February 9, 2012 - The Department of Homeland Security Office Of Inspector General (OIG) has completed a long awaited federal investigation into allegations of age, gender and racial discrimination within the Federal Air Marshal Service. The findings conclude there is no "widespread discrimination and retaliation." However, the Federal Air Marshal Service does have problems that need to be corrected.

In January 2010, CNN reported allegations of misconduct and illegal employment discrimination and retaliation in the Federal Air Marshal Service?s Orlando field office. The report included descriptions of an agency rife with cronyism; age, gender, and racial discrimination; and unfair treatment in promotions, assignments, and discipline.  

Also included were photographs of a game board modeled after the television show ?Jeopardy!? created and displayed by supervisors there, with categories containing derogatory nicknames referring to veterans, females, African-Americans, Hispanics, and lesbians and gays.  

Senator Bill Nelson and Congressmen Edolphus Towns and Darrell Issa asked Department of Homeland Security Office of Inspector General (OIG) to review the allegations in Orlando and throughout the agency as well as the circumstances surrounding the game board. 

In its report, OIG reported that although individual employees may have experienced discrimination or retaliation, its review did not support a finding of widespread discrimination and retaliation within the Federal Air Marshal Service.

However, employees? perceptions of discrimination and retaliation are extensive, and OIG heard too many negative and conflicting accounts of events to dismiss them. Many Federal Air Marshals and some supervisors think they have been discriminated against, fear retaliation, and believe there is much favoritism.

There is a great deal of tension, mistrust, and dislike between non-supervisory and supervisory personnel in field offices around the country. OIG identified factors that contributed to strained relations and became the basis for the allegations. Limited transparency in management decisions is also at the center of fears of retaliation and perceptions that management is mistreating its workforce.

These issues pose a difficult challenge for the agency, but they do not appear to have compromised the service?s mission. Transportation Security Administration and Federal Air Marshal Service senior leadership are committed to addressing these issues and have implemented several proactive initiatives to address them.   

On September 11, 2001, there were 33 Federal Air Marshals. In November 2001, the Transportation Security Administration (TSA) was created within the U.S. Department of Transportation, and the Federal Air Marshal Service (FAMS) moved from the Federal Aviation Administration to TSA.  At that time, the Deputy Secretary of Transportation issued a mandate to recruit, hire, and train thousands of Federal Air Marshals by July 1, 2002. 

FAMS met this mandate. To help achieve it, FAMS hired numerous U.S. Secret Service (USSS) retirees because of their experience working in a protective-oriented agency. This was made easier by a provision regarding their federal retirement, which allowed them to continue receiving their federal retirement annuity and a federal law enforcement salary at the same time.  

TSA also sought experienced retirees from other federal law enforcement agencies. To hire them, TSA requested and obtained waivers of the general restriction prohibiting employees from receiving two federal paychecks at the same time. FAMS eventually received 5-year waivers of the prohibition, and then hired experienced managers from other federal law enforcement agencies. FAMS received more than 175,000 applications and hired Federal Air Marshals from state and local police departments, the Bureau of Prisons, the U.S. military, the U.S. Border Patrol, and other federal law enforcement agencies. 

Between 2003 and 2005, FAMS underwent three organizational changes. In March 2003, TSA, including FAMS, moved from the Department of Transportation to the Department of Homeland Security (DHS). In November 2003, FAMS moved within DHS from TSA to U.S. Immigration and Customs Enforcement. In October 2005, it returned to TSA. In June 2008, TSA promoted Robert Bray to Director of FAMS. 

FAMS operates many field offices throughout the United States. Field office locations and staffing levels are determined based on intelligence, the FAMS Concept of Operations, and proximity to airports. A Supervisory Air Marshal in Charge (SAC) manages each office, assisted by a Deputy Supervisory Air Marshal in Charge or Assistant Supervisory Air Marshals in Charge (ASACs), depending on the size of the field office, and Supervisory Federal Air Marshals (SFAMs).  

