Case 2:16-cv-02529-SHL-cgc Document 22-1 Filed 08/10/16 Page 1 of 20

PageID 133

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION ________________________________________________________________ SHIRLEY COHEN AND HANNAH COHEN, Plaintiffs, v.

NO. 2:16-CV-2529

TRANSPORTATION SECURITY ADMINISTRATION, MEMPHIS-SHELBY COUNTY AIRPORT AUTHORITY, AND MEMPHIS INTERNATIONAL AIRPORT POLICE DEPARTMENT, Defendants. DEFENDANT MEMPHIS-SHELBY COUNTY AIRPORT AUTHORITY’S MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION FOR JUDGMENT ON THE PLEADINGS COMES NOW Defendant Memphis-Shelby County Airport Authority (“MSCAA”), by and through its counsel of record, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure and Rule 12.1 of this Court’s Local Rules, and submits its Memorandum of Law in Support of its Motion for Judgment on the Pleadings. BACKGROUND This case involves the arrest of Plaintiff Hannah Cohen after she set off a body scanner as she and her mother, Shirley Cohen, went through the screening process at the Memphis International Airport.

(Plaintiffs’ Second Amended Complaint, ECF Document 12-

1, ¶¶ 14 and 18).

Case 2:16-cv-02529-SHL-cgc Document 22-1 Filed 08/10/16 Page 2 of 20

PageID 134

PLAINTIFFS’ SECOND AMENDED COMPLAINT Plaintiffs Administration

have

sued

(“TSA”),

MSCAA,

and

the

the

Transportation

Memphis

Security

International

Police

Department (“Police Department”) pursuant to the Americans with Disabilities

Act

(“ADA”),

the

Rehabilitation

Act

of

1973

(“Rehabilitation Act”), and for “Tennessee common-law intentional and negligent infliction of emotional distress.”

Id. at p. 1.

In their Second Amended Complaint, Plaintiffs allege, in relevant part, the following: 11.

. . . Plaintiff, Hannah Cohen, has damage from radiation and removal of a brain tumor that substantially limits her ability to speak, walk, stand, see, hear, care for herself, learn and work, think, concentrate, and interact with others.

12.

. . . This substantial limitation is obvious upon sight and was obvious on June 30, 2015. * * * *

14.

As the Plaintiff, Hannah Cohen, went through [the] screening process at the airport campus, a warning alarm went off. This warning alarm was to warn the Airport Police and [TSA] personnel manning the security checkpoint there was either some kind of contraband on the party being screened or a weapon on the party being screened. . . .

15.

However, the Plaintiff, Hannah Cohen, became disoriented and confused by the warning alarm and the actions of the personnel manning the security checkpoint to try to search her person because of her disability. The security personnel failed to recognize that she was confused because of her obvious disability and was unable to cooperate with the search. 2

Case 2:16-cv-02529-SHL-cgc Document 22-1 Filed 08/10/16 Page 3 of 20

16.

PageID 135

. . . Shirley Cohen, repeatedly tried to tell the personnel manning the security checkpoint of her daughter’s brain tumor and disabilities. However, the personnel at the security checkpoint refused to listen to Plaintiff, Shirley Cohen, concerning her daughter’s disability. They proceeded to assault the Plaintiff, Hannah Cohen, at the checkpoint, causing her physical and emotional injury as well as emotional injury to Plaintiff, Shirley Cohen, as she witnessed the assault on her daughter.

Id. at ¶¶ 11, 12, 14, 15, and 16 (emphasis added). With

regard

to

their

claims

under

the

ADA

and

the

Rehabilitation Act, Plaintiffs allege, “the [TSA] and the [Police Department] discriminated against . . . Hannah Cohen, because of her

disability.

intentional.”

.

.

.

