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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Baltimore Division
MARK A. LIVINGSTON
6409 Sewells Orchard Drive
Columbia, MD 21045

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Plaintiff,
v.
JEH C. JOHNSON
Secretary of the U.S. Department of
Homeland Security
245 Murray Lane, SW
Washington, DC 20528-0075
Defendant.

Case No. 1:16-cv-482
JURY TRIAL DEMANDED

COMPLAINT
I.

PRELIMINARY STATEMENT
1.

This is an action by Mark A. Livingston (“Mr. Livingston” or “Plaintiff”), who

was employed by the Transportation Security Administration (“TSA”) of the United States
Department of Homeland Security (“DHS,” “Agency,” or “Defendant”) as TSA’s Deputy
Assistant Administrator for Intelligence and Analysis, until he was removed from his position,
demoted, and reassigned for opposing unlawful discrimination against women.
2.

This case seeks redress for Defendant’s retaliation and discrimination against Mr.

Livingston. It arises under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
§2000e-16 and Section 501 of the Rehabilitation Act of 1973, as amended, 29. U.S.C. §791, and
seeks: a) declaratory and injunctive relief; b) reinstatement of Mr. Livingston to his position; c)
correction of his personnel records to include rescission of his removal from the Transportation
Senior Executive Service (TSES); d) compensatory damages; e) attorney’s fees and costs; and f)

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such further relief to which the Court deems just and proper or to which Mr. Livingston is
entitled.
II.

JURISDICTION AND VENUE
3.

The Court has jurisdiction over this action pursuant to Title VII of the Civil

Rights Act of 1964, as amended, 42 U.S.C. § 2000e et. seq.; Section 505 of the Rehabilitation
Act of 1973, as amended, 29 U.S.C. § 794a; and 28 U.S.C. § 1331.
4.

Jurisdiction is proper because Plaintiff has exhausted his administrative remedies.

5.

Venue lies in this Court pursuant to 28 U.S.C. § 1391 because a substantial

number of the unlawful employment practices alleged in this action took place within this
District at the Transportation Security Administration (TSA) Offices in Annapolis Junction,
Maryland, where Plaintiff shared an office with his former supervisor, then-Assistant
Administrator for Intelligence and Analysis Stephen Sadler.
III.

THE PARTIES
6.

Plaintiff has been employed continuously since April 2013 at TSA, an operating

administration within the United States Department of Homeland Security.
7.

Defendant Jeh C. Johnson is presently the Secretary of the United States

Department of Homeland Security.
IV.

ADMINISTRATIVE PREREQUISITES
8.

Mr. Livingston has complied with all of the administrative prerequisites necessary

to bring this action.
9.

On December 11, 2014, Mr. Livingston timely filed a formal complaint of

discrimination with the Agency.

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10.

Plaintiff has received no final agency decision on his formal complaint although

more than one hundred eighty (180) days have elapsed since Plaintiff filed his formal complaint.
11.

Mr. Livingston is therefore entitled to file his Complaint before this Court. See 42

U.S.C. § 2000e-16(c), 29 U.S.C. § 794a, and 29 C.F.R. 1614.407(a).
V.

FACTS CENTRAL TO PLAINTIFF’S CLAIMS
12.

Mr. Livingston is Native American and a service-disabled veteran, with 21 years

of active duty service in the U.S. Marine Corps, where he served as an Intelligence Officer. He
retired from military service in January 2002 as a Captain (O-3) with prior enlisted service.
13.

After his military retirement, Mr. Livingston worked in private industry as a

corporate executive, where he provided operational and intelligence support to wartime efforts in
Iraq. He deployed multiple times to Iraq, providing intelligence support to combat patrols
focused on counter-IED and counter-sniper activities for teams of civilian, military, and contract
warfighters.
14.

Mr. Livingston has several service-connected physical injuries, including

blindness in one eye, partial deafness in both ears, and shoulder, neck, leg and back injuries that
limit his mobility and cause chronic pain.
15.

