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Lichauco v. Nielsen

United States District Court, N.D. Illinois, Eastern Division

February 26, 2018

KIRSTJEN NIELSEN, Secretary, United States Department of Homeland Security, [1] Defendant.



         Plaintiff Manuel M. Lichauco filed this employment discrimination suit against the Transportation Security Administration (“TSA”) alleging disparate treatment based on his race and national origin and retaliation for engaging in protected activity, i.e., filing Equal Employment Opportunity (“EEO”) complaints. The parties have consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). This matter is now before the Court on Defendant's Motion for Summary Judgment [Doc. No. 32]. For the reasons that follow, the motion is granted in part and denied in part as to a claim not contained in the Second Amended Complaint.


         Plaintiff is a transportation security officer employed by the TSA at O'Hare Airport. (LR 56.1(a)(3) ¶ 2.) He is an Asian of Filipino descent.[3] (LR 56.1(b)(3)(C) ¶ 1.) Plaintiff was originally hired by the TSA in 2004 and worked as a transportation security officer, with the duty of screening passengers, from 2004-2008. He was then promoted to be a Master Coordination Center Officer (“MCCO”), whose duties were to collect information about ongoing incidents at O'Hare and to report this information to TSA leadership. (LR 56.1(a)(3) ¶ 3; LR 56.1(b)(3)(C) ¶ 1.)

         The coordination center plays a vital role in incident communications at O'Hare and is involved in all incidents pertaining to security operations. The coordination center is responsible for coordinating response activities by numerous agencies, including the FBI, DEA, CBP, and CPD, as well as by TSA employees, airlines, and TSA headquarters. TSA officers in the coordination center must be concise, factual, and clear when they convey information to other entities. (LR 56.1(a)(3) ¶ 32.) At some point shortly before 2014, Plaintiff's position in the coordination center required more work and report writing than it had previously. (Id. ¶ 52.) The TSA provided Plaintiff with classes to assist him in improving his English speaking and writing, including online and in person off-site classes paid for by the TSA. (Id. ¶ 31.) Plaintiff disagreed that he had any issues with his speech. (LR 56.1(b)(3)(B) ¶ 31.) Starting in 2013, Plaintiff received increased criticism and discipline for his work, and he filed EEO complaints in February 2014 and December 2014 claiming that the criticism and other instances of alleged workplace harassment were discriminatory.

         In February 2014, Plaintiff made an administrative EEO complaint, [4] which the TSA accepted for investigation, raising four issues: (1) on October 30, 2013, the Supervisory Coordination Center Officer (“SCCO”) Loren Becht issued Plaintiff a Letter of Guidance (“LOG”); (2) on the same day, SCCO Becht gave Plaintiff a performance review that was less favorable than the prior year's; (3) on November 2, 2013, a Master CCO (“MCCO2”) mocked Plaintiff's accent, and when Plaintiff reported the incident to the SCCO, he responded, “So, what do you want me to do?”; and (4) on November 4, 2013, the same MCCO2 called Plaintiff obnoxious. (Id. ¶ 5.)

         The second EEO complaint, made in December 2014, raised six additional issues, and two more issues were added after Plaintiff's April 29, 2015 written request to do so. The eight total issues are as follows: (1) on or around October 3, 2014, management denied Plaintiff seniority ranking during the vacation leave bid process; (2) on or around October 3, 2014, management denied Plaintiff's request for vacation leave from February 14, 2015 to February 18, 2015; (3) on or around October 14, 2014, the Coordination Center Manager (“CCM”) lowered Plaintiff's 2014 performance rating from 4.1 to 3.3; (4) on November 5, 2014, the SCCO issued Plaintiff a LOG for typographical and grammatical errors in Plaintiff's correspondence; (5) on November 24, 2014, the CCM yelled at Plaintiff, telling him to “get the hell out of my office”; (6) on or around December 17, 2014, the SCCO issued Plaintiff a Notification of Unacceptable Performance and assigned him to a Performance Improvement Period (“PIP”); (7) on January 29, 2015, management extended the December 17 PIP an additional 90 days; and (8) on April 29, 2015, management issued Plaintiff a Notice of Proposed Removal. (Id. ¶ 6.) Each of the issues raised in the two EEO complaints will be discussed more fully in turn.

