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Ferace v. Hawley

September 26, 2007

JAMES E. FERACE, PLAINTIFF,
v.
EDMUND S. HAWLEY, ADMINISTRATOR, TRANSPORTATION SECURITY ADMINISTRATION AND DEPARTMENT OF HOMELAND SECURITY, TRANSPORTATION SECURITY ADMINISTRATION, DEFENDANTS.



The opinion of the court was delivered by: Hon. Nora Barry Fischer U.S. District Judge

MEMORANDUM OPINION

I. Introduction

This is an action seeking declaratory and injunctive relief and damages for alleged retaliation in violation of the First Amendment rights of free speech and association. Plaintiff James E. Ferace ("Plaintiff") is a former employee of the Transportation Security Administration ("TSA") who claims that he was unlawfully discharged because of his active and open efforts in an attempt to unionize the screening department of the Pittsburgh International Airport. (Complaint at Docket No. 20 ("Complaint") at ¶¶ 4, 17, 26).

Presently before this Court is Defendants' Motion for Summary Judgment ("Defendants' Motion"). [DE 58]. The matter has been fully briefed by the parties. [DE 59, 67, and 69]. Pursuant to Local Rule of Court ("LR") 56.1(B)(1), Defendants set forth a concise statement of material facts. [DE 60]. Plaintiff, however, failed to respond to these statements in accordance with LR 56.1(C)(1), and consequently, the facts set forth in the concise statement of material facts submitted by Defendants are deemed to be admitted by Plaintiff for the purpose of the instant motion, in accordance with LR 56.1(E).*fn1 Benko v. Portage Area School Dist., 2006 WL 1698317 (W.D. Pa. 2006); Smith v. Burrows Corp., 2005 WL 2106594 (W.D. Pa. 2005); Loving v. Borough of East McKeesport, 2005 WL 3560661 (W.D. Pa 2005) (movant's facts admitted because non-movants failed to respond to movant's statement of material facts, pursuant to LR 56).

For the reasons set forth below, Defendants' Motion [DE 58] is GRANTED.

II. Factual Background

A. Plaintiff's Employment with TSA

Plaintiff is a former employee of TSA, a component of the United States Department of Homeland Security. (Docket No. 60, Defendants' Statement of Undisputed Material Facts in Support of Summary Judgment, ("SOF") at ¶ 1). TSA was established in the aftermath of the September 11, 2001 terrorist attacks and was tasked with the security mission of preventing dangerous passengers and cargo from boarding aircraft. SOF at ¶¶ 2, 5. Plaintiff began work with TSA as a federal airport security screener at the Pittsburgh International Airport on August 28, 2002. SOF at ¶ 3. A screener's primary responsibility is to provide front line security and protection for air travelers, airports, and airplanes, by identifying dangerous objects in baggage, cargo, and on passengers and preventing such objects from being transported onto aircraft. SOF at ¶ 5. Plaintiff was primarily a "checkpoint" screener and was responsible for screening individuals as they walked through metal detectors and for screening carry-on baggage. SOF at ¶ 6. As a federal airport security screener, Plaintiff was required to serve a one-year probationary employment period. SOF at ¶ 69. During this probationary employment period, Plaintiff could be terminated if his supervisors found that his performance or conduct were deficient. SOF at ¶ 69.

Shortly after he began working for TSA, Plaintiff became affiliated with the American Federation of Government Employees ("AFGE"), a labor union of federal government employees that was active in attempting to unionize the TSA workforce.*fn2 SOF at ¶¶ 17, 20. In the fall of 2002, Plaintiff began serving as AFGE's Pittsburgh Airport point of contact. SOF at ¶ 20. As the Pittsburgh Airport point of contact, Plaintiff was the first to act in furtherance of AFGE's "campaign to organize TSA screeners for the purposes of obtaining recognition as the [sic] their exclusive representative and securing collective bargaining." Complaint at ¶ 3. Specifically, Plaintiff "actively and openly engaged in the effort to organize TSA employees [at the Pittsburgh Airport] for the purpose of securing collective bargaining and other protections," by distributing union materials, organizing meetings, speaking with employees about the union, and administering a website on the union's behalf. Complaint at ¶¶ 4, 17; SOF at ¶ 21. Plaintiff claims that all his unionizing activity occurred during "off duty" hours and in locations outside the workplace such as the airport parking lot and local hotels where the union meetings were held.SOF at ¶ 21.