Prior to joining TSA in 2013, Mr. Livingston worked for ten years in other federal

agencies: the Pentagon Force Protection Agency as a Supervisory Special Agent, the Nuclear
Regulatory Commission as a Senior Nuclear Reactor Specialist, and the Office of Naval
Intelligence (ONI) where he was a Senior Intelligence Expert.
16.

In July 2013, Mr. Livingston assumed the position of acting Deputy Assistant

Administrator for Intelligence and Analysis at TSA, which became permanent on December 13,

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2013, with the approval of his Executive Core Qualifications by the U.S. Office of Personnel
Management and appointment to the Transportation Security Executive Service (TSES).
17.

As the Deputy Assistant Administrator for the TSA Office of Intelligence and

Analysis (OIA), Mr. Livingston headed an organization comprised of 750 full time employees
and 1700 contractors located in both Annapolis Junction, Maryland and Arlington, Virginia, who
were responsible for designing and integrating intelligence-driven, risk-based security systems,
analytic resources, and strategies to prevent terrorism and other security threats to our nation’s
transportation systems.
18.

In January 2014, Mr. Livingston received the U.S. Navy Civilian Superior Service

Medal, which is the second highest honorary award in the Department of Navy for a civilian
employee, recognizing his leadership and accomplishments as a Senior Intelligence Expert in the
Office of Naval Intelligence (ONI).
19.

In March 2014, Mr. Livingston received the Director of National Intelligence

Exceptional Achievement Medal, for his contributions to the Intelligence Community (IC).
20.

On March 25, 2014, during his mid-year evaluation by then Assistant

Administrator for OIA, Stephen Sadler, his rating official, Mr. Livingston received positive
feedback for his job performance and leadership of OIA, such as “job well done” and “keep
doing what you are doing.”
21.

On July 16, 2014, Mr. Livingston was nominated by TSA for the prestigious

George Washington Spymaster Medal, a senior level award for extraordinary contributions
within the intelligence community. Mr. Livingston was credited for his leadership in designing
and implementing innovative processes and products in OIA, which enabled TSA to become a

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major contributor of valuable transportation-related intelligence to the DHS and the Intelligence
Community (IC).
22.

Mr. Livingston’s stellar career came to a halt on October 2, 2014, when he was

abruptly removed from his position of Deputy Assistant Administrator and the TSES, without
notice or warning, for unacceptable performance during his one-year probationary period.
Opposition to Sex Discrimination
23.

Mr. Livingston has been an outspoken proponent for equal employment

opportunity for women, minorities, and persons with disabilities at TSA since his employment
began.
Jennifer Carmichael
24.

On or about March 2014, Mr. Livingston was designated by TSA as the

management official in the EEO mediation of the sex discrimination complaint filed by his
subordinate, Ms. Jennifer Carmichael, against then OIA Assistant Administrator Sadler, due to
her non-selection for the TSES position of OIA Executive Director, Mission Essential Services.
25.

In her complaint, Ms. Carmichael alleged that the selectee for this TSES position

in OIA in January 2014, Mr. Russ Roberts, was less qualified than herself or other female
candidates.
26.

Ms. Carmichael further alleged that Mr. Sadler had made several sexually

offensive gender-based comments concerning her managerial style and ambitions to be promoted
to a TSES position in his organization, calling her “too soft,” needing to be “tougher,”
questioning whether she could handle the “demands of the position,” and stating that “positions
at this level would impact [her] life balance.”

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27.

Mr. Roberts frequently boasted of his personal friendship with Mr. Sadler, and

forecast his selection by Mr. Sadler for the TSES position in September 2013, saying that he had
been told by Mr. Sadler to apply for the position and that he needed to find a replacement for
himself in the position he held at the time.
28.

Prior to Mr. Roberts’ selection for TSES position of OIA Executive Director in

January 2014, Mr. Livingston advised Mr. Sadler in writing of Ms. Carmichael’s superior
qualifications, which he believed well exceeded those of Mr. Roberts.
29.