         The October 30, 2013 LOG was issued as a result of Plaintiff improperly responding to a request to update a significant activity report (“SAR”) with a particular flight's departure time. The LOG states that is was “not a formal disciplinary action.” (Id. ¶¶ 7-8.) In his response to Defendant's Statement of Facts, Plaintiff argues that the mistake did not warrant a LOG, because other officers made the same error, and he was not properly trained. (LR 56.1(b)(3)(B) ¶ 7.) The response does not dispute that the mistake was made. (See also LR 56.1(a)(3) ¶ 9.) According to Plaintiff, his error was caused by a lack of policy guidance and being given improper information by another employee, Paul Roland. (LR 56.1(b)(3)(C) ¶ 4.) Plaintiff alleges the LOG was discriminatory because he is the only Filipino MCCO, Brecht is German, and Roland is African-American. (Id. ¶ 5.) Plaintiff also believes the LOG was issued because Brecht and Lucas did not like his Filipino accent and his prior EEO complaints against them. (Id. ¶ 7.)

         Plaintiff's October 30, 2013 overall performance review rating was 4.1 out of 5 for the year, which “exceeds expectations.” (LR 56.1(a)(3) ¶¶ 10-11.) His 3.0 rating in the category Communications and Customer Service declined from the previous rating period, but the overall rating was higher than the 4.0 he received the year before. (Id. ¶¶ 10-11; LR 56.1(b)(3)(B) ¶ 10.) Plaintiff claims his lowered performance rating could affect bonuses and pay increases. (LR 56.1(b)(3)(C) ¶ 6.)

         In the November 2, 2013 incident, two of Plaintiff's coworkers, including Devon DeJesus, were sitting behind him and talking. DeJesus called Plaintiff's name, and when he turned around, she made fun of his accent and the way he pronounced a particular word. (LR 56.1(a)(3) ¶ 12; LR 56.1(b)(3)(B) ¶ 12.) Becht, the SCCO, did not personally witness the incident but heard a commotion and walked into the coordination center office where Plaintiff and DeJesus were present. The parties dispute whether DeJesus apologized to Plaintiff. (LR 56.1(a)(3) ¶ 13; LR 56.1(b)(3)(B) ¶ 13.) After discussing the incident with Plaintiff further, Becht told him “What do you want me to do?” Plaintiff then became upset and got CDM Ralph Schumacher[5] from his office to assist; Schumacher said nothing and left. (LR 56.1(a)(3) ¶¶ 13-14; LR 56.1(b)(3)(B) ¶¶ 13-14.) Two days later, DeJesus asked Plaintiff to help her with an incident report. Plaintiff refused, saying, “No, I am doing the ham radio.” Plaintiff went to the bathroom twice, and when he went the second time, DeJesus stated, “Manny, you're obnoxious.” (LR 56.1(a)(3) ¶ 15.) According to Plaintiff, DeJesus has called him obnoxious many times, but no one who has witnessed it has ever stopped her. (LR 56.1(b)(3)(B) ¶ 15.) Plaintiff did admit, however, that DeJesus did not harass him after the November 2, 2013 incident. (LR 56.1(a) ¶ 8.)

         Plaintiff's next round of complaints began in October 2014, when he did not receive his first choice of vacation time. (LR 56.1(a)(3) ¶ 16.) Plaintiff requested leave from February 14 through February 18, 2015 but was granted leave only on February 14. (LR 56.1(b)(3)(C) ¶ 9.) Plaintiff was told by Lucas that seniority for purposes of vacation preference was calculated using “entry-on-duty” dates, i.e., the date that employees started in their current position in the coordination center, which in Plaintiff's case was 2008. Plaintiff disagreed, believing that the correct seniority calculation should use the start date of TSA employment, which for Plaintiff was 2004. (LR 56.1(a)(3) ¶ 16; LR 56.1(b)(3)(B) ¶ 16.) This method was in contrast to that for shift bids, which calculated seniority by start date. (LR 56.1(a)(3) ¶ 18.) Lucas told Plaintiff that he could do what he wanted because he was a policy maker. (LR 56.1(b)(3)(C) ¶ 9.)

