Ahmed v. Napolitano

825 F.Supp.2d 112

Hajjar AHMED, et al., Plaintiffs,

v.Janet NAPOLITANO, Defendant.

Civil Action No. 11–00518 (ABJ).

United States District Court, District of Columbia.

Nov. 10, 2011.

Hajjar Ahmed, Woodbridge, VA, pro se.

Hossam Ahmed, Woodbridge, VA, pro se.

Carl Ezekiel Ross, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

AMY BERMAN JACKSON, District Judge.

Plaintiffs Hajjar Ahmed and Hossam Ahmed bring this action against Janet Napolitano, acting in her official capacity as Secretary of the Department of Homeland Security, for violating the Rehabilitation Act of 1973, 29 U.S.C. § 791, et seq., (2006) (“the RHA”), and the Americans with Disability Act of 1990, 42 U.S.C. § 12101, et seq., (2006) (“the ADA”). Plaintiff Hajjar Ahmed alleges her employer, the U.S. Customs and Border Protection, discriminated against her on the basis of her disability and subjected her to reprisal after she filed a complaint with the Equal Employment Opportunity Office. Plaintiff Hossam Ahmed, Hajjar Ahmed's father, alleges that he was injured by the discrimination and reprisal against his daughter.

Defendant has moved to dismiss [Dkt. # 9] Ms. Ahmed's ADA claims and all of Mr. Ahmed's claims for lack of subject matter jurisdiction. For the reasons stated below, the Court will grant defendant's partial motion to dismiss. Since Ms. Ahmed is a federal employee, her exclusive avenue for relief is the RHA, and neither statute provides grounds for relief to third parties.

BACKGROUND

Plaintiff Hajjar Ahmed is a former employee of U.S. Customs and Border Protection, a component of the Department of Homeland Security (“DHS”). Compl. ¶¶ 1, 4. Ms. Ahmed was assigned to the Consolidated Personnel Reporting Online team led by Christine Chang on April 24, 2009. Id. ¶ 9. Plaintiff alleges that from late June to early July 2009, three confrontational meetings took place during which Ms. Chang allegedly deflected Ms. Ahmed's task-related questions, argued with Ms. Ahmed about an assignment to scan 695 documents, and accused Ms. Ahmed of sleeping and taking improper notes during a meeting. Id. ¶¶ 10–14. It was during one of these meetings that Ms. Ahmed told Ms. Chang and Ms. Doss, another supervisor, about her disability. Id. ¶¶ 1, 38. From July 16 to July 24, 2009, Ms. Ahmed took sick leave from work because her work environment was allegedly exacerbating her disability. Id. ¶ 16. On July 31, 2009, Ms. Chang and Ms. Doss gave Ms. Ahmed a proposed adverse action memorandum that recommended suspending Ms. Ahmed for one day without pay because she disrespected supervisory authority and slept on duty. Id. ¶ 17. This recommendation was approved and Ms. Ahmed was suspended on October 12, 2009. Id. ¶ 23.

In response to the proposed adverse action memorandum, on September 3, 2009, Ms. Ahmed filed a complaint with the Equal Employment Opportunity (“EEO”) office alleging she had been discriminated against based on her disability and that her supervisors subjected her to a hostile work environment. Id. ¶ 19. A few days later, Ms. Ahmed filed a request for reasonable accommodation, which in part asked for a new cubicle away from areas with high employee traffic. Id. ¶ 20. After Ms. Ahmed was offered two cubicles that allegedly did not meet her needs, she identified four other cubicles that would be acceptable, but no further action was taken. Id. ¶ 27. Months later, on December 29, 2009, Ms. Ahmed received a letter that claimed management had offered her a reasonable accommodation regarding an acceptable cubicle. Id. ¶ 28.

On January 25, 2010, Ms. Ahmed filed a formal EEO complaint regarding management's failure to provide her with a reasonable accommodation. Id. ¶ 29. Shortly after, allegedly in retaliation, Ms. Doss directed Ms. Ahmed to move to an unacceptable cubicle. Id. On March 18, 2010, Ms. Ahmed filed her second formal EEO complaint that alleged discrimination on the basis of her disability and reprisal. Id. ¶ 30. On February 12, 2011, DHS issued a Final Agency Action that concluded there has been no discrimination or reprisal as alleged in Ms. Ahmed's March 18, 2010 EEO complaints. Id. ¶ 32.

Throughout these events, Hossam Ahmed was Ms. Ahmed's primary caregiver. Id. ¶ 2. He alleges that he was “profoundly impacted emotionally” by the discrimination and reprisal against his daughter. Id. He also claims to have lost salary and benefits when he stayed home to care for Ms. Ahmed during her sick leave from July 16 to July 24, 2009. Id. ¶ 53. On March 10, 2011, Ms. Ahmed and Mr. Ahmed filed this civil action alleging discrimination and reprisal under the RHA and the ADA. Id. ¶ 53. They seek both compensatory damages and equitable relief. Id.

