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Botelho v. Transportation Security Administration

United States District Court, D. Hawaii

December 26, 2018



          Alan C. Kay Sr. United States District Judge

         For the reasons set forth below, the Court GRANTS IN PART AND DENIES IN PART Defendant Kirstjen M. Nielsen's Motion to Dismiss for Lack of Subject-Matter Jurisdiction, ECF No. 15. Plaintiff's Rehabilitation Act claims are DISMISSED WITH PREJUDICE; the Court declines to dismiss Plaintiff's Title VII claims; and Defendant Transportation Security Administration is DISMISSED WITH PREJUDICE.


         On January 19, 2018, Michael Botelho (“Plaintiff”) filed a Complaint against the Transportation Security Administration (the “TSA”) and Elaine C. Duke in her official capacity as Acting Secretary of the United States Department of Homeland Security (“DHS”). ECF No. 1. Plaintiff asserts claims against the Defendants pursuant to (1) the Rehabilitation Act of 1973 and (2) Title VII of the Civil Rights Act of 1964. Compl. at ¶¶ 37-38. Specifically, Plaintiff appears to allege that he was discriminated against on the basis of his disability (diabetes), subjected to a hostile work environment, and retaliated against for engaging in a protected activity. Prior to filing his Complaint in this Court, Plaintiff exhausted his administrative remedies when he filed an Employment Opportunity (“EEO”) complaint alleging that he was discriminated against on the basis of his age, disability, and engaging in a protected activity, [1] Id. at ¶ 32; however, it appears that Plaintiff did not include his hostile work environment claim in his EEO complaint. See ECF No. 1-1, Final Order at 2-3.

         On June 1, 2018, Defendant Kirstjen M. Nielsen (“Defendant Nielsen”), Secretary of the United States DHS, filed a Motion for Dismissal or, in the Alternative, for Summary Judgment.[2] ECF No. 15. On the same day, Defendant Nielsen submitted her Concise Statement of Facts along with various declarations and exhibits. ECF No. 16. The Court set a Hearing on the Motion for September 10, 2018.

         On August 15, 2018, the Court approved a Stipulation that the parties filed in which they agreed to continue various deadlines and also stipulated that Defendant Nielsen would withdraw without prejudice the summary judgment portion of her Motion. ECF No. 18. Pursuant to the Stipulation, the Court continued the Hearing set for September 10, 2018 to December 17, 2018. On November 13, 2018, the Court approved another Stipulation withdrawing without prejudice the summary judgment portions of Defendant Nielsen's Motion (Sections IB and III).[3]ECF No. 24. The remaining sections of Defendant Nielsen's Motion (Sections IA and II) are brought pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. Although Defendant Nielsen's Motion states that it is brought pursuant to Rules 12(b)(1) and 12(b)(6), Mot. at 2, the parties' papers only discuss whether the Court has subject-matter jurisdiction over Plaintiff's claims. Accordingly, the Court confines its analysis to that issue.

         On November 26, 2018, Plaintiff filed his Memorandum in Opposition to Defendant Nielsen's Motion. ECF No. 25. On December 3, 2018, Defendant Nielsen filed her Reply. ECF No. 27. A Hearing on Defendant Nielsen's Motion to Dismiss was held on December 17, 2018.


         The facts in this Order are recited only for the purposes of deciding Defendant Nielsen's Motion to Dismiss and are not intended to be findings of fact upon which the parties may rely in future proceedings.

         According to the Complaint, Plaintiff is a disabled 55-year-old male who resides in Honolulu, Hawai`i. Compl. ¶ 4. Plaintiff was appointed to a position as a Transportation Security Screener with the TSA at the Daniel K. Inouye Honolulu International Airport (“HNL”) in November 2002. Id. at ¶¶ 5-6. He was promoted to a Supervisory Screener position in September 2003. Id. ¶ 7. In April 2004, Plaintiff filed an EEO complaint alleging that his manager had sexually harassed him. Id. at ¶ 9. Around the same time, some sort of inquiry was conducted regarding Plaintiff's conduct at work. Id. at ¶ 8. This inquiry, which Plaintiff does not describe, was apparently so stressful that it caused him to take two-and-one-half years' leave. Id. at ¶ 10. In October 2004, while on leave, Plaintiff was demoted to a Lead Screener position. Id. ¶ 13.

         The TSA issued Plaintiff a Notice of Proposed Removal on January 26, 2007 because he was absent from work for two-and-one-half years. Id. at ¶ 14. Plaintiff was diagnosed with diabetes in February 2007. Id. ¶ 11. The TSA issued Plaintiff a second Notice of Removal on March 7, 2007. Id. at ¶ 16. Two days later, Plaintiff and the TSA entered into a “Last Chance/Abeyance Agreement” that set forth certain terms Plaintiff agreed to abide by for one year in order to avoid being removed; Plaintiff complied with the agreement and withdrew his EEO complaint when he returned to work in 2007. Id. at ¶¶ 10, 16-17. In July 2008, Plaintiff was assigned to the position of Behavior Detection Officer and remained in this position until he was terminated in March 2012. Id. ¶¶ 18-19.

