Mattson v. Napolitano

• Decision Date: 11 August 2012
• Docket Number: Civil Action No. 11-cv-02214-MSK-CBS
• Parties: CYNTHIA M. MATTSON, Plaintiff, v. JANET NAPOLITANO, U.S. DEPARTMENT OF HOMELAND SECURITY, and TRANSPORTATION SECURITY ADMINISTRATION, Defendants.
• Court: U.S. District Court — District of Colorado

CYNTHIA M. MATTSON, Plaintiff,

v. JANET NAPOLITANO, U.S. DEPARTMENT OF HOMELAND SECURITY,and TRANSPORTATION SECURITY ADMINISTRATION, Defendants.

Civil Action No. 11-cv-02214-MSK-CBS

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

DATED August, 2012

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Magistrate Judge Craig B. Shaffer

This civil action comes before the court on "Defendants' Motion to Dismiss Plaintiff's Amended Complaint [Doc. 7]" (filed January 17, 2012) (Doc. # 25). Pursuant to the Order of Reference dated November 29, 2011 (Doc. # 13) and the memorandum dated June 25, 2012 (Doc. # 39), this matter was referred to the Magistrate Judge. The court has reviewed the Motion, "Plaintiff's Response to Defendant's Motion to Dismiss" (filed May 7, 2012) (Doc. # 36), Defendants' Reply (filed May 23, 2012) (Doc. # 37), the pleadings, the entire case file and the applicable law and is sufficiently advised in the premises.

I. Statement of the Case

Proceeding pro se, Ms. Mattson filed her initial "Title VII Complaint" on August 23, 2011. At the court's direction, she filed "Plaintiff's Amended Complaint" (hereinafter "AC") on November 7, 2011. (See "Order Directing Plaintiff to Cure Deficiency" (Doc. # 3); Minute Order (Doc. # 5); AC (Doc. # 7) at 1-2, 5-6 of 9). Ms. Mattson's claims are difficult to discern from her pleading. Ms. Mattson alleges an "incident on March 1, 2008 at her workplace,Denver International Airport, in Aurora, Colorado" that occurred "in her capacity of performing screening duties as an employee of the Department of Homeland Security Transportation Security Administration." (See AC (Doc. # 7) at 1, 7 of 9). Ms. Mattson's last day on the job with TSA was July 6, 2010, when her "light duty" status expired. (See Declaration of Ruth Antosik (Exhibit 3 to Motion (Doc. # 25-3) at ¶¶ 3-4).¹ She has not performed any work for the Transportation Security Administration ("TSA") since July 6, 2010. (See id. at ¶ 4). Her employment was formally terminated on February 18, 2011. (See id. at ¶ 5).

Liberally construed, Ms. Mattson's pleading seems to allege that TSA discriminated against her based on her gender, age, and disability, and retaliated against her for filing complaints with the Equal Employment Opportunity Commission ("EEOC"). She alleges that "in the 2007-2009 timeframe," she presented to the EEOC discrimination claims based on "age, sex, disability and retaliation allegations." (See Doc. # 7 at 1; Response (Doc. # 36) at 5 of 68). Ms. Mattson appears to seek monetary damages. (See AC at 4, 8 of 9). She alleges jurisdiction under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and the "laws on retaliation." (See Doc. # 7 at 5 of 9). The court construes her retaliation allegation under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq.

II. Standard of Review

Defendants move to dismiss the AC pursuant to Fed. R. Civ. P. 12(b)(1), arguing that the court lacks subject matter jurisdiction over Ms. Mattson's claims. "Rule 12(b)(1) motionsgenerally take one of two forms: (1) a facial attack on the sufficiency of the complaint's allegations as to subject matter jurisdiction; or (2) a challenge to the actual facts upon which subject matter jurisdiction is based." Widjaja v. Nicholson, No. 08-cv-00204-MSK-MEH, 2009 WL 321875, at * 3 (D. Colo. Feb. 9, 2009) (citations omitted). "Where the defendant goes beyond the factual allegations in the Complaint, the Court may not presume the truthfulness of the complaint's factual allegations; rather, the Court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts." Id. (citation omitted). "The burden is on the proponent of federal jurisdiction—here, the Plaintiff—to establish that such jurisdiction exists." Id. (citation omitted).

Defendants further move for dismissal pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted.

[A] claim must be dismissed if the complaint does not contain enough facts to make the claim plausible on its face. A claim is plausible on its face if the complaint contains sufficient facts for a court to draw an inference that the defendant is liable for the alleged misconduct. Although a plaintiff is not required to include detailed factual allegations in a complaint, the complaint must contain more than labels and conclusions or a formulaic recitation of the elements of a cause of action and must raise a right to relief above the speculative level. In reviewing a complaint under Rule 12(b)(6), a court should accept, as true, all well-pleaded facts and construe all reasonable allegations in the light most favorable to a plaintiff.

Baldwin v. United States, No. 11-cv-02033-MSK-KLM, 2012 WL 2215680, at * 1 (D. Colo. June 15, 2012) (internal quotation marks and citations omitted).

