United States District Court, D. Hawaii
RICHARD J. SANDOWSKI, Plaintiff,
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
OKI MOLLWAY, UNITED STATES DISTRICT JUDGE
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,  which TSA falls under. Sandowski asserts
that TSA violated Title VII and various state laws.
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).
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.
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.
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
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.
Sandowski's First Administrative Complaint.
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.
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.
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.
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.
counselor attempted to resolve Sandowski's complaint
informally. 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. ECF No. 90-19, PageID # 714.
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.
Sandowski's Second Administrative Complaint.
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
Sandowski's Refusal to Correct Errors in his Time
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.
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.
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.
Sandowski's Failure to Secure Sensitive
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.
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.
Sandowski Accuses his Supervisor of Assault.
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.
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.
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.
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.
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 #
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
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.
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.
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.
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
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