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Bryant v. McAleenan

United States District Court, D. Maryland

August 27, 2019

THEODORE BRYANT, Plaintiff,
v.
KEVEN K. McALEENAN, Defendant.

          MEMORANDUM OPINION

          ELLEN L. HOLLANDER UNITED STATES DISTRICT JUDGE.

         Theodore 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.

         Plaintiff, 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.

         Suit is 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 1-10.[1]

         Defendant 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).

         No 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. ECF 16.

         I. Factual and Procedural Background

         A. Screener Employment Standards

         As 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).

         TSA 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.

         The 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.

         Further, 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 eyes.” Id.

         According 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.

         With 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 condition.
(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 pay (LWOP).
(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 the workday.
NOTE:
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.

         Of 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.

         B. The Evidence

         On May 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.[2] 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 at 7.

         According 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.

         In 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.

         Also, 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.” Id.

         On May 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).

         That 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.

         Following 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 issue.” Id.

         On May 17, 2013, plaintiff contacted an EEO counselor. See ECF 1-6 (“Final Order, ” dated December 29, 2016) at 1.[3] 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.

         In an email dated May 20, 2013, Richardson, who is African-American, expressed “these same concerns” regarding Bryant's job performance. Id. at 1.

         On May 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.

         In 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.

         That same day, plaintiff emailed the TSA's Office of Civil Rights. ECF 1-8 at 9. He stated, in relevant part, id.:

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.

         On May 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 ...

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