Federal Air Marshals make up the majority of staff in each field office.  Most Federal Air Marshals are deployed on commercial domestic and international flights. A few work in ground-based positions in the field offices to support flying Federal Air Marshals and carry out other responsibilities.

As the size of FAMS increased, workforce issues also increased. The rapid buildup of FAMS, coupled with the task of merging the cultures of the many law enforcement agencies from which Federal Air Marshals were hired, proved to be a challenge. In May 2006, the House Judiciary Committee released an investigative report stating that FAMS encountered numerous problems during the rapid buildup that severely affected morale and potentially national security.   

The committee reported that Federal Air Marshals in many field offices expressed concerns with policies and reluctance to approach managers due to fear of retaliation.   

Individual Federal Air Marshals have filed informal and formal Equal Employment Opportunity (EEO) complaints, Merit Systems Protection Board (MSPB) appeals, and lawsuits alleging discrimination, retaliation, or improper personnel actions of one form or another. The majority of cases were decided in the agency?s favor. Some were settled prior to the issuance of a decision by the MSPB or the Equal Employment Opportunity Commission (EEOC). 

FAMS employees filed 280 informal EEO complaints from September 2006 through May 2010, and 174 formal EEO complaints from September 2006 through April 2011, in fiscal year (FY) 2010, the number of formal complaints rose sharply. For both informal and formal complaints, the primary areas on which employees based their complaints were nonsexual harassment, promotion or nonselection and reprisal.   

There were three findings of discrimination against FAMS in FY 2009 from claims initiated in 2002, 2004 and 2006, respectively. There was one finding of discrimination against FAMS from September 2009 through January 2010, stemming from a claim initiated in 2004. 

Of the 109 cases that had received decisions, 103 (94%) were decided in favor of the agency and 6 (6%) against the agency. Twenty-five cases were settled prior to a decision, and 27 were pending as of June 2011.  In July 2011, the MSPB upheld the agency?s removal of a Federal Air Marshal in a whistleblower case. 

Some Federal Air Marshals have also filed federal lawsuits in U.S. District Courts alleging discrimination and retaliation. From September 2005 to August 2011, 40 lawsuits alleging discrimination by FAMS were filed in U.S. District Courts. The agency won summary judgment or dismissal at the district court level in 22 of the 40 cases. The complainant in one case appealed the district court?s decision to summarily dismiss the case, and FAMS then settled the case. Complainants in three other cases also have appealed the district courts? decisions; the appeals are pending. In addition, 10 cases were settled and 8 are pending. OIG has made 12 recommendations to address these issues. TSA concurred with all of the recommendations and is formulating plans to implement them.  

CNN's report on the Orlando Field Office ?Jeopardy!? Board - CNN reported that managers within the FAMS Orlando field office had created a game board styled after the television game show ?Jeopardy!? The content of the game board, and a Federal Air Marshal?s interpretation of it in the form of a second game board containing more explicit descriptions, was extremely offensive and outraged many Federal Air Marshals, who alleged that field office managers were targeting them. Even though the incident occurred several years ago, news of it brought the agency under further scrutiny and ultimately resulted in changes within the Orlando field office. 

OIG assessed the circumstances surrounding the game board and the field office?s response. It conducted interviews of 66 personnel in Orlando and Tampa, including the SAC, every supervisor, one of the employees who created the game board, and numerous non-supervisory Federal Air Marshals. 

Based on their recollections, the news report appeared to surprise the field office?s senior managers. The game board existed only in Orlando, and was not the source of allegations of retaliation and discrimination in other field offices. Federal Air Marshals interviewed in other field offices had limited knowledge of it. 

The game board was created by an SFAM, a Federal Air Marshal and a civilian training officer in the training office.  All three of these individuals have since left FAMS. The Federal Air Marshal, who later became an SFAM and is no longer a Federal Air Marshal, asserted that the game board was used only for several weeks in the spring of 2007, but another employee said it was on display frequently over many months and he last saw it in 2008.   