After Mr. Roberts assumed the TSES position of OIA Executive Director, Mr.

Livingston witnessed Mr. Roberts requiring female administrative assistants in OIA to move his
personal belongings from one office to another.
30.

When Mr. Livingston chastised Mr. Roberts for this inappropriate tasking of his

administrative assistants, Mr. Roberts responded with “Hey, I thought you were a Marine,” and,
“That’s what these bitches are for.”
31.

Mr. Livingston reported his concerns about Mr. Roberts’ unprofessional treatment

of the administrative assistants and his sexually offensive comments to Mr. Sadler. In response,
Mr. Sadler said, “That’s just Russ being Russ.”
32.

In an effort to resolve Ms. Carmichael’s complaint without the need for litigation,

Mr. Livingston went above Mr. Sadler and appealed to then TSA Deputy Administrator John
Halinski, as he found sufficient evidence that her case had merit.
33.

With the approval of former Deputy Administrator Halinski and his successor

then TSA Deputy Administrator Mr. Melvin Carraway, Mr. Livingston negotiated a settlement
agreement with Ms. Carmichael to resolve her sex discrimination complaint against Mr. Sadler
on July 24, 2014.

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34.

Mr. Livingston’s resolution of Ms. Carmichael’s complaint angered Mr. Sadler,

and their working relationship declined. Mr. Sadler stopped speaking cordially with Mr.
Livingston and their relationship became strained.
Alyssa Jackson
35.

Ms. Alyssa Jackson worked for Mr. Livingston as an Executive Assistant in OIA

from May 2014 until his removal in October 2014.
36.

On or about June 2014, during a meeting with then Deputy Assistant

Administrator Joseph Salvator, Office Security Operations, in Mr. Livingston’s office at TSA
Headquarters, Ms. Jackson came in to Mr. Livingston’s office to inform him of an impending
meeting and deliver a file. When Ms. Jackson entered, Mr. Salvator leaned forward in his chair,
stared at Ms. Jackson from head to toe in a sexually suggestive manner, and then asked her,
“What do you want to be when you grow up?”
37.

Ms. Jackson, startled and offended, began to respond but Mr. Livingston

interrupted her and informed Mr. Salvator of Ms. Jackson’s qualifications for her position, to
include her military service and accomplishments.
38.

Later that day, Mr. Salvator returned to Mr. Livingston’s office, closed the door

and said that it was, “Our word against her if she files a complaint.” Mr. Livingston responded,
that he hoped Ms. Jackson did not file an official complaint but if she did, he would tell the truth.
39.

In response, Mr. Salvator said that he and others could not “work” with Mr.

Livingston if he was a “Boy Scout,” and that Mr. Livingston did not want to “make him an
enemy.”
40.

Mr. Livingston reported this incident to his supervisor Assistant Administrator

Sadler, and his relationship with Mr. Salvator declined.

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41.

Beginning in September 2014, Ms. Jackson and other female executive assistants

on Mr. Livingston’s staff reported experiencing sexual harassment by an acting Section Chief in
OIA, Mr. Christopher Coffey, who derisively and repeatedly referred to them in the workplace as
being part of Mr. Livingston’s “harem,” doing “women’s work,” having a “tryst” or extramarital
affair with Mr. Livingston, and receiving preferential treatment from Mr. Livingston as a result.
42.

Ms. Jackson reported Mr. Coffey’s sexually offensive statements to her TSA

managers including Mr. Livingston and a sexual harassment investigation ensued in the TSA
Office of Special Investigations, which was overseen by then Assistant Administrator Joseph
Salvator.
43.

The TSA Office of Inspections headed by Assistant Administrator Salvator

concluded on or about October 2014 that Ms. Jackson’s sexual harassment complaint was
unfounded.
44.

On November 26, 2014, Ms. Jackson was placed on forced administrative leave

for 30 days after she publicly raised questions about Mr. Livingston’s removal during an OIA
Town Hall Meeting on November 25, 2014.
45.

