Ahmed v. Napolitano , 825 F. Supp. 2d 112 ( 2011 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
HAJJAR AHMED, et al., )
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Plaintiffs, )
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v. ) Civil Action No. 11-00518 (ABJ)
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JANET NAPOLITANO, )
)
)
Defendant. )
___________________________________ )
MEMORANDUM OPINION
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
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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
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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 (1992);
Shekoyan v. Sibly 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 (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 (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, No. 10-1126, 2011 WL 2750932, at *4 (D.D.C. July 12, 2011); see also 42 U.S.C. §
412111(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
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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 happy as his or her least happy child, Mr. Ahmed’s commendable empathy does not give
rise to an independent cause of action on his own behalf. “As a general rule, a third party does
not having standing to bring a claim asserting a violation of someone else’s rights.” Martin v.
California Dep’t of Veterans Affairs, 560 F.3d 1042 (9th Cir. 2009), citing Powers v. Ohio, 499
U.S. 400, 411 (1991) (“In the ordinary course, a litigant must assert his or her own legal rights
and interests, and cannot rest a claim to relief on the legal rights or interests of third parties.”).
To establish standing in spite of this general rule, three prudential considerations are weighed:
(1) “the litigant must have suffered an injury in fact (2) the litigant must have a close relation to
1 “It is well understood in this Circuit that when a plaintiff files an opposition to a dispositive
motion and addresses only certain arguments raised by the defendant, a court may treat those
arguments that the plaintiff failed to address as conceded.” Cheeks v. Fort Myer Const. Co., 722
F. Supp. 2d 93, 110 (D.D.C. 2010), quoting Hopkins v. Women’s Div., 284 F. Supp. 2d 15, 25
(D.D.C. 2003), aff’d, 98 Fed. App’x 8 (D.C. Cir. 2004); see also Day v. D.C. Dep’t of Consumer
& Regulatory Affairs, 191 F. Supp. 2d 154, 159 (D.D.C. 2002) (“If a party fails to counter an
argument that the opposing party makes in a motion, the court may treat that argument as
conceded.”).
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the third party, and (3) there must exist some hindrance to the third party’s ability to protect his
or her own interests.” Lepelletier v. FDIC, 164 F.3d 37, 43 (D.C. Cir. 1999), citing Powers, 499
U.S. at 411 (internal quotations omitted). The party invoking federal jurisdiction bears the
burden of establishing standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).
More specifically, courts have held that parents who attempt to recover independently for
a violation of their children’s rights do not have standing under the ADA or the RHA. Hooker v.
Dallas Indep. Sch. Dist., No. 3:09-CV-1289-D, 2010 WL 4025877, at *4 (N.D. Tex. Oct. 13,
2010); see also L.F. v. Houston Indep. Sch. Dist., No. H-08-2415, 2009 WL 3073926, at *21
(S.D. Tex. Sept. 21, 2009) (holding that a parent lacked standing to pursue RHA claim on behalf
of her child); Glass v. Hillsboro Sch. Dist., 142 F. Supp. 2d 1286, 1288 (D. Or. 2001) (holding
that parents lacked standing when attempting to enforce solely their children’s rights and not
some independent and separate right). Only when the child is a minor have some courts held that
the “specially close” relationship exists. Blanchard v. Morton Sch. Dist., 260 Fed. App’x 992,
994 (9th Cir. 2007) (finding that a parent could seek relief under the RHA when she sought to
enforce the rights of her minor son and incurred expenses for his benefit). Because Ms. Ahmed
is not a minor child of legal guardianship of her father, Mr. Ahmed has not established the
particular “specially close” relationship that could give rise to a cause of action in this case.
Furthermore, Ms. Ahmed is fully able to assert her rights on her own. She is pursuing her
RHA claims against the defendant to redress the alleged violation of her rights. Because Mr.
Ahmed has not carried his burden to establish that he has a “specially close” relationship with
Ms. Ahmed or that she lacks alternative means for relief, Mr. Ahmed lacks standing in this case.
Therefore, his claims will be dismissed.
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CONCLUSION
For the reasons stated above, the Court grants defendant’s partial motion to dismiss [Dkt.
# 9]. The only remaining claims in this case are Ms. Ahmed’s claims under the RHA.
AMY BERMAN JACKSON
United States District Judge
DATE: November 10, 2011
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