# Ross v. Transportation Security Administration TSA

> District Court, E.D. New York · April 10, 2025

URL: https://www.frixlaw.com/law-library/cases/10843133

## Case

- **Court:** District Court, E.D. New York
- **Decided:** April 10, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10843133

## How later opinions describe it (automated extraction)

- discussing Title VII exhaustion standard

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------------------------------------x
ERIC ROSS,

Plaintiff,
MEMORANDUM AND
ORDER
-against-
24-CV-4298 (NRM)(LKE)
TRANSPORTATION SECURITY
ADMINSTRATION and U.S. DEPARTMENT
OF LABOR OWCP/FEDERAL EMPLOYEES
PROGRAM,

Defendants.
------------------------------------------------------------------x
NINA R. MORRISON, United States District Judge:
Plaintiff Eric Ross, proceeding pro se, brings this employment discrimination
complaint against his former employer, the Transportation Security Administration
(“TSA”), and the United States Department of Labor’s Office of Workers’
Compensation Programs (“OWCP”). ECF No. 1. Plaintiff’s application to proceed
in forma pauperis (ECF No. 2) is granted. Plaintiff is directed to file an amended
complaint within 30 days of the date of this Order.
BACKGROUND
Plaintiff filed his complaint on a form Complaint for Employment
Discrimination. He checked the boxes to assert claims under Title VII of the Civil
Rights Act of 1964 (“Title VII”) and the Americans with Disabilities Act of 1990
(“ADA”) and adds an additional claim under 20 C.F.R. § 10.507, regulations for
employers offering suitable work when an employee is partially disabled. ECF No.
1
1 at 3–4.1 In the section to assert discriminatory conduct, he alleges termination of
employment, failure to promote, failure to accommodate a disability, unequal terms
and conditions of employment, and retaliation. Id. at 4. In the section to assert the

basis for discrimination, Plaintiff checks the boxes for gender/sex, religion, and
disability or perceived disability, but he does not specify any of the protected groups
to which he belongs. Id. at 5. When describing the facts of his case, he states that
he “was and is a disabled person stemming from the partially documented incidents
of September 22nd & 23rd 2020.” Id. at 5, 8. He does not describe these incidents
or the nature of his disability.

The complaint includes the following allegations, which are assumed to be true
for purposes of this Order. Plaintiff was employed by the TSA from March 1, 2020
to June 9, 2021. Id. at 8. He claims: “In week(s) prior to work[]place traumatic
injury,” he was subjected to harassment in which a supervisory agent criticized his
screening processes and TSA training staff required him to perform “high level
screening tests that only more experience[d] employees were required to take.” Id.
at 9. He was “abruptly transferred to sites” and “not promoted to phase 2 despite

completing trainings and excelling at all three stations required.” Id. Plaintiff
claims that “similarly situated employees not in plaintiff[‘]s protected group were
promoted to positions that the plaintiff was denied.” Id. He states: “Plaintiff was
subject to frequent changes to work site location with little warning in manners

1 All page references use ECF pagination.
2
inconsistent with prior formal documentation, whereas no other employee outside his
protected group was similarly subjected.” Id. He does not identify this protected
group. “Plaintiff alleged sexual orientation discrimination [and] reported it to

multiple supervisory agents.” Id. The complaint also mentions “a man
aggressively and unjustifiably requesting that females remove all of their clothing.”
Id. “[T]hese requests for investigation were gas[-]lighted[,] delayed, and denied.”
Id. Instead, supervisory agents threatened to terminate Plaintiff and transferred
him to other sites. Id.
After he became disabled, Plaintiff “presented his request for reasonable

accommodation.” Id. at 5. He does not identify the individual or agency to whom
he presented his request. He states that “defendant TSA through his agent Peter
Miller provided no response to emails and phone call messages other than the word
‘Received.’” Id. Plaintiff asserts: “Defendants TSA and U.S. Department of Labor
OWCP were required to provide reasonable accommodations to Plaintiff Eric Ross by
providing him with a limited Duty offer.” Id. He does not explain how the OWCP
was involved or indicate whether he was offered a limited duty position that he did

not accept. Plaintiff “requested an updated Limited Duty offer compliant with DOL
law and limitations stipulated by physician for accepted conditions,” but his requests
“were ignored and not fulfilled.” Id. Plaintiff “contacted three (3) subsequent
assigned case examiners and DOL nurse case manager,” but he “was not advised of
EEO options nor any other mechanisms except to obtain a lawyer and bring suit.”
Id. He does not allege that he sought counseling from the agency’s Equal
3
Employment Office or filed an Equal Employment Opportunity complaint with the
agency.
Plaintiff seeks unspecified damages and reinstatement of his employment,

along with fees and costs. Id. at 6.
DISCUSSION
A. Standard of Review
In reviewing the Complaint, the Court is mindful that Plaintiff is proceeding
pro se and that “a pro se complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus,

