United States District Court, D. Maryland
L. HOLLANDER UNITED STATES DISTRICT JUDGE.
Bryant, the self-represented plaintiff, lodged an employment
discrimination action in April 2018 against Kirstjen Nielsen,
then the Secretary of the Department of Homeland Security
(“DHS”). ECF 1 (the “Complaint”).
Keven K. McAleenan, Acting Secretary of DHS, has since been
substituted as the defendant, as Nielsen no longer serves as
Secretary of DHS. See ECF 22.
who is African-American, is employed by the Transportation
Security Administration (“TSA”), a DHS agency, as
a Transportation Security Officer (“TSO”), or
security screener, at the Baltimore Washington International
Thurgood Marshall Airport (“BWI”). ECF 1 at 7;
ECF 16-2 (Plaintiff's Affidavit) at 2. He alleges
retaliation in response to multiple grievances that he filed.
And, he claims that he was subjected to race discrimination
in the form of a hostile work environment. ECF 1 at 7.
predicated on the Notification and Federal Employee
Antidiscrimination and Retaliation Act of 2002, 5 U.S.C.
§§ 2301 et seq. (the “No Fear
Act”), and Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. §§ 2000e et seq.
(“Title VII”). Plaintiff appended
several exhibits to the Complaint. ECF 1-2 - ECF
has moved to dismiss under Fed.R.Civ.P. 12(b)(6) or, in the
alternative, for summary judgment under Fed.R.Civ.P. 56(a).
ECF 16. The motion is supported by a memorandum of law (ECF
16-1) (collectively, the “Motion”) and numerous
exhibits. ECF 16-2 - ECF 16-17. Plaintiff opposes the Motion
(ECF 18), supported by exhibits. ECF 18-1 - ECF 18-3.
Defendant has not replied, and the time to do so has expired.
See Local Rule 105.2(a).
hearing is necessary to resolve the Motion. See
Local Rule 105.6. I shall construe the Motion as one to
dismiss with respect to the No. Fear Act claim, and as one
for summary judgment with regard to the Title VII claims.
And, for the reasons that follow, I shall grant the Motion.
Factual and Procedural Background
Screener Employment Standards
noted, Bryant is employed by the TSA as a TSO, or security
screener, at BWI. ECF 16-2 at 2. Minimum employment standards
for security screeners are codified in the Aviation and
Transportation Security Act, 49 U.S.C. § 44935
(“ATSA”). The ATSA requires that security
screeners possess, inter alia, “basic
aptitudes and physical abilities, including color perception,
visual and aural acuity, physical coordination, and motor
skills[.]” Id. § 44935(f)(1)(B). Further,
“[s]creeners operating screening equipment shall be
able to distinguish on the screening equipment monitor the
appropriate imaging standard specified by the Administrator
[of the TSA].” Id. § 44935(f)(1)(B)(i).
Management Directive No. 11000.33-1, effective October 28,
2010 (ECF 16-3, the “Directive”), provides
“TSA policy and procedures for implementing the
statutory requirement that TSOs demonstrate daily fitness for
duty, ” pursuant to 49 U.S.C. § 114(m). The
Directive defines “Fit for Duty” as a
“statutory requirement which mandates that a TSO cannot
have illegal drugs or alcohol present in his or her system
and is not impaired while on duty due to sleep deprivation,
medication, or failure to take prescription medicine as
directed.” ECF 16-3 at 1. And, the Directive defines
“Daily Demonstration” as a requirement that TSOs
“demonstrate their fitness for duty on a daily
basis.” Id. According to the Directive,
“[t]his daily demonstration will be accomplished by
Start-of-Shift Observations and supervisory observations over
the course of the work shift.” Id.
Directive states, in relevant part, that TSOs, such as
plaintiff, are responsible for the following duties,
id. at 2:
(1) Reporting to work every shift for duty, ready and able to
meet their work obligations; and
(2) Informing his or her supervisor if he or she is impaired
and therefore, unfit for duty.
And, “TSA Management officers” are responsible
for the following, id.:
(1) Ensuring that employees under their supervision are aware
of, and adhere to, the guidance set forth herein;
(2) Ensuring that the TSOs are fit for duty at the beginning
of, and throughout, each shift; and
(3) Considering fitness for duty requirements when preparing
and managing work schedules, shifts, and breaks.
the Directive provides that management officials “shall
assess TSO daily fitness for duty within 30 minutes of the
start of each TSO's work shift.” Id. at 3.
