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Smith v. United States Department of Homeland Security

United States District Court, N.D. New York

March 30, 2018


          FOR THE PLAINTIFF: Carole Anne Smith Pro Se

          FOR THE DEFENDANTS: HON. GRANT C. JAQUITH United States Attorney KAREN FOLSTER LESPERANCE Assistant U.S. Attorney


          Gary L. Sharpe, Judge

         I. Introduction

         Plaintiff pro se Carole Ann Smith commenced this action against the United States Department of Homeland Security Transportation Security Administration (TSA) and various TSA employees. (See generally Compl., Dkt. No. 1; Am. Compl., Dkt. No. 11.) Her remaining claims are for religious discrimination, hostile work environment, and retaliation under Title VII of the Civil Rights Act (Title VII)[1] against the TSA. (Am. Compl.; Dkt. No. 31 at 2, 8.) Pending is the TSA's motion for summary judgment. (Dkt. No. 45.) For the reasons that follow, the motion is granted.

         II. Background A. Facts[2]

         Smith began employment with the TSA as a probationary-status Transportation Security Officer (TSO) in July 2008. (Def.'s[3] Statement of Material Facts (SMF) ¶ 1, Dkt. No. 45, Attach. 3.) On August 4, 2008-her first day reporting to the airport[4] for duty after completing a two-week course that included training on the importance of being on time-Smith was late to work and was counseled for tardiness. (Id. ¶¶ 2-4.)[5] Smith was also counseled that day for removing a medical device from a checked bag during a screening and then failing to return the device to the bag. (Id. ¶¶ 6-7.) Later that month she was counseled for displaying her personal cellphone while working at a checkpoint, and she was counseled again in October for being out of uniform. (Id. ¶¶ 8-9.) Smith was counseled again in November for leaving her post without permission and returning late from break. (Id. ¶ 10.)

         When Smith first began her employment as a TSO, she was assigned an on-the-job mentor, TSO Mary Bagnoli. (Id. ¶ 12.) Smith claims that Bagnoli “intimidated and harassed [her].” (Am. Compl. ¶ 10.) On one occasion, after Smith improperly swabbed the lens of a disposable camera and drew a complaint from its owner, Bagnoli brought her into a private screening room and made her read the standard operating procedure regarding cameras. (Def.'s SMF ¶ 14; Am. Compl. ¶ 10.)[6]Smith asked to be reassigned to a different mentor, and her request was granted. (Def's SMF ¶ 13.)[7]

         On December 5, 2008, Smith sent an e-mail to Federal Security Director (FSD) Brian Johansson containing a number of complaints about her working relationship with Bagnoli. (Id. ¶ 11.) In addition to the aforementioned camera incident, Smith complained that Bagnoli verbally attacked her regarding a proposal to offer massage services in the TSO break room. (Id. ¶¶ 14-15.) Smith's e-mail also alleged that Bagnoli “does not even allow me to talk to anyone without her making a comment or literally pulling them away” and that Bagnoli and “her clique . . . are loud and very vulgar.” (Dkt. No. 45, Attach. 8 at 1; Def.'s SMF ¶¶ 16-17.) In February 2009, Smith contacted the TSA's ombudsman to complain about alleged harassment that she felt resulted from her request for a new mentor. (Def.'s SMF ¶ 24.) The concerns that Smith expressed to the ombudsman were primarily with the way that she was being treated by Bagnoli and her “clique.” (Id. ¶ 25 (internal quotation marks omitted).)

         On January 26, 2009, Smith was counseled about excessive use of sick leave and how she frequently used it on days connected to her scheduled days off. (Id. ¶ 23.) Less than a month later, Smith was counseled not to approach other TSOs in a rude or demeaning tone. (Id. ¶ 26.) On February 23, a Supervisory Transportation Security Officer (STSO) observed Smith crying and brought her to the supervisor's office. (Id. ¶ 27.) Smith explained that she was “tired of being accused of reporting stuff to the FSD, ” (id. ¶ 28 (internal quotation marks omitted)), and that she was “constantly questioned” regarding her analysis of x-ray images, (id. ¶ 30; Dkt. No. 47 at 5). She also said that “at a pizza luncheon, TSO Michelle Rodriguez looked directly at her and then made a comment to other TSO[s] to watch what they say, or it might get reported to the FSD.” (Def.'s SMF ¶ 29.)

