# Smeltz

> District Court, M.D. Pennsylvania · March 24, 2026

URL: https://www.frixlaw.com/law-library/cases/11331386

## Case

- **Full name:** Travis Smeltz v. Markwayne Mullin, Secretary Designate, Department of Homeland Security; Ha Nguyen McNeill, Deputy Administrator of the Transportation Security Administration and Senior Official Performing the Duties of the TSA Administrator; Clay Robbins; Robert Duerr; and Richard F. Altomare
- **Court:** District Court, M.D. Pennsylvania
- **Decided:** March 24, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

| IN THE UNITED STATES DISTRICT COURT
| FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
TRAVIS SMELTZ, : No. 3:23cv636
| Plaintiff :
| : (Judge Munley)
V. :
MARKWAYNE MULLIN,
Secretary Designate,
Department of Homeland Security; — :
HA NGUYEN MCNEILL, Deputy :
Administrator of the Transportation:
Security Administration and ;
Senior Official Performing :
the Duties of the TSA Administrator; :
CLAY ROBBINS;
ROBERT DUERR; and ;
RICHARD F. ALTOMARE, :
Defendants ;
SSS ee ee ee eae
MEMORANDUM
Travis Smeltz, a retired Federal Air Marshal (“FAM”) in the Philadelphia
| Field Office (“PFO”) of the Federal Air Marshal Service (“FAMS’) filed this suit
against the Secretary of the United States Department Homeland Security
| (“DHS”), the Secretary of the Transportation Security Administration (“TSA”),
alleging retaliation and violation of his civil rights. He also named supervisors
from his field office as defendants, an Acting Special Agent in Charge, Assistant
Special Agent in Charge, and a Supervisory Air Marshal in Charge. His federal
claims span Title VII of the Civil Rights Act of 1964 (“Title VII") and 42 U.S.C. §

| 1985 (“Section 1985”). According to Smeltz, he backed his colleagues’ Equal
Employment Opportunity (“EEO”) complaints against PFO leadership and was
not selected for a ground-based position with a Joint Terrorism Task Force
| (“JTTF”). He further asserts that he was not treated equally because of his
membership in the Air Marshal Association (“AMA”). These events, which
| occurred at the end of Smeltz’s federal service, also allegedly caused him severe
| emotional distress. He seeks to recover under state law for the anguish through
claims for intentional infliction of emotional distress (“IIED”) and negligent
| infliction of emotional distress (“NIED”).
: There has been an extended dispute over the pleadings in this case. The
heads of DHS and TSA, and the FAMS supervisors again seek an overall
dismissal of Smeltz’s claims. Before the court is their motion to dismiss the
second amended complaint, which argues a failure to state a claim under Title
vil and Section 1985(3) and a lack of subject matter jurisdiction over the IIED
and NIED claims. (Doc. 42). For the reasons set forth below, the motion will be
granted in part and denied in part.
Background
: As alleged, Smeltz served as a Federal Air Marshal for the Federal Air
: Marshal Service at the Philadelphia Field Office for approximately 20 years until

his retirement in June 2021.1 (Doc. 32, Sec. Am. Compl. J] 6-7, 13, 18). In
2014, plaintiff became a delegate for the Air Marshal Association, which is a
“member association recognized by TSA that serves as an outside resource for
Air Marshals and seeks to improve the working conditions and pay status of its
membership.” Id. at 17. In other words, the Air Marshal Association is a labor
organization.
Smeltz alleges that, as a delegate with the AMA, he advocated on behalf of
the workforce against employment decisions made on the basis of race, ethnicity,
religious practices, gender, and age.” Specifically, in June and October 2019, in

