K.H. v. Secretary of the Department of Homeland Security

Filing 26

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS AND/OR STRIKE by Judge Jon S. Tigar granting in part and denying in part 14 Motion to Dismiss. (wsn, COURT STAFF) (Filed on 11/16/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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K.H.,

Case No. 15-cv-02740-JST
Plaintiff,

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v.
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SECRETARY OF THE DEPARTMENT OF
HOMELAND SECURITY,
Defendant.

United States District Court
Northern District of California

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ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S
MOTION TO DISMISS AND/OR
STRIKE
Re: ECF No. 14

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Before the Court is Defendant Secretary of the Department of Homeland Security’s

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Motion to Dismiss and/or Strike Plaintiff’s complaint pursuant to Federal Rules of Civil Procedure

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12(b)(1), 12(b)(6), and 12(f). ECF No. 14. For the reasons set forth below, the motion is granted

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in part and denied in part.

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I.

BACKGROUND

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A.

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For the purpose of deciding these motions, the Court accepts as true the following factual

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Factual History

allegations from Plaintiff’s Complaint. ECF No. 1.
Plaintiff was born in 1968 and is a Federal Air Marshal (“FAM”). ECF No. 1 ¶ 4.

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Plaintiff is employed by the Transportation Security Administration (“TSA”), an agency within

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the Department of Homeland Security (“DHS”). Id.

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The TSA targeted the Cincinnati, Cleveland, Phoenix, Pittsburgh, San Diego, and Tampa

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Field Offices (“selected Field Offices”) for closure. Id. ¶ 9. The selected Field Offices were

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targeted because they had the highest percentage of older FAMs; about 90% of the FAMs in each

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selected Field Office were over 40 years of age. Id. ¶ 10. Although the TSA reassigned the FAMs

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to other Field Offices, the TSA made the moves extremely difficult, expensive, unpalatable, and

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problematic. Id. ¶ 13. The closures have caused, and will continue to cause, FAMs to lose money

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in home investments and cause marital unrest. Id. ¶ 20. By making the move challenging for the

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FAMs, the TSA constructively discharged the FAMs. Id. ¶ 13. The intent of the TSA in closing

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the selected Field Offices was to force older FAMs from federal service, as the TSA hoped the

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older FAMs would quit rather than accept mandatory office reassignments. Id. ¶ 11. It has been

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represented to the older FAMS that the TSA intended to hire two new young FAMs to replace

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each older FAM. Id. ¶ 12. The TSA threatened to terminate the FAMs’ employment if they

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refused to accept the reassignments. Id. ¶ 14.
Plaintiff worked in the Tampa Field Office and his performance was satisfactory or better.

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Id. ¶¶ 17–18. Yet, on August 19, 2014, Plaintiff received an email from his supervisor notifying

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Plaintiff of his reassignment with a memorandum attached from the Regional Director. Id. ¶ 16.

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United States District Court
Northern District of California

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The memorandum stated that Plaintiff had ten days to decide whether to accept the reassignment

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and that if Plaintiff chose not to accept the reassignment, the TSA would terminate Plaintiff’s

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employment. Id. Termination would make Plaintiff ineligible for certain benefits. Id.

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Plaintiff was reassigned to the San Francisco Field Office. Id. ¶ 17. Plaintiff experienced

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severe mental and emotional stress associated with the discriminatory closure of the Tampa Field

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Office. Id. ¶ 19. The threat of termination and loss of benefits compounded Plaintiff’s mental and

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emotional stress. Id. ¶ 16.

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But for Plaintiff’s age, he would not have been designated for reassignment from the

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Tampa Office. Id. ¶ 25. Additionally, but for the high percentage of FAMs over 40 in the

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selected Field Offices, the TSA would not have designated those Filed Offices for closure. Id. ¶

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26. Plaintiff further alleges any nondiscriminatory reason for the closure of the selected Field

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Offices is “pretextual.” Id. ¶ 24.

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Plaintiff seeks $300,000 in compensatory damages, an injunction to address the

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discriminatory conduct and to prohibit future closes, costs and other damages, and any further

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relief deemed just. ECF No. 1 at 5.

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B.

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Plaintiff filed an Equal Employment Opportunity (“EEO”) complaint on July 22, 2014. Id.

