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Sandowski v. McAleenan

United States District Court, D. Hawaii

November 6, 2019

RICHARD J. SANDOWSKI, Plaintiff,
v.
KEVIN K. MCALEENAN, ACTING SECRETARY OF HOMELAND SECURITY, et al., Defendants.

          ORDER (1) DISMISSING PLAINTIFF'S FIFTH CAUSE OF ACTION; (2) GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF'S SECOND AND FOURTH CAUSES OF ACTION; AND (3) DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF'S THIRD CAUSE OF ACTION

          SUSAN OKI MOLLWAY, UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION.

         Plaintiff Richard J. Sandowski claims that, while working for the Transportation Security Administration, he was discriminated against based on his race and religion, then fired. TSA says Sandowski was fired because he was repeatedly insubordinate. Sandowski sues Defendant Kevin K. McAleenan in his official capacity as the Secretary of the Department of Homeland Security, [1] which TSA falls under. Sandowski asserts that TSA violated Title VII and various state laws.

         Four of the claims Sandowski asserted in his Amended Complaint remain. ECF Nos. 71, 88. Those include a Title VII claim of racial discrimination (Second Cause of Action), a Title VII claim of retaliation (Third Cause of Action), a Title VII claim of religious discrimination (Fourth Cause of Action), and a claim of intentional or negligent infliction of emotional distress (Fifth Cause of Action).

         DHS now moves to dismiss, or in the alternative, for summary judgment on Sandowski's remaining claims. DHS argues that the Fifth Cause of Action should be dismissed under Rule 12(b)(1) of the Federal Rules of Civil Procedure because it is preempted by the Civil Service Reform Act of 1972, or, alternatively, because it is barred by the doctrine of sovereign immunity. ECF No. 89-1, PageID # 486-89. DHS also maintains that it is entitled to summary judgment on Sandowski's remaining claims because they are either procedurally barred or because they lack evidentiary support. ECF No. 89-1, PageID # 494-500.

         This court agrees that it lacks subject matter jurisdiction over Sandowski's Fifth Cause of Action because that claim is barred by the doctrine of sovereign immunity. This court therefore grants DHS's motion to dismiss Sandowski's Fifth Cause of Action.[2]

         DHS is also entitled to summary judgment on Sandowski's Second and Fourth Causes of Action, alleging racial and religious discrimination. There is no evidence that TSA racially discriminated against Sandowski, and Sandowski's religious discrimination claim is procedurally barred because of Sandowski's failure to comply with Title VII's claim-processing requirements.[3]

         However, genuine issues of material fact remain as to Sandowski's claim that TSA violated Title VII by retaliating against him for bringing a 2005 religious discrimination claim. A jury could conclude that either Sandowksi's immediate supervisor, Doug Rolefson, or Sandowski's manager, Stanley Tadaki, caused him to be fired because of that prior complaint. This court therefore denies DHS's motion for summary judgment on Sandowski's Third Cause of Action.

         II. BACKGROUND.

         A. Sandowski's First Administrative Complaint.

         In October 2004, Sandowski began working as a TSA security screener at the Lanai airport. ECF No. 62, PageID # 356; ECF No. 74, PageID # 418. At first, Sandowski had a typical work week, with Saturday and Sunday off. ECF No. 62, PageID # 357; ECF No. 74, PageID # 418. Sandowski had problems with his initial supervisor, however, and in April 2005 he was transferred to a different shift under a new supervisor. See ECF No. 90-19, PageID # 714. While working that shift, Sandowski had Tuesdays and Wednesdays off. ECF No. 62, PageID # 357; ECF No. 74, PageID # 419.

         Soon after his schedule had changed, Sandowski asked to return to a schedule with Saturdays and Sundays off. See ECF No. 90-17, PageID # 692. His initial request apparently did not mention his religion, ECF No. 90-17, PageID # 692, but at some point he told his supervisors he needed Sunday mornings off so that he could attend church. ECF No. 62, PageID # 357; ECF No. 74, PageID # 419. TSA denied Sandowski's request and told him that he could use annual leave to attend religious services. ECF No. 62, PageID # 357; ECF No. 74, PageID # 419.