' These background facts derive from Smeltz’s second amended complaint. The court accepts
all facts pled as true, Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (citations
omitted), but makes no determination as to the veracity of the plaintiffs allegations.
? There is no age-discrimination claim in the second amended complaint. However, age-
discrimination allegations supply additional background. In November 2019, during a
workforce engagement meeting at FAMS headquarters, Smeltz raised concerns to
management about a new metric for performance evaluations being used in the Philadelphia
Field Office. Id. {[ 23. The measuring system at issue had been implemented by ASAC
Robbins. Id. In May 2020, Smeltz emailed the Director of the Federal Air Marshal Service with
further details of his concerns. Id.
Smeltz's concerns about the measurement system included “improper field office utilization of
an unsupported and nonpermitted metric for calculating the total flight days for employees’
yearly evaluations.” Id. According to the plaintiff, the “total flight days” metric implemented by
ASAC Robbins determined the amount of an monetary award for an employee where more
flight days equaled a higher payment. Under this metric, Federal Air Marshals would be
penalized and rated lower for accumulating less total flights, including in circumstances where
the Air Marshal: 1) used family leave, medical leave, or agency-mandated vacation time during
the rating period; 2) accepted an agency assignment with the United States Secret Service or □
the United States Border Patrol at the southern border; 3) was on active military deployment;
and/or 4) had more training days or non-flight status days scheduled by the agency. Id.
According to Smeltz, the metric implemented by ASAC Robbins “had the effect of
discriminating against certain Air Marshals based upon their age” since they had to use more

| his role as Air Marshal Association representative for the Philadelphia Field
Office, plaintiff coordinated communications between association members who
EEO complaints against field office management. Id. J 21. Complaints
arose regarding Defendant Clay Robbins, a former Assistant Special Agent in
Charge of the Philadelphia Field Office (“ASAC Robbins’). Id. Per plaintiff, he
confronted Robbins and other office leadership to resolve association member

concerns. ld. The EEO complaints were “directly tied to allegations of affected
members of the workforce who believed they were being discriminated against
based upon their age, race, gender and/or national origin.” Id. Jj 22.
In July 2020, Smeltz made a “wide-spanning retaliatory harassment

complaint” against ASAC Robbins to the then-Supervisory Air Marshal in Charge,
John Schall (Robbins’s direct supervisor). Id. ] 24. Smeltz alleged in his
harassment complaint that ASAC Robbins had unlawfully directed plaintiff's
removal from an international mission roster due to plaintiff's medical leave
status. Id. Smeltz also alleged that ASAC Robbins withheld plaintiff's name from
| a list of volunteers for a Secret Service detail opportunity and directed Jeffrey
Kwam, plaintiff's first-line supervisor, “to make inquiries of plaintiff's role and
involvement with the [Air Marshal Association] as part of one of [p]laintiff’s
| earned annual leave days than younger Air Marshals. Id. The workforce complaints were from
those over age 40. Id.
|

| performance appraisals.” Id. Jf] 20, 24. Plaintiff alleges that he made the
complaint pursuant to TSA Management Directive 1100-73.3 (“MD 1100-73.3”).
Id. | 24. That directive expressly prohibits harassment and retaliation. Id. J 25.
TSA performed monthslong internal factfinding relative to plaintiff's internal
complaint against ASAC Robbins. Id. 27. ASAC Robbins was interviewed
| twice about Smeltz’s harassment complaints and was asked questions about the
| performance appraisal metrics for Federal Air Marshals. Id. | 28. ASAC Robbins
also allegedly provided two written statements during the investigation. Id.
At some point during that process, Smeltz applied for a vacancy on a local
Joint Terrorism Task Force based out of the Philadelphia Field Office. Id. J] 13,
| 20, 28. According to Smeltz, he had prior direct experience and had received a
formal award for his work with this task force as a liaison Federal Air Marshal. Id.
4151. Specifically, he assisted during an in-flight arrest related to an in-air bomb
threat on a flight from Germany into the United States. Id.
Plaintiff interviewed before a panel for the task force vacancy. Id. J 14. The

| panel was chaired by ASAC Robbins, the subject of plaintiffs harassment
complaint. Id. 9] 14-15, 24, 29. ASAC Robbins did not recuse himself from the
panel or from plaintiff's interview. Id. {| 48. Per Smeltz, the circumstances of the
selection process resulted in ASAC Robbins being placed in control of all the
| information presented to the deciding official. Id. {J 42.

