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Funk v. Chertoff


January 16, 2007


The opinion of the court was delivered by: Irenas, Senior District Judge



This is a hostile work environment suit filed by Pernille Funk, a female United States Federal Air Marshal, against her employer, Transportation Security Administration ("TSA").*fn1 Funk asserts that her male co-workers harassed her on account of her gender, creating a hostile work environment, in violation of Title VII, 42 U.S.C. § 2000e-16.*fn2 The government moves for summary judgment.*fn3


Funk is a Federal Air Marshal ("FAM") Firearms Instructor assigned to the FAM Training Center in Pomona, New Jersey. Her primary duty is training FAM students. She is, and was during the relevant time period, the only female instructor permanently assigned to the Pomona training center.

Funk alleges that between late 2002 and the summer of 2004, she was targeted for harassment by two of her male FAM instructor co-workers, FAM Mark Royer and FAM Serge Potapov.*fn4 Funk asserts that both Royer and Potapov told her in late 2002 that "women don't belong here." She does not elaborate on where or under what circumstances the statement was made.

In August, 2003, Funk alleges that when she encountered Potapov outside the pistol range, Potapov raised his hands pretending that he had a gun and simulated shooting her head off. Funk concludes that Potapov made the gesture because a week earlier Funk had "attempted to assist" an unidentified female trainee who was allegedly being "harassed" by Royer and Potapov. (Funk Aff. at 18).*fn5

Funk complains of several incidents occurring in June and July, 2004. First, trainees under Funk's supervision used "duty ammunition," rather than the "practice ammunition" they were supposed to use, during a firearms training session. Funk asserts that Royer and Potapov, in an attempt to demean and embarrass her in front of trainees yelled at her: "The EPA says you are responsible for paying $10,000 per round fired."

Second, during a "Defensive Measures" sparring session,*fn6 Potapov, who was Funk's sparring partner, kicked her (although Funk admits that the kick was not hard) and then stated to everyone watching, "and then you can do this" whereupon Potapov allegedly put his fingers through Funk's hair and pulled out her ponytail, messing up her hair.

Third, during another sparring session, Funk was paired with Royer. She asserts Royer, who was 6 feet, one inch tall and 220 pounds, hit her with all his strength despite her being only 5 feet, five inches tall and 120 pounds. The sparring partners were told beforehand to only use 50% force and Royer was immediately reprimanded by an instructor for using too much force.

Funk also believes that Royer persuaded Funk's training instructor to test her in scenarios that were more complex and difficult than scenarios given to others.*fn7

During another training session while Funk was running faster than another male FAM, Potapov allegedly yelled to the male runner, "You're not going to let a girl beat you, are you?"

Lastly, when Funk successfully completed her "Phase II Training," Potapov allegedly passed Funk in the hallway and asked, "Do they still allow girls in here?"

Sometime during July, 2004, Funk complained to her supervisor, Joseph D'Angelillio, Deputy Special Agent-in-Charge, about Royer and Potapov, describing the incidents above, as well as complaining about how Royer and Potapov treated other female students. (Def's Ex. 1, tabs 9, 21, and 22) D'Angelillo told her that he would "look into it." (Id.) He also suggested that she write down her allegations and consider pursuing an EEO complaint. (Id.)

In late July, in response to D'Angelillo's suggestion, Funk returned to D'Angelillo's office with a written report of her allegations. (Id.) In the interim, D'Angelillo had contacted the FAM EEO Coordinator at FAM headquarters to obtain information about filing a formal EEO complaint but had not heard back from headquarters. (Id.) D'Angelillo took Funk's written report and immediately forwarded it to Gary McDermott, the Deputy Assistant Director, Office of Training and Development, who forwarded the allegations to the FAM EEO Coordinator at headquarters by July 28, 2004. (Id.)

