Case 2:16-cv-02529-SHL-cgc Document 50 Filed 11/10/16 Page 1 of 10

PageID 337

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION SHIRLEY COHEN AND HANNAH COHEN, Plaintiffs, v. TRANSPORTATION SECURITY ADMINISTRATION, MEMPHIS AND SHELBY COUNTY AIRPORT AUTHORITY, and MEMPHIS INTERNATIONAL AIRPORT POLICE DEPARTMENT, Defendants.

) ) ) ) ) ) ) ) ) ) ) ) )

No. 16-cv-2529-SHL-cgc

ORDER GRANTING MEMPHIS INTERNATIONAL AIRPORT POLICE DEPARTMENT’S MOTION FOR JUDGMENT ON THE PLEADINGS, GRANTING TRANSPORTATION SECURITY ADMINISTRATION’S MOTION TO DISMISS, AND GRANTING IN PART AND DENYING IN PART MEMPHIS AND SHELBY COUNTY AIRPORT AUTHORITY’S MOTION FOR JUDGMENT ON THE PLEADINGS

Before the Court are Defendant Memphis International Airport Police Department’s (“Airport Police”) Motion for Judgment on the Pleadings, filed August 10, 2016 (ECF No. 23), Defendant Transportation Safety Administration’s (the “TSA”) Motion to Dismiss, filed September 2, 2016 (ECF No. 28), and Defendant Memphis-Shelby County Airport Authority’s (“MSCAA”) Motion for Judgment on the Pleadings, filed August 10, 2016 (ECF No. 22). Plaintiffs responded to each motion on September 23, 2016. (ECF Nos. 40-42.) Defendant MCAA filed its Reply on September 28, 2016 (ECF No. 43) and Defendant TSA filed its Reply on October 6, 2016. (ECF No. 46.)

Case 2:16-cv-02529-SHL-cgc Document 50 Filed 11/10/16 Page 2 of 10

PageID 338

In their Response, Plaintiffs concede that Defendant Airport Police is a sub-entity within the MSCAA and thus is not subject to suit as a separate entity. (ECF No. 40.) Therefore, Defendant Airport Police’s Motion for Judgment on the Pleadings is GRANTED. 1 As for the other two motions, for the following reasons, the Court GRANTS Defendant TSA’s Motion to Dismiss and GRANTS IN PART AND DENIES IN PART Defendant MSCAA’s Motion for Judgment on the Pleadings. First, sovereign immunity and the requirement for administrative exhaustion of tort claims prevent Plaintiffs’ claims against TSA. Plaintiffs’ claims against MSCAA survive only in part – Plaintiffs’ tort claims are barred and Plaintiff Hannah Cohen (“Hannah”) has failed to assert that MSCAA receives federal funding as required by the Rehabilitation Act. BACKGROUND The following facts are taken from Plaintiffs’ Second Amended Complaint and accepted as true in order to analyze the motions before the Court. (ECF No. 12-1.) This lawsuit arises from events that occurred on June 30, 2015, when Hannah and her mother, Plaintiff Shirley Cohen (“Mrs. Cohen”), were at the Memphis International Airport (the “Airport”), traveling home to Chattanooga, Tennessee, after Hannah received treatment at St. Jude Children’s Research Hospital in Memphis, Tennessee. (Id.) Hannah has physical and mental impairments as a result of radiation treatments and removal of a brain tumor. (Id. at 2.) Plaintiffs allege that Hannah’s disability is obvious on sight. (Id.) Upon arriving at the airport, Plaintiffs moved through a mandatory security screening. (Id. at 3.) While passing through the security screening, Hannah triggered a security alarm, despite not carrying any kind of contraband. (Id.) Because of her disability, the noise of the 1

The Court will consider all claims against Defendant Airport Police, along with all relevant defenses, in analyzing Defendant MSCAA’s Motion. 2