The Federal Air Marshal said he and a few others?some but perhaps not all members of the training staff?played the game and that it was used to make fun of those on the training staff, not others. OIG asked him to explain each of the game board?s categories. He could not remember some, and he provided relatively innocuous explanations for others.

OIG interviewed three additional members of the training staff who were knowledgeable about the game board at the time it was displayed. One said the training staff used the game board to make fun of Federal Air Marshals they disliked, including African-Americans, gays and lesbians, and others who had filed complaints against the office. The other two said they saw the board but did not do anything about it. 

The former Federal Air Marshal who photographed the game board while it hung in the training office did not show it to members of Congress or the media until after FAMS removed him in December 2009.  He said he drew a second game board, which contained more patently offensive categories, to help the congressional staff understand the original game board?s categories better.   

He emailed images of both game boards to a few Federal Air Marshals in Orlando and Tampa.  One or more of those Federal Air Marshals forwarded the email to others on staff.  An unidentified Federal Air Marshal distributed paper copies to several Federal Air Marshals via office mailboxes. The recreated game board generated outrage, anger, and sadness. The removal of the Federal Air Marshal who drew the second game board was upheld by the MSPB. 

Most of the Orlando field office did not see the game board until it appeared in news media because the training offices were usually locked and most Federal Air Marshals did not have access to them. Federal Air Marshals felt belittled by the game board because they interpreted one or more of the categories as representing groups to which they belonged. For example, some Federal Air Marshals said the category ?Our Gang? referred to African-Americans.   

They and others who felt targeted by the game board said it provided more proof that management disliked them and it helped explain why they had not received promotions, awards, or international flight assignments, or had been disciplined unjustly. The training staff may have targeted people on the game board, but OIG found no evidence that using the game board resulted in passing individuals? names to other managers for harsh or inequitable treatment. 

This was not the first or only incident driving Federal Air Marshals? allegations of retaliation and discrimination in the Orlando field office. The Orlando field office was under scrutiny prior to the CNN report and the start of OIG review.  In October 2009, TSA?s Office of Inspections (OOI) had begun investigating numerous allegations concerning supervisors? conduct.  

The basis for its investigation was allegations of misuse of authority or position.  TSA OOI completed its Report of Investigation in March 2010 and provided it to TSA and FAMS senior leadership. In February 2010, TSA OOI began a follow-up investigation and completed its Report of Investigation in April 2010.  TSA OOI substantiated the allegation that personnel in the Orlando field office training division played the game board.  

The environment in the Orlando field office, specifically working relationships between management and non-supervisory Federal Air Marshals, appeared tense. OIG noted much anxiety among its workforce, and the degree of animosity and mistrust that supervisors and non- supervisors described in interviews was unsettling.   

Some individuals reported they did not experience or know of any retaliatory actions in the Orlando and Tampa field offices, the majority of non-supervisory Federal Air Marshals expressed fears of retaliation, said they were retaliated against, or cited knowledge of retaliation against others.  

Many Federal Air Marshals said they feared retaliation from managers for speaking with OIG and requested anonymity. In addition, at their request OIG conducted numerous interviews at offsite locations because interviewees did not want to be seen talking.  

One Federal Air Marshal said the last time an Office of Inspector General (OIG) team was there, they thought management retaliated against them for their involvement in those matters. Another Federal Air Marshal believed management was out to ?get? him and he would be suspended soon for something, but discipline records do not indicate that a suspension occurred. 

Federal Air Marshals also alleged a need for transparency and constructive comments in the promotion process. There were allegations of individuals who were promoted because they were part of management?s clique even though they were not as qualified as others or had a record of discipline against them. Some Federal Air Marshals feel they are more qualified than some of those who were promoted and do not understand why they were passed over.