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John Gale v. Janet Napolitano

March 2, 2011


The opinion of the court was delivered by: Dora L. Irizarry, United States District Judge:


Plaintiff John Gale filed the instant complaint against the Department of Homeland Security ("DHS"), the Transportation Security Administration ("TSA"), and the Merit Systems Protection Board ("MSPB") on December 14, 2007. (See generally Docket Entry No. 1 ("Compl.") Plaintiff's action has two components. First, pursuant to 5 U.S.C. §§ 7702 & 7703, Plaintiff requests review of the MSPB administrative decision affirming his termination. (Compl. ¶¶ 25--26.) Second, Plaintiff alleges that Defendants violated Title VII of the Civil Rights Act of 1964 by discriminating against him due to his race, color, or national origin. (Id. ¶ 28.) Before the court are the parties' cross-motions for summary judgment as to the MSPB review, pursuant to Federal Rule of Civil Procedure 56. Also before the court is Defendants' motion for summary judgment as to the Title VII claim. For the reasons set forth below, Plaintiff's motion is denied, Defendants' motions are granted, and the action is dismissed in its entirety.


A.The Parties

Plaintiff is an African-American male, who began working as a Federal Air Marshal ("FAM") assigned to the New York Field Office in May 2003. (Declaration of Catherine M. Mirabile in Support of Defs.' Mot. ("Mirabile Decl.") Ex. A, ¶¶ 3, 9--10.) FAMs are employed by the TSA, which is part of the DHS. As a FAM, Plaintiff's primary responsibilities were to detect, deter and defend against terrorism in the aviation domain. (Defendants' Local Civil Rule 56.1 Statement of Undisputed Facts ("Defs.' Stmt.") 1--3.) This is typically accomplished by travel on commercial aircraft in plain clothes, accompanied by at least one other FAM. (Id. at 3.)

FAMs are issued service-duty weapons, which they are required to secure at all times on their person while on mission status. (Id.) In addition, FAMs are required to have a security clearance. (Id.) As TSA employees, FAMS are required to "demonstrate . . . behavior, both on and off the job, that reflect favorably on the government and on the public." (Id. at 29; see also Administrative Record of MSPB Proceedings ("A.R.") at 143--47.) TSA guidelines state that employees are not to engage in any activities that cause them to neglect their assigned duties, and its employees are further required to be "physically and mentally fit to perform their duties." (Defs.' Stmt. 29--30; see also A.R. 119). In addition, employees are to "report for duty at the time and place required by assignment," and "shall not leave their duty area without permission from their supervisor." (Id.)

When off-duty, FAMs are to "conduct themselves in a manner that will not reflect adversely on . . . [, or] cause embarrassment to the FAMS," and may not "behave in a manner that will cause their co-workers or the public to lose trust in them or question their reliability or judgment." (A.R. 120.) Examples of misconduct that could result in disciplinary action include violations of the standards of conduct and misuse of alcohol. (See id.; see also Defs.' Stmt. 30.) FAMs must keep their weapons concealed unless operationally necessary, and are prohibited from carrying firearms after the consumption of alcohol "when their judgment and ability to safely use and control a firearm is impaired." (A.R. 731--32; see also Defs.' Stmt. 31.) TSA guidelines provide that disciplinary action may be taken against a FAM for either on- or off-duty misconduct. (Defs.' Stmt. at 31.) The guidelines provide for progressive discipline, and supply various factors for consideration in the determination of an appropriate penalty. (See generally id. at 32--33.)

B.Plaintiff's Disciplinary History*fn2

On August 20, 2004, an American Airlines employee emailed Plaintiff's supervisors, complaining that Plaintiff had made anti-Semitic comments about Hasidic Jews while at the Long Beach, California airport. (Defs.' Stmt.4.) The Deputy Special Agent in Charge ("DSAC") of the New York Field Office, Michael Ball, spoke with Plaintiff the following day, and informed him to avoid such conversations in the future. (Id. at 4--5.)