Case 2:16-cv-02529-SHL-cgc Document 50 Filed 11/10/16 Page 3 of 10

PageID 339

alarm made her disoriented. (Id.) Mrs. Cohen immediately began to explain to security personnel that her daughter’s disabilities were causing her uncooperative reaction. (Id.) Despite her obvious disability, Plaintiffs allege that security personnel assaulted Hannah in response to her failure to comply with a search. (Id.) Hannah was then arrested at the security checkpoint and transferred to the Memphis Police Department. (Id.) She was later released, and the charges were dismissed. (Id.) Plaintiffs filed suit on June 28, 2016 (ECF No. 1), and filed an Amended Complaint on June 30, 2016. (ECF No. 5.) Plaintiffs then filed a Motion to Amend and attached a Second Amended Complaint (ECF No. 12), which was granted on July 8, 2016. (ECF No. 13.) In their Second Amended Complaint, Plaintiffs allege that Defendants’ actions on June 30, 2015, violated the Americans with Disabilities Act (the “ADA”) and the Rehabilitation Act, and that Defendants are liable to Plaintiffs for intentional or negligent infliction of emotional distress. (ECF No. 12-1 at 4.) STANDARD OF REVIEW In ruling on a motion to dismiss, the court must “construe the complaint in the light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff.” Handy-Clay v. City of Memphis, 695 F.3d 531, 538 (6th Cir. 2012). A plaintiff can support a cause of action by pleading sufficient facts to state a claim for relief that is plausible on its face. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). To meet this standard, a plaintiff must submit more than bare legal conclusions or a formulaic recitation of the elements of a cause of action. Id. at 555. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 US. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). A plaintiff with

3

Case 2:16-cv-02529-SHL-cgc Document 50 Filed 11/10/16 Page 4 of 10

PageID 340

no facts and “armed with nothing more than conclusions” cannot “unlock the doors of discovery.” Id. at 678–79. Pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, “[a]fter the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings.” Fed. R. Civ. P. 12(c). A motion on the pleadings is evaluated using the same standard as a 12(b)(6) motion to dismiss. HDC, LLC v. City of Ann Arbor, 675 F.3d 608, 611 (6th Cir. 2012). Courts “must construe the complaint in a light most favorable to the plaintiff, accept all factual allegations as true and determine whether the complaint states a plausible claim for relief.” Albrecht v. Treon, 617 F.3d 890, 893 (6th Cir. 2010) (citing Iqbal, 556 U.S. 662 (internal quotations omitted)). ANALYSIS I.

Defendant TSA’s Motion to Dismiss A.

ADA Claim

Hannah alleges that TSA intentionally discriminated against her in the airport screening process, in violation of the ADA. (Pl.’s Compl. 4, ECF No. 12-1.) TSA moves to dismiss this claim, arguing that the federal government is not subject to the provisions of the ADA. (Def.’s Mot. to Dismiss 7, ECF No. 28.) In fact, the federal government has not waived its sovereign immunity to subject it to suit under the ADA, and, therefore, no such suit may be brought. See Agee v. United States, 72 Fed. Cl. 284, 289 (2006); Gray v. United States, 69 Fed. Cl. 95, 102 (2005) (“[T]he United States has not waived its sovereign immunity to be sued under the ADA . . . .”) Because it is immune from suit, Plaintiff Hannah Cohen’s claim for relief under the ADA against the TSA is DISMISSED WITH PREJUDICE.

4

Case 2:16-cv-02529-SHL-cgc Document 50 Filed 11/10/16 Page 5 of 10

B.

PageID 341

Rehabilitation Act

Hannah alleges that TSA violated § 504 of the Rehabilitation Act, 29 U.S.C. § 794. Plaintiff seeks monetary damages as redress for this violation. Under the Rehabilitation Act, [n]o otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conduct by any Executive agency . . . . 29 U.S.C. § 794. While the Federal Government has waived its sovereign immunity under the Rehabilitation Act, it has not extended that waiver to monetary damages. Lane v. Pena, 518 U.S. 187, 192-93 (1996). TSA argues that Hannah has failed to state a claim under the Rehabilitation Act, and that, even if she did articulate such a claim, it should be dismissed because only monetary damages are sought and the government has not waived sovereign immunity as to monetary damages. (Def.’s Mot. to Dismiss 8-12, ECF No. 28.) Hannah seeks only monetary damages in the Second Amended Complaint. (Pl.’s Second Am. Compl. 5, ECF No. 12-1.) Because Hannah’s claim under the Rehabilitation Act includes only monetary damages from which TSA is immune, her claim against the TSA under the Rehabilitation Act is hereby DISMISSED WITH PREJUDICE. C.