On January 5, 2015, Ms. Jackson was sent on detail to a position in the Office of

Security Operations (OSO), and then terminated on April 30, 2015 for reportedly unsuccessful
performance in both OIA and OSO, five days before the end of her one-year probationary period.
Forced Push Ups
46.

On or about March 2014, Mr. Livingston confronted one of his male supervisors

(J.J.) in Annapolis Junction, Maryland, for reportedly hazing both men and women on his staff
and forcing them to do push-ups in the office, to include women wearing dresses.

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47.

Mr. Livingston advised J.J. that his conduct would be reported to the TSA Office

of Inspections for investigation, headed by Assistant Administrator Salvator. In response, J.J.
asked Mr. Livingston to call Mr. Salvator because although Mr. Livingston now had “dirt on
him,” he had “dirt on Mr. Salvator,” implying that Mr. Salvator would cover up the reported
misconduct. J.J. also told Mr. Livingston that if he “did not go along to get along,” he would
“end up on the wrong end of a Morale Survey and be replaced as so many others have.”
48.

Mr. Livingston refused to cover up this incident and reported both the hazing and

J.J.’s threat to Assistant Administrator Sadler and Deputy TSA Administrator John Halinski.
Harassment Following Opposition to Sex Discrimination
49.

Beginning on or about April 2014 and escalating from June – September 2014,

Mr. Roberts began a pattern and practice of making harassing, offensive and threatening
comments about Mr. Livingston to other employees in OIA in both Annapolis Junction,
Maryland and Arlington, Virginia, to the effect that:
a.

He is blind and stupid;

b.

He suffers from PTSD;

c.

He must have also suffered brain damage from the IED attacks, and this was
the cause of poor decisions;

d.

His combat injuries affected his ability to be a leader at the Transportation
Security Agency;

e.

His being shot in the arm was a mistake, and that if he had been shot in the
face it would improve his appearance;

f.

His being stabbed in combat was a missed opportunity to cut out his tongue
since he never talks at meetings anyway;

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g.

He is a “gimp” because he walks with a limp;

h.

He has handicapped parking privileges for mental reasons, not physical
injuries;

i.

Referring to him as “Chief” because he is Native American, and using a
tomahawk hand gesture when describing him;

j.

On August 18, 2014, reporting to another employee that there are 15 people
“out to get” Mr. Livingston with him;

k.

That he was going to get Mr. Livingston fired, and “I’ve got him now;”

l.

Announcing during a September 2014 staff meeting that Mr. Livingston’s
“days were numbered,” and that “he would be gone soon;” and

m.
50.

Referring to Mr. Livingston’s administrative support staff as his “harem.”
On or about April 2014, upon learning about Mr. Roberts’ harassing and offensive

comments to other employees, Mr. Livingston complained to Assistant Administrator Sadler,
who responded that he would address the issue with Mr. Roberts.
51.

Again on or about May 2014, when the harassment and offensive comments

continued, Mr. Livingston again complained to Mr. Sadler about Mr. Roberts’ conduct, and
again Mr. Sadler responded that he would address the issue with Mr. Roberts.
52.

After Ms. Carmichael’s discrimination complaint was settled on July 24, 2014,

the harassment and offensive comments by Mr. Roberts about Mr. Livingston escalated, pitting
many on the staff against Mr. Livingston, undermining his credibility and effectiveness, and
forcing the staff to chose sides.
53.

On or about September 1, 2014, Mr. Livingston again reported Mr. Roberts’

harassment to Mr. Sadler, requesting that he take corrective action, and stating that he was

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considering filing an EEO complaint against Mr. Roberts. Mr. Sadler responded by saying, “do
what you got to do,” and appeared unconcerned about Mr. Roberts’ reported conduct.
54.

Mr. Livingston made another attempt to convince Mr. Sadler to take corrective

action to stop Mr. Roberts’ harassment on or about September 9, 2014. Mr. Sadler reacted
similarly and again appeared unconcerned about Mr. Roberts’ conduct.
Retaliatory Removal After Protected EEO Activities
55.