| As alleged, the deciding official for the task force position was Defendant
Acting Special Agent in Charge Robert Duerr (“Acting-SAC Duerr’). Id. 7 9, 42.
Per Smeltz, Acting-SAC Duerr was also aware of the harassment and retaliation
| claims plaintiff previously raised against ASAC Robbins. Id. J] 30. Robbins
| allegedly recommended to Duerr that plaintiff not be selected, and Duerr
allegedly “admitted that he ‘primarily’ considered the input and recommendations
of [] Robbins, despite knowing that the [p]laintiff had an EEO complaint pending
| against [] Robbins during the interview and selection processJ.]” Id. Jf] 24, 30,

| 52.
On January 7, 2021, plaintiff received notice that he did not get selected for
the task force position. Id. f] 11. The agency investigation of plaintiff's
| harassment complaint against ASAC Robbins closed approximately 20 days

| later, on January 26 or 27, 2021. Id. ¥ 22.
| According to Smeltz, a less qualified individual was selected for the task
force position under suspicious circumstances. Id. Jf] 43-52. Plaintiff asserts
the interview process was conducted in an unfair and inconsistent manner
and that he was evaluated against other interviewees applying for a different
position using different scoring criteria. The second amended complaint
highlights various discrepancies in the scoring and ranking of candidates, which
Smeltz alleges was meant to intentionally obscure proof that he was the best

| candidate for the position. Id. If] 33-39. Another panelist “stated it was
| ‘unknown’ how the person selected for the vacancy...was more qualified than

| [p]laintiff.” Id. J 46.
As a result of his non-selection for the task force position, plaintiff filed a
discrimination complaint with the TSA EEO office in February 2021. Id. J] 53.
| That office investigated and conducted a series of hearings and administrative
proceedings regarding the EEO complaint. Id. 54. Smeltz subsequently filed a
complaint with the Equal Employment Opportunity Commission and ultimately
received a notice of the right to sue. Id.
| Plaintiff further alleges that, as the result of events transpiring during his
employment at the Philadelphia Field Office, he “retired/resigned” on June 30,
2021, despite many remaining years of eligibility remaining. Id. | 58. According
| to Smeltz, he was deprived of additional pay increases and potentially increased
retirement benefits. Id.
Based on the above facts, plaintiff's second amended complaint asserts
| four claims. Count One asserts a claim for retaliation in violation of Title VII of
the Civil Rights Act, 42 U.S.C. § 2000e, ef seg. In Count Two, Smeltz alleges
that defendants’ conduct amounted to a conspiracy against his civil rights in
violation of 42 U.S.C. § 1985(3). Count Three and Count Four advance state law

| claims for intentional infliction of emotional distress and negligent infliction of

;

| emotional distress respectively. Following several extensions, defendants filed a
| motion to dismiss. (Doc. 42). That motion will be granted in part and denied in
| part for the reasons below.
| Jurisdiction
| Defendants target Smeltz’s Title VII and Section 1985 claims under Federal
| Rule of Civil Procedure 12(b)(6). The court has subject matter jurisdiction over
these claims pursuant to 28 U.S.C. § 1331 because they are federal statutes.
Plaintiff's second amended complaint also advances state-law emotional distress
torts against the federal government and its employees. The government attacks
the court’s subject matter jurisdiction over those claims under Rule 12(b)(1).
Standard of Review
| a. Rule 12(b)(1) — Lack of Subject Matter Jurisdiction
Federal courts are courts of limited jurisdiction that may only hear a case if
the Constitution or a federal statute provides the court with jurisdiction. A motion
|to dismiss filed pursuant to Rule 12(b)(1) challenges the power of a federal court
to hear a claim or case. See Petruska v. Gannon Univ., 462 F.3d 294, 302 (3d
Cir. 2006). In the face of a 12(b)(1) motion, the plaintiff has the burden to
| convince the court it has jurisdiction. Gould Elecs. Inc. v. United States, 220 F.3d

| 169, 178 (3d Cir. 2000), holding modified by Simon v. United States, 341 F.3d
| 193 (3d Cir. 2003); see also Kehr Packages v. Fidelcor, Inc., 926 F.2d 1406,

| 1409 (3d Cir. 1991) (“When subject matter jurisdiction is challenged under Rule
12(b)(1), the plaintiff must bear the burden of persuasion.”). As discussed in the
later third of this memorandum, defendants argue that Smeltz’s IIED and NIED

| claims must be dismissed under Rule 12(b)(1).
| b. Rule 12(b)(6) — Failure to State a Claim
As for the Title VII and Section 1985 claims, defendants argue that Smeltz