These

Id. at ¶ 19.

acts

of

discrimination

were

Furthermore, the TSA and the Police

Department allegedly “did not provide any reasonable accommodation for screening for the disability of . . . Hannah Cohen, and did not screen her providing for her disability at the checkpoint.” Id. at ¶ 20. Plaintiffs

allege

MSCAA

is

liable

under

these

statutes

because it failed “to properly supervise the personnel at the security checkpoint and provide proper regulation of the campus of the Memphis International Airport as required by the [ADA and the Rehabilitation Act].” With

regard

to

Id. at ¶ 20. her

claim

for

negligent

and

intentional

emotional distress, Hannah Cohen alleges that the TSA and the Police Department are liable “because of the acts of their servants 3

Case 2:16-cv-02529-SHL-cgc Document 22-1 Filed 08/10/16 Page 4 of 20

PageID 136

and agents of assaulting her in an airport without cause and arresting

her

for

intentionally

or

no with

cause.

These

reckless

acts

were

indifference

or

entitling the Plaintiff, Hannah Cohen, to damages.” Likewise, Shirley Cohen alleges Department

are

liable

to

her

that the for

either

done

negligence, Id. at ¶ 21.

TSA and the Police

intentional

and

negligent

infliction of emotional distress because she witnessed the alleged incident.

Id. at ¶ 23.

Plaintiffs allege MSCAA is liable to them

for intentional and negligent infliction of emotional distress because it failed to “properly manage the campus of the Memphis International checkpoint.”

Airport

and

the

personnel

at

the

security

Id. at ¶ 23.

Plaintiffs demanded punitive damages against the Defendants because “the actions of the Defendants, their servants and agents, were done maliciously, intentionally, and with reckless disregard to the rights of Plaintiffs.”

Id. at ¶ 25.

MSCAA’S ANSWER In its Answer, MSCAA asserted the defense of failure to state a claim; the defenses providing for immunity for certain acts found in Tenn. Code Ann. §§ 29-20-201, et seq.; lack of subject matter jurisdiction based upon Tenn. Code Ann. § 29-20-307; and that Plaintiffs did not overtly allege that their claims come within the requirements of the Tennessee Governmental Tort Liability Act

4

Case 2:16-cv-02529-SHL-cgc Document 22-1 Filed 08/10/16 Page 5 of 20

(“TGTLA”).

(MSCAA’s

Answer

to

Plaintiffs’

Second

PageID 137

Amended

Complaint, ECF Document 20, pp. 1-2, and 14-15). Additionally, MSCAA alleged that “it does not maintain or control the subject checkpoint and it has no control over the screening procedures at the checkpoint.”

Id. at ¶ 40.

Attached and incorporated into MSCAA’s Answer is the contract between TSA and MSCAA providing for the TSA checkpoints at the Airport, which was in effect at the time of the incident.

(TSA

Contract, Amendments, and supporting Affidavit, ECF Document 201, p. 3 and 9). The contract provides: Under the terms of the Aviation and Transportation Security Act (“ATSA”), TSA is required to deploy Federal Security Screeners, Federal Security Managers, Federal Security Personnel, and Federal Law Enforcement Officers, to conduct screening of all passengers, property, and baggage at all airports, and to establish a program to screen cargo and ensure proper access security at all such airports, and to establish a program to screen cargo and ensure perimeter access security at all such airports. In order to carry out this statutory mandate, it is necessary for TSA to use certain airport space and facilities defined under federal law as “necessary security checkpoints.” (Hereinafter referred to as “Space.”) * * * * This agreement establishes TSA’s use of the security checkpoints TSA needs to conduct baggage and passenger screening under the requirements of ATSA and other applicable federal laws. In order to improve airport security in a manner that meets the requirements of ATSA, it is necessary for TSA to use existing checkpoint space, and, in some cases, to expand checkpoint space.

5

Case 2:16-cv-02529-SHL-cgc Document 22-1 Filed 08/10/16 Page 6 of 20

PageID 138

Id. at 10 (emphasis added). If TSA believes it needs to alter or expand the space it needs to screen passengers and MSCAA withholds its consent, the contract provides that “TSA may proceed pursuant to its legal authority to provide security at airport checkpoints.” Id. at 11. The contract provides TSA: The right to establish and use security checkpoints, to place and operate screening equipment, to screen passengers and their property, baggage, and cargo and to perform such other activities and locate such other equipment as TSA deems necessary for TSA to perform its passenger and baggage screening function under federal law. Id. With regard to the screening equipment in the checkpoint, the contract provides that it shall remain the property of TSA even if it is affixed to the ground.

Id. at 11 and 15.