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Procedural History

¶ 22. On August 22, 2014, Plaintiff filed an amended EEO complaint. Id. The Equal
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Employment Opportunity Commission took no action on Plaintiff’s complaints within the 180-day

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requirement. Id. Plaintiff filed this action against the DHS for age discrimination on June 18,

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2015, under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. ECF

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No. 1.

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C.

Jurisdiction

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Plaintiff’s claims arise under federal statutes, therefore, this Court has jurisdiction pursuant

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to 28 U.S.C. § 1331. Additionally, 29 U.S.C. § 663a(c) explicitly gives federal district courts

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jurisdiction over claims arising under the federal employer provision of the ADEA, 29 U.S.C. §

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633a.

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II.

MOTION TO DISMISS AND/OR STRIKE

United States District Court
Northern District of California

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The portion of the ADEA that applies to federal employers is 29 U.S.C. § 633a. It states in

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relevant part “[a]ll personnel actions affecting employees or applicants for employment who are at

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least 40 years of age . . . shall be made free from any discrimination based on age.” 29 U.S.C. §

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633a(a). Section 633a further allows “[a]ny person aggrieved [to] bring a civil action in any

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Federal court of competent jurisdiction for such legal or equitable relief as will effectuate the

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purposes of this chapter.” 29 U.S.C. § 633a(c).

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Defendant’s motion to dismiss and/or motion to strike revolves around two issues. ECF

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No. 14. First, Defendant argues compensatory damages are not available for ADEA claims

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against federal employers. Id. at 2. Second, Defendant argues Congress has not waived sovereign

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immunity for disparate impact claims against federal employers. Id.

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A.

Legal Standards
1.

Dismissal Under Rule 12(b)(6)

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A complaint must contain “a short and plain statement of the claim showing that the

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pleader is entitled to relief,” in order to “give the defendant fair notice of what the . . . claim is and

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the grounds upon which it rests.” Fed. R. Civ. P. 8(a)(2); Bell Atl. Corp. v. Twombly, 550 U.S.

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544, 555 (2007). “To survive a motion to dismiss, a complaint must contain sufficient factual

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matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,

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556 U.S. 662, 678 (2009) (internal quotation marks omitted). “A claim has facial plausibility
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when the plaintiff pleads factual content that allows the court to draw the reasonable inference that

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the defendant is liable for the misconduct alleged.” Id. The Court must “accept all factual

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allegations in the complaint as true and construe the pleadings in the light most favorable to the

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nonmoving party.” Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005).
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Dismissal Under Rule 12(b)(1)

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Federal courts are courts of limited jurisdiction. Kokkonen v. Guardian Life Ins. Co. of

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Am, 511 U.S. 375, 377 (1994). “If the court determines at any time that it lacks subject-matter

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jurisdiction, the court must dismiss the action.” Fed. R. Civ. P. 12(h)(3). A defendant may raise

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the defense of lack of subject matter jurisdiction by motion pursuant to Federal Rule of Civil
Procedure 12(b)(1). The plaintiff always bears the burden of establishing subject matter

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United States District Court
Northern District of California

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jurisdiction. Kokkonen, 511 U.S. at 377.
3.

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Motion to Strike

Under Rule 12(f) of the Federal Rules of Civil Procedure, the Court “may strike from a

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pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.”

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The function of a motion to strike pursuant to Rule 12(f) is “to avoid the expenditure of time and

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money that must arise from litigating spurious issues by dispensing with those issues prior to

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trial.” Whittlestone, Inc. v. Handi–Craft Co., 618 F.3d 970, 973 (9th Cir. 2010) (citation omitted).

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B.

Compensatory Damages

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Defendant argues that Plaintiff cannot recover compensatory damages in a federal ADEA

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case. ECF No. 14 at 9. In Ahlmeyer v. Nevada System of Higher Education, 555 F.3d 1051, 1059

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(9th Cir. 2009), the Ninth Circuit held that “[c]ompensatory damages for pain and suffering and

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punitive damages are not available under the ADEA[.]” “Relief under the ADEA is limited to

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‘judgments compelling employment, reinstatement, or promotion,’ the recovery of unpaid

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minimum wages or overtime pay, and reasonable attorneys’ fees and costs.” Id. (citation omitted).