| has failed to state a claim under either one of these statutes. To survive a Rule
| 12(b)(6) motion, a complaint must contain sufficient factual matter, accepted as
true, to state a claim for relief which is plausible on its face. Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
| (2007)). Aclaim has facial plausibility when factual content is pled which allows
the court to draw the reasonable inference that the defendant is liable for the
| misconduct alleged. Id. (citing Twombly, 550 U.S. at 570). “Threadbare recitals
of the elements of a cause of action, supported by mere conclusory statements,
| do not suffice.” Id. (citing Twombly, 550 U.S. at 555).
The court evaluates motions to dismiss using a three-step process. The
| first step involves identifying the elements of each claim. Oldham v. Pennsylvania
| State Univ., 138 F.4th 731, 743 (3d Cir. 2025) (citation omitted). The second
| step involves reviewing the operative pleading and disregarding any formulaic
| recitation of the elements of a claim or other legal conclusion, as well as
|

allegations that are so threadbare or speculative that they fail to cross the line

| between the conclusory and factual. See Lutz v. Portfolio Recovery Assocs..,
| LLC, 49 F.4th 323, 328 (3d Cir. 2022) (citations and quotation marks omitted).
The third step evaluates the plausibility of the remaining allegations. Id.
| In evaluating plausibility of the plaintiffs’ allegations, the court accepts all factual
allegations as true, construes the complaint in the light most favorable to the

| plaintiffs, and draws all reasonable inferences in the plaintiffs’ favor. Id. (citations
| omitted).
| Analysis
1. Title VII Retaliation (Count One)
The plaintiff, a retired Federal Air Marshal, asserts a claim for workplace

| retaliation in violation of Title VII. Under the federal-sector provision of Title VII,
“[a]ll personnel actions...in executive agencies...shall be made free from any
discrimination based on race, color, religion, sex, or national origin.” 42 U.S.C. §
2000e-16(a). In enacting this section, Congress meant to supply federal

| employees with the full rights granted to individuals in the private sector under
Title VII. Loeffler v. Frank, 489 U.S. 549, 559 (1998).
Title VII further provides:
| It shall be an unlawful employment practice for an
| employer to discriminate against any of his employees...
| because he has opposed any practice made an unlawful
| employment practice by this subchapter, or because he
| 10

| has made a charge, testified, assisted, or participated in
| any manner in an investigation, proceeding, or hearing
| under this subchapter.
| 42 U.S.C. § 2000e-3(a).
| To state a prima facie claim for Title VII retaliation, Smeltz must plausibly
| allege that: 1) he engaged in protected activity; 2) the employer took a materially
| adverse action against him; and 3) there was a causal connection between the
| protected activity and the adverse action. Canada v. Samuel Grossi & Sons, Inc.,
49 F.4th 340, 346 (3d Cir. 2022) (citations omitted).
| Defendants contend that the second amended complaint fails to allege
protected activity and a causal connection. As discussed below, those
arguments fall short. Instead of requiring a prima facie case, the requisite
| pleading standard only requires enough facts to raise a reasonable expectation
| that discovery will reveal evidence of the necessary elements. Connelly v. Lane
| Const. Corp., 809 F.3d 780, 789 (3d Cir. 2016) (citations omitted). Smeltz’s

second amended complaint raises that expectation regarding the Title VII
retaliation claim.
| a. Protected Activity
As for protected activity, Title VII contains an opposition clause and a

| participation clause in its anti-retaliation provision. Moore v. City of Philadelphia,
461 F.3d 331, 341 (3d Cir. 2006), as amended (Sept. 13, 2006). That is, the

statute protects employees participating in Title VII proceedings or opposing
| discrimination made unlawful under Title VII. Id. at 341.
Smeltz alleges that he supported fellow employees’ EEO complaints

| against ASAC Robbins. (Doc. 32, Am. Compl. □□ 21). Per the plaintiff, those
complaints were based on allegations that Federal Air Marshals were being
discriminated against based upon their race, gender, and/or national origin. Id. J]
22. Smeltz also avers that he “coordinated communications” and “confronted

| field office leadership.” Id. J 21.
| The second amended complaint further describes Smeltz’s key role in the
Air Marshal Association in support of improved working conditions. Id. § □□□ Itis
reasonable to infer from these allegations that the plaintiff, as an Air Marshal
2 Association delegate, supported others’ Title VIl-based EEO complaints.
| Consequently, per Smeltz, this led to reprisal by ASAC Robbins and prompted
| the plaintiff to make his own “wide-spanning” retaliation complaint in July 2020.
Id. 24. Under the law, an employee engages in protected activity whether they
oppose the employer's discriminatory activities or participate in proceedings
| related to those activities so long as they hold a good faith, objectively
reasonable belief that the activities they oppose are unlawful under Title VII. See
Moore, 461 F.3d at 341. Smeltz’s allegations fit squarely into the requirements
| for protected activity to support his Title VII retaliation claim.

