Nicholas Malfitano Feb. 5, 2016, 11:25am


PHILADELPHIA – A federal court has dismissed a civil lawsuit’s retaliation claim brought by a Transportation Security Agency agent against the U.S. Department of Homeland Security.

On Monday, Judge Gerald J. Pappert dismissed a retaliation claim from a suit initiated by James A. Lenahan versus DHS Secretary Jeh Johnson, for violations of Title VII of the Civil Rights Act of 1964.

Lenahan works for the TSA at the Philadelphia International Airport. On Feb. 25, 2008, William Myers, then Deputy Assistant Federal Security Director for Screening with the TSA, conducted an “unannounced pre-decision discipline discussion” with Lenahan concerning “misrepresentation on official government documents resulting in significant government loss.”

The following day, Myers issued a memo to all TSA security personnel stating Lenahan was placed on administrative leave with pay as a result of his alleged failure to record employee leave requests. On April 14, 2008, Lenahan was demoted to a non-supervisory role.

Lenahan filed a pair of formal complaints with the Equal Employment Opportunity Commission (EEOC) on May 12, 2008 and July 7, 2008, alleging discrimination based on his race (Caucasian); racial harassment; and retaliation. These complaints were later consolidated and brought before an Administrative Law Judge on Jan. 9, 2013.

During the hearing, Myers and Donna Rachuba, TSA’s Regional Employee Relations Specialist, testified Lenahan failed to record a number of employee leave requests, resulting in employees not being charged for leave taken. The ALJ issued a bench decision on Jan. 11, 2013, finding for the TSA on all claims.

Three months later, Lenahan filed a complaint alleging Myers and Rachuba had retaliated against him by providing false testimony at his administrative hearing – testimony he felt was “outright false” and “lacking in any documentary support.”

The EEOC dismissed Lenahan’s complaint, pursuant to a statute which prevents a party from filing a formal complaint that merely expresses dissatisfaction with the handling of prior complaints. Lenahan appealed, and the EEOC Office of Federal Operations affirmed the decision on March 5, 2014. Lenahan sought reconsideration, and the EEOC issued a final agency decision dismissing his complaint on Nov. 14, 2014.

Lenahan filed an amended complaint in District Court on April 17 alleging both employment discrimination and retaliation under Title VII, and Johnson moved to dismiss the suit for failure to state a claim upon which relief can be granted on Aug. 24.

Pappert explained there was no precedent for bringing Title VII retaliation claims for alleged perjury.

“The Court is unaware of any cases finding that Title VII provides a remedy for alleged perjury in an administrative hearing,” Pappert said. “Indeed, Lenahan’s counsel has unsuccessfully pursued this exact claim in at least two other cases within our Circuit.” (Pappert referred to Mamman v. Chao and Mills v. Holder).

“On both occasions, the Court made it abundantly clear that such claims are simply not viable under Title VII. Lenahan’s counsel, however, remains undeterred,” Pappert stated.

“As in Mamman and Mills, the Court finds no legal basis supporting a Title VII retaliation claim under these circumstances. Count II of Lenahan’s amended complaint is accordingly dismissed,” Pappert said.

The plaintiff is represented by Dennis L. Friedman of the Law Offices of Dennis L. Friedman, in Philadelphia.

The defendant is represented by Susan R. Becker and Richard M. Bernstein of the U.S. Attorney’s Office, also in Philadelphia.

U.S. District Court for the Eastern District of Pennsylvania case 2:15-cv-00763

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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