When he began his employment with TSA, Plaintiff acknowledged that he understood the various TSA policies regarding professional conduct in the workplace and his obligation to maintain the security of sensitive information. SOF at ¶¶ 7-16. On August 26, 2002, Plaintiff signed a document affirming that he understood Sensitive Security Information ("SSI") and pledged to abide by regulations controlling its unlawful disclosure thereof, including disclosure on a website not approved by TSA.*fn3 SOF at ¶7. On January 15, 2003, Plaintiff signed his "Employee Performance Agreement" and pledged to "work as an effective team member," contribute to the accomplishment of TSA's mission and vision, and "conduct [himself] in a way that supports TSA's values." SOF at ¶ 8. On February 10, 2003, Plaintiff acknowledged that he received and read a copy of HRM Letter No. 735-1, which establishes standards of behavior and ethical conduct for TSA employees, the breach of which may result in disciplinary or other corrective action. SOF at ¶¶ 9-16.

In February 2003, Plaintiff disclosed confidential TSA information regarding a security breach on a website that he maintained for the union. SOF at ¶ 33, 35. As a result of Plaintiff's disclosure, this sensitive information was later publicized in newspapers, television, and radio. SOF at ¶ 34. Plaintiff's disclosure constituted a breach of TSA policy that mandated the strict adherence to protecting SSI. SOF at ¶ 33. Plaintiff also placed demeaning comments and "character assassinations" regarding his fellow TSA employees' dress, background, and personal appearance on his website. SOF at ¶¶ 37-38. Former Federal Security Director Robert Blose ("FSD Blose") testified that Plaintiff's character assassinations included a caricature of one young female employee who was portrayed on Plaintiff's website with huge buckteeth. SOF at ¶ 38.

On February 26, 2003, Plaintiff was counseled by FSD Blose and signed a Memorandum of Counseling relating to Plaintiff's release of SSI on the union website he maintained. SOF at ¶ 36. As the result of this offense, FSD Blose requested Plaintiff's immediate termination because Plaintiff's conduct was detrimental to the good order and discipline of the TSA workplace. SOF at ¶¶ 37, 41. Despite Plaintiff's probationary status, his February 2003 counseling incident, and FSD Blose's push to terminate Plaintiff, TSA Headquarters ("Headquarters") decided to retain Plaintiff. SOF at ¶ 44. FSD Blose testified that Headquarters was especially cautious about firing Plaintiff in order to prevent the appearance of retaliating against an individual with union affiliation. SOF at ¶ 44.

On May 1, 2003, Plaintiff was given another letter of counseling relating to his failure to follow proper procedures for requesting sick leave. SOF at ¶¶ 47, 50. The failure to provide a specific reason for taking sick leave violates FAA Order 3600.4, provisions of HRM Letter 735-1, and TSA Pittsburgh Memorandum 2003-85. SOF at ¶ 50. Plaintiff admitted that he failed to follow appropriate sick leave procedures after he called in sick and refused to state the nature of his illness, but refused to sign the Letter of Counseling because he felt that doing so implicated "medical privacy issues."*fn4 SOF at ¶ 49.

On May 20, 2003, Plaintiff committed another infraction of TSA policy by approaching his supervisor's podium and sorting through daily records of each screener's performance. SOF at ¶ 52. After he obtained the evaluation comments of his team members, Plaintiff approached two screeners and disclosed to them the negative comments that were written about them in their evaluations. SOF at ¶¶ 52, 59. Upon receiving the evaluation comments, the screeners became visibly upset; one even began to cry. SOF at ¶ 60. This incident had a significant impact during this time period due to an ongoing tension among TSA employees over a reduction in force that required Pittsburgh International Airport to reduce its screening force by approximately 40 percent; additionally, during the Spring/Summer of 2003, a nationwide reduction of screeners resulted in TSA slating for termination approximately 6,000 screeners. SOF at ¶ 61. On June 2, 2003, Human Resources Specialist Donna Hajduk notified Fred Pope, Employee Relations Specialist for Northeast Headquarters of TSA, of the May 20, 2003 incident and Plaintiff's other counseling incidents and recommended that a one day suspension be issued. SOF at ¶ 62. Ms. ...


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