STANDARD OF REVIEW

In evaluating a motion to dismiss under Rule 12(b)(1), the Court must “treat the complaint's factual allegations as true ... and must grant plaintiff ‘the benefit of all inferences that can be derived from the facts alleged.’ ” Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C.Cir.2000), quoting Schuler v. United States, 617 F.2d 605, 608 (D.C.Cir.1979) (citations omitted). Nevertheless, the Court need not accept inferences drawn by the plaintiff if those inferences are unsupported by facts alleged in the complaint, nor must the Court accept plaintiff's legal conclusions. Browning v. Clinton, 292 F.3d 235, 242 (D.C.Cir.2002).

Under Rule 12(b)(1), the plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); Shekoyan v. Sibley Int'l Corp., 217 F.Supp.2d 59, 63 (D.D.C.2002). Federal courts are courts of limited jurisdiction and the law presumes that “a cause lies outside this limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994); see also Gen. Motors Corp. v. EPA, 363 F.3d 442, 448 (D.C.Cir.2004) (“As a court with limited jurisdiction, we begin, and end, with examination of our jurisdiction.”). Because “subject-matter jurisdiction is an ‘Art[icle] III as well as a statutory requirement, ... no action of the parties can confer subject-matter jurisdiction upon a federal court.’ ” Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C.Cir.2003), quoting Ins. Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982).

ANALYSIS

Defendant contends that the Court lacks subject matter jurisdiction over Ms. Ahmed's ADA claims since a federal employee can only bring an action under the RHA. Defendant further argues that the Court lacks subject matter jurisdiction over all of Mr. Ahmed's claims. The Court agrees with defendant and will grant its partial motion to dismiss.

I. Ms. Ahmed's Claims Under the ADA

Ms. Ahmed purports to bring her claims of discrimination and reprisal under both the ADA and the RHA. However, the “ADA does not apply to employees of the federal government because the federal government is not considered an ‘employer’ under the ADA.” Klute v. Shinseki, 797 F.Supp.2d 12, at 17 (D.D.C. July 12, 2011); see also 42 U.S.C. § 12111(5)(B)(i) (specifically excluding “the United States” from the definition of “employer”). Instead, Congress incorporated the ADA through the RHA, which in part bars “non-affirmative action employment discrimination” that harms “a qualified individual with a disability.” Woodruff v. Peters, 482 F.3d 521, 526 (D.C.Cir.2007); see also 29 U.S.C. § 791(g); 42 U.S.C. § 12112(a). The RHA also incorporates the ADA's anti-retaliation provision, 42 U.S.C. § 12203(a), which “prohibits employers from retaliating against an employee because he or she has opposed an unlawful employment practice or made a charge or participated in an EEO investigation or proceeding.” Marshall v. Potter, 634 F.Supp.2d 66, 73 (D.D.C.2009), citing 29 U.S.C. § 794(d).

Because the RHA incorporates the ADA, it is “the exclusive remedy for employment discrimination based on a disability for federal employees.” Raines v. DOJ, 424 F.Supp.2d 60, 64 (D.D.C.2006), quoting Ward v. Kennard, 133 F.Supp.2d. 54, 57 (D.D.C.2000) (internal quotation marks omitted); see also Rand v. Geithner, 609 F.Supp.2d 97, 100 (D.D.C.2009) ( “The exclusive remedy for federal employees alleging that federal agencies engaged in disability discrimination is ... the Rehabilitation Act.”); Edwards v. EPA, 456 F.Supp.2d 72, 100 (D.D.C.2006) (“Because plaintiff is a federal employee, the exclusive statutory basis for suit lies in ... the Rehabilitation Act.”). Because Ms. Ahmed was a federal employee, she may only pursue her discrimination and reprisal claims under the RHA. Therefore, all of plaintiff's claims under the ADA must be dismissed.

The Court also notes that although Ms. Ahmed brings claims for both discrimination and reprisal under the ADA, defendant only addresses the ADA discrimination claim in its motion to dismiss. Even so, the Court will dismiss both ADA claims pursuant to Rule 12(b)(1). See Boritz v. United States, 685 F.Supp.2d 113, 126 (D.D.C.2010) (observing that it is established in this Circuit that claims may be dismissed sua sponte when the plaintiff cannot possibly win relief) (internal quotations omitted).

II. Mr. Ahmed's Claims Under the ADA and RHA

Defendant seeks to dismiss all of Mr. Ahmed's claims because he is not a current or former employee with a disability, and therefore, is not a proper plaintiff under the RHA or ADA. Def.'s Mem. at 5. Although the Court could treat these claims as conceded because plaintiff failed to respond to defendant's arguments,¹ there are grounds to grant defendant's motion on the merits. Because Mr. Ahmed lacks standing in this case, the Court will dismiss all of Mr. Ahmed's claims.

Mr. Ahmed seeks relief solely based on the alleged violation of his daughter's rights under the ADA and RHA. Compl. ¶ 2. While there is much truth to the adage that a parent is only as...