On August 23, 2005, while Plaintiff was on layover between missions in Millbrae, California, local law enforcement stopped him in front of his hotel, in response to a report that a black male adult was jumping into traffic and had gotten into a car. (Id. at 5.) A Millbrae Police Department officer stated that he could smell alcohol on Plaintiff, and that Plaintiff's eyes were watery, his speech was slurred, and his gait unsteady. (Id. at 6.) The Millbrae Police Department notified Plaintiff's FAM superiors, and Plaintiff submitted a written report regarding the incident upon his return to New York, in which he admitted to having two glasses of wine at dinner prior to the incident. (Id.)

In response to the Millbrae incident, Plaintiff was issued a Letter of Warning for unprofessional conduct, dated December 1, 2005. (A.R. 106--07.) The letter informed Plaintiff that it could be cited as a formal corrective action in any future disciplinary matter, and that repetition of such conduct could lead to more severe corrective action in the future. (See id.) Plaintiff filed a grievance for the Letter of Warning, which was denied by DSAC Ball. (Defs.' Stmt. 7--8.) Plaintiff did not file a "Step 2" grievance, and did not file a discrimination complaint related to this incident. (Id. at 8.)

On May 19, 2006, Plaintiff lost his government-issued Personal Digital Assistant ("PDA"), which contained sensitive information, but did not report its loss until May 22. (Id. at 8--9.) On July 26, 2006, Allan Keaney, Assistant Special Agent in Charge ("ASAC") for the New York Field Office, served Plaintiff with notice of a proposed one-day suspension for failure to timely report the loss of government equipment. (Id. at 9; see also A.R. 102--03.) Plaintiff submitted a written response via the Federal Law Enforcement Officers Association on August 14, 2006 in which he admitted that he failed to report the loss but attributed this to a "momentary lapse of judgment." (A.R. 97--101.) On October 11, 2006, Plaintiff was issued notice of a one-day suspension. (Id. at 92--94.) Plaintiff submitted a grievance, which DSAC Ball denied on November 8, 2006. (Defs.' Stmt. 10--11.) Plaintiff was informed that the notice of suspension would be placed in his Official Personnel Folder, and that any future violations would subject him to more severe disciplinary action. (Id. at 10.) Plaintiff did not file an EEOC complaint regarding this disciplinary action. (Id. at 11.)

On June 30, 2005, Plaintiff was staying at the Sheraton Four Points Hotel near Los Angeles International Airport ("LAX") in between duty flights between New York and Los Angeles. (Defs.' Stmt. 11.) At approximately 9:00 PM, Plaintiff allegedly approached a flight attendant for Mexicana Airlines, Flor Cruz, who was also staying at the Sheraton, and pushed her and harassed her. (Id. at 11--12.) Cruz reported this to the hotel's security, and one of the guards, Howard Okorie, approached Plaintiff. Okorie stated that Plaintiff was intoxicated, smelled of alcohol, and brandished his firearm while speaking to him. (Id. at 12.) The hotel staff then contacted the Los Angeles Police Department ("LAPD"), who, after interviewing the witnesses, went to Plaintiff's room, where they found Plaintiff asleep, and disarmed him. (Id.) The LAPD contacted ASAC Fred Fukanaga, a supervisory FAM assigned to Irvine, California, who responded to the scene. (Id. at 12--13.) Fukanaga spoke with LAPD, hotel staff, and Plaintiff, and reported that Plaintiff was disheveled and smelled of alcohol. (Id. at 13.) Plaintiff flew back to New York in non-duty status, and was returned to duty status on July 6, 2005 pending an investigation into the Sheraton incident. (Id. at 13--14.)

Plaintiff's version of the incident is that he tapped Cruz on the shoulder in order to introduce himself and she, without any provocation, ran to hotel security. He suggests that he "did nothing to upset this woman other than to be born African American." Plaintiff also claimed that he was "adjusting," not brandishing, his firearm during his conversation with Okorie. He denied being intoxicated, and claimed that he had been courteous and cooperative during his interactions with the police and hotel security. (See A.R. 75--76.)

