United States District Court, D. Hawaii
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT
KIRSTJEN M. NIELSEN'S MOTION TO DISMISS
C. Kay Sr. United States District Judge
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.
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,
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.
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. 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.
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).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.
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.
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.
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.
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.
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. 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.
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).
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).
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'
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.
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.
Rehabilitation Act Claims (First Cause of Action)
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