On October 2, 2014, Mr. Livingston was notified of his removal for unacceptable

performance by the TSA Executive Resources Council from the TSES during his one-year
probationary period and his position as Deputy Assistant Administrator, OIA, reassignment to a
Program Specialist K-Band position in the Office of Chief Risk Officer, Office of the Deputy
Administrator, and placement on administrative leave, effective October 3, 2014.
56.

Mr. Livingston was informed that the results of an employee Morale Survey

conducted by Assistant Administrator Salvator’s staff in OIA were highly unfavorable and
supported his removal, as portended.
57.

Upon information and belief, Assistant Administrator Sadler advocated Mr.

Livingston’s removal from the TSES and his position as Deputy Assistant Administrator during
a meeting of the TSA Executive Resources Council. But for Mr. Sadler’s personal
recommendation, Mr. Livingston would not have been removed.
58.

Prior to October 2, 2014, Assistant Administrator Sadler provided no notice to

Mr. Livingston that his performance was unacceptable or in any way failed to meet or exceed
expectations, either in writing or verbally.

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59.

Defendant has failed to give Mr. Livingston any reasonable non-discriminatory

explanation as to why he was removed from his position, which has resulted in a loss of pay, and
damaged his career and reputation.
VI.

CLAIMS FOR RELIEF
COUNT 1: NATIONAL ORIGIN DISCRIMINATION
(Title VII)
60.

Plaintiff adopts and incorporates by reference the averments of the preceding

paragraphs as if fully set forth herein.
61.

Defendant unlawfully discriminated against Plaintiff on the basis of his national

origin (Native American).
62.

Title VII, 42 U.S.C. § 2000e-2(a), makes it unlawful for an employer to

discriminate against any individual with respect to his compensation, terms, conditions or
privileges of employment because of national origin.
63.

Defendant discriminated against Plaintiff on the basis of his national origin

(Native American), when it subjected Plaintiff to harassment creating a hostile work
environment and failed to take appropriate corrective action when placed on notice of the
harassment.
64.

By deciding to remove Plaintiff from his TSES position as the Deputy Assistant

Administrator, Office of Intelligence and Analysis, in the Transportation Security
Administration, placing him on administrative leave, and reassigning him to a Program Specialist
K-Band position, Defendant discriminated against Plaintiff.
65.

As a result of Defendant’s violations of Title VII, Plaintiff has suffered and is

continuing to suffer injuries, including, but not limited to, damage to his career, damage to his

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professional and personal reputation, humiliation and emotional distress, loss of enjoyment of
life, and pain and suffering.
COUNT II: DISABILITY DISCRIMINATION
(Section 501 of Rehabilitation Act)
66.

Plaintiff adopts and incorporates by reference the averments of the preceding

paragraphs as if fully set forth herein.
67.

Defendant unlawfully discriminated against Plaintiff on the basis of his disability

and perceived disability.
68.

Section 501 of the Rehabilitation Act, 29 U.S.C. § 791, makes it unlawful for an

employer to discriminate against any individual with respect to his compensation, terms,
conditions or privileges of employment because of disability or perceived disability.
69.

Defendant discriminated against Plaintiff on the basis of his physical disability

and perceived mental disability when it subjected Plaintiff to harassment creating a hostile work
environment and failed to take appropriate corrective action when placed on notice of the
harassment.
70.

By deciding to remove Plaintiff from his TSES position as the Deputy Assistant

Administrator, Office of Intelligence and Analysis, in the Transportation Security
Administration, placing him on administrative leave, and reassigning him to a Program Specialist
K-Band position, Defendant discriminated against Plaintiff.
71.

As a result of Defendant’s violations of the Rehabilitation Act, Plaintiff has

suffered and is continuing to suffer injuries, including, but not limited to, damage to his career,
damage to his professional and personal reputation, humiliation and emotional distress, loss of
enjoyment of life, and pain and suffering.

