Smith v. Johnson et al

Filing 31

MEMORANDUM-DECISION and ORDER - that defendants' 22 Partial Motion to Dismiss is GRANTED, and Smith's claims pursuan to the ADA and the Rehabilitation Act are DISMISSED, leaving only a claim pursuant to Title VII of the Civil Rights Act of 1964. That the parties contact Magistrate Judge Therese Wiley Dancks to schedule further proceedings in the case. Signed by Chief Judge Gary L. Sharpe on 4/28/2015. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
CAROLE ANNE SMITH,
Plaintiff,

8:12-cv-1087
(GLS/TWD)

v.
UNITED STATES DEPT. OF
HOMELAND SECURITY
(TRANSPORTATION SECURITY
ADMINISTRATION) et al.,
Defendants.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Carole Anne Smith
Pro Se
72 Balsam Street
Lake Placid, NY 12946
FOR THE DEFENDANTS:
HON. RICHARD S. HARTUNIAN
United States Attorney
James T. Foley U.S. Courthouse
445 Broadway, Room 218
Albany, NY 12207-2924

KAREN FOLSTER
LESPERANCE
Assistant U.S. Attorney

Gary L. Sharpe
Chief Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction

Plaintiff pro se Carole Anne Smith commenced this action against
defendants1 United States Department of Homeland Security
(Transportation Security Administration (TSA)) and Janet Napolitano,
Secretary, alleging, among other claims, violations of the Americans with
Disabilities Act (ADA).2 (See generally Am. Compl., Dkt. No. 11 at 1-6.)
Given Smith’s pro se status, the court liberally construes her amended
complaint as also asserting a claim under the Rehabilitation Act,3 despite
her inartful pleading. Pending is defendants’ pre-answer motion for partial
dismissal of Smith’s amended complaint pursuant to Fed. R. Civ. P.
12(b)(6).4 (Dkt. No. 22.) For the reasons that follow, defendants’ motion is
granted.
II. Background

1

The caption of Smith’s amended complaint is difficult to decipher. Giving her
pleading the most liberal interpretation, the court has determined that the caption lists two
defendants: (1) United States Department of Homeland Security (Transportation Security
Administration); and (2) Janet Napolitano, Secretary. (Am. Compl. ¶ 3.b, Dkt. No. 11 at 1-6.)
The Clerk is directed to substitute Jeh Johnson, Secretary of Homeland Security, for
defendant Janet Napolitano, and amend the caption accordingly. See Fed. R. Civ. P. 25(d).
2

See 42 U.S.C. §§ 12101-12213.

3

See 29 U.S.C. §§ 701-796l.

4

Smith also asserts claims for discrimination and retaliation under Title VII of the Civil
Rights Act. See 42 U.S.C. §§ 2000e-2000e-17. Because defendants do not seek to dismiss
those claims here, the court does not consider them.

2

A.

Facts5
In 2008 and 2009, Smith worked at the Albany International Airport,

screening passengers and baggage at security checkpoints. (Am. Compl.
¶¶ 10, 13, 19-20.) During this time, Smith was “constantly harassed and
actually threatened” by two coworkers who created a “very hostile and
scary work environment.” (Id. ¶ 26.a, c.) Some of this harassment was
due to her religious beliefs as a Wiccan. (Id. ¶¶ 14, 16.) Further, in June
2009, Smith claims that she was the victim of disability discrimination after
she suffered an ankle injury at work. (Id. ¶¶ 24-25.) On September 10,
2009, Smith filed charges with the Equal Employment Opportunity
Commission, which found that Smith failed to prove that she was subjected
to discrimination as alleged and issued Smith a right-to-sue letter on April
20, 2012. (Id. ¶¶ 27-28; Dkt. No. 11 at 7-11.)
B.

Procedural History
Smith commenced this action on July 9, 2012. (See generally

Compl., Dkt. No. 1.) On November 13, 2012, upon an initial review
pursuant to 28 U.S.C. § 1915(e)(2), Magistrate Judge Thérèse Wiley

5

The facts are drawn from Smith’s amended complaint and presented in the light most
favorable to her.

3

Dancks recommended that Smith’s complaint be dismissed with leave to
amend her Title VII and ADA claims if she could, in good faith, allege that
she had exhausted her administrative remedies and been issued a right-tosue letter. (Dkt. No. 5.) The court adopted Judge Dancks’ Order and
Report-Recommendation, and granted Smith leave to amend her
complaint. (Dkt. No. 9.) Consistent with the court’s order, Smith filed an
amended complaint on March 1, 2013 alleging claims pursuant to Title VII
and the ADA. (See generally Am. Compl.) Defendants filed the nowpending motion, seeking dismissal of Smith’s ADA claim, and, to the extent
that the court may be inclined to interpret Smith’s ADA claim as a claim
under the Rehabilitation Act, dismissal of that claim as well. (See generally
Dkt. No. 22.)
III. Standard of Review
The standard of review under Fed. R. Civ. P. 12(b)(6) is well
established and will not be repeated here. For a full discussion of the
standard, the court refers the parties to its prior opinion in Ellis v. Cohen &
Slamowitz, LLP, 701 F. Supp. 2d 215, 218 (N.D.N.Y. 2010).
IV. Discussion
A.