         While Plaintiff's statement of facts is not entirely clear, it appears that Plaintiff believes that the entry-on-duty date applied only to traditional leave requests and not the bid process, and Lucas was in violation of TSA policy. (LR 56.1(b)(3)(C) ¶ 9; LR 56.1(b)(3)(B) ¶¶ 16-18.) Lucas testified that in 2014, the same seniority calculation was used for all employees, and he met with Plaintiff several times to explain seniority calculation for scheduling leave. (LR 56.1(a)(3) ¶¶ 17-18.) Lucas also asked Administrative Officer Melvin Erdman to explain the seniority rules to Plaintiff. Erdman later wrote Plaintiff an email explaining that his seniority had been correctly calculated, and he was treated the same as other employees. (Id. ¶ 19.) On November 24, 2014, Plaintiff requested leave on February 14 through 18. Defendant does not dispute Plaintiff's account that Lucas yelled, “Get the hell out of my office and do not come back about seniority or requesting your vacation!” (Id. ¶ 20.) Lucas then followed Plaintiff out of his office and continued to yell at him in front of other employees. (LR 56.1(b)(3)(C) ¶ 12.)

         Plaintiff's October 2014 performance review was lower than his 2013 evaluation, with a rating of 3.36, or “achieved expectations.” (LR 56.1(a)(3) ¶ 22.) SCCO Becht testified that Plaintiff needed to improve his ability to acquire and communicate relevant information; that his written work contained mistakes; and that although he spoke to Plaintiff about his writing on multiple occasions, he continued to make the same mistakes and became upset when Becht spoke to him about improving his writing skills. (Id. ¶ 22.) Plaintiff disagreed with the evaluation and asked why his performance ratings decreased so fast in a two-year period. He claims that Becht laughed at this, and Plaintiff refused to sign his performance review. (LR 56.1(b)(3)(B) ¶ 22.) Plaintiff believes that his decreased performance review was the result of his race and accent. (LR 56.1(b)(3)(C) ¶ 10.)

         The November 2014 LOG issued by SCCO Becht gave examples of six mistakes that Plaintiff allegedly made between October 1 and November 2, 2014. (LR 56.1(a)(3) ¶ 23.) Plaintiff disagreed with Becht's findings and analysis and did not sign this LOG. (LR 56.1(b)(3)(B) ¶ 23.) Plaintiff contends that the LOG was issued solely for typographical or grammatical errors, and other MCCOs did not receive LOGs for such errors. (LR 56.1(b)(3)(C) ¶ 11.)

         On December 17, 2014, Becht issued to Plaintiff a written notification of unacceptable performance in multitasking, decisionmaking, and communications, and establishing a ninety-day PIP during which Plaintiff was expected to improve his performance. (LR 56.1(a)(3) ¶ 24.) According to Plaintiff, the work examples leading to the PIP were misrepresented, and during the PIP Becht never met with him or gave him suggestions to improve his skills. (LR 56.1(b)(3)(C) ¶¶ 13, 15; LR 56.1(b)(3)(B) ¶¶ 24, 26.) On January 29, 2015, the second shift supervisor, Michael Mongoven, notified Plaintiff that his performance remained unacceptable, and he extended the PIP for an additional ninety days. (LR 56.1(a)(3) ¶ 25.) Plaintiff testified that Mongoven stated that Lucas told him to micromanage Plaintiff. (LR 56.1(b)(3)(C) ¶ 14.)

         Plaintiff's manager, Lucas, issued to Plaintiff a Notice of Proposed Removal on April 29, 2015. (LR 56.1(a)(3) ¶ 26.) The notice gave examples of instances during the PIP in which Lucas determined that Plaintiff had failed to meet the critical elements of core competencies in his performance plan, namely multitasking, decisionmaking, and communications. (Id. ¶ 26; LR 56.1(b)(3)(C) ¶ 16.) Plaintiff provided a written response dated June 3, 2015. (LR 56.1(a)(3) ¶ 26.) Plaintiff complains that the notice listed sixteen dates on which Becht and Mongoven reviewed his performance and provided feedback to him, but that no PIP meetings took place on those or any other dates. (LR 56.1(b)(3)(C) ¶ 15; LR 56.1(b)(3)(B) ¶ 26.)

         The deciding official with respect to the Notice of Proposed Removal was Peter Adamson, the Assistant Federal Security Director at O'Hare. He had no direct supervision or oversight of the coordination center and had not been involved in any events leading up to Plaintiff's proposed removal. (LR 56.1(a)(3) ¶ 27.) On June 18, 2015, Adamson issued a decision letter in which he explained that he had considered the Notice, Plaintiff's response, and all of the evidence of record, and he declined to implement the proposed removal. Adamson instead demoted Plaintiff from his position in the coordination center to his prior position as a transportation security officer screening passengers. (Id. ΒΆΒΆ 28-29.) Adamson's decision letter concluded that Plaintiff had made numerous errors in ...

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