551 U.S. 89, 94 (2007) (citation omitted); see also Sealed Plaintiff v. Sealed Defendant,
537 F.3d 185, 191 (2d Cir. 2008). If a liberal reading of the complaint “gives any
indication that a valid claim might be stated,” this Court must grant leave to amend
the complaint. Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000); Gomez v. USAA
Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999).
Under the in forma pauperis statute, a district court must dismiss a case if the
court determines that the complaint “(i) is frivolous or malicious; (ii) fails to state a

claim on which relief may be granted; or (iii) seeks monetary relief against a
defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). To avoid
dismissal, a complaint must include facts that show that the defendant may be
responsible for the harm to the plaintiff. See Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although “detailed
factual allegations” are not required, a complaint that includes only “labels and
4
conclusions” is not enough. Twombly, 550 U.S. at 555. A complaint fails to state a
claim if it includes only basic claims without any factual details. Iqbal, 556 U.S. at
678. The Court assumes that the allegations contained in the complaint are true but

does not have to accept the complaint’s legal conclusions. Id.
B. Title VII
Title VII of the Civil Rights Act of 1964 provides a federal cause of action for
alleging discrimination against any individual with respect to the terms, conditions,
or privileges of employment, on the basis of the individual’s race, color, religion, sex,
or national origin. 42 U.S.C. §§ 2000e, et seq. To state a claim under Title VII, the

plaintiff must establish (1) that he is a member of the protected class, (2) that he was
qualified for the position, (3) that he was subject to an adverse employment decision,
and (4) that the adverse employment decision was made under circumstances giving
rise to an inference of unlawful discrimination. Byrnie v. Town of Cromwell, Bd. of
Educ., 243 F.3d 93, 101 (2d Cir. 2001).
Before bringing a civil action for discrimination in employment under Title VII,
Federal employees must exhaust specific administrative remedies. See Fowlkes v.

Ironworkers Local 40, 790 F.3d 378, 384 (2d Cir. 2015) (discussing Title VII
exhaustion standard); Belgrave v. Pena, 254 F.3d 384, 386 (2d Cir. 2001) (“Prior to
bringing suit under [Title VII], a federal government employee must timely exhaust
the administrative remedies at his disposal. Failure to do so can be asserted by the
government as an affirmative defense.” (quotation marks citation omitted)). “The
purpose of this exhaustion requirement is to give the administrative agency the
5
opportunity to investigate, mediate, and take remedial action.” Brown v. Coach
Stores, Inc., 163 F.3d 706, 712 (2d Cir. 1998) (quotation marks omitted). The
Supreme Court has stated that “strict adherence to the procedural requirements

specified by the legislature is the best guarantee of evenhanded administration of the
law.” AMTRAK v. Morgan, 536 U.S. 101, 108 (2002) (quotation marks omitted).
These regulations for federal employees require that the individual first
consult with an Equal Employment Office counselor within the relevant agency
within forty-five days of the allegedly discriminatory act. 29 C.F.R. § 1614.105(a)(1).
At an initial counseling session, the employee can choose to participate in counseling

activities or an alternative dispute resolution process. 29 C.F.R. § 1614.105(b)(2).
If the matter cannot be resolved through informal counseling, the counselor must
inform the employee of the right to file a formal complaint with the agency and where
to file it. 29 C.F.R. § 1614.105(d). The employee then has fifteen days from receipt
of the notice to file a formal Equal Employment Opportunity complaint against the
agency. 29 C.F.R. §§ 1614.105(d), 1614.106(a) and (b). Thereafter, the agency must
dismiss any untimely complaint or complete an investigation and issue a final

decision within 180 days. 29 C.F.R. §§ 1614.107(a)(2), 1614.106(e)(2). If the agency
does not complete its investigation and issue its final decision on a formal complaint
within 180 days, a claimant may then bring a claim in federal court. 29 C.F.R. §§
1614.407(b). If the agency issues a final decision, the employee may either file an
appeal with the Director of the Office of Federal Operations of the Equal Employment
Opportunity Commission (“EEOC”) within thirty days of receipt of the final decision
6
of the agency’s Equal Employment Office, 29 C.F.R. § 1614.401(a), 29 C.F.R.
§ 1614.402(a), 29 C.F.R. § 1614.403(a), or file a civil action in federal court within 90
days of the final agency decision, 29 C.F.R. §§ 1614.407(a). If the claimant appeals

to the EEOC and receives a final decision from the EEOC, he then has ninety days
after the EEOC decision to file a civil action in federal court. 29 C.F.R. § 1614.407(c).
In this case, Plaintiff has not included any facts alleging that he was
discriminated against on the basis of race, color, religion, sex, or national origin, nor
has he indicated that he consulted with an Equal Employment Office counselor or
took any other actions to exhaust his Title VII claims before filing suit in this Court.

C. Disability Discrimination
Plaintiff also brings claims for disability discrimination under the ADA.
However, the ADA does not apply to federal employment. See 42 U.S.C. §
12111(5)(B)(i) (expressly excluding the United States from the definition of “covered”
employers). “[A] federal employee . . . has no remedy for employment discrimination
under the ADA. His sole claim for discrimination on the basis of disability is under
the Rehabilitation Act, if anywhere.” Rivera v. Heyman, 157 F.3d 101, 103 (2d Cir.