This is referred to as the “Start-of-Shift
Observation.” Id. During the Start-of-Shift
Observation, and over the course of the shift, management
officials, and in some cases, Lead Transportation Security
Officers (“LTSOs”), “will observe each TSO
for signs of fatigue, impairment, sluggishness, and/or glassy
to the Directive, “a TSO who reports for work unfit for
duty may be placed on absence without leave (AWOL)
status[.]” Id. And, if a TSO is repeatedly
found to be unfit for duty, the officer “shall be
notified in writing of that determination and may be subject
to discipline, ” in accordance with TSA Management
Directive No. 1100.75-3 (ECF 16-4, “TSA
Handbook”). ECF 16-3 at 3.
respect to a TSO who is impaired due to sleep deprivation,
medication, and/or the failure to take prescription
medication as directed, the Directive outlines the following
procedures, id. at 3:
(1) If a management official has a reasonable belief a TSO is
not fit for duty, or if the TSO discloses that he or she has
a fitness for duty impairment and his/her supervisor concurs,
the management official may offer the TSO an opportunity to
recover, e.g., taking a short break to address his/her
(2) If the TSO is unable to address his/her physical
impairment, the supervisor may permit the affected employee
to request leave . . . . If the TSO does not have a
sufficient leave balance, he or she may request leave without
(a) A TSO who is not fit for duty is responsible for
requesting appropriate leave, e.g.,, [sic] annual leave, sick
leave, compensatory time off, if available, or LWOP following
established procedures for requesting unscheduled leave.
(b) If the TSO fails to follow established procedures for
requesting unscheduled leave under these circumstances,
he/she will be placed in an AWOL status for the remainder of
Before an employee is placed in an AWOL status, concurrence
may be obtained from HQ [Employee Relations
(“ER”)] and/or field counsel.
(3) TSOs who repeatedly fail to demonstrate fitness for duty
must be notified in writing that future instances of
reporting not fit for duty will be charged as AWOL.
(a) While not itself a disciplinary action, AWOL is a basis
for discipline as outlined in [the TSA Handbook].
(b) A TSO charged as AWOL or repeatedly reporting not fit for
duty may be subject to disciplinary action.
(c) Management officials will consult with an ER Specialist
and/or field counsel for guidance regarding disciplinary
actions as a result of AWOL charges and/or failure to
demonstrate fitness for duty.
(4) Based on the nature and extent of the TSO's
condition, adjustments or modifications to the TSO's
duties and/or schedule may be explored . . ., if applicable.
relevance here, Section L of the TSA Handbook, titled
“Workplace Violence, ” provides, in pertinent
part, ECF 16-4 at 14-15:
Violent, threatening, intimidating, or confrontational
behavior is unacceptable and will not be tolerated.
Threatening behavior may include harassment, intimidation, or
any oral and/or written remarks or gestures that communicate
a direct or indirect threat of physical harm, or which
otherwise frighten or cause an individual concern for his or
her personal safety. Such irresponsible and inappropriate
behavior includes actions, gestures, language or any other
intimidating or abusive action that creates a reasonable
apprehension of harm. Employees, supervisors, and managers
are responsible for enforcing the highest standards of
personal safety and welfare at the workplace. Employees must
immediately report threats of violence, violent incidents or
other inappropriate behavior to their supervisors, Workplace
Violence Coordinators, TSA Worksite Managers, or any TSA
management official, as appropriate in the situation.
11, 2013, Bryant met with David Marzola, Assistant Federal
Security Director (“FSD”) at TSA, who is
Caucasian, and Jimmy Briseno, a Deputy Assistant FSD, who is
Hispanic, to discuss plaintiff's screening of checked
bags. ECF 1 at 7; ECF 16-2 at 3; ECF 16-5 (Plaintiff Notes,
dated May 10, 2013, and May 11, 2013) at 1. Plaintiff avers
that during the meeting, Briseno “placed a chair in
front of” Bryant and stated that Bryant “was
having performances issues in check[ed] baggage.” ECF 1
to plaintiff, Briseno “tried to pick a confrontation[,
] a fight.” Id. Bryant responded that he
“did not have any issues.” ECF 16-5 at 1. Briseno
then told Bryant that his repeated questioning of colleagues
was “bring[ing] up problems.” Id.
addition, Briseno questioned Bryant about a
“grievance” that Bryant filed on December 7,
2012, in regard to an incident that took place on November
27, 2012. See ECF 1-7 at 6. In plaintiff's
words, “I did not like [Briseno's] tone of voice,
they was [sic] trying to push me to react in a violent manger
[sic].” ECF 16-5 at 1. But, plaintiff claims he
remained “calm” and stated that he “filed
[Equal Employment Opportunity (“EEO”)] complaints
in the past.” Id.
Briseno raised concerns related to Bryant's prior request
for a “religious accommodation.” Id. at
2. Plaintiff felt like he was “being played with, to
get [him] in the room to try to set [him] up.”
16, 2013, according to the Employee Feedback Report (ECF
16-6), Bryant had “problems identifying” on a
screening monitor an object in baggage and “had to
ask” LTSO Melanie Preston “for help.”