On August 8, 2004, Funk signed a "Request to Mediate" her dispute, which was given to her by an EEO Counselor for the Department of Homeland Security, Kimberly O'Brine. (Def's Ex. 1, tab 4) In accordance with the DOH's Alternative Dispute Resolution Program,*fn8 a four-hour mediation session was conducted on September 3, 2004, but no settlement was reached. (Def's Ex. 1, tab 5)

Before the mediation, two supervisors from TSA headquarters conducted a three-day fact finding investigation into Funk's allegations, (Def's Ex. 1, tab 22), although it is unclear from the record what that investigation entailed.

After mediation failed, Funk filed a formal EEO complaint on September 25, 2004. An investigation was conducted from October 26, 2004, to December 31, 2004. The EEO investigator, Hal Stein, took sworn statements from Funk, Royer, Potapov, D'Angelillio, and ten other FAMs. During the first days of January, 2005, Investigator Stein submitted to TSA a formal Report of Investigation, totaling 279 pages (including exhibits). The Report, however, did not conclude whether or not Funk had been the victim of a hostile work environment on account of her sex.

By letters dated March 30, 2005, Royer and Potapov were notified that they would be suspended for "Unprofessional Conduct."*fn9 The letter to Royer stated the reason for his suspension:

While detailed to your position as a training instructor at the FAM Training Center, ACY, you conducted yourself in an unprofessional manner and created a hostile work environment for fellow instructors. Specifically, you did so by verbally and physically intimidating them. Upon further investigation of the initial allegations it has been determined that you made verbally disparaging statements regarding a female instructor. Furthermore, as a result of the same investigation it has been determined that excessive force during a subsequent training exercise was also used against the same female instructor.

(Def's Ex. 4) Royer was suspended from his position from April 10, 2005 to April 15, 2005.

The letter to Potapov stated the reason for his suspension: While detailed to your position as a training instructor at the FAM Training Center, ACY, you conducted yourself in an unprofessional manner and created a hostile work environment for fellow instructors. Specifically, you did so by engaging in discreet and unobtrusive behaviors intended to demean and diminsh a female instructor.

(Def's Ex. 5) Potapov was suspended from his position from April 10, 2005 to April 11, 2005.*fn10


"[S]ummary judgment is proper 'if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed. R. Civ. P. 56(c)). In deciding a motion for summary judgment, the Court must construe the facts and inferences in a light most favorable to the non-moving party. Pollock v. Am. Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986). "'With respect to an issue on which the non-moving party bears the burden of proof, the burden on the moving party may be discharged by 'showing'-- that is, pointing out to the district court -- that there is an absence of evidence to support the nonmoving party's case.'" Conoshenti v. Public Serv. Elec. & Gas, 364 F.3d 135, 145-46 (3d Cir. 2004) (quoting Celotex). The role of the Court is not "to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).


Funk asserts that the conduct of Royer and Potapov created a hostile work environment, violating her rights under Title VII.

Title VII of the Civil Rights Act of 1964 prohibits workplace discrimination because of an individual's sex, see 42 U.S.C. § 2000e-2(a)(1). An employer will be liable for hostile work environment sexual harassment when a plaintiff proves that:

(1) she suffered intentional discrimination because of her sex; (2) the discrimination was pervasive and regular; (3) the discrimination detrimentally affected her; (4) the discrimination would have detrimentally affected a reasonable person of the same sex, in like position; and (5) a basis for respondeat superior liability. Kunin v. Sears Roebuck Co., 175 F.3d 289, 293 (3d Cir. 1999) (citing Andrews v. City of Phila., 895 F.2d 1469, 1482 (3d Cir. 1990)).

The government moves for summary judgment asserting that as a matter of law, the alleged conduct is not actionable under Title VII because it is not sufficiently severe or pervasive to alter the conditions of the plaintiff's employment and create an abusive working environment. See Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986). Additionally, the government argues that there can be no respondeat superior liability because TSA took prompt remedial action in response to Funk's complaint to D'Angelillio. Because the Court holds that there is no respondeat superior liability, the government's first argument need not be addressed. See Knabe v. The Boury Corp., 114 F.3d 407, 410 (3d Cir. 1997) ("Even if a work environment is found to be hostile, a plaintiff must also show that the conduct creating the hostile work environment should be imputed to the employer.").