         On August 31, 2005, Sandowski contacted an employment discrimination counselor within TSA's Office of Civil Rights and Liberties and asserted that TSA's refusal to change his schedule to allow him to attend Catholic mass on Sunday constituted religious discrimination. ECF No. 90-19, PageID # 711. According to Sandowski, after he made that complaint, one of his supervisors, Doug Rolefson, repeatedly told him that “TSA Lanai is not for everyone.” ECF No. 90-5, PageID # 531. Rolefson also allegedly told him that he didn't understand why forcing TSA employees to use annual leave to attend church services was discriminatory. ECF No. 90-5, PageID # 533. In addition, during a personnel evaluation, Rolefson allegedly stated that he was “personally offended” by Sandowksi's complaint and that he found it “stressful.” ECF No. 90-5, PageID # 533.

         At the same time, Sandowski was verbally counseled for a series of minor infractions. See ECF No. 62, PageID # 358; ECF No. 74, PageID # 421. He also received a negative performance evaluation. See ECF No. 90-20, PageID # 719. As a result, Sandowski expanded his complaints to the internal counselor to include a claim that his supervisors had given him him a negative performance evaluation in retaliation for his initial religious discrimination complaint. ECF No. 90-20, PageID # 720.

         The counselor attempted to resolve Sandowski's complaint informally.[4] ECF No. 90-19, PageID # 714. The counselor contacted Stanley Tadaki, the Assistant Federal Security Director responsible for Lanai Airport. ECF No. 90-19, PageID # 714. Tadaki reviewed Sandowski's claims and responded on behalf of TSA.[5] ECF No. 90-19, PageID # 714.

         Ultimately, the informal resolution attempts failed. On December 16, 2005, Sandowski filed a formal complaint with TSA's Office of Civil Rights and Liberties. ECF No. 90-19, PageID # 715. An administrative judge concluded that Sandowski had failed to prove the allegations in his complaint. ECF No. 92-1, PageID # 793. On February 17, 2009, the Department of Homeland Security, finding no error in that determination, declared the decision to be final. ECF No. 92-1, PageID # 793. DHS mailed a copy of its order to Sandowski, along with an enclosure explaining that Sandowski had “the right to appeal to the Equal Employment Opportunity Commission (EEOC) or to file a civil action in an appropriate United States District Court.” ECF No. 92-1, PageID # 795. The enclosure also informed Sandowski that if he elected to file a civil action, he had 90 days to file a complaint. ECF No. 92-1, PageID # 796. Sandowski received the DHS order on March 7, 2009. ECF No. 90-23, PageID # 744. He did not pursue a civil action, and nothing in the record indicates that he appealed to the EEOC.

         B. Sandowski's Second Administrative Complaint.

         The record does not reflect any incident involving Sandowski in the six months after he filed his formal administrative complaint. Beginning in July 2006, however, a series of escalating disputes between Sandowski and his supervisors led to Sandowski's termination. Those incidents are described below.

         1. Sandowski's Refusal to Correct Errors in his Time Sheet.

         In July 2006, Sandowski's immediate supervisor, Doug Rolefson, noticed a discrepancy between TSA's sign-in sheet for July 14, 2006, which indicated that Sandowski had worked for 11.50 hours, and Sandowski's time and attendance sheet for that day, which claimed that he was entitled to 0.25 hours of overtime because he had worked for 11.75 hours. ECF No. 90-10, PageID # 666-67. Rolefson says that he reviewed the screeners' time sheets regularly, and that such errors were not uncommon. ECF No. 90-7, PageID # 579. In accordance with his usual practice, he asked Sandowski to correct his time sheet. Rolefson says that Sandowski refused. ECF No. 90-7, PageID # 579; ECF No. 90-17, PageID # 693-94. Rolefson therefore sent a memo to John Abbott, the payroll officer responsible for Sandowski, and Tadaki, Rolefson's immediate supervisor, explaining that Sandowski was claiming overtime that he was not entitled to and that he had refused to correct his time sheet. See ECF No. 90-7, PageID # 581; ECF No. 90-10, PageID # 665.

         Abbott and Tadaki both reviewed Sandowski's time sheets and concluded that Sandowski was not entitled to overtime. See ECF No. 90-8, PageID # 622, 636. Tadaki therefore asked Sandowski to correct his time sheet several times. ECF No. 90-8, PageID # 638. On one of those occasions, Sandowski asked him how to correct the time sheet; Tadaki says he explained the correct procedure and documented the discussion in contemporaneous notes. ECF No. 90-8, PageID # 638-39. Nevertheless, Sandowski did not correct his time sheet. ECF No. 90-8, PageID # 629, 638; ECF No. 90-17, PageID # 693-94. Sandowski claimed that he did not make any changes because Rolefson had not directed him to do so and because, even after he discussed the issue with Tadaki, he did not know how to make the corrections. ECF No. 90-5, PageID # 526.

