost as a matter of course unless the
non-moving party has not diligently pursued discovery of the evidence.” Convertino v. U.S. Dep’t
10
Citations to Plaintiff’s Request for Leave are to the page numbers electronically generated by CM/ECF.
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of Justice, 684 F.3d 93, 99 (D.C. Cir. 2012) (internal quotation marks omitted). But merely
invoking Rule 56(d) is not enough to defeat summary judgment. The party seeking relief under
Rule 56(d) must submit a declaration stating with “sufficient particularity” why additional
discovery is necessary. Id. (internal quotation marks omitted). To do so, the declaration must
satisfy three criteria. Id. “First, it must outline the particular facts [s]he intends to discover and
describe why those facts are necessary to the litigation.” Id. “Second, it must explain ‘why [she]
could not produce [the facts] in opposition to the motion [for summary judgment].’” Id. at 99–100
(second and third alterations in original) (quoting Carpenter v. Fed. Nat’l Mortg. Ass’n, 174 F.3d
231, 237 (D.C. Cir. 1999)). “Third, it must show the information is in fact discoverable.” Id. at
100. Furthermore, while the court may consider the diligence of the party requesting relief,
diligence alone is insufficient to satisfy Rule 56(d). See U.S. ex rel. Folliard v. Gov’t Acquisitions,
Inc., 764 F.3d 19, 26–27 (D.C. Cir. 2014) (emphasizing that district courts “should resolve each
request based on its application of the Convertino criteria to the specific facts and circumstances
presented in the request”).
Here, Plaintiff’s Rule 56(d) request falters at the first criteria. The only remaining claim
as to which additional discovery might be relevant is the September detail of Hester. As to that
claim, however, the court’s analysis accounted for the discrepancy in Defendant’s reasons for that
decision, yet the court decided based on the totality of the record that Plaintiff had come up short
in demonstrating a genuine dispute of fact as to pretext. Thus, it is far from clear how additional
discovery might alter the court’s conclusion. Moreover, counsel’s declaration does not state with
“sufficient particularity” the facts he intends to discover. See Messina v. Krakower, 439 F.3d 755,
762–63 (D.C. Cir. 2006). The declaration merely refers back to Plaintiff’s opposition brief, which
states that the new reasons offered in the summary judgment declarations “bar[red] Ms. Ames
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from follow-up written discovery and from taking depositions of the officials whose affidavits the
agency would ultimately rely on.” Pl.’s Opp’n at 32; see Request for Leave at 3. That statement,
however, is entirely conclusory and tells the court little about the facts Plaintiff proposes to
discover. Accordingly, the court denies Plaintiff’s request for relief under Rule 56(d).
V. CONCLUSION
For the foregoing reasons, the court grants in part and denies in part Defendant’s Motion
for Summary Judgment, and denies Plaintiff’s Request for Leave to File Declaration of Counsel.
Dated: December 27, 2017 Amit P. Mehta
United States District Judge
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