TSA Special Agents Luis Velasquez and Ralph Palmiere investigated the Sheraton incident. In so doing, they interviewed the Sheraton's Director of Security, ASAC Fukanaga, Okorie, Cruz, and two LAPD officers, and obtained sworn affidavits from Plaintiff and Okorie. (Defs.' Stmt. 15.) In a report dated May 31, 2006, Velasquez and Palmiere concluded that: Plaintiff's account of events conflicted with those of other witnesses; Plaintiff had admitted to having consumed at least six alcoholic beverages; the two LAPD officers opined that Plaintiff was intoxicated; and hotel security guards and a responding officer described Plaintiff as belligerent and unprofessional. (See A.R. 637--41.)

On October 19, 2006, Plaintiff missed the fourth flight of a four-flight mission between New York City and Washington, D.C. (Defs.' Stmt. 16.) According to Plaintiff, he had left the gate area to go to the bathroom without informing his partner, and did not realize he had missed their flight until thirty to forty-five minutes after it departed. (Id. at 16--17.) Due to Plaintiff's absence, his partner was the only FAM on the fourth flight. (Id. at 17.)

On January 22, 2007, Plaintiff received a Notice of his Proposed Removal, which contained ASAC Keaney's recommendation that Plaintiff be removed from his FAM position due to: (1) conduct unbecoming a FAM, to wit: the incident at the Sheraton Hotel on June 30, 2005; and (2) failure to make a scheduled flight mission, to wit: the fourth flight of his mission on October 19, 2006. (A.R. 84--87.) In proposing Plaintiff's termination, ASAC Keaney considered a number of factors, including Plaintiff's years of service, his past disciplinary record, and the nature of Plaintiff's misconduct. (Id. at 86.) Plaintiff, again via the Federal Law Enforcement Officers Association, provided a written response to his proposed removal on February 6, 2007. (Id. at 74--79.) He stated that, with respect to the Sheraton Hotel incident, he was "the victim of a misunderstanding and overreaction on the part of . . . Cruz," (id. at 75), and characterized his missed flight as "a comedy of errors," averring that he would not repeat the mistake. (Id. at 77.)

On May 31, 2007, DSAC Ball informed Plaintiff via letter that he was being removed from his position as a FAM effective June 1, 2007. (A.R. 58--62.) DSAC Ball wrote that, in making this determination, he considered Plaintiff's years of service, his prior disciplinary history, the serious nature of his offenses, the high standard of conduct placed upon law enforcement officers, the various policies and guidelines Plaintiff violated, and how Plaintiff's behavior reflected poorly on the TSA. (See id. at 59.) DSAC Ball evaluated all available information pertaining to the charges against Plaintiff, including his oral and written responses to the Notice of Proposed Removal. With respect to the Sheraton incident, he found that Plaintiff's version of events conflicted with statements given by other witnesses and was not supported by any independent evidence, and thus lacked credibility. (Id.)

C.Administrative Proceedings

On June 28, 2007, Plaintiff appealed his termination to the MSPB, alleging that: (1) he had been removed from service without just cause; (2) his termination was disproportionately harsh when compared to similarly situated non-African American FAMs; and (3) the TSA had violated its own rules and regulations in using untimely violations against him. (A.R. 5--10.) On September 10, 2007, MSPB Administrative Law Judge ("ALJ") JoAnn M. Ruggiero held a hearing, at which Okorie, Fukanaga, Velasquez, Keaney, Ball, and Plaintiff testified. (See generally id. at 734--813.)

On October 23, 2007, the ALJ affirmed the agency's decision to terminate Plaintiff's employment in a written decision. (See generally A.R. 590--613.) With respect to the Sheraton hotel incident, the ALJ found the other witness's accounts of the events to be more credible than that of Plaintiff's. (Id. at 599--600.) The ALJ rejected Plaintiff's affirmative defense of race discrimination, and concluded that because of his disciplinary history, his case was distinguishable from that of other FAMs who had missed flights and not been terminated. (See id. at 602.) The ALJ also rejected Plaintiff's argument that the delay in the TSA's internal investigation constituted harmful error because of the loss of hotel security tapes on the ground that this involved "the merits of the agency's action," as opposed to the "agency's procedures." (Id. at 602--03 (emphasis in original).) The ALJ concluded that the agency met its burden of demonstrating that Plaintiff's termination would promote the "efficiency of service," as Plaintiff's actions on June 30, 2005 "raise[d] serious doubts as to his judgment" and "caused ...

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