Tort Claims

Plaintiffs also allege that TSA is liable for intentional or negligent infliction of emotional distress as a result of the assault and arrest of Hannah. (Pl.’s Am. Compl. 4, ECF No. 12-1.) All tort claims against the United States are governed by the Federal Tort Claims Act (“FTCA”). Singleton v. United States, 277 F.3d 864, 872 (6th Cir. 2002), rev’d on other grounds, Hawver v. United States, 808 F.3d 693 (6th Cir. 2015). “The FTCA bars claimants from bringing suit in

5

Case 2:16-cv-02529-SHL-cgc Document 50 Filed 11/10/16 Page 6 of 10

PageID 342

federal court until they have exhausted their administrative remedies.” McNeil v. United States, 508 U.S. 106, 113 (1993). The administrative remedy may be considered exhausted if, after six months from the filing of the claim, the agency has not yet made a final decision. 28 U.S.C. § 2675. TSA argues that Plaintiffs failed to exhaust the administrative remedies as required by the FTCA because they never sought an administrative remedy. (Def.’s Mot. to Dismiss 13, ECF No. 28.) Plaintiffs respond that, due to the applicable one-year statute of limitations, it would have been impossible for them to exhaust their administrative remedies. However, Plaintiffs have not indicated why they did not seek an administrative remedy concurrent with the suit here. Because Plaintiffs failed to exhaust their administrative remedies as to their tort claims against TSA, they have not met the requirements of the FTCA. Therefore, Plaintiffs’ tort claims against Defendant TSA are hereby DISMISSED WITH PREJUDICE. II.

Defendant MSCAA’s Motion for Judgment on the Pleadings A.

Tort Claims

The Plaintiffs concede that the Tennessee Governmental Tort Liability Act (“TGTLA”) is the only statute under which MSCAA may be sued in tort, but that the statute bars claims where they are predicated on an alleged violation of civil rights. (Pl.’s Resp. 1, ECF No. 41.) Such is the case here. Therefore, Plaintiffs’ claims for intentional or negligent infliction of emotional distress are DISMISSED WITH PREJUDICE. B.

ADA & Rehabilitation Act Claims

Hannah alleges that MSCAA violated the ADA and the Rehabilitation Act by failing to provide a reasonable accommodation for her disability in the airport screening process and for intentionally discriminating against her as she went through the security checkpoint. (Pl.’s Am.

6

Case 2:16-cv-02529-SHL-cgc Document 50 Filed 11/10/16 Page 7 of 10

PageID 343

Compl. 4, ECF No. 12-1.) “[The Court] analyze[s] claims of intentional discrimination brought pursuant to the ADA [and the Rehabilitation Act]. . . under the familiar burden-shifting analysis established by [McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)].” Turner v. City of Englewood, 195 Fed. Appx. 346, 353 (6th Cir. 2006). “Under McDonnell Douglas, [p]laintiff must first establish a prima facie case for discrimination.” Id. To establish a prima facie case under the ADA and the Rehabilitation Act, a plaintiff must show “that [s]he (1) is disabled under the statutes, (2) is “otherwise qualified” for participation in the program, and (3) ‘is being excluded from participation in, denied the benefits of, or subjected to discrimination’ because of [her] disability or handicap, and (4) (for the Rehabilitation Act) that the program receives federal financial assistance.” Gohl v. Livonia Pub. Sch., No. 15-2301, 2016 WL 4698279, at *6 (6th Cir. Sept. 8, 2016) (quoting G.C. v. Owensboro Pub. Sch., 711 F.3d 623, 635 (6th Cir. 2013)). Defendant MSCAA argues that Hannah fails to allege a viable claim for relief under either the ADA or the Rehabilitation Act. (Def.’s Mot. for J. on the Pleadings 16, ECF No. 221.) MSCAA contends that, because Plaintiffs’ tort claims do not survive scrutiny, the Court should consider only Paragraphs 19 and 20 of the Complaint in evaluating these claims, 2 neither

2

Paragraphs 19 and 20 read: 19. The defendants are liable to the Plaintiff, Hannah Cohen, for discriminatory acts on June 30, 2015, at the security checkpoint where officers, servants and agents of . . . the Memphis Airport Police, discriminated against the Plaintiff, Hannah Cohen, because of her disability in violation of the [ADA] and the Rehabilitation Act. These acts of discrimination were intentional.

20. More particularly . . . Memphis Airport Police officers did not provide any reasonable accommodation for screening for the disability of the Plaintiff, Hannah Cohen, and did not screen her providing for her disability at the checkpoint. The Defendant, [MSCAA], is liable for failure 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. (Pl.’s Am. Compl. ¶ 19-20, ECF No. 12-1.) 7