The contract also provides: [MSCAA employees w]ith prior consent of TSA . . . may enter the Space used by TSA for the performance of MSCAA’s obligations under federal law or other lawful purpose. Notwithstanding the foregoing, MSCAA will comply with all applicable federal security requirements (including badging and maintenance of sterile area) and will use its best efforts to minimize the disruption of TSA operations. Id. at 12. The area controlled by TSA for its screening procedure that was involved in the incident is depicted in a diagram in the contract. Id. at 22.

6

Case 2:16-cv-02529-SHL-cgc Document 22-1 Filed 08/10/16 Page 7 of 20

PageID 139

APPLICABLE LAW I.

Standard for Motion for Judgment on the Pleadings

When deciding a motion for judgment on the pleadings, “all well-pleaded material allegations of the pleadings of the opposing party must be taken as true, and the motion may be granted only if the moving party is nevertheless clearly entitled to judgment.” Southern Ohio Bank v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 479 F.2d 478, 480 (6th Cir. 1973). accept

as

true

inferences.” Plaintiffs’

legal

The Court, however, “need not

conclusions

or

unwarranted

factual

Mixon v. Ohio, 193 F.3d 389, 400 (6th Cir. 1999). Complaint

must

“contain

direct

or

inferential

allegations respecting all the material elements under some viable legal theory.”

Commercial Money Center, Inc. v. Illinois Union

Ins. Co., 508 F.3d 327, 336 (6th Cir. 2007). When analyzing the Motion, the Court may also take into account

matters

of

public

record,

exhibits

pleadings, and matters in the record.

attached

to

the

Bosarge v. Mississippi

Bureau of Narcotics, 796 F.3d 435, 440 (5th Cir. 2015); Amin v. Oberlin College, 259 F.3d 493, 502 (6th Cir. 2001). II.

Pleading Requirements of the TGTLA

For more than a century, the doctrine of sovereign immunity protected Tennessee governmental entities from tort liability. Lucius v. City of Memphis, 925 S.W.2d 522, 525 (Tenn. 1996); Cruse v. City of Columbia, 922 S.W.2d 492, 495 (Tenn. 1996). 7

This

Case 2:16-cv-02529-SHL-cgc Document 22-1 Filed 08/10/16 Page 8 of 20

doctrine

is

contained

in

the

Tennessee

PageID 140

Constitution,

which

provides, “[s]uits may be brought against the State in such manner and in such courts as the Legislature may by law direct.” Const. Art. I, § 17 (emphasis added). doctrine

“provides

that

suit

may

Tenn.

Stated another way, the

not

be

brought

against

a

governmental entity except to the extent that the governmental entity has consented to be sued.”

Cruse, 922 S.W.2d at 495.

In 1973, the Tennessee legislature enacted the TGTLA, Tenn. Code Ann. §§ 29-20-101, et seq. (as amended), which embraced and modified the doctrine of sovereign immunity.

Lynn v. City of

Jackson, 63 S.W.3d 332, 337 (Tenn. 2001); Cruse, 922 S.W.2d at 495.

It “reaffirm[ed] the doctrine [of sovereign immunity] and

merely

remov[ed]

circumstances.”

immunity

in

certain

limited

Lynn, 63 S.W.3d at 337.

and

enumerated

Thus, “any claim for

damages must be brought in strict compliance with the terms of [the

TGTLA].”

Id.

(citing

Tenn.

Code

Ann.

§

29-20-201(b))

(emphasis added); Halliburton v. Town of Halls, 295 S.W.3d 636, 639 (Tenn. Ct. App. 2008) (“There are several exceptions to the general immunity rule in the GTLA . . . . Immunity may only be removed, however, where there is ‘strict compliance’ with the terms of the Governmental Tort Liability Act.”) (Emphasis added). If a governmental entity’s immunity has not been specifically removed, the governmental entity may not be sued. §

29-20-201(b);

Lynn,

63

S.W.3d 8

at

337.

Tenn. Code Ann.

