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Broshears v. Johnson

United States District Court, E.D. Kentucky, Northern Division, Covington

January 13, 2015

SCOTT BROSHEARS, Plaintiff,
v.
JEH JOHNSON, Secretary, Department of Homeland Security, Defendant.

MEMORANDUM OPINION AND ORDER

WILLIAM O. BERTELSMAN, District Judge.

This is an action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17. Plaintiff Scott Broshears alleges that his supervisor at the Transportation Security Administration ("TSA") discriminated against him based on his gender and retaliated against him for protected activity when he was terminated from his job as a Supervisory Transportation Security Screener at Cincinnati/Northern Kentucky International Airport in May of 2003. Plaintiff now seeks damages, a permanent injunction, and attorney's fees. (Doc. 1, Complaint, at 3-6.)

This case is before the Court on a motion for summary judgment filed by Defendant Jeh Johnson, the Secretary of the Department of Homeland Security ("DHS"). (Doc. 68.) The Court previously heard oral argument on this motion on January 8, 2015, after which it took the motion under advisement. Court reporter Lisa Wiesman recorded the proceedings.

The Court now issues the following Memorandum Opinion and Order. For the reasons stated herein, the Court grants Defendant's motion for summary judgment.

I. FACTS AND PROCEDURAL HISTORY

Plaintiff, a male, began working for TSA on September 1, 2002. (Doc. 71, Broshears Depo., at 5; Doc. 71-17, Report of Investigation, at 12.) He was employed as a Supervisory Transportation Security Screener, and his duty station was Cincinnati/Northern Kentucky International Airport. (Doc. 71-12, ROI, at 11.)

TSA terminated Plaintiff's employment in May of 2003 as part of a nationwide reduction in force at overstaffed airports.[1] (Doc. 71-12, ROI, at 11.) Plaintiff received notification of his impending termination on his last day of work, May 23, 2003, and he was officially separated from TSA on May 30, 2003. (Doc. 71, Broshears Depo., at 10.)

Plaintiff alleges that his second-line supervisor, Assistant Federal Security Director for Screening Carole Helfand, improperly selected him for termination as part of the reduction in force because of his gender and in retaliation for his refusal to falsify documents for other employees' personnel files. (Doc. 1, Complaint, at 3-6.) Secretary Johnson denies these allegations and states that the decision to terminate Plaintiff's employment was made by TSA's Competency Based Reduction Team in Arlington, VA based on information supplied by Helfand and Federal Security Director Terry Burgess. (Doc. 71-14, ROI, at 1, 13.) Defendant asserts that the specific information that led to Plaintiff's separation from TSA was his history of corrective and disciplinary action, including "two letters of counseling, one letter of warning/reprimand, and two other' letters for exceeding authority/procedure." (Doc. 71-18, Final Agency Decision, at 1.)

Following TSA's termination of his employment on May 30, 2003, Plaintiff did not begin the equal employment opportunity ("EEO")[2] administrative process immediately. Plaintiff first contacted an EEO Counselor to complain that his termination was illegally discriminatory on June 21, 2005, more than two years later. (Doc. 71, Broshears Depo., at 10.)

In his EEO complaint, Plaintiff listed only his religion and his gender as bases for the alleged discrimination. (Doc. 71-12, ROI, at 3.) Importantly, Plaintiff never alleged in the EEO administrative process that his termination was in retaliation for protected activity, ( see id. ), despite the fact that TSA gave Plaintiff the opportunity to clarify his allegations if he so chose, ( id. at 13; see also Doc. 69-8, Reese Decl., at ¶ 8).

On June 29, 2010, the Department of Homeland Security issued its final agency decision, concluding that "a finding of no discrimination is appropriate" in response to Plaintiff's allegations. (Doc. 71-17, FAD, at 15; Doc. 71-18, FAD, at 1-3).

Plaintiff filed suit in this Court alleging discrimination on the basis of his gender and retaliation for protected activity on August 20, 2012. (Doc. 1, Complaint, at 1.) Secretary Johnson moved for summary judgment on September 15, 2014. (Doc. 68.)

II. ANALYSIS

In order to survive a motion for summary judgment, Plaintiff must identify a genuine dispute of material fact for trial. Fed.R.Civ.P. 56. Because Plaintiff has not identified a genuine dispute of material fact as to whether he administratively exhausted his retaliation and ...


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