         In March 2009, Plaintiff applied for intermittent leave under the Family and Medical Leave Act (“FMLA”) on the basis of his diabetes diagnosis, which was granted. Id. ¶ 20. In 2010, Plaintiff went on a trip to Canada where he had a “severe diabetic reaction” and, based upon the recommendation of his doctor, remained in Canada on medical leave for two weeks before returning to work in Honolulu. Id. ¶¶ 22-25. Sometime after returning to work, the TSA initiated an informal investigation into Plaintiff's absences from work, and thereafter began a formal investigation.[4] Id. ¶¶ 26, 28. Plaintiff was subsequently terminated on March 9, 2012 based upon Plaintiff's “leave fraud and improper absence.” Id. ¶ 29. Plaintiff then filed the EEO complaint that forms the basis of this action. Id. ¶ 32.


         A court's subject-matter jurisdiction may be challenged under Federal Rule of Civil Procedure 12(b)(1). Such challenges may be either “facial” or “factual.” Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004).

         In a facial attack, “the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction.” Id. (quoting Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004)). When opposing a facial attack on subject-matter jurisdiction, the nonmoving party is not required to provide evidence outside the pleadings. Wolfe, 392 F.3d at 362; see Doe v. Holy See, 557 F.3d 1066, 1073 (9th Cir. 2009) (treating defendant's challenge to subject-matter jurisdiction as facial because defendant “introduced no evidence contesting any of the allegations” of the complaint). In deciding a facial Rule 12(b)(1) motion, the court must assume the allegations in the complaint are true and draw all reasonable inferences the plaintiff's favor. Wolfe, 392 F.3d at 362 (citations omitted).

         By contrast, in a factual attack, “the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction.” Wolfe, 392 F.3d at 362 (quoting Safe Air, 373 F.3d at 1039). The moving party may bring a factual challenge to the court's subject-matter jurisdiction by submitting affidavits or any other evidence properly before the court. The nonmoving party must then “present affidavits or any other evidence necessary to satisfy its burden of establishing that the court, in fact, possesses subject-matter jurisdiction.” Colwell v. Dep't of Health & Human Servs., 558 F.3d 1112, 1121 (9th Cir. 2009) (citation omitted). In these circumstances, the court may look beyond the complaint without having to convert the motion into one for summary judgment. U.S. ex rel. Meyer v. Horizon Health Corp., 565 F.3d 1195, 1200 n. 2 (9th Cir. 2009). When deciding a factual challenge to the court's subject-matter jurisdiction, the court “need not presume the truthfulness of the plaintiffs' allegations.” Id.


         Defendant Nielsen argues that this Court lacks subject-matter jurisdiction over Plaintiff's claims because section 111(d) of the Aviation and Transportation Security Act (the “ATSA”) preempts Rehabilitation Act claims brought by security screeners against the TSA. Mem. at 1. The parties agree that this is a facial attack on this Court's subject-matter jurisdiction. Mem. at 3; Opp. at 2. The Court finds that this is, indeed, a facial attack because the parties do not appear to dispute at this time the factual allegations underlying Plaintiff's Complaint. Accordingly, the Court proceeds with its analysis by first addressing Plaintiff's Rehabilitation Act claims and second addressing Plaintiff's Title VII claims.

         For the reasons set forth below, the Court finds that the ATSA precludes security screeners from bringing Rehabilitation Act claims against the TSA; therefore, the Court dismisses Plaintiff's Rehabilitation Act claims for lack of subject-matter jurisdiction. The Court declines to dismiss Plaintiff's Title VII claims because it appears that the ATSA does not preempt Title VII as a general matter, and because the parties did not brief the issue.

         I. Rehabilitation Act Claims (First Cause of Action)

         In general, the Rehabilitation Act protects federal employees from discrimination on the basis of disabilities. 29 U.S.C. §§ 791, 794. Defendant Nielsen argues that the ATSA excludes TSA security screeners from the protections afforded to federal employees under the Rehabilitation Act, citing longstanding precedent in support of her proposition, and therefore the Court may not exercise subject-matter jurisdiction over Plaintiff's claims. Mem. at 4-5. Plaintiff concedes that the ATSA preempts certain Rehabilitation Act claims brought by security screeners, but argues principally that (1) the cases which hold that the ATSA preempts Rehabilitation Act claims are bad law; (2) the preemption determination must be made on a case-by-case basis; and (3) to find that the ATSA preempts Rehabilitation Act claims leaves security screeners without legal recourse. Opp. at 2, 7, 9. The parties do not appear to dispute the fact that Plaintiff, who was a Behavior Detection Officer at the time of the alleged discrimination and retaliation, was a security ...

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