1998) (citation omitted)). The Rehabilitation Act prohibits federal executive branch
agencies from discriminating against individuals because of their disabilities and
uses the same enforcement remedies as Title VII. 29 U.S.C. § 791, 29 U.S.C. §
794(a), 29 U.S.C. § 794a. However, the Aviation and Transportation Security Act
(“ATSA”) specifically exempts the TSA from following certain employment provisions,
including the requirements of the Rehabilitation Act, as applied to security screeners.
7
See Smith v. U.S. Dep’t of Homeland Sec., No. 12-CV-1087 (GLS) (TWD), 2015 WL
1924211, at *3 (N.D.N.Y. Apr. 28, 2015) (“[E]very circuit court that has addressed
this issue has agreed that security screeners are precluded from bringing suit under

the Rehabilitation Act.”); Conyers v. Rossides, 558 F.3d 137, 144 (2d Cir. 2009) (the
ATSA exempts the employment of security screeners from some federal employment
provisions); Field v. Napolitano, 663 F.3d 505, 514 (1st Cir. 2011) (“The language of
the ATSA makes clear that [airport security screener] has no cause of action under
the Rehabilitation Act.”). Thus, if Plaintiff was employed by the TSA as a security
screener, he may not bring a claim for disability discrimination under the

Rehabilitation Act.
If Plaintiff was employed in a different capacity, and is thus subject to the
protections of the Rehabilitation Act, he would initially need to show that: (1) he is
disabled within the definition of the Act; (2) he is otherwise qualified to perform his
job; (3) he suffered an adverse employment action solely due to his disability; and (4)
the employer is a recipient of federal financial assistance. Kinsella v. Rumsfeld, 320
F.3d 309, 314 (2d Cir. 2003). The Rehabilitation Act defines the term “disability” as

“a physical or mental impairment that substantially limits one or more major life
activities,” “a record of such an impairment,” or “being regarded as having such an
impairment.” 29 U.S.C. § 705(20)(B), 42 U.S.C. § 12102. Like Title VII, the
Rehabilitation Act also requires federal employees to exhaust certain administrative
remedies within the federal agency before initiating a lawsuit in federal court. Boos
v. Runyon, 201 F.3d 178, 181 (2d Cir. 2000).
8
D. Claims against the OWCP
Plaintiff names the Department of Labor’s Office of Workers’ Compensation
Programs as a Defendant and asserts claims purportedly under 20 C.F.R. 10.507, a

provision of the Code of Federal Regulations related to the Federal Employees’
Compensation Act (“FECA”), 5 U.S.C. § 8101, et seq. FECA provides for
compensation for federal employees who are injured on the job. However, FECA’s
provisions are administered by the OWCP, as designated by the Secretary of Labor,
and claims that are covered by FECA cannot be raised or reviewed in federal courts.
Mathirampuzha v. Potter, 548 F.3d 70, 72 (2d Cir. 2008) (“FECA is the exclusive

remedy for work-related injuries sustained by federal employees.”); 5 U.S.C. §
8128(b)(2) (the Secretary of Labor’s decision allowing or denying payment under
FECA is not subject to review by federal courts). Thus, to the extent that Plaintiff
is seeking to assert claims related to injuries suffered on the job, if those claims are
covered by FECA, he cannot bring those claims in this Court. Plaintiff has not
suggested any other basis for his claims against the OWCP.
E. Leave to Amend

Plaintiff has not clearly stated the capacity in which he was employed by the
TSA, the protected group to which he belongs, the discriminatory or retaliatory
actions that he faced, the nature of his disability, the basis for his claim against the
OWCP, or his efforts to exhaust his administrative remedies within the federal
agency. Accordingly, and in light of Plaintiff’s pro se status, the Court grants
Plaintiff 30 days from the date of this Order to file an amended complaint that clearly
9
identifies the nature and the basis for his claims against both the TSP and the OWCP.
He should attach documentation of any efforts he made to exhaust his claims. He is
reminded that an amended complaint completely replaces the prior pleading, and

thus he is encouraged to include any and all factual details on which he bases his
claims. The submission should be captioned “Amended Complaint” and include
Docket Number 24-CV-4298-NRM-LKE.
CONCLUSION
Plaintiff shall have 30 days from the date of this Order to file an amended
complaint that clearly identifies the nature and the basis for his claims and

establishes what steps he took to exhaust his administrative remedies. All further
proceedings shall be stayed for 30 days.
Plaintiff may contact the City Bar Justice Center’s Federal Pro Se Legal
Assistance Project at 212-382-4729 to make an appointment for free, confidential,
limited-scope legal assistance at the Brooklyn Federal Courthouse.
The Clerk of Court is respectfully directed to mail a copy of this Order to
Plaintiff and to enclose a form complaint for employment discrimination actions.

SO ORDERED.

/s/ Nina R. Morrison
NINA R. MORRISON
United States District Judge
Dated: April 10, 2025
Brooklyn, New York

10

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10843133. Public record. Not legal advice.