         On or around March 2, Smith submitted a written complaint to management, which detailed incidents involving Bagnoli and Rodriguez that occurred between February 22 and March 2. (Id. ¶ 32.) In that complaint, she indicated that Bagnoli was treating her worse than before, because Bagnoli mistakenly believed that she had asked to be removed from a baggage machine where Bagnoli would have been her mentor. (Id. ¶ 33.) The complaint also contends that Rodriguez called her a “snake” and told co-workers to be careful what they say around her because she might e-mail the FSD. (Id. ¶ 34 (internal quotation marks omitted).) Smith believed that she was being treated badly because of rumors that she had been e-mailing Johansson and putting anonymous comments in the suggestion box. (Id. ¶ 35.)

         On March 4, Bagnoli told Assistant FSD Matthew Lloyd that she felt threatened by Smith. (Id. ¶ 36.) Part of the reason that Bagnoli felt threatened was because of Smith's religion, Wicca[8]; another reason was that Smith allegedly followed Bagnoli as the two drove home from work. (Dkt. No. 47 at 5; Dkt. No. 49, Attach. 1 at 35, 54-55, 75.) As the workplace violence coordinator, Lloyd was primarily concerned with ensuring that neither employee was a threat to the other. (Def.'s SMF ¶ 37.) Thus, on March 4, Lloyd sent an e-mail to supervisors and managers indicating that a “situation exist[ed]” between Bagnoli and Smith, and the two employees should be separated “to the largest extent possible, ” while a preliminary inquiry was conducted. (Id. ¶ 39 (internal quotation marks omitted).) After concluding that the situation did not present a workplace violence issue, Lloyd never sent an e-mail changing the separation directive, as he left it to other managers to determine what to do. (Dkt. No. 49, Attach. 1 at 37, 49-51, 53, 71-72.)

         On March 5, Training Coordinator Nick Morano wrote a memorandum documenting negative behavior by Smith during a training instruction. (Def.'s SMF ¶ 41.) Morano had arranged for a ninety-minute assessment of Smith in a live baggage situation, and Smith did not perform to standard in two areas. (Id. ¶¶ 42-43.)[9] When given corrective feedback, Smith responded that she intended to visit her doctor that evening in order to be put on light duty so that she would not have to work in checked baggage anymore. (Id. ¶¶ 43-44; Dkt. No. 45, Attach. 7 at 38.) Smith instructed Morano to direct all future communication to her through her legal counsel and attempted to leave the room before the meeting was concluded. (Def.'s SMF ¶¶ 45, 47.) When told she would have to complete additional training and be reassessed, Smith stated that it would not matter because she would not be working in checked baggage anymore. (Id. ¶ 48; Dkt. No. 45, Attach. 7 at 38.)

         Later that night, Smith e-mailed Johansson from a personal e-mail address to describe what had happened with the assessment. (Id. ¶ 49.) Smith believed that the training assessment happened because Bagnoli was upset that Smith had refused to mentor with her. (Id. ¶ 50.) Johansson e-mailed another TSA employee, “I am not going to address her issues . . . she has chosen her path, ” because Smith “decided to go to the [o]mbudsman.” (Dkt. No. 45, Attach. 13 at 1.) Johansson did not view anything that Smith reported to him as a complaint of religious harassment or discrimination. (Def.'s SMF ¶ 51.)

         On March 10, Bagnoli submitted a written complaint stating that Smith had followed her on her drive home. (Id. ¶ 53.) Two days later, Lloyd called Smith into his office to discuss the complaint. (Id. ¶ 54.) He told Smith that “a perception of fear was expressed by . . . Bagnoli as it pertains to Smith practicing witchcraft and being a self-professed witch.” (Id. ¶ 56 (internal quotation marks omitted).) Smith responded that she practiced Wicca, which is a recognized religion and not witchcraft. (Id.