Accordingly,

when

Case 2:16-cv-02529-SHL-cgc Document 22-1 Filed 08/10/16 Page 9 of 20

PageID 141

Plaintiffs sued MSCAA, Plaintiffs were required to allege that their case was “within the class of cases” permitted by the TGTLA. Gentry v. Cookeville General Hospital, 734 S.W.2d 337, 339 (Tenn. Ct. App. 1987). III. Prima Facie Claim Under the ADA and the Rehabilitation Act As the United States Court of Appeals for the Eighth Circuit has explained: Title II [of the ADA] prohibits discrimination in the services of public entities, 42 U.S.C. § 12132. . . . Title II took effect in January of 1992 and provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. . . . The ADA has no federal funding requirement, but it is otherwise similar in substance to the Rehabilitation Act, and “cases interpreting either are applicable and interchangeable.” Gorman v. Bartch, 152 F.3d 907, 911–12 (8th Cir. 1998). In order to establish a claim for discrimination under Title II of the ADA, a plaintiff must prove “(1) she has a disability; (2) she is otherwise qualified; and (3) she was being excluded from participation in, denied the benefits of, or subjected to discrimination

under

the

program

because

of

her

disability.”

Anderson v. City of Blue Ash, 798 F.3d 338, 357 (6th Cir. 2015) (footnote omitted).

Additionally, a plaintiff must show that the

“discrimination was intentionally directed toward him or her in

9

Case 2:16-cv-02529-SHL-cgc Document 22-1 Filed 08/10/16 Page 10 of 20

particular.”

PageID 142

Tucker v. Tennessee, 539 F.3d 526, 532 (6th Cir.

2015). ARGUMENT I.

Plaintiffs Have Not Alleged Facts to Show That Their State Law Claims are Within the Class of Cases Permitted by the TGTLA

In the present case, Plaintiffs allege MSCAA is “liable for intentional

infliction

and

negligent

infliction

of

emotional

distress by the personnel at the security checkpoint because of its

failure

to

International

properly

Airport

manage

and

the

the

campus

personnel

of at

the the

Memphis security

checkpoint.” The Tennessee Court of Appeals has held that “[a] complaint against a governmental entity for tort must overtly allege that the

tort

was

committed

by

an

employee

or

employees

of

the

governmental entity within the scope of his or her employment.” Gentry,

734

S.W.2d

at

339

(emphasis

added).

In

this

case,

Plaintiffs did not allege that MSCAA’s employees cased the incident while acting within the scope of their employment with MSCAA. In

Raines

v.

Metropolitan

Government

of

Nashville

and

Davidson County, the plaintiff alleged that “the Metropolitan Government . . . through its officers and agents caused” the tort at issue in that case.

Raines v. Metro. Gov't of Nashville &

Davidson County, 1992 WL 113428, *3 (Tenn. Ct. App. 1992) (emphasis added).

The Tennessee Court of Appeals evaluated this allegation 10

Case 2:16-cv-02529-SHL-cgc Document 22-1 Filed 08/10/16 Page 11 of 20

PageID 143

and held that the complaint “should be dismissed for failure to state a claim because there is no allegation in the complaint that the tort for which suit was brought was committed by an employee of

the

[governmental

employment.”

entity]

acting

within

the

scope

of

Id. (emphasis added).

Similarly, the United States District Court for the Eastern District of Tennessee, applying the TGTLA, analyzed this issue in Holmes v. City of Knoxville, concluding that the plaintiff failed to state a claim upon which relief can be granted.

In Holmes, the

plaintiff alleged that the governmental defendant acted “through its

agents,

servants

and/or

employees.”

Holmes

v.

City

of

Knoxville, 2005 WL 1668358, *2 (E.D. Tenn. 2005) (emphasis added). The Holmes court, relying on Gentry, concluded that an allegation that a governmental entity acted “through its agents, servants and/or employees” is not an “overt” allegation “that [a] tort was committed by an employee or employees of [the governmental entity] within the scope of his or their employment.” added).

Id. (emphasis

The Court, therefore, held that “the complaint does not

state a claim for which relief can be granted because the action is not alleged to be within the class of cases excepted by [the TGTLA] from governmental immunity.”

Id.