| b. Causation
Defendants also challenge the sufficiency of Smeltz’s causation
allegations. The plaintiff may rely on temporal proximity, a pattern of
| antagonism, or other circumstantial evidence to prove causation. LeBoon v.

| Lancaster Jewish Cmty. Ctr. Ass'n, 503 F.3d 217, 232-33 (3d Cir. 2007); Farrell
Planters Lifesavers Co., 206 F.3d 271, 280-81 (3d Cir. 2000).
Defendants focus on the passage of time between the alleged protected
| activity and Smeltz’s non-selection for the task force detail in January 2021,
| arguing that there is no antagonism or other circumstantial evidence to fill that

gap. (Doc. 45, Def. Br. in Supp. at 11-13). Upon review of the second amended
complaint, however, there are allegations which permit reasonable inferences of
| ongoing hostility and friction between the plaintiff and the individual defendants,
| particularly ASAC Robbins. Those allegations relate to the selection process for
the task force position, which began after a period where Smeltz alleges that he
| supported coworkers’ Title Vll-related complaints through his role in building up
the Air Marshal Association in the Philadelphia Field Office. According to Smeltz,
| Robbins essentially put his thumb on the scale to ensure that Smeltz would not
be selected for the task force role despite the plaintiff being the most qualified.
| Based on these allegations, there is at least a reasonable expectation that
| discovery will reveal evidence of the necessary pattern of antagonism and other
13

circumstantial evidence that the plaintiff will need to advance this theory of
| liability. Smeltz’s other alleged issues with ASAC Robbins regarding
performance metrics, international mission assignments, and participation in the
| Air Marshal Association either directly support the causation element or add
context during the period in question. Consequently, Smeltz’s Title VII retaliation
claim will not be dismissed.

c. Proper Title VIl Defendants
Plaintiff brings this Title VII retaliation claim against the Secretary of DHS,

| the “Secretary” of TSA, and his former supervisors. The claim will move forward
against the DHS Secretary and the TSA Administrator only.
| It is well settled that Congress did not intend to hold individual employees
liable under Title Vil. Emerson v. Thiel Coll., 296 F.3d 184, 190 (3d Cir. 2002)
(citing Sheridan v. E.l. DuPont de Nemours & Co., 100 F.3d 1061, 1078 (3d Cir.
| 1996)) (footnote omitted). For federal employees, the Title VII remedy runs
| against “the head of the department, agency, or unit, as appropriate[.]” 42 U.S.C.
§ 2000e—16(c); Wadhwa v. Sec'y, Dep't of Veterans Affs., 505 F. App'x 209, 213
| (3d Cir. 2012) (citations omitted). Thus, the Title VII claims against Smeltz’s
supervisors will be dismissed.
| Smeltz has also named both the head of DHS and, as fairly construed, the
| head of TSA as Title VII defendants. The Federal Air Marshal Service sits within

| TSA. See 49 U.S.C. § 44917(a) (authorizing the TSA Administrator to deploy
Federal Air Marshals). TSA is an administration of DHS. 49 U.S.C. § 114(a).
| DHS is an executive department. 6 U.S.C. § 111.
| By law, the head of TSA is the TSA Administrator, not the “Secretary” of the
sa as Smeltz has titled that position in his pleadings. Id., § 114(b)(1)(A). The
| TSA Administrator is appointed by the President with the advice and consent of
the United States Senate. Id. By law, there is also a Deputy Administrator, who
is not subject to Senate confirmation. Id., § 114(b)(2)(A). During a vacancy in the
office of Administrator, the Deputy Administrator acts as the Administrator of the
TSA. lId.,§ 114(b)(2)(B). Those administrators report to the DHS Secretary.*
| Thus, practically speaking, TSA may be led by individuals not subject to the
| Senate confirmation process. At the present time, Ha Nguyen McNeill serves as
| Deputy Administrator and the “Senior Official Performing the Duties of the
| Administrator.”4

| Given these circumstances, this case will proceed with the DHS Secretary
|and TSA Administrator as the appropriate Title VII defendants. At present,

ee
3 See DHS Organizational Chart, https:/Awww.dhs.gov/sites/default/files/2023-
| _1109_ mgmt dhs-public-org-chart-508 pdf (last accessed 03/17/2026).
| 4 See TSA Leadership and Organization, https://www.tsa.gov/about/tsa-leadership (last
| accessed 03/17/2026). The individual TSA biographical page for McNeill lists her as “Deputy
| Administrator. ” See id. (link leading users to individual pages).