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Plaintiff argues that the language of the statute is broad, and that “nothing in the statute

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forbids an award of compensatory damages.” ECF No. 15 at 12. But this argument is not

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sufficient to overcome binding precedent in this circuit. Defendant correctly points out that courts

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in this circuit have recently recognized Ahlmeyer’s holding in the section 633a context. See
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Walker v. U.S. Dep’t of Commerce, No. 1:11-CV-01195 AWI, 2012 WL 1424495, at *6–7 (E.D.

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Cal. Apr. 24, 2012) (dismissing with prejudice both “Plaintiffs’ demands for punitive damages

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under the ADEA” and “Plaintiffs’ claims for liquidated damages and compensatory damages for

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pain and suffering or emotional distress under the ADEA.”); Offield v. Holder, No. 12-CV-03053-

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JST, 2014 WL 1892433, at *18 (N.D. Cal. May 12, 2014) (holding “[d]efendant is entitled to

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judgment against Plaintiff’s non-wage, general, liquidated, and punitive damages claims” ).

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Plaintiff’s complaint alleges mental and emotional stress, as well as damages caused by the

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loss of “thousands of dollars in home investments.” ECF No. 1 ¶¶ 16, 19, 21. Ahlmeyer makes

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clear that these damages are not available under the ADEA. Likewise, because non-wage, general,
liquidated, and punitive damages are not available under the ADEA, Plaintiff’s request for “other

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United States District Court
Northern District of California

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damages” that arise under these damage theories is also foreclosed.

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However, as Ahlmeyer notes, lost wages are available under the ADEA. See also Walker,

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2012 WL 1424495, at *6 (“‘Nothing in the ADEA indicates an intent by Congress to permit the

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recovery of damages beyond lost wages’ in cases where the government has waived sovereign

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immunity.” (quoting Smith v. Office of Personnel Mgmt., 778 F.2d 258, 261 (5th Cir. 1985))).

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Given that Plaintiff alleges he accepted his reassignment to a new TSA office, though, he has

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failed to provide any facts that suggest he should be awarded lost wages. Accordingly, any claims

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for lost wages are dismissed without prejudice. All other claims for damages are dismissed with

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prejudice.

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C.

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Defendant also contends that Plaintiff’s case must be dismissed because the federal

Sovereign Immunity and Disparate Impact Claims

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government has, through the ADEA, only waived its sovereign immunity for disparate treatment

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claims of discrimination, not disparate impact claims. ECF No. 14 at 10. “It is axiomatic that the

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United States may not be sued without its consent and that the existence of consent is a

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prerequisite for jurisdiction.” U.S. v. Mitchell, 463 U.S. 206, 212 (1983). In Smith v. City of

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Jackson, 544 U.S. 228 (2005), the Supreme Court held that disparate impact claims of

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discrimination were available under the ADEA against private parties, but did not decide whether

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the same was true against state parties.
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The Ninth Circuit has addressed this question. In Palmer v. United States, 794 F.2d 534,

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536 (9th Cir. 1986), the court explained that “[a] plaintiff alleging discrimination under the ADEA

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may proceed under either of two theories: disparate treatment or disparate impact.” “Under the

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disparate treatment theory the employee must show discriminatory motive by the employer.” Id.

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However, “[d]iscriminatory motive need not be shown under the disparate impact theory.” Id. In

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Palmer, the Ninth Circuit considered an ADEA claim raised against the United States Forest

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Service, ultimately affirming the dismissal of the claim because the plaintiff failed to prove any

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discriminatory impact.

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Defendant contends that the Court should not follow Palmer for several reasons. First, it
argues that Palmer should be afforded little weight because the Ninth Circuit did not explicitly

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United States District Court
Northern District of California

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analyze the question of whether disparate impact claims are available. ECF No. 14 at 13. It is true

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that the Palmer decision does not include a detailed analysis of why the language of section 633a

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allows for disparate impact theories of discrimination. Nevertheless, it is clear that the Ninth

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Circuit considered the availability of disparate impact claims to be binding precedent in the circuit.