Like the plaintiffs in Holmes and Raines, Plaintiffs failed to allege that the subject acts were committed by MSCAA’s employees while they were acting within the scope of their employment with 11

Case 2:16-cv-02529-SHL-cgc Document 22-1 Filed 08/10/16 Page 12 of 20

MSCAA. is

PageID 144

Therefore, Plaintiffs have not alleged that their lawsuit

“within

the

class

of

cases”

permitted

by

the

TGTLA,

and

Plaintiffs’ claims for negligent and intentional infliction of emotional distress should be dismissed with prejudice. Plaintiffs also failed to satisfy the pleading requirements of the TGTLA because they do not overtly allege that the section’s statutory exceptions to the removal of immunity do not bar their claim.

Section 29-20-205 contains nine specifically enumerated

exceptions.

If one of these exceptions applies to the tort

alleged, the governmental entity retains its immunity.

Therefore,

to state a claim, Plaintiffs must overtly allege that none of these exceptions bar their claims. Raines, 1992 WL 113428 at *3 (stating that the plaintiff’s complaint failed to state a claim because it failed to allege “that none of the exceptions listed in § 29-20205 [were] applicable”). In this case, Plaintiffs did not overtly allege that any of the exceptions listed in § 29-20-205 are applicable.

Therefore,

Plaintiffs’ Second Amended Complaint fails to state a claim upon which relief can be granted as a matter of law. II.

Plaintiffs’ State Law Claim are Barred by Sovereign Immunity

Tenn. Code Ann. § 29-20-205 provides that immunity is not removed for an injury “proximately caused by a negligent act or omission of any employee within the scope of his employment if the

12

Case 2:16-cv-02529-SHL-cgc Document 22-1 Filed 08/10/16 Page 13 of 20

PageID 145

injury arises out of . . . intentional trespass [,] infliction of mental anguish [, and] civil rights” § regardless

of

Plaintiffs’

pleading

29-20-205(2).

deficiencies,

Thus,

MSCAA

has

immunity from suit for the negligent acts or omissions of its employees if the injury arises out of the torts specified in § 2920-205. The

gravamen

Plaintiffs

suffered

of

Plaintiffs’

emotional

state

distress

law

claims

because

of

an

is

that

alleged

assault on Hannah Cohen caused by violations of the ADA.

This

claim is similar to that of the plaintiff in Campbell v. Anderson County, 695 F. Supp. 2d 764 (E.D. Tenn. 2010). In that case, Eliza Campbell alleged that “Gerald Graham, a reserve deputy with the Anderson County Sheriff’s Office, forcibly raped her while on duty.”

Id. at 769.

She argued that the County

was liable for the following state law claims, among others, assault and battery, intentional infliction of emotional distress, and negligence.

Id. at 778.

The District Court determined, “the

County cannot be held liable for negligence based merely on the alleged commission of the intentional torts by Graham.”

Id. at

777. As a second ground for dismissing Campbell’s state law claims, it determined “[t]hese torts are alleged to have been committed solely in the context of the violation of Campbell’s civil rights-

13

Case 2:16-cv-02529-SHL-cgc Document 22-1 Filed 08/10/16 Page 14 of 20

this is in essence a civil rights suit.”

Id. at 778.

PageID 146

The Court

stated: Tenn. Code Ann. § 29–20–205(2) provides that immunity from suit of all governmental entities is removed or waived for injury proximately caused by a negligent act or omission of any employee within the scope of his employment except if the injury arises out of “civil rights.” It is fair and reasonable to interpret the plain language in § 29–20–205(2) as meaning that civil rights claims are a type of intentional tort. This court construes the term “civil rights” in § 29–20–205(2) as meaning and including claims arising under the federal civil rights laws, e.g., 42 U.S.C. § 1983 and the United States Constitution. Id. at 778 (citations omitted). The

Court

imprisonment, emotional immunity

found

assault

distress, because

that and

and

Campbell’s

battery,

negligence

“Campbell

claims

intentional were

assert[ed]

her

for

false

infliction

barred claims

by

of

sovereign

against

the

County in the context of a civil rights case [, which means] her alleged injuries arise out of ‘civil rights.’”

Id.

The Court also noted: Campbell may seek to circumvent or avoid the County’s immunity from suit under § 29-20-205(2) by couching some of her civil rights claims against the County in the guise of negligence, this strategy fails. The underlying acts which Campbell alleges to be negligent are by their very nature the type of conduct one usually associates with intentional torts (false imprisonment, assault and battery, intentional infliction of emotional distress) Campbell’s negligence claim is predicated on intentional tortious conduct involving the violation of her civil rights by employees of the County.