"An employer is liable for an employee's behavior under a negligence theory of agency 'if a plaintiff proves that management-level employees had actual or constructive knowledge about the existence of a sexually hostile work environment and failed to take prompt and adequate remedial action.'" Knabe, 114 F.3d at 411 (quoting Andrews, 895 F.2d at 1486).*fn11 The issue in this case is whether the remedial action taken by TSA was adequate.*fn12 Funk must demonstrate that a material issue of fact exists as to whether the action taken was "reasonably calculated to prevent further harassment." Id. at 412. Notably, a remedial measure may be reasonably calculated to prevent further harassment even if it is not effective in preventing subsequent harassment. Jensen v. Potter, 435 F.3d 444, 453 (3d Cir. 2006).*fn13

Viewing the undisputed evidence in the light most favorable to Funk, a reasonable jury could not conclude that TSA's formal suspension of FMAs Royer and Potapov was not reasonably calculated to prevent further harassment of Funk. TSA undertook an investigation of Funk's complaints, and as a result, both Royer and Potapov were notified in writing about their improper behavior and suspended from their positions. The message from TSA to the offending employees was clear:

You have an obligation to act responsibly and your actions in this instance did not meet that obligation. As such . . . the proposed penalty is necessary to impress upon you the seriousness of this misconduct and the need for you to conduct yourself in a professional manner.

(Def's Exs. 4, 5)

Third Circuit precedent demonstrates the adequacy of this response as a matter of law. In Knabe, a female waitress complained to management about a male co-worker who had touched her in a sexual way at least a dozen times and made overtly sexual comments to her during three separate incidents. 114 F.3d at 408. Management did not formally reprimand the offending employee, but a manager met with him to remind him that "'the company does not tolerate any sexual comments or actions,'" and warn him that "'company violations of this policy will receive a possible suspension and or termination.'" Id. at 409. A record of the conversation was signed by the manager and the employee the next day.

The Third Circuit, affirming the district court's grant of summary judgment to the employer, explained that management's remedial action was adequate as a matter of law because management "made [the offending employee] aware of his responsibilities." Knabe, 114 F.3d at 413. Moreover, the Court noted, Knabe had put forth no evidence that if she had returned to work after the warning was given, that she would have faced further harassment. Id.

The same conclusion is compelled in this case. A reasonable fact finder could only reach the conclusion that TSA's formal letter and suspension spelled-out-- in both word and deed-- what Royer's and Potapov's responsibilities were. Not only were the offending employees warned as in Knabe, they were also disciplined. Cf. Knabe, 114 F.3d at 414 ("taking punitive action against the harassing employee, e.g., reprimand, suspension or dismissal, is not necessary to insulate the employer from liability for a hostile work environment. So long as the remedy is reasonably calculated to prevent future instances of harassment, the company cannot be held liable.").

Additionally, even though the Court does not conclude that Royer's and Potapov's transfers to Philadelphia resulted from Funk's complaints, it is nonetheless important to note that Royer and Potapov were in fact transferred. Whether or not the transfers had anything to do with the alleged harassment, the physical separation of Royer and Potapov from Funk had the effective result of preventing further harassment. As a practical matter, because the men were transferred even before they were suspended, Funk can present no evidence to demonstrate that the harassment continued after the discipline, i.e. that the suspensions were not adequate.

Accordingly, the Court holds that the government is not liable under a theory of respondeat superior.


For the foregoing reasons, the Court will grant Defendant's Motion for Summary Judgment. An appropriate order will be issued.

Joseph E. Irenas, S.U.S.D.J.

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