663 F.3d 505 (1st Cir. 2011), 11-1339, Field v. Napolitano

Docket Nº:11-1339.
Citation:663 F.3d 505
Opinion Judge:LYNCH, Chief Judge.
Party Name:Martin FIELD, Plaintiff, v. Janet NAPOLITANO, Secretary, Department of Homeland Security, Defendant, Appellee. Maura Field, Administratrix of the Estate of Martin T. Field, II, Plaintiff, Appellant,
Attorney:Mitchell J. Notis, with whom the Law Office of Mitchell J. Notis was on brief, for appellant. Christine J. Wichers, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, and Jennifer A. Serafyn, Assistant United States Attorney, were on brief, for appellee.
Judge Panel:Before LYNCH, Chief Judge, HOWARD and THOMPSON, Circuit Judges.
Case Date:November 10, 2011
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 505

663 F.3d 505 (1st Cir. 2011)

Martin FIELD, Plaintiff,

Maura Field, Administratrix of the Estate of Martin T. Field, II, Plaintiff, Appellant,

v.

Janet NAPOLITANO, Secretary, Department of Homeland Security, Defendant, Appellee.

No. 11-1339.

United States Court of Appeals, First Circuit

November 10, 2011

Heard Oct. 3, 2011.

Page 506

Mitchell J. Notis, with whom the Law Office of Mitchell J. Notis was on brief, for appellant.

Christine J. Wichers, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, and Jennifer A. Serafyn, Assistant United States Attorney, were on brief, for appellee.

Before LYNCH, Chief Judge, HOWARD and THOMPSON, Circuit Judges.

LYNCH, Chief Judge.

This is a case of first impression for this court as to airport security screeners and the relationship between the Aviation and Transportation Security Act (ATSA), Pub.L. No. 107-71, 115 Stat. 597 (2001) (codified in scattered sections of 49 U.S.C.), and the Rehabilitation Act, 29 U.S.C. § 791 et seq.

Maura Field, administratrix of the estate of her late husband Martin Field, appeals from the district court's dismissal of her suit alleging that the Transportation Security Administration (TSA) discriminated and retaliated against Martin Field (" Field" ) on the basis of a disability in violation of the Rehabilitation Act. TSA determined that Field, who developed a diabetic ulcer on the bottom of his foot in 2006, was unable to perform even his adjusted job requirements as a TSA security screener at Boston's Logan International Airport because he could not stand for long periods of time and experienced difficulty walking. After Field missed several months of work, TSA terminated Field's employment on November 27, 2006, two years after it had hired him.

Field 1 brought suit in federal court in Massachusetts, alleging discrimination and retaliation under the Rehabilitation Act, after exhausting administrative remedies. The district court dismissed both claims because it concluded that the ATSA precludes a cause of action under the Rehabilitation Act. Field v. Napolitano, No. 10-10385 (D.Mass. Mar. 3, 2011). We affirm.

I.

The facts, as alleged in the complaint, are as follows.

On November 28, 2004, Mr. Field began working for TSA as an airport security screener at Logan International Airport in Boston, Massachusetts. TSA security screeners are primarily responsible for screening people and property at TSA security checkpoints in federal airports. Screeners are expected to meet several conditions of employment, including the ability to walk up to two miles during a shift and stand for prolonged periods of time. Screeners are also required to handle, lift, and carry baggage weighing up to seventy pounds.

Page 507

Field suffered from diabetes and several related medical conditions, including recurring diabetic ulcers on the bottom of his feet. These diabetic ulcers required Field to wear an air cast and to remain off his feet for extended periods of time.

In April 2006, Field was approved for restricted duty " to limit the time that he had to stand while he was working" due to a diabetic ulcer. He " reported to work on most days, but on occasion called in sick because he was unable to walk due to the diabetic ulcer on his foot." In June 2006, Field's leg became infected and he took approximately six weeks of leave under the Family Medical Leave Act.

On July 27, 2006, Field faxed a doctor's note to TSA management official George Barris stating that Field was able to return to work " with [the] restriction of getting off of his foot to a sitting position as he feels a need during his shift." Field alleges that he also called and faxed Barris several times over the following week, but received no response.

On August 4, 2006, Field reported for work. He was given certain forms to be completed by his doctor. Field immediately went to his doctor's office, where his doctor completed and faxed the forms to TSA Manager Tom Brady. That afternoon, Brady allegedly informed Field that TSA management " considered Mr. Field to be too much of a liability to return to work at that time." Field did not return to work.

From August 4 to October 23, 2006, Field called in sick nearly every day " so that he would not be terminated for not showing up for work." In the meantime, Field applied for unemployment benefits. Field stopped calling in sick on October 24, 2006, the day that he began to receive unemployment benefits.

On October 18, 2006, Barris sent Field a memorandum stating:

[B]ecause of your extended illness or absence, which has not been supported, you are requested to furnish medical evidence which includes a diagnosis and prognosis by October 25, 2006, to cover your absence.... If absence is due to a cause other than your personal illness, you are required to submit evidence to justify the reason for your absence.... Should you fail to provide acceptable evidence for your current absence by October 25, 2006, ... your absence will be charged to absence without official leave (AWOL), and necessary corrective action, up to and including removal from the TSA, will be initiated.

(alterations in original complaint). Field responded to Barris that he had reported for work with restrictions in August and had been informed that he would not be allowed to return to work. On October 26, Brady sent Field a further request for medical information, stating: " Our records indicate that you continue to call the sick line and to date we have not received any documentation which would authorize you to return to full duty without any restrictions." Field did not respond to this request.

On November 27, 2006, TSA terminated Field's employment, citing excessive absence without leave and failure to follow instructions.

After exhausting administrative remedies, Field brought suit in March 2010, alleging both discrimination on the basis of his diabetes and retaliation as a result of engaging in protected EEO activity. The TSA moved to dismiss both claims on the basis that the Aviation and Transportation Act (ATSA) exempts the TSA from compliance with the Rehabilitation Act and so provides no private cause of action to Field for either theory.

Page 508

The district court granted the TSA's motion to dismiss as to both claims. Field, No. 10-10385, slip op. at 2. As to the discrimination claim, the district court reasoned that the ATSA authorizes the TSA to set standards of employment for security screeners such as Field " [n]otwithstanding any other provision of law," and that this " notwithstanding" language signals that the ATSA overrides any conflicting provisions of the Rehabilitation Act. Id. at 1-2. The district court noted that the Seventh and Eleventh Circuits have also " held explicitly that the ATSA preempts the Rehabilitation Act." Id. at 2. Because the plaintiff had no cause of action under the Rehabilitation Act, the retaliation claim also failed. Id.

II.

We review de novo the grant of a motion to dismiss under Rule 12(b)(6), accepting " as true all well-pleaded facts and making all reasonable inferences in favor of the plaintiff." Massachusetts v. Sebelius, 638 F.3d 24, 29 (1st Cir.2011). This issue is one of pure law, reviewed de novo. See Dickow v. United States, 654 F.3d 144, 148 (1st Cir.2011).

A. The Aviation and Transportation Security Act (ATSA)

Congress enacted the ATSA immediately after the terrorist attacks of September 11, 2001. Congress sought " to improve aviation security" by effecting " fundamental change in the way [the United States] approaches the task of ensuring the safety and...

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