III. Analysis

A. Prior Litigation

This is Ms. Mattson's third civil action claiming discrimination based on her former employment with TSA. Ms. Mattson alleges only two events in her employment history withTSA that have not been previously dismissed in her prior lawsuits: (1) her last day of work as a Transportation Security Officer ("TSO") for TSA was July 6, 2010, when her "light duty" status expired, and (2) her employment with TSA was formally terminated on February 18, 2011.

In Mattson v. Chertoff, Ms. Mattson brought claims for gender, age, and disability discrimination, violation of the Family Medical Leave Act ("FMLA"), and breach of employment contract. No. 07-cv-02432-PAB-BNB, 2009 WL 564289, at * 2 (D. Colo. March 5, 2009). The case was dismissed for, among other reasons, Ms. Mattson's failure to file her gender, age, and disability discrimination claims within 90 days after she received her Notice of Right to Sue from the Equal Employment Opportunity Commission ("EEOC"). See id.

In Mattson v. Napolitano, Ms. Mattson brought claims for gender and disability discrimination, hostile work environment, and retaliation for complaining about adverse treatment. No. 09-cv-2024-PAB-BNB, 2010 WL 5014630 (D. Colo. Dec. 2, 2010). (See also Recommendation of United States Magistrate Judge (Exhibit 1 to Motion (Doc. # 25-1) at 3 (Ms. Mattson has already brought claims that she "suffered gender and disability di[s]crimination; the defendant discriminated against her by failing to hire and promote her and by creating a hostile work environment; and the plaintiff has been retaliated against for filing a previous complaint of discrimination.")). The case was dismissed for failure to exhaust administrative remedies and failure to state a claim upon which relief could be granted. (See Doc. # 25-1); Order (Exhibit 2 to Motion (Doc. # 25-2)). Ms. Mattson's appeal of the District Court's Order dismissing the case was dismissed as untimely filed. See No. 10-1519 (10th Cir. Jan. 24, 2011). See also Mattson v. Cherthoff, Appeal No. 0120052563, Agency No. HS 04-1237, 2007 WL 2026963, at *1 (E.E.O.C. July 3, 2007) (affirming agency's final decision dismissing Ms. Mattson's claims for hostile work environment employment discrimination andharassment based on a disability); Mattson v. Cherthoff, Appeal No. 0120071715, Agency No. HS05TSA002236, 2007 WL 2350786, at *1 (E.E.O.C. Aug 6, 2007) (affirming agency's final decision dismissing Ms. Mattson's claims for hostile work environment employment discrimination, discrimination on the basis of age, discrimination based on a disability, and reprisal for prior EEO activity). Ms. Mattson presents no legal basis that allows her to relitigate these claims in this case.

B. Subject Matter Jurisdiction

1. Claims Based on Alleged Disability

Defendants argue that the court lacks subject matter jurisdiction over Ms. Mattson's claims for discrimination based on a disability. Ms. Mattson alleges jurisdiction under the ADA. (See Doc. # 7 at 5 fo 9). However, she "has no remedy for employment discrimination under the Americans With Disabilities Act because she [was] a federal employee." Mannie v. Potter, 394 F.3d 977, 982 (7th Cir. 2005) (citation omitted). The Rehabilitation Act, 29 U.S.C. § 701 et seq., applies to federal employees. The Aviation and Transportation Security Act of 2001 ("ATSA") Pub. L. No. 107-71, Nov. 19, 2001, 115 Stat. 597 (codified in various sections of 49 U.S.C.), exempts the TSA from compliance with the Rehabilitation Act. See 49 U.S.C. § 44935, Pub.L. 107-71, Title I, § 111(d), Nov. 19, 2001, 115 Stat. 620 (codified as a note) ("Notwithstanding any other provision of law, the Under Secretary of Transportation for Security may employ, appoint, discipline, terminate, and fix the compensation, terms, and conditions of employment of Federal service for . . . individuals as the Under Secretary determines to be necessary to carry out the screening functions of the Under Secretary . . . ."); Field v. Napolitano, 663 F.3d 505, 510 (1st Cir. 2011) ("Every circuit to address the issue has agreed that the language of the ATSA plainly precludes security screeners from bringingsuit under certain of the federal employment statutes incorporated under Title 5 of the United States Code, including the Rehabilitation Act.") (citations omitted); Joren v. Napolitano, 633 F.3d 1144, 1146 (7th Cir. 2011) (citing 49 U.S.C. § 44935), reh'g en banc denied (7th Cir. Mar. 9, 2011), cert. denied, 132 S. Ct. 290 (Oct. 3, 2011); Castro v. Secretary of Homeland Security, 472 F.3d 1334, 1337 (11th Cir. 2006) ("[T]he 'notwithstanding' language of section 44935(e) and the note to the statute indicate that TSA shall implement hiring standards and conditions of employment (including physical standards) for screening personnel, whether or not those standards and conditions of employment are consistent with the Rehabilitation Act."); Conyers v. Merit Sys. Prot. Bd., 388 F.3d 1380, 1383 (Fed. Cir. 2004) ("Section 111(d) of the ATSA exempts TSA from laws that otherwise would apply to screener positions.")....