Thomas W. White v. Secretary, Department of Homeland Security ( 2012 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-13613 ELEVENTH CIRCUIT
Non-Argument Calendar MAY 24, 2012
________________________ JOHN LEY
CLERK
D.C. Docket No. 5:10-cv-02720-CLS
THOMAS W. WHITE,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellant,
versus
SECRETARY, DEPARTMENT OF HOMELAND SECURITY,
Transportation Security Administration,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(May 24, 2012)
Before HULL, MARTIN and BLACK, Circuit Judges.
PER CURIAM:
Thomas W. White, proceeding pro se, appeals the district court’s dismissal
of his complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to
state a claim upon which relief could be granted. White’s complaint alleged
disability discrimination in violation of the Rehabilitation Act of 1973, 29 U.S.C.
§ 701, et seq. Specifically, White claimed that he was unlawfully terminated from
his probationary position as an airport security screener based on an unidentified
physical disability.
We review de novo a Rule 12(b)(6) dismissal for failure to state a claim.
Speaker v. U.S. Dep’t of Health & Human Servs. Ctrs. for Disease Control &
Prevention, 623 F.3d 1371, 1379 (11th Cir. 2010). Ordinarily, the Rehabilitation
Act prohibits federal agencies from discriminating against disabled persons. See
29 U.S.C. § 794(a). This prohibition includes discrimination in the form of failure
to provide reasonable accommodations and disparate treatment. See Schwarz v.
City of Treasure Island, 544 F.3d 1201, 1212 n.6 (11th Cir. 2008).
The Aviation and Transportation Security Act (“ATSA”), however, exempts
the Transportation Security Administration (“TSA”) from certain requirements of
the Rehabilitation Act with regard to the employment of security screeners.
Castro v. Sec’y, Dep’t of Homeland Sec., 472 F.3d 1334, 1335 (11th Cir. 2006).
Under this law, the TSA may impose certain minimum physical qualifications for
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security screeners, “[n]otwithstanding any provision of law.” See 49 U.S.C.
§ 44935(f). For example, security screeners must “possess basic aptitudes and
physical abilities, including color perception, visual and aural acuity, physical
coordination, and motor skills,” even though these standards would ordinarily run
afoul of the Rehabilitation Act’s prohibition against making employment decisions
on the basis of a physical disability. Id. § 44935(f)(1)(B); Castro, 472 F.3d at
1337-38. Based on this inherent incompatibility, we have held that the plain
language of the ATSA “exempts TSA from compliance with the Rehabilitation
Act in establishing employment standards for security screeners.” Castro, 427
F.3d at 1337.
Here, the district court did not err in dismissing White’s complaint for
failure to state a cognizable claim of disability discrimination under the
Rehabilitation Act. Any such claim was preempted by the ATSA and fails as a
matter of law. See Castro, 472 F.3d at 1337; 49 U.S.C. § 44935(f). Accordingly,
we affirm the judgment of the district court.1
AFFIRMED.
1
White also argues that he was treated less favorably than similarly situated security
screeners. As noted by the district court, this allegation is simply a restyled disability
discrimination claim. Regardless, because this claim did not appear in White’s complaint, it will
not be considered on appeal. See Speaker, 623 F.3d at 1379.
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