Mertil v. Department of Homeland Security

United States District Court

for the

Southern District of Florida

Elvince Mertil, Plaintiff, )

)

v.

)

Civil Action No. 21-20493-Civ-Scola

Alejandro Mayorkas, as Secretary )

of the Department of Homeland )

Security, Defendant. )

Order Granting Motion to Dismiss

Plaintiff Elvince Mertil has sued Defendant Alejandro Mayorkas, as

Secretary of the Department of Homeland Security, complaining that the

Transportation Security Administration wrongfully terminated him “based on

spurious allegations and conclusions” involving illegal drug use. (Compl., ECF

No. 1.) The sole count in Mertil’s complaint is lodged under the header,

“Rehabilitation Act (Disparate Treatment).” (Id.) The Government has filed a

motion to dismiss, contending Mertil has failed to state a claim under Rule

12(b)(6).1 (Def.’s Mot., ECF No. 18.) After an order to show cause (ECF No. 20),

Mertil responded to the motion, arguing the Government’s position is without

merit. (Pl.’s Resp., ECF No. 21). The Government has timely replied. (Def.’s

Reply, ECF No. 23.) Because the Court agrees with the Government that Mertil

has failed to state a claim, it grants the motion to dismiss (ECF No. 18).

1. Background2

Mertil was employed by the TSA as a “Lead Transportation Security

Officer” at the Miami International Airport from 2016 through July 8, 2020.

(Compl. ¶¶ 9, 15.) On February 26, 2020, the TSA issued a “Notice of Proposed

Removal,” informing Mertil he would be removed from his officer position for

two reasons: (1) admitting to prior drug use, during a December 2019

polygraph exam; and (2) supplying conflicting information to TSA investigators

regarding his prior drug use. (Id. ¶ 10; Compl. Ex. A-2, ECF No. 1, 12.) The

TSA ultimately rescinded that notice but, then, two months later, issued a

1 Although the Government also maintains dismissal is warranted under Rule 12(b)(1), for a

lack of subject-matter jurisdiction, the Court finds the issues raised are more appropriately

framed as a failure to state a claim under Rule 12(b)(6).

2 This background is based on the allegations the Plaintiff presents in his complaint. For the

purposes of evaluating the Government’s motion, the Court accepts the Plaintiff’s factual

allegations as true and construes the allegations in the light most favorable to him per Federal

Rule of Civil Procedure 12(b)(6).

superseding notice of removal in April. (Compl. ¶¶ 12–13; Compl. Ex. A-4, ECF

No. 1, 27; Compl. Ex. A-5, ECF No. 1, 29–30.) The superseding notice

maintained the first reason supporting removal, as presented in the initial

notice, but changed the second reason to a lack of candor, for failing to disclose

the prior illegal drug use in a 2019 questionnaire. (Compl. ¶ 14; Compl. Ex. A-

6, ECF No. 1, 31.) The TSA placed Mertil on administrative leave as of April 30,

2020 (Ex. A-5 at 29), ultimately removing him from his position on May 15,

2020. (Compl. ¶ 15; Compl. Ex. A-1/A-7, ECF No. 1, 5.)

Thereafter, Mertil appealed his termination to the Professional

Responsibility Appellate Board (the “Board”), an internal TSA body, which

reviews whether management has provided sufficient evidence of the charged

misconduct and whether the penalty meted out for the conduct is reasonable.

(Compl. Ex. A-1 at 5.) On July 8, 2020, the Board concluded that TSA

management had provided Mertil with sufficient evidence of the charges

against him and that the penalty of removal from service was appropriate. (Id.

at 5–10.)

2. Legal Standard

When considering a motion to dismiss under Federal Rule of Civil

Procedure 12(b)(6), the Court must accept all the complaint’s allegations as

true, construing them in the light most favorable to the plaintiff. Pielage v.

McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008). A pleading must only contain

“a short and plain statement of the claim showing that the pleader is entitled to

relief.” Fed. R. Civ. P. 8(a)(2). A motion to dismiss under Rule 12(b)(6)

challenges the legal sufficiency of a complaint. See Fed. R. Civ. P. 12(b)(6). In

assessing the legal sufficiency of a complaint’s allegations, the Court is bound

to apply the pleading standard articulated in Bell Atlantic Corp. v. Twombly,

550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). That is,

the complaint “must . . . contain sufficient factual matter, accepted as true, to

state a claim to relief that is plausible on its face.” Am. Dental Ass’n v. Cigna

Corp., 605 F.3d 1283, 1289 (11th Cir. 2010) (quoting Bell Atlantic Corp, 550

U.S. at 570). “Dismissal is therefore permitted when on the basis of a

dispositive issue of law, no construction of the factual allegations will support

the cause of action.” Glover v. Liggett Grp., Inc., 459 F.3d 1304, 1308 (11th Cir.

2006) (internal quotations omitted) (citing Marshall Cnty. Bd. of Educ. v.

Marshall Cnty. Gas Dist., 992 F.2d 1171, 1174 (11th Cir. 1993). “A claim has

facial plausibility when the plaintiff pleads factual content that allows the court

to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Ashcroft, 556 U.S. at 678. “The plausibility standard is not akin to a

‘probability requirement,’ but it asks for more than a sheer possibility that a

defendant has acted unlawfully.” Id.

3. Discussion

The Government maintains that the protections afforded workers under

the Rehabilitation Act are expressly preempted for TSA employees holding

Mertil’s position by a provision within the Aviation and Transportation Security

Act of 2001 (the “ATSA”). (Def.’s Mot. at 5–8.) Mertil responds that the statutory

terms are ambiguous and he need not, at the 12(b)(6)-stage of litigation, clarify

whether his position falls under the preemption or not. (Pl.’s Resp. at 4.) After

review, the Court agrees with the Government that Mertil’s claims are

preempted.

Under Eleventh Circuit precedent, the ATSA precludes TSA screeners

from bringing an action under the Rehabilitation Act. See Castro v. Sec’y of

Homeland Sec., 472 F.3d 1334, 1337 (11th Cir. 2006) (holding that the ATSA

language directing TSA to establish hiring criteria “notwithstanding any other

provision of law” “indicat[es] that the statute . . . is intended to take precedence

over any preexisting or subsequently-enacted legislation on the same subject”)

(emphasis added) (cleaned up). Indeed, “every circuit court to have considered

the question has concluded that the plain language of the ATSA preempts

application of the Rehabilitation Act to security screeners.” White v. Napolitano,

CV-10-S-2720-NE, 2011 WL 13175777, at *3 (N.D. Ala. June 8, 2011) (cleaned

up) (quoting Joren v. Napolitano, 633 F.3d 1144, 1146 (7th Cir. 2011)).) Mertil

does not appear to disagree with this fundamental premise, but, instead,

focuses his dispute on whether a “Lead Transportation Security Officer,” like

Mertil, qualifies as a “screener” under the ATSA.

The Court finds no support for Mertil’s position that a Lead

Transportation Security Officer is not a screener. Indeed, even Mertil himself

seems to concede the point, in his response, when he defines the term, “Lead

Transportation Security Officer” as “LTSO” or “screener.” (Pl.’s Resp. at 2.)

Several federal courts have also concluded that Lead Transportation Security

Officers, or similar positions, equate to being a screener for purposes of the

ATSA. See, e.g., Campbell v. Mayorkas, 3:20-CV-697-MOC-DSC, 2021 WL

2210895, at *4 (W.D.N.C. June 1, 2021) (finding a former LTSO’s claims “fall

under the ambit of the Rehabilitation Act and are preempted by the ATSA”);

Simmons v. Napolitano, CIV.A. 3:11-0801, 2012 WL 1231969, at *4 (S.D.W. Va.