Case 2:16-cv-02529-SHL-cgc Document 50 Filed 11/10/16 Page 8 of 10

PageID 344

of which include allegations related to the alleged assault or arrest. (Def.’s Reply 3, ECF No. 43.) MSCAA’s position is that, in evaluating the allegations, absent the alleged assault or arrest, the Court should consider only what occurred during “the screening process,” which it narrowly interprets as a “specifically designated area” that, for purposes of national security, is controlled solely by TSA and federal law. (Id. at 3-4.) In narrowly interpreting the Complaint as described above, MSCAA argues that the actions of its officers are not included as part of these claims because the MSCAA personnel operated just outside of the narrowly-defined “screening process.” (Id.) Finally, MSCAA contends that Plaintiff has not sufficiently pled that MSCAA receives federal funding, as required in a claim under the Rehabilitation Act. Hannah contends that she has pled a viable claim for relief under both the ADA and the Rehabilitation Act. (Pl.’s Resp. 3, ECF No. 41-1.) The Court agrees. Hannah has pled sufficient facts supporting a claim, at this stage, that she was discriminated against while moving through the screening process at the Memphis International Airport. The Court does not find MSCAA’s narrow interpretation of “the screening process” to be a natural interpretation of Plaintiff’s allegations. While a part of the screening process is controlled entirely by the TSA, it is clear that MSCAA officials were present at the security checkpoint and involved in the incident at issue. MSCAA is not relieved of liability simply because the TSA has complete control over a portion of the screening. And, although “the government has a legitimate interest in protecting the public from air piracy and terrorism on commercial air planes, and the blanket screening process is not unreasonable in the context of which it occurs,” Hannah’s allegations sufficiently state a plausible claim that MSCAA intentionally discriminated against her due to her known or obvious disability, in violation of the ADA and the Rehabilitation Act. VanBrocklen v. United States, No. 1:08-cv-312, 2009 WL 819382, at *6 (N.D. N.Y. Mar. 26,

8

Case 2:16-cv-02529-SHL-cgc Document 50 Filed 11/10/16 Page 9 of 10

PageID 345

2009). While Plaintiff will be required in the course of the proceedings to show that a reasonable accommodation was available to MSCAA, that specificity is not required at this stage of the proceedings. 3 MSCAA is correct that there is not a specific allegation in Plaintiff’s Second Amended Complaint that MSCAA receives federal funding, an element of a cause of action under the Rehabilitation Act. Despite this, it appears that MSCAA receives federal funding based solely on MSCAA’s contract with TSA, which was attached to MSCAA’s Answer. (ECF No. 20.) The Court will not dismiss Hannah’s claims under the Rehabilitation Act based on a mere technicality. To remedy this technicality, the Court will DISMISS WITHOUT PREJUDICE Hannah Cohen’s claims under the Rehabilitation Act, with leave to amend the Complaint to allege that MSCAA receives federal funding. 4 CONCLUSION As to all claims against Defendant TSA, Plaintiffs fail to state a claim upon which relief may be granted. Therefore, the Court GRANTS Defendant TSA’s Motion to Dismiss. As for MSCAA, Hannah’s claims under both the ADA and the Rehabilitation Act state a plausible claim for relief, so long as Plaintiff alleges that MSCAA receives federal funding, as required under the Rehabilitation Act. However, the tort claims against MSCAA are based on alleged 3

Defendant TSA, in its Motion to Dismiss, narrowly focused on whether Plaintiff alleged reasonable accommodations were available as an alternative to metal detector screening. (ECF No. 28 at 10.) While it is unclear from Plaintiff’s Complaint, it appears to the Court that the Plaintiff is not alleging that she should not have been searched, but rather that, once she was unable to cooperate after setting off the alarm, a reasonable accommodation was available other than the alleged assault and arrest. 4 While the Court finds that the ADA and Rehabilitation Act claims against Defendant MSCAA are sufficiently alleged at this stage, albeit with a proper allegation as to federal funding, Plaintiff’s claims need significant further factual development. Additionally, in a private cause of action under either the ADA or the Rehabilitation Act, punitive damages may not be awarded. Barnes v. Gorman, 536 U.S. 181, 189 (2002). Therefore, Hannah’s claim for punitive damages is DISMISSED. 9

Case 2:16-cv-02529-SHL-cgc Document 50 Filed 11/10/16 Page 10 of 10

PageID 346

civil rights violations and thus must be dismissed. The Court, therefore, GRANTS IN PART AND DENIES IN PART Defendant MSCAA’s Motion for Judgment on the Pleadings, giving Plaintiff leave to file an Amended Complaint. Defendant Memphis Airport Police’s Motion for Judgment on the Pleadings is also GRANTED. Finally, because Mrs. Cohen’s only claims were tort actions against MSCAA and TSA, and those claims are dismissed, she is no longer a Plaintiff in this action. IT IS SO ORDERED, this 10th day of November, 2016. s/ Sheryl H. Lipman SHERYL H. LIPMAN UNITED STATES DISTRICT JUDGE

10