ADA Claim
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First, defendants point out that Smith’s claim under the ADA is barred
because the ADA does not apply to federal employees. (Dkt. No. 22,
Attach. 1 at 3); see 42 U.S.C. § 12111(5)(B)(i). Instead, “[i]n the Second
Circuit, Section 501 of the Rehabilitation Act provides the exclusive route
by which federal employees may raise claims of employment discrimination
on the basis of disability.” Carby v. Holder, No. 11 Civ. 5775, 2013 WL
3481722, at *8 n.9 (S.D.N.Y. July 10, 2013) (citing Rivera v. Heyman, 157
F.3d 101, 104 (2d Cir. 1998)). Thus, the court will construe Smith’s pro se
amended complaint as alleging a claim under the Rehabilitation Act. See
Hodges v. Holder, 547 F. App’x 6, 7 n.1 (2d Cir. 2013).
B.

Rehabilitation Act
Defendants next argue that, even if it is construed as a claim under

the Rehabilitation Act, Smith’s claim that she was discriminated against on
the basis of her disability is barred because the Aviation and
Transportation Security Act (ATSA) preempts application of the
Rehabilitation Act to Transportation Security Officers. (Dkt. No. 22, Attach.
1 at 4-7.) Smith’s response reiterates the allegations in her complaint and
states that she was unaware “of different laws for Federal agencies.” (Dkt.
No. 30 at 1.) The court agrees with defendants that dismissal of Smith’s
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claims alleging discrimination based on disability is required.
“The ATSA broadly expand[ed] the government’s control over, and
active role in, aviation security through the creation of the TSA.” Conyers
v. Rossides, 558 F.3d 137, 139 (2d Cir. 2009) (internal quotation marks
and citations omitted). The TSA is headed by an Administrator who is
required to “provide for the screening of all passengers and property
. . . that will be carried aboard a passenger aircraft operated by an air
carrier or foreign air carrier in air transportation or intrastate air
transportation.” 49 U.S.C. § 44901(a).6 “[I]n order to ensure that Federal
screeners are able to provide the best security possible,” the Administrator
was given “wide latitude to determine the terms of employment of
screeners.” H.R. Rep. No. 107-296, at 64 (2001) (Conf. Rep.), reprinted in
2002 U.S.C.C.A.N. 589, 600. The ATSA provides that “notwithstanding
any other provision of law, the [Administrator] may employ, appoint,
discipline, terminate, and fix the compensation, terms, and conditions of

6

Pursuant to section 101 of the ATSA, 49 U.S.C. § 114 was added to establish the
TSA as an administration of the United States Department of Transportation (DOT). However,
pursuant to the Department of Homeland Security Reorganization Plan, as required by Section
1502 of the Department of Homeland Security Act of 2002, Pub. L. No. 107–296, 116 Stat.
2135 (2002), the TSA was transferred from the DOT to the Department of Homeland Security,
effective March 1, 2003. In addition, “the title of the head of the TSA was changed from
‘Under Secretary,’ as the post is referred to in the ATSA, to ‘Administrator.’” Conyers, 558
F.3d at 139 n.1 (citations omitted).

6

employment of Federal service for such a number of [screener personnel]
necessary to carry out the screening functions [required by the Act].” Pub.
L. 107-71, § 111(d), 115 Stat. 597 (2001) (codified as a note to 49 U.S.C.
§ 44935). In addition, the ATSA enumerates specific physical
qualifications for screeners, requires that screeners meet any such other
physical qualifications as the TSA Administrator may establish, and
requires the TSA to conduct annual evaluations to ensure conformity with
such qualifications. See 49 U.S.C. § 44935(e)-(f).
Because of the “notwithstanding clause” and the physical
requirements for screeners, every circuit court that has addressed this
issue has agreed that security screeners are precluded from bringing suit
under the Rehabilitation Act. See Field v. Napolitano, 663 F.3d 505, 51014 (1st Cir. 2011); Joren v. Napolitano, 633 F.3d 1144, 1146 (7th Cir.
2011); Castro v. Sec’y of Homeland Sec., 472 F.3d 1334, 1337 (11th Cir.
2006). This is consistent with the Second Circuit’s interpretation of the
“notwithstanding clause” in the context of the Veterans Employment
Opportunities Act (VEOA). See Conyers, 558 F.3d at 149 (holding that the
preference provisions of the VEOA are not binding on the Administrator in
light of section 111(d) of the ATSA). Given the express language of the
7

statute itself, the court concludes that the ATSA preempts Rehabilitation
Act claims by airport security screeners, such as Smith. (Am. Compl.
¶¶ 10, 13, 19-20); see 49 U.S.C. § 44901(a), (g)(5). Accordingly,
defendants’ partial motion to dismiss is granted.
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that defendants’ partial motion to dismiss (Dkt. No. 22) is
GRANTED, and Smith’s claims pursuant to the ADA and the Rehabilitation
Act are DISMISSED, leaving only a claim pursuant to Title VII of the Civil
Rights Act of 1964; and it is further
ORDERED that the parties contact Magistrate Judge Thérèse Wiley
Dancks to schedule further proceedings in this case; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
April 28, 2015
Albany, New York

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