         Sandowski also submitted time sheets for July 23, 2006, and August 4, 2006, which Abbott concluded were incorrect. ECF No. 90-8, PageID # 627-29. Rolefson asked Sandowski to correct his time sheet for July 23, 2006, but Sandowski allegedly refused. ECF No. 90-11, PageID # 671. Sandowski says that he did not correct the time sheet because Rolefson's calculations were incorrect and because Rolefson had not directed him to correct it. ECF No. 90-5, PageID # 527.

         2. Sandowski's Failure to Secure Sensitive Information.

         On August 10, 2006, Sandowski was verbally counseled for having failed to secure sensitive information. According to several different TSA employees, TSA agents were supposed to ensure that the drawers in the area they had worked in were locked before they finished a shift. ECF No. 90-7, PageID # 586-87, 598; ECF No. 90-17, PageID # 694. When Sandowski left his assigned station on August 10, however, he allegedly left a drawer containing sensitive material unlocked. ECF No. 90-17, PageID # 694. Another one of Sandowski's supervisors, Genoa Lopez, says she discovered the unlocked drawer when she performed a final check before leaving the premises. ECF No. 90-7, PageID # 600. Lopez reminded Sandowski and a second TSA officer who had been working at that station that they needed to ensure the drawers were locked before leaving their stations. ECF No. 90-7, PageID # 601. Lopez says that Sandowski blamed Lopez herself for having left the drawer unsecured. See ECF No. 90-13, PageID # 677.

         On multiple occasions, Sandowski has said that it was Lopez who unlocked the drawer in the first place. See ECF No. 90-5, PageID # 527; ECF No. 90-7, PageID # 551-53; ECF No. 90-18, PageID # 705. At other times, Sandowski has stated that the drawer was locked before he left. ECF No. 90-5, PageID # 527; ECF No. 90-18, PageID # 706.

         3. Sandowski Accuses his Supervisor of Assault.

         On August 11, 2006, Sandowski allegedly arrived at the TSA office two minutes late for a shift that was scheduled to begin at 5:45 p.m. ECF No. 90-14, PageID # 679; see also ECF No. 90-7, PageID # 556. Sandowski signed in at 5:45 p.m. ECF No. 90-14, PageID # 679. Although Sandowski claimed that he had arrived early and had been in the restroom, he admitted that he did not tell his supervisors that. ECF No. 90-7, PageID # 555-58. Lopez informed him that he needed to sign in at 5:47 p.m., when he actually arrived. ECF No. 90-14, PageID # 679. Sandowski left the office without responding, but returned a few minutes later. ECF No. 90-14, PageID # 679.

         Sandowski and his supervisors provided dramatically different accounts of what happened next. According to Sandowski, when he reentered the office, Rolefson and Lopez were “out of control” and were yelling at each other. ECF No. 90-5, PageID # 528. When Rolefson and Lopez noticed him, they allegedly began screaming at him because he had arrived late. ECF No. 90-5, PageID # 528-29. Sandowski also claimed that Lopez pushed him several times and prevented him from leaving the TSA office. ECF No. 90-5, PageID # 529.

         Rolefson and Lopez, on the other hand, both testified that when Sandowski returned to the office, they calmly asked him to change his sign-in time to 5:47 p.m. Sandowski allegedly became agitated, accused Rolefson and Lopez of harassment and discrimination, and attempted to call various TSA officials to complain. ECF No. 90-7, PageID # 592, 605; ECF No. 90-14, PageID # 679-80; ECF No. 90-15, PageID # 683-84. Rolefson and Lopez both denied that Lopez assaulted Sandowski or prevented him from leaving the TSA office. ECF No. 90-7, PageID # 592-95, 602-06; ECF No. 90-14, PageID # 679-80; ECF No. 90-15, PageID # 683-84.

