Stather v. Homeland Security et al

Filing 87

ORDER ADOPTING REPORT AND RECOMMENDATION. 1. Plaintiff Sharon A. Stadther's objections (Doc. No. 83 ) to Magistrate Judge Jeanne J. Graham's August 7, 2012 Report and Recommendation are DENIED. 2. Magistrate Judge Jeanne J. Graham's August 7, 2012 Report and Recommendation (Doc. No. 82 ) is ADOPTED. 3. Defendants' Motion and Amended Motion to Dismiss (Doc. Nos. 27 and 50 ) is GRANTED. 4. Plaintiff's Motion to/for Section 706(f)(2) of Title VII (Doc. No. 30 ) is D ENIED. 5. Plaintiff's Motion to/for Rule 9 (Doc. No. 33 ) is DENIED. 6. Plaintiff's Motion to/for Rule 8 (Doc. No. 39 ) is DENIED. 7. Plaintiff's Motion to/for Tort-Intentional Infliction of Emotional Pain (Doc. No. 45 ) is DENIED. 8. This case is DISMISSED WITH PREJUDICE. (Written Opinion). Signed by Judge Donovan W. Frank on 09/25/2012. (BJS)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Sharon A. Stadther,

Civil No. 11-1297 (DWF/JJG)
Plaintiff,

v.

ORDER ADOPTING REPORT
AND RECOMMENDATION

Department of Homeland Security,
Kenneth Kasprison, Megen Kelly,
Lola Jackson, and Diane DiCarlo,
Defendants.

This matter is before the Court on Plaintiff Sharon A. Stadther’s (“Plaintiff”)
objections to Magistrate Judge Jeanne J. Graham’s August 7, 2012 Report and
Recommendation. (Doc. No. 82.) In the Report and Recommendation, Magistrate Judge
Graham recommends that: (1) Defendants’ Motion and Amended Motion to Dismiss be
granted; (2) Plaintiff’s Motion to/for Section 706(f)(2) of Title VII be denied;
(3) Plaintiff’s Motion to/for Rule 9 be denied; (4) Plaintiff’s Motion to/for Rule 8 be
denied; (5) Plaintiff’s Motion to/for Tort-Intentional Infliction of Emotional Pain be
denied; and (6) this case be dismissed with prejudice. (Doc. Nos. 27, 30, 33, 39, 45, and
50.) 1

1

The Court uses the motion titles used by Plaintiff in this action, and clarifies the
substance of the following motions below. In her “Motion to/for Section 706(f)(2) of
Title VII,” Plaintiff sought relief under a statute that permits the EEOC to request relief
based on a preliminary investigation. Magistrate Judge Graham explained that this statute
does not provide a private right of action. (Doc. No. 82 at 13.) In her “Motion to/for
Rule 9,” Plaintiff moved for an order requiring individual Defendants to pay her medical
(Footnote Continued on Next Page)

Plaintiff has objected to the portion of Magistrate Judge Graham’s Report and
Recommendation holding that Section 111(d) of the Aviation and Transportation Security
Act (“ATSA”) preempted the Rehabilitation Act of 1973 (the “Rehabilitation Act”) and the
Rehabilitation Act’s application to Plaintiff’s lawsuit. Specifically, Plaintiff argues that
(1) the ATSA does not entirely preempt the Rehabilitation Act; (2) the ATSA does not
preempt Plaintiff’s claims because it only applies to individuals carrying out “screening
functions” and Plaintiff was not a screener from 2005 to 2008 and requested non-screening
jobs; and (3) Plaintiff’s claims are not preempted by the ATSA because the Transportation
Security Administration’s (“TSA”) retaliation continued after her employment ended.
(Doc. No. 83.) Defendants responded to Plaintiff’s objections on September 7, 2012.
(Doc. No. 86.) Defendants submit that Plaintiff’s objections are based on arguments that
were made in opposition to Defendants’ motions to dismiss, and that those arguments were
carefully considered and properly rejected by Magistrate Judge Graham. Further,
Defendants submit that Plaintiff fails to demonstrate that the Report and Recommendation
is incorrect in any way.
(Footnote Continued From Previous Page)
bills and transportation costs. Magistrate Judge Graham explained that Rule 9(g) does not
provide for an actual award of such relief. (Id.) In her “Motion to/for Rule 8,” Plaintiff
requested an order requiring individual Defendants to compensate her for insurance
premiums she paid after her health insurance was cancelled. Magistrate Judge Graham
explained that Rule 8(a) pertains only to pleading requirements. (Id. at 13-14.) Finally,
in her “Motion to/for Tort-Intentional Infliction of Emotional Pain,” Plaintiff requested
that Defendants be required to pay her monetary relief for causing intentional infliction of
emotional pain. Magistrate Judge Graham also explained that this claim fails on the
merits and jurisdictional grounds. (Id. at 14.)
2