| 16

| Secretary Mullin and Deputy Administrator McNeill will be named as the
defendants in this case with a designation that McNeill is the acting TSA
| Administrator.° The Clerk of Court will be directed to amend the caption
accordingly.
| 2. Section 1985 Conspiracy (Count Two)
Defendants also move to dismiss Smeltz’s Section 1985(3) claim. This
statute imposes liability on two or more persons who “conspire...for the purpose
of depriving...any person or class of persons of the equal protection of the laws.”
Ziglar v. Abbasi, 582 U.S. 120, 150 (2017) (quoting 42 U.S.C. § 1985(3)). After
permitting Smeltz leave to amend this claim previously, it is now clear that it

| cannot move forward.
| Count Two is asserted against all defendants, including the Secretary of
DHS and Administrator of the TSA. As to the heads of DHS and TSA, named in
their official capacities only, the claim is barred by sovereign immunity. Section
1985 does not waive the federal government's immunity from suit for damages,
and no other statute supplies the missing waiver. “Without a waiver of sovereign

| immunity, a court is without subject matter jurisdiction over claims against federal
| agencies or officials in their official capacities.” Treasurer of New Jersey v. U.S.

| ° Senator Markwayne Mullin was confirmed by the United States Senate on March 23, 2026 as
| DHS Secretary. By rule, he is substituted as a defendant in this action as the successor to
| previously named heads of DHS. FED. R. Civ. P. 25(c).
16

| Dep't of Treasury, 684 F.3d 382, 395 (3d Cir. 2012). Therefore, under the law,
the court lacks subject matter jurisdiction over plaintiffs Section 1985(3) claim as
| asserted against the DHS Secretary and the TSA Administrator.
Confronted with this obstacle, plaintiff attempts in his opposition briefing to
| make a non-monetary claim against the federal defendants. (Doc. 48, Br. in
Opp. at 11-12). If plaintiff is making a non-monetary Section 1985(3) claim, his
| second amended complaint needs to be informed. That is, in the operative
pleading, Smeltz expressly requests money damages from defendants with
| respect to this claim, not injunctive or declaratory relief. (Doc. 32, Am. Compl. {[f]
| 81-82). A pleading cannot be amended in a brief in opposition to a motion to
dismiss. See Pennsylvania ex rel. Zimmerman v. PepsiCo, Inc., 836 F.2d 173,
1181 (3d Cir. 1988). The court evaluates the claims as pleaded, and as pleaded,

claims against the Secretary and the Administrator seek money damages.
| Those claims are barred, and this end-run will be rejected.

| Beyond those two officials, Section 1985(3) may be used to redress
conspiracies to violate constitutional rights involving individuals acting under
| color of federal law. Davis v. Samuels, 962 F.3d 105, 115 (3d Cir. 2020). Smeltz
alleges that Robbins, Duerr, and Altomare were acting under color of federal law
in their individual capacities. (Doc. 32, Am. Compl. Jf] 11, 82).

| 17

In order to state a claim against the individual defendants under 42 U.S.C.
| § 1985(3), a plaintiff must allege: (1) a conspiracy; (2) motivated by a racial or
class based discriminatory animus designed to deprive, directly or indirectly, any
person or class of persons to the equal protection of the laws; (3) an act in
furtherance of the conspiracy; and (4) an injury to person or property or the
deprivation of any right or privilege of a citizen of the United States. Lake v.
| Amol, 112 F.3d 682, 685 (3d Cir. 1997), as amended (May 15, 1997).