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The court cited multiple Ninth Circuit cases as support and endorsed the district court’s decision to

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treat the plaintiff’s argument as a disparate impact claim even though the plaintiff never identified

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it as such in the complaint. Palmer, 794 F.2d at 536, 538. Moreover, the question of whether the

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ADEA authorizes disparate impact claims against the government is a jurisdictional one, and “[i]f

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the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the

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action.” Fed. R. Civ. Proc. 12(h)(3). The Court can therefore safely assume that the Ninth

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Circuit, in Palmer, concluded that disparate impact claims were available to the plaintiff against a

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federal state defendant.

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Second, Defendant contends that because Palmer pre-dates the Supreme Court’s decision

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in Smith v. City of Jackson, it has not incorporated Smith’s “teachings” and is of questionable

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value. ECF No. 14 at 13. Smith, however, has little to teach on this subject because it was

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concerned with the availability of disparate impact claims against private parties, and thus with an

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entirely different section of the ADEA. Moreover, to the extent that Smith has anything of value

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to say about Palmer, it appears to approve of it. As support for its holding, the Supreme Court
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noted that “for over two decades after our decision in Griggs, the Courts of Appeal uniformly

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interpreted the ADEA as authorizing recovery on a ‘disparate-impact’ theory in appropriate

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cases,” and cited Palmer as an example in a footnote. Smith, 544 U.S. at 237 & n.8. It seems

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unlikely that the Supreme Court would issue a decision counseling towards forbidding disparate

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impact claims against the government under the ADEA while simultaneously citing a Ninth

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Circuit case allowing those claims as support.

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Third, Defendant argues that the weight of authority following the Supreme Court’s
decision in Smith foreclose the possibility of federal sector disparate impact claims. ECF No. 14

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at 14. It cites to several district court cases from the District of Columbia. Id. (citing to Allard v.

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Holder, 840 F. Supp. 2d 269 (D.D.C. 2012); Silver v. Leavitt, No. CIV.A. 05-0968 JDB, 2006 WL

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United States District Court
Northern District of California

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626928; Anderson v. Duncan, 20 F. Supp. 3d 42 (D.D.C. 2013)). Yet even Defendant’s own

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cases, as well as many others in the D.C. Circuit, recognize that the case law is not settled. See,

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e.g., Anderson, 20 F. Supp. 3d at 58, 62 (D.D.C. 2013) (holding plaintiff’s disparate impact claim

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is not cognizable, but recognizing that the Ninth and Tenth Circuits have “entertained claims of

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disparate impact against federal employers”); Aliotta v. Bair, 576 F. Supp. 2d 113, 127 n.7

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(D.D.C. 2008) aff’d, 614 F.3d 556 (D.C. Cir. 2010) (describing that “[n]either the D.C. Circuit nor

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the Supreme Court has addressed whether ADEA disparate impact cases are legally cognizable

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against federal employers” and writing that the “[m]embers of the D.C. District Court remain

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divided on the issue.”). The post-Smith decisions cited by Defendant therefore offer little help to

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the Court.

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Defendant is correct in stating that waivers of sovereign immunity cannot be implied.

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However, “[t]he prohibition for federal employers is simple and sweeping . . . The statutory text

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does not limit or qualify the type of age discrimination that Congress prohibited for federal

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employers, or limit the theory or proof upon which a plaintiff may base a claim that a federal

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employer violated § 633a(a).” Breen v. Peters, 474 F. Supp. 2d 1, 6 (D.D.C. 2007). The Court

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concludes, consistent with Palmer, that Plaintiff may bring a disparate impact claim against

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Defendant. Accordingly, Defendant’s motion to dismiss and/or strike Plaintiff’s disparate impact

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claims is denied.
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CONCLUSION

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For the foregoing reasons, the Court dismisses with prejudice Plaintiff’s claim for

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compensatory damages, as well as any claims for “other damages” in Plaintiff’s complaint. The

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Court dismisses without prejudice any claims for lost wages to the extent they are included in

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“other damages.” Lastly, the Court denies Defendant’s motion to dismiss and/or strike Plaintiff’s

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disparate impact claim.

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IT IS SO ORDERED.
Dated: November 16, 2015

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United States District Court
Northern District of California

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______________________________________
JON S. TIGAR
United States District Judge

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