Apr. 12, 2012) (holding Supervisory Transportation Security Officer’s disability-

discrimination claims preempted by the ATSA); Whitby v. Chertoff, CIV A 508-

CV-242-HL, 2009 WL 1733268, at *1 (M.D. Ga. June 16, 2009) (holding

Transportation Security Supervisor’s disability-discrimination claims

preempted by the ATSA). Further, other cases similarly indicate, without

analysis or dispute, that the position of Lead Transportation Security Officer is

simply, and unremarkably, a type of TSA screener. See, e.g., Wade v.

Napolitano, 3-07-0892, 2009 WL 9071049, at *1 (M.D. Tenn. Mar. 24, 2009)

(“TSA employs three types of screeners: transportation security officers

(‘TSO’s’), lead transportation security officers (‘LTSO’s’), and supervisory

transportation security officers (‘STSO’s’).”).

In the face of these cases, Mertil fails to plead facts in his complaint, or

present persuasive argument in his response, that would allow the Court to

conclude that his claims fall under the Rehabilitation Act, as opposed to the

ATSA.

Furthermore, even if Mertil’s claims under the Rehabilitation Act were

not preempted, he has failed to counter the Government’s alternative

arguments that (1) Mertil has otherwise failed to state a claim under the

Rehabilitation Act and (2) Mertil failed to exhaust his administrative remedies

under the Rehabilitation Act.3 The Court has reviewed the Government’s

presentation in both regards and finds its positions well taken.

First, “[t]o establish a prima facie case of discrimination under the

[Rehabilitation] Act, an individual must show that (1) he has a disability; (2) he

is otherwise qualified for the position; and (3) he was subjected to unlawful

discrimination as the result of his disability.” Sutton v. Lader, 185 F.3d 1203,

1207 (11th Cir. 1999). Mertil does not alleged facts that would establish a

single one of these elements.

Second, a federal employee who believes he has been discriminated

against “must initiate contact with a Counselor within 45 days of the date of

the matter alleged to be discriminatory or, in the case of personnel action,

within 45 days of the effective date of the action.” 29 C.F.R. § 1614.105(a)(1).

These administrative steps are required in advance of filing a lawsuit in federal

court under the Rehabilitation Act. See Fleck v. Sec’y of U.S. Dep’t of Transp.,

826 Fed. Appx. 782, 784 (11th Cir. 2020) (“A federal employee has a duty to

exhaust his procedural remedies concerning any allegedly discriminatory act

before challenging the act in federal court by raising his claims through an

internal complaint process with the employing agency.”). Once again, Mertil

fails to allege facts that would establish he exhausted his administrative

remedies. Without more, Mertil’s bald assertion that he has “met . . . the

exhaustion of all pertinent administrative procedures and remedies” amounts

3 Mertil also mentions Title VII of the Civil Rights Act of 1964, in passing, in his complaint, but

never actually alleges a cause of action in that regard.

to nothing more than an “unadorned, the-defendant-unlawfully-harmed-me

accusation.” Igbal, 556 U.S. at 678.

Finally, because Mertil did not address either of these arguments in his

opposition to the Government’s motion to dismiss, he has conceded the points.

See, e.g., Brady v. Medtronic, Inc., 13-CV-62199-RNS, 2014 WL 1377830, at *6

(S.D. Fla. Apr. 8, 2014) (Scola, J.) (“Generally, a litigant who fails to press a

point by supporting it with pertinent authority, or by showing why it is sound

despite a lack of supporting authority or in the face of contrary authority,

forfeits the point.”) (cleaned up).

4. Conclusion

For the foregoing reasons, the Court grants the Government’s motion

(ECF No. 18), dismissing Mertil’s complaint with prejudice because he has

failed to state a claim under Rule 12(b)(6).

The Clerk is directed to close this case. Any other pending motions are

denied as moot.

Done and ordered in Miami, Florida, on September 14, 2021.

Hobert N. VL Jr.

United States District Judge