         That evening, Sandowski called Rolefson and Lopez's superior, Tadaki, to report the incident. ECF No. 90-8, PageID # 640. Sandowski told Tadaki that Lopez had pushed him; he asked to stay home the next day. ECF No. 90-8, PageID # 640-41. According to Sandowski, Tadaki responded by telling him to stay home. ECF No. 90-5, PageID # 528. Sandowski maintains that, during their conversation, he was “led to believe” that he was being placed on administrative leave. ECF No. 90-5, PageID # 528. Tadaki, on the other hand, testified before a hearing officer that he directed Sandowski to go to work, but told Sandowski he would call Rolefson to find out what had happened. ECF No. 90-8, PageID # 641.

         When Tadaki called Rolefson, he received “a completely different version of what happened.” ECF No. 90-8, PageID # 641. Rolefson told Tadaki he had not seen Lopez push Sandowski. ECF No. 90-8, PageID # 641. Tadaki believed Rolefson. ECF No. 90-8, PageID # 643. He felt that Rolefson was a “real straight shooter” who would “tell [it] like it is.” ECF No. 90-8, PageID # 643.

         The next morning, at 9 a.m., Tadaki received another call from Sandowski. ECF No. 90-16, PageID # 687. Sandowski had apparently told Rolefson that he had Tadaki's permission to stay home from work, and Sandowksi repeated that conversation to Tadaki. ECF No. 90-16, PageID # 687. Tadaki told Sandowski that he had said no such thing. ECF No. 90-16, PageID # 687. Tadaki then told Sandowski that while he could not authorize administrative leave, “a vacation leave was appropriate.” ECF No. 90-16, PageID # 687.

         On August 15 and 16, 2006, Tadaki contacted six other individuals who had been working at the Lanai airport when Sandowski claimed that Lopez assaulted him. ECF No. 90-16, PageID # 688-89. None of those individuals could corroborate Sandowski's claims. ECF No. 90-16, PageID # 689. Five of those six individuals were not in the vicinity of the TSA offices when the incident allegedly occurred. See ECF No. 90-16, PageID # 689. The one possible exception, John Dela Cruz, told Tadaki that he was “within hearing distance” of the TSA office but “did not hear any altercation between the parties involved.” ECF No. 90-16, PageID # 689.

         4. Sandowski's Termination.

         After he finished his investigation, Tadaki decided to fire Sandowski. ECF No. 90-8, PageID # 643. Tadaki says that Sandowski was “very disruptive” and had “a problem with [his] attitude towards the supervisors.” ECF No. 90-8, PageID # 651-52. Tadaki also says he believed that Sandowski lacked credibility because his version of events had repeatedly been contradicted by other TSA employees. ECF No. 90-8, PageID # 651-52.

         On several occasions, Tadaki has stated that when he made the decision to terminate Sandowski, he did not know about Sandowski's prior employment discrimination complaint. For instance, Tadaki filed a sworn statement in response to questions submitted by an investigator from TSA's Office of Civil Rights and Liberties. One of those questions was “[a]re you aware of him having prior EEO activity (the filing of a previous complaint apart from the instant complaint)?” ECF No. 90-17, PageID # 692. Tadaki responded that he “did not know that [Sandowski] had prior EEO activity.” ECF No. 90-17, PageID # 692. Later, at a hearing before an administrative judge, TSA's attorney asked Tadaki whether he took Sandowski's “prior EEO activity” into account when he fired him. ECF No. 90-8, PageID # 653. Tadaki responded that he “didn't know about that.” ECF No. 90-8, PageID # 653.

         On August 30, 2006, Tadaki sent Sandowski official notice of his termination. ECF No. 90-9, PageID # 659. The notice cited seven bases for Tadaki's decision, and the court summarizes the allegations here:

1) Sandowski submitted an incorrect time sheet for July 14, 2006, and he disregarded an order to correct it.
2) Sandowski submitted an incorrect time sheet for July 23, 2006, and he disregarded an order to correct it.
3) On August 10, 2006, Sandowski failed to secure a drawer containing sensitive information, and when his supervisor reminded him to secure the area, he responded in an unprofessional manner.
4) On August 11, 2006, Sandowski reported for his 5:45 p.m. shift at 5:47 p.m. but signed in at 5:45 even though Lopez directed him to sign in at 5:47. When Rolefson also directed him to sign in at 5:47, Sandowski became irate and started yelling at his supervisors.
5) Sandowski submitted an incorrect time sheet for August 4, 2006, and he disregarded an order to correct it.
6) On August 12, 2006, Sandowski told Rolefson that Tadaki had placed him on administrative leave when Tadaki had ...

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