Ricky BROOKS, Plaintiff, v. Janet NAPOLITANO, in her official capacity as Secretary of the United States Department of Homeland Security and Gale D. Rossides, in her official capacity as Acting Administrator, Transportation Secretary Administration U.S. Department of Homeland Security and Stuart J. Ishimaru, in his official capacity as Acting Chairman, U.S. Equal Employment Opportunity Commission, Defendants.
Civil Action No. 10-cv-099 (RLW)
United States District Court, District of Columbia.
Feb. 8, 2012.
ROBERT L. WILKINS, District Judge.
Kenneth Elliot Sealls, U.S. Department of Justice, Washington, DC, for Defendants.
MEMORANDUM OPINION1
ROBERT L. WILKINS, District Judge.
Before the Court is Defendants’ Amended Motion to Dismiss.2 Defendants move to dismiss Plaintiff Ricky Brooks’ complaint for failure to state a claim pursuant to
I. FACTUAL BACKGROUND
Plaintiff Brooks was employed by the Transportation Security Administration (“TSA”) starting March 31, 2002, and later accepted an airport supervisory security screener position at the General Mitchell International Airport in Milwaukee, Wisconsin. (Compl. ¶ 4). On December 3, 2003, TSA removed Brooks from this position and Brooks timely filed an EEO complaint alleging that his removal was due to discriminatory reprisal. (Compl. ¶¶ 9, 10). After a hearing, an EEOC administrative judge informed the parties that he would find unlawful reprisal concerning Plaintiff’s termination and scheduled a hearing for damages on September 27, 2005. (Compl. ¶¶ 11, 12). Before the hearing on damages, Brooks and the TSA executed a settlement agreement (“2005 Settlement Agreement”). (Compl. ¶ 12).
As part of the 2005 Settlement Agreement, the parties agreed that Brooks would be reinstated as a Transportation Security Screener after he passed all components of Phase 2 of the TSA screener assessment, which included a medical assessment. (Defs.’ Mem. Supp. Am. Mot. Dismiss, Exh. 1 ¶ A.4). Notwithstanding the fact that a physician certified that Brooks was capable of performing his job as a screener without imposing risks to himself, co-workers or customers, the TSA medically disqualified Brooks from being a screener at the agency based on his diabetic condition. (Compl. ¶ 13; Defs.’ Mem. Supp. Am. Mot. Dismiss, Exh. 2 at 2).
Subsequently, Brooks filed an appeal with the EEOC to enforce the settlement agreement and restore him back to employment. (Compl. ¶ 14). On July 3, 2008, the Office of Federal Operations (“OFO”), EEOC, responded to Brooks’ appeal and concluded that the matter required a hearing before an EEOC administrative judge to determine, among other things, how the TSA Medical Guidelines’ standard was applied to disqualify Brooks from the screener position. (Compl. ¶ 15). On September 29, 2009, the administrative judge found that TSA discriminated against Brooks by applying the Medical Guidelines disparately when TSA did not give Brooks 65 days to submit additional medical evidence to establish that he was fit to return to duty. (Compl. ¶ 16).
II. STANDARD OF REVIEW
Defendants have moved to dismiss the complaint pursuant to
A court considering a
III. ANALYSIS
A. Brooks is not entitled to relief under the EEOC regulations
Brooks seeks interim relief during the pendency of the TSA’s November 5, 2009 appeal under
(a)(1) When the agency appeals and the case involves removal, separation, or suspension continuing beyond the date of the appeal, and when the administrative judge’s decision orders retroactive restoration, the agency shall comply with the decision to the extent of the temporary or conditional restoration of the employee to duty status in the position specified in the decision, pending the outcome of the agency appeal. The employee may decline the offer of interim relief.
(b) If the agency files an appeal and has not provided required interim relief, the complainant may request dismissal of the agency’s appeal. Any such request must be filed with the Office of Federal Operations within 25 days of the date of service of the agency’s appeal. A copy of the request must be served on the agency at the same time it is filed with EEOC. The agency may respond with evidence and argument to the complainant’s request to dismiss within 15 days of the date of service of the request.
Brooks’ contention that his case involved “removal” within the meaning of section 1614.505(a)(1) lacks merit. Referring to the fact that he filed a complaint challenging removal in 2003, Brooks argues that “[t]his fact alone satisfies the regulations [sic] requirement that the case ‘involve’ separation.” (Pl.’s Opp. Mot. to Dismiss at 9). Essentially, Brooks argues that if a case can be traced back to a “removal, separation or suspension,” the case falls within the regulation, regardless of whether the case before the administrative judge involves an actual removal. This broad interpretation, however, is not supported by the plain language of the regulation. The operative language of the regulation, which states that “the agency shall comply with the [administrative judge’s] decision ... pending the outcome of the agency appeal,” indicates that the purpose of the regulation is to effectuate an administrative judge’s order of reinstatement during the pendency of an appeal.
In this case, the agency did not appeal a case involving removal, separation, or suspension. The administrative judge’s September 29, 2009 decision was related to Brooks’ medical disqualification and TSA’s purported breach of the 2005 Settlement Agreement. Specifically, the administrative judge was tasked with determining: (1) how the Medical Guidelines’ standard was applied to disqualify Brooks from the screener position; (2) how that standard was applied with respect to other applicant screeners; (3) how the Agency resolves situations where a permanent screener develops diabetes; and (4) during the settlement negotiations, what questions were asked by Brooks’ counsel regarding diabetes and what responses were given by Agency counsel. (Compl. ¶ 15). Therefore, because the matter appealed by the TSA did not involve separation, removal or suspension, Brooks in not entitled to interim relief under section 1614.505.
Further, the administrative judge did not order retroactive restoration—an other condition for interim relief under section 1614.505. Although the administrative judge found that Brooks was entitled to “make whole relief,” this relief cannot fairly be characterized as retroactive reinstatement as Brooks asserts. The administrative judge ordered that Brooks be put in “a position where he would have been were it not for unlawful discrimination.” (Am. Mot. to Dismiss, Ex. 4 at 6). To accomplish this end, the administrative judge ordered that Brooks be given at least 65 days to submit additional documentation showing compliance with the Medical Guidelines’ standard for diabetes in effect at the time the settlement was executed. Id. Thus, the administrative judge did not order that Brooks be reinstated to his job, but merely ordered that Brooks be given a fair opportunity to pass the medical requirements to be reinstated.
Accordingly, the Court finds that interim relief is not appropriate in this case
B. Plaintiff has failed to satisfy the requirements for mandamus
Plaintiff filed suit in this Court under
Brooks argues that he has satisfied the first two requirements of mandamus—that plaintiff’s right to relief and defendant’s duty to act be clear—as Brooks asserts,
Brooks also failed to avail himself of alternative means of relief. The EEO regulations provide a mechanism for addressing non-compliance with settlement agreements in
Thus, Brooks has failed to satisfy the strict requirements for a writ of mandamus. Because neither Brooks’ right to
IV. CONCLUSION
For the foregoing reasons, Defendants’ Amended Motion to Dismiss Plaintiff’s Complaint is granted. Plaintiff’s complaint is hereby dismissed with prejudice. A separate Order accompanies this Memorandum Opinion.
SO ORDERED.