Teamer v. Napolitano
| Decision Date | 01 May 2012 |
| Docket Number | CIVIL ACTION H-11-1808 |
| Parties | JEFFERY A. TEAMER, Plaintiff, v. JANET NAPOLITANO, SECRETARY DEPARTMENT OF HOMELAND SECURITY, Defendant. |
| Court | U.S. District Court — Southern District of Texas |
Pending before the Court in the above referenced cause, grounded in Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. , [and, necessarily, in the Aviation and Transportation Security Act ("ATSA"), 49 U.S.C. § 44935(f)] and alleging employment discrimination based on race (African American), color (black), sex (male), age (43 when discharged),1 disability (lower back problems)2 from May 2003 until September 15,2004, when pro se Plaintiff Jeffery Teamer was terminated from his position as a Transportation Security Screener with the Transportation Security Administration ("TSA"), and hostile work environment, are (1) a motion to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) (instrument #7) and (2) a request to grant motion to dismiss as unopposed under Local Rule 7.4 (#8), both filed by Defendant Janet Napolitano, Secretary, Department of Homeland Security. Plaintiff has not filed a response to either motion.
To help clarify Plaintiff's complaint and to provide some organization, the Court footnotes Defendant's responses to theallegations and references the evidence that the Secretary has submitted to support her contentions.3
As best as the Court can understand Plaintiff's complaint, Plaintiff claims that before May 2004 he had no Absences Without Leave ("AWOLs") or attendance issues other than for his unavoidable accident and illness. All AWOLs prior to May 2004 were converted to Leave Without Pay ("LWOP") or Sick Leave in accordance with the TSA's Leave Policy.
Plaintiff alleges that on February 11, 2004 he was involved in a traffic accident that resulted in a permanent back injury that resulted in his light duty work restriction, continuing until he was discharged on September 15, 2004.4
Plaintiff claims he was absent due to illness (a "blackout day") on May 28, 2004 and on June 18, 2004. He was also absent from work from June 24-July 2, 2004, caring for a family member with a serious health condition. He states that on June 18, 2004 he gave advance notice to Defendant for leave to care for that family member and that he called in every day that he was out. He claims that he was not informed of his FMLA rights and that Defendant did let him exercise his FMLA rights to care for thatindividual even after he submitted "the medical document" from his father's physician to cover his absence during the June 24-July 2, 2004 period. On July 11, 2004 Screening Manager Andrea Baldwin ("Baldwin") refused to sign and approve Plaintiff's Leave Request. Plaintiff claims that on July 16, 2004 he submitted a medical document from his doctor, but Defendant initially refused to retain or acknowledge it, once before July 11th and then again on July 11, 2004, for the blackout day on May 28, 2004.5 He concedes that the medical document was not signed (by the doctor) and was submitted for verification to get the AWOL for May 28, 2004 removed. On June 18, 2004 Baldwin purportedly forced Plaintiff's supervisor, Mark Fry ("Fry"), to write Plaintiff up for calling in sick. Fry wrote "verbal" on the Personnel Report, but Baldwin made him redraft it and remove the word "verbal."
On June 18, 2004 Baldwin denied Teamer a promotion to Lead TSS after a disagreement. On September 10, 2004, after Plaintiff met with Federal Security Director James Marchand ("Marchand"), Plaintiff was again denied a promotion to Lead TSS.
Plaintiff claims that on July 21, 2004 Defendant denied Plaintiff access to his personnel file at Human Resources as well as Plaintiff's request to file a grievance against Baldwin. On July 23, 2004, after he visited with Human Resources representative Linda Reddin, Human Resources sent out a memo alerting Supervisors about Plaintiff's visit and his next scheduled appointment on July 29, 2004. Also on July 23, Plaintiff was not permitted to file a grievance against Baldwin. He asserts that his grievance was not recorded, acknowledged or addressed by Defendant. Also that same day he learned that Defendant had placed five Personnel Reports in his disciplinary file without his knowledge. Two, dated 05/30/03 and 06/20/02, were over a year old; the others were dated 06/18/04, 05/28/04, and 07/08/04. On July 23, 2004, as proof that he had submitted the doctor's excuse note to Baldwin, because he did not trust Baldwin Plaintiff asked that a copy of the medical document that had been provided to Baldwin on July 26, 2004 be placed in his personnel file, but Human Resources denied the request.
On August 3, 2004 at a Town Hall Meeting, Plaintiff asked Marchand about favoritism and bias practices among Supervisors and Managers. Marchand responded that he would get back to Plaintiff,but Marchand never did. Sometime later that month, Plaintiff was not allowed to work in an assigned light duty work location, but was "illegally transferred" to one of the busiest terminals (Terminal C) at Bush International Airport.