| As to the individual defendants, the claim falls apart on the second
|element.® That is, a plaintiff must allege a conspiracy motivated by “some racial,
| or perhaps otherwise class-based, invidiously discriminatory animus.” Griffin v.
| Breckenridge, 403 U.S. 88, 102 (1971). Under the law, there are requirements
| related to identifying the class. See Farber v. City of Paterson, 440 F.3d 131, 135
| (3d Cir. 2006).
| According to the second amended complaint, the individual defendants
engaged in “concerted action|[s]...that were specifically intended to deprive
| [Smeltz] of justifiable raises, promotions, other positions within the Federal Air
| Marshal Service for which [he] was preeminently qualified yet rejected, and other
actions designed to denigrate and interfere with his ability to function in the

| 6 Defendants assert a long list of challenges to the Section 1985(3) claim, including an
| assertion of qualified immunity. The court need not reach any of the defendants’ other
| arguments.
| 18

| workforce consistent with statutory requirements.” (Doc. 32, Sec. Am. Compl. ]
| 73). Per the plaintiff, such conduct included “concerted action beginning in mid-
2021 wherein Defendant Altomare began to engage in a targeted pattern of
harassing, intimidating, and verbally abusive conduct against Plaintiff and other
members of the AMA association, and further began using disciplinary processes
| and procedures against [Smeltz] and members of the AMA in an effort to weaken
and diminish their professional standing.” Id. | 74. The individual defendants
allegedly implemented a policy whereby Smeltz and other Federal Air
Marshals “were directed not to attempt to utilize earned sick leave or personal
time for medically required appointments and/or surgeries.” Id. | 75. As Smeltz
| alleges, he and other Federal Air Marshals “were instructed to reschedule,

| change or alter existing medical appointments and surgeries so that they would
not conflict with operations in the field office.” Id.
| These allegations are insufficient to state a Section 1985(3) claim. The
only class discernable from the allegations is membership within the Air Marshal
| Association. By its nature, this class could include all, some, or none of the men
| and women serving as Federal Air Marshals at any given time, depending on

| nothing more than individual choice. The allegations themselves self-limit the
| class to Air Marshal Association members in one field office. Even then, it is not
| clear that Smeltz’s allegations apply to every single AMA member in that office.
ip

Additionally, Section 1985(3) is aimed at the kind of animus directed at
classes of people for who they are, not for what they have chosen to join or
| advocate for. “Simply put, some groups, particularly those deemed to be
distinguishable from others by immutable characteristics, such as African—
| Americans women, and the mentally retarded, are so clearly accepted as
objectively identifiable that no extended analysis is needed.” Farber, 440 F.3d at
137. Specifically, Section 1985(3) was not intended to reach conspiracies
| motivated by bias towards others on account of their economic or commercial
views, status, or activities. United Bhd. of Carpenters & Joiners of Am., Loc. 610,
AFL-CIO v. Scott, 463 U.S. 825, 837 (1983). Furthermore, discrimination on the
| basis of political affiliation “is not, as a matter of law, discrimination so invidious
| such that § 1985(3) would apply.” Farber v. City of Paterson, 440 F.3d 131, 135
| (3d Cir. 2006).
: Membership in a labor organization or employee association is

| fundamentally an affiliation based on shared economic or workplace views and
| interests. In some respects, labor associations may encompass political
affiliations or beliefs. Neither of these categories supply the identifiable traits for
the plaintiff to recover. One does not become a member of a protected class just
| by paying dues or by getting a card in the mail.

| 20

| Rather, a legally cognizable class must be “something more than a group
of individuals who share a desire to engage in conduct that the § 1983(3)
defendant disfavors.” Bray v. Alexandria Women's Health Clinic, 506 U.S. 263,
| 269 (1993). Otherwise, the requirement of class-based animus would be drained

| of its meaning and Section 1985(3) would be transformed into a general federal
law that Congress did not intend to enact. Farber, 440 F.3d at 136 (citing
| Bray, 506 U.S. at 269; Aulson v. Blanchard, 83 F.3d 1, 5 (1st Cir. 1996)). Given
| the allegations advanced, Smeltz’s second amended complaint uses Section
1985(3) as general federal tort law. Accordingly, those claims will be dismissed
with prejudice. Amendment would be futile.
3. State Tort Claims
| Finally, defendants move to dismiss Smeltz’s state law claims for
intentional infliction of emotional distress (“IIED”) and negligent infliction of