         ¶ 57.) Lloyd “responded that [workplace mediation] was a particularly good venue to dispel misconceptions and falsehoods promulgated about her religious practices and provided a forum to resolve personality conflicts between [Bagnoli and Smith].” (Dkt. No. 45, Attach. 7 at 41.) Smith declined to participate in mediation because she did not want to have to defend her religion. (Id.; Dkt. No. 47 at 6.) During the meeting, Smith left the room twice, and Lloyd had to recall her back to his office to conclude the interview. (Def.'s SMF ¶ 60.) Smith contends that this was because Lloyd asked her to explain her religion to Bagnoli. (Dkt. No. 45, Attach. 9 at 9; Attach. 15 at 2-3.)

         In March 2009, Smith received counseling for two different incidents. The first was for failing to check a boarding pass after she allowed a passenger who had not presented one to enter a secure area. (Def.'s SMF ¶ 52.) The second was for tardiness. (Id. ¶ 61.) On April 30, Smith submitted a written statement reporting what she perceived to be security breaches by an STSO, including that he frequently walked around with an open pen in his mouth, which looks bad and “is a dangerous thing to do around so many people.” (Id. ¶ 63 (internal quotation marks omitted).) Smith alleges that her statement caused “more retaliation from even more people.” (Am Compl. ¶ 19.)

         On May 11, Transportation Security Manager Jack Engelhardt issued Smith a letter of reprimand for her “unprofessional and inappropriate conduct” and “insubordinate behavior” at a checkpoint on April 10, (Def.'s SMF ¶ 62 (internal quotation marks omitted)), which included swearing at fellow officers and threatening to leave the checkpoint, (Dkt. No. 45, Attach. 16 at 1, 5). Smith was also counseled on May 11 for leaving her post and leaving the baggage screening room unattended in order to get a snack. (Def.'s SMF ¶ 64.)

         On June 2, 2009, Engelhardt wrote a report summarizing Smith's work history, which included five verbal counselings, four written general counselings, and one letter of reprimand. (Id. ¶ 66.) The June 2 report recommended “severe disciplinary [action] up to and including removal” from her position. (Id. (internal quotation marks omitted).) On June 18, the TSA terminated Smith's probationary employment, citing inappropriate conduct and lack of dependability throughout her employment. (Id. ¶ 67.) The termination letter, issued by acting FSD Patricia Sykes, lists thirteen violations of agency rules and regulations for which Smith had been counseled in less than nine months, from August 25, 2008 to May 11, 2009. (Id. ¶ 68.)[10]

         B. Procedural History

         On October 2, 2009, Smith filed an Equal Employment Opportunity (EEO) complaint and timely requested a hearing, which was held before an Administrative Judge (AJ) on November 30, 2010. (Am. Compl. at 7-8.) After the hearing, the AJ issued a decision finding no discrimination, which was affirmed by the EEO Commission (EEOC) on April 20, 2012. (Id. at 10, 11.)

         Smith filed the instant action on July 9, 2012. (Compl.) The court adopted Magistrate Judge Thérèse Wiley Dancks' Report Recommendation and Order, (Dkt. No. 5), which granted Smith's motion for leave to proceed in forma pauperis, (Dkt. No. 2), and, pursuant to 28 U.S.C. § 1915(e), dismissed Smith's complaint with leave to amend, (Dkt. No. 9).

         On March 1, 2013, Smith filed an amended complaint against the TSA and former U.S. Secretary of Homeland Security Janet Napolitano, [11]alleging violations of Title VII, Title I of the Americans with Disabilities Act (ADA), [12] and the Rehabilitation Act.[13] (See generally Am. Compl.) On April 28, 2015, the court granted the TSA's partial motion to dismiss and dismissed Smith's ADA and Rehabilitation Act claims, leaving only her Title VII claims. (Dkt. No. 31.)[14] Smith's remaining Title VII claims are for (1) discrimination, (2) hostile work environment, and (3) retaliation.[15] (Am. Compl. ¶¶ 6-7.)

         Pending is the TSA's motion for summary judgment as to Smith's remaining claims. (Dkt. No. 45.)

         III. Stan ...

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