The Court has conducted a de novo review of the record, including a review of the
arguments and submissions of counsel, pursuant to 28 U.S.C. § 636(b)(1) and Local
Rule 72.2(b). The factual background for the above-entitled matter is clearly and
precisely set forth in the Report and Recommendation and is incorporated by reference for
purposes of Plaintiff’s objections. Based upon the Court’s de novo review of the record,
and all of the arguments and submissions of the parties, the Court concludes that
Magistrate Judge Graham correctly concluded that the ATSA preempts Plaintiff’s
rehabilitation claims, and correctly recommended that Defendants’ motions to dismiss
should be granted, Plaintiff’s motions should be denied, and the case should be dismissed
with prejudice. While the Eighth Circuit has not addressed the issue, the Court agrees that
the ATSA, which was enacted in response to the September 11, 2001 terrorist attacks,
preempts the application of the Rehabilitation Act to employment decisions concerning
security screening positions. See Field v. Napolitano, 663 F.3d 505, 510, 512 (1st Cir.
2011) (“Every circuit to address the issue has agreed that the language of the ATSA plainly
precludes security screeners from bringing suit under certain of the federal employment
statutes [including the Rehabilitation Act] . . .”); Joren v. Napolitano, 633 F.3d 1144, 1146
(7th Cir. 2011), cert. denied, 132 S. Ct. 290 (2011); Castro v. Sec’y of Homeland Sec., 472
F.3d 1334, 1447 (11th Cir. 2006). The Court concludes that Plaintiff’s arguments to the
contrary fail for the reasons set forth by Magistrate Judge Graham. Specifically, the Court
agrees that the legislative history of the ATSA demonstrates that Congress was aware of
the expansive discretion it was granting to the TSA and that Congress did not give the
3

EEOC a role in interpreting the ATSA. The Court also agrees that Plaintiff’s duties, even
as modified after her security screening certification expired in 2005 and included
watching and monitoring passengers waiting for additional screening, were functions
“inherent in § 44901(a)’s mandate” to screen all passengers prior to boarding. (See Doc.
No. 82 at 9 (citing Doc. No. 5, Amended Compl., Ex. 5 at 5, 7).) Finally, the Court
concludes that Plaintiff’s argument that her retaliation claims that relate to requests for
non-screener jobs are not preempted also fails for the reasons set forth in the Report and
Recommendation. 2
For the reasons stated above, and being otherwise duly advised in the premises, the
Court hereby enters the following:
ORDER
1.

Plaintiff Sharon A. Stadther’s objections (Doc. No. [83]) to Magistrate Judge

Jeanne J. Graham’s August 7, 2012 Report and Recommendation are DENIED.
2.

Magistrate Judge Jeanne J. Graham’s August 7, 2012 Report and

Recommendation (Doc. No. [82]) is ADOPTED.
3.

Defendants’ Motion and Amended Motion to Dismiss (Doc. Nos. [27] and

[50]) is GRANTED.
2

Plaintiff also argues that even if the ATSA preempts her discrimination claim, it
does not preempt her retaliation claim because the TSA continued to retaliate after her
employment ended. Plaintiff raised this argument for the first time in her objections to the
Report and Recommendation. Thus, the argument was not considered by Magistrate
Judge Graham and is now untimely. The Court considers the argument to have been
waived.
4

4.

Plaintiff’s Motion to/for Section 706(f)(2) of Title VII (Doc. No. [30]) is

DENIED.
5.

Plaintiff’s Motion to/for Rule 9 (Doc. No. [33]) is DENIED.

6.

Plaintiff’s Motion to/for Rule 8 (Doc. No. [39]) is DENIED.

7.

Plaintiff’s Motion to/for Tort-Intentional Infliction of Emotional Pain (Doc.

No. [45]) is DENIED.
8.

This case is DISMISSED WITH PREJUDICE.

LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: September 25, 2012

s/Donovan W. Frank
DONOVAN W. FRANK
United States District Judge

5