14

Case 2:16-cv-02529-SHL-cgc Document 22-1 Filed 08/10/16 Page 15 of 20

Id. (emphasis added).

PageID 147

Thus, the District Court found that the

County was immune from these claims because of the civil rights exception found in § 29-20-205(2).

Id.

In the present case, Plaintiffs’ claims against MSCAA arise out of the alleged assault by employees of either TSA or the Police Department,

which

Plaintiffs

further

allege

violation of Hannah Cohen’s civil rights. claims

for

intentional

infliction

of

resulted

from

a

Therefore, Plaintiffs’ emotional

distress

and

negligent infliction of emotional distress are barred by sovereign immunity. III. Plaintiffs’ Claim for Punitive Damages is Barred by Sovereign Immunity Plaintiffs have demanded punitive damages.

They, however,

are not entitled to punitive damages under either Tennessee or federal law. The Tennessee Supreme Court has long held that punitive damages are not recoverable against a governmental entity under the TGTLA.

Johnson v. Smith, 621 S.W.2d 570, 572 (Tenn. 1981).

Similarly, the United States Supreme Court has held that punitive damages may not be awarded under “§ 202 of the ADA and § 504 of the Rehabilitation Act.”

Barnes v. Gorman, 122 S. Ct. 2097, 2103

(2002).

15

Case 2:16-cv-02529-SHL-cgc Document 22-1 Filed 08/10/16 Page 16 of 20

IV.

PageID 148

This Court Should Decline Supplemental Jurisdiction

Even if this Court does not dismiss Plaintiffs’ state law claims, it should decline supplemental jurisdiction over these claims. Tenn. Code Ann. § 29-20-307 confers exclusive jurisdiction over the claims to the Circuit Court of Shelby County, Tennessee. Freels v. County of Tipton, 2010 WL 2364432, *5 (W.D. Tenn. 2010) (declining supplemental jurisdiction and dismissing state law claims with prejudice). V.

Plaintiffs Have Failed to Plead a Viable Claim Against MSCAA under the ADA or the Rehabilitation Act

Hannah Cohen alleges that the TSA and the Police Department are liable under the ADA and the Rehabilitation Act because they “did not provide any reasonable accommodation for screening for the disability of Plaintiff, Hannah Cohen, and did not screen her providing

for

Plaintiffs

her

allege

disability MSCAA

is

at

the

“liable

checkpoint.” for

failure

Likewise, to

properly

supervise the personnel at the security checkpoint and provide proper regulation of the campus of the Memphis International Airport as required by the Americans with Disabilities Act and the Rehabilitation Act.”

Thus, Plaintiffs allege that MSCAA is liable

because

to

it

failed

supervise

the

individuals

screening

passengers at the checkpoint and did not provide proper regulations for the screening process of Hannah Cohen.

16

Case 2:16-cv-02529-SHL-cgc Document 22-1 Filed 08/10/16 Page 17 of 20

PageID 149

MSCAA, however, as shown by the contract attached to its Answer and by the applicable federal law is prohibited

from

controlling the TSA screening process, and it is TSA, not MSCAA, that employs the screeners. The United States District Court for the Eastern District of Michigan in Thomson v. Stone, 2006 WL 7770449 (E.D. Mich. 2006), summarizes TSA’s control as follows: Following the attacks on September 11, 2001, Congress enacted statutes which gave the TSA the authority to protect the public from violence and piracy aboard aircrafts. See 49 U.S.C. § 44903(b). The Under Secretary of the TSA is given the responsibility for security over all modes of transportation, for the day-to-day Federal security screening operations for passenger air transportation, and to develop standards and training screening personnel. 49 U.S.C. §§ 114(d) and (e). The TSA under Secretary is required to provide screening of all passengers and property on passenger aircraft. 49 U.S.C. § 44901(a). Id. at *4. The Thomas Court also noted: The regulations governing the TSA are set forth in 40 C.F.R. § 1500, et seq. . . . No individual may enter a “sterile area” which is controlled by TSA or board an aircraft without submitting to the screening and inspection of his or her person in accordance with the procedures being applied to control access to that area or aircraft under this subchapter. 40 C.F.R. § 1540.107. A person may not interfere with screening personnel in the performance of their screening duties. 40 C.F.R. § 1540.109. . . . All airport security programs must be approved by the TSA. 40 C.F.R. § 1542.101(a)(5). The regulations prohibit any individual who does not consent to a search or inspection of his or her person in accordance with the system prescribed must be denied entry into a sterile area and must refuse to transport 17