| emotional distress (“NIED”) on jurisdictional grounds. Defendants assert that
Smeltz’s IIED and NIED claims are likely covered under the Federal Employees’
| Compensation Act (“FECA”). They also argue that the plaintiff failed to exhaust

| his administrative remedies under the Federal Tort Claims Act ("FTCA").
As for FECA, that statute

| was designed to protect the Government from suits under
| statutes, such as the Federal Tort Claims Act, that had
| been enacted to waive the Government's sovereign
| immunity. In enacting this provision, Congress adopted the
21

| principal compromise—the “quid pro quo’—commonly
| found in workers' compensation legislation: employees are
| guaranteed the right to receive immediate, fixed benefits,
| regardless of fault and without need for litigation, but in
| return they lose the right to sue the Government.
Lockheed Aircraft Corp. v. United States, 460 U.S. 190, 193-94 (1983).
FECA thus provides the exclusive remedy for federal employees who suffer

| injuries arising out of and in the course of their federal employment. 5 U.S.C. §
8116(c). Where FECA applies, it operates as a complete jurisdictional bar to
FTCA claims. DiPippa v. United States, 687 F.2d 14, 17 (3d Cir. 1982).
The question of whether a particular claim falls within FECA's coverage is
committed to the Secretary of Labor, and the Secretary's determination on that

| question is not subject to judicial review. 5 U.S.C. § 8128(b); see also Heilman v.
| United States, 731 F.2d 1104, 1109 (3d Cir. 1984); Spade v. United States Dep't
of Justice, No. 21-1865, 2022 WL 444259 at *2 (3d Cir. Feb. 14, 2022). The
| Secretary of Labor need not make a final adjudication of benefits. Where the
Secretary of Labor, acting through the Office of Workers' Compensation
| Programs (“OWCP"), determines that a substantial question of FECA coverage

| exists, that determination divests the district court of subject matter jurisdiction
| over the tort claims. See 5 U.S.C. §§ 8128(b), 8145; 20 C.F.R. § 10.1; Spade,
WL 444259 at *3 (citing Heilman, 731 F.2d at 1110).

| 22

| Here, the Secretary of Labor, through her OWCP designee, has reviewed
the second amended complaint and determined that there is a substantial
| likelinood of FECA coverage for the injuries plaintiff alleges. (Doc. 45-1). The
| court thus lacks subject matter jurisdiction over the IIED and NIED claims in
| Counts Three and Four of the second amended complaint.
| Even if FECA did not preempt Smeltz’s tort claims, the court would lack
jurisdiction over such claims because plaintiff has also failed to exhaust his
| administrative remedies under the Federal Tort Claims Act.
| The FTCA requires that a claimant present an administrative claim to the
appropriate federal agency before filing suit in district court. 28 U.S.C. § □□□□□□□□□
this requirement is jurisdictional and cannot be waived. See McNeil v. United
States, 508 U.S. 106, 113 (1993).
| Smeltz does not argue that he filed an administrative claim with DHS or
| TSA. Instead, he argues that his EEOC complaint satisfies the FTCA's
| exhaustion requirement. (Doc. 48, Pl. Br. in Opp. at 20-21). It does not. The
| EEOC process and the FTCA administrative claims process are separate
| mechanisms, administered by different agencies, under different statutes, for
different purposes. Therefore, even if Smeltz is unable to proceed under FECA,
| he failed to exhaust his claims under the FTCA. The IIED and NIED claims will
be dismissed for lack of jurisdiction.

a3

Conclusion
Consistent with the analysis above, defendants’ motion to dismiss will be
granted in part and denied in part. The motion will be granted as to Smeltz’s Title
Vil claims against Defendants Robbins, Duerr, and Altomare and his Section
1985(3) claims against all defendants for failure to state a claim. The motion will

| granted as to Smeltz’s IIED and NIED claims against all defendants for lack of

subject matter jurisdiction. There are no viable claims left against Defendants

| Robbins, Duerr, and Altomare. They will be terminated as defendants in this
| action. This case will proceed only with respect to Smeltz’s Title VII retaliation
claim against the heads of DHS and TSA. The Clerk of Court will be directed to

| amend the caption to name them properly.
| An appropriate order follows.

pate: 3 f = Al, Row CV
| JUDGE JUHA K. MUNLEY
United States District Co

| 24

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11331386. Public record. Not legal advice.