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Funk v. Chertoff

January 16, 2007

PERNILLE FUNK, PLAINTIFF,
v.
MICHAEL CHERTOFF, SECRETARY OF THE DEPARTMENT OF HOMELAND SECURITY, DEFENDANT.



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

HONORABLE JOSEPH E. IRENAS

OPINION

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

I.

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 ...


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