On September 3, 2004 Plaintiff was issued a Notice of Proposed Removal.6 On September 8, 2004, Plaintiff tried to tell Marchand about the actions and conduct of Baldwin and other staff toward Plaintiff, but Marchand would not consider Plaintiff's grievance. Marchand indicated that the decision concerning Plaintiff's removal would be made by September 18, 2004. On September 14, 2004 Plaintiff filed a grievance asserting discrimination and harassment against Defendant with the Equal Employment Opportunity Commission ("EEOC") for TSA.7 On September 15, 2004 Marchand terminated Plaintiff's employment. He filed an EEOC charge on January 4, 2005. On February 8, 2011 he received a Notice of Right to Sue.
Plaintiff further asserts that at some time between Plaintiff's separation from TSA and before the EEO investigation, his attendance records and Time Labor Reports were altered to support Defendant's claims. His Personnel Reports were drafted by Defendant and withheld from Plaintiff and did not accurately reflect the reason for Plaintiff's absences or tardiness, but mainly supported Defendant's claims.
Plaintiff claims that out of 80 employees terminated as of September 4, 2004, 35 were black (43.8%), and 14 white (17.5%). Of 1,011 employees working for the Department of Homeland Security and the George Bush Intercontinental Airport, 418 were black (41.3%), 417 white (41.2%), 111 Hispanic (11.0%), and 65 who were Asian,American Indian, or other (6.5%). Out of 114 TSA employees at Bush Intercontinental Airport who had entries of AWOL status during the first seven days of June, July, August and September 2004, 72 were black (63.2%) and 32 were white (28.1%).
Furthermore Plaintiff represents that 460 employees were over forty years old (45.5%) and 551 were under forty (54.5%). Out of 114 TSA employees, 77 were over forty years old (68%). He claims he was affected by both race and age categories.
The Court is not sure of the source of all these statistics. Moreover they fail to relate to Plaintiff's disparate treatment claims of employment discrimination.
As for his sex discrimination claim, Plaintiff states that according to the TSA Administrative Office and the U.S. Department of Homeland Security Transportation Security Administration, a female cited for falsification of medical documentation on 05/25/04 was suspended for three days (10/19-10/21/04), yet the Director stated that according to TSA policy, Plaintiff's submission of a falsified doctor's note was sufficient grounds, by itself, for termination from TSA.
Plaintiff asserts that disability discrimination was evidenced by the transfer of Plaintiff, who was on light duty work restrictions, to workstation C-155 in the Terminal C baggage handling area despite the fact that Defendant was aware of Plaintiff's disability and the light work restriction. Hecomplains that Defendant insisted no changes should be made to accommodate Plaintiff's needs. Defendant ceased recording
Plaintiff's attendance on or around 08/19/04. Plaintiff claims that after the transfer, he suffered from severe abdominal pains for hours and passed out. Plaintiff believes that Defendant's bad faith intent was to use Plaintiff's disability, deny approval of leave, deny the filing of a grievance and deny FMLA leave to justify Plaintiff's termination.
"When a motion to dismiss for lack of jurisdiction 'is filed in conjunction with other Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits." Crenshaw-Logal v. City of Abilene, Texas, 2011 WL 3363872, *1 (5th Cir. 2011), quoting Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001); see also Randall D. Wolcott, MD, PA v. Sebelius, 635 F.3d 757, 762 (5th Cir. Mar. 15, 2011); Fed. R. Civ. P. 12(h)(3). If a complaint could be dismissed for both lack of jurisdiction and for failure to state a claim, " the court should dismiss only on the jurisdictional ground under [Rule] 12(b)(1), without reaching the question of failure to state a claim under [Rule] 12(b)(6)." Crenshaw-Logal, 2011 WL 3363872, *1, quoting Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir. 1977). The reasons behind this practice are to preclude courts from issuing advisory opinions and barring courts withoutjurisdiction "'from prematurely dismissing a case with prejudice.'". Id. , citing Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 101 (1998), and Ramming, 281 F.3d at 161.
A federal employee must exhaust his administrative remedies when bringing suit under Title VII in federal court. Brown v. Gen. Servs. Admin., 425 U.S. 820, 832-33 (1976); Pacheco v. Mineta, 448 F.3d 783, 788 and n.7 (5th Cir. 2006).8 Furthermore exhaustion of administrative remedies is a prerequisite to...
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