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COUNT III: RETALIATION
(Title VII)
72.

Plaintiff adopts and incorporates by reference the averments of the preceding

paragraphs as if fully set forth herein.
73.

Defendant retaliated against Plaintiff on the basis of his opposition to sex and

national origin discrimination.
74.

Title VII makes it unlawful for an employee to be subjected to harassment on the

basis of his opposition to discrimination on the basis of sex or national origin.
75.

By subjecting Plaintiff to harassment creating a hostile work environment and

failing to take appropriate corrective action when placed on notice of the harassment, Defendant
retaliated against Plaintiff.
76.

By deciding to remove Plaintiff from his TSES position as the Deputy Assistant

Administrator, Office of Intelligence and Analysis, in the Transportation Security
Administration, placing him on administrative leave, and reassigning him to a Program Specialist
K-Band position, Defendant retaliated against Plaintiff.
77.

As a result of Defendant’s violations of Title VII, Plaintiff has suffered and is

continuing to suffer injuries, including, but not limited to, damage to his career, damage to his
professional and personal reputation, humiliation and emotional distress, loss of enjoyment of
life, and pain and suffering.
COUNT IV: RETALIATION
(Section 501 of Rehabilitation Act)
78.

Plaintiff adopts and incorporates by reference the averments of the preceding

paragraphs as if fully set forth herein.

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79.

Defendant retaliated against Plaintiff on the basis of his opposition to disability

discrimination.
80.

Section 501 of the Rehabilitation Act, 29 U.S.C. § 791, makes it unlawful for an

employee to be subjected to harassment on the basis of his opposition to disability
discrimination.
81.

By subjecting Plaintiff to harassment creating a hostile work environment and

failing to take appropriate corrective action when placed on notice of the disability-related
harassment, Defendant retaliated against Plaintiff.
82.

By deciding to remove Plaintiff from his TSES position as the Deputy Assistant

Administrator, Office of Intelligence and Analysis, in the Transportation Security
Administration, placing him on administrative leave, and reassigning him to a Program Specialist
K-Band position, Defendant retaliated against Plaintiff.
83.

As a result of Defendant’s violations of Section 501 of the Rehabilitation Act,

Plaintiff has suffered and is continuing to suffer injuries, including, but not limited to, damage to
his career, damage to his professional and personal reputation, humiliation and emotional
distress, loss of enjoyment of life, and pain and suffering.
V.

PRAYERS FOR RELIEF
WHEREFORE, Mr. Livingston respectfully requests that the Court issue a judgment

granting him the following relief from Defendant:
a. A declaratory judgment that Defendant discriminated and retaliated against
Plaintiff, as alleged herein;
b. An injunctive order requiring Defendant to take specific corrective action for the
discrimination and retaliation of Mr. Livingston in the past and continuing to the

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present, and that it take appropriate steps to protect Mr. Livingston from further
acts of discrimination and retaliation in the future, including, but not limited to,
reassignment to his TSES position as Deputy Assistant Administrator, Office of
Intelligence and Analysis, Transportation Security Administration, with back pay
and benefits, and correction of personnel records;
c. Monetary and/or compensatory damages to the maximum extent allowed by law;
d. Reasonable attorneys’ fees, expert witness fees, and costs;
e. Such other and further relief as the Court deems just and proper; and
f. All other relief to which Mr. Livingston shows himself entitled to at law or in
equity.
VII.

JURY DEMAND
Plaintiff requests a trial before a jury.

Dated: February 19, 2016

Respectfully submitted,
/s/ Tamara L. Miller
TAMARA L. MILLER (Fed. Bar No. 12869)
MILLERMASCIOLA, ATTORNEYS AT LAW
1825 K Street, NW, Suite 1150
Washington, DC 20006
Tel: (202) 223-8181
Fax: (202) 318-0559
Tamara.miller@millermasciola.com
Counsel for Plaintiff

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