Fired TSA worker cannot move forward with discrimination claim, judge rules

By Jon Campisi | Feb 17, 2012

A federal judge in Philadelphia has dismissed a complaint that had been brought forth by a fired security screener at Philadelphia International Airport who contended he should have been allowed to sue the Transportation Security Administration despite acknowledgments that his claim was not initiated in a timely manner.

Peter P. Wong had filed suit against Janet Napolitano, secretary of the U.S. Department of Homeland Security, which oversees the TSA, in early May 2011.

Wong, who was hired by the TSA in 2002 as a supervisory security transportation officer at Philadelphia International, was fired in the summer of 2008 for allegedly falsifying time and attendance records, according to court papers.

Wong initially appealed his firing to a TSA review board but did not raise a discrimination claim because the board did not permit him to do so as a defense to his removal.

In early March 2009, Wong received notice from the board that his termination was being upheld and he had no further right to appeal.

In the summer of 2009, however, Wong was told by a union official that he could appeal the firing to the Merit Systems Protection Board, which Wong did on Sept. 1, 2009.

In his appeal, Wong argued that he was fired on the basis of race, color and national origin.

The MSPB appeal was dismissed, however, because that board lacks jurisdiction over claims brought by screener personnel.

Wong then filed a complaint with the U.S. Equal Employment Opportunity Commission, but the complaint was dismissed on Aug. 10, 2010, because, the EEOC stated, Wong had failed to make the complaint within 45 days of his firing.

In its denial, the EEOC noted that Wong had on four occasions taken a civil rights training course with the TSA that instructed employees on the timeliness requirement.

On Feb. 14, U.S. District Judge Mitchell S. Goldberg agreed with the defendant, granting Napolitano’s motion to dismiss the civil action against the government.

Goldberg granted the motion on the grounds that Wong failed to state a claim upon which relief can be granted.

In his ruling, Goldberg also agreed with the defendant that Wong’s failure to contact the EEOC within the required 45-day timeframe constituted a failure on his part to exhaust his administrative remedies.

“Plaintiff does not claim that extraordinary circumstances prevented him from timely bringing his discrimination claim or that he ‘mistakenly’ brought his claim in the wrong forum,” the judge wrote.

The judge also determined that the TSA did not actively mislead Wong by failing to “inform him of an avenue of relief to which he had no right.”

Wong had argued that the TSA failed to notify him of the MSPB review process, but Goldberg wrote that the “MSPB is not an avenue of relief to which Plaintiff had a right to pursue because the MSPB lacks jurisdiction over claims brought by TSA screening personnel.”

Goldberg also wrote that Wong never alleged that he lacked knowledge that he was obligated to contact an EEOC counselor within 45 days of being terminated.

“Notably, his complaint references and does not refute the EEOC’s finding that he learned of the 45-day time limit through training courses he attended while employed by the TSA,” the judge’s ruling states.

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