Case 2:16-cv-02529-SHL-cgc Document 22-1 Filed 08/10/16 Page 18 of 20

PageID 150

such persons. 40 C.F.R. § 1544.201(c). All persons must be inspected for weapons, explosives and incendiaries. 40 C.F.R. § 1544.201(b). All individuals must be inspected by TSA before boarding or loading on an aircraft. 40 C.F.R. § 1544.207(b). Any metal detection devices must meet the standards established by TSA. 40 C.F.R. § 1544.209(b). Screener qualifications are governed by these regulations. 40 C.F.R. §§ 1544.401, 403, 405, 407, 409, 411. Id. at *5; see also U.S. v. Aukai, 497 F.3d 955 (9th Cir. 2007) (emphasis added). Hannah Cohen, in order to establish her ADA claim and a Rehabilitation Act claim, must prove, among other elements, that MSCAA intentionally “excluded [Hannah Cohen] from participation in, denied the benefits of, or subjected to discrimination under [a] program because of her disability.”

Anderson, 798 F.3d at 357

(footnote omitted). In the present case, federal law and the contract incorporated into MSCAA’s Answer show that MSCAA does not control the “program” that Hannah Cohen alleges is discriminatory, i.e. the screening process at the Airport.

Therefore, this Court should dismiss her

ADA and Rehabilitation Act claims as a matter of law. In order for Hannah Cohen to establish a Rehabilitation Act claim, she must also prove “the program or activity receives federal funds.” Cir. 1996). allegation

Burns v. City of Columbus, 91 F.3d 836, 841 (6th

Plaintiffs’ Second Amended Complaint contains no that

MSCAA

receives

18

any

federal

funding

for

the

Case 2:16-cv-02529-SHL-cgc Document 22-1 Filed 08/10/16 Page 19 of 20

screening program.

PageID 151

Thus, this Court has an additional ground to

dismiss Plaintiff’s Rehabilitation Act claim. CONCLUSION Plaintiffs are required to overtly allege that their state law claims are brought within the requirements of the TGTLA, and they have failed to do so; sovereign immunity bars Plaintiffs’ state law claims; Plaintiffs cannot sue for punitive damages based on the underlying facts; and MSCAA, based on federal law and the contract, did not discriminate against Hannah Cohen.

Therefore,

MSCAA asks this Court to grant its Motion for Judgment on the Pleadings and to dismiss this case with prejudice. Respectfully submitted, PETKOFF AND FEIGELSON, PLLC /s/James L. Cresswell, Jr. James L. Cresswell, Jr. (#26257) David I. Feigelson (#20350) Logan A. Klauss (#34311) 305 Washington Avenue Memphis, Tennessee 38103-1911 (901) 523-1050 Attorneys for Memphis-Shelby County Airport Authority and Memphis International Police Department

19

Case 2:16-cv-02529-SHL-cgc Document 22-1 Filed 08/10/16 Page 20 of 20

PageID 152

CERTIFICATE OF SERVICE I hereby certify that on August 10, 2016 a copy of the DEFENDANT MEMPHIS-SHELBY COUNTY AIRPORT AUTHORITY’S MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION FOR JUDGMENT ON THE PLEADINGS was filed electronically. Notice of this filing will be sent by operation of the Court’s electronic filing system to all parties indicated on the electronic filing receipt. All other parties will be served by regular U.S. Mail. Parties may access this filing through the Court’s electronic filing. Mr. William Hardwick Ms. Kelly Pearson 4745 Poplar Avenue, Suite 201 Memphis, Tennessee 38117 [email protected] [email protected] Attorneys for Plaintiff /s/James L. Cresswell, Jr. Certifying Attorney

20