Preston told Dawn Nearhood, a Supervisory Transportation
Security Officer (“STSO”) who is Caucasian, that
Bryant “need[ed] more help with his recognition (bag
and item) skills.” ECF 16-7 (Nearhood Declaration).
same day, Nearhood met with Bryant. Id.; ECF 1-5 at
5. Nearhood avers that during the meeting, Bryant shared that
he was “having trouble with his eyes and that he is on
medication for blood pressure.” ECF 16-7. Further, he
stated that “at times his vision becomes blurry and his
Where evident in the record, I have included race and
ethnicity of other TSA employees. Some of the references are
derived from the “Decision” of the Administrative
Judge. See ECF 1-5. In the Decision, the
Administrative Judge uses the spelling of
“Briceno” rather than “Briseno.”
doctor told him when this happens he is to stop what he is
doing, take his glasse[s] off and take a minute.”
Id. And, “his doctor want[ed] him to have his
eyes checked for cataracts and [had] concerns about cataracts
leading to blindness.” Id. According to
Nearhood, “[t]his concerned [her] due to the fact that
[plaintiff's] job consists mostly of viewing images on
the monitor and making a decision as to whether there is a
threat in the bag.” Id.
the meeting, Nearhood spoke with Transportation Security
Manager (“TSM”) William Shade, who is Caucasian.
Id. Nearhood and Shade “made the decision to
pull [Bryant] from screening duties and have him complete
[online training] until further review/advisement on the
17, 2013, plaintiff contacted an EEO counselor. See
ECF 1-6 (“Final Order, ” dated December 29, 2016)
at 1. In an email of May 18, 2013 (ECF 16-8 at
2), Nearhood contacted two managers, Regina Richardson and
Stephanie Jones, to solicit feedback regarding Bryant's
work performance. On May 20, 2013, Jones responded with the
following concerns, id.:
1. Object recognition… He is having great difficulty
determining alarms. He sends an incredible amount of bags to
the search area for possible [improvised explosive device
[(“IED”)] when he see's [sic] bulk mass in
orange. I have spoken to him about searching for other
components needed for IED but unfortunately he doesn't
seem to understand.
2. Time Searched…. He is having difficulty making a
decision on his own without asking other officers their
opinion on alarm items. This also sends bags to the search
area because the time to make a decision has run out.. He is
not able to use all of the tools available to him before the
search times out.
3. Inattentiveness… I have a concerns [sic] about him
not paying attention to what he's doing. He is not
capable of talking and viewing bags at the same time. He is
offended when asked to focus on the items on screen.
email dated May 20, 2013, Richardson, who is
African-American, expressed “these same concerns”
regarding Bryant's job performance. Id. at 1.
20, 2013, Bryant emailed the TSA's Office of Civil
Rights. ECF 18-2 at 6. He stated, id.:
Please add the other two names to the intake form also for
retaliation and racial discrimination.
Melanie Preston and Dawn Nearhood. I put dawn Nearhood name
in it to [sic] because she is in the retaliation also.
I will give the names of the deputy FSD for screening and the
assistant FSD for screening when I talk to the counselor.
I did the intake form on 16 [M]ay 2013.
I have filed several EEO complaints in the past.
I do not appreciate Management trying to provoke violence in
the work place behind closed doors because I filed EEO
complaints and file a grievance that was filed.
correspondence of May 26, 2013 (ECF 1-7 at 10-12), TSM Shade
wrote to Bryant, requesting “additional medical
documentation” concerning plaintiff's vision
“to determine [his] ability to perform the full range
of [his] TSO duties.” Id. at 10. Shade noted
that on May 16, 2013, plaintiff had told Nearhood of his
“blurry vision, ” which “raised
concerns” about his “ability to perform”
his job. Id. at 10. Shade also stated that as a TSO,
Bryant is required to meet certain physical requirements of
his position, including “Distance vision correctable to
20/30 or better in the best eye and 20/100 or better in worst
eye” and “Near vision correctable to 20/40 or
better binocular.” Id.
same day, plaintiff emailed the TSA's Office of Civil
Rights. ECF 1-8 at 9. He stated, in relevant part,
Mr. Bill Shade gave me a letter to go to a doctor. He said I
told the STSO Dawn Dearhood [sic], said I had burry [sic]
vision. I did not tell her that. I wear bifocals and I have
to look down when I read.
I do not like the racial aspects of the letter saying about
my ability to perform my job including my repeatedly [sic]
ability to lift over 70 pounds. I filed and [sic] EEO prior
to this incident against her.. [sic] I told them there was
nothing wrong with me. I just saw my doctor two months ago
for a checkup including lab work. I am tired of the
retaliations. . . . This is another form of retaliation that
is prohibited under federal law.
26, 2013, in another email to TSA's Office of Civil
Rights (ECF 18-2 at 7), plaintiff stated, in pertinent part:
I want to report I was given paper work from the security
manager, that I had to go to my physician to feel [sic] out
paper work, am I fit for duty.
[T]his is a clear cover up for filing EEO complaints in the
past, they are trying to use my eyeglasses as an excuse about
my eye sight. I ...